Citation Nr: 21002555 Decision Date: 01/14/21 Archive Date: 01/14/21 DOCKET NO. 20-23 208 DATE: January 14, 2021 ORDER Entitlement to a rating in excess of 50 percent for postoperative rotator cuff tear, left (minor) shoulder, status post left total shoulder replacement (TSR), is denied. FINDING OF FACT During the period for consideration, the Veteran’s post-TSR left (minor) shoulder disability is not shown to have been manifested by symptoms and/or impairment exceeding severe painful motion or weakness; symptoms and/or impairment not encompassed by the schedular criteria are not shown, and have not been specifically alleged. CONCLUSION OF LAW A rating in excess of 50 percent for a post-TSR left (minor) shoulder disability is not warranted. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.321(b), 4.1, 4.3, 4.7, 4.21, 4.40, 4.45, 4.71a, Diagnostic Codes (Codes) 5051, 5200-5203. REASONS AND BASES FOR FINDING AND CONCLUSION The appellant is a Veteran who served on active duty from January 1968 to September 1985. This matter is before the Board on appeal from a November 2017 rating decision (that in pertinent part denied a rating in excess of 50 percent for the left shoulder disability). Entitlement to a rating in excess of 50 percent for post-TSR left (minor) shoulder) disability is denied. In connection with this claim the Veteran submitted an April 2017 Disability Benefits Questionnaire (DBQ) by a private (PA) physician’s assistant. It was noted he underwent total left shoulder arthroplasty in June 2013. March 2017 X-rays revealed humeral stem with good interface and alignment, with evidence of lucency of the posterior glenohumeral baseplate with no gross loosening. The Veteran reported that his activities were limited due to increased pain, for which he took hydrocodone. He reported that increased pain and weakness in the bicep/shoulder limited his range of motion. On physical examination, abduction was to 80 degrees on both active and passive range of motion, external rotation was to 20 degrees on active motion and 25 degrees on passive motion, and internal rotation was to 70 degrees on both active and passive motion. The abnormal ranges of motion contributed to functional loss. On repetitive use testing, flexion was to 60 degrees, abduction was to 80 degrees, external rotation was to 20 degrees, and internal rotation was to 60 degrees. Movements were painful on active, passive, and repetitive use testing, and there was pain in weight bearing or non-weight bearing. Tenderness was noted along the deltoid tendon and glenohumeral region of the shoulder. Contributing factors of disability included less movement than normal and weakened movement. There was a reduction in muscle strength but no muscle atrophy. There was no ankylosis. Shoulder instability, dislocation, or labral pathology were not suspected. There was a history of mechanical symptoms. There was no history of recurrent dislocation of the shoulder joint. A clavicle, scapula, acromioclavicular joint or sternoclavicular joint condition was not suspected. There was no loss of head, nonunion, or fibrous union of the humerus. There was no malunion of the humerus with moderate or marked deformity. Postoperative residuals of total left shoulder replacement included intermediate degrees of residual weakness, pain, or limitation of motion. The Veteran did not use assistive devices. He is right-handed. In an April 2017 statement, the Veteran’s spouse described the symptoms of, and impairment due to, the Veteran’s left shoulder disability she has observed. On September 2017 VA examination, the Veteran reported constant left shoulder pain, described as a throbbing sharp pain at a level of 6 to 8 out of 10; the 8/10 severity pain occurred when he accidentally lay on his left side and resolved with repositioning. He reported that he could not sleep on his left side. The shoulder did not give way, catch, or lock. He reported having flare-ups approximately once or twice a night, lasting for about 1 hour after repositioning and rubbing the shoulder with topical medication. On physical examination, flexion of the shoulder was to 65 degrees, abduction to 60 degrees, external rotation to 70 degrees, and internal rotation to 30 degrees. There was difficulty with all ranges of motion due to pain causing functional loss. Pain was noted on passive range of motion. There was no evidence of pain with weight bearing or non-weight bearing. There was pain on palpation of the anterior shoulder. There was objective evidence of crepitus. On repetitive use testing, flexion was to 55 degrees, abduction to 55 degrees, external rotation to 70 degrees, and internal rotation to 30 degrees. Pain, weakness, fatigability, or incoordination did not significantly limit functional ability with repeated use. Additional factors contributing to disability included decreased range of motion and muscle atrophy noted to the anterior shoulder. Muscle strength was 4/5 for forward flexion and 3/5 for abduction. Muscle atrophy was noted at the anterior shoulder but could not be measured. There was no ankylosis. Shoulder instability, dislocation, or labral pathology was not suspected. A clavicle, scapula, acromioclavicular joint, or sternoclavicular joint condition was not suspected. There was no loss of head, nonunion, or fibrous union of the humerus. There was no malunion of the humerus with moderate or marked deformity. The Veteran used no assistive devices. On April 2019 VA examination, the Veteran reported that his limited range of motion and shoulder pain had worsened in the previous several years. He reported constant aching pain in the shoulder, for which he took Vicodin and Tylenol as needed. He reported pain with all motions and inability to raise his arm. He reported no flare-ups. On physical examination, flexion was to 80 degrees, abduction to 60 degrees, external rotation to 20 degrees, and internal rotation to 70 degrees on active and passive motion. The range of motion itself contributed to a functional loss in that he could not raise his arm. Pain was noted in all ranges of motion. There was no objective evidence of localized tenderness or pain on palpation of the shoulder. There was no evidence of pain with weight bearing or non-weight bearing. There was no objective evidence of crepitus. There was no additional loss of function or range of motion after repetitive use testing. There were no additional contributing factors of disability. Muscle strength testing was 5/5 for forward flexion and abduction. There was no muscle atrophy. There was no ankylosis. Shoulder instability, dislocation, or labral pathology was not suspected. A clavicle, scapula, acromioclavicular joint, or sternoclavicular joint condition was not suspected. There was no loss of head, nonunion, or fibrous union of the humerus. There was no malunion of the humerus with moderate or marked deformity. Postoperative residuals included chronic residuals consisting of severe painful motion or weakness. The Veteran did not use assistive devices. He reported functional impact on occupational tasks due to inability to raise his arm or lift objects more than 10 pounds, and he had very limited range of motion with no push/pull ability. On December 2020 VA examination, the Veteran reported consistent pain since his last shoulder surgery/replacement. He reported pain in the shoulder described as intermittent with activity or sleeping on the shoulder, with severity of 0/10 at rest and 8/10 sharp pain at worst. He reported reduced range of motion of the shoulder. He reported flare-ups four times weekly from lifting too much. He reported being unable to carry anything greater than 5 pounds on the left side for more than a few minutes. On physical examination, flexion was to 70 degrees, abduction to 30 degrees, external rotation to 20 degrees, and internal rotation to 70 degrees. The range of motion itself contributed to a functional loss in that the Veteran had difficulty lifting things, dressing, and reaching for high objects due to pain and reduced range of motion. Pain was noted in all ranges of motion, on active and passive motion. There was objective evidence of pain on palpation. There was no evidence of pain with weight bearing or non-weight bearing. There was no objective evidence of crepitus. There was no additional loss of function or range of motion on repetitive use testing. With flare-ups and repeated use over a period of time, flexion was to 65 degrees, abduction to 20 degrees, external rotation to 20 degrees, and internal rotation to 70 degrees, due to pain, fatigue, and weakness. Muscle strength testing was 4/5 with forward flexion and abduction. There was reduction in muscle strength but no muscle atrophy. There was no ankylosis. Shoulder instability, dislocation, or labral pathology was not suspected. A clavicle, scapula, acromioclavicular joint, or sternoclavicular joint condition was not suspected. There was no loss of head, nonunion, or fibrous union of the humerus, nor did he have malunion of the humerus with moderate or marked deformity. Residuals of TSR were chronic and consisted of severe painful motion or weakness. Treatment records throughout reflect left shoulder symptoms and impairment essentially similar to those described on the VA examinations. With his 2017 notice of disagreement in this matter and his April 2020 substantive appeal on VA-Form 9, the Veteran provided a lengthy description of the symptoms of and impairment due to the left shoulder disability. He indicated he is seeking a 70 percent rating (as that was listed as the next higher rating); he argued he should not have to meet the criteria (loss of head of humerus or flail joint), essentially because such manifestations would not be present when there has been TSR. He indicated that his left shoulder pain is severe in most instances and moderate in others. He referred to his various other disabilities. The Veteran has been awarded a total disability rating base on individual unemployability from May 2016. Disability ratings are determined by applying the criteria set forth in VA’s Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Where there is a question as to which of two evaluations shall 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. Separate ratings may be assigned for separate periods of time based on the facts found, a practice known as “staged” ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). Reasonable doubt as to the degree of disability will be resolved in the veteran’s favor. 38 C.F.R. § 4.3. When evaluating a service-connected disability based on limitation of motion, the Board must take into consideration functional loss due to pain under 38 C.F.R. § 4.40 and functional loss due to weakness, fatigability, incoordination or pain on movement of a joint under 38 C.F.R. § 4.45. See DeLuca v. Brown, 8 Vet. App. 202 (1995); see Johnson v. Brown, 9 Vet. App. 7 (1996). In DeLuca, the Court held that a diagnostic code based on limitation of motion does not subsume 38 C.F.R. §§ 4.40 and 4.45 and that the rule against pyramiding set forth in 38 C.F.R. § 4.14 does not forbid consideration of a higher rating based on a greater limitation of motion due to pain on use, including use during flare-ups. Id. A finding of functional loss due to pain must be supported by adequate pathology and evidenced by the visible behavior of the veteran. 38 C.F.R. § 4.40; Johnston v. Brown, 10 Vet. App. 80, 85 (1997). Nonetheless, a 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). [Because the Veteran is right-handed, the left shoulder disability is evaluated as the minor joint.] Post TKR shoulder disability (and here the entire evaluation period is more than a year after the implantation) is rated under Code 5051 which provides (after a 1 year period post-implantation) for a maximum rating (for the minor shoulder) of 50 percent when there are chronic residuals of severe painful motion or weakness in the affected extremity. A note following states: With intermediate degrees of residual weakness, pain, or limitation of motion, rate by analogy to Codes 5200 5203. 38 C.F.R. § 4.71A. Code 5200 (for ankylosis of the scapulohumeral joint) does not apply as the Veteran’s left shoulder is not shown, or alleged, to be ankylosed. [and the maximum rating for the minor shoulder under that Code is 40 percent.] Code 5203 (for impairment of the clavicle or scapula) does not apply as the pathology required (dislocation, malunion, and non-union) is not shown. [And the maximum rating under that Code is 20 percent.] Under Code 5201 (for limitation of shoulder motion), a maximum schedular rating of 30 percent is warranted where there is limitation of minor arm motion to 25 degrees from the side. 38 C.F.R. § 4.71a. Code 5202 provides for a 70 percent rating for impairment of humerus of the minor shoulder where is loss of head (flail joint). As the Veteran has indicated such pathology would not be present where (as here) there has been a successful functioning TSR. The shoulder is not loose (excessively mobile). So that Code has not applicability. To the extent that the Veteran may be arguing he has left shoulder disability equivalent to flail joint, that allegation is not supported either by clinical data in the record or (even) by his own descriptions of related impairment. There are no schedular criteria that provide for a rating higher than 50 percent for a minor shoulder disability (other than Code 5202, which is discussed above, and the diagnostic codes pertaining to amputations, which likewise have no applicability as the Veteran’s shoulder has not been amputated (and loss of use is not alleged, or suggested by the record). Considering the foregoing, the only basis for substantiating the claim for a rating in excess of 50 percent for the left (minor) post TSR shoulder disability would be by extraschedular evaluation (upon referral to the Director of Compensation Service or his/her delegate. Such referral is warranted when needed to accord justice to the exceptional case where the schedular evaluation is inadequate to rate a single service-connected disability. 38 C.F.R. § 3.321(b). Here, the nature and degree of severity of the Veteran’s post-TSR left shoulder disability are entirely encompassed by the schedular criteria under Code 5051 which provides for the 50 percent rating that has been assigned when there are residual severe painful motion and weakness. That is the degree of severity he has specifically alleged/reported. The types of impairment he describes (e.g., inability to sleep on the left shoulder, pain that requires strong medication) are contemplated by the schedular criteria, and those criteria are not inadequate to rate the disability. The disability picture presented is not one that is exceptional or unusual, and referral for consideration of an extraschedular rating is not warranted. Finally, the Veteran has been assigned a TDIU rating for throughout the period for consideration, and the matter of entitlement to a TDIU rating is not raised in the context of this claim for increase. The preponderance of the evidence is against this claim. Therefore, the appeal in the matter is denied. GEORGE R. SENYK Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D. Schechner, 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.