Citation Nr: 19166183 Decision Date: 08/27/19 Archive Date: 08/27/19 DOCKET NO. 11-05 429A DATE: August 27, 2019 ORDER A rating for right shoulder impingement syndrome higher than 20 percent prior to August 23, 2017, and higher than 30 percent from November 6, 2018, is denied. A 40 percent rating, but no higher, from August 23, 2017 to November 5, 2018 for right shoulder impingement syndrome is granted. FINDINGS OF FACT 1. For the period on appeal prior to August 23, 2017, and from November 6, 2018, the Veteran’s service-connected right shoulder disability manifested as limitation of motion of the arm to shoulder level. 2. From August 23, 2017 to November 5, 2018 the Veteran’s right shoulder impingement syndrome manifested as painful motion of the arm to 25 degrees from the side. CONCLUSIONS OF LAW 1. The criteria for a rating higher than 20 percent prior to August 23, 2017, and higher than 30 percent from November 6, 2018, have not been met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 4.1, 4.3, 4.14, 4.27, 4.45(f), 4.59, 4.69, 4.71, DCs 5003, 5024, 5200-5203. 2. The criteria for a rating of 40 percent from August 23, 2017 to November 5, 2018 have been met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 4.1, 4.3, 4.14, 4.27, 4.45(f), 4.59, 4.69, 4.71, DCs 5003, 5024, 5200-5203. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service in September 1997 with active duty for training from January to April 1980. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a November 2009 rating decision from a Department of Veterans Affairs (VA) Agency of Original Jurisdiction (AOJ). The rating decision, in pertinent part, denied a rating higher than 20 percent for the Veteran’s right shoulder impingement syndrome. The Board previously remanded this case to the AOJ in May 2015 and July 2017 for additional development. After development, the AOJ implemented a partial grant of the appeal, and increased the evaluation of the Veteran’s impingement syndrome to 30 percent, effective November 6, 2018. The case has since returned to the Board for further adjudication. Increased rating for right shoulder impingement syndrome Disability ratings are determined by applying the criteria set forth in VA’s Schedule for Rating Disabilities. Separate diagnostic codes identify the various disabilities. The percentage ratings are based on the average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. If the evidence for and against a claim is in equipoise, the claim will be granted. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 56 (1990). Any reasonable doubt will be resolved in the claimant’s favor. 38 C.F.R. § 4.3. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability more closely approximates the criteria required for that rating. 38 C.F.R. §§ 4.3, 4.7. Otherwise, the lower rating will be assigned. Id. Staged ratings are appropriate in any initial rating/increased-rating claim in which distinct time periods with different ratable symptoms can be identified. Fenderson v. West, 12 Vet. App. 119, 126-127 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). The Veteran’s right shoulder impingement syndrome is rated under Diagnostic Code (DC) 5201 based on limitation of movement of the arm. Under DC 5201, a 20 percent rating is assigned for limitation of major arm motion to shoulder level. A 30 percent rating is assigned for limitation of major arm motion to mid-way between the side and shoulder level. A 40 percent rating requires that major arm motion be limited to 25 degrees from the side. 38 C.F.R. § 4.71a. Standard ranges of shoulder flexion and abduction are from 0 to 180 degrees each, and external and internal rotation are from 0 to 90 degrees each. 38 C.F.R. § 4.71, Plate I. In determining whether the appellant has limitation of motion to shoulder level, it is necessary to consider forward flexion and abduction. Mariano v. Principi, 17 Vet. App. 305 (2003). At the outset, the Board notes that no other diagnostic code is for application. DCs 5200, 5202, and 5203 would not be appropriate because the Veteran has not exhibited ankylosis in his right shoulder, malunion of the humerus, dislocation at the scapulohumeral joint, fibrous union of the humerus, nonunion of the humerus, loss of head of the union, dislocation of the clavicle or scapula, nor did he exhibit nonunion of the clavicle, or scapula with loose movement. Accordingly, rating under DC 5201 is appropriate. Pertinent to this case, in rating disabilities of the musculoskeletal system, it is necessary to consider, along with the schedular criteria, functional loss due to flare-ups of pain, fatigability, incoordination, pain on movement, and weakness. DeLuca v. Brown, 8 Vet. App. 202 (1995). The functional loss may be due to absence of part, or all, of the necessary bones, joints and muscles, or associated innervation, or other pathology and evidenced by visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. 38 C.F.R. § 4.40. Pain on movement, swelling, deformity, or atrophy of disuse as well as instability of station, disturbance of locomotion, interference with sitting, standing, and weight bearing are relevant considerations for determination of joint disabilities. 38 C.F.R. § 4.45. Painful, unstable, or malaligned joints, due to healed injury, are entitled to at least the minimal compensable rating for the joint. 38 C.F.R. § 4.59; Burton v. Shinseki, 25 Vet. App. 1 (2011) (holding that 38 C.F.R. § 4.59 applies to disabilities other than arthritis). Although pain may cause functional loss, pain, itself, does not constitute functional loss and is just one factor to be considered when evaluating functional impairment. Mitchell v. Shinseki, 25 Vet. App. 32, 43 (2011). 38 C.F.R. § 4.40 does not require a separate rating for pain but rather provides guidance for determining ratings under other diagnostic codes assessing musculoskeletal function. See Spurgeon v. Brown, 10 Vet. App. 194 (1997). To be adequate, VA examinations must 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). VA examiners must provide opinions regarding flare-ups based upon estimates derived from information procured from relevant sources, including lay statements, when a flare-up is not observable at the time of examination. Sharp v. Shulkin, 29 Vet. App. 26 (2017). The two most recent VA examinations of the shoulder and arm in August 2017, November 2018, and the addendum opinion dated in December 2018 are responsive to the guidance provided in Correia and Sharp. In this case, the November 2018 and December 2018 examiner documented pain with weight-bearing, but not in nonweight-bearing. In addition, the examiner noted that there was pain on passive motion. Furthermore, although passive range of motion was not specifically measured, it is reasonable to assume that assisted motion would be less limiting than active motion, and therefore, the failure to measure passive motion is harmless error. Moreover, the Board notes that passive ranges of motion were reported in the August 2017 examination, and they were identical to the active ranges of motion. In addition, ranges of motion for the opposing joint, the left shoulder, were also reported in November 2018. Accordingly, the Board finds that a remand for a new examination under Correia would serve no useful purpose. The Board similarly finds Sharp compliance. In the November 2018 VA examination, the Veteran reported flares. The examiner also indicated that pain could significantly limit functional ability with flare-ups. As the November 2018 VA examination and December 2018 addendum addressed flares, weight bearing, nonweight-bearing, range of motion of the opposing joint, and active and passive motion, it is adequate for rating purposes and a remand is unnecessary. After a de novo review of the evidence, as explained in further detail below, the Board concludes that the preponderance of the evidence is against the Veteran’s claim for a rating higher than 20 percent for right shoulder impingement syndrome prior to August 23, 2017. In addition, the preponderance of the evidence is against a rating higher than 30 percent from November 6, 2018. Of record are the Veteran’s physical therapy notes from approximately March 2007 to May 2011 at a VA medical center (VAMC). A March 2007 note reflects active shoulder flexion to 130 degrees and active shoulder abduction to 120 degrees. The Veteran had pain at 100 degrees. An April 2008 note reflects active range of motion in the right shoulder as follows: flexion to 25 degrees, and abduction to 30 degrees. The Veteran was seen for a VA examination for shoulder and arm conditions in August 2008. The Veteran was diagnosed with right shoulder impingement syndrome, right shoulder rotator cuff tendinitis, right shoulder acromioclavicular joint degenerative joint arthritis (DJD) status post arthroplasty, and right shoulder subdeltoid bursitis. The Veteran reported having two surgeries since his previous examination—one in October 2006, and one in March 2008. The Veteran reported a sharp pain when he moved his right arm and shoulder, and constant aching pain. The Veteran denied right shoulder dislocation. The Veteran reported flare-ups with decreased strength and decreased range of motion of the right shoulder. The examiner conducted range of motion testing of the right shoulder, and the Veteran had: flexion to 112 degrees, and abduction to 115 degrees. The Veteran showed objective evidence of painful motion at 90 degrees on flexion. Painful motion on abduction was not reported. The examiner reported additional functional loss due to pain, fatigue, weakness, lack of endurance, and incoordination during repetitive range of motion testing. The Veteran had tenderness on palpation of the lateral deltoid, rhomboids, and trapezius. The examiner noted that the Veteran carried his right arm close to his body and had a decreased swing of the arm during ambulation. The Veteran did not have ankylosis of the shoulder joint. A November 2008 outpatient record from Dr. E. R.-O. reflects active right shoulder flexion to 120 degrees and active shoulder abduction to 105 degrees. Passive ranges of motion were not recorded. Ranges of motion for the left shoulder were recorded. Of record are medical documents furnished by the Social Security Administration (SSA). A disability determination examination in January 2014 reflects right shoulder flexion to 80 degrees, and right should abduction to 80 degrees. Ranges of motion for the left shoulder were also reported. In January 2010, the Veteran’s spouse and brothers submitted statements in support of his claim. They each explained that the Veteran complains of severe pain in his right shoulder. One brother explained that the Veteran is unable to enjoy many activities that he used to, such as fishing, hunting, and baseball. The Veteran’s wife indicated that the Veteran had right shoulder surgery and he has a scar. In January 2010, the Veteran also had an independent medical evaluation completed by Dr. M. E. F. Dr. F. reported that the limitations the Veteran’s right shoulder causes include an inability to cook, wash clothes, mop, drive, and sweep. Dr. F. wrote that, “his right shoulder has limitation of arm motion is midway between side and shoulder level with severe pain and he cannot lift more than 5 pounds.” Dr. F. reported that the Veteran’s right shoulder flexion was to 20 degrees and abduction was to 150 degrees. Ranges of motion for the left shoulder were not reported. He opined that the Veteran’s shoulder condition was worse. In April 2010, the Veteran submitted a statement in support of his claim. He reported that his right shoulder was worse and that he visits the doctor monthly. A VAMC outpatient record dated in October 2010 reflects that the Veteran’s right should abduction is limited to 45 degrees and is tender on palpation. An orthopedic surgery note from January 2011 reflects that the Veteran’s right shoulder was painful and he had loss of motion. Flexion was to 60 degrees. Neither right shoulder abduction nor left shoulder ranges of motion were reported. An orthopedic surgery note from May 2011 shows that the Veteran’s right shoulder was painful and he had loss of motion. He had flexion to 90 degrees. Neither right shoulder abduction nor left shoulder ranges of motion were reported. The Veteran underwent a VA examination for his arm and shoulder in November 2016. The Veteran reported flare-ups of his right shoulder. He described baseline pain at 3 out of 10, which flared to 8 out of 10 on forward flexion and abduction. The Veteran reported functional loss of the shoulder in being unable to work over shoulder height. The results of the Veteran’s range of motion testing of the right shoulder were as follows: flexion to 90 degrees, abduction to 90 degrees. The examiner noted pain on flexion, abduction, external rotation, and internal rotation, which caused functional loss. There was evidence of pain with weight-bearing, and there was pain or tenderness on palpation of the right deltoid muscle and adjacent right long head biceps tendon. The Veteran was able to perform repetitive-use testing with at least three repetitions, but it did not cause additional loss of range of motion of the right shoulder. The Veteran did not have ankylosis of the shoulder joint. There was no shoulder instability, dislocation, or labral pathology. The Veteran did not have a clavicle, scapula, acromioclavicular joint or sternoclavicular joint condition, nor did he have an impairment of the humerus. The Veteran was afforded another VA examination of the shoulder and arm on August 23, 2017. The Veteran reported pain in his right shoulder, described as a constant aching sensation. He explained that there has been no change in the pain since 2009. The Veteran said that it is difficult for him to shave, bathe, dress himself, tie his shoes, and do chores around the house. The Veteran reported flare-ups of his right shoulder. The results of the Veteran’s range of motion testing of the right shoulder were as follows: flexion to 90 degrees, abduction to 90 degrees. The examiner noted pain on flexion, abduction, external rotation, and internal rotation, which caused functional loss. There was pain with passive movement, but no objective pain with non-weight bearing. The Veteran had objective evidence of pain beginning at 10 degrees of flexion and at 10 degrees of abduction. There was evidence of pain with weight-bearing, but there was no pain or tenderness on palpation. The Veteran was able to perform repetitive-use testing with at least three repetitions, but it did not cause additional loss of range of motion of the right shoulder. The Veteran’s pain significantly limits his shoulder’s functional ability with repeated use over time. The Veteran did not have ankylosis of the shoulder joint. There was no shoulder instability, dislocation, or labral pathology. The Veteran had degeneration of the right acromioclavicular joint, but a clavicle or scapula condition did not affect range of motion of the shoulder. The Veteran did not have an impairment of the humerus. A VAMC outpatient record from September 2018 reflects that the Veteran had pain to palpation of his right shoulder. He had painful limited range of motion past 45 degrees of abduction. The Veteran had a VA examination on November 6, 2018. The Veteran reported flare-ups of his right shoulder that are daily and last hours. The Veteran’s functional impairment is loss of overhead activities. The results of the Veteran’s range of motion testing of the right shoulder were as follows: flexion to 50 degrees, abduction to 40 degrees. The examiner noted pain on flexion and abduction, which caused functional loss. There was evidence of pain with weight-bearing, and there was pain or tenderness on palpation. The examiner noted that to express additional limitation of the right shoulder due to pain in terms of degrees of additional range of motion would be speculative. The Veteran was able to perform repetitive-use testing with at least three repetitions, but it did not cause additional loss of range of motion of the right shoulder. The Veteran’s pain could significantly limit his shoulder’s functional ability with repeated use over time and during flares, but there was no evidence of fatigability, incoordination, or muscle weakness during physical examination. The Veteran did not have ankylosis of the shoulder joint. There was no shoulder instability, dislocation, or labral pathology. There was no clavicle, scapula, acromioclavicular, or sternoclavicular joint condition suspected. The Veteran did not have an impairment of the humerus. Based on the evidence, the Board concludes that a 40 percent rating, but no higher, is warranted from August 23, 2017 to November 5, 2018. Prior to August 23, 2017, a rating higher than 20 percent must be denied, and after November 6, 2018, a rating higher than 30 percent must be denied. As mentioned, a 20 percent rating is warranted for arm motion limited to shoulder level; a 30 percent rating is warranted for motion limited midway between the shoulder and the side; and a 40 percent rating is warranted for motion limited to 25 degrees from the side. Initially, the Board notes that there are outpatient records noting limitation of motion of the right shoulder that would seem to warrant a higher rating. However, those records are inadequate for rating purposes. These records include the April 2008 record reflecting right shoulder flexion of 25 degrees; an October 2010 VAMC record showing that the Veteran’s right should abduction is limited to 45 degrees; the January 2011 VAMC document that showed right shoulder flexion of 60 degrees; the January 2014 SSA record showing flexion and abduction to 80 degrees; the January 2014 evaluation by Dr. F. showing right shoulder flexion limited to 20 degrees; and the September 2018 VAMC record that showed painful motion at 45 degrees of abduction. These records generally do not comply with Sharp and Correia as they do not include ranges of motion of the left shoulder, no mention of weight-bearing, nonweight-bearing, flares, consideration of functional loss, or passive ranges of motion. Therefore, all these measurements receive little weight in the Veteran’s rating. Prior to the August 2017 VA examination, there is no competent medical evidence of record that addresses all the rating criteria that would warrant a higher-than-20 percent rating for limitation of motion of the right arm. Prior to August 23, 2017, all the competent medical evidence suggests that the Veteran’s right shoulder impingement syndrome was manifested by limitation of motion of his right arm at shoulder level. While the August 2008 VA examination did not address all the requirements imposed by Sharp and Correia, it comes closest of all the pre-August 2017 records. The August 2008 VA examination reflected, at worst, flexion to 90 degrees, or shoulder level. See 38 C.F.R. § 4.71, Plate I. Therefore, the claim for a rating higher than 20 percent must be denied prior to August 23, 2017. However, the Board finds that a 40 percent rating is warranted from the date of the August 2017 examination through November 5, 2018. The examiner noted that the Veteran experienced pain in his right shoulder at 10 degrees in flexion and abduction, and that pain caused functional limitations. Therefore, the criterion of limited motion or functional loss at 25 degrees from the side is met. As 40 percent is the maximum schedular rating for limitation of motion, a rating higher than 40 percent must be denied. The Board also finds that a 30 percent rating is warranted from the date of the November 2018 VA examination. The Veteran was able to flex his arm to 50 degrees and abduct his arm to 40 degrees. Under DC 5201, flexion and extension to 90 degrees is considered shoulder level. As noted above, a 30 percent rating is available where the major arm motion is limited to midway between the side and shoulder level. Flexion to 50 degrees and abduction to 40 degrees is best described as midway, and accordingly a 30 percent rating would be warranted under DC 5201, effective November 6, 2018. A 40 percent rating would not be appropriate under DC 5201 because the Veteran was able to move his major arm past 25 degrees from his side. In conclusion, prior to August 23, 2017, the claim for a rating higher than 20 percent for right shoulder impingement syndrome must be denied. A 40 percent rating, but no higher, is granted from August 23, 2017 to November 5, 2018. From November 6, 2018, a 30 percent rating under DC 5201 for right shoulder strain, impingement syndrome is warranted. Shamil Patel Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Smith, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.