Citation Nr: 20042005 Decision Date: 06/19/20 Archive Date: 06/19/20 DOCKET NO. 03-29 660 DATE: June 19, 2020 ORDER Entitlement to an initial rating in excess of 20 percent for left shoulder disability diagnosed as degenerative joint disease (minor) is denied. Entitlement to an initial rating in excess of 20 percent for left shoulder impingement (minor) is denied. FINDINGS OF FACT 1. The Veteran’s left shoulder disability diagnosed as degenerative joint disease is manifested by no worse than limitation of motion of the minor arm at shoulder level. 2. The Veteran’s left shoulder impingement (minor) manifests no worse than painful motion of the left shoulder. CONCLUSIONS OF LAW 1. The criteria for an initial rating in excess of 20 percent for left shoulder disability diagnosed as degenerative joint disease have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5010-5201. 2. The criteria for an initial rating in excess of 20 percent for left shoulder impingement (minor) have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5202. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from February 1969 to December 1969. These matters come before the Board of Veterans’ Appeals (Board) on appeal of an October 2009 rating decision by a Regional Office (RO) of the Department of Veterans Affairs (VA). This case was previously remanded by the Board in October 2012, July 2014, January 2016, and September 2018. A review of the claims file shows that there has been substantial compliance with the Board’s remand directives. See Stegall v. West, 11 Vet. App. 268 (1998). The case has been returned to the Board for review. In an April 2020 rating decision, the Agency of Original Jurisdiction (AOJ) increased the rating for the Veteran’s left shoulder degenerative joint disease (minor) to 20 percent, effective October 21, 2002. As the increase did not satisfy the appeal in full, the issue remains on appeal and has been characterized as shown on the title page of this decision. See AB v. Brown, 6 Vet. App. 35 (1993). In September 2018, the Board remanded the claim of entitlement to a total rating based on individual unemployability due to service-connected disability (TDIU) for additional development. The April 2020 rating decision granted entitlement to a TDIU effective March 24, 2003. The evidence of record reflects that the Veteran was last gainfully employed on March 23, 2003. As such, the grant of entitlement to a TDIU represents a total grant of the benefit sought on appeal with respect to this issue, it is no longer before the Board. See Grantham v. Brown, 114 F. 3d 1156, 1159 (Fed. Cir. 1997). In September 2018, the Board remanded the claim of entitlement to service connection for urinary bladder cancer for additional development. A September 2019 rating decision granted entitlement to service connection for urinary bladder cancer. As this represents a total grant of the benefit sought on appeal with respect to this issue, it is no longer before the Board. See Grantham v. Brown, 114 F. 3d 1156, 1159 (Fed. Cir. 1997). Increased Rating Disability ratings are determined by the application of VA’s Schedule for Rating Disabilities (Schedule), which is based on the average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Pertinent regulations do not require that all cases show all findings specified by the Schedule, but that findings sufficient to identify the disease and the resulting disability and, above all, coordination of the rating with impairment of function will be expected in all cases. 38 C.F.R. § 4.21; see also Mauerhan v. Principi, 16 Vet. App. 436 (2002). When after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability such doubt will be resolved in favor of the claimant. 38 C.F.R. § 4.3. 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 whether separate ratings may be assigned for separate periods of time based on facts found, a practice known as “staged ratings,” in all claims for increased ratings. Fenderson v. West, 12 Vet. App. 119, 126-27 (1999). In rating 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). The functional loss may be due to absence of part, or all, of the necessary bones, joints and muscles, or associated innervation, or other pathology and evidenced by 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. 38 C.F.R. § 4.40. Pain on movement, swelling, deformity, or atrophy of disuse as well as instability of station, disturbance of locomotion, interference with sitting, standing, and weight bearing are relevant considerations for determination of joint disabilities. 38 C.F.R. § 4.45. Painful, unstable, or malaligned joints, due to healed injury, are entitled to at least the minimal compensable rating for the joint. 38 C.F.R. § 4.59; Burton v. Shinseki, 25 Vet. App. 1 (2011) (holding that 38 C.F.R. § 4.59 applies to disabilities other than arthritis). However, painful motion alone is not a functional loss without some restriction of the normal working movements of the body. Mitchell v. Shinseki, 25 Vet. App. 32, 43 (2011). 1. Entitlement to a higher initial rating for left shoulder disability diagnosed as degenerative joint disease is denied. 2. Entitlement to a higher initial rating for left shoulder impingement is denied. The Veteran seeks a higher initial rating for his service-connected left shoulder disability diagnosed as degenerative joint disease. The Veteran’s service-connected left shoulder degenerative joint disease is rated as 20 percent disabling under 38 C.F.R. § 4.71a, Diagnostic Code 5010-5201. The applicable rating period is from October 21, 2002, the effective date for the award of service connection for left shoulder degenerative joint disease, through the present. See 38 C.F.R. § 3.400. The hyphenated code signals that the rating was assigned on the basis of residual conditions under the diagnostic code regarding arthritis, under the basic disease listed in Diagnostic Code 5202, regarding impairment of the humerus. See 38 C.F.R. § 4.27. The Veteran also seeks a higher initial rating for his service-connected left shoulder impingement (minor). The Veteran’s service-connected left shoulder impingement is rated as 20 percent disabling under 38 C.F.R. § 4.71a, Diagnostic Code 5202. The applicable rating period is from October 21, 2002, the effective date for the award of service connection for left shoulder impingement, through the present. See 38 C.F.R. § 3.400. The rating criteria for evaluating disabilities of the shoulder distinguish between the major (dominant) extremity and the minor (non-dominant) extremity. See 38 C.F.R. § 4.69. Because the record on appeal establishes that the Veteran is right-handed, the criteria for rating disabilities of the minor extremity are for application. Under Diagnostic Code 5201, limitation of motion of the arm at shoulder level warrants a 20 percent rating for the minor extremity. Limitation of motion of the arm midway between the side and shoulder level warrants a 20 percent rating for the minor extremity. Limitation of motion of the arm to 25 degrees from the side warrants a maximum 30 percent rating for the minor extremity. Diagnostic Code 5201 “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). Therefore, separate ratings may not be awarded based on limited flexion and limited abduction of the same arm. Under Diagnostic Code 5202, for the minor upper extremity, a 20 percent rating is provided for malunion of the humerus with moderate or marked deformity. For recurrent dislocation of the minor humerus at the scapulohumeral joint, a 20 percent rating is provided with infrequent episodes and guarding of movement only at shoulder level, or with frequent episodes and guarding of all arm movements. A 40 percent rating is warranted for fibrous union of the humerus for the minor extremity. A 50 percent rating is provided for nonunion or false flail joint of the minor extremity. Finally, a 70 percent rating is warranted for loss of the humeral head, also known as flail shoulder for the minor extremity. 38 C.F.R. § 4.71a, Diagnostic Code 5202. The Board finds that the preponderance of the evidence is against a rating in excess of 20 percent for left shoulder degenerative joint disease. The evidence of record, to include the June 2019 VA examination report, shows that the Veteran’s right arm is his dominant arm. The Board acknowledges the Veteran’s reports of symptoms and that there was functional loss due to pain, weakness, and loss of motion. However, even considering the Veteran’s lay reports of symptoms and noted functional loss, the degree of additional limitation reflected by his statements would not result in symptoms more nearly approximating limitation of motion of the arm to 25 degrees from the side. VA treatment records reflect the Veteran’s reports of left shoulder pain, but do not contain range-of-motion measurements for the Veteran’s left shoulder. At the March 2006 VA examination, the Veteran reported left shoulder pain and the inability to hold objects more than 10 pounds. On examination, the Veteran had full range of motion in all directions and 5 out of 5 strength in the left shoulder. There was evidence of pain on flexion of the left shoulder. At the November 2008 VA examination, the Veteran reported that he has left shoulder pain. The VA examiner noted that the Veteran has impingement from multiple loose bodies within the shoulder and bone spurs. There were no acute fractures or dislocation. The Veteran was provided a VA examination in May 2010. The Veteran reported left shoulder pain that affects motion of the joint. The Veteran further reported mild to severe flare-ups in cold weather. Upon examination, the Veteran demonstrated left shoulder flexion to 155 degrees and left shoulder abduction to 160 degrees. There was no objective evidence of painful motion or additional limitation with repetitive motion. The Veteran was provided a VA examination in May 2013. The VA examiner reviewed the record, interviewed the Veteran and conducted an in-person examination. The Veteran reported he cannot lift heavy objects with his left arm. The Veteran did not report flare-ups of the left shoulder. Upon examination, the Veteran demonstrated left shoulder flexion to 170 degrees and left shoulder abduction to 160 degrees. The Veteran was able to perform repetitive use testing without additional loss of range of motion. The Veteran demonstrated muscle strength of 5 out of 5 for the left shoulder. The Veteran was provided a private shoulder examination in April 2014. The Veteran reported that he is unable to raise his left arm into flexion or abduction without assistance from his right arm. The private examiner reported that muscle strength was 3 out of 5. The Veteran was provided a VA shoulder examination in April 2017. The VA examiner reviewed the record, interviewed the Veteran and conducted an in-person examination. The Veteran reported daily left shoulder pain and difficulty lifting with his left upper extremity. He did not report flare-ups of the left shoulder. Upon examination, the Veteran demonstrated left shoulder flexion to 160 degrees and left shoulder abduction to 160 degrees. The Veteran was not able to perform repetitive use testing of the left shoulder. He demonstrated left shoulder muscle strength of 5 out of 5. He did not have ankylosis of the left shoulder. The Veteran did not demonstrate loss of head, nonunion, or fibrous union of the humerus. Additionally, he did not report dislocation or labral pathology. The Veteran was provided a VA examination in June 2019. The VA examiner reviewed the record, interviewed the Veteran and conducted an in-person examination. The Veteran reported problems with his left shoulder and an inability to lift with his left hand. He further reported pain in his left shoulder with any weight bearing. Upon examination, the Veteran demonstrated left shoulder flexion to 140 degrees and left shoulder abduction to 120 degrees. The Veteran was able to perform repetitive use testing without additional loss of range of motion. He demonstrated left shoulder muscle strength of 5 out of 5. The Veteran did not demonstrate loss of head, nonunion, or fibrous union of the humerus. Additionally, he did not report dislocation or labral pathology. Thus, throughout the relevant rating period, the Veteran’s service-connected left shoulder disability was manifested by pain, weakness, and limited motion with abduction limited to, at most, 120 degrees. Under Diagnostic Code 5201, a 20 percent rating is assigned for limitation of motion the minor arm to shoulder level, which is 90 degrees. A higher rating of 30 percent is not for assignment unless motion is limited to 25 degrees from the side, which has not been shown at any time during the relevant period in this case. Thus, the range-of-motion measurements and symptoms of the Veteran’s left shoulder degenerative joint disease recorded during the relevant rating period are consistent with a rating of 20 percent, and no higher, under Diagnostic Code 5201. The Board has considered whether the Veteran was entitled to a higher rating at any time during the relevant period under the criteria set forth in DeLuca. The June 2019 VA examiner found that, following repetitive-use testing, the Veteran did not have additional functional loss due to pain, fatigability, incoordination, pain on movement, or weakness. Accordingly, although the Veteran experiences pain with motion, such pain has not manifested to a degree that more nearly approximates the criteria for a higher rating under Diagnostic Code 5201 even after repetitive use, upon repetitive use over time, or during flare-ups. See DeLuca, 8 Vet. App. 202. The Board finds that the Veteran’s complaints of painful motion of the left shoulder did not impair his functioning to a degree such that the criteria for a rating in excess of 20 percent were more closely approximated. See Mitchell, 25 Vet. App. 32. With regard to the Veteran’s left shoulder impingement, the Board finds that a rating higher than 20 percent under Diagnostic Code 5202 is not warranted at any point during the appeal period. At the November 2008, April 2017 and June 2019 VA examinations, the Veteran did not report dislocation of the left shoulder. Additionally, the April 2017 and June 2019 VA examiners reported that the Veteran did not have loss of head, nonunion, or fibrous union of the humerus. As such, a rating higher than 20 percent under Diagnostic Code 5202 is not warranted at any point during the appeal period. The Board has considered whether any other diagnostic codes related to disabilities of the shoulder would provide for a higher disability rating. However, the evidence does not reflect that the other relevant diagnostic codes are applicable in this case. The record does not show that the Veteran has ankylosis of the scapulohumeral articulation or impairment of the scapula or clavicle. See 38 C.F.R. § 4.71a, Diagnostic Codes 5200 and 5203. The Board therefore finds that the criteria for entitlement to an initial rating in excess of 20 percent for the Veteran’s left shoulder impingement and in excess of 20 percent for his left shoulder degenerative joint disease have not been met at any time during the rating period. Accordingly, there is no basis for staged ratings of the disabilities pursuant to Fenderson, 12 Vet. App. at 126-27. As the preponderance of the evidence is against the assignment of higher initial ratings, the benefit-of-the-doubt doctrine is not for application, and the appeals must be denied. 38 U.S.C. § 5107 (b); see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record. See Yancy v. McDonald, 27 Vet. App. 484, 495 (2016); Doucette v. Shulkin, 38 Vet. App. 366, 369-70 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). U. R. POWELL Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board B. G. LeMoine 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.