Citation Nr: 21015094 Decision Date: 03/16/21 Archive Date: 03/16/21 DOCKET NO. 16-03 930 DATE: March 16, 2021 ORDER Evaluation of left shoulder calcified tendonitis and arthritis, status-post partial bicep rupture surgical repair, (recurrent dislocation) (non-dominant side), in excess of 20 percent is denied. Evaluation of left shoulder calcified tendonitis and arthritis, status-post partial bicep rupture surgical repair, (painful limited motion) (non-dominant side), in excess of 20 percent is denied. An evaluation of 10 percent, but no higher, for a left shoulder scar is granted. REMANDED Entitlement to a total disability rating for individual unemployability (TDIU) is remanded. FINDINGS OF FACT 1. The Veteran's left shoulder, at worst, was limited to 30 degrees of abduction, midway between side and shoulder level. 2. The Veteran experiences frequent dislocations and guarding of the left shoulder. Fibrous union is not demonstrated. 3. The Veteran’s left shoulder scar is painful, but stable and measures less than 39 sq cm. No additional limitation of function is demonstrated. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 20 percent for instability of the left shoulder are not met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.7, 4.71a, Diagnostic Code (DC) 5202. 2. The criteria for entitlement to a rating in excess of 20 percent for left shoulder strain, limitation of motion are not met. 38 U.S.C. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 4.7, 4.71a, Diagnostic Code 5201. 3. With resolution of reasonable doubt in the Veteran’s favor, the criteria for a 10 percent rating for a left shoulder scar have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.21, 4.118, Diagnostic Codes 7801-7805. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from November 1970 to September 1972. The shoulder ratings were remanded for further development in November 2018. The development has been requested and the matter returned to the Board for further appellate review. Increased Ratings 1. Evaluation of left shoulder calcified tendonitis and arthritis, status-post partial bicep rupture surgical repair, (recurrent dislocation) (non-dominant side), in excess of 20 percent 2. Evaluation of left shoulder calcified tendonitis and arthritis, status-post partial bicep rupture surgical repair, (painful limited motion) (non-dominant side), in excess of 20 percent Disability ratings 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 their residual conditions in civil occupations. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. VA has a duty to acknowledge and consider all regulations that are potentially applicable through the assertions and issues raised in the record, and to explain the reasons and bases for its conclusions. 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. The Board will consider whether separate ratings may be assigned for separate periods of time based on facts found, a practice known as “staged ratings,” whether it is an initial rating case or not. Fenderson v. West,12 Vet. App. 119, 126-27 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). The Board has reviewed the entire record but will only discuss the evidence necessary to explain its decision. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record but does not have to discuss each piece of evidence); see Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the Veteran).When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall resolve reasonable doubt in favor of the claimant. 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 4.3; Gilbert, 1 Vet. App. at 49. Throughout the relevant rating period, the Veteran’s service-connected left shoulder disability has been rated variably under 38 C.F.R. § 4.71a, Diagnostic Code 5201, based on limitation of motion of the arm; and 38 C.F.R. § 4.71a, Diagnostic Code 5202, based on recurrent dislocation of the scapulohumeral joint. Those diagnostic codes provide ratings for separate disabilities, and the simultaneous award of separate ratings under those diagnostic codes does not constitute impermissible pyramiding. See 38 C.F.R. § 4.14; Esteban v. Brown, 6 Vet. App. 259 (1994). Disability of the musculoskeletal system is primarily the inability, due to damage or infection in parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination and endurance. Functional loss may be due to the absence or deformity of structures or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by the visible behavior in undertaking the motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. 38 C.F.R. § 4.40. With respect to joints in particular, the factors of disability reside in reductions of normal excursion of movements in different planes. Inquiry will be directed to more or less than normal movement, weakened movement, excess fatigability, incoordination, pain on movement, swelling, deformity or atrophy of disuse. 38 C.F.R. § 4.45. The intent of the Rating Schedule is to recognize 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. Diagnostic Code 5201 provides for limitation of motion for the minor arm to shoulder level or to midway between side and shoulder level at 20 percent, and to 25 degrees from side at 30 percent. (The Veteran is right handed.) Normal range of motion for the shoulder is flexion (forward elevation) from 0 degrees to 180 degrees. See 38 C.F.R. § 4.71, Plate I. Under Diagnostic Code 5202, recurrent dislocation of the humerus at the scapulohumeral joint with infrequent episodes and guarding of movement only at shoulder level warrants a 20 percent rating for the minor side. 38 C.F.R. § 4.71a, Diagnostic Code 5202. Recurrent dislocation with frequent episodes and guarding of all arm movements warrants a 20 percent rating. Fibrous union of the humerus warrants a 40 percent rating in the minor extremity. Nonunion of the humerus (false fail joint) warrants a 50 percent rating. The Veteran was afforded a VA examination in October 2013. The examiner noted diagnoses of status post-operative left shoulder dislocation with residual scar and loss of motion, partial tear/rupture of medical biceps, and calcified tendonitis shoulder, postoperative. The Veteran reported pain daily and flare ups, that render him unable to use his arm or shoulder due to pain. Range of motion testing of the left shoulder showed flexion to 65 degrees with pain at 35 degrees and abduction to 55 degrees with pain at 30 degrees. The Veteran was able to perform repetitive-use testing and was limited to 45 degrees of flexion and abduction. Functional loss was due to pain on movement, weakened movement, excess fatiguability, incoordination, and less movement than normal. He had localized tenderness and pain on palpation and guarding of the left shoulder. Muscle strength testing shoulder active movement against some resistance for forward flexion. There was no ankylosis. Regarding rotator cuff conditions, the Veteran was unable to perform the Hawkins’ impingement test, empty-can test, external rotation test, lift-off subscapularis tests, and crank apprehension and relocation test. There was a history of mechanical symptoms on the left, as well as a history of recurrent dislocations and guarding of all movements. The Veteran had a dislocation of the clavicle that affected range of motion and caused tenderness. A cross-body adduction test was negative. There was no loss of head, nonunion, fibrous union, or malunion of the humerus. Regarding impact on employment, the examiner opined no overhead lifting, carrying, pushing or pulling with the affected shoulder. The VA examiner also noted that the Veteran had left shoulder replacement surgery in 1974 and twice in 2010 and experiences chronic residuals, consisting of severe painful motion and/or weakness as a result. The Veteran also reported popping, locking, freezing up, and a weak grip. In a November 2013 rating decision, a 20 percent rating was continued for the Veteran's limitation of motion of the left shoulder. A separate 20 percent rating was granted for recurrent dislocations of the left shoulder and a noncompensable rating was granted for the related scars. The Veteran underwent a VA examination of his left shoulder in November 2019. The examiner noted diagnoses of rotator cuff tendonitis, glenohumeral joint osteoarthritis, degenerative arthritis, and calcified tendonitis of the left shoulder with partial bicep rupture. The Veteran complained of constant pain at a 9 out of 10, with daily muscle spasms exacerbated by activity. He experiences daily flare-ups and functionally, he cannot lift with his left arm or hold anything without dropping it. The functioning of the Veteran's left arm has decreased due to the limitations of causing pain and weakness. Range of motion of the left shoulder showed flexion to 160 degrees, abduction to 170 degrees, external rotation to 75 degrees, and internal rotation to 80 degrees, with no evidence of painful motion, tenderness, or pain on palpation. The Veteran was able to perform repetitive use testing, with an additional 5 degrees loss in all ranges due to pain and weakness. Although the examination was not conducted during a flare up or after repeated use over time, the examiner reviewed the Veteran’s records and considered his subjective complaints and objective exam findings and opined that he would be additionally limited to 140 degrees of flexion, 160 degrees of abduction, and 70 degrees of external and internal rotation. There was objective evidence of pain on passive range of motion testing and in non-weight bearing status on the left but not on the right. Factors of disability included weakened movement. Muscle strength testing showed reduction of strength in the left shoulder with no atrophy. Regarding rotator cuff conditions, the Veteran’s Hawkins’ impingement test, empty-can test, external rotation test, and lift-off subscapularis test were all positive. No instability, dislocation, or labral pathology were suspected and there was no history of mechanical symptoms. The Veteran had a dislocation of the clavicle that affected range of motion and caused tenderness. A cross-body adduction test was negative. There was no loss of head, nonunion, fibrous union, or malunion of the humerus. Regarding impact on employment, the examiner opined that the Veteran lost 0 to 1 week of work in the prior 12 months and that he was unable to lift or carry object with his left side. Upon review of the record, the evidence shows the Veteran is entitled to a 20 percent rating for his left shoulder dislocations under Diagnostic Code 5202 for the entire period on appeal. The evidence shows that the Veteran consistently had frequent dislocations and guarding but there is no evidence of fibrous union, nonunion, or loss of head of the humerus for higher ratings. Regarding limitation of motion, the Veteran’s abduction of the left arm was limited, at worst, to 30 degrees, midway between side and shoulder level warranting a 20 percent rating under Diagnostic Code 5201. The record does not show limitation to less than 25 degrees, as required for a higher rating. Therefore, a rating in excess of 20 percent cannot be granted. The Board has considered the Veteran’s lay statements of pain, functional loss, limitations after repetitive use, and after flare-ups in the presently assigned ratings. Therefore, the Veteran’s claims for ratings in excess of the currently assigned 20 percent for dislocations under Diagnostic Code 5202 and limitation of motion under Diagnostic Code 5201 are denied. 3. Evaluation of left shoulder scars, in excess of the current non-compensable (0 percent) evaluation. The Veteran's left shoulder scar is rating under Diagnostic Code 7805. Under the amended criteria, Diagnostic Code 7801 provides that burn scar(s) or scar(s) due to other causes, not of the head, face, or neck, that are deep and nonlinear in an area or areas of at least 6 square inches (39 sq. cm.) but less than 12 square inches (77 sq. cm.) warrant a 10 percent rating; areas of at least 12 square inches (77sq. cm) but less than 72 square inches (465 sq. cm.) warrant a 20 percent rating; areas of at least 72 square inches (465 sq. cm.) but less than 144 square inches (929 sq. cm.) warrant a 30 percent rating; and areas of 144 square inches (929 sq. cm.) or greater warrant a 40 percent rating. Under Diagnostic Code 7802, burn scar(s) or scar(s) due to other causes, not of the head, face, or neck, that is superficial and nonlinear in an area or areas of 144 square inches (929 sq. cm.) or greater warrant a 10 percent evaluation. Note (2) under that code provides that if multiple qualifying scars are present, assign a separate evaluation for each affected extremity based on the total area of the qualifying scars that affect that extremity. Under Diagnostic Code 7804, one or two scars that are unstable or painful warrant a 10 percent evaluation; three or four scars that are unstable or painful warrant a 20 percent evaluation; and five or more scars that are unstable or painful warrant a 30 percent rating. Diagnostic Code 7805 provides that other scars (including linear scars) and other effects of scars evaluated under Diagnostic Codes 7800, 7801, 7802, and 7804 require the evaluation of any disabling effect(s) not considered in a rating provided under Diagnostic Codes 7800-04 under an appropriate diagnostic code. 38 C.F.R. §§ 4.118, Diagnostic Code 7801-7805. The October 2013 VA examiner noted four scars of his upper shoulder. The length and width of the first scar is 12 cm x1 cm anterior left shoulder and 3 scars 1cm x 0.4cm status arthroscopy. The scars were not painful or unstable and did not total greater than 39 sq cm. At the November 2019 VA examination, the examiner noted a scar on the left anterior shoulder measuring 13.1cm x 1.1cm. The scar was noted to be painful, but stable and not due to burns. The examiner commented that although four scars were previously noted related to surgical repair, the present examination showed one scar. Based on the most recent evidence of a painful scar, the Board concludes that with resolution of reasonable doubt in the Veteran’s favor, a 10 percent rating can be assigned. He has 1 painful scar, warranting the 10 percent rating. There is, however, no report of instability or other functional impairment which would warrant a higher rating under any of the applicable codes. As such a 10 percent rating, but no higher is warranted. REASONS FOR REMAND Entitlement to a total disability rating based upon individual unemployability is remanded. The Veteran meets the schedular criteria for a TDIU. In addition to his service-connected shoulder disorder, the Veteran is service-connected for major depressive disorder, rating at 70 percent. The record reveals that since the last supplemental statement of the case records concerning the service connected psychiatric disorder have been received. These include a private report as well as VA records that have not been considered regarding this claim. Further, there are indications that a current psychiatric examination has been, or will be scheduled. That information should also be obtained and considered if the examination was conducted. The matter is REMANDED for the following action: 1. Obtain all relevant treatment records and associate them with the claims file. 2. Obtain the results of the pending VA psychiatric examination, if conducted.   3. Readjudicate the claim for TDIU upon review and receipt of all evidence, including that added since the most recent supplemental statement of the case. MICHAEL D. LYON Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Shana Z. Siesser, 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.