Citation Nr: 21004266 Decision Date: 01/26/21 Archive Date: 01/26/21 DOCKET NO. 14-14 410 DATE: January 26, 2021 ORDER Entitlement to a rating in excess of 20 percent for a left shoulder (a non-dominant) scapular strain (disability) is denied. FINDING OF FACT The Veteran’s disability of the non-dominant left shoulder has not resulted in limitation of motion to 25 degrees from side. CONCLUSION OF LAW The criteria for a rating in excess of 20 percent for a left shoulder disability have not been met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 3.102, 4.40, 4.45, 4.59, 4.7, 4.71a, Diagnostic Code (DC) 5201. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from February 2005 to September 2011. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from August 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). The Board remanded the appeal in June 2018 and October 2019 to the agency of original jurisdiction (AOJ) for further development.  The Board’s remands directives have been substantially completed. See Stegall v. West, 11 Vet. App. 268 (1998).  Entitlement to a rating in excess of 20 percent for a left shoulder disability. The Veteran seeks a rating in excess of 20 percent for his left shoulder disability. The appeal period before the Board begins on September 11, 2011, the effective date of service connection for the Veteran’s left shoulder disability. Ratings are based on a schedule of reductions in earning capacity from specific injuries or combination of injuries.  The ratings shall be based, as far as practicable, upon the average impairments of earning capacity resulting from such injuries in civil occupations. 38 U.S.C. § 1155.  Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. 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. When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability such doubt will be resolved in favor of the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3. The Veterans left shoulder disability has been evaluated pursuant to 38 C.F.R. § 4.71a, DC 5201. Under DC 5201, a 20 percent evaluation is assigned with limitation of motion to the arm to shoulder level (i.e. to 90 degrees measured to the side). When the arm in question is non-dominant, a 20 percent evaluation is also assigned when the arm is limited in motion to midway between the side and shoulder level and a 30 percent evaluation is assigned when the non-dominant arm is limited to 25 degrees from the side. When the dominant arm is involved, a 30 percent evaluation is assigned when the arm is limited in motion to midway between the side and shoulder level and a 40 percent evaluation is warranted with a showing of a limitation to 25 degrees from the side. 38 C.F.R. § 4.71a. Turning to the evidence of record, the Veteran initially underwent a VA examination for his left shoulder disability in November 2013. The Veteran reported pain and flare-ups. The examination revealed 160 degrees of flexion and abduction with painful motion at 140 degrees. The Veteran did not have an additional limitation in range of motion of his left shoulder following repetitive-use testing. The examiner noted that the Veteran has a functional loss and/or functional impairment of the left shoulder, with less movement than normal and pain on movement. No tenderness or pain on palpation or ankylosis was noted. Muscle strength testing was within normal limits. The Veteran reported that he worked with steel fence and construction activities. He also stated that he could do the work but took over the counter medication for pain. The Veteran also underwent a VA examination of his left shoulder in June 2016. He reported functional loss and flare-ups. Upon examination, the Veteran exhibited 160 degrees of flexion in the left shoulder with pain noted, causing functional loss. Abduction was to 150 degrees in his left shoulder. Both external and internal rotation were to 80 degrees. Abnormal range of motion was noted with inability to fully flex, abduct, and internally or externally rotate his left shoulder. A loss of function or range of motion to 150 degrees of flexion due to pain was noted after three repetitions. The examiner noted that the examination is medically consistent with the Veteran’s statements describing functional loss with repetitive use over time. The examiner further noted that the Veteran’s left shoulder functional ability is limited with flare-ups due to pain. Reduction in muscle strength in the left shoulder was noted. The examination revealed no muscle atrophy. The February 2018 Board decision remanded this issue for another examination in compliance with Correia requirements. See Correia v. McDonald, 28 Vet. App. 158 (2016). The Veteran underwent another VA examination for his left shoulder in May 2018. He reported functional loss and flare-ups. Upon examination, the Veteran exhibited 150 degrees of flexion in the left shoulder with pain noted, causing functional loss. Abduction was to 150 degrees. External rotation was at 90 degrees. Internal rotation was limited to 80 degrees. Tenderness or pain on palpation in the left upper medial scapula and rhomboid area was noted. There was no evidence of pain on passive range of motion testing. No additional functional loss or range of motion after three repetitions was noted. Pursuant to October 2019 Board remand directives, the Veteran was afforded an additional VA examination in December 2019 to comply with Sharp requirements. See Sharp v. Shulkin, 29 Vet. App. 26 (2017). During the December 2019 VA examination, the Veteran exhibited 180 degrees of flexion in the left shoulder with pain noted, causing functional loss. Abduction was to 140 degrees. Both external and internal rotation were to 90 degrees. No additional loss of function or range of motion was noted after three repetitions. Strength was within normal limits. Pain on abduction was noted. There was no evidence of pain with weight or nonweight bearing, no pain with passive range of motion, and the opposite joint was undamaged. The examiner noted that the examination neither supports nor contradicts the Veteran’s statements describing functional loss with repetitive use over time. The Veteran also reported flare-ups once every three weeks, which last for a day or two. The examiner noted that the examination is neither consistent nor inconsistent with the Veteran’s statements describing functional loss during flare-ups. The examiner concluded that there is no basis to offer additional losses of function or motion as to repetitive use or during flare-ups. The Board accords great probative weight to the December 2019 VA opinion as the examiner considered all of the pertinent evidence of record, to include the statements of the Veteran, and provided an opinion upon examination in compliance with Correia and Sharp. In addition, there is no contrary medical evidence of record.  Thus, the Board finds this VA opinion probative to address the Veteran’s claim.  As to the November 2013, June 2016 and May 2018 VA opinions, the Board notes that the examinations do not comply with the holdings in Correia or Sharp, and therefore finds these opinions less probative. Nonetheless, the Board will consider the adequate portions of the above VA examinations. A review of the Veteran’s competent medical evidence of record shows that the Veteran’s left shoulder radiographic studies in October 2011 showed normal alignment, mineralization and joint spaces. No fractures, dislocation, or soft tissue calcifications were noted. At an orthopedic consultation in March 2012, an examination of the Veteran’s left shoulder revealed excellent range of motion with flexion, extension and arm behind back. See VA treatment records. Some crepitation in the shoulder joint was noted with no pain. No tenderness on palpation was noted. The Veteran had a full internal and external rotation without pain. A December 2015 private treatment record shows an examination of the Veteran’s left shoulder, which revealed tenderness with palpation, tightness, and crepitus at any attempts at motion. Radiographic studies of the left shoulder showed some calcification and easily palpable crepitus. The Veteran was diagnosed with left shoulder strain with scapular pain and recommended steroid injections. An October 2016 evaluation of the Veteran’s left shoulder revealed crepitus with range of motion. Radiographic studies were unremarkable with no significant bony abnormalities identified. Another orthopedic consultation for the Veteran’s left shoulder disability in June 2017 was negative for signs of impingement. See VA treatment record. Bilateral atrophy with more musculature of the left shoulder was noted. Radiographic studies showed no remarkable findings. Overall, as noted, a review of the competent medical evidence of record indicates that the Veteran has consistently been able to abduct each arm at least to 90 degrees since he was initially granted service connection, even when considering pain. In other words, the Veteran’s non-dominant left shoulder disability has not caused a limitation of motion to 25 degrees from side at any point during the period on appeal, and the criteria for an evaluation in excess of 20 percent pursuant to DC 5201 have not been met. The Board has also considered whether higher evaluations are warranted under DC 5200 (ankylosis of the scapulohumeral articulation), DC 5202 (other impairment of the humerus), or 5203 (impairment of clavicle or scapula). As the competent evidence of record does not suggest that the Veteran has malunion or other impairment of the clavicle or scapula, malunion or other abnormality of the humerus, or ankylosis of the scapulohumeral articulation, the Board does not find that the assignment of a higher rating under those Codes is appropriate. The Veteran’s functional impairment, including pain on motion and/or guarding, is contemplated by the currently assigned 20 percent rating. 38 C.F.R. § 4.14. The Board acknowledges the Veteran's and his girlfriend’s reports that he experiences pain in his left shoulder and often requires assistance with daily activities. The Board also acknowledges the arguments of the Veteran’s representative, contending that despite the negative December 2019 VA opinion, the evidence of record is in favor of the Veteran. Nonetheless, the evidence of record shows that pain does not significantly limit the Veteran's functional ability. Again, the Veteran has exhibited mild to moderate decreased range of motion of the left shoulder throughout the pendency of the appeal, even when considering his complaints of pain. In addition, the evidence does not indicate that the Veteran needs any assistive devices for his left shoulder condition, as none of the medical professionals found him unable to take care of his activities of daily living. As such, the Veteran’s lay evidence regarding his symptoms is outweighed by the competent and credible medical evidence that evaluates the extent of impairment due to his left shoulder disability. Layno v. Brown, 6 Vet. App. 465, 470 (1994). In this regard, the Board notes that the VA examiners and treating medical professionals have the training and expertise necessary to administer the appropriate tests for a determination of the type and degree of the impairment associated with the Veteran’s complaints. For these reasons, greater evidentiary weight is placed on the examination findings as to the type and degree of his left shoulder disability impairment. Based on the foregoing, while the Veteran’s complaints have been taken into consideration, there is no evidence that his left shoulder condition experiences significant or additional functional loss beyond that contemplated by the assigned 20 percent evaluation. 38 C.F.R. § 4.71, DC 5201; 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202 (1995); Mitchell v. Shinseki, 25 Vet. App. 32 (2011); Correia, supra; Sharp, supra. At this time, the Board also points out that the record does not show that the Veteran’s left shoulder disorder rendered him unable to obtain or maintain employment, as no more than mild to moderate impairment of the left shoulder has been demonstrated throughout the appeal. In fact, prior to 2013 the Veteran remained employed and in 2014 VA examiners found that he could perform medium work versus heavy work. By rating decision dated in July 2017, entitlement to a total disability rating was granted effective May 6, 2016, based on the Veteran’s service-connected posttraumatic stress disorder and residuals of a traumatic brain injury. 38 C.F.R. § 4.16. Furthermore, despite the Veteran’s complaints of difficulty with dressing and performing other household chores, the record does not demonstrate that his left shoulder disability or other service-connected disability renders him unable to dress or undress himself, feed himself, protect himself from the hazards of nature, or attend to the wants of nature. 38 C.F.R. § 3.350. Again, throughout the pendency of the appeal, flexion on the left has ranged from 160 to 180 degrees with abduction ranging from 140 to 150, and internal and external rotation at no worse than 80 degrees, even with pain, flare ups, and after repetitive motion. No additional consideration in this regard is warranted. In sum, the preponderance of the evidence is against the Veteran’s claim for a rating in excess of 20 percent for his left shoulder disability. In reaching this conclusion, the Board finds that the benefit of the doubt doctrine is not applicable. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990).   Thus, the claim must be denied.  C. CRAWFORD Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Kuzniar, 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.