Citation Nr: 21008201 Decision Date: 02/12/21 Archive Date: 02/12/21 DOCKET NO. 11-01 040 DATE: February 12, 2021 ORDER Entitlement to an initial rating in excess of 20 percent for the Veteran’s service-connected left shoulder dislocation, status post left arthroscopic capsulorrhaphy with arthritis is denied. FINDING OF FACT At no time during the appeal period has the Veteran’s service-connected left shoulder dislocation, status post left arthroscopic capsulorrhaphy with arthritis been shown to be productive of ankylosis of scapulohumeral articulation; arm motion functionally limited to 25 degrees from the side; or impairment of the humerus, clavicle, or scapula. CONCLUSION OF LAW The criteria for an initial rating in excess of 20 percent for the Veteran’s service-connected left shoulder dislocation, status post left arthroscopic capsulorrhaphy with arthritis has not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes (DC) 5200, 5201, 5202, 5203. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from September 1979 to March 2009. This matter comes before the Board of Veterans Appeals (Board) on appeal from a May 2009 rating decision which, in pertinent part, granted service connection and assigned a noncompensable rating for a left shoulder disability, effective April 1, 2009. In April 2012, the Veteran testified at a hearing held in Washington, D.C. before the undersigned Veterans Law Judge (VLJ). A transcript of that proceeding has been associated with the claims file. The Board remanded this matter for additional development in October 2012. Then, in May 2016, the Board denied a higher initial rating for the Veteran’s left shoulder disability. The Veteran appealed this decision to the United States Court of Appeals for Veterans Claims (Court). In March 2017, the Court issued an Order granting a Joint Motion for Partial Remand (JMPR) to vacate and remand the matter back to the Board for readjudication. The Board remanded this matter for additional development consistent with the JMPR in September 2017. On remand, the Regional Office (RO) increased the Veteran’s left shoulder disability initial rating to 20 percent in a November 2017 rating decision, effective April 1, 2009. The matter was then returned to the Board, and, in a March 2018 decision, the Board denied an initial rating higher than 20 percent for the Veteran’s left shoulder disability. The Veteran appealed this decision to the Court. In January 2019, the Court issued an Order granting a JMPR, which called for the March 2018 Board decision to be vacated and for the issue to be remanded to the Board for a new examination in order to determine the current severity of the Veteran’s left shoulder disability. This matter was returned to the Board in October 2019, at which time it was remanded for action consistent with the January 2019 JMPR. This matter was again returned to the Board and remanded for further development in August 2020. Specifically, the Board found that the December 2019 VA examination accorded the Veteran in compliance with the January 2019 JMPR was inadequate. Initial rating in excess of 20 percent for the service-connected left shoulder dislocation, status post left arthroscopic capsulorrhaphy Disability ratings are determined by the application of the VA Schedule for Rating Disabilities (Rating Schedule). 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred in or aggravated during military service and their residual conditions in civil occupations. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. In a claim for a greater original rating after an initial award of service connection, all the evidence submitted in support of the Veteran’s claim is to be considered. In initial rating cases, separate ratings can be assigned for separate periods of time based on the facts found, a practice known as “stage” ratings. Fenderson v. West, 12 Vet. App. 119 (1999); 38 C.F.R. § 4.2. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability will be resolved in favor of the Veteran. 38 C.F.R. § 4.3. The Veteran’s disability is currently rated under 38 C.F.R. § 4.71a, DC 5003-5201 for limitation of motion of the arm. Hyphenated DCs are used when a rating under one DC requires use of an additional DC to identify the basis for the rating; the additional DC is shown after the hyphen. DC 5003 provides that arthritis is generally rated based on limitation of motion of the joint. Ratings for functional impairment of the upper extremities depend on which extremity is the major extremity, i.e., the one predominantly used by the individual. 38 C.F.R. § 4.69. Here, the Veteran has consistently reported that his right hand is his dominant hand. Thus, his left shoulder disability concerns his minor extremity. Shoulder disability ratings are assigned pursuant to DCs 5200-5203. However, DCs 5200, 5202, and 5203 are not raised by the record, as the record does not contain a diagnosis of ankylosis or impairment of the humerus, the clavicle, or the scapula. 38 C.F.R. § 4.71a. As such, DC 5201 is the only code under which a rating higher than 20 percent is available in this case, and DCs 5200, 5202, and 5203 will not be analyzed further in this decision. Under DC 5201, a disability rating of 20 percent is assigned when movement of the non-dominant arm is limited to midway between the side (45 degrees) or at shoulder level (90 degrees). A disability rating of 30 percent is assigned when movement of the non-dominant arm is limited to 25 degrees from the side. 38 C.F.R. § 4.71a, DC 5201. The Board interprets flexion or abduction of 25 degrees or less as movement limited to 25 degrees from the side. 38 C.F.R. § 4.71, Plate I. Further, the Board interprets arm movement limited to midway between the side and shoulder level as abduction or flexion in excess of 25 degrees but less than 90 degrees. Id. Throughout the appeal period, the Veteran’s left shoulder disability has been rated at 20 percent, under DC 5201. However, the November 2017 rating decision which granted the initial rating to 20 percent explained that the Veteran did not display compensable limitation of motion. Thus, the 20 percent rating was assigned pursuant to 38 C.F.R. § 4.59, which allows for the minimum compensable rating for a particular joint to be assigned (10 percent for shoulder) when painful motion of the joint is shown. The Veteran contends that he is entitled to a higher initial rating for his service-connected shoulder disability. In January 2009, the Veteran was afforded a VA examination. The examiner reported the Veteran’s diagnosis to be left shoulder dislocation, status post left arthroscopic capsulorrhaphy with residual scar. The Veteran reported experiencing symptoms of weakness, stiffness, and lack of endurance of his left shoulder. He stated that the condition does not cause pain, but he did report decreased range of motion. He also reported that he is right hand dominant. The examiner noted there were no signs edema, effusion, weakness, tenderness, redness, heat, subluxation, guarding of movement, heat, or locking of his left shoulder. Range of motion of his left shoulder was as follows: flexion was 160 degrees; abduction was 160 degrees; external rotation was 70 degrees; and internal rotation was 70 degrees. There was no additional limitation of pain, fatigue, weakness, lack of endurance, or incoordination after repetitive-use testing. The examiner reported that subjective factors were absent and objective factors included well-healed scars and decreased, painless range of motion. In a September 2013 VA examination, the Veteran reported experiencing occasional pain in his left shoulder, especially when he lays on his left side. He further reported that he experiences flare-ups, which he described as pain in his left shoulder when he lifts his left arm over his head or lays on his left side. He explained that the pain is of moderate intensity and lasts for up to six hours. He reported he is right hand dominant and he denied any effects of the disability on his usual occupation or activities of daily living. Range of motion testing showed flexion and abduction of his left shoulder was to 180 degrees, with no objective evidence of painful motion. Internal and external rotation was not recorded. Repetitive-use testing showed there was no additional limitation of motion or functional impairment after repetitive use. There was no evidence of localized tenderness or pain on palpitation or guarding. His muscle strength was normal, no ankylosis, and all rotator cuff condition tests were negative. There was no evidence of a history of mechanical symptoms, such as clicking or catching, or clavicle, scapula, acromioclavicular joint, and sternoclavicular joint conditions. Imaging studies were performed and found no evidence of degenerative or traumatic arthritis. No other pertinent physical findings were found during the examination and the examiner opined that his left shoulder disability did not impact his ability to work. The Veteran underwent another VA examination in December 2019. He reported that over the last few years his condition has gotten worse, explaining that he experiences constant mild pain that gets worse with movement and cracking of his left shoulder. He did not report experiencing flare-ups but did state that he has difficulty lifting and reaching for things overhead. He further reported that he is right hand dominant. Range of motion testing for his left shoulder was normal, with flexion and abduction to 180 degrees and internal and external rotation to 90 degrees. The examiner noted pain during range of motion testing but indicated that it did not result in or cause functional loss. There was evidence of pain with weight bearing, but there was no objective evidence of localized tenderness or pain on palpation or crepitus. He was able to perform repetitive-use testing and there was no additional loss of function or range of motion after three repetitions. He was not examined immediately after repetitive-use testing, but the examiner noted that the examination was medically consistent with the Veteran’s statements describing functional loss with repetitive use over time. Further, pain, weakness, fatigability or incoordination did not significantly limit functional ability with repeated use. Muscle strength testing showed a reduction in muscle strength, with forward flexion and abduction both showing active movement against some resistance. The examiner noted that this reduction was due entirely to the Veteran’s condition. However, the Veteran did not have any muscle atrophy. There was no evidence of ankylosis, rotator cuff conditions, or shoulder instability, dislocation, or labral pathology. There was no evidence of clavicle, scapula, acromioclavicular joint, or sternoclavicular joint conditions, loss of head or fibrous union of the humerus, or malunion of the humerus with deformity. X rays taken of the Veteran’s left shoulder in May 2019 showed progression of this disability to include degenerative arthritis. (However, it is worth noting that degenerative arthritis was found in both his left and right shoulders.) No other pertinent physical findings were found during the examination, and the Veteran did not report using any assistive devices. The examiner opined that the Veteran’s current disability did impact his ability to perform occupational tasks, such as lifting and reaching overhead. In October 2020, the Veteran was afforded another VA examination. The examiner confirmed that the diagnosis of left shoulder dislocation, status post left arthroscopic capsulorrhaphy now included degenerative arthritis of the left shoulder and explained that this was a progression of the Veteran’s original diagnosis. The Veteran reported that he experiences grinding in his shoulder and pain when reaching down, when lifting his arm above his head, and with sudden movements. He described the pain as sharp, but denied experiencing any numbness, tingling, or weakness. Further, he reported he cannot lift anything greater than twenty pounds. He is right hand dominant. He reported experiencing flare-ups typically between three and five times a week. He described the flare-ups as pain when reaching down, like to unload the dishwasher, pain with sudden movements, and pain when lifting his arm above his head. He also reported experiencing functional loss of his left shoulder, which he described the same as the flare-ups. Initial range of motion testing were as follows: flexion to 170 degrees; abduction to 170 degrees; external rotation to 80 degrees; and internal rotation to 85 degrees. While outside the normal range, the examiner reported that the Veteran’s range of motion did not contribute to a functional loss. Pain with flexion and external rotation was noted on examination but the examiner also reported that this did not result in or cause a functional loss. However, there was no evidence of pain on passive range of motion or when used non-weight bearing. There was no objective evidence of localized tenderness or pain on palpation or crepitus, but there was pain with weight bearing. There was no additional loss of function or range of motion after repetitive-use testing. He was not examined immediately after repetitive use testing, but the examiner noted that the examination was medically consistent with the Veteran's statements describing functional loss with repetitive use over time. Weakness, fatigability, or incoordination was not found to significantly limit functional ability with repeated use over time. However, pain was noted to cause functional loss over time. In terms of degree of range of motion loss, the Veteran’s flexion and abduction was to 160 degrees and his internal and external rotation was to 70 degrees after repeated use over time. The examination was not conducted during a flare-up, but the examiner noted that the examination was medically consistent with the Veteran's statements describing functional loss during flare ups. Weakness, fatigability, or incoordination was not found to significantly limit functional ability with flare-ups. However, pain was noted to cause functional loss with flare-ups. Muscle strength testing was normal, with no reduction in muscle strength or atrophy. There was no evidence of ankylosis, rotator cuff conditions, or instability, dislocation, or labral pathology. The examiner noted that the Veteran has a history of dislocation but had surgery to repair this in 2008. Further, there was no evidence of clavicle, scapula, acromioclavicular joint, or sternoclavicular joint conditions, loss of head or fibrous union of the humerus, or malunion of the humerus with deformity. No other pertinent physical findings were found during the examination and the Veteran did not report using any assistive devices. The examiner opined that the Veteran’s current disability did impact his ability to perform occupational tasks, such as lifting and reaching overhead. Review of the Veteran’s medical treatment records show that he was diagnosed with slight subluxation of his left shoulder by his private practitioner in December 2014. He began treatment with a private physical therapist for the subluxation in January 2015. During his initial evaluation, the physical therapist reported that the Veteran’s range of motion of his left shoulder as: flexion to 145 degrees, external rotation to 80 degrees, and internal rotation to 85 degrees. Abduction of his left shoulder was not recorded. His muscle strength was recorded as good, with left shoulder external rotation recorded as 4+/5. The Veteran reported that he felt it took more effort to resist on his left side. Tenderness on palpation of the anterior shoulder was noted in the area of the greater tubercle. Sensation was intact, and his apprehension test was negative. His Kennedy-Hawkins test was positive, which indicates pain on internal rotation, but no other information about the test was provided. The physical therapist stated that the Veteran’s signs and symptoms were consistent with a diagnosis of left shoulder impingement and prescribed a treatment regimen. There are no other medical treatment records associated with the claims file that indicate that the Veteran’s symptoms were more severe than those discussed above or exhibited at VA examinations during the appeal period. After careful review of the evidence, the Board finds that a higher initial rating for the Veteran’s left shoulder disability is not warranted. A schedular disability rating in excess of 20 percent for a minor extremity requires limitation of movement to 25 degrees from the side. The Veteran’s left arm range of motion has been limited to no worse than flexion to 145 degrees, abduction to 160 degrees, and internal and external rotation to 70 degrees throughout the appeal period. Thus, the objective evidence of record shows that at no time during the appeal period has the range of motion of the Veteran’s left shoulder been limited to 25 degrees from the side. When evaluating disabilities of the musculoskeletal system, the Board must also consider whether an increased rating could be assigned on the basis of functional loss due to the Veteran’s subjective complaints of pain, fatigability, incoordination, pain on movement, and weakness. 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202, 204-205 (1995). Pain must affect the ability to perform normal working movements with normal excursion, strength, speed, coordination, or endurance in order to constitute functional loss. 38 C.F.R. § 4.40. As noted above, the Veteran has already been assigned a compensable rating pursuant to 38 C.F.R. § 4.59. Thus, additional rating for functional loss due to pain is not warranted, as the evidence of record competently and credibly illustrates that the current rating of 20 percent adequately represents such impairment associated with this service-connected disability. In reaching this conclusion, the Board has considered the assertions of the Veteran as to his symptomatology and the severity of his condition. However, to the extent the Veteran believes that he is entitled to higher ratings than assigned herein, the Board concludes that the findings during medical evaluations are more probative than his lay statements. Furthermore, the Veteran’s assertions regarding the severity of his left shoulder disability are generally consistent with the ratings currently assigned and with the findings on VA examinations. As such, the Board has considered the assertions of the Veteran, but has also relied heavily on VA examinations, which duly consider his subjective symptoms and do not show limitation of function approximating the criteria for higher ratings. Accordingly, the preponderance of the evidence is against the claim for an initial rating in excess of 20 percent for the service-connected left shoulder dislocation, (CONTINUED ON NEXT PAGE) status post left arthroscopic capsulorrhaphy with arthritis. 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). THERESA M. CATINO Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. Benson, 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.