Citation Nr: 20043741 Decision Date: 06/29/20 Archive Date: 06/29/20 DOCKET NO. 14-34 018 DATE: June 29, 2020 ORDER Entitlement to an increased disability rating of 40 percent, but no higher, for a right shoulder disability for the period beginning October 18, 2019, is granted. Entitlement to a disability rating in excess of 20 percent for a right shoulder disability for the period prior to October 18, 2019, is denied. FINDINGS OF FACT 1. From October 18, 2019, the preponderance of the evidence shows that the Veteran’s right shoulder disability was manifested by limitation of motion of the major arm to 25 degrees from the side when incorporating functional loss due to the factors set forth in 38 C.F.R. §§ 4.40 and 4.45. 2. From October 18, 2019, the preponderance of the evidence shows that the Veteran’s right shoulder disability was not manifested by ankylosis of scapulohumeral articulation; fibrous union of the humerus; nonunion of the humerus, or flail shoulder, loss of head of humerus. 3. Prior to October 18, 2019, the preponderance of the evidence shows that the Veteran’s right shoulder disability was not manifested by ankylosis of scapulohumeral articulation; malunion of the humerus with marked deformity; recurrent dislocations of the humerus at the scapulohumeral joint; fibrous union of the humerus; nonunion of the humerus; flail shoulder, loss of head of humerus; or limitation of the major arm to midway between side and shoulder level. CONCLUSIONS OF LAW 1. From October 18, 2019, the criteria for disability rating of 40 percent, but no higher, for a right shoulder disability are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.40, 4.45, 4.71a. 2. Prior to October 18, 2019, the criteria for disability rating in excess of 20 percent for a right shoulder disability are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.40, 4.45, 4.71a. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from March 1980 to March 1983 and from August 2004 to October 2005. This claim comes before the Board of Veterans’ Appeals (Board) on appeal of an April 2014 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO). In April 2018, this matter was remanded by the Board for additional development. It has now returned to the Board for further appellate review. As an initial matter, the Board notes that, during the pendency of the appeal, a January 2020 rating decision granted the Veteran an increased disability rating of 30 percent for his service-connected right shoulder condition effective October 18, 2019. As the claim for entitlement to an increased rating for a right shoulder disability was not granted for the entire claims period or for a 100 percent disability rating, it is considered a partial grant and bifurcates the claim. Accordingly, an increased rating claim for a right shoulder disability prior to October 18, 2019, and an increased rating claim for a right shoulder disability from October 18, 2019, are both presently before the Board and will be addressed herein. Increased Ratings Disability evaluations are determined by the application of a schedule of ratings which is based, as far as can practically be determined, on the average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Each service-connected disability is rated on the basis of specific criteria identified by Diagnostic Codes. 38 C.F.R. § 4.27. When rating the Veteran’s service-connected disability, the entire medical history must be borne in mind. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). 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). Regulations require that where there is a question as to which of two evaluations is to be applied, the higher evaluation 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 assignment of a particular diagnostic code to evaluate a disability is “completely dependent on the facts of a particular case.” See Butts v. Brown, 5 Vet. App. 532, 538 (1993). One diagnostic code may be more appropriate than another based on such factors as an individual’s relevant medical history, the diagnosis, and demonstrated symptomatology. The intent of the rating schedule is to recognize painful motion with joint or periarticular pathology as productive of disability. Thus, with or without degenerative arthritis, 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; see Burton v. Shinseki, 25 Vet. App. 1, 5 (2011) (holding that the provisions of 38 C.F.R. § 4.59 are not limited to disabilities involving arthritis). Moreover, when evaluating musculoskeletal disabilities, VA may, in addition to applying the schedular criteria, assign a higher disability rating when the evidence demonstrates functional loss due to limited or excessive movement, pain, weakness, excessive fatigability, or incoordination, to include during flare-ups and with repeated use, if those factors are not considered in the rating criteria. See 38 C.F.R. § § 4.40, 4.45, 4.59; see also DeLuca v. Brown, 8 Vet. App. 202 (1995); Burton, 25 Vet. App. at 5. Nonetheless, a disability rating higher than the minimum compensable rating is not assignable under any diagnostic code relating to range of motion where pain does not cause a compensable functional loss. Rather, the “pain must affect some aspect of ‘the normal working movements of the body’ such as ‘excursion, strength, speed, coordination, and endurance,” as defined in 38 C.F.R. § 4.40, before a higher rating may be assigned. See Mitchell v. Shinseki, 25 Vet. App. 32, 37 (2011) (noting that while “pain may cause a functional loss, pain itself does not constitute a functional loss,” and, is therefore, not grounds for entitlement to a higher disability rating). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under the laws administered by VA. VA shall consider all information and medical and lay evidence of record. Where there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). In evaluating the evidence in any given appeal, it is the responsibility of the Board to weigh the evidence and decide where to give credit and where to withhold the same and, in so doing, accept certain medical opinions over others. Schoolman v. West, 12 Vet. App. 307, 310-11 (1999). In this regard, the Board has been charged with the duty to assess the credibility and weight given to evidence. Davidson v. Shinseki, 581 F. 3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007). Indeed, the Court has declared that in adjudicating a claim, the Board has the responsibility to do so. Bryan v. West, 13 Vet. App. 482, 488-89 (2000). In doing so, the Board is free to favor one medical opinion over another, provided it offers an adequate basis for doing so. See Owens v. Brown, 7 Vet. App. 429, 433 (1995). Entitlement to disability ratings for a right shoulder disability in excess of 30 percent from October 18, 2019, and in excess of 20 percent prior to October 18, 2019. The Veteran’s service-connected right shoulder disability is currently rated as 30 percent disabling under DC 5003 (arthritis, degenerative) – 5201 (arm, limitation of motion) effective October 18, 2019. 38 U.S.C. § 4.71a. Prior to October 18, 2019, the condition is rated as 20 percent disabling under DC 5003-5201. Under DC 5003, degenerative arthritis established by X-ray findings is rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved. 38 C.F.R. § 4.71a. The Veteran contends that his symptoms are productive of a higher rating before and after October 18, 2019. For reasons which will become clear, there are many codes in which the Board can evaluate a right should problem. The Board will address each in detail The evidence of record shows that the Veteran is right-hand dominant; thus, his right shoulder is his major shoulder for rating purposes. In terms of the pertinent rating criteria, Diagnostic Codes 5200 through 5203 address disability ratings for the shoulder and arm. Under DC 5200, a 30 percent rating is warranted in instances of favorable ankylosis of scapulohumeral articulation with abduction to 60 degrees, can reach mouth and head. A 40 percent rating is warranted in instances of intermediate ankylosis (major extremity) of scapulohumeral articulation between favorable and unfavorable. A 50 percent rating is warranted where there is unfavorable ankylosis (major extremity) of scapulohumeral articulation with abduction limited to 25 degrees from the side. 38 C.F.R. § 4.71a. Under this Diagnostic Code, a 50 percent rating is the maximum rating for the major extremity. Under Diagnostic Code 5201, a 20 percent disability rating is contemplated for limitation of motion of the major or minor arm at shoulder level or for limitation of the minor arm to midway between side and shoulder level. A 30 percent disability rating is warranted for limitation of the major arm to midway between side and shoulder level or when motion of the minor arm is limited to 25 degrees from the side. A 40 percent disability rating is warranted when motion of the major arm is limited to 25 degrees from the side. 38 C.F.R. § 4.71a. Under Diagnostic Code 5202, pertaining to other impairment of the humerus, malunion with moderate deformity for the major and minor shoulder warrants a 20 percent disability rating; malunion with marked deformity is evaluated as 30 percent disabling for the major shoulder and as 20 percent disabling for the minor shoulder. 38 C.F.R. § 4.71a. Recurrent dislocations of the humerus at the scapulohumeral joint, with infrequent episodes, and guarding of movement only at the shoulder level, is evaluated as 20 percent disabling for the major and minor shoulder; recurrent dislocations of the humerus at the scapulohumeral joint, with frequent episodes and guarding of all arm movements, is evaluated as 30 percent disabling for the major shoulder and as 20 percent disabling for the minor shoulder. A fibrous union of the humerus is evaluated as 50 disabling for the major shoulder and as 40 percent disabling for the minor shoulder; a nonunion of the humerus is evaluated as 60 disabling for the major shoulder and as 50 percent disabling for the minor shoulder; and a flail shoulder (loss of head of humerus) is evaluated as 80 disabling for the major shoulder and as 70 percent disabling for the minor shoulder. Under Diagnostic Code 5203, pertaining to impairment of clavicle or scapula, a maximum rating of 20 percent is provided for dislocation or non-union with loose movement. 38 C.F.R. § 4.71a. Normal ranges of motion of the shoulder are flexion (forward elevation) from zero degrees to 180 degrees, abduction from zero degrees to 180 degrees, external rotation from zero degrees to 90 degrees, and internal rotation from zero degrees to 90 degrees. 38 C.F.R. § 4.71, Plate I. The Veteran was provided a VA examination for shoulder and arm conditions in October 2019. The examiner diagnosed the Veteran with right shoulder impingement syndrome with rotator cuff tear and right shoulder degenerative joint disease. The examiner also stated that degenerative or traumatic arthritis was documented by imaging studies. The Veteran’s right shoulder range of motion was as follows: flexion 0 to 60, abduction 0 to 45, external rotation 0 to 20, and internal rotation 0 to 20. The examiner found that wincing and pain during the examination indicates that there is a huge functional loss based on very low ranges of motion. The examiner noted severe pain (10/10) in his right shoulder. The examiner noted that any minimal residual function or use of an already dysfunctional arm is lost during flareup. The examiner noted that the Veteran was in excruciating pain with active range of motion testing and repetitive-use testing could not be completed. The examiner noted that the Veteran started to have a flare-up while just holding his right arm in a position in his lap during the interview. The examiner found that pain, fatigue weakness, and lack of endurance significantly limit functional ability of his right shoulder with repeated use over time. The examiner noted pain on weight bearing, crepitus, and localized tenderness or pain on palpation. The examiner found muscle atrophy and rated forward flexion/abduction muscle strength at 3 out of 5 (active movement against gravity). The examiner found that rotator cuff conditions were suspected, but could not perform rotator cuff condition testing due to pain and limited range of motion. The examiner did not find ankylosis; shoulder instability, dislocation, or suspected labral pathology; clavicle, scapula, acromioclavicular (AC) joint or sternoclavicular joint condition; conditions or impairment of the humerus; or any other pertinent physical findings, complications, conditions, signs, symptoms, and scars. The Veteran was provided a VA examination for shoulder and arm conditions in April 2014. The examiner diagnosed the Veteran with right shoulder impingement syndrome with rotator cuff tear and right shoulder degenerative joint disease. The examiner also stated that degenerative or traumatic arthritis was documented by imaging studies. The Veteran’s right shoulder range of motion was as follows: flexion 0 to 165 and abduction 0 to 160. The examiner found no additional limitation in range of motion of the shoulder following repetitive-use testing. The examiner found that less movement than normal, weakened movement, excess fatigability, and pain on movement are contributing factors of his right shoulder disability. The examiner found localized tenderness or pain on palpation and guarding. The examiner rated right shoulder forward flexion/abduction muscle strength at 4/5 (active movement against some resistance). Tests for rotator cuff conditions were negative. Apprehension and relocation testing was positive for the Veteran’s right shoulder. The examiner did not find ankylosis; a history of recurrent dislocation of the glenohumeral (scapulohumeral) joint; clavicle, scapula, acromioclavicular (AC) joint, and sternoclavicular joint conditions; or any other pertinent physical findings, complications, conditions, signs, symptoms, and scars. The Board also notes that while treatment records also periodically document the Veteran’s complaints and treatment related to his right shoulder disability, nothing in these records show his adverse symptomatology to be worse than what was reported at the above VA examinations for the periods in question. Based on the foregoing evidence, the Board finds that an increased rating of 40 percent, but no higher, is warranted under DC 5201for limitation of motion of the major arm to 25 degrees from the side when incorporating functional loss due to the factors set forth in 38 C.F.R. §§ 4.40 and 4.45. See DeLuca, 8 Vet. App. at 207; see also Mitchell, 25 Vet. App. at 32; Correia, 28 Vet. App. at 158; Sharp, 29 Vet. App. at 26. Based on the foregoing evidence, the Board finds that ratings in excess of the current 20 percent evaluation for the Veteran’s right shoulder conditions prior to October 18, 2019, are not warranted. See 38 C.F.R. § § 4.7, 4.71a, Diagnostic Code 5201. Prior to October 18, 2019, a rating in excess of 20 percent for a right shoulder conditions under DC 5201 is not available due to limited range of motion, as such a rating would require a finding of limitation of the major arm to midway between side and shoulder level or motion of the minor arm limited to 25 degrees from the side, which is not shown even when incorporating functional loss due to the factors set forth in 38 C.F.R. § § 4.40 and 4.45. See DeLuca, 8 Vet. App. at 207; see also Mitchell, 25 Vet. App. at 32; Correia, 28 Vet. App. at 158; Sharp, 29 Vet. App. at 26. During both time periods, the evidence does not indicate that the Veteran has ankylosis of the right shoulder, and thus, he is not eligible for a higher rating under Diagnostic Code 5200. The evidence does not indicate that the Veteran has impairment of the humerus, and thus, he is not eligible for a higher rating under Diagnostic Code 5202. The evidence does not indicate that the Veteran has impairment of the clavicle or scapula, and thus, he is not eligible for a higher rating under Diagnostic Code 5203. While the Veteran has reported experiencing pain in his right shoulder (the basis of the 20% and 40% ratings), the medical findings are clear for any underlying neurological abnormalities. Thus, the Board finds that separate ratings for neurological manifestations, are not warranted. While the Veteran believes a higher disability rating is warranted prior to October 18, 2019, the evidence of record, including the April 2014 examination report, does not support a disability rating in excess of 20 percent. While the Veteran is competent to report the symptoms of his disabilities, he is not competent to opine on matters requiring medical knowledge, such as determining the severity of his medical condition at any given time, based on the criteria above. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Nothing above suggests that the Veteran is not having problems with this disability. The only question is the degree of the problem based on the evidence and the law. It is important for the Veteran to understand that the medical findings provide highly probative evidence against the claim that the Board cannot, unfortunately, ignore. The medical findings outweigh the Veteran’s belief that his disability warrants a higher disability rating and provide a highly clear basis for the opinion. Therefore, the Board provides more weight to the competent medical evidence of record and must deny the claim. In summary, the Board finds that the preponderance of the evidence shows that, prior to October 18, 2019, the Veteran’s right shoulder disability was not manifested by ankylosis of scapulohumeral articulation; malunion of the humerus with marked deformity; recurrent dislocations of the humerus at the scapulohumeral joint; fibrous union of the humerus; nonunion of the humerus; flail shoulder, loss of head of humerus; or limitation of motion of the major arm to midway between side and shoulder level. Therefore, the Board finds that the criteria for a rating in excess of 20 percent prior to October 18, 2019, are not met. See 38 C.F.R. § 4.71a; Fenderson, supra. The Board finds that the preponderance of the evidence shows that, from October 18, 2019, the Veteran’s right shoulder disability was manifested by limitation of motion of the major arm to 25 degrees, but not manifested by ankylosis of scapulohumeral articulation; fibrous union of the humerus; nonunion of the humerus, or flail shoulder, loss of head of humerus. Accordingly, the criteria for disability rating of 40 percent, but no higher, for a right shoulder disability from October 18, 2019, are met. See 38 C.F.R. § 4.71a; Fenderson, supra. While the Board acknowledges the Veteran has problems as a result of his shoulder disability, the evidence of record does not indicate that the Veteran meets the rating criteria for evaluations higher than 20 and 40 percent for the applicable periods. In reaching these conclusions, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, where the preponderance of the evidence is against the Veteran’s claim, that doctrine is not applicable. See U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). (Continued on the next page)   Neither the Veteran nor his representative has identified any other rating criteria that would provide a higher rating or an additional rating. However, the potential applications of various provisions of Title 38 of the Code of Federal Regulations (2016) have been considered as required by the holding of the Court in Schafrath v. Derwinski, 1 Vet. App. 589, 593 (1991). John J. Crowley Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board E. VanValkenburg, 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.