Citation Nr: 21074610
Decision Date: 12/15/21	Archive Date: 12/15/21

DOCKET NO. 16-44 388
DATE: December 15, 2021

ORDER

Entitlement to an initial rating in excess of 20 percent for right shoulder impingement is denied.

FINDING OF FACT

The Veteran's right shoulder impingement is not manifested by limitation of motion midway between the side and shoulder level.

CONCLUSION OF LAW

The criteria for an initial rating in excess of 20 percent for right shoulder impingement have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.21, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code (DC) 5201.

REASONS AND BASES FOR FINDING AND CONCLUSION

The Veteran served on active duty in the United States Coast Guard from June 1980 to August 1980.

In a July 2020 Board decision, entitlement to an initial rating in excess of 20 percent for right shoulder impingement was denied. The Veteran appealed the decision to the United States Court of Appeals for Veterans Claims (Court). In a July 2021 order, the Court vacated the Board's decision and remanded the issue pursuant to a Joint Motion for Remand (JMR) that had been entered into by the Veteran and the Secretary of VA.

In an August 2015 VA Form 9, the Veteran contended that the August 2016 VA examination is inadequate because the Veteran's range of motion was impacted by his use of medication. However, the Court has previously noted that the Board errs in considering ameliorative effects of medication without a basis in the regulation for doing so. Here, the relevant DC does not denote consideration of the ameliorative effects of medication, so the Board must consider the Veteran's disability without the effects of ameliorative medicine. 38 C.F.R. § 4.71a, DC 5201.

In an August 2021 statement, the Veteran contended that the August 2015 and August 2016 VA examinations were inadequate under the provisions of Sharp. Sharp v. Shulkin, 29 Vet. App. 26, 33 (2017). Sharp discussed whether VA is obligated to obtain an examination during a flare-up period depends on the nature of the disability and the frequency and duration of the flare. The Court held that lay statements can provide "an adequate basis on which to formulate an opinion regarding additional functional loss during flares." In this statement, the Veteran claimed that the examinations were inadequate for failing to provide range of motion estimates after repeated use over time or after flare-ups. 

In the August 2015 VA examination report, the examiner provided a rationale as to why he was unable to say whether pain, weakness, fatigability or incoordination significantly limit functional ability with repeated use over a period of time without resorting to mere speculation. The examiner noted that the Veteran denied experiencing flare-ups and documented that because there the Veteran was not examined after repeated use over time, it would be mere speculation to express in terms of the degrees of additional range of motion loss due to pain, weakness, fatigability, or incoordination. The examiner recorded that although the Veteran experiences severe pain on overhead work and heavy lifting, the Veteran has a sedentary job. 

In the August 2015 VA examination report, the examiner considered the relevant criteria under Sharp, noted the Veteran's denial of experiencing flare-ups and provided a rationale as to why he was unable to offer an appropriate opinion without resorting to mere speculation. As such, the Board finds that the August 2015 VA examination is adequate.

In May 2019 the Board noted that the August 2016 VA examination was partially inadequate with respect to Sharp and with Correia v. McDonald, 28 Vet. App. 158 (2016) and remanded the issue for a new VA examination.

In the August 2016 VA examination, the Veteran reported experiencing flare-ups. However, the examiner stated that an opinion regarding whether pain, weakness, fatigability or incoordination significantly limit functional ability with repeated use over a period of time could not be offered without mere speculation because the Veteran was not being examined after a flare-up. The examiner noted the frequency, duration, and severity of the Veteran's flare-ups in compliance with the provisions of Sharp. For example, the Veteran reported that she experienced two flare-ups within the last year, that her pain was between a seven to a 10 out of 10 and recorded the functional impairment and related impact of the flare-ups on the Veteran's daily activities. Accordingly, as the examination report adequately discussed the relevant criteria, the Board now finds that the August 2016 VA examination is in compliance with the provisions of Sharp.

In Correia, it was held, in essence, that to be adequate, an examination of a joint must include range of motion testing of the joint in the following areas: active motion, passive motion, weight-bearing, and nonweight-bearing. The Board notes here that the Correia case is less applicable when evaluating a shoulder disability rather than, for example, a knee disability, which is the disability that Correia addressed.

The Correia case involved a claim for increased ratings for knee disabilities, as opposed to the current case which involves a shoulder disability. In Correia, the Court provided a precedential interpretation of the final sentence of 38 C.F.R. § 4.59, which reads: "The joints involved should be tested for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with the range of the opposite undamaged joint." Specifically, the Court held that "the final sentence of § 4.59 creates a requirement that certain range of motion testing be conducted whenever possible in cases of joint disabilities." The Court also stated that "to be adequate, a VA examination of the joints must, wherever possible, include the results of the range of motion testing described in the final sentence of § 4.59."

The Court provided two qualifications to this requirement. First, the Court "trust[ed] that its decision [would] be taken as requiring the range of motion testing listed in the final sentence of § 4.59 in every case in which those tests can be conducted." The Court specifically found that it was not competent to determine "whether upper extremities are or can be weight-bearing," though it did find that knees were "undoubtedly weight-bearing." In a later footnote, the Court "le[ft] it to medical professionals to determine whether the listed range of motion testing can be performed on the joints at issue in a particular case." Second, the Court indicated that range of motion testing of the opposite joint does not apply "for joints that do not have an opposite or whose opposite is also damaged." While the Court did not define "damaged" for these purposes, they noted that both of the appellant's knees were "damaged." The record shows that the appellant in Correia had knee diagnoses that included both traumatic arthritis and degenerative joint disease.

First, the August 2016 examination report noted the range of motion of the right shoulder in all directions, and, where applicable, the specific point at which painful motion begins.  Second, VA shoulder examinations generally conduct range of motion testing by assessing active motion, rather than passive, by having the Veteran move the arm at the shoulder level to test flexion, abduction, external rotation, and internal rotation. The August 2016 VA examination report noted that the Veteran's right should had normal muscle strength, with consideration to different evaluations of active movement. 

Although it may be possible to test passive motion without weight-bearing by having the examiner move the shoulder by bending the Veteran's arm, such testing would be awkward and would not reveal useful information.  Moreover, that active range of motion testing produces range of motion test result figures, which are more restricted than the results produced by passive range of motion testing in which the physician forces the joint through its motions.  

Similarly, the Board finds that testing on weight-bearing would generally produce more restrictive results than testing done without weight-bearing.  For example, the examination noted that there was no evidence of pain with weight bearing. Therefore, in spite of the prior Board remand in order to obtain examination findings consistent with Correia, the Board concludes that there is no prejudice to the Veteran in relying on the August 2016 VA examination of record that involved active range of motion testing, because such results tend to produce the "worst case scenario" of impairment and thus would tend to support the highest possible rating. For all of these reasons, the Board now finds that the August 2016 VA examination is adequate. Accordingly, VA has fulfilled the duty to assist.

The Board notes that in the July 2020 Board decision and July 2021 JMR, reference was made to a November 2019 VA examination. Although the examination report was uploaded to the Veteran's claims file in November 2019, the examination was actually conducted in October 2019. 

Increased Rating

Disability evaluations are determined by evaluating the extent to which a Veteran's service-connected disability adversely affects the Veteran's ability to function under the ordinary conditions of daily life, including employment, by comparing the Veteran's symptomatology with the criteria set forth in the Schedule for Rating Disabilities. 38 C.F.R. Part 4. The percentage ratings represent as far as can practicably be determined the average impairment in earning capacity resulting from such diseases and injuries and the residual conditions in civilian occupations. Generally, the degree of disabilities specified are considered adequate to compensate for considerable loss of working time from exacerbation or illness proportionate to the severity of the several grades of disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Any reasonable doubt regarding the degree of disability will be resolved in favor of the Veteran. 38 C.F.R. § 4.3.

Disability of the musculoskeletal system is primarily the inability, due to damage or infection in parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. It is essential that the examination upon which ratings are based adequately portray the anatomical damage, and the functional loss, with respect to all these elements. The functional loss may be due to absence of part, or all, of the necessary bones, joints and muscles, or associated structures, or to deformity, adhesions, defective innervations, or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by the 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. A little used part of the musculoskeletal system may be expected to show evidence of disuse, either through atrophy, the condition of the skin, absence of normal callosity or the like. 38 C.F.R. § 4.40.

Evidence of pain, weakened movement, excess fatigability, or incoordination must be considered in determining the level of associated functional loss, taking into account any part of the musculoskeletal system that becomes painful on use. The provisions regarding the avoidance of pyramiding, see 38 C.F.R. § 4.14, do not forbid consideration of a higher rating based on greater limitation of motion due to pain on use, including flare ups. However, those provisions should only be considered in conjunction with the DCs predicated on limitation of motion. 38 C.F.R. §§ 4.40, 4.45.

The intent of the rating schedule is to recognize painful motion with joint or periarticular pathology as productive of disability. Painful motion is an important factor of joint disability, which is entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59. However, the evaluation of painful motion as limited motion only applies when the limitation of motion is noncompensable under the applicable DC.

Service connection for right shoulder impingement was granted in an August 2015 rating decision and assigned a 20 percent rating, effective February 11, 2015. Within the August 2015 rating decision, the agency of original jurisdiction noted that the Veteran's right upper extremity is her dominant or major arm. The disability is rated under DC 5201, which is based on limitation of motion of the arm. 

Under DC 5201, limitation of motion of the major extremity at the shoulder level warrants a 20 percent rating. Limitation of motion midway between the side and shoulder level warrants a 30 percent rating for the major extremity. Where motion is limited to 25 degrees from the side, a 40 percent rating is warranted for the major extremity. 38 C.F.R. § 4.71a, DC 5201.

Normal ranges of upper extremity motion are defined by VA regulation as follows: forward elevation (flexion) from zero to 180 degrees; abduction from zero to 180 degrees; internal and external rotation to 90 degrees; finally, lifting the arm to shoulder level is lifting it to 90 degrees. See 38 C.F.R. § 4.71a, Plate I.

Entitlement to an initial rating in excess of 20 percent for right shoulder impingement.

As stated above, in the August 2015 rating decision currently on appeal, the Veteran was granted service connection for right shoulder impingement and assigned a 20 percent rating effective February 11, 2015. In a May 2019 Board decision, the issue was remanded for a new VA examination. In January 2020 rating decision the 20 percent rating was continued. In the July 2020 Board decision, entitlement to an initial rating in excess of 20 percent for service-connected right shoulder impingement was denied. The Veteran appealed this decision, and in a July 2021 order, the Court vacated the Board's decision and remanded the issue pursuant to a JMR. 

As agreed by the parties to the July 2021 JMR, the Board is directed to "explain to what extent, if any, it was relying on the ameliorative effects of the medications in its determination." In the instant case, the Board has not considered the ameliorating effects of the Veteran's medication in assessing the Veteran's disability rating, as such is not contemplated by DC 5201. The Court has previously noted that the Board errs in considering ameliorative effects of medication without a basis in the regulation for doing so. Jones v. Shinseki, 26 Vet. App. 56. Here, the relevant DC does not denote consideration of the ameliorative effects of medication, so the Board must consider the Veteran's disability without the effects of ameliorative medicine. 38 C.F.R. § 4.71a, DC 5201.

The Board has carefully reviewed the evidence of record and finds that the preponderance of the evidence is against the award of an increased rating in excess of 20 percent for right shoulder impingement. The reasons for this decision follow.

The evidence shows that the Veteran's right shoulder impingement is manifested by pain and limitation of motion but does not result in limitation of motion midway between the side and shoulder level, to warrant a 30 percent rating. At worst, the Veteran's right shoulder abduction was limited to 90 degrees, which is most closely approximated by lifting the arm to shoulder level. See 38 C.F.R. § 4.71a, Plate I. For example, the Veteran was found to have right shoulder abduction to 90 degrees at the time of the August 2015 and August 2016 VA examinations, as well as in VA treatment records from April 2018 and October 2018. In a February 2019 VA treatment record, the Veteran's right shoulder abduction was noted to be 135 degrees, and the October 2019 VA examination report documents that right shoulder abduction was to 130 degrees. These ranges are evidence against the Veteran's abduction being less than 90 degrees. 

In the August 2015 VA examination, the Veteran's range of motion was reported to have flexion to 160 degrees; abduction to 90 degrees; and external and internal rotation from zero to 90 degrees. The Veteran denied experiencing flare-ups. The examiner found that the Veteran's Hawkins impingement test was positive and noted a suspected rotator cuff condition. The results of the empty-can test and lift-off subscapularis test were negative. The examiner noted that there was no joint ankylosis. The examination report documented that X-rays did not demonstrate any arthritis or degenerative joint disease. The examination documented that pain was noted and the Veteran stated she was unable to engage in overhead work. It was reported that there was no additional functional loss or range of motion loss after three repetitions. The examiner stated the examination is neither medically consistent nor inconsistent with the Veteran's statements describing functional loss with repetitive use over time. Additionally, the examiner could not say without speculation whether pain, weakness fatigability or incoordination could significantly limit functional ability during flare-ups. The examiner noted that the Veteran denied experiencing flare-ups and documented that because there the Veteran was not examined repeated use over time, it would be mere speculation to express in terms of the degrees of additional range of motion loss due to pain, weakness, fatigability, or incoordination.

In the August 2016 VA examination, the Veteran was found to have flexion to 140 degrees; abduction to 90 degrees; and external and internal rotation to 90 degrees. The Veteran reported experiencing two flare-ups in the last year, which resulted in limitations in overhead use and lifting. For example, the Veteran reported that she experienced two flare-ups within the last year, that her pain was between a seven to a 10 out of 10, and mentioned the functional impairment and related impact of the flare-ups on the Veteran's daily activities. The examiner stated that an opinion regarding whether pain, weakness, fatigability or incoordination significantly limit functional ability with repeated use over a period of time could not be offered without mere speculation because the Veteran was not being examined after a flare-up. The examiner noted the Veteran's suspected rotator cuff condition and that she had positive results for the Hawkins impingement test, empty-can test, and external rotation/infraspinatus strength test, but was unable to perform the lift-off subscapularis test.

A July 2017 VA treatment record that noted right shoulder abduction from 160 to 175 degrees. However, a question mark was written next to the measurement. As the question mark shows that the examiner was unsure about the measurement, and the readings are inconsistent from those documented within VA treatment records and VA examination reports both prior to and subsequent to the July 2017 VA treatment record, the Board affords this record lessened probative value. 

In the October 2019 VA examination, the Veteran was found to have flexion to 130 degrees; abduction to 120 degrees; and external and internal rotation to 60 degrees.  The examination documented that pain was found but did not cause additional functional loss. The Veteran reported flare-ups that were daily, constant, and severe, causing pain, stiffness and weakness.  The examiner also noted that there was pain on passive motion and non-weight bearing testing. The October 2019 VA examiner documented the Veteran's suspected rotator cuff condition with a positive Hawkins impingement test. The Veteran was found to have negative results for the empty-can test, the external rotation/infraspinatus strength test and the lift-off subscapularis test. The examination found no joint ankylosis or instability. Pain was noted on the examination but did not cause additional functional loss. The examiner noted there was pain on passive motion and non-weight bearing testing. There was no objective evidence of localized tenderness or pain on palpation of the joint. 

In numerous records the Veteran complained of constant pain in her right shoulder. For example, in a VA treatment record from March 2015 the Veteran stated her pain was a seven out of 10; in another March 2015 VA treatment record, the Veteran stated her right shoulder pain was terrible, and was an eight out of 10 on a regular basis. In a January 2016 VA treatment record the Veteran stated she experienced pain while lifting her right arm above her head; and in another record from the same month the Veteran stated her symptoms of pain are not aggravated by movement or position. In an August 2016 VA examination, the Veteran noted her right shoulder pain varied from a seven out of 10 to a 10 out of 10. Within a September 2016 VA treatment record, the examiner documented the Veteran stated her pain was at a nine out of 10. In a February 2019 private treatment record from Goshen HealthCare Services, it was noted that the Veteran reported a recent fall, resulting in pain to her right shoulder. 

In each of the August 2015, August 2016, and October 2019 VA examination reports, the Veteran was found to have full muscle strength in the right shoulder for forward flexion and abduction and no atrophy. Thus, the Veteran had full strength in the right upper extremity for a period of more than four years. This shows that the Veteran is using her right upper extremity for her to have full strength. In VA treatment records from April 2018 and October 2018, the Veteran was found to have good strength with shoulder shrug. The same VA examination reports documented findings that the Veteran did not have functional loss or lost range of motion on three repetitions. 

In the August 2015 VA examination report, the examiner documented the Veteran reported chronic generalized right shoulder pain, increased with overhead work and heavy lifting and paresthesias. A July 2017 VA treatment record noted that the Veteran had functional limitations which included lifting, carrying, and reaching, especially behind her back. 

At the time of the August 2015 and August 2016 VA examinations, the Veteran was not examined immediately after repetitive use over time, and the examiner found that this was neither medically consistent nor inconsistent with the Veteran's statements regarding functional loss. The examiner also reported that he was unable to say without mere speculation if pain, weakness, fatigability, or incoordination significantly limit functional ability. The August 2015 VA examiner explained that flare-ups of the Veteran's right shoulder condition were not present at the time of examination. The examiner stated that in absence of a flare-up during the examination, or after repeated use over time, it would be mere speculation to express in terms of the degrees of additional range of motion loss due to pain, weakness, fatigability, or incoordination. The August 2016 VA examiner stated that they were unable to speculate because the examiner could not observe the problems during the examination.

However, the October 2019 VA examiner stated that although the Veteran reported functional loss with repeated use and flare ups, the examination and medical record findings are not consistent with a functional loss, which the Board notes is consistent with the fact that the Veteran has had full muscle strength in her right upper extremity throughout the appeal period. Therefore, the examiner stated that while the Veteran will have increased pain during flare ups and repeated use, she would not experience additional limitation of the range of motion of the right shoulder. 

The Board has considered the effects of the Veteran's symptoms, including pain and functional loss, and the Board concludes that the preponderance of the evidence is against a finding that the Veteran's limitation of motion is midway between the side and shoulder level, which is the criteria needed for a 30 percent rating. Examination results throughout the appeal period show that the Veteran had normal muscle strength in her right shoulder and had abduction between 90 and 135 degrees. Taking into account the evidence of record indicating the Veteran's regular complaints of pain and other findings of functional loss, the Board finds that the preponderance of the evidence is against a finding that such pain and functional limitations resulted in limitation of motion equivalent to midway between the side and shoulder level to warrant a 30 percent disability rating. The pain and loss of motion that the Veteran experiences is contemplated by the 20 percent rating, which contemplates pain and limitation of motion to shoulder level, which is consistent with the Veteran's symptoms. Thus, a higher rating under the provisions of 38 C.F.R. §§ 4.40, 4.45, 4.59, DeLuca, and Mitchell criteria is not approximated in the Veteran's disability picture for this appeal period.

In the August 2015 Notice of Disagreement (NOD), the Veteran contended that his right shoulder disability is aggravated by his PTSD. In August 2016, the Veteran submitted a statement regarding her history of military sexual assault and resultant trauma. In August 2016, the Veteran's mother also submitted a statement regarding the Veteran's psychiatric symptoms and treatment history. This evidence does not support a finding that the Veteran's right shoulder impingement results in limitation of motion midway between the side and shoulder level, to warrant a 30 percent rating.

The Board has considered whether a higher disability evaluation may be assigned under other potentially applicable provisions of the rating schedule.  However, the Veteran does not contend, and the record does not support, that her right shoulder experiences ankylosis, impairment of the humerus, or impairment of the clavicle-dislocation, nonunion, or malunion. Accordingly, the Board finds that there is no basis to assign higher evaluations under DCs 5200, 5202, and 5203. 38C.F.R. §4.71a, DCs 5200, 5202, and 5203.

In sum, the preponderance of the evidence is against an initial disability rating in excess of 20 percent for right shoulder impingement. As the preponderance of the evidence is against the claim for a higher rating, the benefit of the doubt doctrine is not for application, and the Veteran's claim for an increased rating for right shoulder impingement is denied. See 38 U.S.C. § 5107(b); 38 C.F.R. § 4.3.

 

D. C. JOHNSON

Acting Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	R. Husain, 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.