Citation Nr: 21001578 Decision Date: 01/11/21 Archive Date: 01/11/21 DOCKET NO. 13-12 102 DATE: January 11, 2021 ORDER A rating of 30 percent for left shoulder impingement/rotator cuff tendinitis (left shoulder disability) is granted. FINDING OF FACT 1. The Veteran is right-hand dominant; therefore, her left shoulder is her minor extremity. 2. Considering the Veteran’s pain and corresponding functional impairment, including during flare-ups, her left shoulder disability is manifested by disability analogous to limitation of motion to 25 degrees to the side. CONCLUSION OF LAW The criteria for a 30 percent rating for left shoulder impingement syndrome in excess of 20 percent from September 28, 2010, exclusive September 10, 2013 to November 1, 2013, have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.159, 4.1, 4.3, 4.40, 4.45, 4.59, 4.69, 4.71a, Diagnostic Codes 5024, 5201. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran honorably served on active duty from July 1996 to June 1999. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a May 2011 rating decision issued by the Department of Veterans Affairs (VA) Agency of Original Jurisdiction (AOJ). The Board remanded the case to the AOJ for further development in April 2015, October 2016, November 2017, and October 2018. In July 2020 the AOJ issued a Supplemental Statement of the Case (SSOC). This matter is now properly before the Board. During the pendency of the appeal, in multiple rating decisions, most recently in June 2018, the RO increased the disability rating of the left shoulder disability to 20 percent, effective since September 2010. Because this increased rating does not represent a grant of the maximum benefits allowable, the issue remains in appellate status. AB v. Brown, 6 Vet. App. 35 (1993); Murphy v. Shinseki, 26 Vet. App. 510, 514 (2014). Increased Rating The Veteran essentially asserts that a higher rating is warranted because her left shoulder disability is productive of pain and corresponding functional impairment, including during flare-ups. Disability ratings are determined by the application of the VA’s Schedule for Rating Disabilities. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. § Part 4. 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. Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3. The Veteran’s entire history is to be considered when making disability evaluations. See generally 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Where entitlement to compensation already has been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). 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. Hart v. Mansfield, 21 Vet. App. 505 (2007). In the October 2018 remand, the Board acknowledged that the record contained numerous VA examinations, but they did not comply with the decisions of the United States Court of Appeals for Veterans Claims (Court) Correia v. McDonald, 28 Vet. App. 158, 168 (2016) and Sharp v. Shulkin, 29 Vet. App. 26, 34-36 (2017). As such, the Board will focus on the Veteran’s statements and the medical evidence to include the October 2019 and October 2020 VA examinations. 1. Entitlement to a disability rating in excess of 20 percent for left shoulder impingement/rotator cuff tendinitis (exclusive of the period from September 10, 2013 to October 31, 2013, during which time a temporary total evaluation was assigned pursuant to 38 C.F.R. § 4.30). The Veteran’s left shoulder impingement is currently rated at 20 percent disabling effective September 28, 2010, exclusive of the period from September 10, 2013 to October 31, 2013. The disability was rated under Diagnostic Codes 5201-5024. Hyphenated diagnostic codes are used when a rating under one diagnostic code requires use of an additional diagnostic code to identify the basis for the evaluation assigned. Diagnostic Code 5024 provides a rating for tenosynovitis and notes that the diseases under this code will be rated on limitation of motion of affected parts, as arthritis, degenerative. In this case, the rating would be under Diagnostic Code 5201 for limitation of motion of the shoulder. Under Diagnostic Code 5201, limitation of motion of the major extremity (dominant) at the shoulder level warrants a 20 percent rating and a 20 percent rating of the minor extremity (non-dominant). 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 of the major extremity is limited to 25 degrees from the side, a 40 percent rating is warranted and a 30 percent rating for the minor extremity. 38 C.F.R. § 4.71a, Diagnostic Code 5201. In determining assessing limitation of motion, it is necessary to consider forward flexion and abduction. See Mariano v. Principi, 17 Vet. App. 305, 317-18 (2003). Under the laws administered by VA, disabilities of the shoulder and arm are rated under 38 C.F.R. § 4.71a, Diagnostic Codes 5200 through 5203. For rating purposes, a distinction is made between major (dominant) and minor musculoskeletal groups. Handedness for the purpose of a dominant rating will be determined by the evidence of record, or by testing on VA examination. Only one hand shall be considered dominant. The injured hand, or the most severely injured hand, of an ambidextrous individual will be considered the dominant hand for rating purposes. 38 C.F.R. § 4.69. Here, as the medical evidence shows that the Veteran is right-hand dominant, her left shoulder is her minor shoulder for rating purposes. Normal forward flexion of a shoulder and normal abduction is from 0 to 180 degrees. Normal external and internal rotation is from 0 to 90 degrees. 38 C.F.R. § 4.71, Plate I. There is no evidence to support a rating under the other Diagnostic Codes for shoulder disability: Diagnostic Code 5200 for ankylosis of the scapulohumeral articulation, Diagnostic Code 5202 for other impairment of the humerus, and Diagnostic Code 5203 for impairment of the clavicle or scapula. These other types of impairments have not been shown, so these other Codes are inapplicable. In an October 2019 VA examination, the Veteran reported daily flare ups of the left shoulder that last all day, precipitated by any sudden movement and when reaching overhead. The October 2019 examiner noted pain on flexion, abduction, external rotation and internal rotation. The examiner conducted a range of motion test on the Veteran which resulted in flexion measured at 100 degrees, abduction measured at 90 degrees; external rotation measured at 90 degrees; internal rotation measured at 90 degrees. The examiner also noted pain with weight bearing and objective evidence of localized tenderness. The examiner opined that there was no evidence of pain on passive range of motion test of the left shoulder and no evidence of pain on non-weight bearing test of the left shoulder. The examiner stated that a goniometer was used for all joint range of motion measurements. The examiner further noted that although the Veteran’s range of motion remained unchanged after repeated use over time, functional ability was limited due to pain and lack of endurance. In an October 2020 VA examination, the examiner noted that the Veteran has constant pain that is worsened with movement and that the Veteran reported flare ups and functional loss in left shoulder. The Veteran reported that she cannot lift her son, she experiences pain trying to reach things in cabinets or do any housework. In addition, the examiner noted that the Veteran treated her left shoulder disability by taking 800mg of Ibuprofen. In a range of motion test conducted by the October 2020 examiner, the Veteran’s flexion was measured at 95 degrees; abduction measured at 75 degrees; external rotation measured at 85 degrees; internal rotation measured at 90 degrees. The repetitive use test showed the same range of motion after three repetitions, however there was functional loss noted as a result of pain and weakness. The examiner noted that pain, weakness, fatigability, incoordination significantly impacted Veteran’s functional ability. VA regulations set forth in 38 C.F.R. §§ 4.40, 4.45, 4.59, provide for consideration of functional impairment due to pain on motion when evaluating the severity of a musculoskeletal disability. The US Court of Appeals for Veterans Claims (the Court) has held that a higher rating can be based on “greater limitation of motion due to pain on use.” DeLuca v. Brown, 8 Vet. App. 202, 206 (1995). Any such functional loss must be “supported by adequate pathology and evidenced by the visible behavior of the claimant.” See 38 C.F.R. § 4.40. The Court held that pain must affect some aspect of the normal working movements of the body such as excursion, strength, speed, coordination and endurance to constitute functional loss. Mitchell v. Shinseki, 24 Vet. App. 32, 33, 43 (2011). Although pain may cause functional loss, pain, itself, does not constitute functional loss and is just one factor to be considered when evaluating functional impairment. Id. The Court explained in Mitchell 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). Thus, functional loss caused by pain must be rated at the same level as if the functional loss were caused by any of the other factors cited above. Consequently, in rating the severity of a joint disability, VA must determine the overall functional impairment due to these factors. See Mitchell v. Shinseki, 25 Vet. App. 32 (2011). Here, the lay and medical evidence shows that despite taking medication to treat her left shoulder disability, she suffers from severe pain, limitation of motion and corresponding functional impairment. Resolving all reasonable doubt in her favor, the Board finds that a 30 percent rating is warranted for her left shoulder disability. The appeal is granted. STEVEN D. REISS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Hellina Y. Hailu, 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.