Citation Nr: 21067651 Decision Date: 11/04/21 Archive Date: 11/04/21 DOCKET NO. 15-18 868 DATE: November 4, 2021 ORDER Entitlement to an evaluation in excess of 10 percent prior to May 23, 2016, for right shoulder impingement syndrome is granted Entitlement to an evaluation in excess of 20 percent from May 23, 2016, for right shoulder impingement syndrome is denied. Entitlement to service connection for right ear hearing loss is denied. FINDINGS OF FACT 1. The preponderance of the evidence is against finding that the appellant's right shoulder impingement manifested with symptoms approximating limitation of motion midway between the side and shoulder level, ankylosis of the right shoulder joint, loss of the humeral head, nonunion of the humerus, fibrous union of the humerus, malunion of the humerus with marked deformity, or recurrent dislocation at the scapulohumeral joint. 2. The preponderance of the evidence of record is against finding that the Veteran has had right ear hearing loss for VA purposes at any time during or approximate to the pendency of the claim. CONCLUSIONS OF LAW 1. Prior to May 23, 2016, the criteria for a 20 percent rating, but no higher, for right shoulder impingement syndrome have been meet. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.59, 4.7, 4.71a, Diagnostic Code 5201. 2. From May 23, 2016, the criteria for an evaluation in excess of 20 percent for right shoulder impingement syndrome have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.59, 4.7, 4.71a, Diagnostic Code 5201. 3. The criteria for service connection for right ear hearing loss are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.385. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from April 2000 to August 2000, September 2001 to August 2005, August 2006 to March 2007, and from March 2016 to August 2016, with additional service in the Air National Guard. In November 2018, the Veteran testified before the undersigned Veterans Law Judge via videoconference. A transcript of the hearing is of record. The Veteran's claims were previously remanded by the Board in a September 2020 decision. The Board finds that the RO has substantially complied with the September 2020 Board remand directives. See Stegall v. West, 11 Vet. App. 268 (1998). 1. Entitlement to an evaluation in excess of 10 percent prior to May 23, 2016, and 20 percent thereafter, for right shoulder impingement syndrome The Veteran contends that he is entitled to a higher rating for his right shoulder impingement syndrome The Veteran's right shoulder impingement syndrome is rated under 38 C.F.R. § 4.71a, Diagnostic Code 5201, for limitation of motion of the arm. 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. 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). 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. When evaluating musculoskeletal disabilities based on limitation of motion, 38 C.F.R. § 4.40 requires consideration of functional loss caused by pain or other factors listed in that section that could occur during flare-ups or after repeated use and, therefore, not be reflected on range-of-motion testing. 38 C.F.R. § 4.45 requires consideration also be given to less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement. See DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011). Nonetheless, even when the background factors listed in § 4.40 or 4.45 are relevant when evaluating a disability, the rating is assigned based on the extent to which motion is limited, pursuant to 38 C.F.R. § 4.71a; a separate or higher rating under § 4.40 or 4.45 itself is not appropriate. See Thompson v. McDonald, 815 F.3d 781, 785 (Fed. Cir. 2016) ("[I]t is clear that the guidance of § 4.40 is intended to be used in understanding the nature of the veteran's disability, after which a rating is determined based on the § 4.71a criteria."). Under 38 C.F.R. § 4.59, painful motion is a factor to be considered with any form of arthritis; however, 38 C.F.R. § 4.59 is not limited to disabilities involving arthritis. See Burton v. Shinseki, 25 Vet. App. 1 (2011). The minimum compensable rating for limitation of range of motion in the shoulder joint is 20 percent. See Sowers v. McDonald, 27 Vet. App. 472, 481-82 (2016); see also Burton v. Shinseki, 25 Vet. App. 1, 11-14 (2011). Taken together, the Sowers and Burton cases, read in conjunction with 38 C.F.R. § 4.59, require a minimum 20 percent rating for symptoms of painful motion of either the major or minor shoulder joint. In March 2013, the Veteran underwent a VA examination. The Veteran reported difficulty with overhead activities and pain at a 3-4/10 intensity. The Veteran denied taking any pain medication. The Veteran reported full time employment as a police officer. The Veteran denied any additional limitation following repetitive use or during flare-ups. Initial range of motion testing revealed active forward flexion of 170 degrees and active abduction of 0 to 120 degrees remaining the same after three repetitions. The examiner noted no evidence of fatigue, weakness, or lack of endurance, but did note a positive impingement sign. The examiner noted negative apprehension and relocation test, negative empty can test, and 5/5 rotator cuff strength. The examiner diagnosed the Veteran with right shoulder impingement syndrome with no evidence of fracture. In September 2021, the Veteran underwent an updated VA examination. The examiner diagnosed the Veteran with right shoulder impingement syndrome. The Veteran noted an initial injury followed by arthroscopy in 2009-2010. The Veteran reported his condition was exacerbated by the climbing, marching, standing, walking, jumping, crouching, kneeling, crawling, lifting, and carrying associated with service. The Veteran reported he has trouble going up and down steps and difficulty running and cannot walk long distances without pain in his shoulders. The Veteran also reported proprioception is compromised. The Veteran did not report flare-ups. The Veteran reported functional loss associated with difficulties walking and climbing steps, difficulties with standing/sitting over 15 minutes, and chronic effects of an uneven gait causing pain. On initial range of motion testing, the Veteran had abnormal flexion of 160 degrees and abduction of 160 degrees. The examination revealed normal internal and external rotation. The examiner noted pain with passive motion that does not result in or cause functional loss. The examiner did not observe additional functional loss after three repetitions or with repeated use over time. The examiner noted no other additional factors contributing to disability. The exam revealed no muscle atrophy, no crepitus, no ankylosis, negative rotator cuff testing, no instability, and no joint conditions. The Board finds that the preponderance of the evidence is against a rating in excess of 20 percent for right shoulder impingement syndrome. The evidence of record shows that the Veteran is right-handed. The Board acknowledges the Veteran's lay reports of symptoms and that there was functional loss due to pain, difficulty walking, and difficulty carrying objects over 20 pounds. However, even considering the Veteran's lay reports of symptoms and noted functional loss, the degree of additional limitation reflected by the statements would not result in symptoms more nearly approximating limitation of motion of the arm midway between side and shoulder level of the major extremity or limitation of motion of the arm to 25 degrees from the side of the major or minor extremity. The Board notes that based on range of motion testing, the Veteran has experienced some improvement since his initial March 2013 examination. 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. 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 right shoulder impingement. In denying such a rating, the Board finds the benefit of the doubt doctrine is not applicable. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. 2. Entitlement to service connection for right ear hearing loss The Veteran contends that he has bilateral hearing loss due to his military service. The Board notes the Veteran has been granted service connection for his left ear hearing loss and tinnitus Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. The Board concludes that the Veteran does not have a current diagnosis of any right ear hearing loss and has not had one at any time during the pendency of the claim or recent to the filing of the claim. Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013); McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). Under VA rules, hearing loss will be considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 CFR § 3.385. In May 2013, the Veteran underwent a private evaluation for his reported diminished hearing, particularly in his left ear. The private audiologist concluded that the Veteran's hearing thresholds were essentially within normal limited bilaterally, the Veteran had excellent speech discrimination scores, and normal middle ear function bilaterally. On the authorized VA audiological evaluation in August 2021, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 10 5 0 10 15 LEFT 10 5 10 15 40 Speech audiometry revealed speech recognition ability of 100 percent in the right ear and of 96 percent in the left ear. The examiner concluded the Veteran had normal hearing in the right ear and sensorineural hearing loss in the left ear. The August 2021 VA examiner evaluated the Veteran and determined that, while he experienced subjective symptoms of diminished hearing and tinnitus, he did not have a diagnosis of right ear hearing loss based on VA standards. Further, despite the May 2013 audiological evaluation, private treatment records do not contain a diagnosis of right ear hearing loss. While the Veteran believes he has a current diagnosis of bilateral hearing loss, he is not competent to provide a diagnosis in this case. The issue is medically complex, as it requires specialized medical education and the ability to interpret complicated diagnostic medical testing. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). Consequently, the Board gives more probative weight to the competent medical evidence. L. M. BARNARD Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M.D. Taylor, 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.