Citation Nr: 20014101 Decision Date: 02/25/20 Archive Date: 02/24/20 DOCKET NO. 16-58 769A DATE: February 25, 2020 ORDER Entitlement to a compensable initial rating for right shoulder strain is denied. Entitlement to a compensable initial rating for left shoulder strain is denied. FINDINGS OF FACT 1. The preponderance of the evidence is against a finding that the Veteran’s service-connected right shoulder strain is manifested by a reduction in range of motion or other compensable loss of function to include as due to pain, weakness, fatigability, incoordination, or other symptoms during flare-ups. 2. The preponderance of the evidence is against a finding that the Veteran’s service-connected left shoulder strain is manifested by a reduction in range of motion or other compensable loss of function to include as due to pain, weakness, fatigability, incoordination, or other symptoms during flare-ups. CONCLUSIONS OF LAW 1. The criteria for a compensable initial rating for right shoulder strain have not been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.71a, DCs 5200-5203. 2. The criteria for a compensable initial rating for left shoulder strain have not been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.71a, DCs 5200-5203. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from March 2006 to December 2006. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an October 2013 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In a December 2016 VA Form 9, Appeal to Board of Veterans’ Appeals, the Veteran requested to appear at a hearing before the Board. The Veteran failed to appear for the hearing before the Board scheduled in October 2019. She has not provided good cause reasons for her failure to appear; therefore, her hearing request is considered to be withdrawn. Increased Rating Disability ratings are determined by the applications of the VA’s Schedule for Rating Disabilities. 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during service and their residual conditions in civil occupations. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321(a), 4.1. Disability of the musculoskeletal system is primarily the inability, due to damage or infection in parts of the system, to perform the standard 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 particular respect to the joints, the disability factors 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. The provisions of 38 C.F.R. §§ 4.10, 4.40, and 4.45 shall be considered in determining the degree of limitation of motion. See DeLuca v. Brown, 8 Vet. App. 202 (1995). The intent of the schedule is to recognize painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59. When the evaluation of a disability is based on limitation of motion, the Board must also consider, in conjunction with the otherwise applicable diagnostic code, any additional functional loss the veteran may have by virtue of other factors as described in 38 C.F.R. §§ 4.40, 4.45. DeLuca, 8 Vet. App. at 206. A higher evaluation of 20 percent is not warranted for limitation of motion of the shoulder unless there is limitation of motion at shoulder level. A higher evaluation of 20 percent is not warranted unless there is painful motion of the shoulder. A higher evaluation of 20 percent is not warranted for other impairment of the humerus unless there is, recurrent dislocation of the humerus at the scapulohumeral joint with frequent episodes and guarding of all arm movements; or, recurrent dislocation of the humerus at the scapulohumeral joint with infrequent episodes and guarding of movement only at shoulder level; or, malunion of the humerus with moderate deformity. A higher evaluation of 10 percent is not warranted for impairment of the clavicle or scapula unless there is nonunion without loose movement; or, malunion. 38 C.F.R. § 4.71a, Diagnostic Codes 5201-5203. Entitlement to a compensable initial rating for left and right shoulder strain is denied. Diagnostic Code 5201 addresses limitation of motion of the arm. For the minor side, a 30 percent rating requires limitation of motion of the arm to 25 degrees from side. A 20 percent rating requires limitation of motion to midway between side and shoulder level or at shoulder level. 38 C.F.R. § 4.71a. The Veteran contends that she is entitled to compensable ratings for her right and left shoulder strain. A VA examination conducted in August 2013 revealed a normal range of motion of your right shoulder, with flexion to 180 degrees and abduction to 180 degrees. There was no limitation of motion following repetitive-use testing. Objective findings of painful motion were not identified. The Veteran’s right shoulder exhibited guarding and tenderness to palpation but was otherwise unremarkable. The August 2013 examination revealed normal range of motion of the Veteran’s left shoulder, with flexion to 180 degrees and abduction to 180 degrees. There was no limitation of motion following repetitive-use testing. Objective findings of painful motion were not identified. The Veteran’s left shoulder exhibited guarding and tenderness to palpation but was otherwise unremarkable. Based on this result, a non-compensable rating was assigned in the October 2013 rating decision. The Veteran was afforded another VA examination in June 2018. The evidence, including the June 2018 VA examination report, shows normal range of motion in both left and right shoulders. There was no evidence of pain with weight bearing bilaterally. There was no evidence of localized tenderness or pain on palpation of the joint or associated soft tissues. There was no evidence of crepitus bilaterally. The examiner noted that the Veteran was able to perform bilateral repetitive use with at least three repetitions with no additional functional loss or range of motion after repetitions. There was no reduction in muscle strength, no muscle atrophy and no ankylosis bilaterally. The evidence shows that there is no clavicle, scapula, acromioclavicular joint or sternoclavicular joint condition suspected. The examination did not reveal loss of head flail shoulders, nonunion or fibrous union of the humerus. The evidence did not show limitation of motion of the right or left arm to midway between side and shoulder level or at shoulder level, as required for a compensable rating under Diagnostic Code 5201. Consideration has been given as to whether a compensable rating for the Veteran’s bilateral shoulder is appropriate under 38 C.F.R. §§ 4.40, 4.45, and 4.59. In a November 2013 notice of disagreement, the Veteran reported having daily pain in her shoulders that often required Tylenol and heating or ice pads. In January 2018, the Veteran endorsed chronic pain in the shoulders. She said the pain prevented her from sleeping on her side for prolonged periods. A December 2018 VA treatment record noted the Veteran reported having pain in her shoulder. She reported difficulty with functional reaching, pushing, pulling, carrying and sleeping. However, despite these complaints, the Board finds that the criteria to support a compensable rating have not been met. Any limitation (functional loss) experienced by the Veteran due to bilateral shoulder pain was accounted for in the range of motion testing. The examiner specified that the Veteran did not experience functional loss or impairment of the shoulder following repeated use, and that the Veteran denied periods of flare-up. The examiner noted that the range of motion loss experienced by the Veteran did not constitute functional loss. There was likewise no evidence of pain, weakness, fatigability, or incoordination that would result in any functional loss. Muscle strength was within normal limits. A review of the Veteran’s VA treatment records also reveals no compelling evidence of functional loss of range of motion or other objective findings demonstrating lasting functional impairment during the period at issue. On appeal, neither the Veteran nor her representative have cited evidence in support of such a finding. In sum, the Board finds that the preponderance of the evidence is against a finding that the Veteran’s disability picture for the right and left shoulder strain more nearly approximates compensable ratings under the applicable rating criteria. Therefore, the Veteran’s claim for compensable initial ratings for right and left shoulder strain must be denied. K. Marenna Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Asare, 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.