Citation Nr: 21070327 Decision Date: 11/23/21 Archive Date: 11/23/21 DOCKET NO. 14-23 187 DATE: November 23, 2021 ORDER Entitlement to an initial disability rating in excess of 30 percent for right upper extremity brachioplexus neuropathy is denied. Entitlement to an initial disability rating for right shoulder (dominant) impingement syndrome, rotator cuff tendonitis, subacromial/subdeltoid bursitis, and glenohumeral joint osteoarthritis in excess of 20 percent is denied. Entitlement to an increased disability rating for right shoulder (dominant) impingement syndrome, rotator cuff tendonitis, subacromial/subdeltoid bursitis, and glenohumeral joint osteoarthritis in excess of 30 percent from September 21, 2017 is denied. FINDINGS OF FACT 1. Right upper extremity brachioplexus neuropathy is productive of moderate incomplete paralysis of the ulnar nerve. 2. Prior to September 21, 2017, the Veteran's right shoulder (dominant) impingement syndrome, rotator cuff tendonitis, subacromial/subdeltoid bursitis, and glenohumeral joint osteoarthritis is manifested by pain and limitation of motion of the arm no less than the shoulder level. 3. From September 21, 2017, the Veteran's right shoulder (dominant) impingement syndrome, rotator cuff tendonitis, subacromial/subdeltoid bursitis, and glenohumeral joint osteoarthritis is manifested by limitation of motion of the right shoulder (major) at midway between side and shoulder level. CONCLUSIONS OF LAW 1. The criteria for an initial disability rating in excess of 30 percent for right upper extremity brachioplexus neuropathy have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.7, 4.124a, Diagnostic Code 8516. 2. The criteria for an initial disability rating in excess of 20 percent for right shoulder (dominant) impingement syndrome, rotator cuff tendonitis, subacromial/subdeltoid bursitis, and glenohumeral joint osteoarthritis are not met. 38 U.S.C. § 1155; 38 C.F.R. § 4.71a, Diagnostic Code 5010-5201. 3. The criteria for a disability rating in excess of 30 percent for right shoulder (dominant) impingement syndrome, rotator cuff tendonitis, subacromial/subdeltoid bursitis, and glenohumeral joint osteoarthritis from September 21, 2017 are not met. 38 U.S.C. § 1155; 38 C.F.R. § 4.71a, Diagnostic Code 5010-5201. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from January 1985 to November 1990. The claims currently before the Board were previously remanded for a new VA examination. The remand examination was completed in September 2021, and the Veteran was found to have right upper extremity brachioplexus neuropathy. Increased Rating 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. Separate diagnostic codes identify the various disabilities and the criteria for specific ratings. If two disability evaluations are potentially applicable, the higher evaluation will be assigned to the disability picture that more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability will be resolved in favor of a veteran. 38 C.F.R. § 4.3. Staged ratings 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); see also Fenderson v. West, 12 Vet. App. 119 (1999). 1. Entitlement to an initial evaluation in excess of 30 percent for right upper extremity brachioplexus neuropathy The Veteran is in receipt of an initial 30 percent evaluation for right upper extremity brachioplexus neuropathy under Diagnostic Code 8516, effective October 8, 2015. Diagnostic Code 8516 is specific to the ulnar nerve. As a preliminary matter, the evidence of record indicates that the Veteran's right arm is her dominant or "major" arm. Under Diagnostic Code 8516, incomplete paralysis of the major arm warrants a 10 percent rating for "mild" disability, a 30 percent rating for "moderate" disability, and a 40 percent rating for "severe" disability. A 60 percent evaluation is warranted for complete paralysis of the ulnar nerve in the major arm. Complete paralysis includes the "griffin claw" deformity, due to flexor contraction of ring and little fingers, atrophy very marked in dorsal interspace and thenar and hypothenar eminences; loss of extension of ring and little fingers cannot spread the fingers (or reverse), cannot adduct the thumb; flexion of wrist weakened. 38 C.F.R. § 4.124a. The terms "slight," "moderate," and "severe" are not defined in the rating schedule. Rather than applying a mechanical formula, the Board must evaluate all of the evidence to arrive at a just and equitable decision. Additionally, the use of such terminology by VA examiners and others, although an element 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 term "incomplete paralysis" with peripheral nerve injuries indicates a degree of loss or impaired function substantially less than the type pictured for complete paralysis given with each nerve, whether due to the varied level of the nerve lesion or to partial regeneration. When the involvement is wholly sensory, the rating should be for mild, or at most, the moderate degree. See note at "Diseases of the Peripheral Nerves" in 38 C.F.R. § 4.124(a). A November 2015 VA examination had observations indicating potential ulnar nerve issues. The Veteran reported dullness in fingertips of both arms. She had a constant dull ache in her right lateral and anterior shoulder and a tenderness on top of her shoulder. She also has had intermittent numbness in the right lateral shoulder that goes under her arm to her medial right arm down to all five fingers. She reported that her hand always feels swollen. She also reported difficulty lifting buckets of water at her current occupation. A September 2017 VA examination notes that the Veteran does not play any sports that involve her right arm. The Veteran reported lost strength in her right arm. The Veteran reported numbness tingling in her right hand in the medial two finger after right shoulder flares up. At an April 2020 VA examination, the examiner documented strength in the right arm as 4/5 for elbow flexion, 4/5 for elbow extension, 5/5 for wrist flexion, 5/5 for wrist extension, 4/5 for grip and 5/5 for pinch. There was no muscle atrophy. Reflexes were normal. There was decreased sensation in the hand/fingers, shoulder area and inner/outer forearm. Specific to the ulnar nerve of the right arm, the examiner documented incomplete paralysis of moderate severity. All other nerve groups were normal. The Veteran did not use an assistive device. At a September 2021 VA examination, the examiner documented strength in the right arm as 5/5 for elbow flexion, 5/5 for elbow extension, 5/5 for wrist flexion, 5/5 for wrist extension, and 5/5 for grip and pinch. There was no muscle atrophy. Reflexes were normal. There was normal sensation in the hand/fingers, shoulder area and inner/outer forearm. Specific to the ulnar nerve of the right arm, the examiner documented incomplete paralysis of mild severity. All other nerve groups were normal. The Veteran did not use an assistive device. The Board has also reviewed VA treatment records and private treatment records, which reveal symptoms and manifestations consistent with the VA examinations. After a review of the record, an initial evaluation of no more than 30 percent is warranted. With consideration of the evidence, the Board believes that the Veteran's ulnar nerve disorder manifests at no more than moderate. In making this determination, the Board pays particular attention to the grip and general hand strength, and notes symptoms such as pain and numbness. The Board notes that medical records indicate that the Veteran has incomplete paralysis, with the most recent medical examination showing mild incomplete paralysis. However, medical records do not indicate that the Veteran has, or has ever had, severe incomplete paralysis. In addition, recorded strength measurements of the right arm at worst measured at 4/5. The most recent strength measurements for the right arm were at 5/5. The Board has not overlooked the statements by the Veteran with regard to the severity of her disability. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). The Board has considered the Veteran's reports along with the medical evidence of record. Here, the most probative evidence consists of the VA examinations and treatment records. This is consistent with VA's determination to handle cases affected by change in medical findings or diagnosis so as to produce the greatest degree of stability of disability evaluations consistent with the laws and regulations governing disability compensation and pension. See 38 C.F.R. § 3.344(a). After review of the file, the preponderance of the evidence is against a finding that the criteria for an evaluation in excess of 30 percent under Diagnostic Code 8516 have been met. 2. Entitlement to an initial rating for right shoulder (dominant) impingement syndrome, rotator cuff tendonitis, subacromial/subdeltoid bursitis, and glenohumeral joint osteoarthritis in excess of 20 percent 3. Entitlement to an increased rating for right shoulder (dominant) impingement syndrome, rotator cuff tendonitis, subacromial/subdeltoid bursitis, and glenohumeral joint osteoarthritis in excess of 30 percent from September 21, 2017 When assessing the severity of musculoskeletal disabilities that are at least partly rated on the basis of limitation of motion, VA must also consider the extent that the Veteran may have additional functional impairment above and beyond the limitation of motion objectively demonstrated, such as during times when his symptoms are most prevalent ("flare-ups") due to the extent of his pain (and painful motion), weakness, premature or excess fatigability, and incoordination-assuming these factors are not already contemplated by the governing rating criteria. DeLuca v. Brown, 8 Vet. App. 202, 204-7 (1995); see also 38 C.F.R. §§ 4.40, 4.45, 4.59. Pain, may result in functional loss, but only if it limits the ability "to perform the normal working movements of the body with normal excursion, strength, speed, coordination, [or] endurance." Mitchell v. Shinseki, 25 Vet. App. 32, 38 (2011). The Veteran's right shoulder (dominant) impingement syndrome, rotator cuff tendonitis, subacromial/subdeltoid bursitis, and glenohumeral joint osteoarthritis was initially rated as 20 percent disabling pursuant to 38 C.F.R. § 4.71a, Diagnostic Code 5010-5201 (arm, limitation of motion) and was increased to 30 percent effective September 21, 2017. The evidence demonstrates that the Veteran's service-connected right shoulder disability is manifested by limitation of motion of the right shoulder. The Board also notes that the competent and probative evidence does not document ankylosis of the right shoulder or impairment of the clavicle, scapula, or humerus. Therefore, Diagnostic Codes 5200, 5202, and 5203 which pertain to ankylosis of the shoulder and impairment of the humerus clavicle, and scapula, respectively, are not for consideration. As such, the Board finds that Diagnostic Code 5201 is the most appropriate Diagnostic Code for application. Diagnostic Code 5201 provides a 20 percent rating for limitation of arm motion at shoulder level for both the major and minor joint; a 30 percent rating for limitation of arm motion midway between the side and shoulder level for the major joint and a 20 percent rating for the minor joint; and a 40 percent rating for limitation of arm motion to 25 degrees from the side for the major joint and a 30 percent rating for the minor joint. As reflected in the record, the Veteran is right-handed, and therefore her right shoulder is the major joint. See, e.g., the September 2021 VA examination report. Normal forward elevation, or flexion, of the shoulder is from 0 to 180 degrees. Normal shoulder abduction is also from 0 to 180 degrees. Normal external rotation and internal rotation are from 0 to 90 degrees. 38 C.F.R. § 4.71, Plate I. The applicable rating criteria for musculoskeletal disorders, in particular shoulder disabilities, under 38 C.F.R. § 4.71a were amended, effective February 7, 2021 [Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 76453-69 (November 30, 2020) (to be codified at 38 C.F.R. § 4.71a, Diagnostic Code 5201)]. The Board notes that Diagnostic Code 5201 was amended to note that shoulder level is 90 degrees and midway is 45 degrees. The Board notes that these rating criteria were not otherwise amended. As such, the Board finds that remand for a new VA examination to consider the new rating criteria is not warranted as the evidence discussed below is sufficient to rate the Veteran's right shoulder disability. The Veteran was provided a VA examination in March 2011. She reported having difficulty raising her right arm or dressing her upper body, with constant shoulder pain and stiffness. Examination of her shoulders revealed no atrophy or deformity. Right shoulder range of motion testing revealed forward flexion to 95 degrees with no change on repetitive testing; abduction to 90 degrees with no change on repetitive testing; internal rotation to 45 degrees; and external rotation to 45 degrees. An MRI report showed type II acrimon morphology. A new examination was provided in November 2015. Examination of her shoulders revealed no atrophy or deformity. Right shoulder range of motion testing revealed forward flexion to 140 degrees changing to 147 degrees on repetitive testing; abduction to 137 degrees changing to 125 degrees with repetitive testing; internal rotation to 90 degrees; and external rotation to 90 degrees. The examiner found that pain, weakness, fatigability or incoordination significantly limited right shoulder functional ability with flare-ups. A new examination was provided in September 2017. Examination of her shoulders revealed muscle atrophy due to disuse. Right shoulder range of motion testing revealed forward flexion to 30 degrees; abduction to 88 degrees; internal rotation to 30 degrees; and external rotation to 69 degrees. The examiner was unable to say whether pain, weakness, fatigability or incoordination significantly limited right shoulder functional ability with flare-ups without speculating. The Board notes that the examination was repetitive use testing was not conducted; the examiner states that the examination was conducted during a flare-up but contradictorily states that it was not conducted during a flare-up. The Board believes that despite the contradictions, this examination was conducted during a flare-up. A new examination was provided in April 2020. Examination of her shoulders revealed no atrophy or deformity. Right shoulder range of motion testing revealed forward flexion to 100 degrees; abduction to 90; internal rotation to 50 degrees; and external rotation to 70 degrees. Repetitive use testing revealed no changes to range of motion in the right shoulder. The examiner found that pain, weakness, fatigability or incoordination did not limit right shoulder functional ability with flare-ups. The Board adds that VA treatment records note the Veteran's continued report of right shoulder pain. The Board has also reviewed VA treatment records and private treatment records, which reveal symptoms and manifestations consistent with the VA examinations. Based on the evidence of record, the Board finds that the Veteran's right shoulder symptomatology does not warrant an initial evaluation in excess of 20 percent under Diagnostic Code 5010-5201. 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) (addressing what constitutes an adequate explanation for an examiner's inability to estimate motion loss in terms of degrees during periods of flare-ups). Here, the Veteran reported the presence of pain. However, the pain did not functionally limit motion to midway between the side and shoulder level or less. Furthermore, pain is contemplated in the assigned evaluation. Therefore, although the Veteran reported limitation in generally limited use of her right arm, the statements do not establish limitation of function to midway between the side and shoulder level or less. The Board finds the VA examination reports in particular to be of significant probative value as these were based on thorough examinations of the Veteran and further do not reveal limitation of motion to midway between the side and shoulder level or less. As limitation of right shoulder motion is greater than midway between the side and shoulder level, a higher rating is not warranted as to the Veteran's service-connected right shoulder disability. See 38 C.F.R. § 4.71a, Diagnostic Code 5201. The Board also finds that from September 21, 2017, the Board finds that the Veteran's right shoulder symptomatology does not warrant an evaluation in excess of 30 percent under Diagnostic Code 5010-5201. In order to warrant a higher evaluation, there must be the functional equivalent of limitation of motion to 25 degrees from the side. There is no medical or lay evidence of record indicating that the Veteran was unable to raise her right arm above 25 degrees. As a result, the Board finds that an evaluation in excess of 30 percent for this period is not warranted. See 38 C.F.R. § 4.71a, Diagnostic Code 5201. The Board has not overlooked the statements by the Veteran with regard to the severity of her disability during the period on appeal. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). The Board has considered the Veteran's reports along with the medical evidence of record. Here, the most probative evidence consists of the VA examinations and treatment records. Therefore, the preponderance of the evidence is against a finding that the criteria for an initial evaluation in excess of 20 percent, and for an evaluation in excess of 30 percent from September 21, 2017, under Diagnostic Code 5010-5201 have been met. In essence, there was a change in the level of disability and that change was no earlier than the date of the evaluation. Although the disability may have fluctuated prior to such date, an effective date is exactly that, a precise date. Here, there is no evidence that would establish a date other than that already selected based upon facts found. H. N. SCHWARTZ Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Jonah Nelson, 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.