Citation Nr: 21012409 Decision Date: 03/04/21 Archive Date: 03/04/21 DOCKET NO. 10-20 369 DATE: March 4, 2021 ORDER A separate disability rating for an injury to Muscle Group IV as related to the Veteran’s service-connected right shoulder disability is denied. A rating in excess of 20 percent for limitation of motion of the right shoulder since March 1, 2013, is denied. FINDINGS OF FACT 1. The Veteran does not have separately ratable injury of Muscle Group IV owing to his service-connected right shoulder disability. 2. Since March 1, 2013, the range of motion of his right shoulder has been limited to shoulder level (meaning to 90 degrees).   CONCLUSIONS OF LAW 1. The criteria are not met for entitlement to a separate compensable rating for muscle injury related to the Veteran’s service-connected right shoulder disability. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.159, 4.3, 4.7, 4.71a, Diagnostic Code (DC) 5304. 2. Since March 1, 2013, the criteria have not been met for entitlement to a rating greater than 20 percent for his right shoulder disability based on the extent of his range of motion. 38 U.S.C. §§ 1155, 5103, 5107; 38 C.F.R. §§ 3.102, 3.159, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, DC 5201. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active military service from August 1981 to November 1992. 1. A separate rating for injury to Muscle Group IV as related to the Veteran’s service-connected right shoulder disability is denied. In February 2018, the U. S. Court of Appeals for Veterans Claims (Court/CAVC) issued a Memorandum Decision directing the Board to consider whether a separate rating is warranted for the Veteran’s right shoulder disability pursuant to DC 5304, which contemplates ratings for injuries to Muscle Group IV. The Court pointed to an October 2009 VA examination when the Veteran reported experiencing pain throughout abduction and had decreased internal shoulder rotation. The Board consequently since has remanded this claim back to the Agency of Original Jurisdiction (AOJ), i.e., back to the local Regional Office (RO) to obtain needed VA medical opinions concerning this possible additional impairment. But on November 2019 VA examination, on remand, the examiner concluded that there was no separate and distinct injury of the muscle(s). There were no separate symptoms not already accounted for by the diagnosis of rotator cuff injury.   This examiner found that a separate rating for a muscle injury would be considered pyramiding (see 38 C.F.R. § 4.14) – meaning rating the same symptoms twice. In October 2020, a VA examiner found the same; a review of all the records pertinent to this claim showed the Veteran did not have a separately ratable muscle injury owing to his right shoulder disability. His symptoms were subsumed completely by the diagnosis of right shoulder rotator cuff tear and degenerative arthritis of the right shoulder. Given those VA examiners’ findings, the Board finds that the most probative evidence weighs heavily against assigning a separate rating under DC 5304. Plainly, the medical evidence does not support such a rating. Based on the medical opinions obtained specifically concerning this since the Court’s Memorandum Decision, the Board finds the Veteran’s right shoulder symptoms are accounted for by the current ratings under DC 5201, for limitation of motion, and under DC 5202, for impairment of the humerus. Review of the record supports the examiners’ conclusions. The Board finds no other muscular symptoms related to the right shoulder disability not already contemplated or encompassed by the currently assigned ratings, which account for functional loss – including owing to less movement than normal, weakness, and pain. See 38 C.F.R. §§ 4.40, 4.45, and 4.45. Therefore, this claim must be denied. 2. A rating greater than 20 percent for limitation of motion of the right shoulder since March 1, 2013, also is denied. Disability evaluations are determined by comparing the Veteran’s present symptomatology with the criteria set forth in the VA’s Schedule for Ratings Disabilities (Rating Schedule). 38 U.S.C.A. § 1155; 38 C.F.R. § Part 4. Higher ratings are assigned if the disability more nearly approximates the criteria for that rating; otherwise, the lower rating is assigned. 38 C.F.R. § 4.7. All reasonable doubt material to the determination is resolved in the Veteran’s favor. 38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 3.102, 4.3.   The medical evidence shows the Veteran is right-handed (right hand dominant). According to 38 C.F.R. § 4.71a, DC 5201, limitation of motion of the dominant arm at shoulder level (meaning at 90 degrees) warrants a 20 percent rating. Limitation of motion of this arm at midway between the side and shoulder level (so to 45 degrees) warrants a 30 percent rating. Id. See also 38 C.F.R. § 4.71, Plate I, and the revisions to the VA Rating Schedule as concerning musculoskeletal disabilities that recently took effect on February 7, 2021. The standardized description of joint measurements is provided in Plate I under 38 C.F.R. § 4.71. These descriptions indicate that normal forward elevation (flexion) of the shoulder is from 0 to 180 degrees, normal abduction of the shoulder is from 0 to 180 degrees, normal external rotation is from 0 to 90 degrees, and normal internal rotation is from 0 to 90 degrees. When considering these prescribed ranges, also the Veteran’s pain and its effect on his range of motion, the Board finds that a rating higher than 20 percent his right shoulder disability under DC 5201 since March 1, 2013, is not warranted. On January 2014 VA examination, flexion of the right shoulder was to 90 degrees, with painful motion beginning at 60 degrees, and abduction of the shoulder was to 90 degrees, with pain beginning at 80 degrees. Testing on repetitive motion showed that flexion and abduction continued to be to 90 degrees. There was no additional loss of limitation of motion of the shoulder. There was functional loss by way of less movement than normal, weakened movement, fatigability, incoordination, pain on movement, and swelling. See DeLuca v. Brown, 8 Vet. App. 202, 206 (1995). The examiner indicated additional loss of range of motion could not be ascertained because the Veteran’s primary disability was related to pain and loss of repetitive use rather than loss of range of motion. In that regard, he had reported having to stop using his right shoulder and rest after repetitive movements. A January 2018 private record shows full active and passive range of motion of the right shoulder.   On November 2019 VA examination, the Veteran reported having difficulty lifting objects above shoulder level, and that, after using his right shoulder, he experiences pain. Flexion of his right shoulder was to 100 degrees and abduction to 90 degrees. There was no indication of additional functional loss or loss of range of motion on repetitive testing. On repetitive testing, flexion of the shoulder was to 90 degrees, and abduction was to 90 degrees. The Board has duly considered the Veteran’s report of functional loss characterized by the need to cease movement of his right shoulder on repetitive use, as was also indicated during his VA examinations and highlighted by the February 2018 Memorandum Decision of the Veterans Court (CAVC). But, when taking into account this sort of functional loss, explained by the VA examiner as not greater loss of motion but loss of ability to complete repetitive use, a higher rating is not warranted. The examiner did not state that there was greater loss of motion of the shoulder during these occasions, and neither has the Veteran. Rather, he has explained that he must rest his shoulder after prolonged use of it. This does not equate to greater loss of motion under DC 5201. This conclusion is consistent with the record showing his report that, after repetitive use of this shoulder, he must stop movement due to his pain. However, repeat range of motion testing on VA examination and in the private treatment records does not demonstrate loss of range of motion to midway between his side and shoulder level – again, meaning to only 45 degree or less. In fact, records dated since the VA examination in 2014 show greater ability in terms of range of motion, and even during that 2014 VA examination the Veteran was able to lift his shoulder above midway to shoulder level before experiencing pain.   Mere pain, alone, does not constitute a functional loss under the VA regulations that evaluate disability based upon range-of-motion loss. Pain may cause a functional loss but does not, itself, constitute functional loss; rather, pain must affect some aspect of "the normal working movements of the body" such as "excursion, strength, speed, coordination, and endurance," in order to constitute functional loss. See Mitchell v. Shinseki, 25 Vet. App. 32, 33, 43 (2011). 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 also 38 C.F.R. § 4.59 requiring consideration of painful motion and Burton v. Shinseki, 25 Vet. App. 1 (2011), indicating to apply 38 C.F.R. § 4.59 even in cases that do not involve arthritis. But the Court also 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). Moreover, in Mitchell, the Court held that the evaluation of painful motion as limited motion only applies when limitation of motion is noncompensable (meaning 0-percent disabling) under the applicable diagnostic code. The Court further explained that, although painful motion is entitled to a minimum 10 percent rating under Lichtenfels v. Derwinski, 1 Vet. App. 484, 488 (1991), when read together with DC 5003 regarding arthritis, it does not follow that the maximum rating is warranted under the applicable DC pertaining to range of motion simply because pain is present throughout the range of motion. See id.   Accordingly, the totality of the evidence of record does not show range of motion of the Veteran’s right shoulder limited to 45 degrees or less from shoulder level (i.e., limited at least to midway between his side and shoulder level of 90 degrees) such that a rating higher than 20 percent would be warranted since March 1, 2013, even when considering his pain and consequent need to rest this shoulder after prolonged or repetitive movement of it. Accordingly, based on the VA examination findings and treatment records in the file, as well as his personal lay statements, the Board finds that a higher rating under DC 5201 is not warranted. KEITH W. ALLEN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board R. Erdheim 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.