Citation Nr: 21002919 Decision Date: 01/19/21 Archive Date: 01/19/21 DOCKET NO. 15-34 857 DATE: January 19, 2021 ORDER Entitlement to an initial disability rating in excess of 20 percent for left shoulder strain/sprain with arthropathy (left shoulder disability) is denied. FINDING OF FACT The left shoulder disability has not manifested with left arm limitation of motion to 25 degrees from side at any point during the appeal period. CONCLUSION OF LAW The criteria for a disability rating in excess of 20 percent for a left shoulder disability have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.2, 4.3, 4.7, 4.10 4.27, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5201-5019. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served in the United States Army from October 1977 to December 1978. The Veteran was afforded a videoconference hearing before the undersigned Veterans Law Judge on May 2, 2019. A copy of the transcript is located in the Veteran’s claims file. In October 2019, the Board of Veterans’ Appeals (Board) remanded the Veteran’s claim for further development. The Board directed the Agency of Original Jurisdiction (AOJ) to obtain updated VA records and obtain the records from Kai Quinn, M.D. Additionally, the AOJ was to schedule the Veteran for an examination to determine the severity of his left shoulder disability. The AOJ partially granted the Veteran’s claim and increased his disability rating to 20 percent from April 30, 2013. In October 2020, the Board remanded the claim again to have the AOJ inform the Veteran that VA attempted to obtain the medical records in December 2019 from Dr. Kai Quinn/Dr. Michael Daley’s office in West End, North Carolina, and VA was informed by that office that a fee was required for processing the records request. The AOJ informed the Veteran of this information in October 2020 and no response was received from the Veteran. The Board finds that the Board’s remand directives have been substantially complied with and that VA has fulfilled its duty to assist, and the Board will now evaluation the Veteran’s claim on its merits. Entitlement to an initial disability rating in excess of 20 percent for left shoulder strain/sprain with arthropathy (left shoulder disability) The Veteran believes that his left shoulder disability warrants a higher disability rating. In the Veteran’s August 2014 Notice of Disagreement, he stated that he believes his left shoulder disability warrants a 70 percent disability rating. The Veteran stated that his left shoulder disability is connected to his spinal injury, which connects to his legs and knees, and caused him pain and suffering for many years. During his Board hearing, the Veteran testified that he has difficulty washing his back and he cannot button the top buttons on his shirts. He rated the pain at a 5 and it can flare up to a 9. Disability evaluations are determined by evaluating the extent to which a Veteran’s service-connected disability adversely affects the Veteran’s ability to function under the ordinary conditions of daily life, including employment, by comparing the Veteran’s symptomatology with the criteria set forth in the Schedule for Rating Disabilities. 38 C.F.R. Part 4. The percentage ratings represent as far as can practicably be determined the average impairment in earning capacity resulting from such diseases and injuries and the residual conditions in civilian occupations. Generally, the degree of disabilities specified are considered adequate to compensate for considerable loss of working time from exacerbation or illness proportionate to the severity of the several grades of disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Any reasonable doubt regarding the degree of disability will be resolved in favor of the Veteran. 38 C.F.R. § 4.3. Disability of the musculoskeletal system is primarily the inability, due to damage or infection in 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 upon which ratings are based adequately portray the anatomical damage, and the functional loss, with respect to all these elements. The 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 innervations, or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by the 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. A little used part of the musculoskeletal system may be expected to show evidence of disuse, either through atrophy, the condition of the skin, absence of normal callosity or the like. 38 C.F.R. § 4.40. Evidence of pain, weakened movement, excess fatigability, or incoordination must be considered in determining the level of associated functional loss, taking into account any part of the musculoskeletal system that becomes painful on use. The provisions regarding the avoidance of pyramiding do not forbid consideration of a higher rating based on greater limitation of motion due to pain on use, including flare ups. However, those provisions should only be considered in conjunction with the DCs predicated on limitation of motion. 38 C.F.R. §§ 4.40, 4.45. 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. However, the evaluation of painful motion as limited motion only applies when the limitation of motion is noncompensable under the applicable DC. In July 2020, the Veteran was granted an increased disability rating from 10 percent to 20 percent for his left shoulder disability, effective April 30, 2013. The Veteran’s left shoulder disability has been rated under DC 5201-5019. Hyphenated DCs are used when a rating under one DC requires use of an additional DC to identify the basis for the assigned rating; the additional code is shown after the hyphen. Under DC 5201, limitation of motion of the major extremity at the shoulder level warrants a 20 percent rating. Limitation of motion midway between the side and shoulder level warrants a 20 percent rating in the minor extremity and a 30 percent rating for the major extremity. Where motion is limited to 25 degrees from the side, a 30 percent rating is warranted for the minor extremity and a 40 percent rating is warranted for the major extremity. 38 C.F.R. § 4.71a, DC 5201. The normal ranges of motion of the shoulder are 180 degrees of forward elevation (flexion) and abduction (90 degrees is shoulder level), and 90 degrees of internal and external rotation. 38 C.F.R. § 4.71, Plate I. The Veteran is right-handed, so the analysis pertaining to the left shoulder disability on appeal shall be in reference to the minor extremity. The Board has carefully reviewed the evidence of record and finds that the preponderance of the evidence is against the award of a disability rating in excess of 20 percent for the left shoulder disability. The reasons follow. The evidence shows that the Veteran’s left shoulder disability does not result in limitation of the motion of the left arm to 25 degrees or less from the side to warrant a 30 percent rating. At worst, the Veteran’s left shoulder flexion was limited to 110 degrees, as found in the December 2019 VA examination, and abduction to 100 degrees, as found at the April 2014 VA examination. In April 2014, the Veteran was provided with a VA examination. During that examination, the Veteran’s left shoulder flexion was limited to 130 degrees, abduction to 100 degrees, internal rotation to 50 degrees, and external rotation to 40 degrees. There was painful motion noted at 120 degrees of flexion and 100 degrees of abduction. The examiner found the Veteran had additional limitations in his range of motion in the shoulder following repetitive-use testing, such as pain and less movement. There was no localized tenderness or pain on palpation. The Veteran did not have ankylosis. The Veteran had positive results for the Hawkins’ Impingement Test on the left side, but had a negative result on the Empty-can Test, External Rotation/ Infraspinatus Strength Test, and the Lift-off Subscapularis Test. The Veteran was provided with another VA examination in December 2019. During the December 2019 VA examination, the Veteran’s left shoulder flexion was limited to 110 degrees, abduction to 110 degrees, internal rotation to 50 degrees, and external rotation to 50 degrees. The examiner noted that the Veteran’s abnormal range of motion resulted in functional loss, such that the Veteran had difficulty with his range of motion secondary to increased pain and stiffness. The Veteran stated that he had difficulty lifting heavy items and raising his arm above his head. The Veteran was found to have pain on flexion and abduction resulting in functional loss, as well as pain on weight bearing. The examiner found no objective evidence of localized tenderness or pain on palpation of the joint or associated soft tissue. The examiner found objective evidence of crepitus. No ankylosis was found. There was no rotator cuff condition, shoulder instability, or clavicle, scapula, acromioclavicular joint, or sternoclavicular joint condition suspected. The Board has considered the Veteran’s lay statements of record, which are probative evidence insofar as they report observable symptomatology; however, to the extent that the Veteran asserts that his left shoulder disability is worse than shown by the objective medical evidence of record, the Board finds that the clinical findings by a medical professional are more probative as to the severity of the disability, particularly when the examiner provided detailed clinical findings as to range of motion, functional loss, and muscle strength. Additionally, the Veteran had claimed that his disability should be rated higher, and the AOJ had increased his rating from 10 to 20 percent. Thus, to that extent, his claim was granted. In order to warrant an increased disability rating in excess of 20 percent for his left shoulder disability, the Veteran would need to display limitation of motion of the arm to 25 degrees or less from the side. Significantly, however, the preponderance of the evidence is against the Veteran’s left shoulder disability manifesting to 25 degrees or less from the side. As such, an increased disability rating is not warranted under DC 5201. The Board has considered the effects of the Veteran’s symptoms, including pain and functional loss, and the Board concludes that the preponderance of the evidence is against a finding of limitation of the motion of the left arm to 25 degrees or less from the side, which is the criteria needed for a 30 percent rating. The examination results show that the Veteran had full (5/5) muscle strength at his April 2014 VA examination and active movement against some resistance (4/5) muscle strength in his left shoulder at the December 2019 VA examination. Strength that is full is evidence against weakness, and strength rated 4/5 is evidence of some weakness, but the Board finds that the 20 percent rating contemplates the slight weakness the Veteran has in the left upper extremity. Taking into account the evidence of record indicating the Veteran’s regular complaints of pain and other findings of functional loss, the Board finds that the preponderance of the evidence is against a finding that the Veteran’s pain and functional limitations resulted in limitation of the motion of the left arm to 25 degrees or less from the side, which would be required for a finding that the Veteran was entitled to a 30 percent disability rating. The 20 percent rating contemplates, at a minimum, moderate functional impairment. Thus, a higher rating under the provisions of 38 C.F.R. §§ 4.40 and 4.45 is not approximated in the Veteran’s disability picture for this appeal period. The Board has also considered the potential applicability of DCs 5200-5203, which contemplate additional disabilities of the shoulder and arm. See 38 C.F.R. § 4.71a, DCs 5200-03. DC 5200 provides rating criteria for ankylosis of scapulohumeral articulation, where the scapula and humerus move as one piece; DC 5202 provides rating criteria regarding impairment of the humerus; and DC 5203 provides rating criteria regarding impairment of the clavicle or scapula. The objective evidence of record, including as discussed above, does not support any form of ankylosis of scapulohumeral articulation, impairment of the humerus, and the Veteran’s impairment of the clavicle is not manifested by nonunion, malunion, or dislocation of the clavicle or scapula; as such, the application of DCs 5200-5203 is not warranted. In sum, the preponderance of the evidence is against an initial disability rating in excess of 20 percent for the Veteran’s left shoulder disability is warranted. As the preponderance of the evidence is against the claim for a higher rating, the benefit of the doubt doctrine is not for application, and the Veteran’s claim for an increased rating is denied. See 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3. A. P. SIMPSON Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board N. Griffin, 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.