Citation Nr: 1822196	
Decision Date: 04/13/18    Archive Date: 04/25/18

DOCKET NO.  14-31 734	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs (VA) Regional Office in Houston, Texas


THE ISSUE

Entitlement to an increased rating in excess of 10 percent for a left shoulder disability, to include left shoulder impingement (minor). 


REPRESENTATION

Appellant represented by:	Texas Veterans Commission


WITNESS AT HEARING ON APPEAL

The Veteran


ATTORNEY FOR THE BOARD

B. Cohen, Associate Counsel 


INTRODUCTION

The Veteran served on active duty in the U.S. Marine Corps from August 1978 to August 1981.  

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2014 rating decision of the Houston, Texas Regional Office (RO).

In January 2017, the Veteran was afforded a hearing before the undersigned Veterans Law Judge (VLJ) sitting at the RO. During the hearing, the VLJ engaged in a colloquy with the Veteran toward substantiation of the claim. Bryant v. Shinseki, 23 Vet. App. 488, 496-97 (2010). A hearing transcript is in the record.

In August 2017, the RO denied the Veteran's application to reopen his claim of service connection for left foot pain and discomfort. In August 2017, the Veteran submitted a notice of disagreement to the denial of his application to reopen his claim of service connection. Although the matter is therefore in the Board's jurisdiction, the electronic record indicates the RO is taking development action on the claim. Manlincon v. West, 12 Vet. App. 238 (1999) (holding that the Board's jurisdiction is triggered by the timely filing of a notice of disagreement).



FINDINGS OF FACT

1. The Veteran is right-hand dominant. 

2. The Veteran's service-connected left shoulder disability, to include left shoulder impingement (minor), does not have arm motion limited at shoulder level. 





CONCLUSION OF LAW

The criteria to establish entitlement to a 20 percent rating for a left shoulder disability, to include left shoulder impingement, have not been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes (DCs) 5024, 5201 (2017).  


REASONS AND BASES FOR FINDINGS AND CONCLUSION

I. Duties to Notify and to Assist

VA has a duty to notify claimants about the claims process and a duty to assist them in obtaining evidence in support of their claims. VA issued a January 2014 notice to the Veteran which informed him of the evidence generally needed to support his claim; what actions he needed to undertake; and how VA would assist him in developing his claim. The January 2014 notice was issued to the Veteran prior to the February 2014 rating decision. All identified and available relevant documentation has been secured to the extent possible and all relevant facts have been developed. There remains no question as to the substantial completeness of the claim. 38 U.S.C. §§ 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.326(a). For these reasons, the Board finds that VA's duties to notify and to assist have been met.

II. Analysis

Disability evaluations are determined by comparing the Veteran's current symptomatology with the criteria set forth in the Schedule for Rating Disabilities. 38 U.S.C. § 1155 (2012); 38 C.F.R. Part 4 (2017).

When there is a question as to which of two disability evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation. Otherwise, the lower evaluation will be assigned. 38 C.F.R. § 4.7 (2017). 

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 (2017). 

The Veteran seeks a rating in excess of 10 percent for his service-connected left shoulder disability pursuant to DC 5201-5024. 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. 38 C.F.R. § 4.27 (2017). 

Under DC 5201, limited arm motion 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 rating 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 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. § 4.71, Plate I. Normal external rotation of the shoulder is from 0 to 90 degrees and normal internal rotation is 0 to 90 degrees.

DC 5024 provides that the diseases under diagnostic codes 5013 through 5024 will be rated on limitation of motion of affected parts, as arthritis, degenerative. 38 C.F.R. § 4.71a, DC 5024. 

Under DC 5003, degenerative arthritis established by X-ray findings will be rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. When, however, the limitation of motion of the specific joint or joints involved is not compensable under the diagnostic codes, an evaluation of 10 percent is for application for each such major joint or group of minor joints affected by limitation of motion. In the absence of limitation of motion, x-ray evidence of involvement of two or more major joints or two or more minor joint groups, with occasional incapacitation exacerbations is rated at 20 percent; and x-ray evidence of involvement of two or more major joints or two or more minor joint groups is rated at 10 percent. 38 C.F.R. § 4.71a, DC 5003. 

In February 2012, the Veteran underwent a VA examination. The Veteran's right hand was noted as dominant. The Veteran reported that his flare-ups impacted the function of his left shoulder because he experienced difficulty lifting, carrying and reaching for items above his head. Initial range of motion (ROM) for the Veteran's left shoulder was flexion at 120 degrees with painful motion at 105 degrees and abduction at 90 degrees with painful motion at 90 degrees. The Veteran was able to perform repetitive-use testing with three repetitions. Post-test ROM for the Veteran's left shoulder was flexion at 105 degrees and abduction at 95 degrees. 

The examiner indicated that the Veteran had functional impairment and additional limitation in the ROM of his left shoulder and arm after repetitive-use testing. The contributing factors for both sides were less movement than normal and pain on movement. The examiner also indicated that the Veteran had pain on palpitation for both shoulders and that he observed the Veteran guard his left shoulder. Muscle strength testing revealed 4/5 for left shoulder flexion and abduction which indicated active movement against some resistance. It was also noted that ankylosis was not present. 

The Veteran's left shoulder was positive for the Hawkins' Impingement test, Empty-can test, External rotation/Infraspinatus strength test and Lift-off subscapularis test. It was indicated that the Veteran's left shoulder had a history of mechanical symptoms such as clicking and catching but no history of subluxation. The Veteran was unable to perform the crank apprehension and relocation test. A radiological report revealed acromion spurring associated with impingement and no evidence of a left shoulder fracture. The examiner indicated that the Veteran's left shoulder disability impacted his ability to work as a truck driver because it was difficult to turn the steering wheel due to pain. 

In February 2014, the Veteran was afforded another VA examination. The Veteran reported that his flare-ups impacted the function of his left shoulder because he experienced pain while raising and rotating his left shoulder. Initial ROM for the Veteran's left shoulder was flexion at 180 degrees with painful motion at 100 degrees and abduction at 180 degrees with painful motion at 100 degrees. The Veteran was able to perform repetitive-use testing with three repetitions. Post-test ROM for the Veteran's left shoulder was flexion at 180 degrees and abduction at 180 degrees. Initial ROM for the Veteran's left shoulder was external and internal rotation at 90 degrees with painful motion at 90 degrees. Post-test ROM for the Veteran's left shoulder was external and internal rotation at 90 degrees.   

The examiner indicated that the Veteran did not have additional limitation in the ROM of his left shoulder and arm after repetitive-use testing; however, the Veteran had functional impairment of his left shoulder and arm. The contributing factor for both sides was pain on movement. The examiner also indicated that the Veteran had pain on palpitation for both shoulders and that he observed the Veteran guard both shoulders. Muscle strength testing revealed 4/5 for left shoulder flexion and abduction which indicated active movement against some resistance. It was also noted that ankylosis was not present.    

The Veteran's left shoulder was negative for the Hawkins' Impingement test, Empty-can test, External rotation/Infraspinatus strength test and Lift-off subscapularis test. It was indicated that both of the Veteran's shoulders had a history of mechanical symptoms such as clicking and catching but no history of subluxation. The Veteran's left shoulder was negative for the crank apprehension and relocation test. A left shoulder radiological report indicated normal findings. 
In his January 2017 Board hearing, the Veteran lifted his left arm approximately 90 degrees, parallel to the floor, and testified that he experienced pain at that position. The Veteran also testified that he was unable to lift his left arm higher than 90 degrees due to pain. The Veteran also indicated that he was unable to twist or pull his left shoulder back without experiencing pain.

In February 2018, the Veteran was afforded a VA examination. The Veteran did not report experiencing left shoulder flare-ups; however, he reported functional impairment due to experiencing difficulty with heavy lifting and reaching overhead items. Initial ROM for the Veteran's left shoulder was flexion at 170 degrees, abduction at 180 degrees, external rotation at 70 degrees and internal rotation at 30 degrees. The examiner indicated that the Veteran experienced pain; however, the pain did not result in or cause functional loss. There was also no evidence of pain with weight-bearing and no evidence of crepitus. The Veteran was able to perform repetitive-use testing with three repetitions; however, the examiner indicated that there was no loss of function or ROM after three repetitions.

The examiner noted that the Veteran had no additional contributing factors of disability. Muscle strength testing revealed 5/5 for left shoulder flexion and abduction which indicated normal strength. It was also noted that ankylosis was not present. The Veteran's left shoulder was positive for the Hawkins' Impingement test and Empty-can test, negative for the External rotation/Infraspinatus strength test and the Veteran was unable to perform the Lift-off subscapularis test.  

The Veteran experienced pain on passive ROM and did not experience pain on non-weight bearing ROM. The examiner indicated that the Veteran's left shoulder disability impacted his ability to work as a truck driver because he experienced difficulty raising his left arm over his head.  

A preponderance of the evidence is against a finding of a rating in excess of 10 percent for the Veteran's left shoulder disability, to include left shoulder impingement (minor). The February 2012 VA examination indicated that the Veteran's initial ROM for his left shoulder was 120 degrees flexion and 90 degrees abduction; however, the February 2014 and 2018 VA examinations indicated that the Veteran's initial ROM actually increased and was at or near normal ROM levels - February 2014 was 180 degrees flexion and 180 degrees abduction; February 2018 was 170 degrees flexion, 180 abduction, 70 degrees external rotation and 30 degrees internal rotation. Therefore, a rating in excess of 10 percent is not warranted and the claim is denied. 

The Board has also considered the Court's holding in Rice v. Shinseki, 22 Vet. App. 447 (2009) (holding that claims for higher evaluations also include a claim for a total disability rating based on individual unemployability (TDIU) when the appellant claims he is unable to work due to a service-connected disability). However, the Board finds that Rice is not applicable to the current appeal because the Veteran does not claim and the record does not show that his disability acting alone or in conjunction with his other disabilities prevents gainful employment. The Veteran has reported and examiners have observed that the Veteran's service-connected left (minor) shoulder has an effect on his work performance. However,  the Veteran has not argued that he is unable to work because of it and testified in January 2017 that he left his last job because of dissatisfaction with his employer. 


ORDER

A rating in excess of 10 percent for the Veteran's left shoulder disability, to include left shoulder impingement (minor) is denied.  




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

Department of Veterans Affairs