Citation Nr: 21005061 Decision Date: 01/28/21 Archive Date: 01/28/21 DOCKET NO. 14-11 188 DATE: January 28, 2021 ORDER Entitlement to a rating in excess of 30 percent for service-connected acromioclavicular separation of the right shoulder (“right shoulder disability”) is denied. Entitlement to a rating in excess of 20 percent (to exclude convalescence period from February 8, 2018 to May 1, 2018) for service-connected acromioclavicular separation of the left shoulder (“left shoulder disability”) is denied. REMANDED Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities is remanded. FINDINGS OF FACT 1. For the entire appeal period, the Veteran’s right-dominant shoulder exhibited limitation of motion no more than midway between side and shoulder level and exhibited no evidence of ankylosis, or limitation of motion of the arm to 25 degrees from side. 2. For the entire appeal period, the Veteran’s left shoulder exhibited limitation of motion no more than midway between side and shoulder level and exhibited no evidence of ankylosis, or limitation of motion of the arm to 25 degrees from side. CONCLUSIONS OF LAW 1. For the entire appeal period, the criteria for a rating in excess of 30 percent for service-connected right shoulder disability have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.159, 4.1, 4.2, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5003-5201. 2. For the entire appeal period, the criteria for a rating in excess of 20 percent for service-connected left shoulder disability have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.159, 4.1, 4.2, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5203-5201. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active military service from August 1972 to January 1993. This matter came before the Board of Veterans’ Appeals (Board) on appeal from a September 2012 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). In April 2019, the Veteran testified before the undersigned at a Board hearing. The transcript of the hearing is of record. By way of background, in April 2019, the Board remanded the issues on appeal for further evidentiary development and adjudication. The Board finds that a claim for TDIU is raised as part and parcel of the increased rating claims pursuant to Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009). Increased Rating Disability evaluations are determined by the application of the facts presented to VA’s Schedule for Rating Disabilities (Rating Schedule) at 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and the residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321(a), 4.1. In evaluating the severity of a particular disability, it is essential to consider its history. 38 C.F.R. § 4.1; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary importance. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Higher evaluations may be assigned for separate periods based on the facts found during the appeal period. See Hart v. Nicholson, 21 Vet. App. 505, 509 (2007); see also Fenderson v. West, 12 Vet. App. 119, 126 (1999). This practice is known as staged ratings. If the evidence for and against a claim is in equipoise, the claim will be granted. 38 C.F.R. § 4.3. A claim will be denied only if the preponderance of the evidence is against the claim. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 56 (1990). Any reasonable doubt regarding the degree of disability should be resolved in favor of the Veteran. 38 C.F.R. § 4.3. Where there is a question as to which of two evaluations shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that evaluation. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. When evaluating disabilities of the musculoskeletal system, functional loss due to pain and weakness causing additional disability beyond that reflected on range of motion measurements must be considered. See 38 C.F.R. § 4.40; DeLuca v. Brown, 8 Vet. App. 202 (1995). Consideration must also be given to weakened movement, excess fatigability and incoordination. 38 C.F.R. § 4.45. The evaluation of the same disability under several diagnostic codes, known as pyramiding, must be avoided; however, separate ratings may be assigned for distinct disabilities resulting from the same injury so long as the symptomatology for one condition is not duplicative of the symptomatology of the other condition. 38 C.F.R. § 4.14; Esteban v. Brown, 6 Vet. App. 259, 262 (1994). 1. Entitlement to a rating in excess of 30 percent for service-connected right shoulder disability is denied. 2. Entitlement to a rating in excess of 20 percent (to exclude convalescence period from February 8, 2018 to May 1, 2018) for service-connected left shoulder disability is denied. Musculoskeletal impairment of the bilateral shoulder, including limitation of motion, is rated under 38 C.F.R. § 4.71a, Diagnostic Codes 5200-5203. Different ratings are available for the dominant (major) and non-dominant (minor) side. Here, the Veteran is right-hand dominant. See March 2011 VA Examination. The Veteran’s right shoulder disability is rated under Diagnostic Codes 5003-5201 and the Veteran’s left shoulder disability is rated under Diagnostic Code 5203-5201. Diagnostic Code 5003 (degenerative arthritis) rates by analogy to limitation of motion of the joint affected. Diagnostic Code 5003 also provides a 10 percent rating where limitation of motion cannot be objectively confirmed. Under Diagnostic Code 5201, limitation of motion of the arm at the shoulder, provides for a 20 percent rating when the range of motion of the minor and major arm is limited at the shoulder level. A 30 percent rating for the major arm and 20 percent rating for the minor arm when the range of motion is limited midway between side and shoulder level. A 40 percent rating for the major arm and 30 percent rating for the minor arm when the range of motion is limited to 25 degrees from side. 38 C.F.R. § 4.71a. Under Diagnostic Code 5202, for the major or minor upper extremity, a 20 percent rating is provided for malunion of the humerus with marked moderate deformity. For malunion of the humerus with marked deformity a 20 percent rating is warranted for the minor extremity and a 30 percent rating is warranted for the major extremity. For recurrent dislocation of the humerus at the scapulohumeral joint for both the minor and major extremity a 20 percent rating is provided with infrequent episodes and guarding of movement only at shoulder level. A 20 percent rating is also warranted for the minor extremity for recurrent dislocation of the humerus at the scapulohumeral joint with frequent episodes and guarding of all arm movements. A 30 percent rating is warranted for the major extremity for recurrent dislocation of the humerus at the scapulohumeral joint with frequent episodes and guarding of all arm movements. A 40 percent evaluation is warranted for fibrous union of the humerus for the minor extremity with a 50 percent rating for the major extremity. A 50 percent rating evaluation is provided for nonunion or false flail joint of the major extremity with a 60 percent rating warranted for the major extremity. Finally, a 70 percent rating is warranted for loss of the humeral head, also known as flail shoulder for the minor extremity. An 80 percent rating is warranted for flair shoulder of the major extremity. 38 C.F.R. § 4.71a, Diagnostic Code 5202. Under Diagnostic Code 5203, for both the major and minor arm, a malunion of the clavicle or scapula or a nonunion of the clavicle or scapula without loose movement warrants a 10 percent rating. When there is a nonunion of the clavicle or scapula with loose movement, a 20 percent rating is warranted. A 20 percent rating is also assigned when there is dislocation of the clavicle or scapula. The normal range of motion of the shoulder is 0 to 180 degrees of flexion (forward elevation), 0 degrees to 180 degrees of abduction, 0 degrees to 90 degrees of external rotation, and 0 degrees to 90 degrees of internal rotation. 38 C.F.R. § 4.71, Plate I. At an initial matter, the Board notes that the Veteran filed his claim for entitlement to an increased rating in February 2011. Based on the evidence of record, the Board finds that after resolving all reasonable doubt in favor of the Veteran, the Veteran’s rating of 30 percent for the right shoulder disability and 20 percent for the left shoulder disability is consistent with the records. A review of the records shows that the Veteran was afforded VA examinations in March 2011, June 2013, May 2014, and January 2020. In the March 2011 VA examination, the Veteran endorsed having pain, weakness, stiffness, fatigability, and lack of endurance. The Veteran did not endorse having instability, giving way or “locking” of his shoulders. The Veteran denied having episodes of dislocation or having abnormal movement such as popping and locking of the shoulders. On examination of the bilateral shoulder, the Veteran was able to forward flex to 90 degrees, abduct to 90 degrees, external rotate to 45 degrees, internal rotate to 45 degrees with evidence of pain with motion. There was no additional limitation of motion on examination with repetition. An x-ray scan of the bilateral shoulders revealed mild acromioclavicular joint and glenohumeral joint osteoarthritis of the right shoulder and persistent elevation of the distal clavicle in relationship to the acromion consistent with acromioclavicular joint injury of the left shoulder. In the June 2013 VA examination, the Veteran complained of constant dull ache of the bilateral shoulder with increased pain with lifting, repetitive movement, prolonged positioning, and overhead lifting. On examination of the right shoulder, the Veteran was able to forward flex to 90 degrees and abduct to 90 degrees with objective evidence of pain when forward flex to 80 degrees and abduct to 80 degrees. On examination of the left shoulder, the Veteran was able to forward flex to 95 degrees and abduct to 95 degrees with objective evidence of pain when forward flex to 80 degrees and abduct to 80 degrees. On repetitive use testing of the right shoulder, the Veteran was able to forward flex and abduct to 90 degrees. On repetitive use testing of the left shoulder, the Veteran was able to forward flex and abduct to 95 degrees. The Veteran had normal muscle strength of the bilateral shoulders. There was no evidence of ankylosis of the glenohumeral articulation. A March 2013 magnetic resonance imaging (MRI) scan of the right shoulder revealed a near-complete full-thickness tear supraspinatus tendon with associated retraction and degenerative joint disease. A March 2013 MRI scan of the left shoulder revealed tenosynovitis of supraspinatus tendon and degenerative joint disease but no ligamentous or labral tear. In the May 2014 VA examination, the Veteran denied having flare-ups of his bilateral shoulders. The Veteran denied having a history of recurrent dislocation of the glenohumeral joint. On examination of the right shoulder, the Veteran was able to forward flex to 60 degrees and abduct to 50 degrees with objective evidence of pain. As for the left shoulder, the Veteran was able to forward flex to 60 degrees and abduct to 45 degrees with objective evidence of pain. The Veteran was able to perform repetitive use testing with no additional limitation in range of motion of the shoulder and arm. The Veteran exhibited normal muscle strength with no evidence of ankylosis of the glenohumeral articulation. The Veteran has an acromioclavicular separation of the right shoulder. The examiner determined that the Veteran has other pertinent physical findings, complications, conditions, signs and/or symptoms due to his bilateral shoulder disability. Specifically, the Veteran is able to internal and external rotate to 30 degrees. The examiner opined that during acute pain flare-up and/or repetitive use, the Veteran’s musculoskeletal system most likely would not significantly limit the Veteran’s functionality and/or cause weakness, fatigability or inhibit coordination beyond currently noted limitations. The treatment records show that in the February 2016 VA treatment record the Veteran was able to forward flex to 130 degrees, abduct to 130 degrees, and external rotate to 20 degrees of the right shoulder; and forward flex to 170 degrees, abduct to 170 degrees, and external rotate to 20 degrees of the left shoulder. See May 2016 Medical Treatment Record – Government Facility. However, in the April 2016 VA treatment record, the Veteran was able to forward flex to 70 degrees, abduct to 70 degrees, and external rotate to 20 degrees of the right shoulder. In the January 2017 VA treatment record, the Veteran was able to forward flex to 70 degrees, abduct to 70 degrees, extend to 45 degrees, external rotate with arm at side 30 degrees, external rotate with arm abduct to 20 degrees, and internal rotate with arm abducted 20 degrees of the left shoulder. See November 2017 CAPRI. In the February 2018 VA treatment record, the Veteran was able to forward flex to 80 degrees, abduct to 70 degrees, extend to 50 degrees, external rotate to 30 degrees, and external rotate to 50 degrees of the bilateral shoulders. Soon thereafter, in February 2018, the Veteran underwent left shoulder arthroscopic subacromial decompression, rotator cuff repair and open sub-pectoralis biceps tenodesis. See January 2020 Medical Treatment Record – Government Facility. The Veteran was also diagnosed with complete rotator cuff tear or rupture of the bilateral shoulders. About six months after the surgery, in the September 2018 VA treatment record, the Veteran was able to forward flex to 74 -76 degrees and abduct to 64 – 66 degrees of the right shoulder; forward flex to 52 – 60 degrees and abduct to 34 – 38 degrees of the left shoulder. See February 2019 CAPRI. In December 2018, the Veteran complained that his condition worsened since his surgery. In the March 2019 VA treatment record, the Veteran was able to forward flex to 28 degrees and abduct to 32 degrees of the right shoulder; and forward flex to 58 degrees and abduct to 44 degrees of the left shoulder. See November 2019 CAPRI. In the April 2019 hearing, the Veteran claimed worsening of his bilateral shoulder disability. As such, the Veteran was afforded another VA examination in January 2020. In the January 2020 VA examination, the Veteran reported that despite the February 2018 left shoulder arthroscopy with subacromial decompression, rotator cuff repair and biceps tenodesis, his bilateral shoulder pain worsened. On examination of the right shoulder, the Veteran was able to forward flex to 120 degrees, abduct to 90 degrees, external rotate to 60 degrees, and internal rotate to 90 degrees with objective evidence of pain. There was evidence of pain with weight bearing of the right shoulder. As for the left shoulder, the Veteran was able to forward flex to 110 degrees, abduct to 85 degrees, external rotate to 60 degrees, and internal rotate to 90 degrees with objective evidence of pain. There was evidence of pain with weight bearing of the left shoulder. The Veteran was able to perform repetitive-use testing with at least three repetitions with no additional loss of function or range of motion after three repetitions of the bilateral shoulders. Although the Veteran was not examined immediately after repetitive use over time or during flare-ups the examiner determined that the examination is medically consistent with the Veteran’s statements describing functional loss with repetitive use over time of the bilateral shoulders. The examiner also determined that pain, weakness, fatigability or incoordination significantly limit functional ability with repeated use over a period of time of the bilateral shoulders. Specifically, the Veteran is able to forward flex to 120 degrees, abduct to 90 degrees, external rotate to 60 degrees, and internal rotate to 90 degrees of the right shoulder. As for the left shoulder, the Veteran is able to forward flex to 110 degrees, abduct to 85 degrees, external rotate to 60 degrees, and internal rotate to 90 degrees. There is no evidence of ankylosis of the bilateral shoulder. As the examiner suspected the Veteran’s right shoulder rotator cuff condition, the examiner tested the Veteran’s rotator cuff and the Veteran tested negative for Hawkins’ impingement test, empty-can test, external rotation/infraspinatus strength test, and lift-off subscapularis test. The examiner examined the Veteran’s claim for shoulder instability, dislocation or labral pathology but found that the Veteran was negative for history of mechanical symptoms of clicking and catching and the Veteran was negative for history of recurrent dislocation of the glenohumeral joint. The Veteran does not have loss of head, nonunion or fibrous union of the humerus. As a result of the February 2018 left shoulder arthroscopy with subacromial decompression the Veteran has a scar on the left shoulder that is neither painful nor unstable. Based on the review of the records, the Board finds that under Diagnostic Code 5201 the Veteran’s right shoulder disability is consistent with a rating of no more than 30 percent and the Veteran’s left shoulder disability is consistent with a rating of no more than 20 percent. The Veteran’s range of motion of his right shoulder is at its worst, 28 degrees, consistent with midway between side and shoulder level. The Veteran’s range of motion of his left shoulder was at its worst, 52 degrees, consistent with midway between side and shoulder level. The Veteran is not entitled to a rating in excess of 30 percent for the right shoulder and in excess of 20 percent for the left shoulder as the next higher rating requires limitation of motion to 25 degrees from the side which is not noted in the record. The Board notes that the Veteran argued that under Mariano v. Principi, 17 Vet. App. 305, 317-18 (2003) Diagnostic Code 5201 should apply to internal and external rotation findings. See December 2020 Appellate Brief. The Board finds that this argument has no merit as Diagnostic Code 5201 explicitly states that the range of motion is determined from the side, midway between side and shoulder level, or at shoulder level. As limitation of motion is determined by the shoulder’s distance from the side of the body, the range of motion of external or internal rotation is not considered. Accordingly, the Board finds that internal and external rotation findings are not contemplated under Diagnostic Code 5201. The Board finds that the Veteran is not entitled to a rating under Diagnostic Codes 5202 and 5203 as there is no evidence of recurrent dislocation of the scapulohumeral joint or malunion of the humerus, clavicle, or scapula. The Veteran repeatedly denied having recurrent dislocation in the March 2011 VA examination, May 2014 VA examination, and January 2020 VA examination. Moreover, the treatment records do not reflect complaints of dislocating his shoulders. Further, the Veteran did not attest or even report any dislocation of his bilateral shoulders in the record or during the April 2019 hearing. As such, the Board finds that the Veteran is not entitled to a rating under Diagnostic Codes 5202 and 5203. Another diagnostic code relating to the shoulder is Diagnostic Code 5200 (ankylosis of scapulohumeral articulation) which is not shown on examination, and the Board thus finds that application of Diagnostic Code 5200 is not warranted. 38 C.F.R. § 4.71a. As such, all potentially applicable Diagnostic Codes have been considered. See Schafrath v. Derwinski, 1 Vet. App. 589, 593 (1991). REASON FOR REMAND 3. Entitlement to a TDIU is remanded. The Veteran alleged that he is unable to secure or follow any substantially gainful occupation due to his service-connected bilateral shoulders. Specifically, in the April 2019 hearing, when questioned by the undersigned, he stated that he intended to file a claim for TDIU. The Veteran stated that he last worked as a bus driver in May 2017 due to his upcoming left shoulder surgery. As the Veteran raised the issue of entitlement to a TDIU, the Board finds that a claim for TDIU was raised as part and parcel of the increased rating claim pursuant to Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009). Accordingly, the Board finds that a remand is necessary to develop the claim for TDIU. The matter is REMANDED for the following action: 1. Provide the Veteran with VA Form 21-8940 and appropriate notice about the evidence needed to establish entitlement to a TDIU. The RO should develop the claim for TDIU raised during the hearing, to include verifying prior employment or obtaining any evidence the Veteran identifies. 2. After the development is complete, readjudicate the claim of entitlement to a TDIU. If any benefit sought remains denied, provide the Veteran and his representative with a supplemental statement of the case (SSOC), and return the case to the Board. S. HENEKS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board P. Noh, 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.