Citation Nr: 21011135 Decision Date: 03/01/21 Archive Date: 03/01/21 DOCKET NO. 15-06 287A DATE: March 1, 2021 ORDER Entitlement to a compensable rating prior to March 30, 2012, for service-connected degenerative joint disease (DJD) of the left acromioclavicular joint is denied. Entitlement to a rating in excess of 10 percent disabling from March 30, 2012 to June 30, 2015, for service-connected DJD of the left acromioclavicular joint is denied. Entitlement to a rating in excess of 20 percent disabling beginning June 30, 2015, for service-connected DJD of the left acromioclavicular joint is denied. FINDINGS OF FACT 1. For the period prior to March 30, 2012, the Veteran’s DJD of the left acromioclavicular joint was manifested by degenerative arthritis without painful motion or limitation of motion as a result of pain, even in contemplation of functional loss due to symptoms such as pain, fatigue, weakness, lack of endurance, or incoordination, or as a result of repetitive motion and/or flare-ups, without ankylosis of the scapulohumeral articulation, impairment of the humerus, or impairment of the clavicle or scapula. 2. For the period from March 30, 2012 to June 30, 2015, the Veteran’s DJD of the left acromioclavicular joint was manifested by painful motion of the shoulder without limitation of motion at shoulder level (flexion and/or abduction limited to 90 degrees), even in contemplation of functional loss due to symptoms such as pain, fatigue, weakness, lack of endurance, or incoordination, or as a result of repetitive motion and/or flare-ups, without ankylosis of the scapulohumeral articulation, impairment of the humerus, or impairment of the clavicle or scapula. 3. For the period beginning June 30, 2015, the Veteran’s DJD of the left acromioclavicular joint is manifested by loss of range of motion of the arm, but not to flexion and/or abduction limited to 25 degrees from side, even in contemplation of functional loss due to symptoms such as pain, fatigue, weakness, lack of endurance, or incoordination, or as a result of repetitive motion and/or flare-ups, without ankylosis of the scapulohumeral articulation, impairment of the humerus, or impairment of the clavicle or scapula. CONCLUSIONS OF LAW 1. The criteria for a compensable rating prior to March 30, 2012, for service-connected DJD of the left acromioclavicular joint have not been met. 38 U.S.C. §§ 1155, 5107; 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5010-5201. 2. The criteria for a rating in excess of 10 percent disabling from March 30, 2012 to June 30, 2015, for service-connected DJD of the left acromioclavicular joint have not been met. 38 U.S.C. §§ 1155, 5107; 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5010-5201. 3. The criteria for a rating in excess of 20 percent disabling beginning June 30, 2015, for service-connected DJD of the left acromioclavicular joint have not been met. 38 U.S.C. §§ 1155, 5107; 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5010-5201. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from March 1980 to March 1983. On January [REDACTED], 2019, the Veteran passed away and the Appellant is the Veteran’s surviving daughter. In January 2019, the Board remanded the claim on appeal for further development and adjudication. The Board finds that there was substantial compliance with its January 2019 remand directives. A remand by the Board confers upon the claimant, as a matter of law, the right to compliance with the remand order. Stegall v. West, 11 Vet. App. 268 (1998). Nonetheless, it is only substantial compliance, rather than strict compliance, with the terms of a remand that is required. See D’Aries v. Peake, 22 Vet. App. 97, 104 (2008) (finding substantial compliance where an opinion was provided by a neurologist as opposed to an internal medicine specialist requested by the Board); Dyment v. West, 13 Vet. App. 141 (1999). Entitlement to a compensable rating prior to March 30, 2012, in excess of 10 percent disabling from March 30, 2012 to June 30, 2015, and in excess of 20 percent disabling thereafter for service-connected DJD of the left acromioclavicular joint is denied. The Veteran, prior to her death, claimed that her service-connected left shoulder disability was worse than is reflected by her assigned rating. Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 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. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Where the appeal arises from the original assignment of a disability evaluation following an award of service connection, the severity of the disability at issue is to be considered during the entire period from the initial assignment of the disability rating to the present time. See Fenderson v. West, 12 Vet. App. 119 (1999). While the Veteran’s entire history is reviewed when making a disability determination, where service connection has already been established and an increase in the disability rating is at issue, it is a present level of disability that is of primary concern. Francisco v. Brown, 7 Vet. App. 55 (1994). The Court has held that, in determining the present level of a disability for any increased evaluation claim, the Board must consider the application of staged ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007). In other words, where the evidence contains factual findings that demonstrate distinct time periods in which the service-connected disability exhibited diverse symptoms meeting the criteria for different ratings during the course of the appeal, the assignment of staged ratings would be necessary. Consideration is given to the potential application of the various provisions of 38 C.F.R. Parts 3 and 4, whether or not they are raised by the Veteran, as required by Schafrath v. Derwinski, 1 Vet. App. 589 (1991). 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 for that rating. Otherwise the lower rating will be assigned. 38 C.F.R. § 4.7. All benefit of the doubt will be resolved in the Veteran’s favor. 38 C.F.R. § 4.3. In view of the number of atypical instances it is not expected, especially with the more fully described grades of disabilities, that all cases will show all the findings specified. Findings sufficiently characteristic to identify the disease and the disability therefrom, and above all, coordination of rating with impairment of function will, however, are expected in all instances. 38 C.F.R. § 4.21. In general, all disabilities, including those arising from a single disease entity, are rated separately, and all disability ratings are then combined in accordance with 38 C.F.R. § 4.25. Pyramiding, the evaluation of the same disability, or the same manifestation of a disability, under different diagnostic codes, is to be avoided when rating a Veteran’s service-connected disability. 38 C.F.R. § 4.14. It is possible for a Veteran to have separate and distinct manifestations from the same injury which would permit rating under several diagnostic codes, however, the critical element in permitting the assignment of several ratings under various diagnostic codes is that none of the symptomatology for any one of the conditions is duplicative or overlapping with the symptomatology of the other condition. See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994). The basis of disability evaluation is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. 38 C.F.R. § 4.10. 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. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). The instant appeal stems from the Veteran’s claim for an increased rating for her (minor) left shoulder disability which was filed in March 2012. Therefore, the appeal period begins March 2011. The Veteran’s DJD of the left acromioclavicular joint is rated under Diagnostic Codes 5010-5201. Hyphenated codes are used when a rating for a particular disability under one diagnostic code is based upon rating of the residuals of that disability under another diagnostic code. 38 C.F.R. § 4.27. The hyphenated diagnostic codes in this case indicate that post-traumatic arthritis under Diagnostic Code 5010 is the service-connected disorder and that limitation of motion of the arm under Diagnostic Code 5201 is the residual condition. In this regard, such disability was rated as noncompensable beginning March 31, 2008, 10 percent disabling from March 30, 2012 to June 30, 2015, and 20 percent disabling thereafter, pursuant to Diagnostic Codes 5010-5201. In this regard, Diagnostic Code 5010 provides that traumatic arthritis will be rated as degenerative arthritis. Pursuant to Diagnostic Code 5003, degenerative arthritis established by X-ray findings will be rated on the basis of limitation of motion under the appropriate diagnostic code(s) 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. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. In the absence of limitation of motion, X-ray evidence of involvement of two or more major joints or two or more minor joint groups, with occasional incapacitating exacerbations warrants a 20 percent evaluation. X-ray evidence of involvement of two or more major joints or two or more minor joints warrants a 10 percent evaluation. See 38 C.F.R. § 4.71a, Diagnostic Code 5003. The Board notes that the record, including all the VA examinations, indicates that the Veteran was right hand dominant. As such, the provisions related to the minor extremity are applicable to the instant case. Under Diagnostic Code 5201, limitation of arm motion that is limited to shoulder level warrants a 20 percent rating in the minor extremity. Such limitation that is limited midway between the side and shoulder level also warrants a 20 percent rating in the minor extremity. Such limitation to 25 degrees from the side warrants a 30 percent rating in the minor extremity. 38 C.F.R. § 4.71a. Normal range of motion in the shoulder is from zero to 180 degrees of forward elevation (flexion) and zero to 180 degrees of shoulder abduction. 38 C.F.R. § 4.71a, Plate I. Turning to the evidence of record, the Board notes that the Veteran underwent several VA examinations throughout the appeal period, to include in June 2015 and July 2017 as well as a postmortem medical opinion in November 2020. Furthermore, the Veteran underwent a VA Joints examination in August 2008. While the August 2008 examination was prior to appeal period and therefore not dispositive, the Board notes it indicates the early status of the Veteran’s left shoulder disability. The August 2008 examiner noted that the Veteran had arthritis and that she reported intermittent pain, weakness, and stiffness. Upon examination, the examiner noted no weakness, stiffness, swelling, heat, redness, instability, giving way, locking, fatigability, or decrease in endurance. Range of motion revealed normal forward flexion and abduction in active and passive motion, as well as normal internal and external rotation in active and passive motion. The examiner also found no change with repetition. In June 2015 the Veteran underwent a VA Shoulder and Arm Conditions examination with an accompanying disability benefits questionnaire (DBQ). The examiner noted that no records were reviewed in preparation for the examination. The examiner also confirmed that the Veteran suffered from bilateral shoulder impingement syndrome as well as rotator cuff tendonitis in addition to left shoulder degenerative arthritis. The examiner found that the Veteran was right hand dominant and that she complained of flare-ups and functional loss to include difficulty lifting as well as throbbing pain, stiffness, numbness, sleep disturbances, and decreased range of motion. Upon examination, the examiner found that the Veteran’s range of motion of the left shoulder was 0 to 45 degrees of flexion and abduction, and 0 to 30 degrees of external rotation and 0 to 40 degrees of internal rotation. The examiner found that pain caused functional loss and that there was evidence of pain with weight bearing as well as localized tenderness or pain on palpation. The examiner noted that the Veteran was able to perform repetitive use testing but that such did not result in additional loss of function. The examiner also noted that pain, fatigue, weakness and lack of endurance caused functional loss after repetitive use over time. Furthermore, the examiner noted that while the examination was not being conducted during a flare-up, the Veteran reported that such did occur and that the examination supported the Veteran’s statements. The examiner found that pain, fatigue and lack of endurance limited functional ability with flare-ups. Strength testing was normal and the examiner found no evidence of muscle atrophy or ankylosis. The examiner noted that the Veteran did suffer from a rotator cuff condition, and noted a positive infraspinatus strength test, but was unable to complete other testing. The examiner found no evidence of instability, dislocation, or labral pathology. The examiner noted no malunion of the clavicle or scapula, nonunion of the clavicle or scapula with or without loose movement, and no dislocation of the acromioclavicular or sternoclavicular joints. The examiner also found no impairments of the humerus. The examiner did note a scar on the left anterior shoulder which measured 11 cm by 7 cm, but noted that such was not painful or unstable. In July 2017 the Veteran underwent a VA Shoulder and Arm Conditions examination with an accompanying DBQ. The examiner noted that they reviewed the Veteran’s claims file. The examiner noted that the Veteran suffered from DJD of the left shoulder of the acromioclavicular joint. The examiner noted that the Veteran reported pain in both shoulders and difficulty sleeping. However, the examiner also stated that the examination was “challenging,” noting that there were gross inconsistencies between strength and range of motion on focused examination, versus expected findings considering the Veteran’s reported diagnoses as well as treatment records. The examiner noted that the Veteran’s treatment records indicated normal or near normal range of motion. Therefore, the examiner found that the results indicated probable intentional manipulation of the exam results and therefore they were not valid to objectively asses functional loss, either at baseline, with repetitive sue or with flares. X-ray evidence revealed mild to moderate acromioclavicular joint arthritis. The examiner noted that the Veteran was right hand dominant and that she reported no flares which impacted the function of her shoulder, but that she did report difficulty with lifting or moving items as well as difficulty bathing and dressing. Range of motion testing revealed 0 to 5 degrees of flexion and abduction, and 0 to 10 degrees of external and internal rotation. The examiner found that range of motion itself did not contribute to functional loss and he found no objective evidence of localized tenderness or pain on palpation, no pain with weight bearing or non-weight bearing, or evidence of crepitus. The examiner found that the Veteran was able to perform repetitive-use testing and that there was no additional loss of function. The examiner noted that the Veteran was not being examined immediately after repetitive use or during a flare-up. Therefore the examiner found that the examination was neither medically inconsistent or consistent with the Veteran’s described functional loss. Furthermore, the examiner found that he could not say without resorting to speculation whether pain, weakness, fatigability or incoordination limited functional loss as the examination was “challenging” and the examiner suspected intentional manipulation. Muscle strength testing was normal and the examiner found no evidence of muscle atrophy or ankylosis. The examiner noted that while a left rotator cuff condition was suspected, testing could not be completed. The examiner found no evidence of shoulder instability, dislocation or labral pathology. The examiner noted no malunion of the clavicle or scapula, nonunion of the clavicle or scapula with or without loose movement, and no dislocation of the acromioclavicular or sternoclavicular joints. The examiner also found no impairments of the humerus. The examiner did note a scar on the left anterior shoulder which measured 9 cm by 3 cm, but noted that such was not painful or unstable. Following the Board’s remand in January 2019, an additional examination was requested. However, with the Veteran’s death, a physical examination was impossible, therefore the examiner only provided a medical opinion in November 2020. The examiner noted a review of the Veteran’s file and stated that the Veteran had reported constant, severe pain with difficulty sleeping. However, the examiner noted that the prior examination in July 2017 was challenging as there were gross inconsistencies between strength and range of motion testing on focused examination versus the expected findings considering the Veteran’s diagnoses, as well as treatment records. The examiner noted that the Veteran’s treatment records continuously noted normal or near normal range of motion. Therefore, the November 2020 examiner, like the July 2017 examiner, found that the examination results indicated probable intentional manipulation. Therefore, the results were not valid to objectively assess the severity or functional impact of the Veteran’s left shoulder condition. Furthermore, while the Veteran consistently sought treatment through VA for her left shoulder complaints, to include pain, during the appeal period, such do not reflect any additional findings pertinent to the rating criteria that were not documented at the aforementioned VA examinations. Period prior to March 30, 2012 Based on the foregoing, the Board finds that for the period prior to March 30, 2012, a compensable rating is not warranted for the Veteran’s left shoulder disability under Diagnostic Codes 5010-5201. In this regard, while the Veteran reported pain, there is no indication that her left shoulder disability resulted in any loss of range of motion or any actual limitation of motion, let alone impairment which would limit such to 90 degrees of flexion and/or abduction, even in contemplation of functional loss due to symptoms such as pain, fatigue, weakness, lack of endurance, or incoordination, or as a result of repetitive motion and/or flare-ups. In this regard, the Veteran’s left shoulder abduction and flexion were not shown to be limited at all but rather had normal range of motion prior to March 30, 2012. Furthermore, while the Veteran reported intermittent pain, there is no indication that such symptoms resulted in functional loss that more nearly approximates limitation of the left arm to shoulder level. Therefore, the Veteran is not entitled to a compensable rating prior to March 30, 2012 under Diagnostic Code 5201 for limitation of motion. Furthermore, as there is no objective evidence of swelling, muscle spasm, or painful motion, a minimum compensable rating under Diagnostic Code 5010 is also not warranted. The Board further finds that a separate or higher rating is not warranted under any other potentially applicable Diagnostic codes related to the shoulder for the period prior to March 30, 2012. In this regard, the evidence, to include VA examination reports and treatment records, does not show, nor does the Veteran contend, that her left shoulder disability resulted in ankylosis of the scapulohumeral articulation, impairment of the humerus, or impairment of the clavicle or scapula. Consequently, higher or separate ratings are not warranted under Diagnostic Codes 5200, 5202, and 5203, respectively. Period from March 30, 2012 to June 30, 2015 Based on the foregoing, the Board finds that for the period from March 30, 2012 to June 30, 2015, a rating in excess of 10 percent is not warranted for the Veteran’s left shoulder disability under Diagnostic Codes 5010-5201. In this regard, while such disability resulted in painful motion of the shoulder (above shoulder level), such was not limited to shoulder level or midway between her side and shoulder level, even in contemplation of functional loss due to symptoms such as pain, fatigue, weakness, lack of endurance, or incoordination, or as a result of repetitive motion and/or flare-ups. In this regard, the Veteran’s left shoulder abduction and flexion was limited to, at most, a range above her shoulder. Furthermore, while the Veteran reported additional pain after use or during flare-ups, there is no indication that such additional symptoms resulted in functional loss that more nearly approximates limitation of the left arm to shoulder level or to midway between her side and shoulder level. Therefore, the Veteran is not entitled to a rating in excess of 10 percent disabling for the period from March 30, 2012 to June 30, 2015, under Diagnostic Code 5201 for limitation of motion. The Board further finds that a separate or higher rating is not warranted under any other potentially applicable Diagnostic Codes related to the shoulder for the period from March 30, 2012 to June 30, 2015. In this regard, the evidence, to include VA examination reports and treatment records, does not show, nor does the Veteran contend, that her left shoulder disability results in ankylosis of the scapulohumeral articulation, impairment of the humerus, or impairment of the clavicle or scapula. Consequently, higher or separate ratings are not warranted under Diagnostic Codes 5200, 5202, and 5203, respectively. Period beginning June 30, 2015 Based on the foregoing, the Board finds that for the period beginning June 30, 2015, a rating in excess of 20 percent is not warranted for the Veteran’s left shoulder disability under Diagnostic Code 5201. In this regard, while such disability results in the loss of range of motion of the arm, such is not limited to flexion and/or abduction limited to 25 degrees from her side, even in contemplation of functional loss due to symptoms such as pain, fatigue, weakness, lack of endurance, or incoordination, or as a result of repetitive motion and/or flare-ups. In this regard, while the only VA examination of record reflects that the Veteran’s flexion and abduction were limited to 5 degrees, the July 2017 and November 2020 VA examiners both found that such examination results were invalid. Both examiners noted a belief that the exam results reflected intentional manipulation as they were not in keeping with other examination results or with the Veteran’s treatment records, which consistently found normal or near normal range of motion. Furthermore, while the Veteran reported additional pain after overuse and/or on flare-ups, the examiners again found that the examination results were invalid due to manipulation. Therefore, as there is no objective reliable evidence that the Veteran’s left should disability resulted in flexion and/or abduction limited to 25 degrees from her side, the Veteran is not entitled to a rating in excess of 20 percent for the period beginning June 30, 2015, under Diagnostic Code 5201 for limitation of motion. The Board further finds that a separate or higher rating is not warranted under any other potentially applicable Diagnostic Codes related to the shoulder for the period beginning June 30, 2015. In this regard, the evidence, to include VA examination reports and treatment records, does not show, nor did the Veteran contend, that her left shoulder disability resulted in ankylosis of the scapulohumeral articulation, impairment of the humerus, or impairment of the clavicle or scapula. Consequently, higher or separate ratings are not warranted under Diagnostic Codes 5200, 5202, and 5203, respectively. In reaching its conclusions in the instant case, the Board acknowledges the Veteran’s and subsequently the Appellant’s beliefs that the Veteran’s symptoms associated with her service-connected disability were more severe than was reflected by the assigned disability ratings. In this regard, the Board must consider the entire evidence of record when analyzing the criteria laid out in the rating schedule. While the Board recognizes that the Veteran and the Appellant are competent to describe the Veteran’s symptomatology, they are not competent to provide opinions regarding the severity of her symptomatology in accordance with the rating criteria. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007). Ultimately, the Board finds the medical evidence in which professionals with specialized expertise examined the Veteran, acknowledged her reported symptoms, and described the manifestations of such disability in light of the rating criteria to be more persuasive than the Veteran’s and/or the Appellant’s reports regarding the severity of the Veteran’s disability. The Board has considered whether further staged ratings under Fenderson, supra, are appropriate for the Veteran’s service-connected disability. However, the Board finds that her symptomatology has been stable throughout each stage of the appeal period. Therefore, assigning further staged ratings for such disability is not warranted. Furthermore, neither the Veteran or the Appellant raised any other issues, nor have any other issues been reasonably raised by the record, with regard to the increased rating claim adjudicated herein. Doucette v. Shulkin, 28 Vet. App. 366 (2017). In this regard, the Board notes that all of the Veteran’s examinations noted a left shoulder scar in relation to her service-connected left shoulder disability. However, the Veteran is separately service-connected and rated for her left shoulder scar. Furthermore, neither the Veteran nor the Appellant have indicated that an increased rating is warranted for the Veteran’s scar. Finally, the record has also not indicated that the Veteran’s scar is either painful or unstable nor are there any other reasons that an increased rating for such should be considered. Consequently, the Board finds that higher ratings for the Veteran’s service-connected DJD of the left acromioclavicular joint are not warranted. In reaching such determination, the Board has considered the applicability of the benefit of the doubt doctrine. However, the preponderance of the evidence is against the claim. Therefore, the benefit of the doubt doctrine is not applicable in the instant appeal and the increased rating claim must be denied. See 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. L. M. BARNARD Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Unger, 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.