Citation Nr: 20048074 Decision Date: 07/17/20 Archive Date: 07/17/20 DOCKET NO. 17-13 773 DATE: July 17, 2020 ORDER The claim for a rating in excess of 20 percent for a bicipital tendon tear and labral tear of the right acromioclavicular joint is denied. FINDINGS OF FACT 1. The Veteran is right-handed. 2. Motion in the right shoulder is not limited to midway between the side and shoulder level. CONCLUSION OF LAW The criteria for an initial rating in excess of 20 percent for right (major) shoulder bicipital tendon tear and labral tear of the right acromioclavicular joint are not met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 4.7, 4.40, 4.45, 4.71a, Diagnostic Codes (DCs) 5003, 5201 (2019). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served honorably from July 1959 to July 1961. This matter comes to the Board of Veterans’ Appeals (Board) from a February 2017 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Huntington, West Virginia. The Board remanded this matter in January 2019 for additional development of the Veteran’s claim, to include an addendum opinion to evaluate the Veteran’s disability for flare-ups. The Board finds there has been substantial compliance with the February 2018 remand directives. See D’Aries v. Peake, 22 Vet. App. 97 (2008) (holding that substantial, and not strict, compliance with the terms of a Board remand is required pursuant to Stegall v. West, 11 Vet. App. 268 (1998)). Increased Ratings Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule) and are intended to represent the average impairment of earning capacity resulting from disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities. Disabilities must be reviewed in relation to their history. 38 C.F.R. § 4.1. Other applicable, general policy considerations are: interpreting reports of examination in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability, 38 C.F.R. § 4.2; resolving any reasonable doubt regarding the degree of disability in favor of the claimant, 38 C.F.R. § 4.3; where there is a question as to which of two evaluations apply, assigning a higher of the two where the disability picture more nearly approximates the criteria for the next higher rating, otherwise the lower rating will apply, 38 C.F.R. § 4.7; and, evaluating functional impairment on the basis of lack of usefulness, and the effects of the disability upon the person’s ordinary activity, 38 C.F.R. § 4.10. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary concern. Although a rating specialist is directed to review the recorded history of a disability in order to make a more accurate evaluation, see 38 C.F.R. § 4.2, the regulations do not give past medical reports precedence over current findings. Francisco v. Brown, 7 Vet. App. 55 (1994). Nevertheless, the Board acknowledges that a claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. See Fenderson v. West, 12 Vet. App. 119 (1999); see also Hart v. Mansfield, 21 Vet. App. 505 (2007). The analysis in the following decision is therefore undertaken with consideration of the possibility that different ratings may be warranted for different time periods based on the facts found- a practice known as “staged” ratings. In general, all disabilities, including those arising from a single disease entity, are rated separately, and disability ratings are then combined in accordance with 38 C.F.R. § 4.25. Pyramiding, the evaluation of the same disability, or the same manifestation of a disability, under different diagnostic codes, is to be avoided when rating a Veteran’s service-connected disabilities. 38 C.F.R. § 4.14. It is possible for a Veteran to have separate and distinct manifestations from the same injury which would permit rating under several diagnostic codes, however the critical element in permitting the assignment of several ratings under various diagnostic codes is that none of the symptomatology for any one of the conditions is duplicative or overlapping with the symptomatology of the other condition. See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994). In accordance with 38 C.F.R. §§ 4.1, 4.2 and Schafrath v. Derwinski, 1 Vet. App. 589 (1991), the Board has reviewed the service treatment records and all other evidence of record pertaining to the history of the Veteran’s service-connected disabilities. The Board has found nothing in the historical record that would lead to the conclusion that the current evidence of record is not adequate for rating purposes. When evaluating joint disabilities rated on the basis of limitation of motion, VA must consider granting a higher rating in cases in which functional loss due to pain, weakness, excess fatigability, or incoordination is demonstrated, and those factors are not contemplated in the relevant rating criteria. See 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202 (1995). The Court clarified that 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). Instead, the Mitchell Court explained that pursuant to 38 C.F.R. §§ 4.40 and 4.45, the possible manifestations of functional loss include decreased or abnormal excursion, strength, speed, coordination, or endurance (38 C.F.R. § 4.40), as well as less or more movement than is normal, weakened movement, excess fatigability, and pain on movement (as well as swelling, deformity, and atrophy) that affects stability, standing, and weight-bearing (38 C.F.R. § 4.45). In Mitchell v. Shinseki, 25 Vet. App. 32 (2011), the Court) held that, although pain may cause a functional loss, “pain itself does not rise to the level of functional loss as contemplated by VA regulations applicable to the musculoskeletal system.” Rather, pain may result in functional loss, but only if it limits the ability “to perform the normal working movements of the body with normal excursion, strength, speed, coordination, or endurance.” Id., quoting 38 C.F.R. § 4.40. Under 38 C.F.R. § 4.59, painful motion is a factor to be considered with any form of arthritis; however, 38 C.F.R. § 4.59 is not limited to disabilities involving arthritis. See Burton v. Shinseki, 25 Vet. App. 1 (2011). 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, DC 5003. DC 5003 provides that when limitation of motion due to arthritis is noncompensable under the appropriate diagnostic code, a rating of 10 percent is for application for each such major joint or group of minor joints affected by limitation of motion, to be combined, not added under DC 5003. Under DC 5201, limitation of motion of the major and minor extremity at the shoulder level warrants a 20 percent rating, the minimum rating assignable under DC 5201. Limitation of motion midway between the side and shoulder level warrants a 30 percent rating for the major extremity and a 20 percent rating for the minor extremity. Where motion is limited to 25 degrees from the side, a 40 percent rating is warranted for the major extremity and a 30 percent rating is warranted for the minor extremity. 38 C.F.R. § 4.71a, DC 5201. Standard ranges of shoulder motion are forward elevation (flexion) and abduction each from 0 to 180 degrees (with shoulder level at 90 degrees); and external and internal rotation each to 90 degrees. See 38 C.F.R. § 4.71, Plate I. 1. Rating in excess of 20 percent for a bicipital tendon tear and labral tear of the right acromioclavicular joint The Veteran’s right shoulder disability has been rated as 20 percent disabling under DCs 5003-5201 from October 25, 2016. His claim for an increased rating was received in October 2016. The Veteran contends that symptoms of his right shoulder disability demonstrate that his disability should be rated higher than is currently rated. See April 2017 Notice of Disagreement. Specifically, he contends that throughout the period on appeal, his shoulder has deteriorated, he has suffered pain and mental anguish and mood changes. See Id. Turning to the evidence of record, the Veteran underwent a VA joints examination in November 2016. He reported that his right shoulder weakness is stable, but the pain has increased in recent years. He has diffuse pain with movement and generalized weakness. He states that he retired in 1993 from a career as an air conditioning and refrigeration technician because he was no longer able to lift with his right upper extremity. He reports flare-ups with activity, and functional loss on repetitive use and has difficulty lifting heavy items, overhead activities and activities that place stress on the shoulder. Objective examination revealed a normal initial range of motion with forward flexion to 180 degrees; abduction to 180 degrees; internal rotation to 90 degrees; external rotation to 90 degrees, with pain noted and functional loss. He had pain with weight bearing, objective evidence of tenderness on palpation, and pain with range of motion in all directions and increased when resistance is applied. No evidence of crepitus. Able to perform repetitions with no additional functional loss or range of motion. Reduction in muscle strength of 4/5 on forward flexion, muscles strength of 5/5 on abduction. There was no evidence of ankylosis. Positive Hawkins’ impingement test, positive empty-can test, positive external rotation strength test, and positive lift-off subscapularis test. Evidence of shoulder instability with a positive crank apprehension and relocation test. No impairments of the humerus. An October 2013 MRI documented partial-thickness interstitial tearing of the proximal long head of the bicep tendon with tenosynovitis. Significant partial-thickness undersurface tearing of the distal supraspinatus tendon, extending into the anterior fibers of the infraspinatus tendon. The acromioclavicular joint shows hypertrophic changes. Stable osteophytic changes at the glenoid base. Degenerative tearing of the superior labrum. No significant joint effusion was noted. The examination was deemed inadequate because the examiner failed to ascertain adequate information regarding the frequency, duration, characteristics, severity, or functional loss in relation to the flare ups. In a September 2019 VA joints examination test the Veteran reported daily pain and flare-ups that worsen with reaching, lifting, pulling and pushing. Initial range of motion document flexion to 125 degrees, abduction to 120 degrees, external rotation to 70 degrees and internal rotation to 70 degrees. Pain was noted on exam and causes functional loss, evidence of pain with weight bearing, localized tenderness of the shoulder joint. No objective evidence of crepitus. The veteran was able to perform repetitions with no additional functional loss or range of motion. Pain, weakness, fatigability or incoordination significantly limits functional ability with repeated use over time. Range of motion after repeated use were recorded as flexion to 120 degrees, abduction to 115 degrees, external rotation to 65 degrees and internal rotation to 65 degrees. Muscle strength testing documents 5/5 on forward flexion and 5/5 on abduction, no muscle atrophy and no ankylosis. Positive Hawkins’ impingement test, positive empty-can test, positive external rotation strength test, and positive lift-off subscapularis test. Evidence of shoulder instability with a positive crank apprehension and relocation test. Clavicle or scapula affects range of motion, pain on palpation of the AC joint, positive cross-body adduction test. No impairments of the humerus. Pain on passive range of motion, weight bearing and non-weight bearing. Applying the pertinent rating criteria to the facts set forth above, a rating in excess of 20 percent under DC 5201 for the major shoulder (as the Veteran is right-handed, the service-connected disability involves the major extremity) requires limitation of motion of the right arm to a position midway between the side and shoulder level. Such limitation of motion is simply not shown or approximated on the reports from the VA examinations set forth above or any other clinical evidence. Review of the other potentially applicable diagnostic codes pertaining to the rating disabilities of the shoulder and arm codified at DCs 5200-5203 also does not reveal a diagnostic code which would warrant increased compensation given the clinical findings of record. Finally, the Veteran contends that he experiences mental anguish and mood changes associated with his shoulder pain. A review of the file shows no diagnosis for a mental health disorder connected with the right shoulder disability. Accordingly, this complaint does not rise to the level of consideration for a separate rating. MARJORIE A. AUER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Kelsey Love, 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.