Citation Nr: 20022452 Decision Date: 03/31/20 Archive Date: 03/31/20 DOCKET NO. 18-13 570 DATE: March 31, 2020 ORDER A rating higher than 30 percent for right shoulder degenerative joint disease is denied. A separate 20 percent rating for recurrent dislocation of the right humerus at the scapulohumeral joint as of June 16, 2014, is granted. FINDINGS OF FACT 1. At no time has the Veteran’s right shoulder range of motion been limited to 25 degrees from his side. 2. The Veteran’s right shoulder has impairment of the humerus which results in infrequent episodes of dislocation at the scapulohumeral joint CONCLUSIONS OF LAW 1. The criteria for a rating higher than 30 percent for right shoulder DJD are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.321, 4.1, 4.2, 4.7, 4.71a, Diagnostic Code (DC) 5201. 2. The criteria for a separate 20 percent rating for right shoulder recurrent dislocation are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.321, 4.1, 4.2, 4.7, 4.71a, DC 5202. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from April 1989 to April 1994. This case comes before the Board of Veterans’ Appeals (Board) on appeal of a rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). The appeal was remanded for additional development in December 2019. The Board finds that there has been substantial compliance with its remand directives, and the matter is now properly before the Board. Right Shoulder The Veteran seeks a higher rating for his right (dominant) shoulder disorder. A February 2020 rating decision increased his right shoulder rating to 30 percent as of his June 2014 claim. However, as this is not the full grant of the benefit sought on appeal, the issue remains in appellate status. Disability ratings are determined by applying the criteria set forth in VA’s Schedule for Rating Disabilities. The percentage ratings are based on the average impairment of earning capacity and individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Any reasonable doubt regarding a degree of disability will be resolved in favor of the veteran. 38 C.F.R. § 4.3. Where entitlement to compensation has already been established and an increase in disability rating is at issue, the present level of disability is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Separate higher or lower compensable evaluations may be assigned for separate periods of time if such distinct periods are shown by the competent evidence of record during the appeal, a practice known as “staged” ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007); Fenderson v. West, 12 Vet. App. 119, 126 (1999). The Veteran right shoulder disability is rated under DCs 5003-5201. Degenerative arthritis, DC 5003, is rated based upon the limitation of motion of the specific joint or joints. Under DC 5201, a 30 percent rating is assigned when motion is limited to midway between the side and shoulder level (i.e., 45 degrees). A 40 percent rating is assigned when the dominant shoulder is limited to motion to 25 degrees from the side. 38 C.F.R. § 4.71a, DC 5201. In November 2014, a VA examination of the Veteran’s right shoulder showed the Veteran reported flare-ups which were a pulling/burning/numbness feeling which increased with activity. His range of motion was flexion to 90 degrees, abduction to 90 degrees, external rotation to 60 degrees, and internal rotation to 90 degrees. Each range of motion exhibited pain. There was no pain with weightbearing or any pain on palpation. He was able to perform repetitive use testing with no loss of range of motion. The Veteran’s flare-ups were noted to occur with any use, were moderate to severe, and lasted until he was able to rest his shoulder. The Veteran’s range of motion loss, if any, was not able to be tested during a flare-up. But, pain, weakness, and lack of endurance were found to significantly limit the Veteran’s functional ability. There was no ankylosis. There was a history of recurrent dislocation of the scapulohumeral joint with infrequent episodes and guarding of movement at the shoulder level. There was no condition of the clavicle, scapula, AC joint, or sternoclavicular joint. There was no flail shoulder, nonunion, fibrous union, or malunion of the humerus. The Veteran was noted to be unable to lift with his right shoulder. In February 2020, a VA examination of the Veteran’s right shoulder showed he reported flare-ups which occurred almost weekly with weather changes. He reported having to avoid overhead reaching or lifting, pushing/pulling, with his right arm, pushups, and having to drive with his right hand low on the wheel. His range of motion was flexion to 80 degrees, abduction to 80 degrees, external rotation to 30 degrees, and internal rotation to 20 degrees. Each range of motion exhibited pain. There was no pain with weightbearing, but there was objective tenderness of the right shoulder as well as objective evidence of crepitus. He was able to perform repetitive use testing with no loss of range of motion. The Veteran’s flare-ups were noted to cause flexion to be limited to 30 degrees, abduction to be limited to 30 degrees, external and internal rotation to be limited to 5 degrees. Pain, weakness, and lack of endurance were found to significantly limit the Veteran’s functional ability. A rotator cuff condition was found. There was no ankylosis. There was no condition of the clavicle, scapula, AC joint, or sternoclavicular joint. There was no flail shoulder, nonunion, fibrous union, or malunion of the humerus. The examiner specifically found that the Veteran’s right shoulder range of motion was, during a flare-up, limited midway between the Veteran’s side and shoulder level. Based on the foregoing, the Board does not find that the evidence supports a rating higher than 30 percent for the Veteran’s right shoulder loss of motion. There is no evidence, including the Veteran’s medical records, which supports a finding that the Veteran’s right shoulder range of motion was limited to 25 degrees from his side. Indeed, neither the Veteran nor his representative had identified any evidence in the record or introduced any evidence into the record which supports a rating higher than 30 percent. As such, a rating higher than 30 percent for the Veteran’s right shoulder loss of motion must be denied. (Continued on the next page)   However, the Board does find that a separate rating for the Veteran’s right shoulder recurrent dislocation pursuant to DC 5202 is warranted as of his June 2014 request for an increase. Separate ratings may be assigned under additional diagnostic codes to adequately compensate the veteran for functional loss if rating under the additional diagnostic code would not result in assigning two different ratings for the same symptoms. See 38 C.F.R. § 4.1; Esteban v. Brown, 6 Vet. App. 259, 262 (1994). The November 2014 VA examination clearly found that the Veteran’s right shoulder had an impairment of the humerus which resulted in infrequent episodes of dislocation at the scapulohumeral joint. Pursuant to DC 5202, this warrants a 20 percent rating. JOHN Z. JONES Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Parrish, 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.