Citation Nr: 21015945 Decision Date: 03/18/21 Archive Date: 03/18/21 DOCKET NO. 15-38 546 DATE: March 18, 2021 ORDER Entitlement to an increased rating in excess of 20 percent for glenoid tear, right shoulder is denied. FINDING OF FACT The Veteran’s right shoulder disability is manifested by painful motion and functional loss due to pain, fatigue, weakness, lack of endurance or incoordination. The right shoulder disorder did not manifest in limitation of range of motion of the right arm at or below the shoulder level. CONCLUSION OF LAW The criteria for a rating in excess of 20 percent for glenoid tear, right shoulder disability have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.27, 4.3, 4.40, 4.45, 4.59, 4.7, 4.71a, Diagnostic Codes 5201, 5019. This matter returns to the Board of Veterans’ Appeals (Board) after a July 2020 and March 2019 Board decisions remanded, for further development, an October 2013 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO). The Board finds that there was substantial compliance with the July 2020 remand directives. Therefore, the Board will adjudicate this matter on the merits under the legacy appeal system. Increased Rating Disability evaluations are determined by the application of the facts presented to VA’s Schedule for Rating Disabilities (Rating Schedule) at 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 civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 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 picture more nearly approximates the criteria for that rating. Otherwise the lower rating will be assigned. 38 C.F.R. § 4.7. Reasonable doubt will be resolved in the Veteran’s favor. 38 C.F.R. § 4.3. A veteran’s entire history is to be considered when making disability evaluations. See 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Where an increase in the level of a service-connected disability is at issue, the primary concern is the present level of disability. Francisco v. Brown, 7 Vet. App. 55 (1994). Staged ratings are appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007). 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. In Mitchell v. Shinseki, 25 Vet. App. 32 (2011), the Court held that, although pain may cause a functional loss, “pain itself does not rise to the level of functional loss as contemplated by VA regulations applicable to the musculoskeletal system.” Rather, pain may result in functional loss, but only if it limits the ability “to perform the normal working movements of the body with normal excursion, strength, speed, coordination, or endurance.” Id., quoting 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 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. In Burton v. Shinseki, 25 Vet. App. 1, 5 (2011), the Court found that, when 38 C.F.R. § 4.59 is raised by the claimant or reasonably raised by the record, even in non-arthritis contexts, the Board should address its applicability. The evaluation of the same disability under various diagnoses, known as pyramiding, is generally to be avoided. 38 C.F.R. § 4.14. Disabilities and injuries of the shoulder are evaluated under Diagnostic Codes 5200, 5201, 5202 and 5203. See 38 C.F.R. § 4.71 (a). 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, 4.71a. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from January 2006 to August 2006, June 2007 to September 2007, June 2008 to July 2009, and from April 2010 to May 2011. Entitlement to an increased rating in excess of 20 percent for right shoulder disability The Veteran contends that his glenoid tear, right shoulder (hereafter “right shoulder disability”) is entitled to a higher rating based on worsening, which is manifested by bursitis and numbness. See October 2013 Notice of Disagreement. The Veteran’s right shoulder disability is currently rated under Diagnostic Code 5201-5019. Diagnostic codes 5019 for bursitis is evaluated based on limitation of motion of the affected body part. In this case, bursitis is rated by analogy under arthritis based on Diagnostic Code 5201 for limitation of motion of the shoulder. Diagnostic Code 5201 warrants a 40 percent disabling rating when flexion and/or abduction is limited to 25 degrees from the side. A 30 percent disabling rating is warranted where flexion and/or abduction is limited at midway between the side and shoulder level, described as a 45-degree limitation of flexion and/or abduction. A 20 percent disabling, the lower compensable rating, is warranted where flexion and/or abduction is limited at shoulder level, described as a 90-degree limitation of flexion and/or abduction. 38 C.F.R. § 4.59 recites where there is objective evidence of actual painful, unstable, or malaligned joints, the Veteran is entitled to at least the minimum compensable rating for the joint. Bursitis is evaluated as a form of arthritis. The minimum compensable rating for the shoulder is 20 percent disabling. Turning to the evidence of record, the Veteran has appeared for two VA examinations of his right shoulder. The first in September 2013 and the latest examination in December 2019. The September 2013 VA examination found right shoulder range of motion (ROM) for flexion to be 180 degrees but painful at 155 degrees. Abduction limited to 170 degrees and painful at 85 degrees. External rotation limited to 80 degrees and painful at 40 degrees and internal rotation limited to 85 and painful at 75 degrees. The left shoulder was found to have full range of motion without pain for VA rating purposes. The examiner noted that right shoulder motion was affected by weakness, incoordination, painful motion and limitation of range of motion. The right shoulder had reduced muscle strength rated as 4 of 5 on abduction and forward flexion. There was no evidence of ankylosis. Empty-can test and external rotation/infraspinatus strength test were positive. Hawkins Impingement test, lift-off subscapularis test, cross-body adduction, and crank apprehension and relocation tests were all negative. There was no evidence of acromioclavicular (AC) joint condition or any other impairment of clavicle or scapula. The Veteran did report a history of mechanical clicking symptoms of the right shoulder. The Veteran did not report any flare-ups that impact his shoulder. There was no evidence of joint replacement or any other surgical procedures. The December 2019 examination found that the Veteran’s right shoulder condition had deteriorated as shown by reduced ranges of motion. The December 2019 examination found right shoulder ROM for flexion limited to 140 degrees with pain, weakness, and/or lack of coordination at 100 degrees flexion. Abduction, external and internal rotation are each limited to 90 with pain, weakness, and/or lack of coordination at 60 degrees for all three. Left shoulder ROM is noted as abnormal and therefore the right shoulder cannot be compared to the uninjured opposing joint. There is reduction on repetitive use testing. No evidence of pain on weight bearing or crepitus. There is mild tenderness on palpation of posterior of right shoulder. The examination results are medically consistent with the Veteran’s statements describing functional loss with repetitive use over time. Muscle strength is normal, rated as 5 of 5 for all ranges with no muscle atrophy or ankylosis. The right shoulder “Empty-can test” was positive for impingement, while all other tests were negative. The right shoulder is unstable with a history of mechanical symptoms, including clicking. No recurrent dislocation was noted, crank apprehension and relocation tests were negative. No clavicle, scapula, and acromioclavicular (AC) and sternoclavicular joints conditions noted. No impairment of the humerus, scars, or surgical procedures were noted. The December 2019 examination report noted that a December 2012 MR arthrogram and December 2019 imaging of the right shoulder are all negative for traumatic and degenerative arthritis. The December 2019 examiner noted that a 2012 MRI did not show glenoid labrum tear. The December 2019 examiner diagnosed the Veteran with right shoulder impingement syndrome and right rotator cuff tendonitis. The Veteran’s service treatment records show right shoulder rotator cuff tendonitis and right shoulder impingement. The December 2019 examiner noted that the current symptoms are more consistent with shoulder impingement syndrome and rotator cuff tendonitis than a glenoid tear that could not be located on any imaging. In August 2020, the VA obtained private medical records identified by the Veteran during the appeal. These records include a March 2013 evaluation of the Veteran’s right shoulder range of motion. The private examiner found that the Veteran had full forward elevation of 180 degrees, abduction of 90 degrees, external rotation to 90 degrees while abducted an internal rotation to T6 bilaterally. The private examiner did find painful crepitus in the right shoulder. However, the examiner did not note where painful range of motion began. As such, this examination is not adequate for rating purposes. The Board notes that imaging at the private examination showed the glenoid labrum to be intact without any evidence of tearing and well-maintained cartilage. The private examiner diagnosed the Veteran with shoulder bursitis in the subscapular region. As such, the findings of the private examination align with the October 2013 VA examination results. Therefore, the Board finds this information helpful in showing continuity of similar symptoms over the entire period on appeal. An October 2020 addendum opinion considered the prior VA examinations in light of the Veteran’s private records and found there to be no change in the Veteran’s right shoulder condition since the December 2019 examination. The Board accepts that the Veteran experienced on-going right shoulder pain. The Veteran is certainly competent to report unpleasant physical sensations. The Board also finds the Veteran’s reports of pain credible. See Layno v. Brown, 6 Vet. App. 465, 470 (1994). Nevertheless, determining the severity of a right shoulder disorder must be weighed with clinical observations. See Jandreau v. Nicholson, 492 F.3d at 372; Layno, supra. In this matter, the Board finds that the objective medical findings by skilled medical professionals to be more probative and more credible. As noted above, the December 2019 and September 2013 VA examiners objectively measured the Veteran’s ranges of motion to include where pain began. VA examination findings include painful motion but do not show limitation at the shoulder level. As noted above, the Veteran was assigned a 20 percent disability rating for right shoulder disorder under the minimum compensable joint provision in 38 C.F.R. § 4.59. The Board observes that this rating recognizes the Veteran’s painful motion of the right shoulder at shoulder level. See 38 C.F.R. § 4.59. To receive a higher rating under Diagnostic Code 5201 of 30 percent disabling, range of motion of the right arm would need to be limited to midway between the side and shoulder level, represented by flexion and/or abduction limitation of 45 degrees. The Board has considered other applicable diagnostic codes but find that a higher rating is not warranted under any other code. Therefore, the Board finds that the preponderance of evidence is against assigning a disability rating in excess of 20 percent for the Veteran’s right shoulder disorder for the entirely of the period on appeal. L. M. BARNARD Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Boushehri, Darjush M. 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.