Citation Nr: 21070518 Decision Date: 11/24/21 Archive Date: 11/24/21 DOCKET NO. 17-50 592 DATE: November 24, 2021 ORDER The claim of entitlement to a disability rating in excess of 20 percent for right shoulder tendonitis with adhesive capsulitis and acromioclavicular joint osteoarthritis (right shoulder disorder) is denied. The claim of entitlement to a disability rating in excess of 20 percent for right shoulder reflex sympathetic dystrophy is denied. FINDINGS OF FACT 1. Throughout the period on appeal, the Veteran's right shoulder disorder did not cause or more nearly approximate motion limited midway between the side and shoulder level, ankylosis, humerus impairment or clavicle or scapula impairment. 2. Throughout the period on appeal, the Veteran had no more than moderate incomplete paralysis of the right upper radicular group. CONCLUSIONS OF LAW 1. The criteria for a disability rating in excess of 20 percent for the service-connected right shoulder disorder have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1-4.14, 4.40-4.45, 4.71a, Diagnostic Code 5201 2. The criteria for a disability rating in excess of 40 percent for right shoulder reflex sympathetic dystrophy have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.102, 4.1-4.14, 4.124a, Diagnostic Code 8510. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had honorable active duty service with the United States Air Force from August 1969 to June 1977. In June 2019, the Board remanded the claim for additional development. Increased Rating Disability ratings are determined by applying the criteria set forth in the VA Schedule of Rating Disabilities (Rating Schedule) and are intended to represent the average impairment of earning capacity resulting from disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities. Disabilities must be reviewed in relation to their history. 38 C.F.R. § 4.1. Other applicable, general policy considerations are: interpreting reports of examination in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability, 38 C.F.R. § 4.2; resolving any reasonable doubt regarding the degree of disability in favor of the claimant, 38 C.F.R. § 4.3; where there is a questions as to which of two evaluations apply, assigning a higher of the two where the disability pictures more nearly approximates the criteria for the next higher rating, 38 C.F.R. § 4.7; and, evaluating functional impairment on the basis of lack of usefulness, and the effects of the disability upon the person's ordinary activity, 38 C.F.R. § 4.10. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). A claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. Thus, separate ratings can be assigned for separate periods of time based on the facts found - a practice known as "staged" ratings. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). It is not expected, especially with the more fully described grades of disabilities, that all cases will show all the findings specified; findings sufficiently characteristic to identify the disease and the disability therefrom are sufficient; and above all, a coordination of rating with impairment of function will be expected in all cases. 38 C.F.R. § 4.21. Disability of the musculoskeletal system is primarily the inability, due to damage or inflammation in parts of the system, to perform normal working movements of the body with normal excursion, strength, speed, coordination and endurance. It is essential that the examination on which ratings are based adequately portray the anatomical damage and the functional loss with respect to all of these elements. In evaluating disabilities of the musculoskeletal system, it is necessary to consider, along with the schedular criteria, functional loss due to flare-ups of pain, fatigability, incoordination, pain on movement, and weakness. DeLuca v. Brown, 8 Vet. App. 202 (1995). The functional loss may be due to absence of part, or all, of the necessary bones, joints and muscles, or associated innervation, or other pathology and evidenced by visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. 38 C.F.R. § 4.40. Pain on movement, swelling, deformity or atrophy of disuse as well as instability of station, disturbance of locomotion, interference with sitting, standing and weight bearing are relevant considerations for determination of joint disabilities. 38 C.F.R. § 4.45. Painful, unstable, or malaligned joints, due to healed injury, are entitled to at least the minimal compensable rating for the joint. 38 C.F.R. § 4.59. In accordance with 38 C.F.R. §§ 4.1, 4.2, 4.41, 4.42 and Schafrath v. Derwinski, 1 Vet. App. at 589, the Board has reviewed all evidence of record pertaining to the history of the service-connected disabilities under appeal. The Board has found nothing in the historical record which would lead to the conclusion that the current evidence of record is not adequate for rating purposes. Moreover, the Board is of the opinion that this case presents no evidentiary considerations which would warrant an exposition of remote clinical histories and findings pertaining to the disabilities under review. In addition, the Board notes that it has reviewed all of the evidence of record, with an emphasis on the evidence relevant to this appeal. Although there is an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (holding that VA must review the entire record, but does not have to discuss each piece of evidence). As such, the Board will summarize the relevant evidence where appropriate and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, as to the Veteran's claims. 1. Entitlement to a disability rating in excess of 20 percent for right shoulder disorder. The Veteran's left shoulder disability is currently rated under 38 C.F.R. § 4.71a, Diagnostic Code 5201. Prior to February 7, 2021, under Diagnostic Code 5201 (pertaining to limitation of motion of the arm), limitation of motion at shoulder level warrants a 20 percent rating for both the major and minor arms. With limitation of the arm midway between side and shoulder level, a 30 percent rating is warranted for the major arm and a 20 percent rating is warranted for the minor arm. With limitation of the arm to 25 degrees from the side a 40 percent rating is warranted for the major arm and a 30 percent rating is warranted for the minor arm. Beginning February 7, 2021, under Diagnostic Code 5201, limitation of motion at shoulder level (flexion and/or abduction limited to 90 degrees) warrants a 20 percent for both the major and minor arms. With limitation of the arm midway between side and shoulder level (flexion and/or abduction limited to 45 degrees) a 30 percent rating is warranted for the major arm and a 20 percent rating is warranted for the minor arm. With limitation of the arm to 25 degrees from the side a 40 percent rating is warranted for the major arm and a 30 percent rating is warranted for the minor arm. Other Diagnostic Codes that evaluate impairment resulting from disorders of the shoulder and arm include Diagnostic Code 5200 (ankylosis of scapulohumeral articulation), Diagnostic Code 5202 (impairment of the humerus), and Diagnostic Code 5203 (impairment of the clavicle or scapula.) Diagnostic Code 5200 provides that ankylosis of the scapulohumeral articulation (the scapula and humerus move as one piece) of the major upper extremity is rated 30 percent when it is favorable, with abduction to 60 degrees and able to reach mouth and head. A 40 percent rating is assigned with intermediate ankylosis (between favorable and unfavorable); and it is rated 50 percent when unfavorable, with abduction limited to 25 degrees from side. See 38 C.F.R. § 4.71a, Diagnostic Code 5200 and Note. Diagnostic Code 5202 provides a 20 percent evaluation for malunion of the major humerus with a moderate deformity, and a 30 percent evaluation with a marked deformity. A 20 percent evaluation is also warranted for recurrent dislocation of the major humerus at the scapulohumeral joint with infrequent episodes and guarding of movement only at the shoulder level, and a 30 percent rating is warranted for frequent episodes and guarding of all arm movements. Impairment of the major humerus is rated at 50 percent if there is a fibrous union, 60 percent if there is nonunion or false flail joint, and 80 percent if there is loss the head of humerus, with flail shoulder. See 38 C.F.R. § 4.71a, Diagnostic Code 5202. Diagnostic Code 5203 provides a 10 percent evaluation for malunion of the clavicle or scapula or nonunion without loose movement. A 20 percent evaluation is warranted for nonunion of the clavicle or scapula with loose movement or dislocation of the clavicle or scapula. See 38 C.F.R. § 4.71a, Diagnostic Code 5203. For VA purposes, normal range of shoulder motion is: forward elevation (flexion) 0 to 180 degrees; shoulder abduction 0 to 180 degrees; internal rotation 0 to 90 degrees; and external rotation 0 to 90 degrees. Lifting the arm to shoulder level is lifting it to 90 degrees. See 38 C.F.R. § 4.71, Plate I. In considering the evidence of record under the laws and regulations as set forth above, the Board concludes that an increased evaluation is not warranted for the Veteran's service-connected right shoulder disorder at any point during the period on appeal. Initially, the Board notes that the Veteran is right hand dominant. There is no evidence of record that the Veteran had limitation of the arm midway between side and shoulder level (flexion and/or abduction limited to 45 degrees), or flexion and/or abduction limited to 25 degrees from the side. The June 2016 VA examination report shows flexion to 165 degrees and abduction to 165 degrees. The March 2021 VA examination report showed flexion to 120 degrees and abduction to 120 degrees. The Board has also considered the provisions of 38 C.F.R. § § 4.40, 4.45, 4.59, and the holding in DeLuca. However, an increased evaluation for the Veteran's right shoulder disorder is not warranted on the basis of functional loss due to pain and lack of endurance in this case, as the Veteran's symptoms and impairment are supported by pathology consistent with the assigned 20 percent rating, and no higher. In this regard, the Board acknowledges the Veteran's complaints of constant pain. The evidence indicates that the Veteran has range of motion on testing that is consistent with the current ratings assigned, even accounting for further limitation due to pain and/or following repetitive motion exercises. The June 2016 VA examiner determined that there was additional loss of function with repetitive-use testing, with repeated use over time, and during flare-ups; however, the VA examiner estimated that the Veteran's flexion and abduction were each limited to, at most, an additional 20 degrees with three repetitions and with repeated use over time. The March 2021 VA examiner found that there was additional loss of function with repeated use over time and during flare-ups. However, the VA examiner provided an estimated range of motion of 105 degrees each in flexion and abduction with repeated use over time and 90 degrees each in flexion and abduction during flare-ups. The VA examiners further noted that the Veteran did not have muscle atrophy. The Board finds that the effect of the pain in the Veteran's right shoulder is contemplated in the currently assigned 20 percent rating and that he does not more nearly approximate the criteria for a 30 percent rating. The Veteran's complaints do not, when viewed in conjunction with the medical evidence, tend to establish weakened movement, excess fatigability, or incoordination to the degree that would warrant an increased rating throughout the appeal. Based on the foregoing, the Board finds that the weight of the evidence is against an increased rating for the Veteran's service-connected right shoulder disorder. As such, the benefit-of-the-doubt rule does not apply, and the claim is denied. Gilbert, 1 Vet. App. 49 (1990). 2. Entitlement to a disability rating in excess of 40 percent for right shoulder reflex sympathetic dystrophy. The Veteran's right shoulder reflex sympathetic dystrophy is currently rated pursuant to Diagnostic Code 8510 for paralysis of the upper radicular group. 38 C.F.R. § 4.124a, Diagnostic Code 8510. Pursuant to Diagnostic Code 8510, mild incomplete paralysis is rated as 20 percent for both the major and minor extremity. Moderate incomplete paralysis is rated as 40 percent for the major extremity. Severe incomplete paralysis is rated as 50 percent for the major extremity. Complete paralysis is rated at 70 percent for the major extremity. Complete paralysis is warranted when all shoulder and elbow movements are lost or severely affected; hand and wrist movements are not affected. 38 C.F.R. § 4.124a. The term "incomplete paralysis" indicates a degree of lost 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 38 C.F.R. § 4.124a. The words "mild," "moderate," and "severe" are not defined in the VA Schedule for Rating Disabilities. Rather than applying a mechanical formula, the Board must evaluate all of the evidence, to the end that its decisions are "equitable and just." 38 C.F.R. § 4.6. It should also be noted that use of terminology such as "severe" by VA examiners and others, although an element of evidence 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. Neurological disorders are ordinarily to be rated in proportion to the impairment of motor, sensory, or mental function. In rating peripheral nerve injuries and their residuals, attention is given to the site and character of the injury, and the relative impairment in motor function, trophic changes, or sensory disturbances. 38 C.F.R. § 4.120. In considering the evidence of record under the laws and regulations as set forth above, the Board concludes that a disability rating in excess of 40 percent is not warranted for the Veteran's right shoulder reflex sympathetic dystrophy at any point during the period on appeal. The April 2021 VA examination report documented the Veteran's complaint of severe pain in the right upper extremity. His symptoms were mild constant pain and moderate numbness. The physical examination revealed normal muscle strength, no muscle atrophy, normal deep tendon reflexes, decreased sensation to light touch in the inner/outer forearm and hand/fingers, and no trophic changes. The examiner determined that there was moderate incomplete paralysis of the upper radicular group. The examiner also diagnosed mild bilateral ulnar neuropathy, which the examiner concluded was separate and unrelated to the service-connected right shoulder reflex sympathetic dystrophy. His service-connected right shoulder reflex sympathetic dystrophy impacted his ability to work due to impaired repetitive reaching, forceful pushing, pulling, heavy lifting, and carrying. The medical evidence does not show severe incomplete paralysis or complete paralysis of the right upper radicular group. Instead, the evidence of record demonstrates that the right shoulder reflex sympathetic dystrophy was not manifested by muscular atrophy, complete paralysis, impairment in muscle strength, or abnormal deep tendon reflexes. Accordingly, the weight of the evidence of record does not demonstrate manifestations consistent with severe incomplete paralysis or complete paralysis of the upper radicular group during the appeal period. Based on the foregoing, the Board finds that the weight of the evidence is against an increased rating for the Veteran's service-connected right shoulder reflex sympathetic dystrophy. As such, the benefit-of-the-doubt rule does not apply, and the claim is denied. Gilbert, 1 Vet. App. 49 (1990). B. MULLINS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. McKinley, 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.