Citation Nr: 20028025 Decision Date: 04/21/20 Archive Date: 04/21/20 DOCKET NO. 18-16 446 DATE: April 21, 2020 ORDER 1. A 30 percent rating for a left shoulder disability is granted from October 28, 2016, subject to regulations governing payment of monetary awards; entitlement to a rating in excess of 20 percent such disability prior to October 28, 2016 is denied. REMANDED 2. Entitlement to service connection and a separate compensable rating for left upper extremity peripheral neuropathy disability, as secondary to/a complication of a service-connected left shoulder disability is remanded. FINDING OF FACT Prior to October 28, 2016, the Veteran’s left (minor) shoulder motion was not shown to be limited to 25 degrees from the side; ankylosis of scapulohumeral articulation was not demonstrated; from October 28, 2016 it is reasonably shown to have been manifested by limitation approximating 25 degrees to the side; clavicle, scapula, acromioclavicular or sternoclavicular joint conditions, loss of head or fibrous union of the humerus and malunion of the humerus with moderate or marked deformity are not shown. CONCLUSION OF LAW A 30 percent rating is warranted for the Veteran’s service-connected left shoulder disability from October 28, 2016, but not earlier. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.10, 4.21, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes (Codes) 5200-5203. REASONS AND BASES FOR FINDING AND CONCLUSION The appellant is a Veteran who served on active duty from June 1957 to May 1959. This matter is before the Board of Veterans’ Appeals (Board) on appeal from a July 2015 rating decision that implemented the Board’s award of service connection for the left shoulder disability, assigning a 10 percent rating. A May 2016 rating decision increased the initial rating to 20 percent. In June 2018 a videoconference was held before the undersigned; a transcript is in the record. In July 2018, the matter was remanded for additional development. 1. A 30 percent rating is granted for the Veteran’s service-connected left shoulder disability from October 28, 2016; entitlement to a rating in excess of 20 percent prior to that date is denied. Disability ratings are determined by applying the criteria set forth in VA’s Schedule for Rating Disabilities (Rating Schedule). 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. The criteria for rating the upper extremities distinguish between the major (dominant) and minor (non-dominant) extremities. The Veteran’s left arm is his non-dominant, or minor, extremity. 38 C.F.R. § 4.69, 4.71a. Disabilities of the shoulder are evaluated under Codes 5200 to 5203. Under Code 5200, for ankylosis of scapulohumeral articulation (the scapula and humerus move as one), of the minor upper extremity, a 20 percent rating is warranted for favorable ankylosis, with abduction to 60 degrees and able to reach mouth and head; a 30 percent rating is warranted for intermediate ankylosis (between favorable and unfavorable); and a 40 percent rating is warranted for unfavorable ankylosis, with abduction limited to 25 degrees from the side. 38 C.F.R. § 4.71a. Under Code 5201, limitation of minor extremity motion warrants a 20 percent rating when limited at the shoulder level or midway between the side and shoulder level and a 30 percent (maximum schedular) rating when limited at 25 degrees from the side. 38 C.F.R. § 4.71a. The diagnostic code does not provide separate ratings for limitation of motion in the flexion and abduction planes, but rather is addressed generically to “limitation of motion of” the arm. Yonek v. Shinseki, 722 F.3d 1355, 1358 (Fed. Cir. 2013). Under Code 5202, other impairment of the minor extremity humerus warrants a 70 percent rating for loss of the humerus head (flail shoulder). A 50 percent rating is warranted for nonunion of the humerus (false flail joint). A 40 percent rating is warranted if there is fibrous union of the humerus. A 20 percent rating is warranted for recurrent dislocation of the humerus at the scapulohumeral joint with frequent or infrequent episodes and guarding of all arm movements or guarding of movement only at the shoulder level. A 20 percent evaluation may also be assigned for malunion of the humerus with deformity. 38 C.F.R. § 4.71a, Code 5202. Under Code 5203, impairment of the minor clavicle or scapula (malunion, nonunion, and dislocation) warrants a (maximum) 20 percent rating for dislocation of the clavicle or scapula, or nonunion of the clavicle or scapula with loose movement. A 10 percent rating is warranted for nonunion without loose movement or for malunion. 38 C.F.R. § 4.71a, Code 5203. 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; Plate I. In evaluating disabilities of the musculoskeletal system, it is necessary to consider, along with the schedular criteria, functional loss due to flare-ups of pain, fatigability, incoordination, pain on movement, and weakness. DeLuca v. Brown, 8 Vet. App. 202 (1995). Under 38 C.F.R. § 4.40, consideration must be given to functional loss due to pain and weakness causing additional disability beyond that reflected by range of motion measurements. Under 38 C.F.R. § 4.45, consideration must be given to whether there is less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, pain on movement, swelling, deformity or atrophy of disuse. Painful, unstable, or misaligned joints, due to healed injury, are entitled to at least the minimal compensable rating for the joint. 38 C.F.R. § 4.59. 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. See Mitchell v. Shinseki, 25 Vet. App. 32 (2011). When the appeal is from the initial rating assigned with an award of service connection, the entire period from the initial assignment of the disability rating to the present is to be considered, and “staged” ratings may be assigned based on facts found. See Fenderson v. West, 12 Vet. App. at 125-26 (1999). Reasonable doubt regarding the degree of disability should be resolved in favor of the claimant. 38 C.F.R. § 4.3. A claim will be denied only if the preponderance of the evidence is against the claim. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 56 (1990). A September 2011 treatment record notes the Veteran was seen with left shoulder pain which he treated with Tylenol (but finds not helpful some days). The shoulder was painful on palpation with limited range of motion noted. At a May 2015 videoconference hearing (addressing the claim for service connection) the Veteran testified that he was receiving treatment for shoulder pain (including Tylenol and Hydrocodone). He reported pain (including flare-ups), and inability to lift more than 10 pounds or raise his arm up. On March 2016 VA examination, the diagnosis was left rotator cuff tear. It was noted that the Veteran is right hand dominant. No flare-ups were reported. Functional loss included inability to lift the arm above his head. Range of motion was abnormal with flexion to 90 degrees; abduction was to 90 degrees; external rotation was to 40 degrees; and internal rotation was to 40 degrees. There was no ankylosis. Rotator cuff testing was positive. There was no clavicle, scapula, acromioclavicular or sternoclavicular joint pathology. There was no loss of head or fibrous union of the humerus. Malunion of the humerus with moderate or marked deformity was not shown. On October 28, 2016 Shoulder DBQ the diagnosis was left shoulder bicipital tendon tear, rotator cuff tendonitis, rotator cuff tear, labral tear, and joint osteoarthritis. The Veteran reported flare-ups to include the inability to move his shoulder/arm and severe pain. Functional loss reported included additional loss of range of motion, weakness, and inability to use left arm. Range of motion testing was abnormal with flexion to less than 5 percent; abduction to less than 5 percent; external rotation to less than 5 percent; and internal rotation to less than 5 percent. Pain on weight bearing, and localized tenderness or pain on palpation was shown. Muscle atrophy was noted. There was no clavicle, scapula, acromioclavicular or sternoclavicular joint pathology. There was no loss of head or fibrous union of the humerus. There was no malunion of the humerus with moderate or marked deformity. Crepitus of the left shoulder was noted. On February 2017 VA shoulder examination, the diagnoses were rotator cuff tear and degenerative arthritis. The Veteran reported flare-ups that included difficulty raising his arm and lifting it overhead. Range of motion testing was abnormal, with flexion limited to 80 degrees, abduction to 75 degrees, external rotation to 75 degrees, and internal rotation to 65 degrees. There was localized tenderness and pain on palpation. There was no ankylosis. Rotator cuff tests (Hawkins’ and Empty Can) were positive. There was no clavicle, scapula, acromioclavicular or sternoclavicular joint pathology. There was no loss of head or fibrous union of the humerus. There was no malunion of the humerus with moderate or marked deformity. Functional loss included difficulty raising the left arm lifting it overhead. On February 12, 2018 VA shoulder examination, the diagnoses were shoulder strain, shoulder impingement syndrome, rotator cuff tear, and degenerative arthritis. The Veteran reported constant (and increasing) pain in the shoulder. He indicated that he could not lift the arm above chest level. He reported flare-ups depending on weather and activity (when there is more pain and more limitation where he cannot raise the arm above shoulder level. and even lower than that). Range of motion testing was abnormal with flexion limited to 60 degrees, abduction to 40 degrees, external rotation to 0 degrees, and internal rotation to 0 degrees, and was described as “severe limitation of ROM.” Atrophy and ankylosis were not shown. Rotator cuff testing was positive (Hawkins’ and Empty Can Test, external rotation and lift off subscapularis tests could not be conducted). There was no clavicle, scapula, acromioclavicular or sternoclavicular joint pathology. There was no loss of head or fibrous union of the humerus. There was no malunion of the humerus with moderate or marked deformity. The functional impact of the left shoulder disability was that the Veteran was unable to move the left arm up or back, and has weakness in the left arm (unable to hold objects with the left arm). At the June 2018 videoconference hearing, the Veteran testified that his left shoulder disability is worsening. He testified that he can [lift the arm] to about the middle of his chest. In July 2018, the Veteran received a left shoulder cortisone injection. A July 2018 private treatment record notes the Veteran was seen with left shoulder pain and severely decreased range of motion (described as at most 15 percent range of motion). It was noted that the Veteran had significant tenderness and pain with range of motion. In July 2018 correspondence, the Veteran’s private provider described the Veteran’s left shoulder range of motion as “severely decreased” and stated that the Veteran was essentially unable to use his left upper extremity. In November 2018, the Veteran received a left arm injection. A November 2018 MRI found mild degenerative changes with small joint effusion. The impression was mild tendinosis, mild muscle atrophy, and mild degenerative changes of the acromioclavicular and glenohumeral joints. A December 2018 physical therapy consultation report notes the Veteran was seen for left shoulder pain. He reported difficulty with dressing, showering, driving household/yard chores and reaching overhead. Rotator cuff testing (left shoulder crossover, Hawkins’, and Neer tests) was positive. Diminished range of left arm motion was noted. A February 2019 treatment record notes the Veteran received physical therapy for the left shoulder. A March 2019 treatment record notes the Veteran was seen with left shoulder pain. He reported difficulty with dressing, showering, driving, household/yard chores, and reaching overhead. In April 2019, the Veteran was seen for left shoulder pain. Range of motion testing was abnormal with flexion to 55 degrees, abduction to 90 degrees, and external rotation to 35 degrees. On October 2019 shoulder examination, the diagnoses were shoulder impingement syndrome; rotator cuff tendonitis; rotator cuff tear; labral tear; arthritis. The Veteran reported flare-ups occurred twice a week (and lasted 8 to 12 hours). Range of motion testing was abnormal with flexion limited to 60 degrees, abduction to 60 degrees, external rotation to 10 degrees, and internal rotation to 10 degrees. Pain contributing to functional loss was noted on flexion, abduction, external rotation and internal rotation. There was no muscle atrophy or ankylosis. Rotator cuff tests were all positive. AC joint arthritis was noted. There was no loss of head or fibrous union of the humerus, or malunion of the humerus with moderate or marked deformity. The Veteran’s left (minor) shoulder disability has been assigned a 20 percent rating under Code 5201 for limitation of arm motion (at the shoulder or midway between the shoulder and side). Initially the Board notes that applicability of Codes 5200 and 5203 have been considered. However, nothing in the evidence suggests that the left shoulder is ankylosed or that there is malunion or nonunion of the clavicle or scapula that would warrant ratings under those Codes. See 38 C.F.R. § 4.71a. Prior to October 28, 2016 At no time prior to October 28, 2016 is the Veteran’s left shoulder disability shown to have been manifested by limitation of the arm to 25 degrees from the side, to warrant the next higher (30 percent) rating, even with consideration of pain on motion and during flare-ups (he was reporting that he could not lift the arm above his head); on March 2016 examination, flexion and abduction were to 90 degrees; external rotation was to 40 degrees; and internal rotation was to 40 degrees. Accordingly, prior to October 28, 2016 a rating higher than 20 percent was not warranted under Code 5201. The Board has considered whether a separate, or alternate, rating under Code 5202 is applicable to the Veteran’s left shoulder disability. The critical element in permitting the assignment of more than one evaluation under different diagnostic codes is that none of the symptomatology for any one of the conditions is duplicative or overlapping with the symptomatology of another condition. See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994); see also VAOPGCPREC 23-97. As both Codes 5201 and 5202 involve limited range of arm motion and the Veteran is already being compensated for painful limitation of motion under Code 5201, the Board finds that a separate rating under Code 5202 would violate the prohibition on pyramiding. 38 C.F.R. § 4.14. The Board has also considered whether factors such as functional impairment and pain, including during flare-ups, under 38 C.F.R. §§ 4.10, 4.40, and 4.45 would warrant a higher rating for the Veteran’s left shoulder disability. See DeLuca, 8 Vet. App. 202. The VA examination report and treatment records establish that the Veteran had pain on motion, weakness, and fatigability of his left shoulder. However, a higher rating is not warranted because there is no persuasive evidence of additional functional loss due to pain, weakness, fatigue, or incoordination to a degree warranting a rating in excess of 20 percent; the Veteran’s own descriptions of such functional limitation do not reflect limitation to (or approximating) 25 degrees from the side. Accordingly, prior to October 28, 2016 a rating in excess of 20 percent was not warranted. From October 28, 2016 Initially, the Board finds that rating under diagnostic codes alternate to, or additional to, Code 5201 is not warranted. See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994); see also VAOPGCPREC 23-97. As Codes 5201 and 5202 both consider limitation of motion (and criteria under Code 5202 are not more favorable) rating the disability under Code 5202 or both 5201 and 5202 would be inappropriate. See 38 C.F.R. § 4.14. The Veteran is not shown to have the pathology required for rating the disability under other diagnostic codes. Considering the overall disability picture presented by the Veteran’s left shoulder disability from October 28, 2016 (including reports of the Veteran’s limited use of his left shoulder (particularly during flare-ups), the Board finds that the disability picture present from that date, while not fully meeting the criteria for a 30 percent rating under Code 5201, more nearly approximates such criteria. Examinations from October 28, 2016 note flare-ups when there is greater limitation of left shoulder motion than that found on the VA examinations conducted. The Veteran’s private provider opined that the Veteran’s range of motion was “severely decreased.” The Board observed that while private providers reported ranges of motion in estimates of percentages (rather than in degrees of limitation of motion), and are therefore inadequate for rating purposes, they are nonetheless competent evidence for consideration. As there is persuasive evidence of additional functional loss due to pain, weakness, fatigue, or incoordination due to pain and flare-ups to a degree approximating limitation of motion to 25 degrees from the side, the Board finds that a 30 percent rating for the left shoulder disability is warranted from the October 28, 2016 date when a private DBQ first noted such limitations. 38 C.F.R. §§ 4.3, 4.7. The Board has considered whether a rating in excess of 30 percent may be warranted. As the 30 percent rating assigned for the shoulder from October 28, 2016 is the maximum schedular rating for a minor joint under Code 5201, the analysis turns to whether a higher rating may be warranted (for a greater degree of functional limitation than is reflected under Code 5201 criteria). For that the analysis turns to the criteria in Code 5200 (under which a 40 percent rating is warranted for ankylosis of the shoulder with abduction limited to 25 degrees from the side). While the Board found, above, that the Veteran has limitation of abduction to 25 degrees from the side, no examiner, VA or private, has found, and the Veteran has not alleged, including in his hearing testimony that he can bring the arm up to the chest, that his shoulder is ankylosed. The Board notes that in February 2016 correspondence, the Veteran’s representative had requested referral for extra-schedular consideration. However, the record does not suggest that the rating criteria are inadequate for rating the Veteran’s left shoulder disability, to warrant such referral. The effects of his service-connected left shoulder disability are fully considered by the schedular criteria. Thus, those criteria are not inadequate. Thun v. Peake, 22 Vet. App. 111 (2008). REASONS FOR REMAND 2. Entitlement to service connection/a separate compensable rating for left upper extremity peripheral neuropathy, claimed as secondary to/a manifestation of the Veteran’s service-connected left shoulder disability. The Board finds that further development is necessary for proper adjudication of this claim. At a hearing and in writing by his representative, it was argued that the Veteran has left upper extremity peripheral neuropathy as a manifestation of, or is secondary to, his service-connected left shoulder disability, warranting a separate compensable rating under criteria for rating peripheral neuropathy. The July 2018, Board Remand referred the matter to the AOJ for development. The remand included specific instructions for the VA examiner to indicate whether the veteran has peripheral neuropathy of the left upper extremity secondary to his service-connected left shoulder disability. [The Board observes that while the remanded issue was referred to the AOJ (because the AOJ had not yet adjudicated the matter), an opinion indicating that the Veteran does have peripheral neuropathy that is part and parcel of the service-connected shoulder disability would bring the matter within the scope of the claim decided above (but not inextricably intertwined because the disabilities would be separately rated, permitting the determination above to proceed). Thus there is potential Board jurisdiction that may require further Board consideration as part of the matter decided above.] The October 2019 VA examiner’s opinion [that muscle weakness is attributable to the orthopedic service-connected disability] was not adequately responsive to the Board’s inquiry whether the Veteran has left upper extremity peripheral nerve disability. Considering the discussion above, there has not been substantial compliance with the Board’s remand directives, and corrective action is necessary. See Stegall v. West, 11 Vet. App. 268, 271 (1998); Barr v. Nicholson, 21 Vet. App. 303 (2007). The matter is REMANDED for the following: (1) Arrange for a peripheral nerves examination of the Veteran to determine whether he has left upper extremity peripheral neuropathy disability and, if so, the likely etiology of such disability. The Veteran’s record (including this remand) must be reviewed by the examiner in conjunction with the examination. The opinions should respond to the following: (a) Does the Veteran have a left upper extremity peripheral neuropathy disability? Identify the clinical findings that supports the response. (b) If so, is it at least as likely as not (a 50% or better probability) that the disability is a manifestation (part and parcel of) his service-connected left shoulder disability? (c) If not identify the etiology for the left upper extremity peripheral neuropathy that is considered to be more likely, and explain why that is so. The examiner must include rationale with all opinions. (2) Then adjudicate the claim of service connection for peripheral neuropathy of the left upper extremity. If the claim is allowed (service connection for left upper extremity peripheral neuropathy is granted as part and parcel of the service connected left shoulder disability already service-connected disability), assign an effective date and rating for the disability, and advise the Veteran that if he disagrees with such, the matter of whether a separate compensable rating is warranted for neurological manifestations of the service-connected remains pending before the Board. If he disagrees, issue a supplemental statement of the case, and return the matter to the Board for further consideration. If service connection for peripheral neuropathy of the left upper extremity is denied, or granted on a basis other than being a manifestation of a service-connected left should disability, advise the Veteran that to appeal that determination, he must file a notice of disagreement for the Board to have jurisdiction in the matter. GEORGE R. SENYK Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board N. Staskowski, 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.