Citation Nr: 21069332 Decision Date: 11/18/21 Archive Date: 11/18/21 DOCKET NO. 17-03 972 DATE: November 18, 2021 ORDER Entitlement to disability rating of 30 percent for gleno-humeral arthritis, bicipital tendonitis, and RTC tendinopathy, right shoulder is granted. FINDING OF FACT Gleno-humeral arthritis, bicipital tendonitis, and RTC tendinopathy, right shoulder, was manifested by decreased strength, pain, and limitation of motion. The disorder more closely approximates motion limited to 45 degrees (65 degrees). CONCLUSION OF LAW The criteria for a disability rating of 30 percent for gleno-humeral arthritis, bicipital tendonitis, and RTC tendinopathy, right shoulder is met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1-4.7, 4.21, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5201. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from July 1989 to July 1993 and from March to August 2003. Ratings Principles 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. The ratings are intended to compensate impairment in earning capacity due to a service-connected disease or injury. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. If the evidence for and against a claim is an equipoise, the claim will be granted. 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. Derwinksi, 1 Vet. App. 49, 56 (1990). Any reasonable doubt regarding the degree of disability is resolved in favor of the Veteran. 38 C.F.R. § 4.3. Where there is question as to which of the two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Staged ratings, however, are appropriate when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007). The determination of whether an increased evaluation is warranted is based on review of the entire evidence of record and the application of all pertinent regulations. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows or fails to show. The Veteran should not assume that the Board has overlooked pieces of evidence that are not specifically discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000). Gleno-humeral arthritis, bicipital tendonitis, and RTC tendinopathy, right shoulder The Veteran's gleno-humeral arthritis, bicipital tendonitis, and RTC tendinopathy, right shoulder, is rated under diagnostic code 5201, for limitation of motion of the arm. The Veteran contends that a higher rating is warranted. 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. However, see section 4.7. 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). In September 2011, the Veteran submitted a VA Form 21-526b. Therein, the Veteran relayed that gleno-humeral arthritis has gotten worse. The evidence of record shows that the Veteran is right-handed; therefore, his right shoulder is considered the major joint. See, e.g., March 2018 VA treatment note (noting right hand dominance). A VA examination dated in October 2011 noted right shoulder rotator cuff tendinopathy. The Veteran reported during flare-ups he has problems putting his shirt on. Initial range of motion was flexion to 100 degrees with pain at 100 degrees and abduction to 110 degrees with pain at 110 degrees. Post-test range of motion was flexion to 95 degrees and abduction to 105 degrees. The Veteran had less movement than normal, weakened movement, and pain on movement. The Veteran had pain on palpation and muscle strength was 4/5, active movement against some resistance. The Veteran reported working at the U.S. Post Office with functional impairment of difficulty carrying heavy sacks and when landscaping. A VA examination was conducted in June 2014. The examiner reported the following range of motion for the right shoulder: flexion to 90 degrees, abduction to 90 degrees, external rotation to 90 degrees, and internal rotation to 20 degrees. The examiner noted there was objective evidence of painful motion, however, there was no evidence of ankylosis. The examiner stated there was no instability, dislocation, or labral pathology suspected. The examiner reported that a clavicle, scapula, acromioclavicular (AC) joint or sternoclavicular joint condition was not suspected. An evaluation of 20 percent is assigned if there is evidence of painful motion of the shoulder; or arm motion limited at shoulder level; or infrequent episodes of dislocation of the scapulohumeral joint with guarding of arm movements only at the shoulder level; or malunion with a moderate deformity of the humeral head; or, dislocation of the clavicle or scapula, or nonunion of the clavicle or scapula with loose movement; or favorable ankylosis with abduction to 60 degrees. A VA examination occurred in January 2020. The Veteran stated that he continued to have pain in right shoulder and it continues to worsen and had completed therapy two years ago. The Veteran felt he was very limited with pain. He was dealing with heavy equipment for work and felt the pain continued to intensify. Current Symptoms were pain in anterior aspect of shoulder and swelling. Current Treatment/Frequency was use of tens unit, Ibuprofen, and ice. The Veteran reported he had flare-ups after overuse, pain intensifies. The Veteran had difficulty picking up heavy objects and moving to get dressed. Right shoulder range of motion testing was flexion to 70 degrees, abduction to 170 degrees, external rotations to 70 degrees, and internal rotations to 65 degrees. The Veteran had functional loss due to range of motion abnormality, as the Veteran was unable to flex arm and therefore unable to reach high with his right arm. The Veteran had pain noted on examination and causes functional loss in flexion, external rotation, and internal rotation. The Veteran has objective evidence of localized tenderness or pain on palpation of the joint or associated soft tissue, described as mild and sharp, in the interior aspect of the right shoulder. There was evidence of pain with weight bearing. The Veteran had three repetitions with additional loss of range of motion with right shoulder range of motion testing was flexion to 65 degrees, abduction to 165 degrees, external rotations to 65 degrees, and internal rotations to 60 degrees with additional factors of functional loss as pain. With repeated use over time and flare-up, the range of motion was the same as with three repetitions. The examiner found that the examination is neither medically consistent nor inconsistent with the Veteran's statements describing functional loss with repetitive use over time. Right shoulder showed objective evidence of pain on passive range of motion testing. VA treatment records over the period on appeal note shoulder pain (generally described 5/10 or less painful with a 10 being worse) and right shoulder partial thickness and tearing and significant tendinopathy involving the supraspinatus tendon status-post physical therapy. A March 2018 VA physical therapy note reports range of motion testing on the right side was 105 (active) and 120 (passive) in flexion and extension was 85 (active) and 95 (passive) with internal rotation (IR), and internal rotation (IR) were within normal limits (WNLs). On the September 2021 Written Brief Presentation, the representative stated the VA examiner, on the most recent VA examination report, noted that the Veteran has flare-ups of pain and swelling after overuse of his shoulder which reduce his ability to lift. The examiner provides a decreased loss of range of motion (ROM) for repetitive use after only 3 times. When instructed to provide an estimated loss of ROM during flare-ups the examiner provides the same loss of ROM based upon the repetitive use. These estimates do not correspond with the Veteran's statements of pain, swelling, and loss of function during a flare-up. The American Legion contends that the examination was not adequate. The Board finds that the evidence supports a rating 30 percent. The current evaluation contemplates limitation of motion to shoulder level or 90 degrees. In order to warrant a higher evaluation, the disorder must approximate limitation of motion to 45 degrees. The pertinent physical findings consist of decreased strength, decreased ranges of motion and (mild, sharp) pain as well as some swelling. The Veteran was also unable to fully flex arm and therefore unable to reach high with his right arm. Limitation of motion of the arm midway between side and shoulder level (flexion and/or abduction limited to 45 degrees) has not been shown. A higher 30 percent disability rating is warranted when functional equivalent of limitation of shoulder motion is no greater than midway between side and shoulder level. Deluca, 8 Vet. App. at 204-207; Mitchell v. Shinseki, 25 Vet. App. 32 (2011); see also Sharp v. Shulkin, 29 Vet. App. 26 (2017). Here, the Veteran reported the presence of decreased strength, pain and swelling. Pain is contemplated in the assigned evaluation. Many examinations have demonstrated motion to 90 degrees. However, one examination reflected motion limited to 65 degrees, such did more closely approximate motion limited to 45 degrees. The other finding of motion to 70 degrees provides doubt as to the actual range of motion with use. 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 evidence is supports a 30 percent rating. 38 C.F.R. §§ 4.3, 4.7. Adequacy of the 2020 examination The Veteran was provided a VA examination regarding his right shoulder three separation times. In response to the representative arguments, the Board finds that the 2020 examination provides sufficient information to decide the claim and was adequate. Furthermore, the cumulative examinations are adequate. The representative alleges the VA examiner's estimates do not correspond with the Veteran's statements of pain, swelling, and loss of function during a flare-up. Presumedly, the representative is asserting that the Veteran range of motion testing was worse than that documented. However, nowhere in the record of evidence outside of the Brief has the Veteran or the representative provided any description of pain, swelling, and loss of function during flare-up causing loss of motion greater than that documented, including during the VA examination(s) and during VA treatment. The Veteran has pain noted in treatment records of a medium or middle variety (5/10 at worst) and swelling was noted as a current symptom during the VA examination. The examination report adequately addressed these issues. Instead, the allegation is that the Veteran disagrees with the examination report in some way. It is unclear whether the representative is arguing that the range of motion is so limited to equate to limitation of motion of the arm midway between side and shoulder level (flexion and/or abduction limited to 45 degrees) due to pain, swelling, and loss of function during a flare-up. The worst pain noted in treatment records was 5/10 and there are no reports from the Veteran that flare-ups, swelling, and loss of function was so frequent or caused such loss of motion to equate to the higher rating(s). The Veteran, during the most recent VA examination, noted flare-up was limited to pain with overuse. The Veteran did not report he repeatedly overuses his right shoulder so often, resulting in additional limitation of motion. Multiple VA examinations and VA treatment (physical therapy) notes did not find the Veteran's range of motion was so limited. There is no lay evidence describing frequency or lay-observable symptoms. Without specifics, it amounts to an ambiguous disagreement with the findings phrased as an argument that the VA examination report was somehow inaccurate. It is little more than a generalized statement without specifics. Therefore, the Board finds the duty to assist have been met, all due process concerns have been satisfied, and the appeal can be considered on the merits. Such was done above. These generalized statements regarding failures in the duties to assist are not specific to any actual identified failures. Therefore, no specific procedural arguments are considered raised. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) ("[I]t is appropriate for the Board... to address only those procedural arguments specifically raised by the [V]eteran."). H. N. SCHWARTZ Veterans Law Judge Board of Veterans' Appeals Attorney for the Board P. Yoffe, 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.