Citation Nr: 21061285 Decision Date: 10/01/21 Archive Date: 10/01/21 DOCKET NO. 11-23 153 DATE: October 1, 2021 ORDER A rating in excess of 20 percent for left supraspinatus tendinopathy is denied. A rating in excess of 10 percent rating prior to May 1, 2021 and noncompensable thereafter for left shoulder acromioclavicular (AC joint) arthritis is denied. An initial rating in excess of 60 percent for left arm impairment due to disk extrusion at C6-7 of the cervical spine (neurological symptoms of the left upper extremity) is denied. FINDINGS OF FACT 1. The Veteran's left shoulder disability including left supraspinatus tendinopathy and AC joint arthritis results in pain, but is not shown to have nonunion or dislocation of the clavicle or scapula, a humerus impairment, ankylosis, or limitation of motion functionally limited to less than at shoulder level. 2. The Veteran's left arm impairment due to disk extrusion at C6-7 of the cervical spine is shown to be manifested by moderate symptoms with the overall disability picture of severe incomplete paralysis affecting all radicular groups of the minor upper extremity, but complete paralysis has not been shown. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 20 percent for a left shoulder disability have not met. 38 U.S.C. § 1155; 38 C.F.R. § 4.71a, Diagnostic Codes 5200-03. 2. The criteria for a rating in excess of 10 percent prior to May 1, 2021 and noncompensable thereafter for left shoulder AC joint arthritis have not been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.71a, Diagnostic Codes 5200-03. 3. The criteria for a 60 percent evaluation left arm impairment due to disk extrusion at C6-7 of the cervical spine have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.120, 4.123, 4.124a, Diagnostic Code 8513. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from January 2003 to May 2004 and from June 2005 to October 2006. This matter comes before the Board of Veterans' Appeals (Board) on appeal of an October 2010 rating decision issued by the Agency of Original Jurisdiction (AOJ). In June 2013, the Veteran testified before the undersigned Veterans Law Judge at a Travel Board hearing at his local regional office. Historically, in a May 2007 rating decision, the Veteran was granted service connection for a left shoulder condition and assigned a 20 percent rating based on limited range of motion of the arm. In a February 2008 rating decision, a separate rating of 40 percent was assigned for left arm neurological symptoms caused by the Veteran's service-connected cervical spine disability. The AOJ simultaneously reduced the rating based on limited range of motion from 20 percent to noncompensable. Following the Board's September 2014 remand, in a March 2016 rating decision, the AOJ reinstituted a 20 percent rating for limited motion of the left arm and granted service connection for AC joint arthritis with a 10 percent rating. This matter was previously before the Board in October 2017 where it was remanded and most recently in October 2018 was again remanded for additional development. While on remand, by a February 2021 rating decision, the AOJ increased the initial evaluation for left arm impairment due to disk extrusion at C6-7 of the cervical spine from 40 percent disabling to 60 percent disabling, effective October 23, 2006. The AOJ also decreased the evaluation of left shoulder AC joint arthritis from 10 percent to 0 percent effective May 1, 2021. Increased Rating Disability ratings are determined by applying a schedule of ratings that is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R., Part 4. Each disability must be viewed in relation to its history and the limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. § 4.1. Examination reports are to be interpreted in light of the whole recorded history, and each disability must be considered from the point of view of the appellant working or seeking work. 38 C.F.R. § 4.2. Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § 4.7. With the initial rating assigned with the award of service connection for a disability, "staged" ratings to reflect distinct periods when different levels of impairment were shown are for consideration. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). However, the evaluation of the same disability under several diagnostic codes, known as pyramiding, must be avoided. 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 or overlapping with 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 20 percent for left supraspinatus tendinopathy. 2. Entitlement to a rating in excess of 10 percent disability rating prior to May 1, 2021 and noncompensable thereafter for left shoulder AC joint arthritis. As noted in the Introduction, the Veteran is currently in receipt of separate ratings for his left shoulder disability based on neurological symptoms, limitation of motion, and AC joint arthritis. The Veteran generally contends that he is entitled to higher ratings for his left shoulder disability. The Veteran's left supraspinatus tendinopathy is assigned a rating of 20 percent under Diagnostic Code 5010-5201. The Veteran's left shoulder AC joint arthritis is assigned a separate rating of 10 percent for the period prior to May 1, 2021 and noncompensable thereafter, under Diagnostic Code 5010-5203. Hyphenated diagnostic codes are used when a rating under one diagnostic code requires the use of an additional diagnostic code to identify the basis for the evaluation assigned. 38 C.F.R. § 4.27. The Veteran is right-handed and therefore, his left shoulder is the minor upper extremity. Diagnostic Code 5010 indicates that arthritis due to trauma, substantiated by x-ray findings are rated as arthritis, degenerative. 38 C.F.R. § 4.71a, Diagnostic Code 5010. Under Diagnostic Code 5003, degenerative arthritis established by X-ray findings will be rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved (here, Diagnostic Codes 5201 and 5203 for the shoulder and arm). 38 C.F.R. § 4.71a, Diagnostic Code 5003. When however, the limitation of motion of the specific joint or joints involved is non-compensable under the appropriate diagnostic codes, a rating of 10 percent is for application for each such major joint or group of minor joints affected by limitation of motion, to be combined. 38 C.F.R. § 4.71a, Diagnostic Code 5003. Effective February 7, 2021, VA amended Diagnostic Code 5010, indicates post-traumatic arthritis is to be rated as limitation of motion, dislocation, or other specified instability under the affected joint. If there are 2 or more joints affected, each rating shall be combined in accordance with §4.25. Under Diagnostic Code 5201, limitation of motion of the arm at shoulder level warrants a 20 percent rating for both the major and minor extremity. Limitation of motion of the arm midway between side and shoulder warrants a 20 percent rating for the minor extremity and a 30 percent rating for the major extremity. Limitation of motion of the arm to 25 degrees from side warrants a maximum 30 percent rating for the minor joint and a maximum 40 percent rating for the major joint. 38 C.F.R. § 4.71a, Diagnostic Code 5201. Effective February 7, 2021, VA amended Diagnostic Code 5201 to reflect that limitation of motion may be shown by flexion and/or abduction and clarified the degrees of limitation of motion that correspond to each rating. Now, limitation of motion at the shoulder level (flexion and/or abduction limited to 90 degrees) warrants a 20 percent rating for both the major and minor extremity. Limitation of motion of the arm midway between side and shoulder level (flexion and/or abduction limited to 45 degrees) warrants a 20 percent rating for the minor extremity and a 30 percent rating for the major extremity. Flexion and/or abduction limited to 25 degrees from the side warrants a maximum 30 percent rating for the minor joint and a maximum 40 percent rating for the major joint. Normal forward flexion of the shoulder is 0 to 180 degrees; abduction is 0 to 180 degrees; and internal and external rotation are from 0 to 90 degrees. 38 C.F.R. § 4.71a, Plate I. Forward flexion and abduction to 90 degrees amounts to shoulder level. Diagnostic Code 5203 evaluates impairment of the clavicle or scapula. Under Diagnostic Code 5203, a 10 percent rating is assigned for malunion of the clavicle or scapula. A 20 percent rating is assigned for nonunion of the clavicle or scapula with loose movement or dislocation of the clavicle or scapula. The Veteran was afforded a VA joint examination in July 2010. For left shoulder, he demonstrated flexion to 110 degrees with pain; full abduction to 180 with pain. The examiner noted range of motion limited by pain including pain on repetitive use testing but that there was no additional loss of motion. There was no evidence of ankylosis. In May 2015, the Veteran was afforded a VA shoulder and arm examination. Initial range of motion was 90 degrees of flexion and abduction with objective evidence of painful motion. Left shoulder external rotation and internal rotation ended at 45 degrees with evidence of painful motion. Range of motion was the same with repetitive use testing. There was no functional loss and/or functional impairment of the shoulder and arm. There was reduction in muscle strength, but the examiner indicated the reduction was not entirely due to claimed shoulder condition and likely due to the service-connected neck condition. There was no muscle atrophy and no ankylosis. Tests for rotator cuff condition for the left shoulder were positive. The examiner indicated impairment of the clavicle or scapula as left shoulder AC joint arthritis with evidence of tenderness on palpation of the AC joint. Cross-body adduction test was positive for the left side. The clavicle or scapula did not affect range of motion and there was no impairment of the humerus. In compliance with the Board's October 2017 remand, the Veteran was afforded a VA shoulder and arm examination in November 2017. Initial range of motion was 70 degrees of flexion and abduction with objective evidence of painful motion. Although range of motion is outside normal range, the examiner indicated this was normal for the Veteran. The examiner noted unable to evaluate external rotation and internal rotation due to inability to elevate extremity to 90 degrees/guarding. There was evidence of painful motion which caused functional loss. There was reduction in muscle strength, but indicated the reduction was due to service-connected cervical spine. There was no muscle atrophy and no ankylosis. The examiner was unable to perform tests for rotator cuff condition for the left shoulder. The examiner indicated impairment of the clavicle or scapula as left shoulder AC joint arthritis with evidence of tenderness on palpation of the AC joint. The examiner was unable to perform cross-body adduction test. There was no impairment of the humerus. In compliance with the Board's October 2018 remand, the Veteran was afforded another VA shoulder and arm examination in May 2019. Initial range of motion was 70 degrees of flexion and abduction with objective evidence of painful motion. Although range of motion was outside normal range, the examiner indicated this was "normal for the Veteran for reasons other than shoulder condition such as age, body habitus, neurologic disease)". The examiner added he was unable to do external rotation and internal rotation due to inability to elevate extremity to 90 degrees/guarding. There was evidence of painful motion which caused functional loss. There was reduction in muscle strength, but indicated the reduction was due to service-connected cervical spine. There was no muscle atrophy and no ankylosis. The examiner indicated "unable to perform" tests for rotator cuff condition. The examiner indicated impairment of the clavicle or scapula as left shoulder AC joint arthritis with evidence of tenderness on palpation of the AC joint. The examiner was unable to perform cross-body adduction test. There was no impairment of the humerus. As further explained below, the preponderance of the evidence is against the finding of increased ratings. Regarding the Veteran's left supraspinatus tendinopathy, the Board finds that a rating in excess of 20 percent based on limitation of motion is not warranted. The evidence shows the Veteran demonstrated left shoulder range of motion more than shoulder level and, at worst, was 70 degrees of flexion and abduction. See VA examinations dated July 2010, May 2015, November 2017, and May 2019. The Board acknowledges the Veteran's lay reports of symptoms of functional loss due to pain, including difficulty or inability to perform work overhead. However, even considering the Veteran's lay reports of symptoms and functional loss, there remains no indication he suffers a more severe disability picture warranting a rating in excess of 20 percent for limitation of motion. In fact, the degree of additional limitation reflected by the statements would not result in symptoms more nearly approximating limitation of motion of the arm to 25 degrees from the side of the minor extremity, which is required for the next higher rating under Diagnostic Code 5201. Likewise, regarding left shoulder AC joint arthritis, the Board finds that a rating in excess of 10 percent prior to May 1, 2021 and a compensable rating thereafter is not warranted at any period on appeal. In fact, although the Veteran was noted to have AC joint arthritis, the VA examiners of July 2010, May 2015, November 2017, and May 2019 consistently indicated no history of malunion, nonunion or dislocation of the clavicle or scapula. Additionally, the clavicle or scapula condition did not affect range of motion of the shoulder. Thus, a higher rating or a compensable rating under Diagnostic Code 5203 is not warranted. Moreover, as the Veteran is already in receipt of a 20 percent evaluation for his left shoulder disability, based upon a hyphenated code directing to range of motion, an additional evaluation based upon painful motion is not warranted. 38 C.F.R. §§ 4.40 and 4.45; DeLuca v. Brown, 8 Vet. App. 202 (1995). Here, even when considering pain, the Veteran retained range of motion in excess of that contemplated for a 20 percent rating. Further, repetitive use testing did not result in additional limitation of motion and the examiners indicated that pain, weakness, fatigability, or incoordination did not significantly limit functional ability with repetitive use over a period of time. His currently assigned rating compensates for pain as he is assigned a 20 percent based on limitation of motion and a separate rating for AC joint arthritis. Thus, greater ratings for limitations of range of motion are not warranted under DeLuca. As such, there is no basis for higher ratings. Lastly, the Board has considered whether any other Diagnostic Codes related to disabilities of the shoulder would provide for a higher disability rating. However, the evidence does not reflect that the symptoms would warrant a higher rating under a different Diagnostic Code. See 38 C.F.R. § 4.71a. Diagnostic Code 5200 provides for the evaluation of a shoulder or arm disability if there is ankylosis of the scapulohumeral articulation. However, as discussed above, as there is no evidence that the Veteran has ankylosis of the left shoulder, Diagnostic Code 5200 is not for application. Shoulder disabilities may also be evaluated pursuant to Diagnostic Code 5202, as other impairment of the humerus. However, the Veteran does not have loss of head, nonunion, or fibrous union of the humerus, and there was no malunion of the humerus with moderate or marked deformity. Thus, Diagnostic Code 5202 is not for application. In conclusion, the Board finds that the preponderance of the evidence is against the Veteran's appeal for a rating in excess of 20 percent for left supraspinatus tendinopathy; and a rating in excess of 10 percent disability rating prior to May 1, 2021 and noncompensable thereafter for left shoulder AC joint arthritis. In reaching this conclusion, the Board has considered the applicability of the benefit of the doubt doctrine; as the preponderance of the evidence is against assignment of any other higher ratings, it is not applicable. 38 U.S.C. § 5107. 3. Entitlement to an initial rating in excess of 60 percent for left arm impairment due to disk extrusion at C6-7 of the cervical spine. The Veteran generally contends that he is entitled to higher ratings for his left shoulder disability. As noted above, service connection for a left shoulder disability was granted in May 2007. Thereafter, in a February 2008 rating decision, a separate rating of 40 percent was assigned for left arm neurological symptoms caused by the Veteran's service-connected cervical spine disability. Recently, while on remand, the AOJ increased the initial evaluation from 40 percent disabling to 60 percent disabling, effective October 23, 2006. See Rating Decision dated February 2021. The Veteran's left arm impairment due to disk extrusion at C6-7 of the cervical spine is rated under Diagnostic Code 8513 for paralysis of all radicular groups. The Veteran is right-handed and therefore, his left shoulder is the minor upper extremity. Under Diagnostic Code 8513, a 60 percent rating is warranted for severe incomplete paralysis of the minor upper extremity and a 70 percent rating is warranted for severe incomplete paralysis of the major upper extremity. Complete paralysis is rated 80 percent for the minor upper extremity and 90 percent for the major upper extremity. 38 C.F.R. § 4.124a. The term "incomplete paralysis" indicates a degree of lost or impaired function substantially less than the type picture for complete paralysis given with each nerve, whether due to varied level of the nerve lesion or to partial regeneration. When the involvement is wholly sensory, the rating should be for the mild, or at most, the moderate degree. 38 C.F.R. § 4.124a, Diseases of the Peripheral Nerves. In rating peripheral nerve injuries and their residuals, attention should be given to the site and character of the injury, the relative impairment and motor function, trophic changes, or sensory disturbances. 38 C.F.R. § 4.120. Under 38 C.F.R. § 4.124a, disability from neurological disorders is rated from 10 to 100 percent in proportion to the impairment of motor, sensory, or mental function. With partial loss of use of one or more extremities from neurological lesions, rating is to be by comparison with mild, moderate, severe, or complete paralysis of the peripheral nerves. The term "incomplete paralysis" indicates a degree of lost or impaired function substantially less than the type of picture for complete paralysis given with each nerve, whether due to varied level of the nerve lesion or to partial regeneration. When the involvement is only sensory, the rating should be for the mild, or at most, the moderate degree. In rating peripheral nerve disability, neuritis-characterized by loss of reflexes, muscle atrophy, sensory disturbances, and constant pain, at times excruciating-is to be rated on the scale provided for injury of the nerve involved, with a maximum equal to severe, incomplete paralysis. The maximum rating to be assigned for neuritis not characterized by organic changes referred to in this section will be that for moderate incomplete paralysis, or with sciatic nerve involvement, for moderately severe incomplete paralysis. 38 C.F.R. § 4.123. The words "slight," "moderate," and "severe" as used in the various diagnostic codes are not defined in the VA Schedule for Rating Disabilities. Rather than applying a mechanical formula, the Board must evaluate all of the evidence, to the end that its decisions are "equitable and just." 38 C.F.R. § 4.6. It should also be noted that use of terminology such as "severe" by VA examiners and others, although an element of evidence to be considered by the Board, is not dispositive of an issue. All evidence must be evaluated in arriving at a decision regarding an increased rating. 38 C.F.R. §§ 4.2, 4.6. The record shows that the Veteran was afforded a VA examination in July 2015. See Peripheral Nerves Conditions Disability Benefits Questionnaire (DBQ) reflecting a diagnosis of "disc extrusion C6-7". For the left upper extremity, the examiner indicated moderate constant pain, mild intermittent pain, mild paresthesias and/or dysesthesias, and moderate numbness. Muscle strength testing was 4/5 indicating active movement against some resistance but sensory function was decreased for left hand/finger. There was no evidence of trophic changes, no muscle atrophy, and gait normal. After examination, the examiner determined normal findings for radial nerve and mild incomplete paralysis of the median and ulnar nerves. The record shows another VA examination of April 2017 reflecting a diagnosis of "cervical radiculitis". For the left upper extremity, the examiner indicated mild constant pain, mild intermittent pain, mild paresthesias and/or dysesthesias, and mild numbness. He retained muscle strength of 4/5 with normal findings on sensory exam. There was no evidence of trophic changes, no muscle atrophy, and gait normal. The examiner determined normal radial nerve, mild incomplete paralysis of the median, ulnar, and musculocutaneous nerves. See Peripheral Nerves Conditions DBQ dated April 2017. In compliance with the Board's October 2018 remand, the Veteran was afforded another VA examination in May 2019. For the left upper extremity, the examiner indicated mild constant pain, moderate intermittent pain, moderate paresthesias and/or dysesthesias, and moderate numbness. He retained muscle strength of 4/5 with normal findings on sensory exam. There was no evidence of trophic changes, no muscle atrophy, and gait normal. The examiner determined normal radial nerve, mild incomplete paralysis of the median, ulnar, and musculocutaneous nerves. See Peripheral Nerves Conditions DBQ dated May 2019. Based on the evidence above, the Board finds that the Veteran is adequately compensated by the currently assigned initial rating of 60 percent, which was recently granted with an effective date of October 23, 2006, one day following the Veteran's separation from service. There is no evidence of record to support a finding that the Veteran's disability resulted in complete incomplete paralysis to warrant the next higher, maximum rating under Diagnostic Code 8513. Rather, at most, VA examiners in 2015, 2017 and 2019 found no more than moderate, incomplete paralysis median and ulnar nerves with normal radial nerve. Furthermore, even in consideration of reports of constant pain, the examiners consistently indicated, at most, finding of moderate constant pain, paresthesias and/or dysesthesias and numbness. Thus, complete incomplete paralysis is clearly not supported, and the Board finds the Veteran is adequately compensated by the currently assigned 60 percent initial evaluation for left arm impairment due to disk extrusion at C6-7 of the cervical spine is rated under Diagnostic Code 8513. Accordingly, the claim is denied. 38 U.S.C. § 5107. KELLI A. KORDICH Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. A., 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.