Citation Nr: 20006505 Decision Date: 01/28/20 Archive Date: 01/27/20 DOCKET NO. 10-13 913 DATE: January 28, 2020 ORDER 1. Entitlement to a rating in excess of 20 percent for right shoulder osteoarthritis with incomplete supraspinatus tear and sprain (a right shoulder disability), is denied. 2. Entitlement to a rating in excess of 20 percent for left shoulder osteoarthritis with incomplete supraspinatus tear and sprain (a left shoulder disability), is denied. REMANDED 3. Entitlement to a total disability evaluation based on individual unemployability (TDIU) prior to August 26, 2015, is remanded. FINDINGS OF FACT 1. Throughout, the Veteran’s right (major) shoulder disability was manifested by motion limited to no less than 70 degrees forward flexion and abduction; limitation of motion to midway between the side and shoulder level, ankylosis of the scapulohumeral articulation, impairment of the humerus (malunion, recurrent dislocation, fibrous union, nonunion, and loss of head), and impairment of the clavicle or scapula (malunion, nonunion, and dislocation) were not shown. 2. Throughout, the Veteran’s left (minor) shoulder disability was manifested by motion limited to no less than 45 degrees forward flexion and 40 degrees abduction; limitation of motion to 25 degrees from the side, ankylosis of the scapulohumeral articulation, impairment of the humerus, and impairment of the clavicle or scapula were not shown. CONCLUSIONS OF LAW 1. A rating in excess of 20 percent for the Veteran’s service-connected right shoulder disability is not warranted. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 4.1, 4.10, 4.21, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes (Codes) 5200-5203. 2. A rating in excess of 20 percent for the Veteran’s service-connected left shoulder disability is not warranted. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 4.1, 4.10, 4.21, 4.40, 4.45, 4.59, 4.71a, Codes 5200-5203. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The appellant is a Veteran who served on active duty from August 1962 to January 1967. These matters are before the Board of Veterans’ Appeals (Board) on appeal from a July 2015 rating decision, which continued 20 percent ratings, each, for left and right shoulder osteoarthritis. In July 2017, the case was remanded for a hearing before the Board. In January 2018, a videoconference hearing was held before the undersigned; a transcript is in the Veteran’s record. In February 2018, the claims were remanded for additional development. [The Veteran has established service connection for peripheral neuropathy of both upper extremities (separately rated 40 and 30 percent). See November 2015 rating decision. The matter of those ratings is not before the Board.] The TDIU issue has been added to the appeal because a TDIU claim is part of an increased rating claim when such claim is asserted by the veteran or raised by the record, as it was here. Rice v. Shinseki, 22 Vet. App. 447 (2009). Notably, a 100 percent combined schedular rating has been assigned from August 26, 2015. 1., 2. Entitlement to ratings in excess of 20 percent, each, for right and left shoulder disabilities, is denied. Disability evaluations are determined by the application of a schedule of ratings, which is based on average impairment of earning capacity caused by the given disability. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Where entitlement to compensation has already been established and increase in disability is at issue, the present level of disability is of primary concern. See Francisco v. Brown, 7 Vet. App. 55 (1994). “Staged” ratings may be warranted where the factual findings show distinct time periods when the service-connected disability exhibits symptoms that would warrant different ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007). As the Veteran is right handed, the criteria for consideration are those pertaining to the major extremity for his right shoulder disability and the minor extremity for his left shoulder disability. Shoulder disabilities are rated under Codes 5200 to 5203. Under Code 5200 (for ankylosis of the scapulohumeral articulation), favorable ankylosis with abduction to 60 degrees and the ability to reach the mouth and head is rated 30 percent for the major extremity, and 20 percent for the minor extremity. Intermediate (between favorable and unfavorable) ankylosis is rated 40 percent for the major extremity and 30 percent for minor extremity. Unfavorable ankylosis is rated 50 percent for the major extremity and 40 percent for the minor extremity. Under Code 5201, limitation of motion at the shoulder level in the major and minor extremity is rated 20 percent. Limitation of motion to midway between the side and shoulder level is rated 30 percent for the major extremity, and 20 percent for the minor extremity. Limitation of motion to 25 degrees from the side is rated 40 percent for the major extremity, and 30 percent for the minor extremity. 38 C.F.R. § 4.71a. [Normal forward flexion of a shoulder is from 0 to 180 degrees, normal abduction of a shoulder is from 0 to 180 degrees, normal external rotation is from 0 to 90 degrees, and normal internal rotation is from 0 to 90 degrees.] 38 C.F.R. § 4.71; and Plate I. Codes 5202 and 5203 pertain to ratings for other impairment of the humerus (malunion, recurrent dislocation, fibrous union, nonunion, and loss of head) and impairment of the clavicle or scapula (malunion, nonunion, and dislocation), respectively. In determining the degree of limitation of motion, the provisions of 38 U.S.C. §§ 4.10, 4.40, and 4.45 are for consideration. See DeLuca v. Brown, 8 Vet. App. 202 (1995). The basis of disability evaluation is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. 38 C.F.R. § 4.10. Disability of the musculoskeletal system is primarily the inability, due to damage or infection in parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. Functional loss may be due to the absence or deformity of structures or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by the visible behavior in 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. With respect to joints, in particular, the factors of disability reside in reductions of normal excursion of movements in different planes. Inquiry will be directed to more or less than normal movement, weakened movement, excess fatigability, incoordination, pain on movement, swelling, deformity or atrophy of disuse. 38 C.F.R. § 4.45. When a question arises as to which of two ratings applies under a particular code, the higher rating is assigned if the disability more closely approximates the criteria for the higher rating. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining, including regarding degree of disability, is resolved in favor of the Veteran. 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 4.3. An increased rating may be assigned for up to one year prior to receipt of a formal claim for increase, when it is factually ascertainable that an increase in disability had occurred during that period. 38 C.F.R. § 3.400(o)(2). Consequently, the evaluation period for consideration here is from April 2014 (a year prior to the April 9, 2015 date of claim for increase). A July 2006 (prior to the period on appeal) Social Security Administration (SSA) disability determination notes “mild to moderate limitations in…heavy lifting and bilateral upper extremity overhead motions.” [November 2014 correspondence from SSA reports that all medical records held by SSA have been destroyed.] A March 2015 VA treatment record notes the Veteran’s report of “some intermittent difficulty controlling pain in his bilateral shoulders” and his belief that his medications may not be working as well as they once did. The physician suggested physical therapy and acupuncture; the Veteran declined. On May 2015 VA shoulder examination, the Veteran reported that his shoulders are “shot”; he rated his constant pain at 3/10 with escalation to 10/10 when leaning on and pushing his walker. He also reported difficulty reaching high objects and flare-ups that manifest in increased pain with lifting and reaching. Objective range of motion (ROM) testing found right shoulder flexion to 120 degrees, abduction to 100 degrees, external rotation to 60 degrees, and internal rotation to 60 degrees; pain was noted on abduction, external rotation, and internal rotation. Repetitive use testing resulted in abduction to 95 degrees; no additional decreased ROM was noted. ROM testing found left shoulder flexion to 110 degrees, abduction to 120 degrees, external rotation to 70 degrees, and internal rotation to 50 degrees; pain was noted on abduction and internal rotation. Repetitive use testing resulted in abduction to 110 degrees and internal rotation to 45 degrees; no additional decreased ROM was noted. Muscle strength was 5/5 in both shoulders; there was no muscle atrophy or ankylosis; there were no conditions or impairments of the humerus. X-rays showed right shoulder moderate degenerative arthritis and left shoulder mildly progressive degenerative joint disease. The examiner opined that the Veteran’s shoulder disabilities cause difficulty sitting to type as his hands become numb and painful. In an August 2015 Notice of Disagreement (NOD), the Veteran disagreed with the manner in which the March 2015 VA examination was conducted. He reported that he was unable to raise his arms to shoulder level, but that the examiner did it for him and made the pain intolerable. An October 2016 VA orthopedic treatment record notes complaints of constant bilateral shoulder pain, left worse than right. Examination showed ROM for both shoulders in forward flexion to 90 degrees and abduction to 90 degrees; bilateral strength tests were all 4/5 or 5/5; bilateral pulses were normal (2+). X-rays showed bilateral mild osteoarthritis with possible mild superior humeral head migration. The assessment was bilateral shoulder rotator cuff disease, likely tearing involving the supraspinatus. The Veteran underwent a left shoulder corticosteroid injection. A bilateral shoulder MRI was ordered. An October 2016 MRI of the right shoulder showed full-thickness tear of the right supraspinatus tendon, tear and/or postsurgical changes involving the long head of the biceps tendon, moderate degenerative arthritis at the right glenohumeral joint and mild degenerative arthritis at the acromioclavicular (AC) joint. MRI of the left shoulder showed mild to moderate supraspinatus tendinosis, moderate tenosynovitis of the long head of the biceps tendon, mild to moderate degenerative arthritis at the left glenohumeral joint, and mild degenerative arthritis at the left AC joint. A November 2016 VA orthopedic treatment record notes the Veteran’s report that his left shoulder is more bothersome than his right; he reported no improvement with (previous) physical therapy, injection, and anti-inflammatories. Objective ROM testing showed forward flexion and abduction were each to 90 degrees, bilaterally. Bilateral strength tests were all 4/5 or 5/5, and pulses were normal (2+). A January 2017 VA orthopedic treatment record notes the Veteran’s report of bilateral shoulder pain. He reported that he is considering a left total shoulder arthroplasty. Objective ROM testing showed forward flexion and abduction were each to 90 degrees, bilaterally. Bilateral strength tests were all 4/5 or 5/5, and pulses were normal (2+). On April 2017 VA shoulder examination, the Veteran reported bilateral shoulder pain, left worse than right. He reported that his left shoulder hurts with any movement and that he can use his right but cannot lift it above his head; he reported trouble with overhead activities. The Veteran denied flare-ups. Objective ROM testing found right shoulder flexion to 90 degrees, abduction to 80 degrees, external rotation to 60 degrees, and internal rotation to 60 degrees; pain was noted on flexion and abduction. There was no evidence of pain with weight-bearing. ROM testing found left shoulder flexion to 90 degrees, abduction to 90 degrees, external rotation to 50 degrees, and internal rotation to 60 degrees; pain was noted on flexion and abduction. Repetitive use testing was not completed due to reported pain; however, the examiner opined that the examination is medically consistent with the Veteran’s statements describing functional loss with repetitive use over time and that bilateral ROM would be “unchanged.” Muscle strength was 5/5 in both shoulders; there was no muscle atrophy or ankylosis; there were no conditions or impairments of the humerus. The examiner opined that the Veteran’s bilateral shoulder disabilities prohibit him from doing overhead activities or lifting heavy objects. In an August 2017 statement, the Veteran reported that he cannot work due to increasing shoulder, arm, and hand pain, including numbness and tingling sensations. An August 2017 VA orthopedic treatment record notes objective ROM testing showed forward flexion and abduction were each to 90 degrees, bilaterally. Strength tests were all 4/5 or 5/5 bilaterally and pulses were normal (2+). The Veteran reported a desire to proceed with conservative treatment and declined a left total shoulder arthroplasty. An October 2017 VA neurology treatment record notes “severe pain on shoulder elevation on left.” Actual ROM was not noted. A December 2017 VA treatment record notes the Veteran’s report of worsening shoulder pain. On physical examination, he was “unable to lift [bilateral] arms beyond 90 degrees.” At the January 2018 Board hearing, he testified that both shoulder disabilities have worsened since the prior VA examination; he specifically reported pain, tenderness to touch, swelling, weakness, and crepitus. On May 4, 2018 VA shoulder examination, the Veteran reported that his bilateral shoulder pain has “been a lot worse over th[e] last few years.” He treats his pain with ibuprofen. He reported constant right shoulder pain rated 5/10, that increases to 10/10 when he raises it overhead, and constant left shoulder pain rated 7-8/10 with some weakness, stiffness, and swelling. He reported flare-ups that manifest in pain when reaching, especially overhead. Objective ROM testing found right shoulder flexion to 70 degrees, abduction to 70 degrees, external rotation to 40 degrees, and internal rotation to 20 degrees; pain was noted on abduction and internal rotation. ROM testing found left shoulder flexion to 45 degrees, abduction to 40 degrees, external rotation to 20 degrees, and internal rotation to 10 degrees; pain was noted on abduction and internal rotation. There was evidence of bilateral pain with weight-bearing and tenderness to pain on palpation. Repetitive use testing did not result in additional functional loss or ROM in either shoulder. Pain, weakness, fatigability, or incoordination did not significantly limit functional ability with repeated use over time in either shoulder. Muscle strength testing was 5/5 in both shoulders for all tests except for left shoulder external and internal rotators, which were 4/5; there was no muscle atrophy or ankylosis; there were no conditions or impairments of the humerus. The examining physician opined that the Veteran’s bilateral shoulder disabilities cause difficulty typing and moving the shoulders. A May 14, 2018 VA treatment record notes an assessment of bilateral rotator cuff tears; the Veteran declined rotator cuff repair. In a May 2019 addendum opinion, the May 2018 examiner clarified that the Veteran reported experiencing flare-ups of the right shoulder 3-4 times per week, lasting 4 hours in duration, without decrease in ROM on repetitive use. She stated that the Veteran reported left shoulder flare-ups 2-3 times per week, lasting 3 hours in duration, without decrease in ROM on repetitive use. In a July 2019 addendum opinion, the May 2018 examiner again reviewed the Veteran’s reported history, examination report, and medical records and reiterated her May 2018 findings, to the extent that she opined that the examination was medically consistent with the Veteran’s statements describing functional loss during flare-ups, and her May 2019 addendum opinion, to the extent that she found no decrease in ROM on repetitive use. She explained that her findings were based on the clinical evidence or record and not based on any evidentiary shortcomings or aversion to offering an opinion on the matters. Right Shoulder The evidence does not show that the Veteran’s right (major) shoulder disability has been manifested by limitation of motion midway between side and shoulder level (required for the next higher, 30 percent, rating under Code 5201). On May 2015, April 2017, and May 2018 VA shoulder examinations, right shoulder flexion and abduction were consistently to 70 degrees or greater, including following repetitive use testing and as estimated during variably reported flare-ups. Clinical treatment records also consistently showed flexion and abduction at approximately shoulder level (90 degrees), including in October 2016, November 2016, January 2017, August 2017, and December 2017 (unable to lift arms “beyond 90 degrees”). Accordingly, the evidence is against a finding that at any time the Veteran’s right shoulder ROM more closely approximated limitation of motion midway between his side and shoulder level, including with consideration of pain on movement, repetitive use, weight-bearing, and during variably reported flare-ups. The Board acknowledges the Veteran’s August 2015 statement in which he disagreed with the manner in which the March 2015 VA examination was conducted, indicating that he was unable to raise his arms to shoulder level, but that the examiner did it for him and made the pain intolerable. Assuming arguendo that such is true, the Board finds it outweighed in probative value by other clinical evidence in the record which on numerous occasions consistently found right shoulder ROM to the (or more closely approximating) shoulder level. The Board has considered the possibility of a rating under Code 5200 but finds that ankylosis of the shoulder is not shown. The Board has also considered the possibility of a rating under Codes 5202 and 5203 but finds that the evidence does not show impairment of the humerus (malunion, recurrent dislocation, fibrous union, nonunion, and loss of head) or impairment of the clavicle or scapula (malunion, nonunion, and dislocation). Accordingly, a rating in excess of 20 percent for the right shoulder disability is not warranted. Left Shoulder The evidence does not show that the Veteran’s left (minor) shoulder disability has been manifested by limitation of motion to 25 degrees from his side (required for the next higher, 30 percent, rating under Code 5201). On May 2015, April 2017, and May 2018 VA shoulder examinations, left shoulder flexion was consistently to 45 degrees or greater, and left shoulder abduction was consistently to 40 degrees or greater, including following repetitive use testing and as estimated during variably reported flare-ups. [Left shoulder flexion and abduction were to shoulder level or higher on May 2015 and April 2017 VA examinations.] Furthermore, clinical treatment records consistently show left shoulder flexion and abduction to approximately shoulder level (90 degrees), including in October 2016, November 2016, January 2017, August 2017, and December 2017 (unable to lift arms “beyond [emphasis added] 90 degrees”). Accordingly, the probative evidence is against a finding that at any time the Veteran’s left shoulder ROM more closely approximated limitation of motion to 25 degrees from his side, including with consideration of pain on movement, repetitive use, weight-bearing, and during variably reported flare-ups. As noted above, the Board acknowledges the Veteran’s August 2015 statement expressing disagreement with the manner in which the March 2015 VA examination was conducted (he reported that he was unable to raise his arms to shoulder level, but the examiner did it for him and made the pain intolerable). As explained above, the preponderance of the evidence is nevertheless against a higher rating as the evidence shows that on numerous occasions throughout the appeal period left shoulder ROM consistently was to (or closely approximated) shoulder level, and not 25 degrees from his side. The Board has considered the possibility of a rating under Codes 5200, 5202, and 5203, but finds that ankylosis, impairment of the humerus, and impairment of the clavicle or scapula are not shown by the evidence of record. Accordingly, a rating in excess of 20 percent for the left shoulder disability is not warranted. REASONS FOR REMAND 3. Entitlement to a TDIU rating prior to August 26, 2015. The Veteran contends that during the period in question he was unable to maintain substantially gainful employment due to his service-connected disabilities, including his bilateral shoulder disabilities. See March 2017 VA Form 21-8940. His TDIU claim was denied in an October 2017 rating decision. At the time of that rating decision, his service-connected disabilities were assigned a combined 40 percent rating prior to August 26, 2015, and 80 percent from that date. Subsequent rating decisions in November 2017 and May 2018 granted service connection for bilateral knee osteoarthritis with meniscal tears and instability, and assigned effective dates of June 2006 for such disabilities. [The Agency of Original Jurisdiction (AOJ) did not then readjudicate the TDIU claim.] The Veteran’s combined rating is now 70 percent prior to August 26, 2015, and 100 percent from that date. Accordingly, what remains for consideration is entitlement to a TDIU rating prior to August 26, 2015. As the posture of the claim for TDIU has changed (particularly now that the Veteran meets the schedular requirements under 38 C.F.R. § 4.16(a) for the period on appeal), due process requires that the AOJ be afforded initial opportunity to consider the TDIU claim considering the changed posture. The matter is REMANDED for the following: Review the expanded record (including the November 2017 and May 2018 rating decisions); arrange for any further development indicated; and readjudicate the claim for a TDIU rating prior to August 26, 2015 considering that that schedular requirements for a TDIU rating are now met prior to August 26, 2015. If TDIU prior to August 26, 2015 remains denied, issue an appropriate supplemental statement of the case and afford the Veteran and his representative opportunity to respond. GEORGE R. SENYK Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Dupont, 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.