Citation Nr: 18119486 Decision Date: 07/18/18 Archive Date: 07/18/18 DOCKET NO. 13-19 016 DATE: July 18, 2018 ORDER Entitlement to an increased rating in excess of 20 percent for a left shoulder disability is denied. FINDING OF FACT The left shoulder disability is manifested by limitation of arm motion at shoulder level greater than 25 degrees; movement is possible to well above midway between that level and the side of the body. CONCLUSION OF LAW The criteria for an increased rating in excess of 20 percent for a left shoulder disability are not met or approximated. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.321, 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5201 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from February 1988 to January 1992. This matter is before the Board of Veterans’ Appeals (Board) on appeal from August 2009 and September 2011 rating decisions by the Department of Veterans Affairs (VA) Regional Office in Muskogee, Oklahoma. In August 2009, the RO increased the rating of the Veteran’s left shoulder disability to 20 percent, and the September 2011 rating decision confirmed and continued that 20 percent evaluation. The grant of an increased or additional rating for the same disability during the course of an appeal does not affect the pendency of that appeal. AB v. Brown, 6 Vet. App. 35 (1993). As the Veteran is presumed to be seeking the maximum allowable benefit and the maximum benefit has not yet been awarded, the claim is still in controversy and on appeal. Id. The Board remanded the issues on appeal for additional development in May 2015 and again in October 2017. The medical opinions and examinations concerning the issues decided herein having been obtained, the directives have been substantially complied with and the matters are again before the Board. D’Aries v. Peake, 22 Vet. App. 97, 105 (2008); Stegall v. West, 11 Vet. App. 268, 271 (1998). When a Veteran files a claim for an increased rating, he or she is presumed to be seeking the maximum benefit under any applicable theory, including TDIU. See generally Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001); Rice v. Shinseki, 22 Vet. App. 447 (2009). In light of this principle, entitlement to special monthly compensation (SMC) has been found to be an inferable issue anytime a veteran is requesting increased benefits. Akles v. Derwinski, 1 Vet. App. 118 (1991). In this case, the Veteran indicated during his most recent VA examinations that he was currently employed full time as an aircraft inspector at a local military base, and there is no evidence that employment is not substantially gainful. The Veteran was granted SMC pursuant to 38 U.S.C. § 1114(k) and 38 C.F.R. § 3.350(a) in a December 2017 rating decision, effective from October 18, 2017. There is no further lay or medical evidence that the Veteran is housebound in fact, requires aid and attendance, or that his disabilities result in loss of use of a limb, blindness or deafness. 38 U.S.C. §§ 1114(s), (l), (k); 38 C.F.R. § 3.350(a), (b), (i). The Board thus finds that TDIU and further SMC are not inferred by the record, and as such will not be discussed. In January 2014, the Veteran testified at a video conference hearing at the RO before the undersigned Veterans Law Judge sitting in Washington, DC. A transcript of his testimony is associated with the record. Veterans Claims Assistance Act of 2000 (VCAA) The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C. §§ 5102, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2017). The Veteran in this case has not referred to any deficiencies in either the duties to notify or assist; therefore, the Board may proceed to the merits of the claim. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015, cert. denied, U.S.C. Oct.3, 2016) (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 [appellant] fails to raise them before the Board”); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to an appellant’s failure to raise a duty to assist argument before the Board). The Board has reviewed all of the evidence in the Veteran’s claims file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Veteran or obtained on his behalf be discussed in detail. Rather, the Board’s analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-130 (2000). Increased Schedular Ratings Disability evaluations are determined by the application of the facts presented to VA’s Schedule for Rating Disabilities (Rating Schedule) at 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and the residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321(a), 4.1. If two disability evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. All reasonable doubt as to the degree of disability will be resolved in favor of the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 4.3. In evaluating the severity of a particular disability, it is essential to consider its history. 38 C.F.R. § 4.1 (2013); Peyton v. Derwinski, 1 Vet. App. 282 (1991). Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary importance. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). That said, higher evaluations may be assigned for separate periods based on the facts found during the appeal period. See Fenderson v. West, 12 Vet. App. 119, 126 (1999). This practice is known as staged ratings. Id. The determination of whether an increased disability rating is warranted is to be based on a review of the entire evidence of record and the application of all pertinent regulations. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). When evaluating musculoskeletal disabilities based on limitation of motion, 38 C.F.R. § 4.40 requires consideration of functional loss caused by pain or other factors listed in that section that could occur during flare-ups or after repeated use and, therefore, not be reflected on range-of-motion testing. 38 C.F.R. § 4.45 requires consideration also be given to less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement. See DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011). Nonetheless, even when the background factors listed in § 4.40 or 4.45 are relevant when evaluating a disability, the rating is assigned based on the extent to which motion is limited, pursuant to 38 C.F.R. § 4.71a (musculoskeletal system) or § 4.73 (muscle injury); a separate or higher rating under § 4.40 or 4.45 itself is not appropriate. See Thompson v. McDonald, 815 F.3d 781, 785 (Fed. Cir. 2016) (“[I]t is clear that the guidance of § 4.40 is intended to be used in understanding the nature of the veteran’s disability, after which a rating is determined based on the § 4.71a [or 4.73] criteria.”). The final sentence of 38 C.F.R. § 4.59 requires that VA examinations include joint testing for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint. Correia v. McDonald, 28 Vet. App. 158 (2016). Additionally, the United States Court of Appeals for Veterans’ Claims (Court) recently addressed what constitutes an adequate explanation for an examiner’s inability to estimate motion loss in terms of degrees during periods of flare-ups. Sharp v. Shulkin, 29 Vet. App. 26 (2017). In Sharp, the Court held that a VA examiner must attempt to elicit information from the record and the Veteran regarding the severity, frequency, duration, or functional loss manifestations during flare-ups before determining that an estimate of motion loss in terms of degrees could not be given. It also held that any inability to furnish such an estimate must be predicated on a lack of medical knowledge among the medical community at large, rather than insufficient knowledge by the individual examiner. Id. The Board also notes recent case law where the Court held that 38 C.F.R. § 4.59 does not solely condition the evaluation based on range of motion measurements for a particular diagnostic code, but rather “it conditions that award on evidence of an actually painful, unstable, or maligned joint or periarticular region and the presence of a compensable evaluation in the applicable diagnostic code.” Southall-Norman v. McDonald, 28 Vet. App. 346, 352 (2016). The Board considers not only the criteria of the currently assigned diagnostic codes, but also the criteria of other potentially applicable diagnostic codes. 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. However, the evaluation of the same “disability” or the same “manifestations” under various diagnoses is not allowed. See 38 C.F.R. § 4.14. A claimant may not be compensated twice for the same symptomatology as “such a result would overcompensate the claimant for the actual impairment of his [or her] earning capacity.” See 38 U.S.C. § 1155 (2012); Brady v. Brown, 4 Vet. App. 203, 206 (1993). This would result in pyramiding, contrary to the provisions of 38 C.F.R. § 4.14. However, if a veteran has separate and distinct manifestations attributable to the same injury, they should be compensated under different diagnostic codes. See Esteban v. Brown, 6 Vet. App. 259 (1994); Fanning v. Brown, 4 Vet. App. 225, 230 (1993). If the evidence for and against a claim is in equipoise, the claim will be granted. 38 C.F.R. § 4.3. A claim will be denied only if the preponderance of the evidence is against the claim. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 56 (1990). Any reasonable doubt regarding the degree of disability should be resolved in favor of the claimant. 38 C.F.R. § 4.3. 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 evaluation. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. The rating criteria for the shoulder are found at 38 C.F.R. § 4.71a, Diagnostic Codes 5200 through 5203. Diagnostic Codes 5200-5203 distinguish between the major (dominant) extremity and the minor (non-dominant) extremity. See 38 C.F.R. § 4.69 (2017). The Veteran’s left shoulder disability is currently rated at 20 percent disabling, effective from June 29, 2009, under 38 C.F.R. § 4.71a, Diagnostic Code 5201 (2017). The Veteran’s left shoulder is considered his non-dominant (minor) arm. Under Diagnostic Code 5201, limitation of motion of the minor arm is rated as 20 percent disabling when motion is limited at the shoulder level, or when motion is limited to midway between the side and shoulder level. A maximum 30 percent rating is assigned when motion of the minor arm is limited to 25 degrees from the side. 38 C.F.R. § 4.71a, Diagnostic Code 5201. Normal ranges of motion of the shoulder are flexion (forward elevation) from 0 to 180 degrees, abduction from 0 to 180 degrees, external rotation from 0 to 90 degrees, and internal rotation from 0 to 90 degrees. 38 C.F.R. § 4.71, Plate I. Evidence and Analysis The Veteran seeks a higher evaluation for his service-connected left shoulder disability, which is his non-dominant arm. The Veteran has asserted in his June 2009 claim for an increased rating that a higher evaluation is warranted because of the degree of pain, swelling, and physical limitations he endures on a daily basis, and that his shoulder feels like it is trying to dislocate. The Veteran noted those functional limitations occur especially when he is trying to reach for something or lift something. The Veteran has one painful scar related to his left shoulder disability and the original surgery from 1990, currently evaluated at 10 percent since December 7, 2011 under Diagnostic Code 7804; that scar is not under appeal. The Veteran received a VA examination for his left shoulder in July 2009. The examiner noted pain on movement of the Veteran’s left shoulder with decreased range of motion from normal values. The Veteran reported symptoms of weakness, swelling, giving way, locking, limitation of motion, and generalized pain in the shoulder region. The examiner noted signs of abnormal movement and guarding of movement, but no signs of edema, instability, effusion, redness, deformity, malalignment, drainage, or subluxation. Range of motion in flexion was 90 degrees; abduction 90 degrees; external rotation 50 degrees; and internal rotation 40 degrees. There were no changes to limitation of motion after repetitive use, and the joint function was not additionally limited by fatigue, weakness, lack of endurance, or incoordination after repetitive use. X-rays of the left shoulder were within normal limits. The examiner formally diagnosed status post-surgery of the left shoulder for instability and decreased and painful range of motion. There was also evidence of a residual surgical scar that was flat and considered well healed and nontender. The Veteran received another VA examination for his left shoulder in August 2011. The Veteran reported symptoms of weakness, stiffness, swelling, redness, giving way, tenderness, and pain. The examiner noted there was no subluxation, dislocation, malalignment, ankylosis, or deformity. Range of motion testing in flexion was 160 degrees with pain noted at 90 degrees, abduction to 140 degrees with pain noted at 90 degrees, external rotation to 45 degrees with pain at 40 degrees, and internal rotation to 50 degrees with pain at 40 degrees. Repetitive use testing did not result in any further limitation of motion and x-rays of the left shoulder were considered normal. The examiner noted objective factors of limited motion with pain, guarded movement, and instability. The Veteran’s left shoulder was examined again by VA in November 2015. X-rays revealed no acute fracture, dislocation, or lytic destructive lesion. Minimal to mild osteoarthritis was noted, along with degenerative irregularity superolateral for the left humeral head. Range of motion testing in flexion was 140 degrees, abduction to 100 degrees, external rotation to 50 degrees, and internal rotation to 40 degrees. Repetitive use testing indicated decreased flexion to 130 degrees; the other range of motion measurements had no change. Pain on motion, fatigue, and weakness were noted by the examiner, and they would limit functionality with repeated use over time. Instability of station and weakened movement were also noted. No ankylosis was noted. Loss of head, nonunion, malunion, or fibrous union were not noted. The Veteran received another VA examination for his left shoulder in January 2018. The examiner noted the presence of degenerative arthritis from the X-rays taken as part of the examination, and also diagnosed left shoulder instability. The Veteran commented that his shoulder had “remained the same” since the last examination, that he continues to have swelling and pain with increased usage, and that he uses over-the-counter analgesics for pain when required. The Veteran reported no flare-ups of his left shoulder, and no pain was noted on the examination. Range of motion testing in flexion was 150 degrees, abduction to 140 degrees, external rotation to 60 degrees, and internal rotation to 60 degrees. Repetitive use testing indicated flexion to 130 degrees; the other range of motion measurements had no change. There was no objective evidence of localized tenderness or pain on palpation of the left shoulder joint. There was no evidence of pain with weight bearing, and no objective evidence of crepitus. No ankylosis was noted. Loss of head, nonunion, malunion, or fibrous union were not noted. The examiner noted there was no evidence of pain on passive range of motion testing, or when the joint is used in non-weight-bearing situations. The examiner concluded that the primary diagnosis of the left shoulder is now degenerative arthritis, which she considered a progression of the originally diagnosed left shoulder strain. Throughout the period on appeal, the Veteran has consistently reported shoulder pain and that his shoulder feels like it is going to dislocate. He also reports difficulties when trying to lift or reach something. The Veteran is competent to report such lay symptomatology, and as there is no evidence that his statements are not credible, they are entitled to probative weight. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). There is no evidence that any of the VA examiners were not competent or credible, and as the opinions were based on the Veteran’s medical records and objective examinations conducted at the time, the Board finds the reports are entitled to significant probative weight with respect to the severity of the Veteran’s left shoulder disability at the time of the examinations. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302–05 (2008). Over the period on appeal and based on the evidence of record, an increased rating in excess of 20 percent for the left shoulder disability is not warranted in this case. While range of motion limitations were noted in each VA exam pertinent to the period on appeal, the limitations do not reach a threshold that would receive a higher rating than at present. During the period on appeal, the Veteran’s symptoms of pain, pain on motion, weakness, swelling, and limitation of motion were generally consistent among the four VA examinations. The worst range of motion in flexion in the period on appeal examined by VA four different times was 90 degrees; abduction 90 degrees; external rotation 45 degrees; and internal rotation 40 degrees. However, the Veteran did not indicate and nor did any examiner observe that the range of motion in his left shoulder was limited to midway between the side and shoulder level as a result of activity. Accordingly, even with consideration of additional limitation due to flare-ups on earlier examinations, the evidence of record does not demonstrate limitation of motion of the left upper extremity to midway between the side and shoulder level. This equates to a 20 percent rating for limitation of motion of the arm for a minor extremity. There is no evidence suggesting that there was limitation of motion to 25 degrees or less from the side for the affected shoulder. As such, an evaluation in excess of 20 percent for the Veteran’s left shoulder disability is not warranted under Diagnostic Code 5201 for the period under appeal. 38 C.F.R. § 4.71a, Diagnostic Code 5201. In evaluating the Veteran’s current level of disability for the period on appeal, functional loss was considered. The Board finds that there is no basis for the assignment of any higher rating based on consideration of any of the factors addressed in 38 C.F.R. §§ 4.40, 4.45 and DeLuca, 8 Vet. App. at 204-7. The evidence of record shows that the Veteran experienced pain during range of motion testing, and the Veteran reported pain as a functional impairment when he tried to reach for or lift something. Competent medical evidence reflects that the currently assigned 20 percent rating since June 29, 2009 properly compensates him for the extent of functional loss resulting from any such symptoms. The Board notes that the Veteran was found to have degenerative arthritis. Under Diagnostic Code 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. 38 C.F.R. § 4.71a, DC 5003. Diagnostic Code 5003 provides a 10 percent rating for degenerative arthritis where the limitation of motion of a specific joint is noncompensable. As the Veteran’s limitation of motion of his left shoulder is compensable, he is to be rated under the specific joint and not under Diagnostic Code 5003. Although the VA examination reports note significant limitation of motion on flexion, abduction, internal rotation, and external rotation over the entire period on appeal, the Veteran’s left shoulder was not limited to 25 degrees to the side in any examination, as required for a higher 30 percent rating under Diagnostic Code 5201. For the foregoing reasons, the preponderance of the evidence reflects that the Veteran is not entitled to a rating in excess of 20 percent for the period on appeal for his left shoulder disability. The benefit of the doubt doctrine is therefore not for application. 38 U.S.C. § 5107 (b); 38 C.F.R. § 4.3; Gilbert v. Derwinski, 1 Vet. App. 49, 56 (1990). All potentially applicable diagnostic codes have been considered, and there is no basis to assign an alternative evaluation for the Veteran’s left shoulder disability other than that discussed above. See Schafrath v. Derwinski, 1 Vet. App. 589, 593 (1991). Staged ratings were considered but are not warranted beyond those already assigned, as noted in the discussion above. See Hart v. Mansfield, 21 Vet. App. 505 (2007). (CONTINUED ON NEXT PAGE) Neither the Veteran nor his representative has raised any other issues concerning the left shoulder disability, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366, 369–70 (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). MICHAEL A. PAPPAS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J. Setter, Associate Counsel