Citation Nr: 1807281 Decision Date: 02/05/18 Archive Date: 02/14/18 DOCKET NO. 14-15 883 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Indianapolis, Indiana THE ISSUE Entitlement to a rating in excess of 30 percent for a right shoulder disability. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Rachel Mamis, Associate Counsel INTRODUCTION The Veteran had active air service from October 1976 to October 1980. This matter comes before the Board of Veterans' Appeals (Board) on appeal of a September 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Indianapolis, Indiana. FINDING OF FACT The Veteran's right shoulder disability has been manifested by significant limitation of motion, pain, and an inability to perform overhead activities; but has not been production of ankylosis or impairment of the humerus. CONCLUSION OF LAW The criteria for a rating of 40 percent, but not higher, for a right shoulder disability have been met for the entire period on appeal. 38 U.S.C. §1155 (2012); 38 C.F.R. § 4.7, 4.71a, Diagnostic Codes 5200 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran asserts that the symptoms of his right shoulder disability are worse than those contemplated by the currently assigned rating. The Veteran was afforded a VA examination in August 2010. The Veteran reported that his right shoulder pain has become progressively worse; and, that he obtained relief from oral and topical pain medication, and limitation of activity. The Veteran was noted to be right-hand dominant. He reported joint instability, pain, stiffness, weakness, and joint locking. He reported one episode of shoulder dislocation during the course of his post-service employment. He described weekly episodes of flare-ups as severe, lasting one to two days at a time, with additional limitation of motion during those episodes. He denied any history of surgical treatment with respect to the right shoulder. Upon physical examination, the examiner observed swelling and tenderness over the acromioclavicular (AC) joint. Range of motion testing revealed that flexion was limited to 100 degrees, with evidence of pain at 90 degrees. There was no observed loss of flexion following repetition. Abduction was limited to 90 degrees with no reported evidence of pain. There was an additional loss of 5 degrees of abduction following repetition as a result of pain. There was no ankylosis. The examiner noted that the Veteran's right shoulder disability was productive of crepitus, tenderness, and painful movement. The examiner noted that the Veteran last worked in 2009, in construction, at which time he stopped working because he was unable to pass the physical. The examiner noted that the Veteran's right shoulder disability had a moderate impact on his ability to perform chores, participate in recreational activities, and bathe. The examiner noted that the Veteran's right shoulder disability would have a severe impact on his ability to exercise and play sports. At a November 2017 VA examination, the Veteran reported constant pain that was aching in nature. He described crackling in the right shoulder. He reported that physical therapy exacerbated the pain, rather than providing any relief. The Veteran reported flare-ups, during which he is unable to engage in overhanded movements, including throwing a ball or combing his hair. Upon physical examination, flexion of the right shoulder was limited to 90 degrees and abduction was limited to 70 degrees. The examiner stated that the examination was being conducted during a flare-up. The examiner noted that the Veteran could not get his arm in the starting position to be able to perform internal or external rotation and that the Veteran had very restricted range of motion that impacted all activities. The examiner noted that the Veteran experienced pain in all excursions of motion, but there was no evidence of pain with weight bearing. The examiner documented evidence of localized tenderness or pain on palpation of the right shoulder. There was objective evidence of right shoulder crepitus. The examiner noted that the Veteran would experience additional functional impairment on repeated use as a result of pain and during flare-ups, but that the Veteran's range of motion would not be lessened more than it was already. Muscle strength testing revealed a reduction in that the Veteran had active movement against some resistance. There was no ankylosis of the right shoulder. The examiner noted a history of mechanical symptoms such clicking and catching, but noted that there was no history of recurrent dislocation of the glenohumeral joint. The examiner noted that there was no impairment in the clavicle, scapula, or sternoclavicular joint. There was no impairment of the humerus. It was noted that the Veteran was occasional required to use a sling as a result of his right shoulder disability. Diagnostic imaging studies revealed degenerative arthritis in the right shoulder. The examiner noted that the Veteran's right shoulder disability impacted his ability to work as a result of the fact that it caused him to be unable to turn wrenches as a mechanic, he would be unable to perform a job requiring repetitive motion of the right arm or heavy lifting. However, the examiner noted that the Veteran would certainly be able to perform sedentary employment. A review of the record shows that the Veteran receives treatment at the VA Medical Center for his various disabilities, including treatment for and management of his right shoulder disability. However, a review of the VA Medical Center treatment notes of record does not show the Veteran to have symptoms of his right shoulder disability that are worse than those described in the VA examination reports of record. The Board finds that the Veteran is entitled to a rating of 40 percent for his right shoulder disability for the entire period on appeal. In this regard, the Board acknowledges that the Veteran does not actually have right shoulder ankylosis. However, the Veteran has been noted to have very restricted range of motion that impacted his ability to perform all activities. Further, at his November 2017 VA examination, the Veteran was not able to get his right arm into the starting position to be able to perform internal or external rotation. Additionally, the examiner noted that the Veteran had pain on all excursions of motion. Further, the Board finds no real discernable difference in the severity and types of symptoms the Veteran has reported throughout the entire appeal period. Therefore, when considering the Veteran's entire disability picture stemming from his right shoulder disability, the Board finds that a 40 percent rating is warranted for the entire period on appeal. 38 C.F.R. §4.71a; Diagnostic Code 5200 (2017). Consideration has been given to assigning a rating in excess of 40 percent for the Veteran's right shoulder disability. However, there is no indication that the Veteran's right shoulder motion is limited to 25 degrees or less, or that he has impairment of the humerus. In fact, it was specifically noted at his November 2017 VA examination that there was no impairment of the humerus, and while the Veteran has significant limitation of motion, his flexion is limited to, at worst, 90 degrees and his abduction is limited to, at worst, 70 degrees. Therefore, the Board finds that a rating in excess of 40 percent is not warranted for the Veteran's right shoulder disability. 38 C.F.R. § 4.71a, Diagnostic Codes 5200, 5202 (2017). The Board notes that the additional limitation the Veteran experiences due to pain was accounted for by the VA examiners when determining the Veteran's range of motion. 38 C.F.R. § 4.40, 4.45 (2017). This is especially true where the Veteran reported, and the VA examiner concurred, that the examination was being conducted during a painful flare-up. Lastly, consideration has been given to assigning staged ratings. However, at no time during the period in question has the disability warranted higher schedular ratings than that assigned. Hart v. Mansfield, 21 Vet. App. 505 (2007). ORDER Entitlement to a rating of 40 percent, but not higher, for a right shoulder disability is granted. ____________________________________________ Kristin Haddock Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs