Citation Nr: 18103003 Decision Date: 05/17/18 Archive Date: 05/16/18 DOCKET NO. 11-20 904 DATE: May 17, 2018 ORDER Entitlement to an initial evaluation in excess of 20 percent for service-connected right shoulder degenerative joint disease (DJD) for the period prior to September 16, 2010, is denied. Entitlement to an evaluation in excess of 20 percent for service-connected right shoulder DJD for the period beginning November 1, 2010, through November 14, 2017, is denied. Entitlement to an evaluation of 30 percent, but no higher, for service-connected right shoulder DJD for the period beginning November 15, 2017, is granted, subject to the laws and regulations governing monetary benefits. FINDINGS OF FACT 1. For the period prior to September 16, 2010, the Veteran’s right shoulder DJD more closely approximates limitation of motion of the right arm to the shoulder level. 2. For the period beginning November 1, 2010, to November 14, 2017, the Veteran’s right shoulder DJD more closely approximates limitation of motion of the right arm to the shoulder level. 3. For the period beginning November 15, 2017, the Veteran’s right shoulder DJD more closely approximates limitation of motion of the right arm midway between side and shoulder level. CONCLUSIONS OF LAW 1. For the period prior to September 16, 2010, entitlement to an initial rating in excess of 20 percent for service-connected right shoulder DJD is denied. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.321, 4.1, 4.2, 4.7, 4.10, 4.71a, Diagnostic Code (DC) 5201 (2017). 2. For the period beginning November 1, 2010, through November 14, 2017, entitlement to a rating in excess of 20 percent for service-connected right shoulder DJD is denied. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.321, 4.1, 4.2, 4.7, 4.10, 4.71a, DC 5201 (2017). 3. Beginning November 15, 2017, the criteria for assignment of a rating of 30 percent, but no higher, for service-connected right shoulder DJD, are met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.321(b), 4.1, 4.2, 4.7, 4.10, 4.71a, DC 5201 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 1980 to July 1984 and from September 1990 to August 2000. These matters come before the Board of Veterans’ Appeals (Board) on appeal from a December 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). 1. Increased Rating – Right Shoulder Disability evaluations are determined by the application of VA’s Schedule for Rating Disabilities, which is based on average impairment of earning capacity resulting from a service-connected disability. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the veteran. 38 C.F.R. § 4.3. The Veteran’s entire history is to be considered when making disability evaluations. See generally 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Where an increase in the level of a service-connected disability is at issue, the primary concern is the present level of disability. Francisco v. Brown, 7 Vet. App. 55 (1994). Nevertheless, the Board acknowledges that a claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007). Limitation of motion of the arm is evaluated under DC 5200-5203. Ratings assigned pursuant to this code may differ depending on whether the extremity at issue is considered the major (dominant) extremity or the minor (non-dominant) extremity. As the Veteran in the case at hand is right-handed, his service-connected right shoulder condition affects his major extremity, and will be evaluated accordingly. Under DC 5200, favorable ankylosis the scapulohumeral articulation with abduction to 60 degrees and ability to reach the mouth and head warrants a 20 percent rating for the minor extremity. A 30 percent rating is warranted in instances of intermediate ankylosis between favorable and unfavorable. A 40 percent rating is warranted where there is unfavorable ankylosis with abduction limited to 25 degrees from the side. 38 C.F.R. § 4.71a, DC 5200. Under DC 5201, limitation of motion of the minor extremity at the shoulder level warrants a 20 percent rating. Limitation of motion midway between the side and shoulder level warrants a 20 percent rating for the minor extremity. Where motion is limited to 25 degrees from the side, a 30 percent rating is warranted for the minor extremity. 38 C.F.R. § 4.71a, DC 5201. Under DC 5202, loss of head of the humerus (flail shoulder) warrants a 70 percent disability rating for the minor extremity. Nonunion of the humerus warrants a 50 percent disability rating for the minor extremity. Fibrous union of the humerus warrants a 40 percent disability rating for the minor extremity. Recurrent dislocation of the scapulohumeral joint with frequent episodes and guarding of all arm movements warrants a 20 percent disability rating for the minor extremity. Recurrent dislocation of the scapulohumeral joint with infrequent episodes and guarding of movement only at shoulder level warrants a 20 percent disability rating for the minor extremity. 38 C.F.R. § 4.71a, DC 5202. Under DC 5203, malunion or nonunion without loose movement of the clavicle or scapula warrants a 10 percent disability rating. Nonunion with loose movement warrants a 20 percent disability rating. Dislocation of the clavicle or scapula warrants a 20 percent disability rating. 38 C.F.R. § 4.71a, DC 5203. For reference, standard ranges of shoulder motion are forward elevation (flexion) and abduction each from 0 to 180 degrees (with shoulder level at 90 degrees); and external and internal rotation each to 90 degrees. See 38 C.F.R. § 4.71, Plate I. In this case, the Veteran was evaluated at 20 percent for all periods at issue under DC 5201. The Veteran alleges that he is entitled to an initial rating in excess of 20 percent for the entire period at issue. As an initial matter, the Board notes that the assignment of a particular DC is “completely dependent on the facts of a particular case.” Butts v. Brown, 5 Vet. App. 532, 538 (1993). One DC may be more appropriate than another based on such factors as an individual’s relevant medical history, the current diagnosis, and demonstrated symptomatology. See Pernorio v. Derwinski, 2 Vet. App. 625, 629 (1992). Here, the Board finds that DC 5201 is more appropriate than the other DCs related to the shoulder and arm. This is the case because the medical evidence of record does not support any signs of ankylosis; flail shoulder, false flail joint; fibrous union of the humerus; recurrent dislocation of the humerus at the scapulohumeral joint with guarding of movement; malunion of the humerus; or dislocation, nonunion, or malunion of the clavicle or scapula. See DC 5200-5203; Stankevich v. Nicholson, 19 Vet. App. 470, 472 (2006) (the Board must provide an adequate statement of reasons or bases for its selection of a DC and explain why other codes are not analogous); see also May 2009 VA examination report (showing flexion and abduction above 90 degrees); July 13, 2010, treatment visit report (showing pain in right shoulder at 90 degrees of elevation); July 14, 2010, treatment visit (showing no instability of the right shoulder); February 2013 VA examination report (where the Veteran exhibited no guarding, no localized tenderness, full strength, no ankylosis, no instability, and no AC joint condition). As such, the Board finds that DC 5201 is the most appropriate for evaluative purposes of the Veteran’s left shoulder disability. In turning to the application of DC 5201 to the Veteran’s instant appeal, the Board finds that the Veteran’s symptoms more closely approximate symptoms consistent with a 20 percent rating, but no higher, for the period prior to September 16, 2010. At a May 2009 VA examination, the Veteran’s musculoskeletal examination of the right shoulder revealed weakness and guarding of movement on the right. There were no signs of subluxation, edema, effusion, tenderness, redness, or heat present. The Veteran’s range of motion upon examination revealed right shoulder flexion of 160 degrees and abduction of 130 degrees. The Board points that both flexion and abduction were above shoulder level, and as such, more consistent with a rating of no higher than 20 percent under DC 5201. A June 2010 physical examination revealed tenderness on palpation and abnormal motion of the right shoulder. In July 2010, a physical examination revealed full range of motion of the right shoulder. However, the Veteran exhibited pain above 90 degrees, or otherwise pain at shoulder level. There was no instability found upon examination at another July 2010 physical examination. Additionally, at a third treatment visit in July 2010, the Veteran complained of pain with lifting, performing overhead activities, and holding his arm out at the side. A physical examination, however, revealed full range of motion of the right shoulder, with mild or minimal findings upon the performance of objective testing. In considering these test results, the Board finds that the preponderance of the medical evidence indicates limitation of motion at or above shoulder level, at the most limiting, or otherwise at or around 90 degrees. See 38 C.F.R. § 4.71, Plate I. In coupling the Veteran’s limited range of motion in shoulder flexion and abduction with the pain experienced upon range of motion testing, the Board finds that the Veteran’s symptoms closely assimilate a limitation of motion at shoulder level. See DC 5201 (where a limitation of motion at shoulder level constitutes a 20 percent evaluation in the minor extremity). The Board finds that a higher evaluation is not warranted because the medical evidence of record does not show limitation of motion of the arm to 25 degrees from the side. With respect to the period beginning November 1, 2010, the Board finds that a staged rating is appropriate. Specifically, the Board finds that the Veteran’s symptoms more closely approximate symptoms consistent with a 20 percent rating from November 1, 2010, through November 14, 2017, and that beginning November 15, 2017, the Veteran’s symptoms more closely approximate symptoms consistent with a 30 percent rating, but no higher, under DC 5201. At a December 2010 treatment visit, the Veteran’s right shoulder range of motion was within normal limits. In June 2011, at a routine health maintenance visit, the Veteran reported mild pain in the right shoulder and indicated that he had no problems with activities of daily living or any functional limitations. Then, in July 2011, the Veteran requested a consultation with an orthopedist, reporting increasing pain with shoulder locking. The following month, in August 2011, a physical examination revealed limited abduction to approximately 40 degrees abduction. While the Board is cognizant that a limitation to 40 degrees upon right shoulder abduction more closely approximates a 30 percent rating under DC 5201, the Board finds that the August 2011 finding of limited abduction was an isolated instance, when considering the other objective evidence of record in close temporal proximity to the August 2011 treatment visit. For instance, at treatment visits leading up to the August 2011 physical examination, the Veteran’s reports of pain and functional limitations were minimal. See November 2010 occupational therapy evaluation (where the Veteran’s complained of carpal tunnel syndrome symptoms but no limitations involved range of motion of the right shoulder were discussed); see also December 2010 physical examination (where right shoulder range of motion was within normal limits); June 2011 health maintenance visit (where the Veteran reported pain of only a three on a pain scale and reported no functional problems); June 2011 primary care visit (where the Veteran reported that his surgery helped his impairment). Additionally, at the November 2011 orthopedic consultation, objective findings upon examination revealed abduction limited to 90 degrees, or shoulder height. Thereafter, in January 2013, the Veteran’s musculoskeletal examination was normal and there was no pain elicited upon range of motion testing. At another VA examination, in February 2013, the Veteran’s flexion and abduction of the right shoulder were full and there was no objective evidence of painful motion. The Veteran exhibited no guarding, no localized tenderness, no ankylosis, no instability, and no acromioclavicular (AC) joint condition. At a subsequent September 2015 treatment visit, the Veteran’s range of motion of the right shoulder was full, with slight discomfort noted only in the left, but not right, shoulder. In considering the aforementioned, the Board finds that the preponderance of the medical evidence more nearly approximates right shoulder limitations at or above shoulder level, or otherwise consistent with a 20 percent evaluation under DC 5201. As with the period prior to September 16, 2010, the Board finds that an evaluation in excess of 20 percent is not warranted for the period beginning November 1, 2010, through November 14, 2017, because the medical evidence of record does not show limitation of motion of the arm to 25 degrees from the side. On November 15, 2017, the Veteran was afforded a VA examination. At this examination, Dr. M. V., an orthopedic surgeon, performed objective range of motion testing upon the Veteran’s right shoulder. This testing revealed a flexion of 0 to 100, or otherwise above shoulder level. The Veteran’s abduction, however, was limited from 0 to 70, which is limited to below shoulder height. Under DC 5201, a Veteran is to be evaluated at 30 percent where limitation of motion of the arm is midway between the side and shoulder level. In relying on the November 2017 VA examiner’s findings, which the Board finds probative because it was based upon an in-person examination, the Board finds that a 30 percent rating under DC 5201 is most appropriate. The Board finds that a higher evaluation is not warranted because the medical evidence of record does not show that the Veteran’s limitation of motion of the arm was limited to 25 degrees from the side. See DC 5201; see also November 2017 VA examination report (where the Veteran’s flexion of the right shoulder reached 100 degrees and where the Veteran’s abduction reached 70 degrees). For all periods at issue, the Board has also considered the applicability of the benefit of the doubt doctrine. While that doctrine has favorably been applied in awarding the 30 percent rating beginning November 15, 2017, the Board finds that the preponderance of the evidence is against assignment of any higher rating at all other periods at issue. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3; Gilbert, 1 Vet. App. at 53-56. MICHAEL LANE Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD S. Morrad, Associate Counsel