Citation Nr: 20003203 Decision Date: 01/15/20 Archive Date: 01/14/20 DOCKET NO. 13-11 900 DATE: January 15, 2020 ORDER Entitlement to an initial rating in excess of 20 percent for the service-connected right shoulder impingement and bicipital tendinitis with degenerative changes is denied. FINDING OF FACT The Veteran’s service-connected right shoulder impingement and bicipital tendinitis with degenerative changes is manifested by pain and tenderness that increases with upper extremity motion and flare-ups and by limitation of motion with pain to no worse than the shoulder level. CONCLUSION OF LAW The criteria for an initial rating in excess of 20 percent for the service-connected right shoulder impingement and bicipital tendinitis has not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5201 (2018). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active military service from June 1990 to June 1994. This matter comes before the Board of Veterans’ Appeals (Board) on appeal of an August 2011 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). In June 2017, the Board remanded this appeal for additional evidentiary development. The case has now been returned to the Board for further appellate action. Initial increased rating for service-connected right shoulder disability The Veteran asserts that his right shoulder disability—namely right shoulder impingement and bicipital impingement with degenerative changes is more severe than the current evaluation reflects. Initially, in August 2011, service connection for this right shoulder disability was granted and a 10 percent disability rating was awarded. In an August 2016 rating decision, a 20 percent rating for the entire period (excluding various periods of temporary total ratings). Disability ratings are determined by applying the criteria set forth in the VA Schedule of Rating Disabilities (Rating Schedule) and are intended to represent the average impairment of earning capacity resulting from disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities. Disabilities must be reviewed in relation to their history. 38 C.F.R. § 4.1. Other applicable, general policy considerations are: interpreting reports of examination in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating many accurately reflect the elements of disability, 38 C.F.R. § 4.2; resolving any reasonable doubt regarding the degree of disability in favor of the claimant, 38 C.F.R. § 4.3; where there is a questions as to which of two evaluations apply, assigning a higher of the two where the disability pictures more nearly approximates the criteria for the next higher rating, 38 C.F.R. § 4.7; and, evaluating functional impairment on the basis of lack of usefulness, and the effects of the disability upon the person’s ordinary activity, 38 C.F.R. § 4.10. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). A claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. Thus, separate ratings can be assigned for separate periods of time based on the facts found - a practice known as “staged” ratings. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Disability of the musculoskeletal system is primarily the inability, due to damage or inflammation in parts of the system, to perform normal working movements of the body with normal excursion, strength, speed, coordination and endurance. The functional loss may be due to absence of part or all of the necessary bones, joints and muscles, or associated structures, or to deformity, adhesions, defective innervation, or other pathology, or may be due to pain, supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and a part which becomes painful on use must be regarded as disabled. DeLuca v. Brown, 8 Vet. App. 202 (1995); 38 C.F.R. §§ 4.40, 4.45, 4.59 (2018). Although pain may be a cause or manifestation of functional loss, limitation of motion due to pain is not necessarily rated at the same level as functional loss where motion is impeded. Mitchell v. Shinseki, 25 Vet. App. 32 (2011). The Veteran’s right shoulder disability has been rated based upon limitation of arm motion. 38 C.F.R. § 4.71a, Diagnostic Code 5201. The record shows that the Veteran is right-handed. Thus, his right arm/shoulder is considered his major (dominant) arm for rating purposes. Under Diagnostic Code 5201, a 20 percent rating is assigned for limitation of major arm motion at shoulder level. A 30 percent rating is warranted for limitation of arm movement to midway between the side and shoulder level. 38 C.F.R. § 4.71a, Diagnostic Code 5201. A maximum 40 percent rating is warranted for limitation of the major arm motion to 25 degrees from the side. Id. At the Veteran’s initial May 2011 VA examination in connection with his service connection claim, the Veteran reported the onset of intermittent right shoulder pain to the prior year with some improvement of mobility after physical therapy. He relayed pain in the front and side of his shoulder which was now constant and aggravated by pushing movements. He denied locking, stiffness, swelling or instability. The examiner noted the two separate concurring diagnoses of a right shoulder impingement syndrome with bicipital tendinitis. Upon examination, forward elevation was measured at 180 degrees with pain in the right shoulder at 90 degrees. After three repetitions, elevation was limited to 125 degrees due to pain. Abduction was measured bilaterally at 180 degrees with pain on the right at 180 degrees on pass motion. Active range of motion on shoulder abduction was measured at 120 degrees with no loss of range of motion after repetition. At an October 2016 VA examination, the Veteran reported blare-ups and functional impairment due to limited range of motion. Flexion and abduction were measured at 170 degrees and internal and external rotation were both measured at 80 degrees. Pain was noted on examination and resulted in functional loss. The Veteran was able to perform repetitive use testing with no additional loss of range of motion. Less movement than normal was the only documented contributing factor to the Veteran’s disability. The Veteran did not exhibit any loss of strength, muscle atrophy or ankylosis, and there was no evidence of instability, dislocation or labral pathology. The examiner confirmed the history of a shoulder surgery with resulting chronic strain. As noted above, this matter was remanded for an additional examination. At the Veteran’s November 2018 VA examination, the Veteran endorsed chronic pain in his right shoulder which was aggravated by certain movement of the right shoulder, including reaching behind or above the head in addition to intermittent paresthesias of the right hand/fingers. The examiner noted the diagnosis of right shoulder impingement and bicipital tendinitis with degenerative changes as well as the previous surgical history. He confirmed that there was no additional history of any right shoulder injury since the prior VA examination. On examination, flexion and abduction were measured at 80 degrees. External rotation was measured at 40 degrees and internal rotation was limited to 15 degrees. There was mild tenderness noted over the posterior girdle and deep palpation laterally. The Veteran was able to perform repetitive use testing with no documented immediate additional loss of range of motion. The Veteran reported that over time repeated use resulted in loss of range of motion which varied with the nature of the use, from no loss of range of motion to no movement. However, there was no documented muscle atrophy or ankylosis. There were no other noted conditions or pathologies with respect to the right shoulder. VA treatment records have been reviewed in connection with the increased rating. However, there is no indication from any of the treatment records that the range of motion of the Veteran’s right shoulder was worse at any time than reflected in any of the VA examinations during the relevant period. As such, the records do not indicate that a higher rating is warranted for the Veteran’s service-connected right shoulder disability. From this evidence, the Board concludes that the Veteran is not entitled to a rating greater than 20 percent for his service-connected right shoulder disability at any point during the period on appeal. Specifically, a rating greater than the current evaluation of 20 percent is not warranted pursuant to Diagnostic Code 5201 because the limitation of motion of his right upper extremity is not worse than his shoulder level, even accounting for pain. Under Diagnostic Code 5201, a 20 percent rating is warranted for each of the minor and major limbs where there is arm limitation at shoulder level (or 90 degrees). A 30 percent rating is warranted only where there is limitation of motion to midway between the side and shoulder level (or 45 degrees). Thus, even accounting for pain, the Veteran’s right upper extremity has been consistently shown to be no worse than 80 degrees in both abduction and flexion. As such, a 30 percent rating for the right shoulder disability is not warranted under Diagnostic Code 5201. The Board has also considered whether separate or higher ratings are warranted. In this case, no higher or separate rating under a different Diagnostic Code can be applied. The Board notes that there are other Diagnostic Codes relating to shoulder disorders, such as Diagnostic Code 5200 (ankylosis of the shoulder) and Diagnostic Code 5202 (impairment of the humerus). However, the Veteran’s right shoulder disability is not manifested by an impairment of the humerus, and there has been no documented evidence of ankylosis at any point during the period on appeal. Therefore, higher or separate ratings under Diagnostic Code 5200 and 5202 are not warranted. In addition, the Board has considered the applicability of separate ratings for the under Diagnostic Code 5203, but the Veteran does not have evidence of clavicle or scapular problems due to his right shoulder disability. The Board also notes that the Veteran does not have any muscle atrophy associated with his right shoulder disability. As such, assigning separate or higher ratings under 38 C.F.R. § 4.73, Diagnostic Codes 5301 through 5306 is not warranted. The Board has also considered the functional loss associated with this service-connected disability. 38 C.F.R. §§ 4.40, 4.45. The evidence of record indicates that the Veteran has difficulty with activities requiring reaching over his head or behind him. He also relayed some reduced grip strength. That said, there is no muscle atrophy associated with the right shoulder, indicating that the Veteran can and does use the shoulder in close to a normal manner. In addition, the November 2018 VA examiner reported that the Veteran exhibited well developed shoulder muscles. In addition, the records show right shoulder ranges of motion loss that fall well short of being midway between the side and shoulder level, even when additional limitation resulting from pain was considered. The Veteran himself denied flare-ups as recently as the November 2018 examination and noted that moving his shoulder only hurts in certain ways. Deluca v. Brown, 8 Vet. App. 202, 202. Accordingly, the Veteran’s functional loss does not warrant a rating greater than 20 percent. As discussed above, the functional impairment associated with this service-connected disability is contemplated by the current 20 percent rating. In sum, the Board finds no provision upon which to assign a rating greater than the currently-assigned evaluation of 20 percent for the Veteran’s service-connected right shoulder disability. THERESA M. CATINO Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Rachel Mamis 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.