Citation Nr: 21076572 Decision Date: 12/27/21 Archive Date: 12/27/21 DOCKET NO. 17-51 125 DATE: December 27, 2021 ORDER Entitlement to an initial rating in excess of 20 percent for right shoulder, status post superior labrum tear and surgical repair is denied. FINDINGS OF FACT The Veteran's right shoulder disability is not productive of limitation of motion limited to midway between the side and shoulder level. CONCLUSIONS OF LAW The criteria for a rating in excess of 20 percent for right shoulder, status post superior labrum tear and surgical repair, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.71a, Diagnostic Codes 5003, 5201. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the Marine Corps from August 2000 to December 2006. This matter initially came before the Board of Veterans' Appeals (Board) on appeal from a May 2016 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO) which granted service connection with an initial disability rating of 10 percent. In March 2019, the Board remanded the Veteran's appeal to the RO for further evidentiary development. The Board's March 2019 remand directed the RO to obtain a medical examination of the right shoulder testing the active and passive range of motion, pain with and without weight-bearing. The Board directed that any functional limitation due to pain, weakened movement, excess fatigability, pain with use, or incoordination be described, and that additional limitation of motion during flare ups be noted. In October 2019, the RO obtained a Disability Benefits Questionnaire which measured range of motion on active, passive, weight-bearing and non-weight-bearing movements and recorded functional limitation due to pain, weakened movement, excess fatigability, pain on use, or incoordination, and further provided a detailed description of the more severe functional impairment during flare ups. Therefore, the RO substantially complied with the Board's remand instructions. See Dyment v. West, 13 Vet. App. 141, 146-47 (1999); Stegall v. West, 11 Vet. App. 268 (1998). Rating criteria Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule). 38 C.F.R. Part 4. The Rating Schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. See 38 U.S.C. § 1155; 38 C.F.R. § 4.1. VA examinations during the appeal period reflect that the Veteran is right hand dominant. Therefore, his right shoulder is considered his major shoulder. 38 C.F.R. § 4.69. Diagnostic Code 5201 provides that limitation of motion of the arm at the shoulder level is rated 20 percent for the major shoulder; limitation of motion of the arm midway between the side and shoulder level is rated as 30 percent for the major shoulder; and limitation of motion of the arm to 25 degrees from the side is rated as 40 percent for the major shoulder. 38 C.F.R. § 4.71(a). 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). Normal ranges of motion of the shoulder are flexion (forward elevation) from 0 degrees to 180 degrees, abduction from 0 degrees to 180 degrees, external rotation from 0 degrees to 90 degrees, and internal rotation from 0 degrees to 90 degrees. 38 C.F.R. § 4.71, Plate I. Forward flexion and abduction to 90 degrees constitutes the ability to raise an arm to shoulder level. See id. When evaluating musculoskeletal disabilities, VA may, in addition to applying the schedular criteria, assign a higher disability rating when the evidence demonstrates functional loss due to limited or excessive movement, pain, weakness, excessive fatigability, or incoordination, to include during flare-ups and with repeated use, if those factors are not considered in the rating criteria. See 38 C.F.R. §§ 4.40, 4.45, 4.59; see also DeLuca v. Brown, 8 Vet. App. 202 (1995); Burton v. Shinseki, 25 Vet. App. 1, 5 (2011). 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. The rating criteria for Diagnostic Code 5003 provide that degenerative arthritis established by X-ray findings will be rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved. When however, the limitation of motion of the specific joint or joints involved is noncompensable under the appropriate diagnostic codes, a rating of 10 percent is for application for each such major joint or group of minor joints affected by limitation of motion, to be combined, not added under diagnostic code 5003. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. 38 C.F.R. § 4.71a, Diagnostic Code 5003. 1. Entitlement to an initial rating in excess of 20 percent for right shoulder, status post superior labrum tear and surgical repair Turning to the evidence, a March 2014 MRI showed "degenerative changes within the greater tuberosity" and no evidence of a rotator cuff tear. In his October 2014 Statement in Support of Claim, the Veteran said that his right shoulder was in constant pain. A January 2016 VA treatment record stated that the Veteran was having problems with his right shoulder and that he had an MRI performed in Houston. During the course of the claims period, the Veteran was afforded two VA examination to assess the nature and severity of his service-connected right shoulder, int April 2016 and October 2019. A Disability Benefits Questionnaire (DBQ) for shoulder conditions was prepared in April 2016, based on an in-person examination and a review of the VA e-folder. The examiner noted that the Veteran was diagnosed with a right shoulder labral tear during service in 2005 and had two surgeries during service. The Veteran reported stiffness in the morning, an aching pain in cold weather, and weakness, and he stated that Aleve medication provided some relief. The Veteran denied flare-ups and denied any functional loss. On examination, his active range of motion was normal, with flexion 0 to 180 degrees, abduction 0 to 180 degrees, external rotation 0 to 90 degrees, and internal rotation 0 to 90 degrees. The examiner noted pain on flexion and abduction but concluded that the pain did not result in functional loss. There was no pain on weight-bearing movements and no evidence of crepitus or localized tenderness. There was no change after three repetitions and no change with repetitive use over time. Muscle strength was reduced (4/5) in both forward flexion and abduction. There was no atrophy and no evidence of a rotator cuff condition, instability, or a condition of the clavicle, scapula, acromioclavicular (AC) joint, or sternoclavicular joint. The examiner stated that the Veteran had SLAP surgery in 2005 and presently has residuals of that surgery. The examiner stated that there was no evidence of degenerative or traumatic arthritis, without acknowledging the March 2014 MRI. A DBQ for shoulder and arm conditions was prepared in October 2019. The examiner diagnosed right rotator cuff tendonitis (diagnosed October 29, 2019), and right degenerative arthritis (originally diagnosed March 14, 2014), and right shoulder status post superior labrum tear and surgical repair. The Veteran reported daily flare ups which he described as moderate to severe, lasting up to 8-9 hours at a time. Functional loss included difficulty with range of motion, movement, and grip, and the Veteran requires help reaching above his head and with daily activities. Initial range of motion testing showed flexion 0 to 90 degrees, abduction 0 to 90 degrees, external rotation 0 to 30 degrees and internal rotation 0 to 50 degrees, with the limited flexion constituting a functional loss and with pain on all movements, tenderness to palpation, pain on weight-bearing and crepitus. After three repetitions, range of motion was reduced to flexion 0 to 80 degrees, abduction 0 to 80 degrees, external rotation 0 to 25 degrees, internal rotation 0 to 45 degrees, with pain, fatigue, and weakness resulting in functional loss. The Veteran was not examined immediately after repeated use over time, but he reported that under such conditions the shoulder was limited to flexion of 0 to 75 degrees, abduction 0 to 75 degrees, external rotation 0 to 25 degrees, internal rotation 0 to 45 degrees, and pain, fatigue, and weakness resulting in functional loss. The Veteran was not examined during a flare-up but he reported that pain, fatigue, and weakness result in functional loss, with flexion is reduced to 0 to 70, abduction to 0 to 70, external rotation to 0 to 20, and internal rotation to 0 to 40 degrees. The examiner found no additional factors contributing to disability such as swelling, or deformity. Muscle strength was reduced (4/5) on forward flexion and abduction of the right shoulder, with no atrophy. The shoulder had no ankylosis. The examiner suspected a rotator cuff condition, with three tests for rotator cuff condition positive. The examiner did not suspect instability, dislocation, or labral pathology, or conditions of the clavicle, scapula, AC joint, sternoclavicular joint, or humerus impairment. The examiner noted that the Veteran had surgery on the right shoulder in 2005 and that in March 2014 MRI diagnostic imaging showed degenerative or traumatic arthritis of the right shoulder. In terms of functional impairment, the status post labrum tear resulted in limitations in reaching, carrying, pushing, pulling, and lifting. The examiner opined that the new diagnoses of rotator cuff tendonitis and degenerative arthritis were a progression of the right shoulder, status post superior labrum tear and surgical repair. There was objective evidence of pain on passive and non-weight-bearing movement of right shoulder. Applying the rating criteria, the Board finds that a rating in excess of 20 percent is not warranted. The Veteran's right shoulder flexion and abduction was productive of, at worst, limitation of flexion of to only 90 degrees of flexion. In this regard, even consideration pain on movement, repeat motion, and even functional lose due to flare-ups, the VA examiners only noted that the Veteran's range of motion was only limited to, at most, 70 degrees of flexion. Applying the criteria of Diagnostic Code 5201, the Veteran's objective range of motion does not meet the criteria for the next higher (30 percent) rating, for this relevant period. 38 C.F.R. § 4.71(a). Concerning the factors listed in 38 C.F.R. § 4.40 and 4.45, the examiner found weakened movement and the Veteran reported stiffness in the morning. However, the VA examiner found that the Veteran had a normal range of motion during this period, even considering pain, which the examiner found, did not result in any additional functional loss. The Board finds that the functional impairment resulting from morning stiffness and weakened movement did not more nearly approximate movement limited to midway between the thigh and shoulder level, which would warrant a higher, 30 percent rating. Id. The Board has considered the Veteran's lay assertions of decreased range of motion and functional loss, to especially include due to pain. To this end, the Veteran has repeated and continuously asserts various instances of functional loss to include difficulty with routine movements of the shoulder or being unable to pick up and hold his children or throw a ball to his sons, due to severe pain. While the Board acknowledges the Veteran's lay reports of such functional loss, the Board finds that in light of the VA examinations, which comprehensively evaluated the Veteran's shoulder disability, to include objective testing of range of motion, the Board finds that such lay assertion carry little probative weight in establishing the criteria for a higher rating. As noted above, the VA examinations, to especially include the October 2019 examination report explicitly addresses not only the objectively tested range of motion, but also gives estimates of further loses of range of motion due to pain and/or flare-ups. As such, the Board finds that such comprehensive testing and report by a medical professional carries higher probative weight. In addition, the Board has considered whether a higher rating is warranted under any other potentially applicable diagnostic code related to the shoulders. The highest rating provided under Diagnostic Code 5203 is 20 percent; therefore, rating under this Diagnostic Code would not provide him with a higher rating. Additionally, the Veteran does not have ankylosis of the scapulohumeral articulation or impairment of the humerus, as documented in the VA examination reports and treatment records. Consideration of Diagnostic Codes 5200 and 5202 is therefore not warranted. The evidence showed degenerative arthritis during the claims period. However, degenerative arthritis is to be rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved, unless the limitation of motion is noncompensable under the appropriate diagnostic code. The Veteran is currently assigned a 20 percent rating for this period, and a higher rating is not available under Diagnostic Code 5003 in any case. 38 C.F.R. § 4.71a. Accordingly, the Board finds that the preponderance of the evidence is against the Veteran's claim. Consequently, the benefit-of-the-doubt rule is not applicable, and the claim for entitlement to an initial rating in excess of 20 percent for right shoulder, status post superior labrum tear and surgical repair, is denied. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). Zi-Heng Zhu Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board R. Dean, 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.