Citation Nr: 1807768 Decision Date: 02/06/18 Archive Date: 02/14/18 DOCKET NO. 14-26 391 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUE Entitlement to an evaluation in excess of 20 percent for residuals of right shoulder injury. ATTORNEY FOR THE BOARD W. R. Stephens, Associate Counsel INTRODUCTION This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C. § 7107(a)(2) (2012). The Veteran served on active duty from February 1951 to February 1953. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Detroit, Michigan. The Board notes that the Veteran requested a Board hearing in his July 2014 VA Form 9. A travel board hearing was scheduled for October 2017, but the Veteran canceled his hearing. As the Veteran has not requested another hearing, the Board deems the hearing request to be withdrawn. This matter was previously remanded by the Board in November 2017 for further evidentiary development. FINDING OF FACT Residuals of right shoulder injury are manifest by functional limitation of the right shoulder at shoulder height. CONCLUSION OF LAW The criteria for an evaluation in excess of 20 percent for residuals of right shoulder injury have not been met. 38 U.S.C. §§ 1155, 5103, 5103A (2012); 38 C.F.R. §§ 3.159, 4.3, 4.7, 4.21, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5201 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION I. VA's Duty to Notify and Assist The Veteran has not 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 duty to assist argument). II. Increased Evaluation Disability evaluations are determined by application of the criteria set forth in the VA's Schedule for Rating Disabilities, which is based on average impairment in earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. An evaluation of the level of disability present must also include consideration of the functional impairment of the Veteran's ability to engage in ordinary activities, including employment. 38 C.F.R. § 4.10. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3. Separate evaluations may be assigned for separate periods of time based on the facts found. In other words, the evaluations may be staged. Staged ratings are appropriate for any rating claim when the factual findings show distinct time periods during the appeal period where the service-connected disability exhibits symptoms that would warrant different ratings. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Here, the Board has determined that a uniform evaluation is appropriate for the entire period on appeal. In addition, when assessing the severity of a musculoskeletal disability that is rated on the basis of limitation of motion, VA must also consider the extent that the veteran may have additional functional impairment above and beyond the limitation of motion objectively demonstrated, such as during times when his symptoms are most prevalent ("flare-ups") due to the extent of his pain (and painful motion), weakness, premature or excess fatigability, and incoordination. See DeLuca v. Brown, 8 Vet. App. 202, 204-7 (1995); see also 38 C.F.R. §§ 4.40, 4.45, 4.59. The Veteran is in receipt of a 20 percent evaluation for residuals of a right shoulder injury under Diagnostic Code 5201. See 38 C.F.R. §§ 4.20, 4.71a. The Veteran filed his increased rating claim on January 6, 2011. As a preliminary matter, the evidence shows that the Veteran's right shoulder is his dominant shoulder. Under Diagnostic Code 5201, the major shoulder is rated as follows: limitation of motion to shoulder level (i.e. 90 degrees) warrants a 20 percent rating; motion limited midway between the side and shoulder level (i.e. less than 90 degrees but more than 25 degrees shoulder motion) warrants a 30 percent rating; and motion limited to 25 degrees or less from the side is rated at 40 percent. 38 C.F.R. § 4.71a, Diagnostic Code 5201. The Veteran's right shoulder is his dominant or major shoulder. Normal ranges of motion of the shoulder are flexion (forward elevation) from 0 degrees to 180 degrees, abduction from 0 degrees to 180 degrees, external rotation from 0 degrees to 90 degrees, and internal rotation from 0 degrees to 90 degrees. 38 C.F.R. § 4.71, Plate I. In assessing the severity of limitation of shoulder motion, it is necessary to consider both forward flexion and abduction. See Mariano v. Principi, 17 Vet. App. 305, 317-18 (2003). The RO received the Veteran's informal claim for an increased rating in January 2011. At a September 2011 VA examination, the Veteran reported right shoulder pain when reaching over his head but denied flare-ups. Right shoulder flexion was 90 degrees with pain at 90 degrees and abduction was 110 degrees with no objective evidence of pain. Upon repetitive motion testing, flexion was 95 degrees and abduction was 105 degrees. There was functional loss and impairment due to weakened movement, pain on movement, and atrophy of disuse. There was no guarding of the shoulder. There was no ankylosis or other relevant condition. At a September 2014 VA examination, the Veteran denied reported shoulder soreness with certain movements although he is able to play golf. He denied flare-ups. Right shoulder flexion was 95 degrees with no objective evidence of pain and abduction was 110 degrees with no objective evidence of pain. Upon repetitive motion testing, flexion was 95 degrees and abduction was 110 degrees. There was no additional functional loss or impairment. There was good muscle tone and strength. There was no guarding of the shoulder. There was no ankylosis or other relevant condition. At a November 2017 VA examination, the Veteran reported flare-ups due to multiple falls since the last VA examination due to poor balance. Right shoulder flexion was 110 degrees, abduction 90 degrees, external rotation 85 degrees, and internal rotation 90 degrees. The Veteran was able to lift his right arm to shoulder height, but not beyond. There was pain noted upon examination, but it did not result in functional loss. There was no additional functional loss or decrease in range of motion upon repetitive use testing. The examiner tested the shoulder in weight and non-weight bearing and in passive motion. The opposing shoulder was tested but also was deficient. There was "mild ankylosis suspected of the right shoulder in abduction," but with movement up to 90 degrees. There was suspected separation of the acromioclavicular or dislocation of the sternoclavicular joint. There were no impairments of the humerus or other relevant conditions. Private treatment records in the file during the period of the appeal are consistent with the findings of the VA examination reports. The current 20 percent evaluation contemplates limited motion to shoulder level. In order to warrant a higher evaluation, there must be the functional equivalent of limitation of motion midway between the side and shoulder level. The medical evidence of record indicates that the Veteran is able to raise his right arm to 90 degrees, or shoulder level, throughout the entire period. As a result, the Board finds that an evaluation in excess of 20 percent for this period is not warranted. The Board has considered the Veteran's report of shoulder pain and functional loss during this period. See DeLuca, supra. However, neither the lay nor clinical evidence demonstrated painful motion that functionally limits shoulder motion beyond that contemplated by the current evaluation. See 38 C.F.R. § 4.59. The Board recognizes that the Veteran experiences shoulder pain and reports flare-ups of pain. 38 C.F.R. §§ 4.40, 4.45. There was no additional limitation of motion after repetitive use testing. As such, the Board finds that the symptoms associated with the service-connected right shoulder have not more nearly approximated the criteria for an evaluation in excess of 20 percent under Diagnostic Code 5201 for this period. In addition, the Board has considered whether a higher evaluation would be warranted under another potentially applicable diagnostic code. However, there is no medical evidence of ankylosis of the scapulohumeral articulation resulting in abduction to 60 degrees (Diagnostic Code 5200) or any impairment of the humerus (Diagnostic Code 5202). ORDER Entitlement to an evaluation in excess of 20 percent for residuals of right shoulder injury is denied. ____________________________________________ J. W. FRANCIS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs