Citation Nr: 1817064 Decision Date: 03/20/18 Archive Date: 03/30/18 DOCKET NO. 12-10 870 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUES 1. Entitlement to an increased rating in excess of 20 percent for traumatic arthritis of the left shoulder with limited range of motion. 2. Entitlement to a separate rating in excess of 10 percent for a left distal clavicle deformity. 3. Entitlement to an initial rating in excess of 10 percent for a right shoulder strain prior to December 5, 2015, and in excess of 20 percent thereafter. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD R. Casadei, Counsel INTRODUCTION The Veteran served on active duty from August 1989 to September 1992. These matters come before the Board of Veterans' Appeals (Board) on appeal from July 2010 and September 2010 rating decisions issued by the RO. In March 2016, the RO granted an increased 20 percent rating for the right shoulder disability effective from December 5, 2015. The RO also granted a separate 10 percent rating for a left distal clavicle deformity. The issues on appeal were previously remanded in May 2017 for further development. FINDINGS OF FACT 1. The Veteran's left shoulder arthritis has been manifested by limitation of motion of the arm to approximately 90 degrees with pain and flare-ups with activity, but has not more nearly approximated limitation of motion midway between the side and shoulder level. 2. The Veteran's left distal clavicle deformity disability has not been manifested by nonunion of the clavicle or scapula with loose movement, or dislocation of the clavicle or scapula. 3. For the rating period prior to December 5, 2015, the Veteran's right shoulder disability was manifested by painful limited motion more nearly approximating limitation of motion to shoulder level. 4. For the entire rating period on appeal, the Veteran's right shoulder disability did not more nearly approximate limitation of motion midway between the side and shoulder level. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 20 percent for traumatic arthritis of the left shoulder are not met. 38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.71a, Diagnostic Code 5201 (2017). 2. The criteria for a separate rating in excess of 10 percent for a left distal clavicle deformity are not met. 38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.71a, Diagnostic Code 5203 (2017). 3. The criteria for a of 20 percent, but no higher, for right shoulder strain for the period on appeal prior to December 5, 2015, are met. 38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.71a, Diagnostic Code 5201 (2017). 4. The criteria for a rating in excess of 20 percent for right shoulder strain beginning December 5, 2015, are not met. 38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.71a, Diagnostic Code 5201 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist In this case, 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). Disability Ratings-Laws and Regulations Disability ratings are determined by applying a schedule of ratings (Rating Schedule) that is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R., Part 4. Each disability must be viewed in relation to its history, and the limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. § 4.1. Examination reports are to be interpreted in light of the whole recorded history, and each disability must be considered from the point of view of a veteran working or seeking work. 38 C.F.R. § 4.2. Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § 4.7. To evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the Veteran's condition. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). When evaluating joint disabilities rated on the basis of limitation of motion, VA must consider granting a higher rating in cases in which functional loss due to pain, weakness, excess fatigability, or incoordination is demonstrated, and those factors are not contemplated in the relevant rating criteria. See 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202 (1995). 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); cf. Powell v. West, 13 Vet. App. 31, 34 (1999); Hicks v. Brown, 8 Vet. App. 417, 421 (1995); Schafrath v. Derwinski, 1 Vet. App. 589, 592 (1991). Pursuant to 38 C.F.R. §§ 4.40 and 4.45, the possible manifestations of functional loss include decreased or abnormal excursion, strength, speed, coordination, or endurance, as well as less or more movement than is normal, weakened movement, excess fatigability, and pain on movement (as well as swelling, deformity, and atrophy) that affects stability, standing, and weight-bearing. Mitchell, 25 Vet. App. 32 (2011); 38 C.F.R. §§ 4.40, 4.45. Thus, functional loss caused by pain must be rated at the same level as if the functional loss were caused by any of the other factors cited above. In evaluating the severity of a joint disability, VA must determine the overall functional impairment due to these factors. In rendering a decision on appeal the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57(1990). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). Rating Analysis for Right and Left Shoulder Disabilities The Veteran maintains that his right and left shoulder disabilities are more severe that what is contemplated by the currently assigned ratings. Initially, the Board notes that the Veteran is ambidextrous. VA regulation requires that handedness for the purpose of a dominant rating will be determined by the evidence of record, or by testing on VA examination. Only one hand shall be considered dominant. The injured hand, or the most severely injured hand, of an ambidextrous individual will be considered the dominant hand for rating purposes. 38 C.F.R. § 4.69. The evidence discussed in detail below shows that the Veteran's left shoulder disability is more severe, as evidence by the Veteran having been service-connected for both arthritis and a clavicle deformity. As such, the Veteran's left shoulder will be considered the dominant extremity for rating purposes. Factual Background In November 2008, the Veteran filed a claim for an increased rating for his left shoulder disability and indicated that his symptoms had worsened. In a September 2010 rating decision, the RO increased the Veteran's rating from 10 to 20 percent effective November 5, 2008 (the date of the Veteran's claim for an increased rating). In a March 2016 rating decision, the RO granted a separate 10 percent rating for left distal clavicle deformity effective October 14, 2015 (the date of X-ray findings showing a deformity). Regarding the right shoulder, the Veteran filed a claim to reopen service connection on February 24, 2009. In a July 2010 rating decision, the Veteran was granted service connection for a right shoulder strain and was assigned a 10 percent rating effective February 24, 2009 (the date of his claim to reopen service connection). In a subsequent March 2016 rating decision, the Veteran's right shoulder disability rating was increased to 20 percent effective December 5, 2015. The relevant evidence of record includes a March 2009 VA examination. Although the Veteran was scheduled for a VA examination for his service-connected left shoulder disability, the examiner performed an examination on the right shoulder. Nonetheless, as both shoulders are on appeal, the Board finds this examination relevant as to the Veteran's right shoulder disability rating. During the evaluation, the Veteran reported pain with pulling and with overhead movements. Upon physical examination, there was no gross deformity. His muscle bulk on the right was equal to the left. Upon range of motion testing, forward flexion was limited to 120 degrees active and passively with pain at the extreme. Right shoulder abduction was limited to 110 degrees with pain at the extreme. After repetitive forward flexion, abduction, internal, and external rotation testing for increased pain, fatigue, weakness, incoordination, and decreased range of motion, the Veteran had the same range of motion and the same pain level. The Veteran denied flare-ups and indicated that his pain was constant and daily. The Veteran underwent another VA examination in July 2010 for his left shoulder. During the evaluation, the Veteran reported pain in the left shoulder and decreased motion, especially with pushing or with overhead movements. Upon physical examination, the Veteran was noted to have good muscle bulk which was equal to the right shoulder. There was no acute deformity or ankylosis noted of the shoulder. Range of motion testing on the left showed forward flexion to 130 degrees with pain starting at 100 degrees. His left shoulder could be passively flexed to 170 degrees with pain throughout. Left shoulder abduction was decreased to 90 degrees actively with pain throughout the entire range of motion. He could passively be abducted to 110 degrees with pain. After repetitive forward flexion, abduction, internal, and external rotation testing for increased pain, fatigue, weakness, incoordination, and decreased range of motion, the Veteran had the same range of motion and the same pain level. The Veteran denied flare-ups and indicated that his pain was constant and daily. Diagnostic and clinical testing included an MRI of the left shoulder dated in July 2010, which showed no evidence for rotator cuff pathology. Also an x-ray of the left shoulder was completed in October 2009 and was normal. VA treatment records show continued complaints of bilateral shoulder pain throughout the rating period on appeal. In a September 2015 VA treatment record, the Veteran was noted to have tenderness to palpation to both shoulders. It was specifically noted that the Veteran was "unable to extend above 90 degs." In a December 2015 VA examination, the Veteran reported bilateral shoulder pain that was daily and constant. The pain was described as soreness and throbbing. The pain was worse with motion. The Veteran denied any dislocation in either shoulder. Upon range of motion testing on the right, flexion was limited to 70 degrees and abduction was limited to 105 degrees. On the left, flexion was limited to 80 degrees, and abduction was limited to 90 degrees. There was pain on motion and pain with weight-bearing. Upon repetitive use testing, there was no additional limitation of motion. There was no ankylosis or muscle atrophy in either shoulder. The Veteran also did not have a rotator cuff condition, instability, dislocation, or humerus condition of either shoulder. The examiner further indicated that October 14, 2015 X-rays showed a left distal clavicle deformity, which was noted to be possibly due to prior trauma. The Veteran was most recently afforded a VA shoulder examination in May 2017. During the evaluation, the Veteran reported having diffused bilateral shoulder pain that was constant and increased with any motion, lifting, or in cold weather. Upon range of motion testing, flexion and abduction were limited to 90 degrees in the right shoulder. On the left, flexion was limited to 85 degrees, and abduction was limited to 80 degrees. There was pain on motion and pain with weight-bearing. Upon repetitive use testing, there was no additional limitation of motion. Passive range of motion testing showed flexion and abduction of the right shoulder limited to 115 degrees. On the left, passive range of motion was limited to 110 degrees in flexion and 100 degrees in abduction. It was also noted that the examination was being conducted during a flare-up of both shoulders. There was no ankylosis in either shoulder. Left Shoulder The Veteran's arthritis of the left shoulder has been rated as 20 percent disabling for entire rating period on appeal under Diagnostic Code 5003. Under 38 C.F.R. § 4.71a, Diagnostic Code 5003, degenerative arthritis established by x-ray findings is rated on the basis of limitation of motion under the appropriate diagnostic code for the specific joint or joints involved. Under 38 C.F.R. § 4.71a, Diagnostic Code 5201, a 20 percent rating is assigned for limitation of the major arm to shoulder level. A 30 percent rating is assigned for limitation to midway between the side and shoulder level, and a 40 percent rating is warranted for motion limited to 25 degrees from the side. At issue is whether a disability rating in excess of 20 percent is warranted for the Veteran's left shoulder disability. The Board finds that it is not. The evidence of record consistently shows that the Veteran was able to raise his arm to approximately shoulder level, with at worst, limitation to 80 degrees in flexion and abduction. See December 2015 and May 2017 VA examination reports. Notably, this is only 10 degrees from shoulder level. While he described flare-ups of pain with activity, there is no evidence that these flare-ups caused motion of the arm to be limited to midway between the shoulder and side. The Veteran has consistently reported that he has pain in the left shoulder and decreased motion, especially with pushing, pulling, or with overhead movements. This difficulty with overhead movements indicates to the Board that the Veteran is able to reach shoulder level, but has difficulty with full flexion or abduction above shoulder level. Moreover, even after repetitive motion and with both active and passive range of motion, the Veteran was able to move his arm to approximately shoulder level. Therefore, the functional impairment of the Veteran' left shoulder disability never approximated flexion or abduction more nearly approximating midway between side and shoulder level (or approximately 45 degrees). DeLuca v. Brown, 8 Vet. App. 202 (1995). For these reasons, the Board finds that a disability rating in excess of 20 percent at any time during the appeal period is not warranted under Diagnostic Code 5201 for the Veteran's left shoulder disability. Further, the Veteran has been assigned a separate 10 percent rating for a left clavicle deformity under Diagnostic Code 5203. Pursuant to Diagnostic Code 5203, a 10 percent rating is warranted for malunion of the clavicle or scapula (major arm), or nonunion without loose movement. A 20 percent rating is warranted for nonunion of the clavicle or scapula (major arm) with loose movement, or dislocation of the clavicle or scapula (major arm). In a February 2016 VA addendum opinion, the examiner indicated that the Veteran had only a "slight" deformity of the left distal clavicle. The examiner indicated that this deformity did not affect its ability to provide support to the arm and would not affect range of motion of the arm. Moreover, the VA examinations discussed above do not show that the Veteran has nonunion of the clavicle or scapula in the left shoulder with loose movement, or dislocation of the clavicle or scapula on the left. Accordingly, the Board finds that a higher, separate rating for deformity of the left clavicle in excess of 10 percent is not warranted. Right Shoulder As noted above, in a July 2010 rating decision, the Veteran was granted service connection for a right shoulder strain and was assigned a 10 percent rating effective February 24, 2009 (the date of his claim to reopen service connection). In a subsequent March 2016 rating decision, the Veteran's right shoulder disability rating was increased to 20 percent effective December 5, 2015. Upon review of all the evidence of record, the Board finds that the evidence is at least in equipoise as to whether the Veteran's right shoulder disability was manifested by painful limited motion more nearly approximating limitation of motion to shoulder level prior to December 5, 2015. The evidence of record prior to the December 2015 VA examination (where flexion of the right arm was limited to 70 degrees), includes the March 2009 VA examination. At that time, although flexion was limited to 120 degrees and abduction was to 110 degrees, the Veteran specifically reported that any type of overhead movement, pulling movements, or weather changes would exacerbate the pain to his shoulder. Further, in a September 2015 VA treatment record, the Veteran was noted to have tenderness to palpation to both shoulders. It was specifically noted that the Veteran was "unable to extend above 90 degs." This demonstrates to the Board that the Veteran had limitation of motion to shoulder level prior to the December 2015 VA examination. For these reasons, and in consideration of the Veteran's exacerbation of pain with overhead movements, the Board will resolve reasonable doubt in the Veteran's favor and find that a 20 percent rating is warranted for the right shoulder disability for the appeal period prior to December 5, 2015. The Board next finds that a rating in excess of 20 percent for the right shoulder disability is not warranted for the entire rating period on appeal. The evidence of record consistently shows that the Veteran was able to raise his right arm to approximately shoulder level, with at worst, limitation to 70 degrees in flexion. See December 2015 VA examination report. The remaining VA examinations of record show flexion and abduction limited to shoulder level or higher. While he described flare-ups of pain with activity, there is no evidence that these flare-ups caused motion of the arm to be limited to midway between the shoulder and side. The Veteran has consistently reported that he has pain in the right shoulder and decreased motion, especially with pushing, pulling, or with overhead movements. As noted in the previous section, this difficulty with overhead movements indicates to the Board that the Veteran is able to reach shoulder level, but has difficulty with full flexion or abduction above shoulder level. Moreover, even after repetitive motion and with both active and passive range of motion, the Veteran was able to move his arm to approximately shoulder level. Therefore, the functional impairment of the Veteran's right shoulder disability never approximated flexion or abduction more nearly approximating midway between side and shoulder level (or approximately 45 degrees). DeLuca v. Brown, 8 Vet. App. 202 (1995). For these reasons, the Board finds that a disability rating in excess of 20 percent at any time during the appeal period is not warranted under Diagnostic Code 5201 for the Veteran's right shoulder disability. Furthermore, no other manifestation of the Veteran's right shoulder disability is shown by any of the pertinent evidence of record. Finally, the Board notes that 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, 69-70 (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). ORDER A rating in excess of 20 percent for traumatic arthritis of the left shoulder is denied. A separate rating in excess of 10 percent for a left distal clavicle deformity is denied. A 20 percent rating, but no higher, for right shoulder strain for the period on appeal prior to December 5, 2015, is granted. A rating in excess of 20 percent for right shoulder strain beginning December 5, 2015, is denied. ______________________________________________ JONATHAN B. KRAMER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs