Citation Nr: 20036724 Decision Date: 05/28/20 Archive Date: 05/28/20 DOCKET NO. 16-43 091 DATE: May 28, 2020 ORDER Entitlement to 20 percent rating for a right shoulder disability prior to July 7, 2016 is granted, subject to the laws and regulations governing the award of monetary benefits. Entitlement to a rating greater than 20 percent after July 7, 2016 is denied. FINDINGS OF FACT 1. The record reflects that prior to July 7, 2016, the Veteran’s right shoulder manifested painful motion. 2. Throughout the entire period on appeal, the Veteran’s right shoulder was not limited in motion to midway between the side and shoulder level. CONCLUSIONS OF LAW 1. The criteria for entitlement to a 20 percent rating for a right shoulder disability prior to July 7, 2016 have been met. 38 U.S.C. § 1155, 5103A, 5107; 38 C.F.R. § 4.59, 4.71a, Diagnostic Code (DC) 5019-5201. 2. The criteria for entitlement to a rating greater than 20 percent for a right should disability have not been met. 38 U.S.C. § 1155, 5103A, 5107; 38 C.F.R. § 4.71a, DC 5019-5201. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from February 2003 to May 2003, from December 2003 to February 2005 and from October 2005 to September 2006. Entitlement to a compensable rating for a right shoulder disability prior to July 7, 2016, and greater than 20 percent thereafter The Veteran contends that he is entitled to a compensable disability rating prior to July 7, 2016 and greater than 20 percent thereafter. Ratings for service-connected disabilities are determined by comparing the Veteran’s symptoms with criteria listed in VA’s Schedule for Rating Disabilities, which is based, as far as practically can be determined, on average impairment in earning capacity. Separate diagnostic codes identify the various disabilities. 38 C.F.R. Part 4. When rating a service-connected disability, the entire history must be borne in mind. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. The Board will consider entitlement to staged ratings to compensate for times since filing the claim when the disability may have been more severe than at other times during the course of the claim on appeal. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). 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. It is essential that the examination upon which ratings are based adequately portray the anatomical damage, and the functional loss, with respect to all these elements. The functional loss may be due to absence of part, or all, of the necessary bones, joints and muscles, or associated structures, or to deformity, adhesions, defective innervation, or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by the visible behavior of the claimant 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. A little used part of the musculoskeletal system may be expected to show evidence of disuse, either through atrophy, the condition of the skin, absence of normal callosity or the like. 38 C.F.R. § 4.40. Raters must analyze the evidence of pain, weakened movement, excess fatigability, or incoordination and determine the level of associated functional loss in light of 38 C.F.R. § 4.40, taking into account any part of the musculoskeletal system that becomes painful on use. DeLuca v. Brown, 8 Vet. App. 202 (1995). The provisions regarding pyramiding do not forbid consideration of a higher rating based on greater limitation of motion due to pain on use, including flare-ups. 38 C.F.R. § 4.14. The guidance provided by the Court in DeLuca must be followed in adjudicating claims where a rating under the diagnostic codes governing limitation of motion should be considered. The intent of the rating schedule is to recognize painful motion with joint or periarticular pathology as productive of disability. It is the intention to recognize actually 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. With respect to the joints, the factors of disability reside in reductions of their normal excursion of movements in different planes. Inquiry will be directed to these considerations: (a) less movement than normal (due to ankylosis, limitation or blocking, adhesions, tendon-tie-up, contracted scars, etc.); (b) more movement than normal (from flail joint, resections, nonunion of fracture, relaxation of ligaments, etc.); (c) weakened movement (due to muscle injury, disease or injury of peripheral nerves, divided or lengthened tendons, etc.); (d) excess fatigability; (e) incoordination, impaired ability to execute skilled movements smoothly; and (f) pain on movement, swelling, deformity or atrophy of disuse. Instability of station, disturbance of locomotion, interference with sitting, standing and weight-bearing are related considerations. 38 C.F.R. § 4.45. For the purpose of rating disabilities, the shoulder and cervical spine are each considered a major joint. 38 C.F.R. § 4.45. The Veteran’s right shoulder disability, currently diagnosed as a partial intrasubstance tear of subscapularis with rotator cuff tendonitis and subacromial/subdeltoid bursitis, was assigned a noncompensable rating prior to July 7, 2016 and 20 percent thereafter under 38 C.F.R. § 4.71a, DC 5019-5201. The hyphenated diagnostic code in this case indicates the musculoskeletal disability of bursitis, under DC 5019 is evaluated on the basis of limitation of motion, which is found under Diagnostic Code 5201. 38 C.F.R. § 4.71a. The Veteran is right-handed; the right shoulder disorder affects his major arm. Under Diagnostic Code 5019, limitation of motion to the shoulder level warrants a 20 percent rating for both the major and minor arms. Limitation of the major arm to midway between the side and shoulder warrants a 30 percent rating, while the minor arm warrants a 20 percent rating. Limitation to 25 degrees from the side warrants a 40 percent rating for the major arm while the minor arm warrants a 30 percent rating. In considering the applicability of other diagnostic codes, the Board finds that DCs 5200, 5202, and 5203, which pertain to ankylosis of the shoulder, impairment of the clavicle and scapula, and recurrent dislocations of the scapulohumeral joint, do not apply. Specifically, VA examinations and the treatment records do not show the presence of any of these conditions. Accordingly, the criteria pertaining to those conditions are not applicable. 38 C.F.R. § 4.71a, DC’s 5200, 5202, 5203. Normal forward flexion of the shoulder is 0 to 180 degrees; abduction is 0 to 180 degrees; and internal and external rotation are from 0 to 90 degrees. 38 C.F.R. § 4.71a, Plate I. Forward flexion and abduction to 90 degrees amounts to shoulder level. The Veteran was given a VA examination in April 2015. The Veteran reported to the examiner that he has constant pain in his right shoulder, and that for a while he couldn’t throw a football with his son as he is right-handed. The Veteran’s range of motion (ROM) testing was as follows: right shoulder flexion was 0 to 165 degrees; abduction was 0 to 165 degrees. The left shoulder flexion was 0-180 degrees and abduction was also 0 to 180 degrees. The examiner also explained that “Pain and weakness are likely to occur when the joint is used repeatedly over time. Flares could cause additional loss of motion, but actual additional loss cannot be determined unless an examiner is present to objectively measure any additional loss.” The Veteran was given a VA examination in July 2016 where he reported to the examiner that he has a daily dull ache in the right shoulder. The Veteran localized the ache to the posterior joint space. The Veteran further reported that his pain worsens with overhead motions such as with an over-hand throwing motion. On ROM testing, there was a painful response as follows: right shoulder flexion was 0 to 165 degrees; abduction was 0 to 130 degrees with pain. The left shoulder flexion was 0-180 degrees and abduction was also 0 to 180 degrees. The examiner also noted that during “lift off - subscapularis testing, there is weakness as compared to the left (non-dominant) side.” There was also there was no evidence of pain during non-weight bearing testing of the right and left shoulder. The Veteran submitted a private opinion from March 2017. The private opinion provider stated that the Veteran’s September 2014 MRI showed a small partial intrasubstance tear of the subscapularis. This finding would be consistent with the Veteran’s complaints of discomfort and with an active flare up he could have significant pain and functional limits in the area of injury. Based on the evidence, the Board finds that prior to July 7, 2016, a 20 percent rating for the Veteran’s right shoulder is warranted. The April 2015 VA examination and March 2017 private opinion, medical treatment records and the Veteran’s statements show that the Veteran consistently experienced painful motion in his right shoulder. Under 38 C.F.R. § 4.59, painful motion of a major joint, such as the shoulder, warrants compensation at the minimum compensable rating for the joint, which under DC 5019-5021 is 20 percent. See Sowers v. McDonald, 27 Vet. App. 472 (2016). The July 2016 VA examination shows that the ROM of the Veteran’s right shoulder is limited to shoulder level which also warrants a 20 percent disability rating under 38 C.F.R. § 4.71a, DC 5201. A higher rating is not warranted for the Veteran’s right shoulder disability because the evidence does not support a finding that his right shoulder ROM was restricted to midway between his side and shoulder level at any time during the period on appeal. Id. The Board has considered the competent statements of the Veteran as to the extent of his symptoms. Layno v. Brown, 6 Vet. App. 465 (1994). While he is competent to report his various symptoms, the training and experience of medical personnel makes the medical findings found in treatment notes and examinations more probative as to the extent of the disability. See Cromley v. Brown, 7 Vet. App. 376 (1995). In summary, the preponderance of evidence shows that the Veteran’s is entitled to a 20 percent rating prior to July 2016, but no higher, for his right shoulder disability. The Veteran’s claim for a rating greater than 20 percent for his right shoulder disability is denied. M.E. Larkin Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. G. Perkins, 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.