Citation Nr: 21070462 Decision Date: 11/24/21 Archive Date: 11/24/21 DOCKET NO. 16-10 694 DATE: November 24, 2021 ORDER Entitlement to service connection for a left shoulder condition is denied. Entitlement to service connection for a low back condition is denied. Entitlement to an evaluation greater than 20 percent for right shoulder strain status post rotator cuff surgery is denied. FINDINGS OF FACT 1. The Veteran's impingement syndrome and acromioclavicular arthritis of the left shoulder was not shown as chronic in service and did not manifest to a compensable degree within the applicable presumptive period; continuity of symptomatology is not established; and the disability is not otherwise etiologically related to an in-service injury or disease. 2. The preponderance of the evidence is against finding that the Veteran's lumbosacral strain began during active service or is otherwise related to an in-service injury or disease. 3. The Veteran's right shoulder strain status post rotator cuff surgery is manifested by limitation of motion of the arm midway between side and shoulder of the major extremity. CONCLUSIONS OF LAW 1. The criteria for service connection for impingement syndrome and acromioclavicular arthritis of the left shoulder have not been met. 38 U.S.C. §§ 1110, 1112, 1113, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 2. The criteria for service connection for lumbosacral strain are not met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. 3. The criteria for an evaluation greater than 20 percent for right shoulder strain status post rotator cuff surgery have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.20, 4.40, 4.45, 4.71a, Diagnostic Codes 5201-5019. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service in the United States Army from November 1996 to November 1999 and from September 2003 to September 2004. These matters are on appeal from June 2015 and July 2015 rating decisions. The Veteran testified at a Board of Veterans' Appeals (Board) hearing in December 2018. In May 2019, December 2020, and May 2021, the Board remanded the appeal for additional evidentiary development. SERVICE CONNECTION 1. Entitlement to service connection for a left shoulder condition. 2. Entitlement to service connection for a low back condition. The Veteran testified that his left shoulder and low back conditions were caused by a roadside bomb during his active service. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 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, while the Veteran has current diagnoses of impingement syndrome and acromioclavicular arthritis of the left shoulder and lumbosacral strain, the evidence shows that the preponderance of the evidence weighs against a finding that these disabilities began during service or are otherwise related to an in-service injury, event, or disease. The Veteran's service treatment records are silent for low back or shoulder treatment. However, they note complaints of left collar bone pain. The Board has conceded that the Veteran was involved in an explosion during his active service. Pursuant to the May 2019 Board remand, the Veteran underwent a VA back examination and a VA shoulder and arm conditions examination in October 2019. The VA examiner diagnosed lumbosacral strain and indicated that the Veteran's lumbosacral strain began around 2005. The Veteran reported that his back disability began after his active service and was attributable to heavy lifting. The VA examiner also diagnosed impingement syndrome and acromioclavicular arthritis of the left shoulder. The Veteran reported that his left shoulder pain developed around 2007. The VA examiner opined that the Veteran's left shoulder and back disabilities were less likely than not related to active service. He elaborated that the Veteran related the disabilities to heavy lifting after service. The VA examiner concluded that there were previous denials for service connection due to lack of evidence. In February 2021, VA obtained addendum opinions regarding the etiology of the Veteran's back and left shoulder disabilities. The VA examiner opined that the Veteran's back disability and left shoulder disability were less likely than not related to his claimed in-service injury. She explained that the entire file, including the Veteran's lay statements, were reviewed. Service treatment records were silent for a low back condition. Post-service records document the onset of the Veteran's left shoulder condition in 2007 and the back condition in 2009. Finally, in August 2021, the Veteran underwent his most recent VA shoulder and arm conditions examination. The VA examiner diagnosed left shoulder strain and indicated that it began in August 2021. The Veteran reported that he injured his left shoulder when a roadside bomb exploded during active service. The only evidence in support of the Veteran's claims is the Veteran's lay statements that his back condition and left shoulder condition were caused by his in-service explosion. However, these statements are contradicted by the medical history he provided during the October 2019 examination. He told the October 2019 VA examiner that his left shoulder and low back conditions developed due to heavy lifting after service. Therefore, the Veteran's nexus statements are of little probative value as they have been inconsistent throughout the appeal period. Therefore, the weight of the evidence is against a finding that the Veteran's low back and left shoulder conditions were caused by an in-service disease or injury. Furthermore, to the extent that the Veteran has left shoulder arthritis, the record shows that this was not diagnosed until 2007, several years after his separation from active service. Therefore, service connection may not be granted on a presumptive basis. Based upon the forgoing reasons, entitlement to service connection for a left shoulder condition and a low back condition is denied. 38 U.S.C. §§ 1110, 1112, 1113, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 3. Entitlement to an evaluation greater than 20 percent for right shoulder strain status post rotator cuff surgery. The Veteran contends that he is entitled to a higher evaluation for his right shoulder strain status post rotator cuff due to pain and difficulty reaching over head. The Veteran's right shoulder strain status post rotator cuff surgery is rated under 38 C.F.R. § 4.71a, Diagnostic Codes 5201-5019. Hyphenated Diagnostic Codes are used when a rating under one diagnostic code requires use of an additional diagnostic code to identify the basis for the assigned rating; the additional code is shown after the hyphen. Here, the hyphenated diagnostic code indicates that limitation of motion of the arm (Diagnostic Code 5201) is rated under the criteria for bursitis (Diagnostic Code 5019). Under Diagnostic Code 5019, bursitis is rated based on limitation of motion of the affected parts. 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). In Correia v. McDonald, 28 Vet. App. 158 (2016), the U.S. Court of Appeals for Veterans Claims (Court) held that the final sentence of 38 C.F.R. § 4.59 requires that the examiner record the results of range of motion testing "for pain on both active and passive motion [and] in weight-bearing and non-weight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint." In Sharp v. Shulkin, 29 Vet. App. 26 (2017), the Court held that VA examiners must obtain information about the severity, frequency, duration, precipitating and alleviating factors, and extent of functional impairment of flares from the veterans themselves, when a flare-up is not observable at the time of examination. In July 2015, the Veteran underwent a VA shoulder and arm examination. The VA examiner diagnosed right shoulder strain. The Veteran is right arm dominant. He reported flare-ups that were manifested by a feeling of hotness and pain that radiated down the arm. During flare-ups, he was unable to perform any activity. Initial range of motion studies for the right shoulder showed: flexion to 110 degrees; abduction to 110 degrees; external rotation to 60 degrees; and, internal rotation to 20. Pain was noted that caused functional loss. The Veteran was able to complete repetitive use testing without any additional loss of function or range of motion. With repetitive use over time and during flare-ups, the VA examiner estimated that the Veteran's right shoulder ranges of motion would be: flexion to 100 degrees; abduction to 100 degrees; external rotation to 50 degrees; and, internal rotation to 10 degrees. There was no shoulder instability. The VA examiner identified scars that measured 4 centimeters by .2 centimeters, 5 centimeters by .2 centimeters, and 3 centimeters by .2 centimeters. The scars were not painful or unstable, did not have a total area equal to or greater than 39 square centimeters, and were not located on the face. The VA examiner indicated that the Veteran's right shoulder disability did not impact his ability to work. In October 2019, the Veteran was afforded another VA shoulder and arm conditions examination. The Veteran was right arm dominant. He reported flare-ups and functional loss or impairment that impacted his ability to lift heavy objects and raise his arms above his head. Initial right shoulder ranges of motion showed: flexion to 135 degrees; abduction to 130 degrees; external rotation to 90 degrees; and, internal rotation to 90 degrees. Pain was noted and caused functional loss. The Veteran was able to complete repetitive use testing without additional loss of range of motion or functional loss. The VA examiner was unable to estimate ranges of motion during flare-ups and with repeated use over time. He had three scars that measured 5 centimeters by .5 centimeters, 4 centimeters by .5 centimeters, and 6 centimeters by 1.5 centimeters. The scars were not painful, unstable, and did not have a total area equal to or greater than 39 square centimeters. However, he indicated that the Veteran's service-connected right shoulder disability impacted his ability to work because it affected his ability to lift heavy objects and to raise his arm above his head. Finally, in August 2021, the Veteran underwent his most recent VA shoulder and arm conditions examination. The VA examiner diagnosed right shoulder strain status post rotator cuff surgery. The Veteran endorsed dull right shoulder pain. He had flare-ups that made lifting and raising his arms as difficult. Initial range of motion studies for the right shoulder showed: flexion to 105 degrees; abduction to 100 degrees; internal rotation to 45 degrees; and, external rotation to 45 degrees. Passive ranges of motion were the same as active ranges of motion. The Veteran was able to complete repetitive use testing without any additional loss of function or range of motion. With repeated use over time, the VA examiner estimated the following right shoulder ranges of motion: flexion to 100 degrees; abduction to 95 degrees; internal rotation to 45 degrees; and, external rotation to 45 degrees. During flare-ups, the VA examiner estimated the following right shoulder ranges of motion: flexion to 105 degrees; abduction to 100 degrees; internal rotation to 45 degrees; and, external rotation to 45 degrees. There was no right shoulder instability noted. The Veteran was employed as a lawn care owner. However, he was limited in lifting or pushing over 50 pounds. The Board finds that the preponderance of the evidence is against a rating in excess of 20 percent for right shoulder strain status post rotator cuff surgery. 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 repeated use over time and flare-ups. However, even considering the Veteran's lay reports of symptoms and noted functional loss, the degree of additional limitation reflected by the statements that during flare-ups he has difficulty reaching overhead 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 August 2021 VA examiner estimated that during flare-ups the Veteran's right shoulder ranges of motion would be: flexion to 105 degrees; abduction to 100 degrees; internal rotation to 45 degrees; and, external rotation to 45 degrees. This estimate is highly probative because it was based on the Veteran's lay statements, an examination of the Veteran, a review of the record, and the VA examiner's medical expertise. 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. Lastly, the Board notes that the Veteran has shoulder scars. However, he is already in receipt of a separate evaluation for these scars, and this issue is not currently before the Board. 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 strain status post rotator cuff surgery. 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. DAVID L. WIGHT Veterans Law Judge Board of Veterans' Appeals Attorney for the Board R.R. Watkins, 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.