Citation Nr: 19106976 Decision Date: 01/29/19 Archive Date: 01/29/19 DOCKET NO. 17-21 604 DATE: January 29, 2019 ORDER An initial rating in excess of 20 percent for right shoulder impingement with osteoarthritis, status post-surgery, is denied. An initial compensable rating for a scar on right shoulder is granted. FINDINGS OF FACT 1. The Veteran’s right shoulder impingement with osteoarthritis, status post-surgery, manifests with pain and limited motion to at worse shoulder level, but it does not manifest in limitation of motion midway between the side and shoulder level. 2. The competent evidence shows a painful scar of the right shoulder status post-surgery. CONCLUSIONS OF LAW 1. The criteria for an initial rating in excess of 20 percent for right shoulder tendonitis have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.10, 4.14, 4.71a, Diagnostic Codes 5003-5201. 2. The criteria for a 10 percent rating, but no higher, is warranted for a painful scar at the right shoulder surgery site. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.10, 4.118, DCs 7800–7805. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from April 1968 to November 1969. He received the Combat Infantryman Badge. This matter is before the Board of Veterans’ Appeals (Board) on appeal from a September 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). Increased Rating Disability ratings are intended to compensate for impairment in earning capacity due to a service-connected disorder. 38 U.S.C. § 1155. Separate diagnostic codes identify the various disabilities. 38 C.F.R. § 4.27. It is necessary to rate the disability from the point of view of the Veteran working or seeking work, see 38 C.F.R. §§ 4.1, 4.2, and to resolve any reasonable doubt regarding the extent of the disability in the Veteran’s favor. 38 C.F.R. § 4.3. Evaluations are based on functional impairments which impact a veteran’s ability to pursue gainful employment. 38 C.F.R. § 4.10. If there is a question as to which disability rating to apply to the Veteran’s disability, the higher rating 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. In view of the number of atypical instances it is not expected, especially with the more fully described grades of disabilities, that all cases will show all the findings specified. Findings sufficiently characteristic to identify the disease and the disability therefrom, and above all, coordination of rating with impairment of function will, however, be expected in all instances. 38 C.F.R. § 4.21. In general, the degree of impairment resulting from a disability is a factual determination and generally the Board’s primary focus in such cases is upon the current severity of the disability. Francisco v. Brown, 7 Vet. App. 55, 57-58 (1994). Nonetheless, separate, or staged, ratings can be assigned for separate periods during the rating period on appeal based on the facts found. Hart v. Mansfield, 21 Vet. App. 505, 509-510(2007). In considering the severity of a disability, it is essential to trace the medical history of the Veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41. Consideration of the whole-recorded history is necessary so that a rating may accurately reflect the elements of disability present. 38 C.F.R. § 4.2. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b). 1. An initial rating in excess of 20 percent for right shoulder impingement with osteoarthritis post-surgery The Veteran contends that his right shoulder impingement syndrome with osteoarthritis is worse than the currently assigned 20 percent rating. He is rated under Diagnostic Code 5003-5201. Disabilities of the shoulder and arm are evaluated under rating criteria that contemplate ankylosis of scapulohumeral articulation (Diagnostic Codes 5200), limitation of motion of the arm (Diagnostic Code 5201), other impairment of the humerus (Diagnostic Code 5202) or the impairment of the clavicle or scapula (Diagnostic Code 5203). Normal range of motion of the shoulder is as follows: forward elevation (flexion) to 180 degrees; abduction to 180 degrees; internal rotation to 90 degrees; and external rotation to 90 degrees. 38 C.F.R. 4.71a, Plate I. Diagnostic Code 5200 rates ankylosis of the scapulohumeral joint. Where arm limitation of motion is limited to 25 degrees from the side, a 40 percent evaluation is assigned for the major side under diagnostic code 5201. Limitation of motion midway between the side and shoulder level contemplates a 30 percent evaluation for the major side, and limitation of motion at shoulder level contemplates a 20 percent evaluation for the major side. 38 C.F.R. §4.71a, DC 5201. Additionally, under Diagnostic Code 5202, for impairment of the humerus, a 20 percent rating is granted when there is malunion, with moderate deformity, for the major arm; a 30 percent rating is warranted when there is marked deformity of the major arm. Also under Diagnostic Code 5202, for recurrent dislocations of the major arm at the scapulohumeral joint, a 20 percent rating is granted with infrequent episodes, and guarding of movement only at shoulder level; a 30 percent rating is granted for the major arm when there are frequent episodes and guarding of all arm movements. For fibrous union of the major arm a 50 percent rating is assigned for the major arm. A 60 percent rating is warranted for nonunion (false flail joint) of the major arm. An 80 percent rating is warranted for loss of head of (flail shoulder) for the major arm. 38 C.F.R. § 4.71a, Diagnostic Code 5202. Further, under Diagnostic Code 5203, for impairment of the clavicle or scapula in the major arm, a 10 percent rating is granted for malunion or nonunion without loose movement and a 20 percent rating is granted for nonunion with loose movement or for dislocation. Diagnostic code 5003 provides that 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 (Diagnostic Code 5200, etc.). When however, the limitation of motion of the specific joint or joints involved is noncompensable under the appropriate diagnostic codes, a rating of 10 percent is for the application of each such major joint or group of minor joints affected by limitation of motion, to be combined, not added under Diagnostic Code 5003. 38 C.F.R. §4.71a, Diagnostic Code 5003. For disabilities evaluated on the basis of limitation of motion, VA is required to apply the provisions of 38 C.F.R. §§ 4.40, 4.45, pertaining to functional impairment. The Court has instructed that in applying these regulations VA should obtain examinations in which the examiner determined whether the disability was manifested by weakened movement, excess fatigability, incoordination, or pain. Such inquiry is not to be limited to muscles or nerves. These determinations are, if feasible, to be expressed in terms of the degree of additional loss-of-motion due to any weakened movement, excess fatigability, incoordination, flare-ups, or pain. Mitchell v. Shinseki, 25 Vet. App. 32, 37 (2011); De Luca v. Brown, 8 Vet. App. 202, 205-08 (1995). The intent of the rating schedule is to recognize painful motion with joint and periarticular pathology as productive of disability. It is the intention to recognize actually painful, unstable, or maligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59. After reviewing the competent medical and lay evidence, the Board finds that an initial rating in excess of 20 percent for right shoulder impingement syndrome with osteoarthritis status post recurrent dislocation surgery is not warranted, nor is a separate rating. The Veteran underwent a VA examination for his right shoulder disorder in July 2013. The examiner noted that the Veteran’s dominant hand is his right. It was noted that he had impingement syndrome and osteoarthritis. His history of right shoulder surgery in 1969 was noted. Flare-ups when he tried to reach up or out were noted. He had right shoulder flexion of 110 degrees, with evidence of painful motion at 100 degrees; abduction of 100 degrees, with evidence of painful motion at 100. External rotation was recorded at 40 degrees, with evidence of painful motion at 30 degrees; internal rotation of 80 degrees, with evidence of painful motion at 80 degrees. The Veteran could perform repetitive use testing with three repetitions and had flexion of 110 degrees and abduction of 100 degrees - the same range of motion as before repetitive use testing. The examiner noted that the Veteran did not have additional limitation in ROM of the shoulder and arm following repetitive-use testing. He had functional loss or impairment of less movement than normal, weakened movement, excess fatigability, and pain on movement. However, it was stated that none of these factors significantly limited his functional ability during flare-ups or when the joint was used repeatedly over a period of time. He did have localized tenderized on palpation of the right shoulder, but no guarding. Muscle strength for abduction was recorded as active movement against gravity (3/5) and active movement for some resistance (4/5) for forward flexion. He had positive results from the Hawkin’s Impingement test, Empty-Can test, the External Rotation/Infrapinatus strength test, and lift-off subscapularis test. Ankylosis was not noted. He did not have a history of mechanical symptoms, nor a AC joint condition or any other impairment of the clavicle or scapula. It was noted that he was limited in performing work over his mid chest level or maneuvers overhead or to the side. He could not reach behind to effectively fix his belt in belt loop with his right hand. An additional examination was conducted in July 2014 by L.K. MD, who completed a VA Form 21-0960M. He reported flare-ups that interfered with sleep, restricted activity especially quick movements, and overhead work. He had right shoulder flexion of 120 degrees, with evidence of painful motion at 105 degrees; abduction of 180 degrees, with no objective evidence of painful motion. Repetitive use testing was not performed. There was objective evidence of localized tenderness or pain on palpation and guarding. His muscle strength was 4/5 - active movement against some resistance in forward flexion and abduction. He had positive results from the Hawkin’s Impingement test, Empty-Can test, the External Rotation/Infrapinatus strength test, and lift-off subscapularis test. He did not have ankylosis. He was noted to have mechanical symptoms, but not recurrent dislocation. After review of the evidence, the Board finds that the Veteran’s right shoulder impingement with osteoarthritis, status post-surgery, does not warrant a rating in excess of 20 percent. During the period on appeal, objective evidence places the Veteran’s flexion between 100 and 120 degrees, and abduction 100 to 180 degrees in his right shoulder. His examinations also indicate that he has trouble with overhead work. His limited range of motion more nearly approximates a 20 percent rating. Such is currently in effect. The clinical testing on two examination reports does not show that his range of motion is limited to midway between the side and shoulder level. Therefore, a higher rating under 5201 based limited range of motion is not warranted. In the Veteran’s April 2017 substantive appeal, he indicated that because the examiner recorded that his shoulder condition was so diminished that an amputation with prosthesis would equally serve him. He believed this was evidence that he had limited motion between the side and shoulder level. The Board notes that while the July 2014 examiner marked on the report that functioning is so diminished that amputation with prosthesis would equally serve the Veteran, the objective medical evidence indicates that the Veteran still has use of his shoulder. In this regard, the examination indicates no evidence of total loss of use, including grasping and manipulation. Diagnostic testing completed shows degenerative or traumatic arthritis of right shoulder, but there were no other significant diagnostic test findings or results. The Board also notes that the evidence from the July 2013 VA examination report does not support a finding of a right shoulder that is so diminished such that an amputation with prosthesis would equally serve him. At that time, this examination report reflects, in pertinent part, right shoulder flexion to 110 degrees (100 with pain), and abduction to 100 degrees (same with pain). There was no functional loss after repetitive-use testing and no anklysis. It also specifically finds that he would not be equally served by amputation with prosthesis. The Board acknowledges the Veteran’s notice of disagreement where he states that examination lost information, but finds it probative and worth some weight as it is fairly consistent with the July 2014 examination report. In sum, the Board finds that the totality of the probative and competent evidence, to include noted objective finding above, does not support this finding the Veteran’s contention on his substantive appeal. The Board notes the Veteran’s representative argument in a May 2017 VA Form 646 that a higher rating is warranted via Diagnostic Code 5202. With regard to this contention, the Board finds that the competent evidence, to include the July 2014 report (noting no history of recurrent dislocation in section 11B), does not reflect recurrent dislocation at the scapulohumeral joint. Additionally, the competent evidence does not show fibrous union of the humerus, and malunion of the humerus are not shown. The Board also acknowledges the Veteran’s representative’s argument of a 30 percent rating under DC 5200 due to abduction to 60 degrees. However, the competent medical evidence, to include per the July 2013 VA examination report and the July 2014 report, does not reflect ankylosis of the right shoulder, thus a rating is not warranted per Diagnostic Code 5200. Finally, a rating pursuant to Diagnostic Code 5203 would not provide a basis for a higher rating. Lastly, the weight of the evidence does not support a finding that the Veteran’s disability picture due to functional loss/limitations or flare-ups with limitation of motion is more nearly approximated as limited motion between side and shoulder level. Considering the Deluca and Mitchell factors, and the evidence of record, the Board finds that the current 20 percent rating already compensates the Veteran for any functional loss due to pain affecting the right shoulder, to include pain and limited motion when raising his shoulder above his head. Deluca, 8 Vet. App. at 204-07. In light of the foregoing, the Board finds that an increased rating due to functional impairment would not be appropriate under the criteria for 38 C.F.R. §§ 4.40 and 4.45. In sum, the Veteran’s right shoulder disorder is more nearly approximated by the current 20 percent rating throughout the period on appeal. 2. An initial compensable rating for a scar on the right shoulder post-surgery Regarding his scars, the Veteran is currently rated under 38 C.F.R. § 4.118, DC 7805, scars that are evaluated under diagnostic codes 7800-7804. DC 7800 is not appropriate as the Veteran does not have a burn scar or other scar or disfigurement on his head, face, or neck. DC 7801 is also not applicable as the Veteran does not have a deep and nonlinear scar. DC 7802 provides a 10 percent rating for scars, not of the head, face, or neck, that are superficial and nonlinear with an area of 144 square inches (929 sq. cm.) or greater. DC 7804 provides a 10 percent rating for one or two scars that are unstable or painful; a 20 percent rating for three or four scars that are unstable or painful and five or more scars that are unstable or painful. Id. Note (1) states that an unstable scar is one where, for any reason, there is frequent loss of covering of skin over the scar. Note (2) states if one or more scars are both unstable and painful, 10 percent should be added to the evaluation that is based on the total number of unstable or painful scars. Note (3) states that this DC could be assigned with others such as 7800 (regarding the head, face or neck), 7801 (deep and nonlinear, not of the head, face or neck), 7802 (superficial and nonlinear, not of the head, face or neck). After a review of the medical evidence, the Board finds that a compensable rating of 10 percent, but no higher, is warranted for a painful scar. In the July 2013, the examiner did not comment on pain or stability, but found that the total area of the Veteran’s scar was not greater than 39 square cm. However, in his July 2014 examination, under Diagnostic Code 7804, the Veteran had one scar that was painful at the right shoulder, which entitles him to a compensable rating. 38 C.F.R. § 4.118, DC 7804. A higher rating under DC 7804 is not warranted during this period as he did not have three or more painful or unstable scars. Additionally, his scars are superficial, linear, and they are not deep. The Veteran’s linear scar is 9 cm x 1. (Continued on the next page)   A compensable rating under DC 7802 is therefore not warranted as they are not at least 929 sq. cm. The Board places much weight on the July 2014 scars DBQ as the examiner conducted an in-person examination. As such, the competent evidence warrants a compensable rating under DC 7804 for a painful scar. Paul Sorisio Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD K. Cruz, Associate Counsel