Citation Nr: 18112797 Decision Date: 06/20/18 Archive Date: 06/20/18 DOCKET NO. 15-12 551 DATE: June 20, 2018 ORDER Entitlement to an initial rating of 10 percent, but no higher, prior to March 13, 2015, for service-connected right shoulder degenerative joint disease (DJD) is granted, subject to controlling regulations governing the payment of monetary awards. FINDING OF FACT Prior to March 13, 2015, the Veteran’s right shoulder disability was manifested by pain with no ankylosis, no limitation of motion to the shoulder level, or malunion, nonunion, or dislocation of the humerus, clavicle or scapula. CONCLUSION OF LAW The criteria for an initial rating of 10 percent, but no higher, prior to March 13, 2015, for right shoulder DJD, are met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.159, 4.1, 4.2, 4.3, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code (DC) 5201-5010 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty with the United States Navy from March 2003 to July 2013. This matter comes before the Board of Veterans’ Appeals (Board) on appeal of a November 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Fort Harrison, Montana in which the RO, inter alia, granted service connection for right shoulder DJD and assigned a noncompensable evaluation effective July 20, 2013. The Veteran timely filed a notice of disagreement (NOD) with the initial rating assigned. In a March 2015 rating decision, the RO assigned a 10 percent rating for the Veteran’s right shoulder DJD with an effective date of March 13, 2015, and continued a noncompensable evaluation prior to March 13, 2015. The Veteran has not indicated satisfaction with the rating prior to March 13, 2015; thus, the Board will therefore address this claim. See AB v. Brown, 6 Vet. App. 35, 39 (1993) (a veteran is presumed to be seeking the maximum possible rating unless he indicates otherwise). In his April 2015 substantive appeal, via a VA Form 9, Appeal to the Board of Veterans’ Affairs, the Veteran specifically limited his appeal to the period prior to March 13, 2015. Thus, the Board will consider only this period of the appeal. Cf. AB v. Brown, 6 Vet. App. 35, 39 (1993) (a veteran is presumed to be seeking the maximum possible rating unless he indicates otherwise) (emphasis added). See also Murphy v. Shinseki, 26 Vet. App. 510 (2014) (“the appellant generally controls the scope of appellate review”); Evans v. Shinseki, 25 Vet. App. 7, 13 (2011) (the VA Form 9 allows appellants to affirmatively exclude issues from appellate consideration by checking a box “which states an intention to appeal only certain listed issues” and by using “the remaining free space” on the Form to specify the issues being appealed). The Board notes that the Veteran submitted correspondence in 2017 where he requested that his right shoulder disability evaluation be assigned a noncompensable rating. However, the Veteran did not indicate that he wished to withdraw the claim. Thus, the Board will address the claim as set forth below. 1. Entitlement to an initial compensable rating for service-connected right shoulder DJD prior to March 13, 2015 Disability evaluations are determined by the application of VA’s Schedule for Rating Disabilities, which is based on average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Where there is a question as to which of two evaluations 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 reviewed when making disability evaluations. See generally 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where the question for consideration is the propriety of the initial evaluation assigned, evaluation of the evidence since the grant of service connection and consideration of the appropriateness of a “staged rating” (assignment of different ratings for distinct periods of time, based on the facts found) is required. See Fenderson v. West, 12 Vet. App. 119, 126 (1999). In general, all disabilities, including those arising from a single disease entity, are rated separately, and all disability ratings are then combined in accordance with 38 C.F.R. § 4.25. Pyramiding, the evaluation of the same disability, or the same manifestation of a disability, under different diagnostic codes, is to be avoided when rating a Veteran’s service-connected disabilities. 38 C.F.R. § 4.14. In determining the appropriate evaluation for musculoskeletal disabilities, particular attention is focused on functional loss of use of the affected part. Under 38 C.F.R. § 4.40, functional loss may be due to pain, supported by adequate pathology and evidenced by visible behavior on motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. Under 38 C.F.R. § 4.45, factors of joint disability include increased or limited motion, weakness, fatigability, or painful movement, swelling, deformity or disuse atrophy. Under 38 C.F.R. § 4.59, painful motion is an important factor of joint disability and actually painful joints are entitled to at least the minimum compensable rating for the joint. Where functional loss is alleged due to pain upon motion, the provisions of 38 C.F.R. § 4.40 and § 4.45 must be considered. DeLuca v. Brown, 8 Vet. App. 202, 207-08 (1995). Within this context, a finding of functional loss due to pain must be supported by adequate pathology, and evidenced by the visible behavior of the claimant. Johnston v. Brown, 10 Vet. App. 80, 85 (1997). Pain itself does not rise to the level of functional loss as contemplated by § 4.40 and § 4.45, but may result in functional loss only if it limits the ability to perform the normal working movements of the body with normal excursion, strength, coordination or endurance. Mitchell v. Shinseki, 25 Vet. App. 32, 43 (2011). The Veteran is currently assigned a noncompensable rating prior to March 13, 2015 for his service-connected right shoulder DJD and a 10 percent disability rating thereafter pursuant to 38 C.F.R. § 4.71a, DC 5201-5010. Disabilities of the shoulder may be rated under 38 C.F.R. § 4.71a, DCs 5200-5203 (2017). The Veteran is right handed. DC 5201 allows, in the major extremity, for a 20 percent rating for limitation of arm motion at shoulder level, a 30 percent rating for limitation of motion to midway between side and shoulder level. DC 5202 allows for ratings of 20 to 80 percent for impairment of the humerus in the major extremity. DC 5203 allows for ratings of 10 to 20 percent for impairment of the clavicle or scapula. DC 5024 requires that tenosynovitis be rated on the basis of limitation of motion as degenerative arthritis under DC 5003. 38 C.F.R. § 4.71a. DC 5003 provides that degenerative arthritis is rated based on limitation of motion under the appropriate codes for the specific joint involved. Id. In the absence of a compensable limitation of motion, DC 5003 allows for a rating of 10 percent for each major joint or group of minor joints affected. Id. For VA rating purposes, a shoulder is a major joint. 38 C.F.R. § 4.45 (f). Normal ranges of motion of the shoulder are forward flexion and abduction from 0 to 180 degrees and internal and external rotation from 0 to 90 degrees. 38 C.F.R. § 4.71, Plate I. An October 2013 VA examination report reflects that the Veteran complained of pain which he reportedly took Ibuprofen for. The Veteran did not report flare-ups or functional loss. On examination, the examiner found no objective evidence of painful motion and right shoulder flexion and abduction was to 180 degrees. There was no evidence of pain following repetitive motion and no additional limitations after three repetitions of range of motion. The examiner noted that the Veteran did not have any functional loss and/or functional impairment of the shoulder and arm. Additionally, the examiner noted that the Veteran did not have localized tenderness or pain on palpation of the joints/soft tissue/biceps tendon on either shoulder. Furthermore, there was no guarding. The examination report indicated no reduction in muscle strength; no atrophy; and no ankylosis. A rotator cuff condition was not suspected and shoulder instability, dislocation or labral pathology was not suspected. In October 2013, radiology testing revealed no evidence of fracture, dislocation or lytic or blastic lesion. There were minor degenerative changes present. Additionally, there were no acute osseous abnormality. In the November 2014 NOD, the Veteran reported that his shoulder continued to hurt every day to the point that it precluded him from doing activities. A March 2015 examination report reflects that the Veteran reported that his pain continued and he had less function. He reported that he took Tylenol daily as needed with some benefit. The Veteran did not report flare-ups. The Veteran reported functional loss or functional impairment as he was limited to 10 pushups and he had pain and burning in his anterior shoulder when putting his right arm to the back. On examination, the examiner noted flexion and abduction to 180 degrees; external rotation to 90 degrees and internal rotation to 75 degrees; pain on flexion that did not result in or cause functional loss; and tenderness or pain on palpation of the joint or associated soft tissue. There was no evidence of pain on weight bearing and no evidence of crepitus. The Veteran was able to perform repetitive use testing with at least three repetitions with no additional range of motion loss after three repetitions. The examiner noted that pain, weakness, fatigability or incoordination did not significantly limit functional ability with repeated use over a period of time. The examination report indicated no reduction in muscle strength; no atrophy; and no ankylosis. The examiner diagnosed rotator cuff tendonitis. Shoulder instability, dislocation or labral pathology was noted with no history of mechanical symptoms or a history of recurrent dislocation of the glenohumeral joint. There was no loss of head, nonunion, or fibrous union of the humerus. The Veteran did not require the use of assistive devices. In his April 2015 substantive appeal, the Veteran reported pain in his right shoulder and some limited motion. Based on the above findings and resolving reasonable doubt in favor of the Veteran, the Board finds that a rating of 10 percent disability rating, but no higher, prior to March 13, 2015, based on painful motion is warranted. Prior to March 13, 2015, the VA examination report did not document limitation in the Veteran’s right shoulder range of motion. Additionally, there was no objective evidence of painful motion, including after three repetitions. Moreover, there was no functional loss or impairment to the Veteran’s right shoulder. However, during the October 2013 VA examination, the Veteran reported pain which he took Ibuprofen for. Under 38 C.F.R. § 4.59, painful joints due to healed injury, such as the case here, are entitled to at least the minimum compensable rating for the joint. As such, a rating of 10 percent, which is specifically contemplated by DC 5201, is warranted prior to March 13, 2015. See Sowers v. McDonald, 27 Vet. App. 472, 480 (2016); Petitti v. McDonald, 27 Vet. App. 415, 428-29 (2015) (a compensable rating is warranted for joint pain pursuant to 38 C.F.R. § 4.59 for orthopedic disabilities rated under diagnostic codes containing a 10 percent rating, and the criteria for such a rating can be satisfied with lay and other non-medical evidence). In addition, the Board has considered whether a higher rating is warranted under the regulations relating to additional functional loss due to pain, weakness, fatigability, incoordination, and other factors under DeLuca, 8 Vet. App. at 204-07; 38 C.F.R. §§ 4.40, 4.45. However, there is no evidence of record, prior to March 13, 2015, which demonstrates any additional functional loss due to pain or any other DeLuca factor. During the October 2013 VA examination, the Veteran indicated that he did not experience flare-ups and there was no functional loss noted. Finally, the Board considered whether there are any other diagnostic codes which could apply to the Veteran’s current right shoulder disability. Prior to March 13, 2015, the record contains no evidence of ankylosis or impairment of the humerus, clavicle, or scapula. Therefore, there are no other potentially applicable diagnostic codes by which a higher rating can be assigned. The Board has considered whether referral for an extraschedular rating under 38 C.F.R. § 3.321 (b)(1) is warranted in this case. As previously mentioned, the Veteran has stated that his right shoulder disability causes pain which made it difficult for him to do some activities or put his arm behind his back. However, the Veteran’s complaint of right shoulder pain is contemplated in the rating criteria for all musculoskeletal disabilities, and therefore it does not need to be identified in each individual code to indicate its inclusion. 38 C.F.R. § 4.59 (2017); see Burton v. Shinseki, 25 Vet. App. 1, 5 (2011) (holding that § 4.59 applies to "joint pain in general" and is not limited to joint pain due to arthritis); see also 38 C.F.R. §§ 4.40 4.45 (2017). In addition, the Veteran’s physical limitations are manifestations of his pain and not separate symptoms. Cf. Doucette v. Shulkin, 28 Vet. App. 366, 371-72 (2017) (difficulty in distinguishing sounds in a crowded environment, locating the source of sounds, understanding conversational speech, hearing the television, and using the telephone are each a manifestation of difficulty hearing or understanding speech, which is contemplated by the schedular rating criteria for hearing loss). Thus, the criteria contemplate the symptoms and remand for referral to the Director for extraschedular consideration is not required. The issue of entitlement to a total disability evaluation based on individual unemployability (TDIU) has not been raised by Veteran or by the evidence of record as part of the Veteran’s initial rating claim. See Rice v. Shinseki, 22 Vet. App. 447, 453-55 (2009) (the issue of entitlement to TDIU is part of an increased rating claim when that issue is raised by the record); see also Comer v. Peake, 552 F.3d 1362, 1366 (Fed. Cir. 2009) (the issue of entitlement to TDIU is raised whenever there is “cogent evidence of unemployability, regardless of whether [the claimant] states specifically that he is seeking TDIU benefits”). Here, the Veteran has not asserted, nor does the evidence of record suggest, that his right shoulder disability renders him unemployable. Therefore, the issue of entitlement to a TDIU is not reasonably raised by the record. For the reasons above, the criteria for an initial rating of 10 percent, but not higher, prior to March 13, 2015, is warranted. As the preponderance of the evidence is against any higher schedular rating, the benefit of the doubt doctrine is not for application. 38 U.S.C. § 5107(b); 38 C.F.R. § 4.3. Jonathan Hager Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD N. Laroche, Associate Counsel