Citation Nr: 21002480 Decision Date: 01/13/21 Archive Date: 01/13/21 DOCKET NO. 17-31 141 DATE: January 13, 2021 ORDER Entitlement to a disability rating more than 30 percent prior to June 20, 2017 for left shoulder status post rotator cuff surgery (limitation of motion) is denied. Entitlement to a disability rating more than 50 percent from August 1, 2018 for left shoulder status post rotator cuff surgery (limitation of motion) status post total joint replacement is denied. REMANDED Entitlement to compensation benefits under the provisions of 38 U.S.C. § 1151 for extreme fatigue and neurological and musculoskeletal symptoms is remanded. FINDINGS OF FACT 1. Prior to June 20, 2017, the Veteran’s left shoulder status post rotator cuff surgery (limitation of motion) was manifest by pain, weakness, and abduction limited to 20 degrees from the side. 2. From August 1, 2018, the Veteran’s left shoulder status post rotator cuff surgery (limitation of motion) status post total joint replacement is manifest by severe chronic residuals consisting of painful motion, limited range of motion, and weakness. CONCLUSIONS OF LAW 1. Prior to June 20, 2017, the criteria for a rating in excess of 30 percent for left shoulder status post rotator cuff surgery (limitation of motion) status post total joint replacement have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5201. 2. From August 1, 2018, the criteria for a rating in excess of 50 percent for left shoulder status post rotator cuff surgery (limitation of motion) status post total joint replacement have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5051. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from February 1977 to February 1978. These matters come before the Board of Veterans’ Appeals (Board) on appeal from July 2016 and August 2017 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO). In a February 2020 decision, the Board remanded the instant matters to obtain outstanding records from the Social Security Administration (SSA), to obtain new VA examinations and opinions, and to allow the RO to consider additional evidence received since the April 2018 Statement of the Case in the first instance pursuant to 38 C.F.R. sections 19.31 (a) and 19.37 (a). The SSA records were obtained in May 2020 and the requested VA examinations and opinions were obtained in August 2020. The RO issued a rating decision in September 2020 increasing the rating for left shoulder status post rotator cuff surgery (limitation of motion) status post total joint replacement from 20 percent to 50 percent, effective August 1, 2018. The RO also issued a Supplementary Statement of the Case (SSOC) in September 2020 denying an increased rating for the Veteran’s left shoulder disability prior to June 20, 2017, denying a rating in excess of 50 percent from August 1, 2018, and denying the Veteran’s claim under 38 U.S.C. § 1151 for extreme fatigue and neurological and musculoskeletal symptoms. The claims were thereafter recertified to the Board for further adjudication. The Board notes that the Veteran attempted to opt-in to the Appeals Modernization Act (AMA) framework when she filed a VA Form 20-0995 Decision Review Request: Supplemental Claim in October 2020 seeking entitlement to 38 U.S.C. § 1151 benefits. However, the Veteran’s section 1151 claim had already been recertified to the Board under the legacy appeals system, and she did not properly opt-in from the legacy SSOC appeals process. Therefore, the Board will consider the claim for section 1151 benefits under the legacy appeals process. Increased Rating Disability ratings are determined by applying the criteria set forth in the VA's Schedule for Rating Disabilities, which is based on the average impairment of earning capacity resulting from disability. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for the higher evaluation; otherwise, the lower evaluation will be assigned. 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability will be resolved in favor of the Veteran. 38 C.F.R. § 4.3. Separate ratings may be assigned for separate periods of time based on the facts found. This practice is known as “staged” ratings. Fenderson v. West, 12 Vet. App. 119, 126-127 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). VA regulations set forth at 38 C.F.R. §§ 4.40, 4.45, and 4.59 provide for consideration of functional impairment due to pain on motion when evaluating the severity of a musculoskeletal disability. If feasible, these determinations are to be expressed in terms of the degree of additional range-of-motion loss due to any weakened movement, excess fatigability, incoordination, or pain. DeLuca v. Brown, 8 Vet. App. 202 (1995); Johnston v. Brown, 10 Vet. App. 80, 84-5 (1997); 38 C.F.R. § 4.59. Moreover, joint testing is to be conducted on both active and passive motion, in weight-bearing and non-weight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint. Correia v. McDonald, 28 Vet. App. 158, 170 (2016). Additionally, the anti-pyramiding provision of 38 C.F.R. § 4.14 directs that the evaluation of the same disability under various diagnoses is to be avoided. The Court of Appeals for Veterans Claims has held that, for purposes of determining whether a Veteran is entitled to separate ratings for different problems or residuals of an injury, without violating the prohibition against pyramiding, the critical element is that none of the symptomatology for any one of the conditions is duplicative of, or overlapping with the symptomatology of the other conditions. Esteban v. Brown, 6 Vet. App. 259 (1994). 1. Rating of the left shoulder prior to June 20, 2017. The Veteran seeks a rating in excess of 30 percent prior to June 20, 2017 for left shoulder status post rotator cuff surgery (limitation of motion) status post total joint replacement. Prior to June 20, 2017, the disability was rated 30 percent disabling under Diagnostic Code 5201, which pertains to limitation of motion of the arm. For rating purposes, a distinction is made between major (dominant) and minor musculoskeletal groups. In the instant case, the Veteran is right-handed, so her left shoulder is considered the minor upper extremity. Pursuant to Diagnostic Code 5201, a 20 percent evaluation is warranted for motion of the minor arm limited to shoulder level and limited to midway between the side and shoulder level. A maximum 30 percent rating is assignable for the minor upper extremity, when motion is limited to within 25 degrees from the side. 38 C.F.R. § 4.71a, Diagnostic Code 5201. The standard ranges of motion for shoulder abduction and forward elevation (flexion) are 180 degrees. 38 C.F.R. § 4.71, Plate I. Shoulder level is 90 degrees. The Veteran was provided a VA examination for her shoulders in June 2016. She reported constant sharp pain and limited range of motion and that her left shoulder had gotten worse since having rotator cuff surgery in April 2015. Flareups consisted of sharp pain, limited motion, muscle spasms, and stiffness. Range of motion testing showed left shoulder flexion to 40 degrees, abduction to 20 degrees, external rotation to 45 degrees, and internal rotation to 80 degrees with pain on all planes of motion. The examiner noted pain and lack of endurance limited functional ability with repeated use over time. Less movement than normal and weakened movement contributed to the disability. There was no left shoulder ankylosis. Residuals of the Veteran’s rotator cuff surgery included pain, stiffness, and significantly limited range of motion due to muscle damage that was not fully repaired. Private treatment records show the Veteran had arthroscopic surgery on her left shoulder in April 2015, with post-operative diagnoses of adhesive capsulitis and arthrofibrosis with biceps tendon partial tear, and rotator cuff arthropathy with chronic massive and retracted rotator cuff tears. Subsequent VA treatment records show complaints of chronic left shoulder pain and limited range of motion. A May 2017 MRI shows chronic full-thickness tears of the supraspinatus and infraspinous tendons with fatty muscle atrophy, a moderate SLAP tear, glenohumeral and acromioclavicular degenerative joint disease, and superior migration of the humeral heat resulting im obliteration of the subacromial space. A May 2017 private orthopedic consultation reflects of left shoulder pain that had worsened since the 2015 surgery. Physical examination showed tenderness on palpation of the left shoulder. The Veteran could raise her shoulder to 90 degrees before she had significant pain, she could not perform any external rotation, and was guarded. X-rays showed bone-on-bone contact in the glenohumeral joint with acromioclavicular joint arthritis and an elevated humeral head. The Veteran underwent a left shoulder reverse total arthroplasty on June 20, 2017. The Board concludes that an evaluation in excess of 30 percent under Diagnostic Code 5201 prior to June 20, 2017 is not warranted. The pertinent physical findings consist of decreased ranges of motion, pain with movement, and weakness. The Veteran’s shoulder has regularly been limited to 90 degrees or less of flexion and abduction, with the June 2016 VA examination showing abduction to 20 degrees. However, limitation of the minor upper extremity to 25 degrees or less of abduction from the side is explicitly contemplated by a 30 percent rating under Diagnostic Code 5201. Furthermore, the Veteran is in receipt of the maximum schedular rating under Diagnostic Code 5201 for limited motion of the minor upper extremity. The rating contemplates pain on motion and is consistent with limitation of motion of the minor arm to 25 degrees or less. Even considering functional loss due to pain and other factors, more than the maximum 30 percent assignable under Diagnostic Code 5201 for limited motion of the minor arm simply is not assignable. See Johnston v. Brown, 10 Vet. App. 80, 84-85 (1997). The Board has also considered whether ratings under any other diagnostic code are warranted. Prior to June 20, 2017, the Veteran was in receipt of a separate 20 percent rating for impairment of the left humerus under Diagnostic Code 5202, which contemplates malunion of the humerus with moderate or marked deformity of the minor upper extremity. To warrant a higher rating under Diagnostic Code 5202 for impairment of the humerus of the minor extremity, there must be fibrous union of, nonunion of (false flail joint), or loss of head (flail joint) of the humerus. None of these have been shown by the medical evidence, and the Veteran does not contend otherwise. Rating the Veteran’s left shoulder under Diagnostic Code 5051 prior to June 20, 2017 is inappropriate. Although the Veteran had surgery on the left shoulder in April 2015, it was an arthroscopy and not a shoulder replacement surgery as required for rating the shoulder under Diagnostic Code 5051. Diagnostic Code 5200 is inapplicable as no ankylosis of the left shoulder had been shown prior to June 20, 2017. Furthermore, Diagnostic Code 5203 is inapplicable as there is no impairment of the clavicle or scapula shown. To the extent there is clavicle impairment, Diagnostic Code 5203 provides that such may be rated on impairment of function of the contiguous joint, which is already contemplated by the assigned 30 percent rating for limitation of motion under Diagnostic Code 5201. Based on the above, the Board finds that the Veteran’s disability did not meet or more nearly approximate the criteria for a higher rating for the left shoulder prior to June 20, 2017. The Veteran is already in receipt of the highest rating available for limited motion of the minor upper extremity under Diagnostic Code 5201. A higher rating under Diagnostic Code 5202 is not warranted as the required manifestations have not been shown. Even considering the actual degree of functional impairment imposed by pain, incoordination, weakness, fatigue, and lack of endurance in accordance with 38 C.F.R. sections 4.40, 4.45, and 4.59, a higher evaluation is not available under the applicable diagnostic codes. The criteria for a higher rating are not met or approximated at any time prior to June 20, 2017. A rating in excess of 30 percent for left shoulder status post rotator cuff surgery (limitation of motion) status post total joint replacement is denied. In denying such a rating, the Board finds the benefit of the doubt doctrine is not applicable. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. 2. Rating of the left shoulder from August 1, 2018. The Veteran seeks a higher rating for her left shoulder disability from August 1, 2018. As will be explained in detail below, the Board concludes that a rating in excess of 50 percent for left shoulder status post rotator cuff surgery (limitation of motion) status post total joint replacement is not warranted. The Veteran’s left shoulder disability has been rated under Diagnostic Code 5051 since August 1, 2017. Under Diagnostic Code 5051, with respect to the minor extremity, a 100 percent rating is warranted for one year following implantation of the prosthesis. Following this one-year period, a minimum 20 percent rating is assigned for intermediate degrees of residual weakness, pain, or limitation of motion of the minor extremity. A maximum 50 percent evaluation is assigned for chronic residuals consisting of severe, painful motion or weakness in the affected minor extremity. See 38 C.F.R. § 4.71a, Diagnostic Code 5051. She was provided a VA examination in July 2018 and reported constant sharp and dull pains with limited range of motion in the left shoulder. She reported flareups with any activity that last all day consisting of increased sharp and dull pain. Range of motion testing showed flexion to 40 degrees, abduction to 30 degrees, and external and internal rotation to 10 degrees, with pain on all ranges. Pain was noted as causing functional loss. Left shoulder muscle strength was 2/5. No ankylosis was noted. There was arthritis of the left acromioclavicular joint. Regarding functional impact, the examiner noted that pain was made worse with lifting, pushing, pulling, and carrying heavy objects, and that the Veteran should not use her left hand above shoulder level. The Veteran also submitted a July 2018 shoulder and arm conditions disability benefits questionnaire (DBQ) completed by Dr. D.S., her private orthopedic physician. The Veteran reported shoulder pain and that she had not moved her arm for years. Dr. D.S. noted the Veteran refuses to use her left arm for most activities, that she could not use the arm for simple things, and that any use causes pain. Dr. D.S. diagnosed left shoulder joint replacement, bicipital tendon tear, rotator cuff tear, glenohumeral joint osteoarthritis, and ankylosis of the glenohumeral articulations (shoulder joint). Active range of motion testing showed flexion to 30 degrees, abduction to 30 degrees, external rotation to 30 degrees, and internal rotation to 20 degrees. Passive range of motion testing showed flexion to 90 degrees, abduction to 60 degrees, external rotation to 60 degrees, and internal rotation to 30 degrees. There was less movement than normal, weakened movement, excess fatigability, pain on movement, and atrophy of disuse that worsened the ranges of motion. Unfavorable ankylosis in abduction at 25 degrees or less from the side was noted. Dr. D.S. determined the Veteran had chronic residuals consisting of severe painful motion or weakness due to her shoulder joint replacement surgery. At the June 2019 VA examination she reported left shoulder weakness, decreased range of motion, aching pain which increased to severe after stowing her mobility scooter, and that she uses the left arm very little due to the pain. Range of motion testing showed flexion to 80 degrees, abduction to 80 degrees, and external and internal rotation to 60 degrees. there was pain on each plane of movement. Less movement than normal and weakened movement contributed to the disability and interfered with working overhead. Left shoulder muscle strength was 4/5. No ankylosis was noted. The examiner noted the 2017 left shoulder replacement surgery and determined the Veteran had chronic residuals consisting of severe painful motion or weakness. The examiner also explained the Veteran had decreased range of motion likely due to pain with movement leading to disuse and further decreased range of motion, as well as weakness due to disuse. The left hand functioned normally. Use of the left arm was not precluded at or above the elbow, but range of motion and strength were limited. The examiner found the Veteran did not have functional impairment of the left extremity such that no effective functions remain, noting that the Veteran made a point that she is required to use her left arm when stowing her motorized scooter, which caused increased pain. A September 2018 private orthopedic note states the Veteran holds her left arm in a semi-paralytic position. At a September 2019 appointment, the Veteran reported pain in the left shoulder with limited motion. Active range of motion testing showed forward flexion to 30 degrees, abduction to 30 degrees, and external rotation to 20 degrees. The Veteran was unable to perform internal rotation. Range of motion was recorded as the same at a December 2019 followup appointment. The Veteran testified at a travel Board hearing in December 2019. The Veteran testified that she could only move her left arm a little and that any movement caused pain. The undersigned Veterans Law Judge (VLJ) observed that the Veteran could only move her left arm less than halfway between the side and shoulder level, and that her arm had moved approximately four or five inches from her side. She was provided another VA examination in July 2020. Range of motion testing showed flexion of the left shoulder to 90 degrees, abduction to 90 degrees, and external and internal rotation to 60 degrees. The Veteran could not reach overhead due to the shoulder replacement. The examiner noted chronic residuals consisting of severe painful motion or weakness due to the left shoulder replacement surgery. Here, the Veteran was in receipt of a temporary 100 percent convalescence rating under 38 C.F.R. § 4.30 from June 20, 2017 through July 31, 2017 following her left shoulder reverse total arthroplasty. Thereafter, the Regional Office rerated the Veteran’s left shoulder disability under Diagnostic Code 5051 and assigned a temporary 100 percent rating from August 1, 2017 through August 1, 2018. As noted, such a rating is provided for under Diagnostic Code 5051 for 1 year following implantation of a shoulder prosthesis. Neither of these temporary 100 percent ratings is in dispute, and as such will not be addressed any further. Following the expiration of the temporary 100 percent rating, the Regional Office (RO) initially assigned a 20 percent rating under Diagnostic Code 5051, which was effective August 1, 2018. The Veteran appealed and the Board remanded the claim in February 2020. The action of the Board resulted in a September 2020 rating decision; the RO increased the rating for the Veteran’ left shoulder to 50 percent under Diagnostic Code 5051, effective August 1, 2018. To the extent that she argued during the hearing that she was more disabled than 20 percent, she was correct. Now the Veteran is in receipt of the schedular maximum 50 percent rating under Diagnostic Code 5051. A 50 percent rating contemplates chronic, severe residuals of a shoulder replacement surgery on the minor upper extremity. All evidence of record, suggests she continues to experience severe residuals following her left shoulder replacement surgery, including constant pain, reduced range of motion, weakness, atrophy, and corresponding functional loss. A 100 percent evaluation is only warranted for one year following the implantation of a prosthesis. The one-year period following the Veteran’s left shoulder replacement expired on August 1, 2018, and there is no indication she has had any further surgeries on her left shoulder. Even considering functional loss and 38 C.F.R. sections 4.40, 4.45, and 4.59, a rating in excess of 50 percent under Diagnostic Code 5051 is not possible. Furthermore, rating the Veteran’s left shoulder under any other applicable diagnostic code would not result in a higher rating. Only Diagnostic Code 5202 provides for a rating higher than 50 percent for impairment of a minor upper extremity. To warrant a 70 percent rating under 5202, the Veteran would have to have a loss of the head of the humerus, i.e. a flail joint, which the medical evidence does not demonstrate. Although the private July 2018 examination showed ankylosis, only a maximum rating of 40 percent could be assigned under Diagnostic Code 5200 for unfavorable ankylosis limiting abduction to 25 degrees from the side. Finally, separate ratings for the left shoulder under Diagnostic Codes 5200 through 5203 would constitute impermissible pyramiding. See 38 C.F.R. § 4.14; Esteban v. Brown, 6 Vet. App. 259 (1994). The currently assigned 50 percent evaluation under Diagnostic Code 5051 contemplates all residuals of the Veteran’s left shoulder replacement, including but not limited to pain, limited motion, and weakness. Based on the above, the Board concludes that the criteria for a higher rating for the left shoulder from August 1, 2018 have not been met. The Veteran is already in receipt of the highest rating currently available for under Diagnostic Code 5051. No other potentially applicable diagnostic code would result in a rating in excess of 50 percent. Assigning a separate rating for any manifestation of her left shoulder disability would constitute impermissible pyramiding. She has not lost use of her left hand or arm such that amputation is approximated. Thus, from August 1, 2018, a rating in excess of 50 percent for left shoulder status post rotator cuff surgery (limitation of motion) status post total joint replacement is denied. In denying such a rating, the Board finds the benefit of the doubt doctrine is not applicable. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. We again note that when she first appeared for the hearing, she argued that she was more disabled than contemplated by the rating at that time. Here, a higher evaluation was assigned following remand, but an evaluation in excess of the maximum evaluation is not warranted. REASONS FOR REMAND 1. Entitlement to compensation benefits under the provisions of 38 U.S.C. § 1151 for extreme fatigue, neurological, and musculoskeletal symptoms is remanded. The Veteran contends that compensation is warranted under §1151for a disability manifested by extreme fatigue with neurological and musculoskeletal symptoms due to medication prescribed by VA. Upon review of the evidence of record, the Board finds remand is required to obtain another VA examination and opinion. The Board previously remanded the Veteran’s claim in February 2020 to obtain an examination and opinion to determine whether she has a disability manifested by extreme fatigue with neurological and musculoskeletal symptoms and if so, whether it was due to carelessness, negligence, lack of proper skill, error in judgment, or other instance of fault on the part of VA prior to and in furnishing hospital care, medical or surgical treatment, or examination; or (b) an event not reasonably foreseeable. The requested examination and opinion were obtained in July 2020. However, the examination appears incomplete and based in part on factual inaccuracies. The July 2020 examiner concluded that the Veteran did not have a diagnosable disability. Review of VA and private medical records reveals the Veteran is currently diagnosed with fibromyalgia. She also has degenerative and seronegative rheumatoid arthritis in multiple joints. Furthermore, the examiner noted that the Veteran uses a motorized scooter in part due to fatigue yet opined there was no disability manifested by fatigue. Multiple other VA examination reports of record note the Veteran uses canes and her mobility scooter due to her musculoskeletal symptoms and diseases. At a minimum, the Veteran is diagnosed with arthritis and fibromyalgia, which manifest in musculoskeletal symptoms and may cause her to use a mobility scooter. She also experiences fatigue, for which she uses the mobility scooter. The Board notes that the July 2020 VA examination was for central nervous system and neuromuscular diseases, but specifically excluded fibromyalgia. She does not appear to have been given a physical examination as part of the July 2020 examination, and has stated as such. Arthritis was not addressed in the July 2020 examination report.   When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). Remand for a new examination and opinion is warranted. The matters are REMANDED for the following action: 1. Schedule the Veteran for any appropriate examination to determine the nature and etiology of any disability manifested by fatigue, neurological symptoms, and/or musculoskeletal symptoms. All indicated studies, tests, and evaluations should be performed. The examiner is requested to review all pertinent records associated with the record. The Veteran has been diagnosed with fibromyalgia and arthritis. She is competent to describe her symptoms. Specifically, the examiner is requested to opine whether the Veteran has a disability manifested by fatigue, neurological symptoms, and/or musculoskeletal symptoms and, if so, whether such disability is due to: (a) Carelessness, negligence, lack of proper skill, error in judgment, or other instance of fault on the part of VA prior to and in furnishing hospital care, medical or surgical treatment, or examination; or   (b) An event not reasonably foreseeable. A complete rationale should accompany each opinion provided. If the benefits sought remain denied, issue an appropriate supplemental statement of the case. H. N. SCHWARTZ Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. Morse 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.