Citation Nr: 18161191 Decision Date: 12/28/18 Archive Date: 12/28/18 DOCKET NO. 10-43 748 DATE: December 28, 2018 ORDER An initial rating greater than 20 percent for a right shoulder disability is denied. From July 7, 2010, a rating greater than 20 percent for left rotator cuff tear with acromioclavicular joint osteoarthritis is denied. FINDINGS OF FACT 1. The Veteran served on active duty in the United States Army from January 1987 to July 2007. For her honorable service, the Veteran was awarded (among other decorations) the Meritorious Service Medal and the Army Commendation Medal. 2. Throughout the entire period on appeal, the right shoulder disability manifested by subjective complaints of pain; objective findings did not demonstrate limitation of motion of the arm midway between side and shoulder level, favorable ankylosis of the scapulohumeral articulation with abduction to 60 degrees, or impairment or recurrent dislocation of the humerus. 3. From July 7, 2010, the left shoulder disability manifested by subjective complaints of pain and fatigability; objective findings did not demonstrate limitation of motion to 25 degrees from the side, intermediate ankylosis of the scapulohumeral articulation, or fibrous union of the humerus. CONCLUSIONS OF LAW 1. The criteria for an initial rating greater than 20 percent for a right shoulder disability have not been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.71a, DC 5201. 2. From July 7, 2010, the criteria for a rating greater than 20 percent for left rotator cuff tear with acromioclavicular joint osteoarthritis have not been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.71a, DC 5003-5201. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Procedurally, these appeals were denied in an April 2016 Board decision. However, the Court of Appeals for Veterans Claims (CAVC) vacated this decision in April 2017 and remanded the matters for further development. The Board similarly remanded these appeals in October 2017 for further development, which has since been completed. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Increased Ratings The Veteran now continues her appeals seeking increased ratings for her right and left shoulder disabilities. Disability ratings are determined by the applications of the 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 their residual conditions in civil occupations. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321(a), 4.1. Right Shoulder First, the Veteran is seeking an initial rating greater than 20 percent for her right shoulder disability. Although her disability has been rated in accordance with DC 5201, the Board will consider all potentially relevant diagnostic codes in assessing the merits of this appeal. In doing so, the Board acknowledges that the Veteran’s right shoulder has been shown to be her major or dominant extremity for purposes of evaluation. As such, the appeal may be granted upon evidence of the following: • Favorable ankylosis of the scapulohumeral articulation with abduction to 60 degrees (the ability to reach the mouth and head) (30 percent under DC 5200); • Limitation of motion of the arm midway between side and shoulder level (30 percent under DC 5201); or • Impairment of the humerus with malunion of marked deformity or recurrent dislocation of the humerus at the scapulohumeral joint with frequent episodes and guarding of all arm movements (30 percent under DC 5202). Upon review of the record, an initial rating greater than 20 percent is not warranted for the Veteran’s right shoulder disability. During February 2016 and November 2017 VA examinations, favorable ankylosis of the scapulohumeral articulation was explicitly denied and right should abduction was noted to 110 and 130 degrees, respectively. Although the February 2016 examiner attributed no functional loss to the Veteran’s limitation of motion, the November 2017 examiner found that she was unable to fully reach above her head to perform tasks. However, these results are not indicative of limitation of motion midway between the side and shoulder. Moreover, both examiners denied a history of humeral impairment with malunion of marked deformity or recurrent dislocation and guarding. VA treatment records support this understanding of the Veteran’s disability picture during the period on appeal and are entirely silent for such symptoms as ankylosis, limitation of motion between the side and shoulder level, and recurrent dislocation. Although a June 2014 treatment record indicates humeral migration, this symptom is classified as “slight” and was not accompanied by any marked deformity. Additionally, there are no future references made to humeral impairment in the remainder of the record. As such, this limited reference is not of such chronicity or severity as to warrant an increased rating at this time. Instead, the record indicates that the Veteran’s primary symptom during the period on appeal was moderate shoulder pain that increased with use. However, this symptom did not appear to cause significant functional impairment. Instead, the Veteran reported to her VA examiners that this disability primarily prevented her from performing overhead work or holding her arms out in front of her for extended periods on time. Of note, the VA examiners were unable to provide opinions as to whether pain, weakness, fatigability, or incoordination significantly limited the Veteran’s functional ability with flare-ups without resorting to mere speculation. To that end, the February 2016 examiner indicated that it would be speculative to give an opinion “on any additional loss of degrees of range of motion over a period of time,” noting only that the Veteran demonstrated significant loss of range of motion upon repetitive use. Similarly, the November 2017 examiner noted that such an opinion could not be provided unless the Veteran was examined after repeated use. See generally Jones v. Shinseki, 23 Vet. App. 382, 390 (2010). Nonetheless, the record does not demonstrate such pervasive interference with the Veteran’s capacity to function as to warrant an increased rating based on the DeLuca factors. In this respect, symptoms of fatigability and incoordination are largely absent from the record, and the Veteran has not presented any testimony indicative of related functional impairment upon which the appeal may be granted. 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202 (1995). Accordingly, the Veteran’s level of disability has most nearly approximated that contemplated by her current 20 percent evaluation. As the preponderance of the evidence is against the claim, the benefit of the doubt rule is not applicable and the appeal seeking an initial rating greater than 20 percent for a right shoulder disability is denied. See 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990). Left Shoulder The Veteran is further seeking a rating greater than 20 percent for her left shoulder disability after July 7, 2010. Here, her disability has been rated under DC 5201-5003. Hyphenated diagnostic codes are used when an unlisted disability is at issue. See 38 C.F.R. § 4.27. The second diagnostic code provides further detail regarding the origins of the unlisted disability, the bodily functions affected, the symptomatology, and anatomical location. Thus, the diagnostic code following the hyphen is the diagnostic code by which the disability is evaluated by analogy. Regarding the Veteran’s left shoulder disability, DC 5003 provides that degenerative arthritis established by X-ray findings will be rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved. Thus, the Veteran was properly rated under DC 5201 for limitation of motion of her left shoulder. However, the Board will again consider all applicable diagnostic codes in assessing the merits of this appeal. Of note, the Veteran’s left shoulder has been found to be her minor or non-dominant extremity for purposes of evaluation. Thus, the appeal may be granted upon evidence of the following: • Intermediate ankylosis (between favorable and unfavorable) of the scapulohumeral articulation (30 percent under DC 5200); • Limitation of the arm to 25 degrees from the side (30 percent under DC 5201); or • Fibrous union of the major humerus (40 percent under DC 5202). Here, the medical evidence does not support a rating greater than 20 percent for the Veteran’s left shoulder disability after July 7, 2010. To that end, both the February 2016 and November 2017 VA examiners denied ankylosis of the scapulohumeral articulation or fibrous union of the major humerus, and these symptoms are not otherwise present throughout VA treatment records. Further, neither examiner reported limitation of the arm to 25 degrees from the side. Instead, the November 2017 examiner indicated that the Veteran’s limitation of motion prevented her from fully reaching above her head to perform tasks, which does not equate such limitation as to warrant an increased rating at this time. The Veteran’s VA treatment records support this understanding of her disability picture. During the period on appeal, her primary symptom was left shoulder pain that worsened with activity. She also reported fatiguing of the left shoulder in November 2017, such that she had to pull (rather than push) her grocery cart or encountered fatigue while performing repetitive work, such as stirring. However, these symptoms do not appear to limit her functional capacity to any significant degree, such that she remains capable of performing the tasks of daily living with minimal interruption. Again, the Board acknowledges that the February 2016 and November 2017 VA examiners were unable to provide opinions as to whether pain, weakness, fatigability, or incoordination significantly limited the Veteran’s functional ability with flare-ups without resorting to mere speculation. However, review of the record does not indicate that these symptoms are so pervasive or severe as to limit the Veteran’s functional ability to any significant degree. Instead, VA treatment records are silent for reports of these symptoms, and the Veteran has not offered any testimony indicative of such impairment. DeLuca, 8 Vet. App. at 202. As such, the Veteran’s symptoms of pain and fatigability are properly contemplated in the 20 percent rating as currently assigned, and a greater level of disability is not established by the record. As the preponderance of the evidence is against the claim, the benefit of the doubt rule is not applicable and the appeal seeking a rating greater than 20 percent for a left shoulder disability from July 7, 2010, is denied. See 38 U.S.C. § 5107(b); Gilbert, 1 Vet. App. at 54-56. As to both appeals, the Board has considered the Veteran’s testimony regarding the severity of her symptoms. While she is competent to report symptoms capable of lay observation, she is not competent to identify a specific level of disability according to the applicable DCs. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); Layno v. Brown, 6 Vet. App. 465, 470 (1994). Instead, greater probative value is offered to the medical evidence in assessing the severity of the Veteran’s disabilities, as the examiners possess the requisite expertise to render opinions regarding the degree of impairment caused by the Veteran’s disabilities and had sufficient facts and data on which to base the conclusions. The Board finds that the medical evidence supports the determinations offered herein. Additionally, the Board acknowledges that the April 2017 CAVC remand was based upon a finding that the February 2016 VA examination was inadequate. However, the Board included certain examination findings herein, on the determination that those findings were based upon objective testing, inclusive of the Veteran’s lay testimony, or consistent with the record in its entirety. Further, an adequate examination was provided in November 2017, which was considered herein and provided the Veteran with additional opportunity to testify as to the severity of her disability. Of final note, the Veteran has not raised any other issues, nor have any other issues been reasonably raised by the record, for the Board’s consideration. See Doucette v. Shulkin, 28 Vet. App. 366, 369-370 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). Evan M. Deichert Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD K. Kovarovic, Associate Counsel