Citation Nr: 21002761 Decision Date: 01/14/21 Archive Date: 01/14/21 DOCKET NO. 17-35 362 DATE: January 14, 2021 ORDER Entitlement to a rating in excess of 20 percent for a right shoulder disability is denied. REMANDED Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. FINDING OF FACT The evidence reflects that the Veteran’s service-connected right shoulder disability was manifested by limitation of motion from midway between the side of the body and shoulder level; limitation of motion to 25 degrees from the side of the body is not shown. CONCLUSION OF LAW The criteria for a rating in excess of 20 percent for a right shoulder disability have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5201. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from May 1977 to August 1978 and from April 1996 to July 2003. In December 2018, the Board previously remanded this appeal for additional development. In a January 2020 rating decision, the RO increased the Veteran’s right shoulder disability rating to 20 percent, effective from August 25, 2014, the entire period on appeal. Since that grant did not constitute a full grant of the benefits sought on appeal, the claim for increase is still before the Board. AB v. Brown, 6 Vet. App. 35 (1993). Increased Rating Disability ratings are determined by the application of a schedule of ratings that is based on average impairment of earning capacity. 38 U.S.C. § 1155. Percentage ratings are determined by comparing the manifestations of a particular disability with the requirements contained in VA’s Schedule for Rating Disabilities. The percentage ratings contained in the Rating Schedule represent, as far as can practically be determined, the average impairment in earning capacity resulting from a disease or injury and the residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. The Veteran is seeking entitlement to a rating in excess of 20 percent for his right shoulder disability, diagnosed as a right shoulder strain. As noted above, the RO increased the Veteran’s rating to 20 percent for the entire period on appeal in a January 2020 rating decision, so effective from August 25, 2014. Since the Veteran filed his claim for an increased rating on August 25, 2014, the relevant temporal focus is from August 25, 2013, one year prior to the date of receipt of the claim. See 38 C.F.R. § 3.400. Disabilities of the shoulder and arm are rated under Diagnostic Codes 5200 through 5203. The Federal Circuit has held that the plain language of 38 C.F.R. § 4.71(a) confirms that a veteran is only entitled to a single disability rating under Diagnostic Code 5201 for each arm that suffers from limited motion at the shoulder joint. The diagnostic code does not provide separate ratings for limitation of motion in the flexion and abduction planes, but rather is addressed generically to “limitation of motion of” the arm. Yonek v. Shinseki, 722 F.3d 1355 (Fed. Cir. 2013). Diagnostic Codes 5200-5203 distinguish between the major (dominant) extremity and the minor (non-dominant) extremity. See 38 C.F.R. § 4.69. The evidence shows the Veteran to be right-hand dominant. See May 2015 VA Shoulder and Arm Conditions Disability Benefits Questionnaire (DBQ). Given such, the applicable rating will be assigned under the “Major” rating. Diagnostic Code 5201 provides that limitation of motion of the arm at shoulder level warrant a 20 percent rating. Limitation of motion of the arm from midway between the side and shoulder level warrants a 30 percent rating for a major extremity. Limitation of motion to 25 degrees from the side warrants a 40 percent rating for a major extremity. See 38 C.F.R. § 4.71a, Diagnostic Code 5201. Normal ranges of motion of the shoulder are flexion (forward elevation) from 0 degrees to 180 degrees, abduction from 0 degrees to 180 degrees, external rotation from 0 degrees to 90 degrees, and internal rotation from 0 degrees to 90 degrees. 38 C.F.R. § 4.71, Plate I. Factual Background The Veteran was first examined by VA in May 2015 in connection with his claim of entitlement to a higher rating for this disability. At that time, the Veteran reported intermittent pain, described as throbbing and sharp. He stated the pain is exacerbated by heavy lifting and forced internal rotation of the shoulder. He denied prior surgery or the need for any medications. The Veteran denied flare-ups but reported functional loss or impairment due throbbing radiating pain from the shoulder to the forearm with repetitive use. The examiner noted that the Veteran guarded against overutilization of his left upper extremity in general. Specific comment regarding the right shoulder was not provided. The examiner noted that the Veteran is right arm dominant. Range of motion testing revealed flexion to 165 degrees, abduction to 160 degrees, and external and internal rotation to 60 degrees, each. There was no evidence of functional loss, pain on weight-bearing, crepitus, localized tenderness, or pain on palpation. The Veteran was able to perform repetitive-use testing with at least three repetitions, and no additional loss of function or range of motion. The examiner acknowledged the Veteran was not being examined immediately after repetitive use over time, but stated that the examination neither supports nor contradicts the Veteran's statements describing functional loss with repetitive use overtime. Further, there was no evidence of pain, weakness, fatigability or incoordination significantly limiting functional ability with repeated use over a period of time, or any factors causing functional loss. There was no evidence of muscle atrophy, decreased muscle strength, ankylosis, rotator cuff conditions, or instability, dislocation, or labral pathology. Similarly, there was no evidence of clavicle, scapula, acromioclavicular (AC) joint or sternoclavicular joint conditions, or conditions of the humerus. See May 2015 VA Shoulder and Arm Conditions Disability Benefits Questionnaire (DBQ). The Veteran was next examined by VA in November 2019. See November 2019 VA Shoulder and Arm Conditions DBQ. The Veteran reported limited motion of the shoulder, difficulty raising his hand overhead or keeping it there, and slight pain when rolling on the shoulder in bed. He reported experiencing flare-ups, but stated that there was no pattern for when they occur. The Veteran reported that if he strains his shoulder doing physical work, then he experiences pain down the whole arm for a period of time. The Veteran stated that the flare-ups are moderate, lasting a few days to a couple weeks, are precipitated by physical labor, and are alleviated by time. The Veteran denied functional loss and functional impairment. Range of motion testing revealed flexion to 105 degrees, abduction to 85 degrees, external rotation to 75 degrees, and internal rotation to 50 degrees. Pain was noted on flexion and internal and external rotation, but did not result in or cause functional loss. There was evidence of pain on passive range of motion testing and pain on non-weight bearing testing of the right shoulder. Further, there was objective evidence of guarding and localized tenderness or pain on palpation of the joint or associated soft tissue, located over the long head of bicep with moderate severity. There was also objective evidence of crepitus. The Veteran was able to perform repetitive testing, which resulted in additional loss in range of motion. Following repetitive motion, range of motion testing revealed flexion to 90 degrees, abduction to 75 degrees, external rotation to 60 degrees, and internal rotation to 50 degrees. Pain, weakness, and lack of endurance were noted to be contributing factors. The examiner indicated that the Veteran was examined after repetitive use testing, but also found that pain, weakness, fatigability or incoordination did not significantly limit functional ability with repeated use over a period of time. Conversely, the Veteran was not examined during a flare-up, and the examiner found that the examination is neither medically consistent or inconsistent with the Veteran’s statements describing functional loss during flare-up. Further, the examiner noted that pain, weakness, fatigability, or incoordination did not significantly limit functional ability with flare-ups. There was no evidence of muscle atrophy, decreased muscle strength, ankylosis, rotator cuff conditions, or instability, dislocation, or labral pathology. Similarly, there was no evidence of clavicle, scapula, AC joint or sternoclavicular joint conditions, or conditions of the humerus. See November 2019 VA Shoulder and Arm Conditions DBQ. Finally, the VA examiner noted the Veteran’s statements that he cannot raise his shoulder above his head. The examiner noted that any motion with the arm over the head caused discomfort in the shoulder. There was also pain on active and passive weight bearing motion, and shoulder joint pain on active and passive non-weight bearing motion, which resulted in flexion to 90 degrees, and abduction to 75 degrees. A December 2019 VA addendum opinion included a statement that during a flare-up, the Veteran has more difficulty raising his arm above his head which is affecting the bicep when used repeatedly over a long period of time. The Board also notes that there are VA and private treatment records associated with the claims file. However, these records do not contain any additional objective range of motion of findings materially different from the findings included in the VA examinations discussed above. In fact, these records primarily refer to treatment for the left shoulder, but do also show the Veteran’s continued complaints of pain throughout the pendency of the appeal. See March 2008 Treatment Record. Analysis The Board finds that the Veteran’s symptoms of his right shoulder disability most closely approximate the criteria for the currently assigned 20 percent rating. In this case, the Veteran’s limitation of motion for forward flexion was limited to, at worst, 90 degrees and abduction was limited to, at worst, 75 degrees. See November 2019 VA Shoulder and Arm Conditions DBQ. He has also reported right shoulder pain, limitation of motion, lack of endurance, an inability to perform overhead activities, and flare-ups. See May 2015 and November 2019 VA Shoulder and Arm Conditions DBQs. The Board notes that the Veteran has consistently reported pain and the inability to lift his arms, especially during flare-ups. Nevertheless, the evidence does not demonstrate that limitation of the right arm is to 25 degrees from the side at any time during the pendency of this appeal. Id. As such, an increased 30 percent rating is not warranted. The Board has also considered whether a higher rating is warranted under any other diagnostic code for the shoulder. In this respect, an evaluation in excess of 20 percent is available if there is ankylosis of the scapulohumeral articulation, recurrent dislocation of the humerus with frequent episodes and guarding of all arm movements, fibrous union of the humerus, nonunion of the humerus (false flail joint), loss of head of the humerus (flail shoulder), or malunion of the humerus with marked deformity. 38 C.F.R. § 4.71a, Diagnostic Codes 5200, 5202. The Board notes, however, that the Veteran’s right shoulder is not productive of ankylosis of scapulohumeral articulation or impairment of the humerus. The VA examinations specifically note no ankylosis, no shoulder instability, and no impairment of the humerus. See May 2015 and November 2019 VA Shoulder and Arm Conditions DBQs. Thus, the Board finds that Diagnostic Codes 5200 and 5202 are not for application. The Board also finds that even when considering the Veteran’s reported right shoulder symptomatology including pain and limitation of motion, the reported symptomatology does not, when viewed in conjunction with the medical evidence, tend to establish additional limitations of motion to the degree that would warrant a rating in excess of 20 percent at any point during the appeals period under 38 C.F.R. §§ 4.40, 4.45, 4.59, and the holding in DeLuca. Here, the May 2015 VA examiner found no additional limitations due to pain, fatigue, weakness, lack of endurance, or incoordination after repetitive use. See May 2015 VA Shoulder and Arm Conditions DBQ. However, even when the November 2019 VA examiner noted pain, weakness, and lack of endurance were found to be contributing factors after repetitive use, there were no additional functional limitations due to pain, fatigue, weakness, lack of endurance, or incoordination after repetitive use testing. In addition, the discussion above reflects that all the symptoms of the Veteran’s service-connected right shoulder disability are contemplated by the applicable rating criteria. The various functional loss factors of his disability, including pain, weakness, and lack of endurance have been fully considered and are contemplated in the rating schedule. That is, the Board finds that these symptoms are contemplated under the relevant rating criteria and under the Deluca criteria, including §§ 4.40 and 4.45, which compensate for limitation of motion, and symptoms such as pain, weakness, and instability producing functional limitations. 38 C.F.R. § 4.40, 4.45, 4.59; Correia v. McDonald, 28 Vet. App. 158, 169-170 (2016); Sharp v. Shulkin, 29 Vet. App. 26, 33 (2017). The Board considered the notation in the November 2019 examination report indicating there were contributing factors of pain, weakness, and lack of endurance with repeated use over a period of time and during flare-ups. In Sharp v. Shulkin, 29 Vet. App. 26 (2017), the United States Court of Appeals for Veterans Claims (Court) noted that for a joint examination to be adequate, the examiner “must express an opinion on whether pain could significantly limit” a veteran’s functional ability, and that determination “should, if feasible, be portrayed in terms of the degree of additional range-of-motion loss due to pain on use or during flare-ups.” Unfortunately, the examiner was not able to indicate the degree of limitation of motion on flare-up, as it was noted the Veteran was not examined during a flare-up. However, the examiner found that the examination is neither medically consistent or inconsistent with the Veteran’s statements describing functional loss during flare up. The examiner also determined that pain, weakness, fatigability or incoordination did not significantly limit functional ability with flare-ups. See November 2019 VA Shoulder and Arm Conditions DBQ. Notably, the Veteran denied having flare-ups during the prior May 2015 examination but instead reported intermittent pain, described as throbbing and sharp; pain exacerbated by heavy lifting and forced internal rotation of the shoulder; and functional loss or impairment due to throbbing and radiating pain from the shoulder to the forearm with repetitive use. See May 2015 VA Shoulder and Arms Conditions DBQ. As for following repetitive use, while the May 2015 VA examiner found no additional loss in range of motion after repetitive use, the November 2019 examiner was able to provide range of motion findings that showed flexion to 90 degrees and abduction to 75 degrees, as noted above. See again November 2019 VA Shoulder and Arm Conditions DBQ. Thus, even with consideration of the Veteran’s reported symptoms during flare-up or following repetitive use and the symptoms found on examination, the evidence does not suggest that his motion on flare-up or after repeated use has been limited to midway between the side and shoulder level, or 25 degrees or less on flexion or abduction at any time during the pendency of the claim. Notably, muscle strength testing has been normal throughout the pendency of the appeal. See May 2015 and November 2019 VA Shoulder and Arm Conditions DBQs. The Board has carefully reviewed and considered the Veteran’s statements regarding the severity of his right shoulder disability. To that end, the Board acknowledges that the Veteran, in advancing this appeal, believes that the disability on appeal has been more severe than the assigned disability rating reflects. The Board is likewise aware of the Veteran’s contentions that his right shoulder disability impacts his daily activities and results in pain and limitation of motion. Moreover, the Board notes that the Veteran is competent to report observable symptoms such as pain and limitation of motion. See Layno v. Brown, 6 Vet. App. 465, 469 (1994). In this case, however, the competent medical evidence offering detailed, specific, and specialized determinations pertinent to the rating criteria, namely, determinations as to range of motion of the right shoulder, functional impairment, and incapacitating episodes are the most probative evidence with regard to evaluating the pertinent symptoms for the disability on appeal. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). The medical evidence also largely contemplates the Veteran’s descriptions of his symptoms, including his reports of impairment with respect to physical activities, such as lifting his arms above his head. The lay testimony has been considered together with the probative medical evidence clinically evaluating the severity of the pertinent disability symptoms. In sum, the evidence deemed most probative by the Board establishes that the Veteran’s right shoulder disability more nearly approximates the criteria for the currently assigned 20 percent rating, and a higher rating is not warranted. Since the preponderance of the evidence is against the claim, the benefit-of-the-doubt rule is not applicable. See 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990). For these reasons, the claim is denied. REASONS FOR REMAND 1. TDIU The Board finds that the evidence of record has raised the issue of entitlement to a TDIU. See November 2019 VA Shoulder and Arms Conditions DBQ; Rice v. Shinseki, 22 Vet. App. 447, 454-55 (2009) (holding that TDIU is not a separate issue that must be raised with specificity; rather, it is a component of an increased rating claim). Specifically, the VA examiner noted that the right shoulder disability would impact the Veteran’s employment in that he would experience moderate to severe pain due to difficulties above head, pushing, pulling, lifting, or carrying. Here, the AOJ has not sent the Veteran the required Veterans Claims Assistance Act (VCAA) notice letter regarding a claim for TDIU. Similarly, VA Forms 21-8940 (Veteran’s Application for Increased Compensation Based on Unemployability) and 21-4192 (Request for Employment Information in Connection with Claim for Disability Benefits) are not of record. As such, the AOJ should send the Veteran a VCAA notice letter for his TDIU claim. This notice letter must include (1) a VA Form 21-8940, and (2) a VA Form 21-4192. The AOJ should request that the Veteran fill out these TDIU forms and submit them back to the AOJ. The matter is REMANDED for the following action: 1. Send the Veteran a VCAA notice letter for his TDIU claim. This notice letter must include (1) a VA Form 21-8940, and (2) a VA Form 21-4192. The AOJ should request that the Veteran fill out these TDIU forms and submit them back to the AOJ. 2. After the above requested actions have been completed, and after any additional development deemed necessary is completed, adjudicate the TDIU claim. If the determination is not favorable, furnish the Veteran and his representative with a Supplemental Statement of the Case and allow a reasonable period of time for a response. A. C. MACKENZIE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. Berry, 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.