Citation Nr: 21008096 Decision Date: 02/11/21 Archive Date: 02/11/21 DOCKET NO. 19-04 242 DATE: February 11, 2021 ORDER A disability rating of 30 percent, but no higher, for left shoulder degenerative joint disease, infraspinatus tear, and ganglion cyst from February 9, 2018, is granted, subject to the regulations governing the payment of monetary awards. FINDING OF FACT From February 9, 2018, the Veteran’s left shoulder degenerative joint disease, infraspinatus tear and ganglion cyst has manifested as limitation of motion of the arm to no less than 60 degrees from his side, with external and internal rotation limited to no less than 15 degrees each, weakness of movement, excessive fatigability, incoordination, pain on weight-bearing and high functional impact. CONCLUSION OF LAW From February 9, 2018, the criteria for a 30 percent, but no higher, disability rating for left shoulder degenerative joint disease, infraspinatus tear, and ganglion are met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.3, 4.10, 4.71a, Diagnostic Code 5201 (2020). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the Navy from June 1973 to October 1975. This matter comes before the Board of Veterans’ Appeals (Board) from an April 2018 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). The Board issued a decision denying entitlement to an evaluation in excess of 20 percent for left shoulder disability in April 2019. Subsequently, the Court of Appeals for Veterans Claims (Court) granted a Joint Motion for Remand (JMR) in April 2020, remanding this issue to the Board and dismissing the appeal as to the remaining issues. The Court found that an examination upon which the Board relied to make its April 2019 decision was inadequate and remanded the matter to the Board in pursuit of a new examination. In October 2020, the Board remanded the claim to the RO with directions to obtain a new examination. Entitlement to a disability rating in excess of 20 percent for left shoulder degenerative joint disease, infraspinatus tear, and ganglion cyst On February 9, 2018, VA received the Veteran’s claim for an increased rating for his left shoulder degenerative joint disease, infraspinatus tear, and ganglion cyst. The Veteran’s left shoulder condition has been rated under the criteria for limitation of motion of the arm under Diagnostic Code 5201. VA examinations during the appeal period reflect that the Veteran is right hand dominant. See, e.g., 1/14/2020 C&P Exam, at 3. Therefore, his left shoulder is considered his minor 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 minor shoulder; limitation of motion of the arm midway between the side and shoulder level is also rated as 20 percent for the minor shoulder; and limitation of motion of the arm to 25 degrees from the side is rated as 30 percent for the minor 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. 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. Painful, unstable, or misaligned joints, due to healed injury, are entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59. In Petitti v. McDonald, 27 Vet. App. 415 (2015), the United States Court of Appeals for Veterans Claims (Court) rejected VA’s argument that § 4.59 requires painful motion, such that the mere presence of joint pain is not sufficient. Id. at 428-29. The Court held that under § 4.59, “the trigger for a minimum disability rating is an actually painful, unstable, or malaligned joint,” explaining that § 4.59 speaks to both painful motion of joints and actually painful joints. Id. at 425. Moreover, the Court held that where a rating is provided under § 4.59 “objective” evidence is not required. Id. at 429. Turning to the evidence for the appeal period, the Veteran had a Compensation and Pension Examination for shoulder conditions in March 2018. The examiner diagnosed left shoulder degenerative arthritis. Initial range of motion testing was 0 to 110 degrees forward flexion, 0 to 110 degrees abduction, 0 to 40 degrees external rotation, and 0 to 50 degrees internal rotation. There was pain on movement and taken into account, but the examiner said that the pain did not cause functional loss. Left shoulder strength was normal and there was no ankylosis or rotator cuff conditions or shoulder instability. The functional impact of the left shoulder condition is that it prevents the Veteran from lifting heavy objects. Functional limitation was due to pain, not weakness, lack of endurance, or incoordination. In a February 2019 VA Form 9 Substantive Appeal, the Veteran said that he can barely lift his left shoulder due to painful motion. A disability benefits questionnaire for shoulder and arm conditions was prepared in August 2019. The examiner diagnosed bilateral shoulder strain, bilateral shoulder impingement syndrome, bilateral labral tear or SLAP, and bilateral degenerative arthritis. The Veteran’s symptoms were pain from the back of the shoulder radiating down the arm to the elbow, between 3 and 8 on a scale of 10, coming and going. The left shoulder initial range of motion was forward flexion 0 to 90 degrees, abduction 0 to 90 degrees, external rotation 0 to 80 and internal rotation 0 to 70 degrees. The clinician said that decreased range of motion prevents the Veteran from performing the activities of daily living. There was pain on flexion and abduction and a generalized tenderness of the muscles of the left shoulder. There was no testing after three repetitions because the Veteran was afraid of the pain. The clinician said that the Veteran’s functional ability was limited by pain, weakness, fatigability and incoordination of the left shoulder. The examination did not take place during a flare up. The Veteran had reduced movement but no other factors such as weakened movement, swelling, or deformity. His muscle strength was 5/5 in flexion and abduction of the left shoulder and there was no muscle atrophy. The Veteran was examination in December 2019 and another Disability Benefits Questionnaire was prepared in January 2020. The Veteran’s initial forward flexion of the left shoulder was 0 to 90 degrees, abduction 0 to 60, external rotation 0 to 50, and internal rotation 0 to 50 degrees with pain on all movements resulting in functional loss. There was no pain on weight-bearing and no localized tenderness or pain on palpation or crepitus, and the Veteran’s range of motion did not change after three repetitions. With repeated use over time, the left shoulder had forward flexion of 0 to 80 degrees, abduction 0 to 40, external rotation 0 to 50, internal rotation 0 to 40 degrees, with pain, fatigue, weakness, lack of endurance, and incoordination resulting in functional loss. The Veteran was not examined during a flare up. He showed no additional factors such as swelling or deformity. The Veteran’s movement of the left shoulder was weakened, with forward flexion and abduction strength only 4/5. In March 2020 VA treatment records, the Veteran continued to report pain in his bilateral shoulders. Another Disability Benefits Questionnaire was prepared in November 2020. The left shoulder initial range of motion was forward flexion 0 to 80, abduction 0 to 85, external rotation 0 to 20, and internal rotation 0 to 20 degrees, with pain on all movements. There was also pain on palpation of the left shoulder due to the arthritis condition, as well as pain when weight-bearing. After three repetitions, the left shoulder forward flexion was 0 to 60 degrees, abduction 0 to 80 degrees, external rotation and internal rotation both 0 to 20 degrees. Pain caused functional loss but not fatigue, weakness, lack of endurance or incoordination. The Veteran was not tested after repetitive use over time but he described his range of motion under such conditions as forward flexion 0 to 60 degrees, abduction 0 to 70, external rotation and internal rotation both 0 to 15 degrees. The Veteran was not tested during a flare up but described his range of motion identically to range of motion after repetitive use over time. There were no additional contributing factors to disability such as deformity or swelling. The Veteran’s left shoulder forward flexion strength was reduced to 4/5 but abduction strength was normal. The examiner suspected a rotator cuff condition but the only test completed was negative. The Veteran did not have shoulder instability, dislocation, labral pathology, clavicle, scapula, AC joint or sternoclavicular joint conditions, or conditions of the humerus. Concerning functional impact, the Veteran said that he was unable to perform simple daily tasks such as dressing and undressing without the assistance of his wife due to shoulder pain and that he is unable to lift an object weighing more than five pounds with his left hand due to pain. The examiner stated that the Veteran is limited in completing activities of daily living and is unable to left anything with his left arm including clothing due to the pain. The Board has reviewed all the evidence in the claims file. Although there is an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Veteran or obtained on his behalf be discussed in detail. Rather, the analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence is the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F. 3d 1378, 1380-81 (Fed. Cir. 2000); Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). For the period from February 8, 2018, the Board will resolved doubt on a material issue in the Veteran’s favor and find that a 30 percent, but no higher, rating is warranted. 38 U.S.C. § 5107(b). The examination reports described above show that he Veteran's right arm shoulder flexion was limited to a minimum of 60 degrees during this period; hence, his range of motion was greater than midway between side and shoulder level, which warrants a rating of only 20 percent under the rating criteria. 38 C.F.R. § 4.71a, DC 5201. However, the Veteran showed functional loss of pain on movement, weakness of movement, excessive fatigability, incoordination, and pain on weight-bearing, as well as very limited internal and external rotation of the left arm and an inability to lift most objects. In this regard, the April 2018 examination report reflects 4/5 strength and notes a reduction in muscle strength, but does not show atrophy. The 2018 examiner found the Veteran’s ability to perform sedentary activity of employment is moderately impaired and his ability to perform physical activity of employment is severely impaired. The August 2019 VA examination report reflects that the Veteran could not perform repetitive-use testing. The functional impact at this examination noted greater than 5 weeks of work time lost in the last 12 months plus the Veteran could not drive or shift when operating a truck. Finally, in support, the Veteran notes that the November 2020 examination report show that he is unable to perform simple daily tasks such as dressing and undressing without the assistance of his wife due to shoulder pain. He is unable to lift any object over 5 pounds with his left hand and requires assistance getting up out of a chair. Based on a review of the relevant evidence and the applicable law and regulations, it is the Board’s conclusion that the functional loss resulting from the Veteran’s left shoulder condition more nearly approximates or is analogous to limitation of motion to 25 degrees from the Veteran’s side. 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). Therefore, the Board finds that a rating of 30 percent under Diagnostic Code 5201 is warranted. 38 C.F.R. § 4.71a, Diagnostic Code 5201. The now assigned 30 percent rating is the maximum schedular rating for limitation of motion of the minor arm. There is no higher schedular rating that can be assigned for this condition by regulation. See 38 C.F.R. § 4.71a, Diagnostic Code 5201. 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 and the record does not show dislocations per, for example the March 2018 and November 2020 VA examinations. 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. (Continued on the next page)   The Board therefore finds that a rating of 30 percent, but no higher, is warranted from February 8, 2018. 38 U.S.C. § 5107(b). Paul Sorisio Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board R. Dean 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.