Citation Nr: 21004047 Decision Date: 01/25/21 Archive Date: 01/25/21 DOCKET NO. 13-31 014 DATE: January 25, 2021 ORDER A disability rating in excess of 40 percent for right shoulder degenerative joint disease with impingement from February 1, 2017 is denied. FINDING OF FACT For the entire rating period on appeal from February 1, 2017, the degenerative joint disease of the right (major) shoulder has been manifested by limited motion of the arm to 25 degrees from the side. CONCLUSION OF LAW For the entire rating period on appeal from February 1, 2017, the criteria for an increased disability rating in excess of 40 percent for the degenerative joint disease of the right shoulder have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71, 4.71a, Diagnostic Code 5003-5201. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the Air Force from March 1976 to March 1980 during Peacetime. The degenerative changes of the right shoulder were initially rated 30 percent disabling. On appeal, the Board rated the degenerative changes as 40 percent disabling from September 12, 2012 to September 15, 2016. The Board remanded for further examination for the rating period after September 15, 2016. The Veteran underwent right shoulder surgery on September 15, 2016. Following the Board decision, the Agency of Original Jurisdiction (AOJ) rated the right shoulder at 100 percent from September 15, 2016 to February 1, 2017 due to the shoulder surgery and related convalescence (38 C.F.R. § 4.30), followed by a 40 percent rating from February 1, 2017. Rating degenerative joint disease of the right shoulder from February 1, 2017 A disability of the musculoskeletal system is primarily the inability to perform the normal working movements of the body. The inability to perform normal movements is shown by the anatomical damage and the functional loss. 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 innervation, 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 which 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. A joint disability can be determined by examining whether there is (a) less movement than normal (due to ankylosis, limitation or blocking, adhesions, tendon-tie-up, contracted scars, etc.); (b) more movement than normal (from flail joint, resections, nonunion of fracture, relaxation of ligaments, etc.); (c) weakened movement (due to muscle injury, disease or injury of peripheral nerves, divided or lengthened tendons, etc.); (d) excess fatigability; (e) incoordination (impaired ability to execute skilled movements smoothly); or (f) pain on movement, swelling, deformity or atrophy of disuse. Instability of station, disturbance of locomotion, interference with sitting, standing and weight-bearing are related considerations. For the purpose of rating disability from arthritis, the shoulder, elbow, wrist, hip, knee, and ankle are considered major joints; multiple involvements of the interphalangeal, metacarpal and carpal joints of the upper extremities, the interphalangeal, metatarsal and tarsal joints of the lower extremities, the cervical vertebrae, the dorsal vertebrae, and the lumbar vertebrae, are considered groups of minor joints, ratable on a parity with major joints. The lumbosacral articulation and both sacroiliac joints are considered to be a group of minor joints, ratable on disturbance of lumbar spine functions. 38 C.F.R. § 4.45. With any form of arthritis, painful motion is an important factor of disability: the intent of the schedule is to recognize painful motion with joint or periarticular pathology as productive of disability. It is the intention to recognize actually painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. Crepitation either in the soft tissues such as the tendons or ligaments, or crepitation within the joint structures should be noted carefully as points of contact which are diseased. Flexion elicits such manifestations. The joints involved should be tested for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with the range of the opposite undamaged joint. 38 C.F.R. § 4.59. VA must consider whether a higher rating is necessary based on a greater limitation of motion due to pain on use or during flare-ups. Deluca v. Brown, 8 Vet. App. 202 (1995). Functional limitations are applied to the schedular rating criteria to ascertain whether a higher schedular rating can be assigned based on limitation of motion due to pain and during flare-ups, and should be expressed in schedular rating terms of degree of range-of-motion loss. 38 C.F.R. § 4.59; Burton v. Shinseki, 25 Vet. App. 1 (2011); Deluca v. Brown, 8 Vet. App. 202 (1995). For the rating period on appeal from February 1, 2017, the Veteran is in receipt of a 40 percent rating for the service-connected degenerative joint disease of the right shoulder under 38 C.F.R. § 4.71A, DC 5003-5201. Under DC 5201, 40 percent is the highest rating possible for shoulder limitation of motion that is not ankylosed. The only arm and shoulder diagnostic codes that could provide the Veteran a higher rating for the right shoulder are DC 5200 and DC 5202. Under DC 5200, a 50 percent disability rating is warranted where the veteran has unfavorable ankylosis of scapulohumeral articulation with abduction limited to 25 degrees. Under DC 5202, a 50 percent disability rating is warranted where the veteran has fibrous union of the humerus. 38 C.F.R. § 4.71A. At a VA examination in August 2018, a VA examiner determined that there was no ankylosis, which finding is consistent with the clinical measures and descriptions of shoulder impairment. The VA examiner also determined that there was no humerus impairment, and no additional decrease in motion after repetitive use. Even after repetitive use, right shoulder abduction was 140 degrees. While pain on range of motion for abduction was noted, the pain did not limit abduction below 140 degrees. The VA examiner also noted that the muscle strength of the right shoulder was 5 out of 5, and that there was no evidence of muscle atrophy. The Veteran received private treatment for right shoulder pain between October 2017 and April 2018. Similarly, private treatment records from February 1, 2017 are silent for any diagnosis or findings of ankylosis or a humerus disorder. The records do not indicate that the Veteran has described any guarding of the right shoulder. (Continued on the next page)   During both VA and private treatment, the Veteran did not report severe pain of the right shoulder. In January 2017, the Veteran reported during treatment at VA that the right shoulder pain was 0 out of 10, characterized as primarily stiffness and aching without pain. See January 2017 VA Treatment Record. Private treatment reports similarly show no complaints of severe pain of the right shoulder. Private treatment records do show a complaint of severe pain of the lower back. See April 2018 Private Treatment Record. Regarding a potential increase under DC 5200, the Board finds that the weight of the evidence is against finding ankylosis of the right shoulder. Similarly, under a potential increase under DC 5202, the Board finds that the weight of the evidence shows that the right shoulder disability has not manifested in a fibrous union of the humerus. For these reason, the Board finds that, for the entire rating period on appeal from February 1, 2017, the degenerative joint disease of the right shoulder has been manifested by limited motion of the arm to 25 degrees from the side, consistent with a 40 percent disability rating; therefore, the criteria for an increased disability rating in excess of 40 percent for degenerative joint disease of the right shoulder are not met. 38 C.F.R. §§ 4.3, 4.7, 4.71a. J. PARKER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Charles Plambeck 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.