Citation Nr: 21001652 Decision Date: 01/11/21 Archive Date: 01/11/21 DOCKET NO. 17-29 485 DATE: January 11, 2021 ORDER Entitlement to an effective date of January 30, 2015, but no earlier, for assignment of a 20 percent disability rating for left clavicle/shoulder impingement syndrome is granted. FINDING OF FACT The Veteran’s disability rating of 20 percent disability rating for left clavicle/shoulder impingement syndrome was factually ascertainable on January 30, 2015. CONCLUSION OF LAW The criteria for an effective date of January 30, 2015, but no earlier, for a 20 percent disability for left clavicle/shoulder disorder have been met. 38 U.S.C. §§ 5107, 5110 (2012); 38 C.F.R. §§ 3.156(c); 3.400 (2019). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Marine Corps from August 1984 to July 1997 including service in Southwest Asia. The Veteran also served on active duty in the U.S. Army National Guard from March 2002 to July 2002; May 2003 to December 2003; and June 2006 to June 2008. This case comes before the Board of Veterans’ Appeals (Board) on appeal from an October 2016 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in San Diego, California. In December 2019, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge. A transcript of that proceeding has been associated with the Veteran’s claims file. In April 2020, the Board remanded the case for additional development, to include a retrospective medical examination. The Board finds that the RO has substantially complied with the June 2020 remand directives. Stegall v. West, 11 Vet. App. 268, 271 (1998). The RO granted an effective date of May 23, 2016 for assignment of a 20 percent disability rating for left clavicle/shoulder disorder, as noted above. As this does not constitute a full grant of the benefit sought, the issue remains in appellate status. See AB v. Brown, 6 Vet. App. 35, 39 (1993). Earlier Effective Dates The Veteran contends that he is entitled to an effective date prior to May 23, 2016 for assignment of a 20 percent disability rating for left clavicle/shoulder impingement syndrome. Except as otherwise provided, the effective date of an evaluation and award of compensation based on an original claim or a claim reopened after final disallowance, or a claim for increase will be the date of receipt of the claim or the date entitlement arose, whichever is the later. 38 C.F.R. § 3.400. The effective date of an award of service connection shall be the day following the date of discharge or release if application is received within one year from such date of discharge or release. Otherwise, the effective date is the date of receipt of claim, or the date entitlement arose, whichever is later. 38 U.S.C. § 5110; 38 C.F.R. § 3.400(b)(2)(i). The earliest date of entitlement to an increase in disability compensation is the date at which it is factually ascertainable based on all evidence of record that an increase in disability had occurred if a complete claim or intent to file a claim is received within one year from such date, otherwise, the date of receipt of claim. 38 C.F.R. § 3.400(o)(2). Here, the Veteran is challenging the initial staged ratings. Evidence VA received a statement from the Veteran on March 26, 2009. Pertinent to the claim, the Veteran stated that he sustained a “left clavicle condition” as the result of a November 2007 in-service motor vehicle accident (MVA). A review of the medical evidence of record discloses that the Veteran is right-handed. A review of the Veteran’s STRs discloses an emergency room (ER) report from November 2007 which shows that the Veteran was involved in a motor vehicle accident (MVA). There is also a civilian traffic collision report associated with the evidence of record, which note the MVA of November 2007. Records of care at a military emergency room dated in November 2007 note that the Veteran complained of head, left neck, left knee, and left chest pain. In one notation, the Veteran reported left shoulder pain with a diagnosis of ecchymosis (bruise) of the left clavicle and seat belt marks on the left neck and chest. Range of motion was not measured due to pain. The final assessment did not indicate a specific deficit of the left shoulder joint. A March 2009 line of duty investigation refers only to right shoulder rotator cuff tendonitis, neck strain, and contusion with intact skin surface- chest wall. In May 2009 correspondence, the Veteran wrote that he received treatment for a left clavicle condition at K.P., a private healthcare facility. The file contains records of treatment encounters at this facility throughout 2008 that mention imaging studies of the right shoulder but are silent for treatment or examination of the left shoulder. Upon a May 2009 VA joints examination, a clinician reported that the Veteran was “unaware of any difficulties with [his] left clavicle or shoulder.” This clinician conveyed that the Veteran expressed significant limitations doing overhead work because of painful limitation of motion in his right shoulder—to the extent that the Veteran used his left shoulder and arm whenever overhead activities are required. Upon examination, the clinician indicated that the left shoulder abducted to 180 degrees without pain. Left shoulder flexion was to 170 degrees. Left shoulder lateral rotation was to 35 degrees without significant pain. In the diagnosis section of the of the examination report, the clinician opined that the Veteran had no recollection of any injury to the left clavicle. Thus, according to the clinician, the Veteran had no present complaints of disability relating to the left shoulder. And, there was no medical evidence of any orthopedic pathology as to the Veteran’s left clavicle, with neither indication of disability nor functional incapacity. VA received a file of treatment records from K.P. in June 2009. Physical therapy (PT) clinical notations from December 2007 and January 2008 reflect the Veteran had a “referring diagnosis” of neck strain/sprain (also right shoulder and left knee pain). The Veteran endorsed that his right shoulder/pec region was still sore with unexpected movements. There are no such reports as to the left shoulder. VA outpatient records in November 2009 show reports from the Veteran of left shoulder pain with only a mild decrease in range of motion. However, the records are silent for left shoulder symptoms until the Veteran sought VA physical therapy in January 2015. Upon a January 30, 2015 VA physical therapy consultation, a clinician noted that the Veteran has endorsed left shoulder pain. Moreover, according to this clinician, physical therapy was medically necessary for the Veteran to achieve functional restoration; range of motion; decreased pain; and increased safety. The Veteran reported left shoulder pain upon overhead functional use. Also, the Veteran indicated that left shoulder pain disrupted his sleep cycles. Left upper extremity range of motion elicited pain upon flexion and abduction. In a 1:10 scale, the Veteran reported 5-level pain. Lastly, the clinician opined that the Veteran began a trial of iontophoresis to his left shoulder and would benefit significantly from “skilled” physical therapy. In February 2015, range of motion was “mildly lacking” and physical therapy was provided. Results of an April 2015 MRI showed a SLAP type II tear involving the superior labrum of the left shoulder with associated para-labral cyst. Therapy continued for several months including injections but no notations of range of motion or other limitations of function other than increased pain. In testimony at a Board hearing in September 2015, before a different Veterans Law Judge when the appeal was for service connection, the Veteran testified that that he experienced constant pain upon motion in his left clavicle/shoulder since the 2007 MVA. As discussed below, the Veteran is competent to report discernable symptoms—to include constant pain upon motion of the left clavicle/shoulder. See Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007) Subsequent VA treatment records showed continued therapy. The Board takes note of a May 26, 2015 VA orthopedic surgery consultation. At this time, an orthopedic surgeon reported that the Veteran was experiencing left shoulder pain. Moreover, this clinician noted functional impacts—namely limited range of motion which impaired the Veteran’s ability to sleep on his left shoulder and left shoulder upon working in an overhead position. A VA treatment entry dated October 15, 2015 showed range of motion was noted to be limited to flexion of 90 degrees and abduction to 75 degrees. In June 2016, the Veteran was afforded a VA shoulder and arm conditions examination for the Veteran’s left shoulder. The clinician reviewed the claims file; considered the Veteran’s accounts of his medical history; and conducted an evaluation. Diagnoses included left shoulder impingement syndrome; left rotator cuff tendonitis; left labral tear; and left subacromial/subdeltoid tendonitis. Left shoulder flexion was from zero to 90 degrees. Abduction was from zero to 90 degrees. External rotation was from zero to 60 degrees. Internal rotation was from zero to 30 degrees. The clinician reported that abnormal range of motion contributed to functional loss with flexion, abduction, external rotation, and internal rotation The Veteran was capable of repetitive use testing of at least three repetitions, without sustaining additional functional loss or range of motion. Moreover, the clinician opined that the examination took place immediately after repeated use over time. The examination did not take place during a flare-up. The clinician indicated that the Veteran endorsed that pain, fatigue, weakness, and lack of endurance significantly limited functional ability—both upon repetitive use over time and upon flare-ups. There was evidence of a left shoulder rotator cuff condition. All associated testing yielded positive results. However, there was no evidence of instability, dislocation, or labral pathology. There was tenderness on palpation of the AC joint and left-side impingement present. As to functional impact on occupational tasks, the clinician noted that the Veteran would experience difficulties with overhead and overhand activities. In the associated medical opinion, the clinician provided a positive nexus opinion for the Veteran’s left rotator cuff tendonitis. In a September 2016 addendum, a different VA physician noted that Naval Medical Center ER clinicians reviewed the November 2007 MVA report. These ER clinicians noted that the Veteran endorsed left chest pain and “overnight” endorsed left shoulder pain. This clinician also referenced the May 2009 examination report. While noting the clinician’s absence of findings concerning the left shoulder, this clinician opined that it is common for rotator cuff tendonitis to be bilateral and to be asymptomatic at times depending upon an individual’s level of activity. Thus, according to this clinician, the Veteran appears to have bilateral rotator cuff impingement and tendonitis. While these changes were most likely pre-existent due to acromion morphology and with wear and tear use over a lifetime, it is certainly medically reasonable that and at least 50 percent likely that the rotator cuff disease and SLAP tear of the left shoulder did become aggravated by the MVA during active duty service. The Veteran endorsed pain in the left shoulder after the MVA and type II SLAP tears certainly can be caused by, or aggravated by, traumatic injury. Then, opining as to a positive nexus, this examiner noted that there is reasonable medical evidence in the Veteran’s claims file to support an at least 50 percent probability that the Veteran’s left shoulder condition was aggravated in his most recent active duty service, from June 2006 to June 2008. The opinion did not address the degree of impairment prior to May 2016 other than the pain and history of therapy. In his December 2016 Notice of Disagreement (NOD), the Veteran stated that he believed that the 20 percent disability rating assigned to his left clavicle/shoulder disorder should be effective from March 26, 2009. The Veteran re-iterated this contention in his May 2017 Substantive Appeal (VA Form 9). At the December 2019 Board hearing, the Veteran testified that his left shoulder has been painful since his separation from active duty service. Moreover, the Veteran reported that he received left shoulder injections to keep working. In June 2020, the Veteran was afforded a retrospective evaluation pursuant to the Board’s April 2020 remand directives. The clinician who prepared the retrospective reviewed the claims file and additional records as a component of his opinion. The clinician made a number of key findings concerning the Veteran’s lay contentions as to perceived constancy of his left shoulder pain and left shoulder pathology. This clinician quoted and acknowledged the Veteran’s hearing testimony that his current left shoulder level of limitations—such as range of motion and strength—were similar to those of November 2007 (after the MVA), at separation in 2008, upon VA examination in May 2009, and upon VA examination in 2016. However, the clinician opined that while the medical record clearly supports onset of left shoulder symptomatology after the MVA injury in November 2007 during active duty service, the medical record does not clearly corroborate the Veteran’s contention of similar physical symptomatology since 2007 as compared to June 2016. More specifically, all available documentation reviewed from 2009 and 2010 document near-normal left shoulder range of motion; mild or no pain; and no loss of strength. Moreover, the medical evidence of record is silent for documentation of left shoulder symptomatology from 2011 to 2014. The clinician further noted that in January 2015, the Veteran’s documented VA shoulder examination discloses objective medical findings that are consistent with the Veteran’s contemporary left shoulder complaints, although he did not cite the dates when range of motion measurement were documented. Thus, according to the clinician, there is a “gray area” from 2011 to 2014, which militates in favor of finding that the Veteran’s left shoulder pathology is attributable to a chronic process with incremental exacerbation of pain, stiffness, weakness, and functional disability. Therefore, over the 4-year period from 2011 to 2014 there was a gradual worsening of his left shoulder pathology/symptomatology at an estimated rate of 5 percent per year. This suggests that his pain was worsening at this rate, but it is not sufficiently specific to establish limitation of motion to the shoulder level. Analysis The Veteran’s left clavicle/shoulder disorder has been evaluated under 38 C.F.R. § 4.71a, Diagnostic Code 5201. Competent medical evidence is evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may also include statements conveying sound medical principles found in medical treatises. It also includes statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159 (a)(1). Competent lay evidence is any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159 (a)(2). This may include some medical matters, such as describing symptoms or relating a contemporaneous medical diagnosis. Jandreau, supra. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007); Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011). A layperson is generally not capable of opining on matters requiring medical knowledge. Bostain v. West, 11 Vet. App. 124, 127 (1998). If the evidence is competent, the Board must then determine if the evidence is credible. Barr v. Nicholson, 21 Vet. App. 303, 308 (2007). After determining the competency and credibility of evidence, the Board must then weigh its probative value. In this regard, the Board may properly consider internal inconsistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant. Caluza v. Brown, 7 Vet. App. 498, 511 (1995). Disability of the musculoskeletal system is primarily the inability, due to damage or infection in the 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 on which ratings are based adequately portray the anatomical damage and the functional loss with respect to all these elements. In evaluating 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). 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 enervation, or other pathology, or it may be due to pain, supported by adequate 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. §§ 4.10, 4.40, 4.45. VA must analyze the evidence of pain, weakened movement, excess fatigability, or incoordination and determine the level of associated functional loss under 38 C.F.R. § 4.40, which requires VA to regard as “seriously disabled” any part of the musculoskeletal system that becomes painful on use. See DeLuca v. Brown, 8 Vet. App. 202, 206-8 (1995). The intent of the rating schedule is to recognize painful motion with joint or periarticular pathology as productive of disability. Painful motion is an important factor of joint disability, which is entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59. § 4.59 employs conditional language that must be read in conjunction with the appropriate DC to be understood. See Sowers v. McDonald, 27 Vet. App. 472 (2016). Although the cited decision led to a regulatory change effective May 23, 2016, the decision was an interpretation of § 4.59 § 4.59 that was in effect during the period of the appeal. Where pain alone results in functional impairment, even if there is no identified underlying diagnosis, it can constitute a disability. However, subjective pain and numbness in and of itself will not establish a current disability. Consideration should be given to the impact, or lack thereof, from pain, focusing on evidence of functional limitation caused by pain. See Saunders v. Wilkie, 886 F. 3d 1356 (Fed. Cir. 2018). Musculoskeletal VA examinations, to be adequate, must address particular issues when are where that are practicable and medically possible to include active and passive motion; weight bearing and non-weight bearing; range of motion of an opposing joint; and findings as to loss of motion during flare-ups. See Correia v. McDonald, 28 Vet. App. (2016); Sharp v. Shulkin, 29 Vet. App. 26 (2017). Under Diagnostic Code 5201 a 20 percent rating (the minimum rating available for the dominant arm pursuant to this Diagnostic Code) is assigned when the range of arm motion is limited to either shoulder level or to the midway point between the side and shoulder level. A 30 percent rating for the dominant arm contemplates shoulder motion limited midway between the side and shoulder level. A 40 percent rating requires that shoulder motion for the dominant arm be limited to 25 degrees from the side. Malunion of the clavicle or scapula warrants a 10 percent rating for either the major or minor extremity. 38 C.F.R. § 4.71a , Diagnostic Code 5203. Nonunion of the clavicle or scapula without loose movement also warrants a 10 percent rating for either the major or minor extremity. Id. Nonunion of the clavicle or scapula with loose movement warrants a 20 percent rating for either the major or minor extremity. Id. Dislocation of the clavicle or scapula also warrants a 20 percent rating for either the major or minor extremity. Id. Impairment of the clavicle or scapula may also be evaluated based upon impairment of function of the contiguous joint. Id. Pursuant to 38 C.F.R. § 4.71 Plate I, which illustrates the ranges of motion for various joints, the full range of shoulder abduction and flexion is zero to 180 degrees, with the shoulder level defined as 90 degrees. 38 C.F.R. § 4.71 , Plate I. Turning back to the issue of an effective date prior to May 23, 2016 for the assignment of a 20 percent disability rating for the Veteran’s left clavicle/shoulder disorder, the Board notes again that the earliest date of entitlement to an increase in disability compensation is the date at which it is factually ascertainable based on all evidence of record that an increase in disability had occurred. 38 C.F.R. § 3.400(o)(2). A review of the evidence of record shows that VA received the Veteran’s NOD, in which he articulated a claim for an earlier effective date for assigment of a 20 percent disability rating for left clavicle/shoulder disorder, on December 15, 2016. Turning to the medical evidence of record, upon a January 30, 2015 VA physical therapy consultation, a clinician noted that the Veteran has endorsed left shoulder pain. Moreover, according to this clinician, physical therapy was medically necessary for the Veteran to achieve functional restoration; range of motion; decreased pain; and increased safety. The Veteran reported left shoulder pain upon overhead functional use. Also, the Veteran indicated that left shoulder pain disrupted his sleep cycles. Left upper extremity range of motion elicited pain upon flexion and abduction. In a 1:10 scale, the Veteran reported 5-level pain. Lastly, the clinician opined that the Veteran began a trial of iontophoresis to left should and would benefit significantly from “skilled” physical therapy. A VA treatment entry dated October 15, 2015 showed range of motion was noted to be limited to flexion of 90 degrees and abduction to 75 degrees. In the June 2016 VA examination, the clinician reported left shoulder flexion to 90 degrees; abduction to 90 degrees; external rotation to 60 degrees; and internal rotation to 30 degrees. The Veteran was capable of repetitive use testing of at least three repetitions, without sustaining additional functional loss or range of motion. Moreover, the clinician opined that the examination took place immediately after repeated use over time. The Veteran endorsed that that pain, fatigue, weakness, and lack of endurance significantly limited functional ability upon repeated use over a period of time and with flare-ups. As noted above painful motion is an important factor of joint disability, which is entitled to at least the minimum compensable rating for the joint. See 38 C.F.R. § 4.59. Here, the Board takes note of the May 2009 VA clinician’s examination report, in which the Veteran was “unaware of any difficulties with [his] left clavicle or shoulder.” Moreover, the clinician noted that the Veteran subjectively conveyed no present complaints of disability relating to the left shoulder. Likewise, the clinician indicated that there was no medical evidence of any orthopedic pathology as to the Veteran’s left clavicle or surgery, with neither indication of disability nor functional incapacity. The Board has considered the Veteran’s lay contentions concerning the onset of his severe and painful left clavicle/shoulder symptoms. The Veteran endorsed that his left shoulder was always painful; indeed, discernable symptomatology that the Veteran is competent to report. See Jandreau, supra. The Board assigns significant probative weight to the January 30, 2015 VA physical therapist consultation, as noted above. At this time. a clinician noted that the Veteran endorsed left shoulder pain and therapy was medically necessary for the Veteran to achieve functional restoration; range of motion; decreased pain; and increased safety. The Veteran reported left shoulder pain upon overhead functional use. Also, the Veteran indicated that left shoulder pain disrupted his sleep cycles. Left upper extremity range of motion elicited pain upon flexion and abduction. In a 1:10 scale, the Veteran reported 5-level pain. Lastly, the clinician opined that the Veteran began a trial of iontophoresis to his left shoulder and would benefit significantly from “skilled” physical therapy. Thus, this competent therapeutic evidence discloses both left should pain and loss of function including painful limitation of motion of the left shoulder. Here, the Board also notes that this “date of painful limitation of motion of the left shoulder” was not lost on the clinician who conducted the June 2020 retrospective examination. This clinician specifically noted that in January 2015, the Veteran’s documented VA shoulder examination disclosed objective medical findings that are consistent with the Veteran’s contemporary left shoulder complaints. While the June 2020 clinician did not provide a date in January, contemplation of the evidence of record points to the January 30, 2015 physical therapist consultation. The Veteran’s disability rating of 20 percent disability rating for left clavicle/shoulder disorder was factually ascertainable, based upon all evidence of record that an increase in disability had occurred, on January 30, 2015. with no earlier evidence of factually ascertainable worsening disability. Therefore, entitlement to an effective date of January 30, 2015, but no earlier, for assignment of a 20 percent disability rating for left clavicle/shoulder impingement syndrome is granted. 38 C.F.R. § 3.400. J.W. FRANCIS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board B. J. Komins, 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.