Citation Nr: 18160962 Decision Date: 12/28/18 Archive Date: 12/28/18 DOCKET NO. 10-27 637 DATE: December 28, 2018 ORDER Entitlement to an increased rating for right shoulder strain with osteoarthritis, rated as: 20 percent disabling from July 17, 2009 to January 30, 2014; 100 percent disabling from January 31, 2014 to February 28, 2014; and 20 percent disabling since March 1, 2014, is denied. Entitlement to an increased rating for left shoulder tendonitis, rated as 20 percent disabling since July 17, 2009, or thereafter, is granted. FINDINGS OF FACT 1. The Veteran’s right shoulder strain with osteoarthritis has resulted in loss of range of motion due to pain and is limited at shoulder level from July 17, 2009 to January 30, 2014; but has not resulted in limitation of motion midway between the side and shoulder level or to 25 degrees from the side. 2. The Veteran’s right shoulder strain with osteoarthritis was assigned a temporary 100 percent evaluation from January 31, 2014 to February 28, 2014 for shoulder surgery and recovery in January 2014. 3. The Veteran’s right shoulder strain with osteoarthritis has resulted in loss of range of motion due to pain and is limited at shoulder level from March 1, 2014; but has not resulted in limitation of motion midway between the side and shoulder level or to 25 degrees from the side. 4. The Veteran’s left shoulder tendonitis has resulted in loss of range of motion due to pain and is limited midway between the side and shoulder level since July 17, 2009, or thereafter; but has not resulted in limitation of motion to 25 degrees from the side. CONCLUSIONS OF LAW 1. The criteria for entitlement to an increased rating for right shoulder strain with osteoarthritis, rated as: 20 percent disabling from July 17, 2009 to January 30, 2014; 100 percent disabling from January 31, 2014 to February 28, 2014; and 20 percent disabling since March 1, 2014, have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.27, 4.40, 4.45, 4.71a, Diagnostic Code (DC) 5201. 2. The criteria for entitlement to a 30 percent rating for left shoulder tendonitis July 17, 2009 have been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.27, 4.40, 4.45, 4.71a, DC 5201. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had qualifying service from June 1974 to June 1978 and January 2003 to January 2005. These matters come before the Board of Veterans’ Appeals (Board) on appeal from an October 2009 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran and his spouse testified at a July 2016 Central Office hearing before the undersigned Veterans Law Judge. A transcript of the hearing has been associated with the claims file. In October 2016, the Board remanded the claims herein to seek any outstanding: (1) VA treatment records since December 2015; and (2) private treatment records since 2008, as identified by the Veteran, but specifically including from Dr. Fleming. The Board noted that, during the October 2016 hearing, the Veteran testified that he was scheduled to see Dr. Fleming later that month regarding his bilateral shoulder disability. Those treatment records were not submitted by the Veteran or sought by the Agency of Original Jurisdiction (AOJ). As such, the Board remanded to fulfill VA’s duty to assist the Veteran to obtain these records. See 38 U.S.C. § 5103A (a); 38 C.F.R. § 3.159 (c), (d). In May 2017, during the pendency of the appeal, the AOJ issued a rating decision that increased the right and left shoulder disabilities from 10 percent to 20 percent disabling, each effective on July 17, 2009. As the AOJ has not yet granted the maximum disability rating for all stages, the appeals remain properly before the Board. See AB v. Brown, 6 Vet. App. 35 (1993). In October 2017, the Board again remanded the claims to seek outstanding: (1) VA treatment records since July 2017; (2) private treatment records dated since 2008, as identified by the Veteran, but specifically including from Dr. Fleming; and (3) to schedule a VA examination that complies with the Correia holding and assesses the current severity of the Veteran’s bilateral shoulder disabilities. Correia v. McDonald, 28 Vet. App. 158 (2016). The Board finds that the RO has substantially complied with the October 2017 Board remand directive. See Stegall v. West, 11 Vet. App. 268 (1998). The RO obtained the VA treatment records from July 2017 forward and scheduled the Veteran for a VA examination, which complied with Correia. Correia, 28 Vet. App. at 165. While the RO was unable to obtain the private medical records from Dr. Fleming, the Veteran is reminded that the “duty to assist is not a one-way street. If a Veteran wishes help, he cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining the putative evidence.” Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). The RO sent the Veteran a letter dated October 2017 requesting a general release to be signed and returned so the RO could request the documentation. The Veteran failed to return the letter or provide the medical documentation from Dr. Fleming. In the absence of the Veteran’s cooperation in obtaining pertinent medical evidence, VA has no further obligation to develop the record on appeal. Accordingly, the issues will be decided based on the evidence of record. Increased Rating Disability ratings are determined by the application of the facts presented to VA’s Schedule for Rating Disabilities. 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during service and the residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321 (a), 4.1. In rating the severity of a particular disability, it is essential to consider its history. 38 C.F.R. § 4.1; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for the higher rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Separate ratings can be assigned for separate periods of time, based on the facts found. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). A claim for increased rating remains in controversy when less than the maximum available benefit is awarded AB v. Brown, 6 Vet. App. 35 (1993). Reasonable doubt as to the degree of disability will be resolved in the Veteran’s favor. 38 C.F.R. § 4.3. When assigning disability ratings based on limitation of motion or function, it is necessary to consider functional loss due to flare-ups, fatigability, incoordination, and pain on movements. See DeLuca v. Brown, 8 Vet. App. 202, 206-7 (1995). The rating for an orthopedic disorder should reflect functional limitation due to pain which is supported by adequate pathology and evidenced by the visible behavior of the veteran undertaking the motion. Weakness is also as important as limitation of motion, and a part which becomes painful on use must be regarded as seriously disabled. A little used part of the musculoskeletal system may be expected to show evidence of disuse, either through atrophy, the condition of the skin, absence of normal callosity, or the like. See 38 C.F.R. § 4.40. The factors of disability reside in the reduction of normal excursion of movements in different planes, weakened movement, excess fatigability, swelling and pain on movement. Instability of station, disturbance of locomotion, and interference with sitting, standing, and weight bearing are related considerations. 38 C.F.R. § 4.45. It is the intention of the rating schedule to recognize actually painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimal compensable rating for the joint. 38 C.F.R. § 4.59. DC 5201 assigns a 40 percent evaluation for the major extremity and a 30 percent for the minor extremity, for limitation of motion of the arm to 25 degrees from the side. A 30 percent evaluation for the major extremity and 20 percent evaluation for the minor extremity is assigned for limitation of motion of the arm midway between the side and shoulder level. A 20 percent rating is assigned for limitation at shoulder level for both the major and minor extremities. Normal range of motion for the shoulder is from 0 to 180 degrees on forward flexion and abduction, and from 0 to 90 degrees on internal and external rotation. See 38 C.F.R. § 4.71a, Plate I. There are other DCs that involve the evaluation of the upper extremities. DC 5200 involves ankylosis of the scapulohumeral articulation (the scapula and humerus move as one piece). Impairment of the humerus is covered by DC 5202. Ratings for impairment of the clavicle and scapula are covered under DC 5203. DC 5003, degenerative arthritis, requires rating according to the limitation of motion of the affected joints, if such would result in a compensable disability rating. 38 C.F.R. § 4.71a. Traumatic arthritis, under DC 5010, is to be rated on limitation of motion of the affected parts, as degenerative arthritis. Based on the manifestations of the disability, as discussed below, the Board finds that DC 5201 is the most appropriate code in this case. 1. Entitlement to an increased rating for right shoulder strain with osteoarthritis, rated as: 20 percent disabling from July 17, 2009 to January 30, 2014; 100 percent disabling from January 31, 2014 to February 28, 2014; and 20 percent disabling since March 1, 2014 The Veteran contends that his right shoulder condition is more disabling than currently evaluated as he is in constant pain and is unable to do daily activities. See Hearing Transcript dated July 2016. The Veteran’s representative, in an August 2017 informal hearing presentation, argued on the Veteran’s behalf that his right shoulder disability should have been evaluated at greater than 10 percent prior to January 26, 2005. However, VA regulations provide that the effective date for increases shall be the “date of receipt of claim or date entitlement arose, whichever is later.” 38 C.F.R. § 3.400 (o) (1). There is one exception which provides that the effective date shall be the earliest date as of which it is factually ascertainable that an increase in disability had occurred, if the claim is received within one year from such. 38 C.F.R. § 3.400 (o) (2). Here, the Veteran’s claim for an increased rating was received on July 17, 2009. Thus, the earliest possible effective date would be one year prior to July 17, 2009, the date of the claim. Accordingly, an effective date prior to January 26, 2005 is barred as a matter of law. The Board also notes that the evidence of record shows that the Veteran is left-hand dominant; therefore, his right shoulder disability affects his minor extremity. See Hearing Transcript dated July 2016; 38 C.F.R. § 4.69. A. Prior to January 30, 2014 The Veteran was assigned a 20 percent rating for his right shoulder disability, effective July 17, 2009, under DC 5201 as there was painful motion of the shoulder and x-ray evidence of degenerative arthritis. The Veteran was afforded a VA examination in August 2009. The VA examiner diagnosed the Veteran with shoulder strain with osteoarthritis of the right shoulder. The Veteran reported symptoms of weakness, stiffness, lack of endurance, locking, and pain. The Veteran did not report symptoms of swelling, heat, redness, giving way, fatigability, deformity, tenderness, drainage, effusion, subluxation, or dislocation. The Veteran also reported difficulty standing and walking with numbness and pain radiating down the arms to the fingers. The examiner noted that the condition did not result in incapacitation, but did result in functional impairment as the Veteran takes medication for pain and has very limited movement. Upon a physical examination, tenderness was noted in the right shoulder. The Veteran’s ROM with flexion was to 180 degrees, abduction to 180 degrees, external rotation to 90 degrees, and internal rotation to 90 degrees. After repetitive use, pain had a major functional impact. Diagnostic imaging testing revealed some cortical irregularity along the superior aspect of the distal clavicle and acromion, likely degenerative spurring. The Veteran’s treatment records reveal consistent orthopedic clinic visits where right shoulder pain and limited ROM were noted. Orthopedic clinic notes on March 2012 and January 2011 show that the Veteran’s ROM with forward flexion was to 90 degrees. A July 2010 orthopedic clinic note shows that the Veteran’s ROM with abduction was to 90 degrees as well. However, there is no evidence showing ankylosis, humerus impairment, or clavicle impairment. Additionally, there is no evidence that right arm movement was limited to midway between the side and shoulder level or to 25 degrees from the side. The evidence of record shows that the Veteran experienced pain on motion in the right shoulder and limited ROM with abduction and forward flexion to 90 degrees, but no less. These symptoms warrant an evaluation of 20 percent disabling, but there is no evidence warranting a rating in excess of 20 percent. In addition, there is no evidence that the disability increased in severity during the one-year time period prior to the July 2009 claim. B. From January 31, 2014 to February 28, 2014 The Veteran was assigned a temporary 100 percent evaluation for his shoulder disability as he had shoulder surgery at a VA hospital in January 2014, pursuant to 38 C.F.R. § 4.30. There is no suggestion in the record that this period of convalescence required an extension beyond February 28, 2014, nor has the Veteran claimed that such was needed. C. Since March 1, 2014 The Veteran was assigned a 20 percent rating for his right shoulder disability under DC 5201 as there was painful motion of the shoulder and x-ray evidence of degenerative arthritis. The Veteran was afforded a VA examination in March 2016. The examiner diagnosed the Veteran with right shoulder strain with osteoarthritis. The Veteran reported pain with most activities involving his shoulder and nighttime pain. The Veteran reported flare-ups that were exacerbated by frequent shoulder use and overhead activities. Upon physical examination, his right shoulder ROM for forward flexion was to 100 degrees, abduction to 100 degrees, external rotation to 50 degrees, and internal rotation to 90 degrees. His ROM contributed to functional loss as lifting overhead is difficult for the Veteran. Pain was noted during the exam and the examiner determined that the pain caused functional loss. The Veteran was able to perform repetitive testing without functional loss. The examiner determined that there was no evidence of muscle atrophy, ankylosis, shoulder instability, dislocation, labral pathology, or subluxation. The examiner found no impairment of the clavicle, scapula, acromioclavicular joints, or of the humerus. The examiner noted that the Veteran uses a brace at night. Imaging studies showed traumatic or degenerative arthritis. The examiner concluded that the Veteran’s shoulder condition resulted in functional impact as any work over the shoulder level is difficult for the Veteran. The Veteran was afforded another VA examination in December 2017. The examiner diagnosed the Veteran with: shoulder impingement syndrome; rotator cuff tendonitis; labral tear, including SLAP; glenohumeral joint osteoarthritis; acromioclavicular joint osteoarthritis; supraspinatus tendinosis, infraspinatus tendinosis. The Veteran reported daily shoulder pain. Functional loss was noted by the examiner as the Veteran stated that he cannot use his arms without pain and he cannot hold onto things for a long time. Also, the Veteran reported that the pain disturbs his sleep. Upon physical examination, ROM for forward flexion was to 65 degrees, abduction to 50 degrees, external rotation to 25 degrees, and internal rotation to 30 degrees. The examiner noted pain on the exam, but pain and the limited ROM did not contribute to functional loss. The examiner noted additional functional loss on ROM after three repetitions with fatigue causing loss. After repetition, ROM with external rotation was 35 to 20 degrees. The examiner found no evidence of muscle atrophy, ankylosis, instability, dislocation, labral pathology, subluxation, or conditions of the humerus. The examiner did suspect a clavicle, scapula, acromioclavicular or sternoclavicular joint condition as the Veteran had a previous SLAP repair involving resection of the distal end of the clavicle on the right; however, it did not affect ROM. The examiner did not find functioning so diminished that amputation with prosthesis was necessary. Diagnostic imaging studies revealed evidence of degenerative or traumatic arthritis. The examiner concluded that the Veteran’s shoulder disability resulted in functional impact as the Veteran was able to perform basic activities of daily living independently, but with impairment. The Veteran’s treatment records reveal consistent orthopedic clinic visits where right shoulder pain and limited ROM were noted. A January 2015 orthopedic clinic note shows right forward flexion and abduction at 140 degrees. A December 2015 orthopedic clinic note shows forward flexion to 140 degrees and abduction to 100 degrees. A November 2016 orthopedic clinic note shows abduction and forward flexion to 90 degrees. A December 2017 orthopedic clinic note shows ROM to 45 degrees for abduction and forward flexion, to 0 degrees for external rotation, and internal rotation to the back pocket. There is no evidence showing ankylosis or humerus impairment. While there is evidence of a clavicle impairment, the VA examiner opined that the impairment did not impact ROM. The December 2017 orthopedic visit shows limitation of motion to midway between the side and shoulder level; however, the Veteran’s right shoulder is a minor extremity and the DC only provides a 20 percent evaluation rather than a 30 percent evaluation for a minor extremity. Additionally, there is no evidence indicating that the Veteran’s ROM is limited to 25 degrees from his side. Accordingly, a rating in excess of 20 percent is not warranted from March 1, 2014. 2. Entitlement to an increased rating for left shoulder tendonitis, rated as 20 percent disabling since July 17, 2009 The Veteran contends that his left shoulder condition is more disabling than currently evaluated as he is in constant pain and is unable to do daily activities. See Hearing Transcript dated July 2016. As above-mentioned, the Veteran’s representative argued that the Veteran’s left shoulder tendonitis should be granted in excess of 10 percent since January 26, 2005. However, the Veteran’s claim for an increased rating was received on July 17, 2009. Thus, the earliest possible effective date would be one year prior to July 17, 2009, not January 26, 2005. See 38 C.F.R. § 3.400. The Board also notes that the evidence of record shows that the Veteran is left-hand dominant; therefore, his left shoulder disability affects his major extremity. See Hearing Transcript dated July 2016; 38 C.F.R. § 4.69. A. 20 percent rating since July 17, 2009 The Veteran was assigned a 20 percent rating for his left shoulder disability under DC 5201 as there was pain on ROM of the shoulder and objective evidence of tenosynovitis. As noted above, the Board will evaluate the evidence up to one year prior to the date of claim to determine whether an increase is shown. The Veteran’s treatment records reveal a July 2008 and an October 2008 orthopedic consult where ROM with forward flexion and abduction was full to 150 degrees. A physical exam in January 2009 revealed that the left shoulder had nearly full forward flexion from 160 to 170 degrees, abduction to 160 degrees, external rotation to 50 degrees, and internal rotation to the upper thoracic spine. A July 2009 orthopedic consult noted shoulder pain and ROM with forward flexion and abduction to 140 degrees. The Veteran was afforded a VA examination in August 2009. The examiner diagnosed the Veteran with shoulder strain. The Veteran reported symptoms of weakness, stiffness, lack of endurance, locking, and pain. He stated that he does not experience swelling, heat, redness, giving way, fatigability, deformity, tenderness, drainage, effusion, subluxation, or dislocation. The Veteran also reported difficulty standing and walking and pain and numbness that radiates down the arms to the fingers. The examiner determined that the Veteran’s shoulder condition did not result in incapacitation, but did result in functional impairment due to pain and very limited movement. Upon physical examination, the Veteran’s ROM with forward flexion and abduction to 180 degrees and external and internal rotation to 90 degrees. After repetitive use, the joint function was limited by pain, but was not limited by fatigue, weakness, lack of endurance, or incoordination. Diagnostic imaging studies found the left shoulder within in normal limits. The examiner found no signs of edema, instability, abnormal movement, effusion, weakness, redness, heat, deformity, guarding of movement, malalignment, drainage, subluxation, or ankylosis. The Veteran was afforded another VA examination in March 2016. The examiner diagnosed the Veteran with shoulder tendonitis and subacromial impingement. The Veteran reported shoulder pain while performing most activities and pain at night. The Veteran also reported flare-ups that were worse when he used his shoulder a lot or when he was working over his head. The examiner noted functional loss of the shoulder due to the Veteran’s difficulty reaching overhead. Upon physical examination, ROM for forward flexion was to 120, abduction to 110 external rotation to 50, and internal rotation to 90. The examiner determined that limited ROM and pain contributed to functional loss. The Veteran was able to perform repetitive testing with functional loss. There was no evidence of muscle atrophy, ankylosis, shoulder instability, dislocation, labral pathology, or subluxation. The examiner did not find impairments with the humerus or the clavicle, scapula, acromioclavicular joints. Diagnostic imaging studies noted a small bony island in the humeral head. The examiner concluded that the shoulder condition resulted in functional impact as the Veteran’s shoulder condition made any work over his shoulder level difficult. A third VA examination was conducted in December 2017. The examiner diagnosed the Veteran with shoulder impingement syndrome, rotator cuff tendonitis, acromioclavicular joint osteoarthritis, and infraspinatus tendinopathy. The Veteran reported daily shoulder pain. Radiology testing showed a small sclerotic focus in the humeral head and evidence of degenerative or traumatic arthritis. The examiner noted functional loss as the Veteran stated that he cannot use his arms without pain and he can longer hold on to things for a long period of time. Upon physical examination, ROM for forward flexion was to 30 degrees, abduction to 45 degrees, external rotation to 30 degrees, and internal to 20 degrees. The examiner noted pain on the exam, but determined that the pain and ROM did not contribute to functional loss. The examiner noted additional functional loss after repetition of movement. There was no evidence of muscle atrophy, ankylosis, shoulder instability, dislocation, labral pathology, or subluxation. The examiner suspected a clavicle, scapula, acromioclavicular joint or sternoclavicular joint condition, but determined that it did not affect ROM. Also, no conditions of the humerus condition were found. The examiner determined that the Veteran’s shoulder condition was not so diminished that amputation with prosthesis would equally serve the Veteran. The examiner concluded that there is functional impact because the Veteran is only able to perform basic activities of daily living independently with impairment. The Veteran’s treatment records reveal consistent orthopedic clinic visits where left shoulder pain and limited ROM were noted. Visits to the orthopedic clinic in February, April, and July 2010 show full or nearly full ROM for the left shoulder. A February 2011 orthopedic visit indicated shoulder pain and ROM to 110 for abduction and forward flexion. A January 2013 note documents ROM to 120 for forward flexion, to the L2 for internal rotation, abduction to 140, and external rotation to 45. A December 2015 visit noted that the Veteran’s ROM was about 130 degrees for forward flexion, 45 degrees for extension, and 100 degrees for abduction. A November 2016 physical examination found abduction and forward flexion to 90 degrees, and external rotation to 50 degrees. An April 2017 physical exam showed ROM to 90 degrees for abduction, to 160 degrees for forward flexion, to 30 degrees for external rotation, and to the L-spine for internal rotation. Finally, a December 2017 physical exam showed ROM to 45 degrees for abduction and forward flexion, to 0 degrees for external rotation, and to the back pocket or internal rotation. The VA examination and physical exam in December 2017 indicate that the Veteran’s ROM was limited to 45 degrees or to midway between his side and shoulder level. As the Veteran’s left shoulder is a major extremity, the Veteran is entitled to a 30 percent disabling evaluation under DC 5201. 38 C.F.R. § 4.71a. However, the Veteran is not entitled to a rating in excess of 30 percent because there is no evidence showing that the Veteran’s arm is limited to 25 degrees from his side. Additionally, there is no evidence of ankylosis, a humerus condition, or an impairment of the clavicle or scapula resulting in limited ROM or functional loss due to pain. Accordingly, a rating of 30 percent, and no higher, since July 17, 2009 is warranted. R. FEINBERG Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M. Hartford, Associate Counsel