Citation Nr: 21011416 Decision Date: 03/01/21 Archive Date: 03/01/21 DOCKET NO. 11-32 290 DATE: March 1, 2021 ORDER A disability rating in excess of 20 percent for right shoulder injury rotator cuff repair with osteoarthritis is denied. REMANDED A disability rating in excess of 10 percent for hypertension is remanded. FINDING OF FACT The Veteran’s major right shoulder disability is manifested by painful motion but there is no instability, subluxation, or diminished strength, and motion in flexion is to at least 90 degrees and abduction is to at least 90 degrees, without limitation of motion of the arm midway between side and shoulder level. CONCLUSION OF LAW The criteria for a disability rating in excess of 20 percent for right shoulder injury rotator cuff repair with osteoarthritis have not been met. 38 U.S.C. § 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.159, 3.321, 4.1, 4.2, 4.7, 4.10, 4.21, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5003-5201. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from June 1987 to July 1987, and from March 1988 to August 2008. The issues on appeal came before the Board of Veterans’ Appeals (Board) from an April 2009 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In December 2017, the Board, in pertinent part, denied entitlement to a rating in excess of 10 percent for a right shoulder disability for the period prior to March 20, 2017, denied a disability rating in excess of 20 percent for a right shoulder disability for the period from March 20, 2017, and denied a disability rating in excess of 10 percent for hypertension. The Veteran filed a timely appeal with the United States Court of Appeals for Veterans Claims (Court). Pursuant to a September 2018 Joint Motion for Partial Remand (JMPR) and Court Order, this portion of the decision was vacated and remanded for action consistent with the JMPR. These issues were remanded by the Board in April 2019. In an August 2020 rating decision, a 20 percent disability rating was assigned to right shoulder injury rotator cuff repair with osteoarthritis, effective September 1, 2008. Increased Rating Disability ratings are determined by applying the criteria set forth in the VA’s Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate Diagnostic Codes. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. The basis of disability evaluations 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. In determining the severity of a disability, the Board is required to consider the potential application of various other provisions of the regulations governing VA benefits, whether or not they were raised by the Veteran, as well as the entire history of the Veteran’s disability. 38 C.F.R. § 4.1, 4.2; Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). If the disability more closely approximates the criteria for the higher of two ratings, the higher rating will be assigned; otherwise, the lower rating is assigned. 38 C.F.R. § 4.7. When after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability such doubt will be resolved in favor of the claimant. 38 C.F.R. § 4.3. Where, as here, an increase in the level of a disability is at issue, the primary concern is the present level of disability. Francisco v. Brown, 7 Vet. App. 55 (1994). Where the evidence contains factual findings that demonstrate distinct time periods in which the service-connected disability exhibits symptoms that would warrant different evaluations during the course of the appeal, the assignment of staged ratings is appropriate. See Hart v. Mansfield, 21 Vet. App. 505 (2007). If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Additionally, the evaluation of the same disability under several Diagnostic Codes, known as pyramiding, must be avoided. Separate ratings may be assigned for distinct disabilities resulting from the same injury so long as the symptomatology for one condition is not duplicative of or overlapping with the symptomatology of the other condition. 38 C.F.R. § 4.14; Esteban v. Brown, 6 Vet. App. 259, 262 (1994). The Board has reviewed all the evidence in the Virtual folders, which includes: the Veteran’s contentions, treatment records, and VA examination reports. 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 claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000); Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). Right shoulder The Veteran asserts that he is entitled to a rating in excess of 20 percent for his right shoulder disability, which is his major extremity. His disability is rated 20 percent disabling pursuant to 38 C.F.R. § 4.71a, Diagnostic Code 5003-5201. Hyphenated Diagnostic Codes are used when a rating under one Diagnostic Code requires use of an additional Diagnostic Code to identify the basis for the evaluation assigned. See 38 C.F.R. § 4.27. Pursuant to Diagnostic Code 5003, arthritis, degenerative (hypertrophic or osteoarthritis), 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 2 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 2 or more major joints or 2 or more minor joints warrants a 10 percent evaluation. See 38 C.F.R. § 4,71a, Diagnostic Code 5003. Effective February 7, 2021, Diagnostic Code 5003 was revised as follows: Degenerative arthritis, other than post-traumatic: Degenerative arthritis established by X-ray findings will be rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved (DC 5200 etc.). 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, to be combined, not added under diagnostic code 5003. 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, with X-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups, with occasional incapacitating exacerbations, a 20 percent disability rating is warranted. With X-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups, a 10 percent disability rating is warranted. Note (1): The 20 percent and 10 percent ratings based on X-ray findings, above, will not be combined with ratings based on limitation of motion. Note (2): The 20 percent and 10 percent ratings based on X-ray findings, above, will not be utilized in rating conditions listed under Diagnostic Codes 5013 to 5024, inclusive. 38 CFR Part 4, Schedule for Rating Disability: Musculoskeletal System and Muscle Injuries; Correction, 85 Fed. Reg. 249, 85523 (December 29, 2020). The normal range of motion of shoulder for flexion and abduction is from 0 degrees at the side to 180 degrees overhead. 38 C.F.R. § 4.71, Plate I. Shoulder level is at 90 degrees, and exactly midway between the side and shoulder level is at approximately 45 degrees. Under Diagnostic Code 5201, a 20 percent rating is assigned for limitation of the minor or major arm to shoulder level. If there is limitation of the shoulder midway between side and shoulder level a 30 percent rating is assigned for the major arm. If the limitation is 25 degrees from the side, a 40 percent rating is assigned for the major arm. Id. In determining whether a veteran has limitation of motion to shoulder level, it is necessary to consider reports of forward flexion and abduction. See Mariano v. Principi, 17 Vet. App. 305, 314-16 (2003); see also 38 C.F.R. § 4.71, Plate I. Effective February 7, 2021, Diagnostic Code 5201 was revised as follows: Limitation of motion of the arm at shoulder level (flexion and/or abduction limited to 90 degrees) warrants a 20 percent rating; Limitation of motion of the arm midway between side and shoulder level (flexion and/or abduction limited to 45 degrees) warrants a 30 percent rating (major); and, Limitation of motion of the arm flexion and/or abduction limited to 25 degrees from side warrants a 40 percent rating (major). Ankylosis of the scapulohumeral articulation is addressed under DC 5200 and other impairment of the humerus is covered under DC 5202. 38 C.F.R. § 4.71a. Finally, impairment of the scapula is addressed under DC 5203. Id. However, the record does not show such diagnostic codes are relevant with respect to the Veteran’s right shoulder disability, as detailed below. Evidence of pain, weakened movement, excess fatigability, or incoordination must be considered in determining the level of associated functional loss in light of 38 C.F.R. § 4.40, taking into account any part of the musculoskeletal system that becomes painful on use. DeLuca v. Brown, 8 Vet. App. 202, 205-08 (1995). The provisions of 38 C.F.R. § 4.14 (avoidance of pyramiding) do not forbid consideration of a higher rating based on greater limitation of motion due to pain on use, including flare ups. 38 C.F.R. § 4.14. The provisions of 38 C.F.R. § 4.40 and 38 C.F.R. § 4.45, however, should only be considered in conjunction with the DCs predicated on limitation of motion. Johnson v. Brown, 9 Vet. App. 7, 11 (1996). Also, functional loss due to pain must be supported by pathology and shown through objective observation. Johnston v. Brown, 10 Vet. App. 80, 84-85 (1997) (citing 38 C.F.R. § 4.40); see also Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011) (relying on DeLuca for proposition that an adequate joint examination report must comply with § 4.40 and include an “opinion on whether pain could significantly limit functional ability during flare-ups or when the [joint] is used repeatedly over a period of time”). The intent of the rating schedule is to recognize painful motion with joint or periarticular pathology as productive of disability. It is the intention to recognize actually painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59. The Court of Appeals for Veterans Claims has held that the final sentence of § 4.59 creates a requirement that certain range of motion testing be conducted whenever possible in cases of joint disabilities. Correia v. McDonald, 28 Vet. App. 158, 168 (2016). With respect to the joints, the factors of disability reside in reductions of their normal excursion of movements in different planes. Inquiry will be directed to these considerations: (a) less movement than normal (due to ankylosis, limitation or blocking, adhesions, tendon-tie-up, contracted scars, etc.); (b) more movement than normal (from flail joint, resections, nonunion of fracture, relaxation of ligaments, etc.); (c) weakened movement (due to muscle injury, disease or injury of peripheral nerves, divided or lengthened tendons, etc.); (d) excess fatigability; (e) incoordination, impaired ability to execute skilled movements smoothly; and (f) pain on movement, swelling, deformity or atrophy of disuse. Instability of station, disturbance of locomotion, interference with sitting, standing and weight-bearing are related considerations. 38 C.F.R. § 4.45. 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). In Sharp v. Shulkin, 29 Vet. App. 26 (2017), the Court held that VA examiners must obtain information about the severity, frequency, duration, precipitating and alleviating factors, and extent of functional impairment of flares from the veterans themselves, when a flare-up is not observable at the time of examination. By way of history, the Veteran underwent arthroscopic surgery on his right shoulder in June 2001. February 2007 military treatment records show full range of motion in the right shoulder. On his March 2008 retirement examination, the Veteran indicated right shoulder problems. The military examiner indicated the Veteran had normal upper extremities. A March 2017 C&P examination reflects the Veteran’s report of flare-ups with pain and weakness that resulted in difficulty with lifting and overhead activities. He also reported intermittent popping and stiffness with overhead activities. On examination, pain was noted on rest and movement, with weight bearing, with localized tenderness to palpitation involving the AC joint, and mild tenderness to palpitation of the anterior shoulder region. On range of motion testing, flexion was to 125 degrees, abduction to 120 degrees, external rotation to 70 degrees, and internal rotation to 90 degrees. Strength in the right shoulder was 5/5, there was no muscle atrophy, the external rotation strength test was negative, no instability was noted, and no conditions in the Veteran’s clavicle, scapula, and AC joints were suspected. The Veteran was able to perform repetitive use testing without additional functional loss or loss of range of motion and had no ankylosis in the right shoulder. The examiner diagnosed right rotator cuff tear and right shoulder osteoarthritis. A November 2019 C&P examination reflects the Veteran’s reports of difficulty lifting and carrying but he denied flare-ups. Flexion was to 90 degrees, abduction was to 90 degrees, external rotation was to 90 degrees, and internal rotation was to 90 degrees. He had pain with flexion and abduction. There was no evidence of pain with weight bearing and no evidence of crepitus. The examiner commented that he has difficulty working overhead with right upper extremity which affects physical employment. Occasionally he can lift and carry 25 pounds and can frequently lift and carry 10 pounds, which affects physical employment. There was localized tenderness or pain on palpation of the joint at the anterior/posterior part of the shoulder, deemed mild. There was no change on repetitive motion testing. The examiner stated that pain, weakness, fatigability, or incoordination does not significantly limit functional ability with repeated use over a period of time. An empty-can test was positive, indicating weakness when abducting arm to 90 degrees and forward flexion to 30 degrees. The diagnostic criteria for a 30 percent rating pursuant to Diagnostic Code 5201, either before or as of February 7, 2021 have not been as the Veteran has not been shown to have limitation of the shoulder midway between the side and shoulder level, nor flexion and/or abduction limited to 45 degrees in consideration of the new criteria. As detailed above, the Veteran’s flexion and abduction had worsened to 90 degrees but was not additionally limited due to functional limitations, there were no changes on repetitive motion testing, and he denied flare-ups. While acknowledging that the Veteran reported flare-ups in March 2017, he was only limited in his overhead motion, well above midway between the side and the shoulder level. Specifically, the Veteran has reported that during a flare-up, he has difficulty with overhead activities, push-ups, and working out in the gym. At no point during the appeal has the Veteran reported an inability to raise his arm beyond between his side and his shoulder level or any symptoms that nearly approximates between the side and the shoulder level. He has consistently associated only increased pain with the flare-ups and no reduction in mobility. DeLuca v. Brown, 8 Vet. App. 202, 206 (1995). The Court explained in Mitchell that, pursuant to 38 C.F.R. §§ 4.40 and 4.45, the possible manifestations of functional loss include decreased or abnormal excursion, strength, speed, coordination, or endurance (38 C.F.R. §§ 4.40), as well as less or more movement than is normal, weakened movement, excess fatigability, and pain on movement (as well as swelling, deformity, and atrophy) that affects stability, standing, and weight-bearing (38 C.F.R. § 4.45). Thus, functional loss caused by pain must be rated at the same level as if the functional loss were caused by any of the other factors cited above. Consequently, in rating the severity of a joint disability, VA must determine the overall functional impairment due to these factors. See Mitchell v. Shinseki, 25 Vet. App. 32 (2011). In other words, while the Veteran clearly has pain and especially when performing motion above the head, there is no evidence that he is unable to raise the arm above midway between his side and his shoulder level. Rather he indicated overhead motions were more difficult. The Board carefully considered the reports of flare-ups and does not find this to more nearly approximate limitation of motion of the arm midway between the side and the shoulder level. The Board notes, however, that the Court has held that 38 C.F.R. § 4.40 does not require a separate rating for pain but rather provides guidance for determining ratings under other diagnostic codes assessing musculoskeletal function. See Spurgeon v. Brown, 10 Vet. App. 194 (1997). The Board has also considered whether a higher or separate rating may be warranted under an alternative diagnostic code, and finds that because the Veteran has been diagnosed with osteoarthritis of the right shoulder, Diagnostic Code 5201 remains the most appropriate diagnostic criteria under which to rate his right shoulder disability. See Butts, 5 Vet. App. at 532. The Board has considered the applicability of rating the disability under Diagnostic Codes 5200, 5202, and 5203; however, the objective medical evidence does not reflect ankylosis, nor impairment of the humerus, clavicle, or scapula. Furthermore, the Board has considered whether a higher rating is warranted based on functional loss due to pain or due to other factors including weakness, fatigability, incoordination, or pain on movement of a joint. 38 C.F.R. §§ 4.40, 4.45; DeLuca, 8 Vet. App. at 207-08. The 20 percent rating in effect encompasses the symptomatology associated with the Veteran’s right shoulder disability. Moreover, the examiners found that the functional impairment of the Veteran’s right shoulder disability would only impact the Veteran’s ability to perform strenuous jobs that require heavy lifting, repeated pushing, pulling, and repeated overhead activities. The Board therefore concludes that the Veteran’s right shoulder disability has been no more than 20 percent disabling for the entire period contemplated by this appeal. All evidence has been considered and there is no doubt to be resolved. See 38 U.S.C. § 5107(b); 38 C.F.R. §§ 4.3, 4.7. REASONS FOR REMAND VA treatment records document the following blood pressure readings (in mmHg): 141/94 (09/12/13); 136/88, 141/88 (11/13/2013); 132/90 (03/06/2014); 110/69 (06/02/2014); 127/79 (06/09/14); 145/94 (07/14/2014); 113/71, 145/94; 102/58 (09/29/14); (10/03/14); 118/87 (11/17/2014); 137/79 (11/25/2014); 108/64 (04/29/15); 172/112, 166/106, 168/106 (03/20/17); 166/110, 178/110, 142/98, 178/126 (04/12/2017); 159/107, 164/109, 151/91, 156/92 (04/20/17); 139/87 (05/04/17); 130/87, 143/83 (09/13/17); 136/88 (09/21/2017); 127/86 (10/04/17); 134/82 (06/19/18); 136/86 (10/16/18); 144/89 (01/14/19); 149/87 (07/01/19); 148/100 & 160/96 (11/12/19); 150/90 (11/27/2019); 155/87 (12/10/19); 124/84 (12/23/19); 122/78 (02/25/20); and, 122/78 (03/23/20). In March 2017, the Veteran underwent a VA examination wherein he reported that he was on several medications with fluctuating blood pressure readings. It was indicated that he takes continuous medication for hypertension. The examiner indicated that the Veteran did not have a history of a diastolic blood pressure reading predominately 100 or more. Blood pressure readings taken during the examination were 172/112, 166/106, and 168/106. The average of the three readings was 168/108. A May 2017 treatment record reflects a blood pressure reading of 130/90, a September 2017 treatment records reflects a blood pressure reading of 154/100, a May 2018 treatment record reflects a blood pressure reading of 158/108, and a February 2019 treatment record reflects a blood pressure reading of 128/88. 12/31/2019 Medical Treatment Record-Non-Government Facility. In support of his claim, the Veteran submitted a blood pressure log from November 2019, which reflects diastolic pressure ranging from 111 to 127 and systolic pressure ranging from 174 to 207. In light of the Veteran’s reported blood pressure readings, he should be afforded an examination to assess the severity of his hypertension. The matter is REMANDED for the following actions: 1. Associate updated VA treatment records for the period from July 15, 2020. 2. Schedule the Veteran for an examination with a physician with appropriate expertise to address the current severity of his hypertension. The examiner should review the virtual folder in connection with the examination. The examiner should measure the Veteran’s diastolic and systolic pressure, and also discuss the Veteran’s need for medication to control his hypertension. The examiner should indicate whether during any period since September 1, 2008 his diastolic pressure has been predominantly 110 or more, predominantly 120 or more, or predominantly 130 or more; and, whether systolic pressure has been predominantly 200 or more. Consideration should be given to the Veteran’s November 2019 blood pressure readings. Eric S. Leboff Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M.W. Kreindler, 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.