Citation Nr: 21063518 Decision Date: 10/14/21 Archive Date: 10/14/21 DOCKET NO. 18-34 136 DATE: October 14, 2021 ORDER From November 29, 2017 to June 11, 2018, an increased disability rating of 30 percent, but no higher, for the service-connected (minor) left shoulder disability is granted. From August 1, 2019 to November 21, 2019, and from April 1, 2020, onward, an increased disability rating of 50 percent, but no higher, for the service-connected (minor) left shoulder disability is granted. FINDINGS OF FACT 1. The Veteran is service connected for left shoulder arthroplasty, formerly rated as rotator cuff tear with acromioclavicular joint arthritis (left shoulder disability). 2. From November 29, 2017 to June 11, 2018, the symptomatology and functional impairment of the service-connected (minor) left shoulder disability most nearly approximated limitation of motion of the arm to 25 degrees from the side after consideration of limitation due to pain and weakness; it did not more nearly approximate unfavorable ankylosis and did not involve a fibrous union of the humerus, nonunion of the humerus (false flail joint), or loss of head of the humerus (flail shoulder). 3. From August 1, 2019 to November 21, 2019, and from April 1, 2020, onward, the symptomatology and functional impairment of the service-connected (minor) left shoulder disability involved chronic residuals consisting of severe, painful motion or weakness in the affected extremity. CONCLUSIONS OF LAW 1. Resolving reasonable doubt in favor of the Veteran, from November 29, 2017 to June 11, 2018, the criteria for an increased disability rating of 30 percent, but no higher, for the service-connected (minor) left shoulder disability have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5201. 2. Resolving reasonable doubt in favor of the Veteran, from August 1, 2019 to November 21, 2019, and from April 1, 2020, onward, the criteria for an increased disability rating of 50 percent, but no higher, for the service-connected (minor) left shoulder disability have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5051. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran, who is the appellant, had active duty service from September 1981 to September 1985, September 2007 to February 2008, September 2008 to January 2009, July 2010 to December 2010, May 2011 to November 2011, and December 2011 to April 2012. The instant matter is on appeal from a January 2018 Department of Veterans Affairs (VA) Regional Office (RO) rating decision that denied an increased disability rating of greater than 20 percent for the service-connected (minor) left shoulder disability for the periods not subject to a 100 percent rating. The Veteran is already in receipt of a 100 percent rating due to shoulder replacement surgery from June 11, 2018 to August 1, 2019 and due to a shoulder repair surgery from November 21, 2019 to April 1, 2020. In June 2021, the Veteran testified before the undersigned Veterans Law Judge (VLJ) at a Board of Veterans' Appeals (Board) hearing. The hearing transcript has been associated with the claims file. At the June 2021 Board hearing, the Veteran stated to the undersigned VLJ that he had another surgery for which he was seeking a temporary total rating, but stated that he had not yet provided the necessary paperwork to the RO. The parties discussed the documentation that would be helpful to assess the severity of the Veteran's disability and the recovery. Subsequent to the hearing, the Veteran provided a copy of the surgery notes from the shoulder surgery on November 19, 2020 and x-rays. Unfortunately, this documentation does not clarify how many months of a convalescence period might have been required after the surgery, as would be needed to grant a temporary total rating under 38 C.F.R. § 4.30. At this time, the Board is neither granting nor denying the requested temporary total rating, but merely stating that the Veteran should obtain documentation related to the length of convalescence from the November 2020 surgery or provide a release to the RO so that the RO can request such treatment records. Disability Ratings Legal Criteria Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule) found in 38 C.F.R. § Part 4. 38 U.S.C. § 1155. It is not expected that all cases will show all the findings specified; however, findings sufficiently characteristic to identify the disease and the disability therefrom and coordination of rating with impairment of function will be expected in all instances. 38 C.F.R. § 4.21. Where there is a question as to which of two disability ratings shall be applied, the higher rating 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. It is the defined and consistently applied policy of VA to administer the law under a broad interpretation, consistent, however, with the facts shown in every case. 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 C.F.R. § 4.3. When rating disabilities of the musculoskeletal system, 38 C.F.R. § 4.40 allows for consideration of functional loss due to pain and weakness causing additional disability beyond that reflected on range of motion measurements. DeLuca v. Brown, 8 Vet. App. 202 (1995); Mitchell v. Shinseki, 25 Vet. App. 32 (2011). Further, 38 C.F.R. § 4.45 provides that consideration also be given to decreased movement, weakened movement, excess fatigability, incoordination, and pain on movement, swelling, and deformity or atrophy of disuse. Painful motion is considered limited motion at the point that pain actually sets in. See VAOPGCPREC 9-98. Although pain may cause a functional loss, pain itself does not constitute functional loss. Pain must affect some aspect of "the normal working movements of the body" such as "excursion, strength, speed, coordination, and endurance," in order to constitute functional loss. See Mitchell, 25 Vet. App. at 32. With any form of arthritis, painful motion is an important factor of disability, the facial expression, wincing, etc., on pressure or manipulation, should be carefully noted and definitely related to affected joints. 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 non-weight-bearing and, if possible, with the range of the opposite undamaged joint. 38 C.F.R. § 4.59. Diagnostic Code 5051 provides the rating structure based on shoulder implantation of a prosthesis. For other shoulder disabilities, the ratings are found at Diagnostic Codes 5200 through 5203 of 38 C.F.R. § 4.71a. These Diagnostic Codes provide for different ratings in certain instances depending on whether the shoulder involved is the major or minor joint. A September 10, 2018 VA examination report reflects that the Veteran is right hand dominant; thus, the service-connected left shoulder disability is the minor joint. Diagnostic Code 5051 provides for a 100 percent rating for one year following implantation of shoulder prosthesis and a 50 percent rating when there are chronic residuals consisting of severe, painful motion or weakness in the affected extremity. Diagnostic Code 5051 also provides that intermediate degrees of residual weakness, pain, or limitation of motion are rated by analogy to Diagnostic Codes 5200 and 5203, with a minimum rating of 20 percent. 38 C.F.R. § 4.71a. Normal ranges of shoulder flexion and abduction are from 0 to 180 degrees, and external and internal rotations are from 0 to 90 degrees. See 38 C.F.R. § 4.71, Plate I. In determining whether a veteran has limitation of motion to shoulder level, it is necessary to consider forward flexion and abduction. See Mariano v. Principi, 17 Vet. App. 305, 314-316 (2003). Under Diagnostic Code 5200, unfavorable ankylosis of the scapulohumeral articulation, where abduction is limited to 25 degrees from the side, warrants a 40 percent rating for the minor joint. Ankylosis of the scapulohumeral articulation that is intermediate between favorable and unfavorable warrants a 30 percent rating for the minor joint. Favorable ankylosis, abduction to 60 degrees and can reach mouth and head, warrants a 20 percent rating for the minor joint. Id. Under Diagnostic Code 5201, limitation of motion of an arm where motion is limited to 25 degrees from the side warrants a 30 percent rating for the minor joint. When motion is limited to midway between the side and shoulder level for the minor joint, a 20 percent rating is warranted. When motion is limited to shoulder level for the minor joint, a 20 percent rating is warranted. Id. Diagnostic Code 5201 "does not provide separate ratings for limitation of motion in the flexion and abduction planes, but rather is addressed generically to limitation of motion of the arm." Yonek v. Shinseki, 722 F.3d 1355, 1358 (Fed. Cir. 2013). Under Diagnostic Code 5202, loss of head of the humerus (flail shoulder) of the minor joint warrants a 70 percent rating, nonunion of the humerus (false flail joint) warrants a 50 percent rating, fibrous union of the humerus warrants a 40 percent rating. Recurrent dislocation of the humerus at the scapulohumeral joint with frequent episodes and guarding of all arm movement or with infrequent episodes and guarding of movement only at shoulder level of the minor joint warrant a 20 percent rating. Malunion of the humerus that causes marked deformity or moderate deformity warrants a 20 percent rating. Id. Under Diagnostic Code 5203, dislocation of the clavicle or scapula warrants a 20 percent rating, nonunion of the clavicle or scapula with loose movement warrants a 20 percent, and nonunion of the clavicle or scapula without loose movement warrants a 10 percent rating. Malunion of the clavicle or scapula warrants a 10 percent rating. Id. Effective February 7, 2021, the musculoskeletal code has been revised, although cases that were pending prior to that date can apply the former code if it is more favorable. Diagnostic Code 5201 is revised to say that flexion and/or abduction limited to 25 degrees from side is a 40 percent rating for the major joint and a 30 percent rating for the minor joint; midway between side and shoulder level (flexion and/or abduction limited to 45 degrees) is a 30 percent rating for the major joint and a 20 percent rating for the minor joint, and at shoulder level (flexion and/or abduction limited to 90 degrees) is 20 percent for the major and the minor joint. Diagnostic Code 5202 is revised to say that recurrent dislocation of at scapulohumeral joint with frequent episodes and guarding of movement only at shoulder level (flexion and/or abduction at 90 degrees) is 20 percent for the major and the minor joint. The other parts of Diagnostic Code 5202 and Diagnostic Codes 5051, 5200, and 5203 have not changed. Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 76453, 76462 (Nov. 30, 2020) (to be codified at 38 C.F.R. § 4.71a, Diagnostic Codes 5201 and 5202). 1. From November 29, 2017 to June 11, 2018, an Increased Disability Rating of 30 Percent, But No Higher for the Service-Connected (Minor) Left Shoulder Disability is Granted. The Veteran filed a claim for an increased disability rating for the service-connected (minor) left shoulder disability on November 29, 2017 and had a reverse total shoulder arthroplasty on June 11, 2018. As such, the provisions of Diagnostic Codes 5200 to 5203 apply to the period from November 29, 2017 to June 11, 2018, but not the provisions for total shoulder prosthetic replacement. The Veteran is currently in receipt of a 20 percent disability rating for the period and contends that a higher rating is warranted based on limitation of motion, weakness, and pain. After a review of all the evidence, lay and medical, the Board finds that an increased 30 percent rating is warranted, but no higher, as the symptomatology and functional impairment of the service-connected (minor) left shoulder disability more nearly approximate limitation of arm movement to 25 degrees from the side when consideration is taken for pain and weakness, applying the orthopedic rating principles at 38 C.F.R. §§ 4.40, 4.45, and 4.59. At a December 2017 VA examination, the shoulder measured 80 degrees flexion and 70 degrees abduction. The December 2017 VA examiner noted that the Veteran had already undergone three shoulder surgeries, had continued left shoulder pain and limited ability to raise the left arm, and was limited to lift, carry, push, and pull ten pounds. The December 2017 VA examiner assessed that the Veteran had no use of the left shoulder and minimal range of motion. There was pain on rest/non-movement and on all range of motion measurements. Despite finding the range of motion and restricted functional capacity, the December 2017 VA examiner stated that functioning was so diminished that amputation with prosthesis would equally serve the Veteran. A slightly later April 2018 VA treatment record that leads to the decision to have a reverse total shoulder arthroplasty demonstrated similar range of motion limitations, but also contained a note that the Veteran had never really recovered from the prior surgeries, that the Veteran is sore and symptomatic, and that the Veteran has pain and weakness and limitation of motion that affect activities of daily living and work. The VA orthopedic surgeon noted that an MRI documented an infraspinatus tear and a retear of the supraspinatus and concluded that the best option was a reverse total shoulder arthroplasty. Shortly before the surgery, the Veteran participated in another VA examination. On the June 5, 2018 VA examination, the left shoulder measured 50 degrees flexion and 40 degrees abduction. The June 2018 VA examiner noted that the Veteran had continued left shoulder pain and limited ability to raise the left arm, was limited to lift, carry, push, and pull ten pounds, and was unable to reach at and above the waist. There was pain on rest/non-movement, as well as with all range of motion measurements. The Veteran could not do repetitive use testing because of severe pain. Notwithstanding the reported and found ranges of motion, the June 2018 VA examiner stated again that functioning was so diminished that amputation with prosthesis would equally serve the Veteran. Although the June 2018 VA examiner stated that the Veteran had total shoulder joint replacement in 2011, 2012, and 2015, this does not appear to be an accurate fact. Given the degree of pain, weakness, and functional limitations, the Board finds that the range of motion measurements at the time of the examinations do not fully capture the extent of the (minor) left shoulder disability when rating under Diagnostic Code 5201. As such, the Board finds that the symptomatology and functional impairment more nearly approximates limitation of motion to 25 degrees from side, to warrant the next higher disability rating of 30 percent. A higher rating for unfavorable ankylosis of the scapulohumeral articulation is not warranted, as the evidence does not demonstrate that the (minor) left shoulder disability showed the functional equivalent of ankylosis. Although the December 2017 VA examination showed significant impairment, there was still some use of the arm. Similarly, the December 2017 VA examination did not demonstrate an impairment of the humerus to any degree, so a higher rating for loss of head of the humerus (flail shoulder), nonunion of the humerus (false flail joint), or fibrous union of the humerus is not warranted. 2. From August 1, 2019 to November 21, 2019, and from April 1, 2020, Onward, an Increased Disability Rating of 50 Percent, But No Higher, For the (Minor) Service-Connected Left Shoulder Disability is Granted. On June 11, 2018, while the appeal for an increased rating for the (minor) left shoulder disability was pending, the Veteran had a reverse total shoulder arthroplasty. See June 2018 VA Treatment Record. A September 2018 Rating Decision granted a temporary 100 percent rating from June 11, 2018 to August 1, 2019 based on implantation of the prosthesis pursuant to Diagnostic Code 5051. The June 2018 Rating Decision returned the disability rating to 20 percent effective August 1, 2019. The Veteran seeks an increased disability rating based on pain, limitation of motion, and weakness. The Veteran also required an additional surgery that necessitated another temporary rating from November 21, 2019 to April 1, 2020 and, as discussed above, had another surgery on November 19, 2020 for which the necessary paperwork is still pending. After a review of all the evidence, lay and medical, the Board finds that 50 percent rating is warranted based on chronic residuals consisting of severe, painful motion or weakness in the affected extremity. At the June 2021 Board hearing, the Veteran testified that he had to go to the emergency department twice because of the shoulder seizing and locking up. VA treatment records show that the Veteran sought treatment on August 13, 2019 and August 22, 2019. The Veteran also testified at the June 2021 Board hearing that he does not have much use of the shoulder, that the shoulder does not reach half the way between the side and shoulder because it gets tight and locks up, that he experiences a lack of strength and weakness, and that there is always pain in the shoulder joint. At a September 2018 VA Examination, the left shoulder measured 4 degrees flexion and 2 degrees abduction and the VA examiner stated that the Veteran had minimal use of the left arm. Pain was noted on rest/non-movement and on all range of motion measurements. There was severe pain on palpation of the joint or assorted soft tissue. The Veteran was not able to do repetitions because he could not handle the movement. The residual from the surgery was stated as no use of the left shoulder. The September 2018 VA examiner stated that functioning was so diminished that amputation with prosthesis would equally serve the Veteran because he has no use of the left shoulder and minimal range of motion. It is worth noting that this examination was only three months after the total shoulder replacement surgery, during the time for which a 100 percent total rating is already prescribed. The Veteran was seen by primary care in August 2020 when he reported some chronic pain of a level 7 (out of 10) and that he was not really happy with the pain management, but stated that topical cream and meloxicam do help. The functional impact of the left shoulder disability was assessed to impact physical activity. The Board finds that the lay and medical evidence more nearly approximates the criteria for an increased disability rating of 50 percent pursuant to Diagnostic Code 5051 for chronic residuals consisting of severe, painful motion or weakness in the affected extremity. Resolving reasonable doubt in the Veteran's favor, for the rating periods from August 1, 2019 to November 21, 2019, and from April 1, 2020, the symptomatology and functional impairment of the (minor) left shoulder disability more nearly approximates the criteria for a 50 percent rating under Diagnostic Code 5051. J. PARKER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Smith, 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.