Citation Nr: 1815040	
Decision Date: 03/09/18    Archive Date: 03/19/18

DOCKET NO.  09-20 046	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Montgomery, Alabama


THE ISSUE

Entitlement to an initial disability evaluation in excess of 20 percent for residuals of status post-arthroscopy due to right rotator cuff tear residuals (right shoulder disability). 


REPRESENTATION

Appellant represented by:	The American Legion


ATTORNEY FOR THE BOARD

S. Anwar, Associate Counsel





INTRODUCTION

The Veteran had active service from January 1968 to December 1969 and from March 2003 to March 2004.

This matter comes before the Board of Veterans' Appeals (Board) from a September 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery Alabama.

In November 2013, the RO increased the Veteran's right shoulder disability evaluation to 20 percent, and granted service connection for right shoulder muscle impairment, both effective September 9, 2013. In November 2017, the RO increased the Veteran's initial disability rating for his right shoulder muscle impairment disability to 30 percent, and granted service connection for a right shoulder scar, effective February 27, 2008. In December 2015, the Board increased the Veteran's initial disability rating for his original right shoulder disability claim to 20 percent, effective February 27, 2008. 

Pursuant to a joint motion for remand (JMR) filed by VA and the Veteran, in August 2016 the Court of Appeals for Veterans Claims (CAVC) vacated the portion of the Board's December 2015 decision denying the Veteran a rating in excess of 20 percent for his right shoulder disability and remanded it to the Board for additional development. In addition, the case was remanded in August 2013 and January 2017 for additional evidentiary development. All actions ordered by the remands have been accomplished. 

Pursuant to VA's duties to notify and assist the Veteran, VA advised the claimant how to substantiate an application for benefits, obtained all relevant and available evidence, and conducted any appropriate medical inquiry. The appeal is ready for appellate review. This appeal was processed using the Virtual VA and Veterans Benefits Management System (VBMS) paperless claims processing system. 



FINDING OF FACT

During the appellate period, the Veteran's right shoulder disability manifested with pain, flare-ups, weakness and forward flexion to 85 degrees with pain, but did not manifest with limitation of motion to midway between his side and his shoulder, humerous malunion with moderate or marked deformity, or infrequent dislocation of the scapula with guarding. 


CONCLUSION OF LAW

The criteria for an initial disability rating in excess of 20 percent for a right shoulder disability have not been met. 38 U.S.C. § 1155, 5107 (West 2014); 38 C.F.R.        §§ 4.1, 4.3, 4.7, 4.40, 4.45, 4.69, 4.71a, Diagnostic Code (DC) 5200-5203 (2017).


REASONS AND BASES FOR FINDING AND CONCLUSION

Disability ratings are determined by applying criteria set forth in VA's Schedule for Rating Disabilities. Ratings are based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes (DCs). See 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Where there is a question as to which of two evaluations should be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7.

For claims for increased ratings which arise out of an initial grant of service connection, the Board must consider the application of "staged" ratings for different periods from the filing of the claim forward, if the evidence suggests that such a rating would be appropriate. See Fenderson v. West, 12 Vet. App. 119 (1999); see also Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007) (holding that staged ratings may be warranted in increased rating claims).

Additionally, the evaluation of the same disability under several diagnostic codes, known as pyramiding, must be avoided. Separate ratings may be assigned for distinct disabilities resulting from the same injury so long as the symptomatology for one condition is not duplicative of or overlapping with the symptomatology of the other condition. 38 C.F.R. § 4.14; Esteban v. Brown, 6 Vet. App. 259, 262 (1994).

In deciding claims, it is the Board's responsibility to evaluate the entire record on appeal. See 38 U.S.C. § 7104 (a) (West 2014). Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss each and every piece of evidence submitted by the Veteran or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). 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 Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). 

In assigning a higher disability rating, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990).

Disability of the musculoskeletal system is primarily the inability, due to damage or infection in the parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. It is essential that the examination on which ratings are based adequately portray the anatomical damage, and the functional loss, with respect to all these elements. 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 it 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 seriously disabled. 38 C.F.R. §§ 4.10, 4.40, 4.45, 4.59.  

Provision 38 C.F.R. § 4.40 allows for consideration of functional loss due to pain and weakness causing additional disability beyond that reflected on range of motion measurements. Under 38 C.F.R. § 4.45, functional loss due to weakened movement, excess fatigability, and incoordination must also be considered. See DeLuca v. Brown, 8 Vet. App. 202, 206-07 (1995) (holding that the criteria discussed in sections 4.40 and 4.45 are not subsumed by the DCs applicable to the affected joint).

Provision 38 C.F.R. § 4.59 recognizes that painful motion is an important factor of disability. Joints that are painful, unstable, or misaligned, due to healed injury, are entitled to at least the minimum compensable rating for the joint. Id. Special note should be taken of objective indications of pain on pressure or manipulation, muscle spasm, crepitation, and active and passive range of motion of both the damaged joint and the opposite undamaged joint. Id.; see Burton v. Shinseki, 25 Vet. App. 1 (2011) (holding that § 4.59 applies to all forms of painful motion of joints, and not just to arthritis). Pain that does not result in additional functional loss does not warrant a higher rating. See Mitchell v. Shinseki, 25 Vet. App. 32, 42-43 (2011) (holding that pain alone does not constitute function loss and is just one fact to be considered when evaluating functional impairment).

The Veteran was evaluated as 20 percent disabling since February 27, 2008, his initial date of claim, under DC 5299-5203. Hyphenated DCs including a DC ending in the digits "99" are used when there is no specifically applicable DC and the disability is rated by analogy.  See 38 C.F.R. § 4.27. The Veteran contends he is entitled to a 30 percent disability rating under DC 5201 for (major) arm limitation of motion and an additional disability rating under DC 5202 for the malunion of his humerus. 

Arm limitation of motion is rated under DC 5201. A 20 percent rating is warranted for limitation of motion of the major arm to the shoulder level. A 30 percent rating is warranted for limitation of motion of the major arm to a point midway between the side and shoulder level. A 40 percent disability evaluation requires that motion of the major arm be limited to a point 25 degrees from the side. 38 C.F.R. § 4.71a, DC 5201.

The average normal range of motion of the shoulder is forward elevation (flexion) from zero to 180 degrees; abduction from zero to 180 degrees; external rotation from zero to 90 degrees; and internal rotation from zero to 90 degrees. When the arm is held at the shoulder level, the shoulder is in 90 degrees of either forward elevation (flexion) or abduction. 38 C.F.R. § 4.71, Plate I.  

Under DC 5202 for the major joint, a 20 percent rating is warranted for malunion of the humerus with moderate deformity or for infrequent episodes of recurrent dislocation of the scapulohumeral joint with guarding of movement only at the shoulder level; a 30 percent rating is warranted for marked deformity or for frequent episodes of recurrent dislocation of the minor scapulohumeral joint with guarding of all arm movements. A 50 percent rating is warranted for fibrous union of the humerus. A 60 percent rating is warranted for nonunion of the humerus (i.e., false flail joint). An 80 percent rating is warranted for loss of head of the humerus (i.e., flail shoulder).  38 C.F.R. § 4.71a, DC 5202.

Under DC 5203, a 10 percent disability evaluation is warranted for malunion of the clavicle or scapula or for nonunion without loose movement. A 20 percent disability evaluation is warranted for nonunion of clavicle or scapula with loose movement or for dislocation. Impairment of the clavicle or scapula can alternatively be rated on impairment of function of contiguous joint. 38 C.F.R. § 4.71a, DC 5203. In other words, the Veteran's right shoulder disability can be evaluated under either DC 5203 or DC 5201, whichever would provide him a higher rating. 

At the August 2008 VA medical examination, the examiner noted the Veteran's shoulder joint did not demonstrate deformity or symptoms of arthritis. The Veteran reported weakness, instability, pain, and stiffness, with no episodes of dislocation or subluxation, locking, or effusion. The Veteran also reported severe flare-ups occurring every two to three weeks for hours, with reduced range of motion (ROM), and an inability to lift, push or pull during the flare-up. The Veteran's ROM testing showed forward flexion (or forward elevation) to 110 degrees with pain. The examiner noted the August 2008 MRI scan, and reaffirmed the Veteran's diagnoses of postoperative right rotator cuff tear and a complete re-tear of the supraspinatus tendon with tendon retraction and muscle atrophy with a high-riding humeral head. The examiner noted "significant" effects on the Veteran's occupational activities, including decreased mobility, manual dexterity, problems with lifting and carrying, decreased strength, and upper extremity pain. 

In March 2009, the Veteran's private physician noted the Veteran's forward elevation was approximately 160 degrees. The examiner noted the Veteran demonstrated weakness with elevation and external rotation, but with a negative belly press test and good internal rotation strength. The examiner also noted x-rays revealed "superior migration of the humeral head [...] abutting the undersurface of the acromion" but that the "glenohumeral joint appear[ed] well preserved."  The examiner opined the Veteran's disability will be "a continuing, if not worsening" and "permanent" condition.

At the September 2013 VA medical examination, the Veteran demonstrated forward flexion to 90 degrees with pain, and to 85 degrees with pain after repetitive testing. The examiner noted functional loss factors included less movement than normal, weakness movement, pain and atrophy, but did not indicate the Veteran demonstrated excess fatigability, swelling or deformity. The examiner also noted the Veteran's pain "could significantly" limit the Veteran's functional ability, but that the degree of loss ROM could not be determined without speculation. The examiner noted the Veteran did not report a history of recurrent dislocation (subluxation) of the glenohumeral (scapulohumeral) joint or any other impairment of the clavicle or scapula, such as malunion or dislocation. Imaging studies did not indicate arthritis, but indicated "superior subluxation" of the right humeral head in relation to the glenoid. The examiner noted the functional impact of the Veteran's disability included "severe restriction" of ROM and weakness. 

In October 2016, the Veteran's private physician noted the Veteran demonstrated active forward elevation to 100 degrees and that x-rays showed migration of the humeral head. The examiner diagnosed the Veteran with early to moderate rotator cuff arthropathy and moderate right shoulder dysfunction. 

At the March 2017 VA medical examination, the Veteran demonstrated forward flexion to 145 degrees and abduction to 120 degrees, with pain, but with no additional loss of ROM due to pain or after repetitive testing. The examiner noted that pain, weakness, fatigability or incoordination did not significantly limit the Veteran's functional ability during a flare-up. The examiner also noted the Veteran's shoulder did not demonstrate dislocation pathology and that the Veteran's shoulder joints did not demonstrate any joint conditions. The examiner noted the Veteran's humerus did not demonstrate malunion with moderate or marked deformity. The examiner conducted a weight-bearing examination and noted the Veteran was able to lift 4-6 pound medical textbooks a very short distance with some difficulty due to pain and weakness. The examiner noted recent imaging studies indicated degenerative or traumatic right shoulder arthritis. The examiner noted moderate functional impairment.

Since February 27, 2008, the Veteran's right shoulder disability has manifested by no more than pain, flare-ups, weakness, and forward flexion to 85 degrees with pain. Given these facts, the Board finds that a 20 percent rating most closely approximates the Veteran's functional impairment during the relevant period. 38 C.F.R. § 4.7. See Hart v. Mansfield, 21 Vet. App. 505 (2007). In making this determination, the Board has considered, along with the schedular criteria, the Veteran's functional loss due to pain. 38 C.F.R. §§ 4.40, 4.45 (2015); DeLuca v. Brown, 8 Vet. App. 202, 206-207 (1995). The disability does not warrant an assignment of a 30 percent rating for limitation of motion because the Veteran did not demonstrate limitation of motion to midway between his side and shoulder. The disability also does not warrant a separate rating for humerous impairment because the Veteran's humerous did not demonstrate malunion with moderate deformity or infrequent dislocation of the scapula with guarding. See  38 C.F.R. § 4.71a, DCs 5201, 5202.




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ORDER

A rating in excess of 20 percent since February 27, 2008, for a right shoulder disability is denied.





____________________________________________
Vito A. Clementi
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs