Citation Nr: 20004229 Decision Date: 01/17/20 Archive Date: 01/16/20 DOCKET NO. 19-13 578 DATE: January 17, 2020 ORDER The claim for an initial rating higher than 20 percent for a right shoulder disability prior to October 17, 2018 is denied. The claim for an increased rating of 30 percent, but not higher, for a right shoulder disability from January 1, 2019 is granted. REMANDED Entitlement to a total disability rating due to individual unemployability resulting from service-connected disability (TDIU) is remanded. FINDINGS OF FACT 1. Prior to October 17, 2018, the Veteran’s right shoulder disability manifested pain and limited motion to the shoulder level without ankylosis or impairment of the humerus. 2. From January 1, 2019, the Veteran’s right shoulder disability manifests pain and limited motion to midway between the side and shoulder level without ankylosis or impairment of the humerus. CONCLUSIONS OF LAW 1. The criteria for an initial rating higher than 20 percent for right shoulder acromioclavicular joint osteoarthritis with supraspinatus tendinitis, bursitis and impingement prior to October 17, 2018 are not met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.10, 4.40, 4.45, 4.71a, Diagnostic Codes 5003, 5200-5203. 2. The criteria for a rating of 30 percent, but not higher, for right shoulder acromioclavicular joint osteoarthritis with supraspinatus tendinitis, bursitis and impingement from January 1, 2019 are met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.10, 4.40, 4.45, 4.71a, Diagnostic Codes 5003, 5200-5203. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 1989 to July 1993 and from June 2012 to June 2013. This case comes before the Board of Veterans’ Appeals (Board) on appeal from a March 2016 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran is in receipt of a temporary total rating (100 percent) for right shoulder surgery requiring convalescence from October 17, 2018 to December 31, 2018. 38 C.F.R. § 4.30. As the Veteran is in receipt of the highest possible schedular rating during this period, the Board will not address it in the discussion below. Instead, the Board will focus on the periods prior to October 17, 2018 and beginning January 1, 2019. 1. Entitlement to a higher initial rating for a right shoulder disability, currently rated as 20 percent disabling prior to July 21, 2019 and 30 percent disabling thereafter. Service connection for a right shoulder strain was awarded in the March 2016 rating decision on appeal. An initial noncompensable (0 percent) evaluation was assigned effective October 22, 2015. An increased 20 percent rating was granted in April 2019 effective from the original date of service connection—October 22, 2015. In an August 2019 rating decision, the service-connected right shoulder disability was recharacterized as acromioclavicular joint osteoarthritis with supraspinatus tendinitis, bursitis and impingement. A temporary total rating was assigned following the Veteran’s right shoulder surgery from October 17, 2018 to December 31, 2018 with a 20 percent rating continued from January 2, 2019. An increased 30 percent evaluation was also assigned for the period beginning July 21, 2019. The Veteran’s right shoulder disability is therefore rated as 20 percent disabling prior to July 21, 2019 and 30 percent disabling thereafter during the initial claims period. Disability evaluations are determined by evaluating the extent to which a Veteran’s service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing his symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Rating Schedule). 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10. Where the evidence contains factual findings that demonstrate distinct time periods in which the service-connected disability exhibits symptoms that would warrant different evaluations at any point during the appeal, the assignment of staged ratings is appropriate. See Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). For disabilities evaluated based on limitation of motion, VA is required to apply the provisions of 38 C.F.R. §§ 4.40, 4.45, pertaining to functional impairment. See also DeLuca v. Brown, 8 Vet. App. 202 (1995); Johnston v. Brown, 10 Vet. App. 80, 84-5 (1997); 38 C.F.R. § 4.59. The Veteran’s right shoulder disability is currently rated as 20 percent disabling prior to July 21, 2019 and 30 percent disabling thereafter. The disability is rated under Diagnostic Code 5003-5201, indicating that shoulder arthritis is present alongside compensable limitation of motion. Diagnostic Code 5201 pertains to limitation of motion of the arm and states when motion of the arm is limited at the shoulder level, it is rated 20 percent for the major shoulder and 20 percent for the minor shoulder; limitation of motion of the arm midway between the side and shoulder level is rated as 30 percent for the major shoulder and 20 percent for the minor shoulder; and, limitation of motion of the arm to 25 degrees from the side is rated as 40 percent for the major shoulder and 30 percent for the minor shoulder. 38 C.F.R. § 4.71a, Diagnostic Code 5201. The Veteran is right-hand dominant, and his right shoulder is therefore considered the “major” shoulder. The Board finds that an initial rating higher than 20 percent is not warranted for the Veteran’s right shoulder disability prior to October 17, 2018, but an increased 30 percent rating is warranted from January 1, 2019. Prior to October 17, 2018 (the date of the Veteran’s right shoulder arthroscopy and Bankart labral tear repair), range of motion of the right shoulder was most limited during an October 2017 VA examination. At that time, flexion was limited to 90 degrees, with abduction and external and internal rotation to 80 degrees. These findings are consistent with motion limited to the shoulder level and the current 20 percent evaluation. See 38 C.F.R. § 4.71, Plate I. The Board also notes that the Veteran consistently reported during this period that he had trouble working with his arm above the shoulder level and, according to the October 2017 VA examiner, was no longer able to perform overhead work or heavy lifting. The Board has considered whether a higher rating is warranted during this period based on functional factors, but finds that the current 20 percent evaluation contemplates the Veteran’s loss of motion and impairment due to the right shoulder. VA examinations dated in March 2016 and October 2017 include range of motion testing as noted above, with recognition of the point where the Veteran first experienced pain on testing. There was no additional loss of motion during repetitive testing in October 2017, and while the Veteran lost some amount of abduction following repetitive testing in March 2016, abduction was still measured to 150 degrees at that time—consistent with a noncompensable rating under Diagnostic Code 5201. The Veteran also denied experiencing flare-ups of symptoms at both VA examinations during the applicable claims period. VA treatment records dated prior to October 17, 2018 document the Veteran’s complaints of lost shoulder motion, audible clicking and grinding when lifting his right arm, and an inability to perform overhead movement at work with the postal service, but these functional impairments are contemplated by the current 20 percent rating under Diagnostic Code 5201 which accounts for painful motion of the arm limited to the shoulder level. Thus, even with consideration of functional factors, the Board finds that an initial rating higher than 20 percent is not warranted prior to October 17, 2018 based on limited motion. 38 C.F.R. §§ 4.40, 4.45; see also Johnston v. Brown, 10 Vet. App. 80, 84-5 (1997); DeLuca v. Brown, 8 Vet. App. 202 (1995). During the period beginning January 1, 2019 (when the temporary rating for the Veteran’s right shoulder surgery expired), an increased 30 percent rating is appropriate under Diagnostic Code 5201. On January 8, 2019, the Veteran was seen by his private surgeon and was found to have trouble regaining shoulder motion after his October 2018 surgery. At that time, flexion was measured to 90 degrees with external rotation to 25 degrees. Similar motion was recorded during a July 2019 VA examination, when the examiner estimated that the Veteran would experience additional loss of motion with repetitive use consistent with flexion to 50 degrees and abduction to 30 degrees. The Veteran reported having constant right shoulder pain, an inability to raise his arm over his head, and having to resign his position with the postal service due to shoulder impairment. The Board will resolve any doubt in the Veteran’s favor and finds that an increased 30 percent rating is warranted for right shoulder motion that most nearly approximates midway between the side and shoulder level from January 1, 2019 based on functional impairment. The Board has considered whether a maximum 40 percent rating is appropriate during this period for right shoulder motion, but finds that the disability does not most nearly approximate motion limited to 25 degrees from the side. The January 2019 private surgeon measured external rotation to 25 degrees, but external rotation refers to the arm’s ability to lift above the shoulder, not from the side of the body. See 38 C.F.R. § 4.71, Plate I. The Board has assigned an increased 30 percent rating based on the functional impairment associated with the service-connected disability, but none of the medical or lay evidence establishes that the Veteran’s pain, limited motion, and functional effects most nearly approximate motion limited to 25 degrees from the side. The July 2019 VA examiner observed that the Veteran would experience additional loss of motion over time due to pain and weakness, but the estimated loss of motion was clearly better than 25 degrees from the side. The Board therefore finds that functional factors do not support the assignment of a maximum 40 percent evaluation for limitation of motion of the major arm during the period beginning January 1, 2019. The Board has also considered whether an increased rating is warranted under the other criteria for rating the arm and the shoulder, but finds that such criteria are inapplicable. The Veteran has clearly retained some useful motion of his right arm throughout the claims period and a rating under Diagnostic Code 5200 pertaining to ankylosis of the shoulder is not appropriate. The Board also notes that higher ratings are possible under Diagnostic Codes 5202 for impairment of the humerus, but there is no evidence of fibrous union, nonunion, or loss of the humeral head (flail joint). A June 2017 X-ray demonstrated a “high-riding humerus” and an August 2017 MRI confirmed the presence of a Bankart labral tear repaired by surgery in October 2018. However, these conditions are currently evaluated under Diagnostic Code 5201 for limitation of motion and are not manifested by fibrous union, nonunion, or loss of the humeral head. Therefore, Diagnostic Codes 5200, and 5205 are not for application in this case. The Board has considered the doctrine of reasonable doubt but has determined that it is not applicable to this claim because the preponderance of the evidence is against a rating higher than that granted above at any time during the claims period. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 4.7, 4.21. REASONS FOR REMAND 2. Entitlement to a TDIU. The Veteran has alleged that he is unemployable due to service-connected disability and a claim for TDIU, which is part of the increased rating claim currently before the Board, must be remanded to allow for initial adjudication by the agency of original jurisdiction (AOJ). See Rice v. Shinseki, 22 Vet. App. 447 (2009) (holding that a request for TDIU is not a separate claim for benefits, but is rather part of the adjudication of a claim for increased compensation). The Board observes that the Veteran did not comply with a May 2019 request to complete a VA Form 21-8940 (Application for Increased Compensation Based on Unemployability) from the AOJ, but the claim for TDIU has nonetheless been reasonably raised by the record and must be addressed. This matter is REMANDED for the following action: 1. Request again that the Veteran submit a properly completed VA Form 21-8940, Veteran’s Application for Increased Compensation Based on Unemployability. 2. Then adjudicate the claim for entitlement to TDIU. M. H. HAWLEY Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Riley, 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.