Citation Nr: 21076652 Decision Date: 12/27/21 Archive Date: 12/27/21 DOCKET NO. 12-09 023 DATE: December 27, 2021 ORDER Entitlement to an increased disability rating in excess of 20 percent for residuals of impingement syndrome of the left shoulder, status post arthroscopic resection, subacromial bursal and anterior acromioplasty is denied. REMANDED Entitlement to a rating in excess of 30 percent from September 16, 2016, for degenerative disc disease of the cervical spine is remanded. Entitlement to a total disability evaluation based on individual unemployability (TDIU) is remanded. Entitlement to service connection for difficulty swallowing, to include as secondary to cervical spine disability is remanded. FINDING OF FACT The Veteran's residuals of impingement syndrome of the left shoulder, status post arthroscopic resection, subacromial bursal and anterior acromioplasty has not been manifested by limitation of motion to 25 degrees from the side. CONCLUSION OF LAW The criteria for a disability rating in excess of 20 percent for left shoulder impingement syndrome have not been met. U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code (DC) 5019-5201. REASONS AND BASES FOR FINDING AND CONCLUSION This case was previously before the Board of Veterans' Appeals (Board) and was denied in a June 2019 Board decision. The Veteran appealed the decision to the U.S. Court of Appeals for Veterans Claims (Court). In a March 2020 Order, the Court vacated and remanded the June 2019 decision pursuant to the terms of a Joint Motion for Remand (JMR) by the parties. The March 2020 JMR directed the Board to obtain a new VA examination that is compliant with Sharp v. Shulkin, 29 Vet. App. 26, 35 (2017) and properly addresses left shoulder flare-ups as well as functional impairment caused by such flares. In August 2020 and most recently in June 2021 the Board remanded the Veteran's claim for additional development. 1. Entitlement to an increased disability rating in excess of 20 percent for residuals of impingement syndrome of the left shoulder, status post arthroscopic resection, subacromial bursal and anterior acromioplasty The Veteran contends that he is entitled to a higher rating for his service-connected left shoulder disability. The Veteran's left shoulder impingement syndrome status post arthroscopic resection was initially assigned a 10 percent disability rating effective December 2, 2002. 38 C.F.R. § 4.71a. He filed a claim for an increased rating in September 2009. In a March 2012 rating decision, the Veteran was granted a 20 percent disability rating from April 4, 2011. In an August 2016 decision, the Board remanded the claim for an increased rating for further development, specifically including an updated VA examination. In a February 2017 rating decision, the Veteran's 20 percent disability rating was assigned an earlier effective date of September 4, 2009, which covers the entire period on appeal with respect to the claim for increase. 38 C.F.R. § 4.71a. Accordingly, the issue currently before the Board is whether a rating in excess of 20 percent is warranted for the Veteran's left shoulder disability from September 4, 2009 onward. The record reflects that the Veteran is right hand dominant. Under Diagnostic Code 5201, for the minor extremity, limitation of motion of the arm at shoulder level or between side and shoulder warrants a 20 percent rating, Limitation of motion of the arm to 25 degrees from side warrants a 30 percent rating. 38 C.F.R. § 4.71a. For VA rating purposes, when the arm is at the side it is considered to be at 0 degrees and when it is raised to shoulder level it is at 90 degrees from the body. Normal range of motion for the shoulder is as follows: forward elevation (flexion) to 180 degrees, abduction to 180 degrees, internal rotation to 90 degrees, and external rotation to 90 degrees. Plate I, 38 C.F.R. § 4.71a. 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. The current version of the code states that 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. Flexion and/or abduction limited to 25 degrees from the side warrants a maximum 30 percent rating for the minor 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). The Board finds that the preponderance of the evidence is against a rating in excess of 20 percent. At examinations in April 2010 and 2011, the Veteran reported subjective complaints of swelling and pain in the left shoulder which was worse with movement and relieved with prescription and over-the-counter medication. Forward flexion of the left shoulder was 120 degrees and 110 degrees, respectively. Abduction was 90 degrees and 78 degrees. External rotation was 68 degrees and 46 degrees, respectively, and internal rotation was 26 and 28 degrees, respectively. There was objective evidence of pain at the end of abduction on both examinations, and evidence of subjective pain on all movements during the April 2010 examination. At an examination in February 2013, the Veteran reported that pushing, pulling, lifting and carrying all bothered his neck, arm and shoulder with constant pain in his left shoulder. Range of motion testing revealed flexion to 130 degrees, and abduction to 90 degrees, both of which were unchanged after repetitive use testing. There was no documented evidence of ankylosis in the shoulder joint. Testing confirmed a left shoulder impingement syndrome. At a September 2016 VA examination, the Veteran reported symptoms of nerve pain, muscle spasms and a burning sensation in the area of his left shoulder with activities. He relied on prescription and over the counter medication for relief. He reported flare-ups with household activities, such as yard work as well as lifting, or reaching up to kitchen cabinet level. He described the pain as burning then nerve pain. Functional impairment including difficulty brushing his teeth and combing his hair. On examination, range of motion testing revealed flexion to 140 degrees, abduction to 110 degrees, external rotation to 90 degrees and internal rotation to 70degrees. Pain was noted during all movements. There was no documented additional functional loss after repetitive use. There was no evidence of muscle atrophy or ankylosis At a May 2017 VA examination, the Veteran reported no change in his symptoms since the September 2016 VA examination. Symptoms continued to consist of burning and nerve pain. On examination, range of motion testing revealed flexion to 160 degrees, abduction to 150 degrees, external rotation to 90 and internal rotation to 90 degrees. There was no evidence of pain, localized tenderness or pain to palpation noted on the examination. The Veteran continued to be able to perform repetitive use testing without additional loss of function or range of motion. There was no evidence of muscle atrophy or ankylosis. At a March 2021 VA examination, the Veteran reported daily flare-ups lasting 30 to 45 minutes, precipitated by activities that involve shoulder movement. He reports he has spasms lasting five to 10 minutes throughout the day. Range of motion testing revealed flexion to 110 degrees, abduction to 90 degrees, internal rotation to 30 degrees, and external rotation to 60 degrees. Passive range of motion was the same as active range of motion with no additional loss on repetitive use testing. With repeated use over time, the examiner estimated that the Veteran's flexion would be limited to 100 degrees, abduction to 90 degrees, internal rotation to 30 degrees, and external rotation to 40 degrees. During a flare-up, the examiner estimated that the Veteran's flexion would be limited to 90 degrees, abduction to 70 degrees, and internal rotation and external rotation to 20 degrees. At a July 2021 VA examination, the Veteran reported he has flare-ups of shoulder pain every morning and with use of the shoulder last from 45 minutes to an hour. He described the flare-ups as being a sharp, burning pain. He also reported painful muscle spasms three to four times per day. Range of motion testing revealed flexion to 100 degrees, abduction to 80 degrees, internal rotation to 30 degrees, and external rotation to 60 degrees. Passive range of motion was the same with the exception of abduction to 90 degrees. Pain was noted with active and passive motion and the Veteran declined to do repetitive use testing due to fear of pain. The VA examiner estimated that with repeated use over time flexion would be limited to 105 degrees, abduction to 75 degrees, internal rotation to 25 degrees, and external rotation to 55 degrees and that during a flare-up flexion would be limited to 100 degrees, abduction to 70 degrees, internal rotation to 20 degrees, and external rotation to 50 degrees. Given the above, the Veteran's left shoulder impingement syndrome, status post arthroscopic resection has been manifested by pain in the left shoulder with reduced range of motion. The VA examinations revealed flexion to no worse than 90 degrees and abduction to no worse than 70 degrees, even with consideration of repeated use over time and during flare-ups. The Board acknowledges the Veteran's lay reports of his symptoms and that he has functional loss due to pain and muscle spasm, especially in the morning after use. However, even considering the Veteran's lay reports of symptoms and noted functional loss, the degree of additional limitation reflected by the Veteran's statements would not result in symptoms more nearly approximating limitation of motion of the arm to 25 degrees from the side. The Board finds that the evidence of record, including all of the Veteran's VA examinations, indicates a level of impairment most consistent with the current 20 percent rating. Thus, a higher 30 percent rating is not warranted at any point. The Board has also considered whether any other applicable rating criteria may enable a higher evaluation. However, after review, the Board finds that no other diagnostic code provides for a higher rating. The Board has considered whether a separate rating for neurological symptoms due to the Veteran's left shoulder impingement syndrome is warranted. However, examinations have not revealed any compensable manifestations related to his left shoulder impingement syndrome. The Board notes that the Veteran is service-connected for left upper extremity radiculopathy associated with his service-connected cervical spine degenerative disc disease. The Board further notes that the Veteran is already service connected for surgical scars of the left shoulder. In conclusion, a rating in excess of 20 percent for left shoulder impingement syndrome status post arthroscopic resection is not warranted. As the preponderance of the evidence is against the claim, the claim must be denied. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). REASONS FOR REMAND 1. Entitlement to a rating in excess of 30 percent from September 16, 2016, for degenerative disc disease of the cervical spine is remanded. 2. Entitlement to a total disability evaluation based on individual unemployability (TDIU) is remanded. 3. Entitlement to service connection for difficulty swallowing, to include as secondary to cervical spine disability is remanded. In May 2020, the Board remanded the issues of entitlement to an increased rating for a cervical spine disability, entitlement to service connection for difficulty shallowing, and entitlement to a TDIU for further development. A review of the claims file shows that the AOJ is still actively developing those issues and no supplemental statement of the case has been issued. Accordingly, the Board will remand these issues so as to allow the AOJ complete its development and readjudication. (Continued on the next page) The matters are REMANDED for the following action: Complete any outstanding development and issue a supplemental statement of the case with respect to the issues of entitlement to an increased rating for a cervical spine disability, entitlement to service connection for difficulty shallowing, and entitlement to a TDIU for further development. H. SEESEL Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Christensen 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.