Citation Nr: 21003558 Decision Date: 01/21/21 Archive Date: 01/21/21 DOCKET NO. 13-21 704 DATE: January 21, 2021 ORDER Entitlement to a rating in excess of 20 percent for rotator cuff (RC) strain, left (minor) shoulder, is denied. FINDING OF FACT The preponderance of the evidence of record shows that the left (minor) RC strain has manifested with arm limitation of motion (LOM) no worse than at shoulder level. CONCLUSION OF LAW The criteria for entitlement to a rating in excess of 20 percent for RC strain, left (minor) shoulder have not been met. 38 U.S.C. §§ 1155, 5107); 38 C.F.R. §§ 4.1, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code (DC) 5201. REASONS AND BASES FOR FINDING AND CONCLUSION Upon initial review of this case the Board remanded it for additional development. See 02/06/2020 BVA Decision. As discussed in detail later in this decision, the Board finds that the Agency of Original Jurisdiction (AOJ) substantially complied with the remand directive. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Entitlement to a rating in excess of 20 percent for RC strain, left (minor) shoulder, is denied. Legal Requirements for Increased Rating Disability ratings are intended to compensate for impairment in earning capacity due to a service-connected disorder. 38 U.S.C. § 1155. Separate diagnostic codes identify the various disabilities. 38 C.F.R. § 4.27. It is necessary to rate the disability from the point of view of the Veteran working or seeking work, see 38 C.F.R. §§ 4.1, 4.2, and to resolve any reasonable doubt regarding the extent of the disability in the Veteran’s favor. 38 C.F.R. § 4.3. Evaluations are based on functional impairments which impact a veteran’s ability to pursue gainful employment. 38 C.F.R. § 4.10. If there is a question as to which disability rating to apply to the Veteran’s disability, the higher rating will be assigned if the disability picture more nearly approximates the criteria for that rating, otherwise the lower rating will be assigned. 38 C.F.R. § 4.7. In view of the number of atypical instances it is not expected, especially with the more fully described grades of disabilities, that all cases will show all the findings specified. Findings sufficiently characteristic to identify the disease and the disability therefrom, and above all, coordination of rating with impairment of function will, however, be expected in all instances. 38 C.F.R. § 4.21. In considering the severity of a disability, it is essential to trace the medical history of the Veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41. Consideration of the whole-recorded history is necessary so that a rating may accurately reflect the elements of disability present. 38 C.F.R. § 4.2; see Peyton v. Derwinski, 1 Vet. App. 282 (1991). In general, the degree of impairment resulting from a disability is a factual determination, and generally the Board’s primary focus in such cases is upon the current severity of the disability. Francisco v. Brown, 7 Vet. App. 55, 57-58 (1994). Nonetheless, separate, or staged, ratings can be assigned for separate periods during the rating period on appeal based on the facts found. See Hart v. Mansfield, 21 Vet. App. 505 (2007). Rating Criteria With respect to range of motion (ROM), normal ROM for the shoulder is 0 to 180 degrees on both elevation (flexion) and abduction, and 0 to 90 degrees on external and internal rotation. See 38 C.F.R. § 4.71a, Plate I. Shoulder limitation of motion (LOM) is rated under 38 C.F.R. § 4.71a, DC 5201, for LOM of the arm. Under those criteria, LOM of the arm at shoulder level warrants a 20 percent rating for both the major and minor extremity; LOM of the arm midway between side and shoulder warrants a 20 percent rating for the minor extremity; and, LOM of the arm to 25 degrees from side warrants a maximum 30 percent rating for the minor joint. Id. Diagnostic Code 5201 “does not provide separate ratings for LOM in the flexion and abduction planes, but rather is addressed generically to LOM of the arm.” Yonek v. Shinseki, 722 F.3d 1355, 1358 (Fed. Cir. 2013). When evaluating musculoskeletal disabilities based on LOM, 38 C.F.R. § 4.40 requires consideration of functional loss caused by pain or other factors listed in that section that could occur during flare-ups or after repeated use and, therefore, not be reflected on range-of-motion testing. 38 C.F.R. § 4.45 requires consideration also be given to less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement. See DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011). Nonetheless, even when the background factors listed in § 4.40 or 4.45 are relevant when evaluating a disability, the rating is assigned based on the extent to which motion is limited, pursuant to 38 C.F.R. § 4.71a; a separate or higher rating under § 4.40 or 4.45 itself is not appropriate. See Thompson v. McDonald, 815 F.3d 781, 785 (Fed. Cir. 2016) (“[I]t is clear that the guidance of § 4.40 is intended to be used in understanding the nature of the veteran’s disability, after which a rating is determined based on the § 4.71a criteria.”). Under 38 C.F.R. § 4.59, painful motion is a factor to be considered with any form of arthritis; however, 38 C.F.R. § 4.59 is not limited to disabilities involving arthritis. See Burton v. Shinseki, 25 Vet. App. 1 (2011). Discussion Historically, a June 2007 rating decision granted service connection for the left RC and assigned an initial 10 percent rating, effective in April 2007. See 06/06/2007 Rating Decision – Narrative. VA received the Veteran’s informal claim of entitlement to an increased rating in January 2010. See 01/20/2010 VA 21-4138. The AOJ arranged an examination to determine the then current status of the Veteran’s left RC disability. The examination report (02/10/2010 VA Examination, 1st Entry) reflects that the Veteran reported that he had not undergone any treatment for rotator cuff. He reported occasional crepitus and complained of daily pain anteriorly, which he described as of an aching nature. The Veteran assessed the severity of his pain as 6/10, which flared to 8/10 on repeat use. The flares occurred three times a week and could last up to 12 hours. Naprosyn, 500 mg, twice daily provided relief. He denied any swelling, instability, subluxation, or dislocation. He also denied having experienced any incapacitating episodes over the prior 12 months. Id. P. 1. The Veteran reported that he worked full time as a tool room attendant at an arsenal, and that he was not under any current work restrictions. Nonetheless, he reported that he could not lift, push, or pull over 10 pounds with his left upper extremity (LUE), and he sought to minimize his overhead work. During flares caused by repeat use, he decreased his lifting to items under 10 pounds, and he decreased overhead work until the flare resolved. He did not use or wear a brace. Id. P. 2. Physical examination revealed tenderness anteriorly but no erythema or swelling. ROM on flexion was normal at 0 to 180 degrees, and 0 to 110 degrees on abduction. External and internal rotation were 0 to 90 degrees. The examiner noted that there was discomfort anteriorly and crepitus on all planes of motion. The examiner noted that there was no additional weakness, fatigability, discoordination, additional restrictive ROM, or loss of joint function with use or against resistance times 3. Passive and active ROM were the same on three repetitions. Upon receipt of the examination report, the AOJ continued the 10 percent rating based on the noted discomfort on motion. See 09/08/2010 Rating Decision – Narrative. The Board noted, however, that the rating decision was promulgated prior to key decisions by the Court of Appeals for Veterans Claims that address how evaluations based on LOM are assigned. See, e.g., Mitchell v. Shinseki, 25 Vet. App. 32 (2011), et al. As a result, the examiner did not indicate in the examination report whether the Veteran’s LOM or pain on motion resulted in functional loss. As set forth above, he did indicate that there was no additional functional loss. The Board resolves this ambiguity in the Veteran’s favor. See 38 C.F.R. §§ 3.102, 4.3. Hence, the Board interprets no additional loss to mean that there was in fact functional loss due to the Veteran’s pain and LOM, but no additional loss based on repeat use or flares. See Sharp v. Shulkin, 29 Vet. App. 26 (2017). The Board also notes the examination finding of pain and crepitus on ROM, and that it appears that the discomfort was throughout the ROM. Painful motion is entitled to at least the minimum compensable rating for a joint. Southall-Norman v. McDonald, 28 Vet. App. 346 (2016). The minimum rating for the non-dominant arm is 20 percent. 38 C.F.R. § 4.71a, DC 5201. At the Board hearing, the Veteran’s testimony indicated that his left RC had increased in severity. See 09/22/2016 Hearing Testimony. Hence, the Board remanded for current findings. See 10/17/2017 BVA Remand. While the case was on remand the AOJ assigned an increased rating from 10 to 20 percent, effective January 20, 2010, the date the Veteran’s claim was received. See 38 C.F.R. § 3.400. See 08/27/2019 Rating Decision – Narrative, P. 3. The AOJ also arranged an examination as directed in the October 2017 remand. In light of the AOJ’s action and in the interest of brevity, the Board limits its review to whether there is a factual basis for a 30 percent rating, which is the highest rating for the minor upper extremity under DC 5201. To warrant a 30 percent rating, arm ROM must be limited to 25 degrees from the side. Id. The 2019 examination report (03/28/2019 C&P Exam, 1st Entry) reflects that the examiner conducted a review of the claims file as part of the examination, and she took and recorded the Veteran’s reported history. The Veteran reported current symptoms of pain on use and when at rest; LOM when reaching above his head and reaching out. He also reported that his shoulder snaps and pops a lot with use, and it sometimes goes numb. He denied receiving any treatment. Id. P. 4. Physical examination revealed ROM on flexion of 0 to 120 degrees and 0 to 130 degrees on abduction. The examiner noted that the LOM did not cause functional loss. External and internal rotation was 0 to 70 degrees. The examiner noted that there was pain on flexion and external rotation, which caused functional loss, and evidence of crepitus. There was no additional loss of ROM on repetitive-use testing. Id. P. 5-6. Strength was normal, and the examiner noted that there was no evidence of pathology rated under DC 5202. Id. P. 11, 13-14. The objective findings on clinical examination show that the Veteran’s left rotator cuff disability did not meet or approximate the criteria for a rating higher than 20 percent. 38 C.F.R. § 4.71a, DC 5201. On further review of the case the Board noted that the examiner did not assess if the Veteran would experience additional loss of ROM due to flareups or on repeat use. See Sharp, 29 Vet. App. 26. Hence, the Board remanded so that the examiner or a substitute examiner could conduct the Sharp assessment. The report of the review (08/15/2020 C&P Exam) reflects that a physician reviewed the claims file and made the assessment. The reviewer opined that based on the findings at the March 2019 VA examination the Veteran would experience an additional loss of 10 degrees of ROM on flexion, and an additional loss of 5 degrees of ROM on abduction. The examiner opined further that the Veteran would experience an additional loss ROM of 5 degrees in all planes on repeat use. Id. P. 3. This means that when the Veteran’s disability is stressed by flares or repeat use, his ROM on flexion is 0 to 105 degrees (120 – 15), and 0 to 120 degrees on abduction (130 – 10). Those values show that the left arm ROM still exceeds shoulder level. See 38 C.F.R. § 4.71a, Plate I. As noted earlier, ROM limited to shoulder level warrants the assigned 20 percent rating. There is no factual basis for a higher rating for humerus pathology under DC 5202. The Veteran’s outpatient records do not contain any findings that would indicate that a higher rating is warranted. The March 2019 examination report reflects that the examiner added degenerative joint disease (DJD) to the Veteran’s diagnosis, as x-rays revealed arthritis. 03/28/2019 C&P Exam, 1st Entry, P. 2 and 2nd Entry. The August 2020 report reflects that the reviewer opined that the DJD is in fact a progression of the Veteran’s left RC disability. This does not impact the Veteran’s rating, as degenerative arthritis is rated on the basis of LOM of the joint involved. See 38 C.F.R. § 4.71a, DC 5003. Nonetheless, the AOJ should take action to add DJD to the description of the Veteran’s left RC disability. The Board notes the argument on the Veteran’s behalf in the appellate brief submitted by his representative, see 11/20/2020 Appellate Brief, but as discussed in the decision above, there is no factual basis for a rating higher than 20 percent. The Veteran is entitled to a staged rating for any part of the rating period on appeal where his disability manifested at a more severe rate. The Board finds, however, that there is no factual basis for a staged rating, as the right wrist has manifested at the same rate throughout the rating period on appeal. In sum the Board finds that the preponderance of the evidence is against a rating higher than 20 percent for any part of the rating period. 38 C.F.R. §§ 4.1, 4.40, 4.45, 4.59, 4.71a, DC 5201. Since the preponderance of the evidence is against the claim, there is no reasonable doubt to resolve. Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990); 38 C.F.R. § 3.102. Eric S. Leboff Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board W. T. Snyder 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.