Citation Nr: 1806821 Decision Date: 02/01/18 Archive Date: 02/14/18 DOCKET NO. 09-46 312 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUE Entitlement to a disability rating in excess of 20 percent for degenerative joint disease, right shoulder. REPRESENTATION Veteran represented by: Alabama Department of Veterans Affairs ATTORNEY FOR THE BOARD C. Boyd Iwanowski, Counsel INTRODUCTION The Veteran served on active duty from October 1980 to August 2005, to include service in Southwest Asia. He was awarded the Bronze Star Medal, among other decorations. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama. By way of background, the April 2008 decision continued an initial 10 percent rating granted in a November 2005 rating decision that the Veteran appealed in August 2006. In March 2007, the RO issued a statement of the case and thereafter, the April 2008 rating decision following the receipt of additional evidence. In December 2008, the Veteran filed a notice of disagreement with the April 2008 rating decision and a Form 9 which was not timely in response to the March 2007 statement of the case. Thereafter, a statement of case was issued in October 2009 and the Veteran filed a timely substantive appeal in November 2009. In February 2015, the RO considered evidence back to the date of claim for service connection and increased the initial rating for the right shoulder disability to 20 percent. It was unclear whether the Veteran desired a hearing before the Board; following correspondence from VA, the Veteran indicated he did not desire a Board hearing in a November 2015 statement. The Board deems any hearing request made to be withdrawn. See 38 C.F.R. § 20.704 (e) (2017). The claim was remanded in February 2016 and February 2017 for further development. FINDING OF FACT The Veteran's right shoulder disability has been primarily productive of pain and limitation of motion with arm motion to shoulder level or better; ankylosis and impairment of the humerus, clavicle and scapula are not shown. CONCLUSION OF LAW The criteria for a rating in excess of 20 percent for degenerative joint disease, right shoulder are not met. 38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.71a, Diagnostic Code 5003-5201 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION Neither the Veteran nor his representative has raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). The Board has reviewed all the evidence in the record. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the appellant or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claims and what the evidence in the claims file shows, or fails to show, with respect to the claims. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). When there is an approximate balance of evidence for and against an issue, all reasonable doubt will be resolved in the Veteran's favor. 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 4.3; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule), and are intended to represent the average impairment of earning capacity resulting from disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Disabilities must be reviewed in relation to their history. 38 C.F.R. § 4.1. Other applicable, general policy considerations are: interpreting reports of examination in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability, 38 C.F.R. § 4.2; resolving any reasonable doubt regarding the degree of disability in favor of the claimant, 38 C.F.R. § 4.3; where there is a question as to which of two ratings apply, assigning the higher of the two where the disability picture more nearly approximates the criteria for the next higher rating, 38 C.F.R. § 4.7; and, evaluating functional impairment on the basis of lack of usefulness and the effects of the disability upon the person's ordinary activity, 38 C.F.R. § 4.10. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). A claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time a claim was filed until a final decision is made. Thus, separate ratings can be assigned for separate periods of time based on the facts found - a practice known as "staged" ratings. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Disability of the musculoskeletal system is primarily the inability, due to damage or inflammation in parts of the system, to perform normal working movements of the body with normal excursion, strength, speed, coordination and endurance. The functional loss may be due to absence of part or all of the necessary bones, joints and muscles, or associated structures, or to deformity, adhesions, defective innervation, or other pathology, or may be due to pain, supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and a part which becomes painful on use must be regarded as disabled. See DeLuca v. Brown, 8 Vet. App. 202 (1995); 38 C.F.R. § 4.40 (2013); see also 38 C.F.R. §§ 4.45, 4.59 (2016). The United States Court of Appeals for Veterans Claims (Court) clarified that although pain may be a cause or manifestation of functional loss, limitation of motion due to pain is not necessarily rated at the same level as functional loss where motion is impeded. See Mitchell v. Shinseki, 25 Vet. App. 32 (2011). The Veteran's degenerative joint disease, right shoulder is rated under Diagnostic Code (DC) 5003-5201. Pursuant to 38 C.F.R. § 4.27, hyphenated diagnostic codes are used when a rating under one diagnostic code requires use of an additional diagnostic code to identify the basis for the evaluation assigned; the additional code is shown after the hyphen. DC 5003 provides that degenerative arthritis established by X-ray findings will be rated on the basis of limitation of motion under the appropriate DC for the specific joint or joints involved. If limitation of motion is noncompensable under the appropriate DC, a rating of 10 percent is for application for each such major joint or group of minor joints affected by limitation of motion, to be combined, not added under DC 5003. 38 C.F.R. § 4.71a; DC 5003. In the absence of limited motion, a 10 percent rating is assigned when X-ray evidence shows two or more major joints or two or more minor joint groups. A higher 20 percent rating is assigned when X-ray evidence shows involvement of two or more major joints or minor joint groups, with accompanying occasional incapacitating exacerbations. Id. Under DC 5201, limited motion of the arm to shoulder level is rated 20 percent disabling for both the major and minor extremities; midway between side and shoulder level is rated at 30 percent for the major extremity and at 20 percent for the minor extremity; and, to 25 degrees from the side is a 40 percent rating for the major extremity and a 30 percent rating for the minor extremity. 38 C.F.R. § 4.71a, DC 5201. Normal flexion of the shoulder is from 0 to 180 degrees and normal abduction is 0 to 180 degrees. 38 C.F.R. § 4.71a, Plate I. Normal external rotation of the shoulder is from 0 to 90 degrees and normal internal rotation is 0 to 90 degrees. The record reflects that the Veteran is right hand dominant. During a pre-discharge examination in April 2005, the Veteran reported pain in the right shoulder that was initially treated with medication and physical therapy. Precipitating factors were lifting greater than 40 pounds, push-ups and overhead work. He reported daily flare-ups of pain lasting a half hour. Right shoulder flexion was to 150 degrees, abduction was to 100 degrees, external and internal rotation were to 60 degrees. Pain was noted at end range on all movements. No change in range of motion was noted following repetitive use. There was tenderness to palpation of the right shoulder acromioclavicular (AC) joint and muscle strength was 4/5 with no change after repetitive use. Degenerative joint disease was assessed. In October 2006, magnetic resonance imaging (MRI) of the right shoulder revealed findings consistent with a partial interstitial and articular surface tear of the distal supraspinatus tendon with mild to moderate AC hypertrophy. A VA treatment record dated in May 2008 indicated treatment for shoulder pain, right greater than left, perhaps from heavy lifting. It was noted that over the last several years the Veteran had multiple corticosteroid injections to the AC joint. The Veteran continued to note posterior/superior shoulder pain with virtually all overhead and distal reaching maneuvers. A rotator cuff tear was assessed. In a February 2009 VA treatment record, right shoulder range of motion measurements revealed flexion to 125 degrees, abduction to 130 degrees, external rotation to 90 degrees and internal rotation to 62 degrees. In January 2011, the Veteran underwent a VA examination focused on his left shoulder. Right shoulder range of motion was measured. Flexion was to 90 degrees, abduction was to 90 degrees, internal rotation was to 70 degrees and external rotation was to 65 degrees. There was no change in the range of motion after repetition nor was ankylosis present. In a February 2015 rating decision, the RO increased the Veteran's right shoulder rating to 20 percent effective September 1, 2005, the day following separation from active duty based on limited motion of the arm at shoulder level. Additional evidence taken into account included x-ray evidence of degenerative arthritis and painful motion of the shoulder. In February 2016, the Board remanded the claim for a VA examination to determine the current severity of the Veteran's disability. In August 2016, a VA examiner diagnosed AC osteoarthritis in the right shoulder. The Veteran reported constant, severe, sharp right shoulder pain that was worse with reaching and lifting, without flare-ups. He reported using Naproxen and Robaxin to help with his shoulder pain. He denied using a supportive device or other signs or symptoms. Flexion was to 160 degrees, abduction was to 160 degrees, external rotation was to 70 degrees and internal rotation was to 60 degrees. Pain was noted on examination, but did not result in or cause functional loss. There was no evidence of pain with weight bearing or localized tenderness or pain on palpation of the joint or associated soft tissue. Crepitus was present. Muscle strength was normal and there was no ankylosis. Examination did not reveal a rotator cuff condition or shoulder instability, dislocation or labral pathology. A clavicle, scapula, AC joint or sternoclavicular joint condition were not identified. There was no impairment of the humerus. As to impact on the Veteran's ability to work, it was explained that the Veteran would not be able to do work that required pushing, pulling, lifting or carrying over 50 pounds; however, sedentary work would be appropriate. In February 2017, the Board remanded the claim again for a VA examination that included testing on active motion, passive motion, weight-bearing and non-weight bearing as set forth in Correia v. McDonald, 28 Vet. App. 158 (2016). At a September 2017 VA examination, degenerative arthritis and a rotator cuff tear were noted in the right shoulder. The Veteran's current symptoms were noted to include constant moderate right shoulder popping pain that was precipitated or worsened by lifting overhead. The Veteran indicated he was taking medications for the pain, but he had not undergone physical therapy within the last year. Flexion was to 170 degrees, abduction was to 160 degrees, external and internal rotation were to 90 degrees. Pain was noted on examination that did not result in or cause functional loss. Further limitation of motion was not noted after three repetitions. The examiner opined that flare-ups and repetitive use over time did not significantly limit functional ability. It was noted that passive range of motion testing was not medically appropriate because of increased risk of injury. It was noted there was no evidence of pain when the joint was used in non-weight bearing and that the opposing joint was damaged. There was no evidence of pain with weight-bearing or objective evidence of localized tenderness or crepitus. Muscle strength was normal and there was no ankylosis present. Instability, dislocation or labral pathology were not identified. There was no clavicle, scapula, AC joint or sternoclavicular joint conditions present or impairment of the humerus. The Veteran was not using an assistive device. As to impact on ability to work, it was explained that the shoulder condition would cause interference with prolonged lifting. VA treatment records since separation from service show continuing complaints of pain in the right shoulder that at times throbs and is aggravated by overhead activities. The Board finds that 20 percent is the appropriate rating for the Veteran's right shoulder as this recognizes limitation of motion to the shoulder level caused by pain. Based on review of the evidence, a rating in excess of 20 percent is not warranted for the right shoulder. Ankylosis is not present and shoulder motion is not limited to the degree required for a higher rating, even when considering pain, flare-ups and any functional loss after repetitive use. The Veteran has not demonstrated limitation of the right arm to between the side and shoulder or to 25 degrees from the side to warrant a higher evaluation. Indeed, the Veteran's range of motion testing throughout the appeal period shows the ability to move the arm at least to shoulder level or better. In addition, the evidence does not otherwise support a higher rating under any other diagnostic code. There is no evidence of malunion of the humerus, nonunion or dislocation of the clavicle or scapula, ankylosis, or severe muscle damage since separation from service. 38 C.F.R. §§ 4.71a, 4.73, Diagnostic Codes 5200, 5202-03, 5301-04. On the contrary, VA examiners noted muscle strength at worst 4/5 in the right shoulder, and explicitly noted that there was no ankylosis or other impairment of the AC joint, clavicle, scapula or humerus. The Board finds that the rating currently assigned takes into account the pain on movement that the Veteran experiences in his shoulder that affects his functional ability. Neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record. 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). Based on the foregoing, the Board finds that the preponderance of the evidence is against assignment of a rating in excess of 20 percent for degenerative joint disease, right shoulder. The benefit of the doubt doctrine is not applicable and the claim is denied. See 38 U.S.C. § 5107(b); 38 C.F.R. § 4.3; Gilbert, 1 Vet. App. 49. ORDER A disability rating in excess of 20 percent for degenerative joint disease, right shoulder is denied. ____________________________________________ Nathan Kroes Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs