Citation Nr: 21010545 Decision Date: 02/25/21 Archive Date: 02/25/21 DOCKET NO. 13-34 658 DATE: February 25, 2021 ORDER An increased rating in excess of 50 percent, from February 21, 2012 to April 8, 2013, for a left shoulder disability, is denied. An extension of a temporary, 100 percent evaluation, beyond the period from April 9, 2013 to May 31, 2013, based on surgical or other treatment necessitating convalescence for a left shoulder surgical procedure, is denied. An increased rating in excess of 50 percent, from June 1, 2013 to September 18, 2013, for a left shoulder disability, is denied. An extension of a temporary, 100 percent evaluation, beyond the period from September 19, 2013 to December 31, 2013, based on surgical or other treatment necessitating convalescence for a left shoulder surgical procedure, is denied. An increased rating in excess of 50 percent, from January 1, 2014 to April 13, 2014, for a left shoulder disability, is denied. An extension of a temporary, 100 percent evaluation, beyond the period from April 14, 2014 to June 30, 2015, based on surgical or other treatment necessitating convalescence for a left shoulder surgical procedure, is denied. An increased rating in excess of 50 percent, from July 1, 2015 to the present, for a left shoulder disability, is denied. FINDINGS OF FACT 1. The Veteran underwent left shoulder arthroplasty in 2005. 2. For the period from February 21, 2012, to April 8, 2013, the Veteran’s left shoulder disability manifested as chronic residuals consisting of severe, painful motion or weakness status post prosthetic replacement of the shoulder joint. 3. In April 2013, the Veteran underwent left shoulder irrigation and debridement procedures. 4. For the period after May 31, 2013, but before September 19, 2013, there is no evidence demonstrating that the Veteran had severe postoperative residuals such as incompletely healed surgical wounds, stumps of recent amputations, therapeutic immobilization of one major joint or more, application of a body cast, or the necessity for house confinement, or the necessity for continued use of a wheelchair or crutches, with regular weight-bearing prohibited, or immobilization by cast, without surgery, of one major joint or more. 5. For the period from June 1, 2013 to September 18, 2013, the Veteran’s left shoulder disability manifested as chronic residuals consisting of severe, painful motion or weakness status post prosthetic replacement of the shoulder joint. 6. In September and November 2013, the Veteran underwent left shoulder irrigation and debridement procedures. 7. For the period after December 31, 2013, but before April 14, 2014, there is no evidence demonstrating that the Veteran had severe postoperative residuals such as incompletely healed surgical wounds, stumps of recent amputations, therapeutic immobilization of one major joint or more, application of a body cast, or the necessity for house confinement, or the necessity for continued use of a wheelchair or crutches, with regular weight-bearing prohibited, or immobilization by cast, without surgery, of one major joint or more. 8. For the period from January 1, 2014 to April 13, 2014, the Veteran’s left shoulder disability manifested as chronic residuals consisting of severe, painful motion or weakness status post prosthetic replacement of the shoulder joint. 9. In April 2014, the Veteran underwent left shoulder joint replacement with new joint replacement hardware and a subsequent dislocation and surgical revision in May 2014. 10. For the period after June 30, 2015, there is no evidence demonstrating that the Veteran had severe postoperative residuals such as incompletely healed surgical wounds, stumps of recent amputations, therapeutic immobilization of one major joint or more, application of a body cast, or the necessity for house confinement, or the necessity for continued use of a wheelchair or crutches, with regular weight-bearing prohibited, or immobilization by cast, without surgery, of one major joint or more. 11. For the period from July 1, 2015 to the present, the Veteran’s left shoulder disability manifested as chronic residuals consisting of severe, painful motion or weakness status post prosthetic replacement of the shoulder joint. CONCLUSIONS OF LAW 1. The criteria for an increased rating in excess of 50 percent, from February 21, 2012, to April 8, 2013, for status-post arthroplasty of the left shoulder have not been met. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code (DC) 5051. 2. The criteria for an extension of the temporary total evaluation beyond the period from April 9, 2013 to May 31, 2013, based on surgical or other treatment necessitating convalescence of the left shoulder have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.30. 3. The criteria for an increased rating in excess of 50 percent, from June 1, 2013 to September 18, 2013, for status-post arthroplasty of the left shoulder have not been met. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, DC 5051. 4. The criteria for an extension of the temporary total evaluation beyond the period from September 19, 2013 to December 31, 2013, based on surgical or other treatment necessitating convalescence of the left shoulder have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.30. 5. The criteria for an increased rating in excess of 50 percent, from January 1, 2014 to April 13, 2014, for status-post arthroplasty of the left shoulder have not been met. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, DC 5051. 6. The criteria for an extension of the temporary total evaluation beyond the period from April 14, 2014 to June 30, 2015, based on surgical or other treatment necessitating convalescence of the left shoulder have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.30. 7. The criteria for an increased rating in excess of 50 percent, from July 1, 2015 to the present, for status-post arthroplasty of the left shoulder have not been met. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, DC 5051. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from May 1968 to September 1976 and from July 1985 to August 1989. This matter was previously before the Board of Veterans’ Appeals (Board) in May 2018 when the issue of entitlement to a temporary total evaluation due to hospital treatment or observation and convalescence for the service-connected left shoulder disability was remanded for further development. Further development having been completed; the matter is once again before the Board. Increased Ratings & Temporary Total Ratings Disability evaluations are determined by the application of VA's 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 or aggravated during military service and the residual conditions in civil occupations. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321(a), 4.1. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Where the entitlement to compensation has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Nevertheless, where the evidence contains factual findings that show a change in the severity of symptoms during the rating period on appeal, assignment of staged ratings would be permissible. See Fenderson v. West, 12 Vet. App. 119 (1999). In all claims for increased ratings, the Veteran is presumed to be seeking the maximum possible evaluation; 100 percent compensation for their disability. See A.B. v. Brown, 6 Vet. App. 35 (1993). A temporary total disability rating will be assigned if treatment of a service-connected disability resulted in surgery necessitating at least one month of convalescence, surgery with severe postoperative residuals such as incompletely healed surgical wounds, stumps of recent amputations, therapeutic immobilization of one major joint or more, application of a body cast, or the necessity for house confinement, or the necessity for continued use of a wheelchair or crutches, with regular weight-bearing prohibited, or immobilization by cast, without surgery, of one major joint or more. 38 C.F.R. § 4.30(a)(1), (2), (3). Moreover, extension of one, two, or three months beyond the initial three months may be made if one of these requirements are met. 38 C.F.R. § 4.30(b)(1). Extension of one or more months up to six months beyond the initial six-month period may be made upon approval of the Veterans Service Center Manager if the surgery results in severe postoperative residuals such as incompletely healed surgical wounds, stumps of recent amputations, therapeutic immobilization of one major joint or more, application of a body cast, or the necessity for house confinement, or the necessity for continued use of a wheelchair or crutches with regular weight-bearing prohibited; or immobilization by cast, without surgery, of one major joint or more. 38 C.F.R. § 4.30(b)(2). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. §§ C.F.R. 3.102, 4.3. 1. An increased rating in excess of 50 percent, from February 21, 2012 to April 8, 2013, for a left shoulder disability, is denied. 2. An extension of a temporary, 100 percent evaluation, beyond the period from April 9, 2013 to May 31, 2013, based on surgical or other treatment necessitating convalescence for a left shoulder surgical procedure, is denied. 3. An increased rating in excess of 50 percent, from June 1, 2013 to September 18, 2013, for a left shoulder disability, is denied. 4. An extension of a temporary, 100 percent evaluation, beyond the period from September 19, 2013 to December 31, 2013, based on surgical or other treatment necessitating convalescence for a left shoulder surgical procedure, is denied. 5. An increased rating in excess of 50 percent, from January 1, 2014 to April 13, 2014, for a left shoulder disability, is denied. 6. An extension of a temporary, 100 percent evaluation, beyond the period from April 14, 2014 to June 30, 2015, based on surgical or other treatment necessitating convalescence for a left shoulder surgical procedure, is denied. 7. An increased rating in excess of 50 percent, from July 1, 2015 to the present, for a left shoulder disability, is denied. Throughout the appeal period, the Veteran has been in receipt of a 50 percent rating under DC 5051, separated by periods of temporary total ratings due to left shoulder surgeries. The VA examinations of record note that the Veteran's right side is dominant. The Veteran's left shoulder (minor extremity) disability is currently evaluated under 38 C.F.R. § 4.71a, DC 5051. Under DC 5051, with respect to the minor extremity, a 100 percent rating is warranted for one year following implantation of the prosthesis, as was awarded in this case for the period currently not under consideration. However, following this one-year period, the minimum, 20 percent rating is warranted for prosthetic replacement of the shoulder joint with intermediate degrees of residual weakness, pain or limitation of motion. A 50 percent rating is warranted for prosthetic replacement of the shoulder joint with chronic residuals consisting of severe, painful motion or weakness. For the period from February 21, 2012 to April 8, 2013, the Veteran is assigned a 50 percent, maximum rating, for status post total left shoulder arthroplasty under DC 5051. Upon further development as instructed in the May 2018 Board remand, in the December 2020 rating decision, the RO awarded a temporary 100 percent rating, effective April 9, 2013, following April 9, 2013 and April 19, 2013 left shoulder irrigation and debridement procedures. Medical records indicate that the Veteran underwent a successful left shoulder irrigation and debridement on April 9, 2013. It was noted that a PICC line was inserted for home administration of antibiotics. No at home restrictions of use were recommended. Thereafter, a 50 percent rating was assigned, effective June 1, 2013, the first of the month following the end of the temporary convalescence rating, for chronic residuals consisting of severe, painful motion or weakness in the affected extremity under DC 5051. A temporary 100 percent rating was assigned, effective September 19, 2013, following a September 19, 2013 surgery to remove hardware from a previous joint replacement surgery due to serious infection and to put a cement place holder into the impacted joint. Surgical procedures were also performed on November 14, 2013 and November 29, 2013 for additional biopsies and irrigation and debridement of the left shoulder. A November 14, 2013 medical note indicates that the Veteran underwent a procedure to remove cement prothesis from the left shoulder, to include the humerus. An antibiotic cement spacer was placed and removed six weeks later following a course of intervenous antibiotics. A revision arthroplasty was performed two weeks afterward, which included open irrigation and debridement. The Veteran was placed on intervenous antibiotics. Thereafter, a 50 percent rating was assigned, effective January 1, 2014, the first of the month following the end of the temporary convalescence rating, for chronic residuals consisting of severe, painful motion or weakness in the affected extremity under DC 5051. A temporary 100 percent rating was assigned, effective April 14, 2014, following a revision of a left shoulder joint replacement with new joint replacement hardware on April 14, 2014 and subsequent dislocation and surgical revision on May 17, 2014. Medical records indicate that the Veteran underwent a revision reverse total left shoulder arthroplasty on May 17, 2014. The 100 percent temporary rating was assigned for one year from June 17, 2014 under 38 C.F.R. § 4.71a, DC 5051. Thereafter, a 50 percent rating was assigned, effective July 1, 2015, the first of the month following the end of the temporary joint replacement evaluation, for chronic residuals consisting of severe, painful motion or weakness in the affected extremity under DC 5051. When evaluating musculoskeletal disabilities, VA may, in addition to applying schedular criteria, consider granting a higher rating in cases in which the claimant experiences additional functional loss due to pain, weakness, excess fatigability, or incoordination, to include with repeated use or during flare-ups, and those factors are not contemplated in the relevant rating criteria. See 38 C.F.R. §§ 4.40, 4.45; DeLuca v. Brown, 8 Vet. App. 202, 204-7 (1995). The provisions of 38 C.F.R. §§ 4.40 and 4.45 are to be considered in conjunction with the diagnostic codes predicated on limitation of motion. See Johnson v. Brown, 9 Vet. App. 7 (1996). The normal range of motion of the shoulder is from 0 degrees of flexion (forward elevation) to 180 degrees of flexion, from 0 degrees of abduction to 180 degrees of abduction, from 0 degrees of external rotation to 90 degrees of external rotation, and from 0 degrees of internal rotation to 90 degrees of internal rotation. 38 C.F.R. § 4.71, Plate I. The preponderance of the evidence is against a rating in excess of 50 percent surrounding the Veteran's periods of temporary total ratings. Following the periods of temporary total ratings, the Veteran is assigned 50 percent ratings, which is the maximum rating assignable for the minor joint under DC 5051. The only diagnostic code providing a rating higher than 50 percent for the minor joint is DC 5202, which allows a 70 percent rating when there is loss of head of the humerus (flail shoulder). A February 2011 x-ray showed that the Veteran’s existing left shoulder prothesis, replaced in November 2005, was in place and in proper alignment without evidence of fracture or loosening. The impression was unremarkable. The examiner noted that the Veteran reported some stiffness, but that the shoulder was doing well and without other problems. The examiner noted that a December 2010 medical note indicated that the Veteran reported some pain the day following exercise using a Bow Flex exercise machine. A January 2012 medical note indicates aspiration from the left axillary mass, which was noted to appear to communicate close to the proximal humerus but was noted not to appear to indicate loosening of the prosthetic. The Veteran underwent a VA examination in March 2012. Initial range of motion (ROM) measurement testing showed that the Veteran had left shoulder flexion to 115 degrees with pain noted at 115 degrees, and abduction to 120 degrees with pain noted at 120 degrees. The Veteran was unable to complete repetitive use testing due to weakness and movement causing pain. Muscle strength was noted as four out of five on flexion and abduction. Ankylosis was denied. No history of recurrent dislocation was noted. Chronic residuals consisting of severe painful motion and/or weakness was noted as due to a 2005 joint replacement surgery. The examiner noted that the Veteran’s functional impairment is not such that there is no effective function remaining other than that which would be equally well served by an amputation with prothesis. A June 2012 medical report indicates that the Veteran reported pain. A MRI showed no involvement with shoulder arthroses. However, chronic inflammation of the left axilla was noted, with a diagnosis of chronic infection of the left axilla. Performance of an excisional biopsy of a left axillary mass was noted. In the July 2014 VA examination, the examiner noted that the Veteran has chronic residuals consisting of severe painful motion and/or weakness due to multiple left shoulder surgeries. The examiner noted that the Veteran’s functional impairment is not such that there is no effective function remaining other than that which would be equally well served by an amputation with prothesis. Available medical records do not indicate loss of head of the humerus (flail shoulder) as is necessary for a 70 percent rating under DC 5202, at any time during the period on appeal. In terms of whether higher ratings are warranted under other DCs, DCs 5200, 5201, and 5203 for scapulohumeral articulation, limitation of motion of the arm, and impairment of the clavicle or scapula do not provide for ratings in excess of 50 percent. There is also no indication that the disability would be equally well served by an amputation with suitable full arm prosthesis. In fact, the evidence specifically indicates otherwise. With regard to the DeLuca factors, there is evidence that the Veteran has pain and functional limitations. However, the record indicates that his pain and functional loss is explicitly considered in the maximum, 50 percent rating he has been awarded under DC 5051. There is insufficient evidence to support a finding that his pain is so disabling as to actually or effectively limit shoulder motion to such an extent as to warrant the assignment of a higher rating under 38 C.F.R. § 4.71a, DC 5202. In assessing the severity of the Veteran's left shoulder disability, the Veteran's own assertions have been considered, which he is certainly competent to provide. See, e.g., Layno v. Brown, 6 Vet. App. 465, 470 (1994) and Grottveit v. Brown, 5 Vet. App. 91, 93 (1993). However, the criteria needed to support a higher rating for the disability requires medical findings that are within the province of trained medical professionals. See Jones v. Brown, 7 Vet. App. 134, 137-138 (1994). The Veteran's statements are not considered more persuasive than the objective medical findings which, as indicated above, do not support a higher rating than that already assigned. While 100 percent ratings are warranted for the periods discussed above, the preponderance of the evidence is against a rating in excess of 50 percent surrounding his periods of temporary total evaluation. In reaching these decisions, consideration has been given to the doctrine of reasonable doubt, however, to the extent the preponderance of the evidence is against a rating higher than 50 percent outside of his temporary total ratings, the doctrine is not for application. Vito A. Clementi Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Timothy T. Emmart 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.