Citation Nr: 20002607 Decision Date: 01/14/20 Archive Date: 01/13/20 DOCKET NO. 13-24 211 DATE: January 14, 2020 ORDER Entitlement to a disability rating in excess of 20 percent for service-connected left shoulder strain is denied. REMANDED Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. FINDINGS OF FACT The Veteran’s left shoulder strain is manifested by painful motion that limits overhead activity, abduction of the shoulder to 80 degrees, and less than normal muscle strength of the minor extremity. CONCLUSIONS OF LAW The criteria for a rating in excess of 20 percent for left shoulder strain have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5301-5201. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 1966 to May 1969 in the United States Marine Corps, to include active duty service during the Vietnam Era. The Board remanded the claims in September 2017. There has been substantial compliance with the remand in connection with shoulder claim and the Board will proceed with adjudication. Stegall v. West, 11 Vet. App. 268 (1998). The Board also remanded a claim of service connection for a right leg condition. In an October 2019 rating decision, service connection was granted for right quadricep muscle damage and right knee patellofemoral pain syndrome. Entitlement to a disability rating in excess of 20 percent for service-connected left shoulder strain is denied. The Veteran contends that he is entitled to higher rating for his service-connected left shoulder because his symptoms manifest to a more severe degree. The Veteran’s left shoulder strain is evaluated as 20 percent disabling under 38 C.F.R. § 4.71a, Diagnostic Code 5301-5201. DC 5301 pertains to injuries to Muscle Group I, extrinsic muscles of the shoulder girdle, to include the trapezius, levator scapulae, and serratus magnus. For the nondominant hand, a slight disability is assigned a noncompensable evaluation, a moderate disability is assigned a 10 percent evaluation, a moderately severe disability is assigned a 20 percent evaluation, a 30 percent evaluation is assigned for a severe disability. DC 5302 applies to injuries to Muscle Group II, extrinsic muscles of the shoulder girdle, to include the pectoralis major II (costosternal), latissimus dorsi and teres major, pectoralis minor, and rhomboid. For the nondominant arm, DC 5302 provides for a noncompensable evaluation for a slight disability, a 20 percent evaluation for a moderate and/or moderately severe disability, and 30 percent evaluation for a severe disability. Pursuant to DC 5303, Muscle Group III involves the intrinsic muscles of the shoulder girdle, including the pectoralis major I (clavicular) and the deltoid. For the nondominant arm a noncompensable evaluation for a slight disability, a 20 percent evaluation for a moderate and/or moderately severe disability, and a 30 percent rating is assigned for a severe disability. Under Diagnostic Code 5201, limitation of motion of the arm at shoulder level warrants a 20 percent rating for both the major and minor extremity. Limitation of motion of the arm midway between side and shoulder warrants a 20 percent rating for the minor extremity and a 30 percent rating for the major extremity. Limitation of motion of the arm to 25 degrees from side warrants a maximum 30 percent rating for the minor joint and a maximum 40 percent rating for the major joint. 38 C.F.R. § 4.71a, Diagnostic Code 5201. Diagnostic Code 5201 “does not provide separate ratings for limitation of motion in the flexion and abduction planes, but rather is addressed generically to limitation of motion of the arm.” Yonek v. Shinseki, 722 F.3d 1355, 1358 (Fed. Cir. 2013). 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). Under 38 C.F.R. § 4.59, painful motion is a factor to be considered with any form of arthritis; however, 38 C.F.R. § 4.59 is not limited to disabilities involving arthritis. See Burton v. Shinseki, 25 Vet. App. 1 (2011). Examinations should include results of range of motion testing for pain on both active and passive motion and in weight-bearing and non-weight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint. Correia v. McDonald, 28 Vet. App. 158 (2016). The Board finds that the preponderance of the evidence is against a rating in excess of 20 percent for service-connected left shoulder strain. The medical evidence of record shows that the Veteran is right-handed. The Veteran’s objective range of motion of the left shoulder is limited by pain to no more than 80 degrees on flexion and abduction, 45 degrees in external rotation and 75 degrees in internal rotation which prevents the Veteran from reaching overhead. The Veteran was also noted to have slight loss of muscle strength in the left shoulder on flexion and abduction attributable to his left shoulder strain. Correia testing during the April 2019 VA examination indicates that there was no pain on passive motion and non-weight bearing. The Veteran also underwent a September 2019 VA examination for muscle injuries which noted injury to the muscle groups of the left shoulder girdle. The impact on muscle strength of the left shoulder manifested with less than normal strength but no functional impact. The Board acknowledges the Veteran’s lay reports of symptoms and that there was functional loss due to pain, manifesting during overhead activity. However, the Veteran’s lay reports of symptoms and noted functional loss are reflected by the objective testing and the Veteran denied experiencing flare-ups during his April 2019 VA examination. Therefore, there is no evidence that there is any degree of additional limitation that would result in symptoms more nearly approximating limitation of motion of the arm to 25 degrees from the side of the major or minor extremity. The Board has considered whether any other Diagnostic Codes related to disabilities of the shoulder would provide for a higher disability rating. However, the evidence does not reflect that the symptoms would warrant a higher rating under a different Diagnostic Code. See 38 C.F.R. § 4.71a. Specifically, the Board sought to determine whether the Veteran’s left shoulder strain warrants a higher rating under the criteria for muscle injury but finds that the impact on muscle strength/functioning does not manifest higher than a moderately severe level and therefore would not merit a rating higher than 20 percent. In conclusion, the Board finds that the preponderance of the evidence is against the Veteran’s appeal for a rating in excess of 20 percent for left shoulder strain. In denying such a rating, the Board finds the benefit of the doubt doctrine is not applicable. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. REASONS FOR REMAND Entitlement to a TDIU is remanded. The TDIU claim is part of the increased rating before the Board; however, adequate development of the issue has not occurred to date. The AOJ should develop the issue. The matters are REMANDED for the following action: 1. Ask the Veteran to complete a VA Form 21-8940 or otherwise provide information about his education and work history. Take all appropriate action based on his response. 2. After the above development, and any additionally indicated development, has been completed, readjudicate the TDIU claim. M.E. Larkin Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board P.S. McLeod 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.