Citation Nr: 21022085 Decision Date: 04/14/21 Archive Date: 04/14/21 DOCKET NO. 17-16 323 DATE: April 14, 2021 ORDER Entitlement to an evaluation in excess of 20 percent, excluding the period where a temporary total evaluation based on the need for convalescence was in effect, for a left shoulder disability under Diagnostic Code (DC) 5201 is denied. Entitlement to an evaluation in excess of 20 percent for a left shoulder disability under DC 5202 is denied. FINDINGS OF FACT 1. The left shoulder is the Veteran’s minor (non-dominant) extremity. 2. The Veteran’s left shoulder disability is manifested by limitation of motion to more than 25 degrees from the side. 3. The Veteran’s left shoulder disability is not manifested by fibrous union of the humerus. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 20 percent for left shoulder disability limitation of motion are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, DC 5201. 2. The criteria for a rating in excess of 20 percent for left shoulder humerus impairment are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, DC 5202. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from February 2006 to July 2006 and September 2008 to October 2011, including in Iraq. This matter is before the Board of Veterans’ Appeals (Board) on appeal from a November 2015 rating decision of a Department of Veteran’s Affairs (VA) Regional Office (RO) that granted service connection for left shoulder labral tear including superior labral anterior/posterior lesion and assigned an initial 10 percent rating effective April 20, 2014 under DC 5201-5019. The Veteran timely appealed the initial evaluation. In a February 2017 rating decision issued in conjunction with the statement of the case (SOC), the Veteran’s initial rating was increased to 20 percent disabling and the DC was changed to DC 5201 effective April 20, 2014. The Veteran was also awarded a 100 percent total disability rating based on the need for convalescence from July 14, 2016 to August 31, 2016. See 38 C.F.R. § 4.30. On September 1, 2016 the Veteran’s 20 percent disability rating under DC 5201 resumed. In August 2018 the Board remanded the issue of entitlement to an initial evaluation in excess of 20 percent for the left shoulder disability for further development. The Board Remand included the issue of service connection for posttraumatic stress disorder (PTSD) for the issuance of an SOC which the RO provided in September 2020. However, a VA Form 9 substantive appeal to the Board was never received from the Veteran. As a result, the issue of service connection for PTSD is not currently before the Board and will not be discussed further in this decision. In a February 2021 rating decision, while on remand, the RO granted a separate rating for a left shoulder humerus impairment under DC 5202 effective April 20, 2014. As this was granted in conjunction with the disability on appeal, entitlement to a rating in excess of 20 percent for a left shoulder humerus impairment is also currently before the Board. Increased Ratings Disability evaluations are determined by the application of the facts presented in 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. In evaluating the severity of a particular disability, it is essential to consider its history. 38 C.F.R. § 4.1; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary importance. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). That said, higher evaluations may be assigned for separate periods based on the facts found during the appeal period. See Fenderson v. West, 12 Vet. App. 119, 126 (1999). This practice is known as staged ratings. Pyramiding (the evaluation of the same disability, or the same manifestation of a disability, under different DCs) is to be avoided when evaluating a Veteran's service-connected disability. 38 C.F.R. § 4.14. However, it is possible for a Veteran to have separate and distinct manifestations from the same injury which would permit rating under several DCs; the critical element in permitting the assignment of several evaluations under various DCs 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). In evaluating disabilities of the musculoskeletal system, it is necessary to consider, along with the schedular criteria, functional loss due to flare-ups of pain, fatigability, incoordination, pain on movement, and weakness. DeLuca v. Brown, 8 Vet. App. 202 (1995). Functional loss may be due to due to pain, supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion. 38 C.F.R. § 4.40. Weakened movement, excess fatigability, incoordination, pain on movement, swelling, deformity, or atrophy of disuse are relevant factors in regard to joint disability. 38 C.F.R. § 4.45. If the evidence for and against a claim is in equipoise, the claim will be granted. 38 C.F.R. § 4.3. A claim will be denied only if the preponderance of the evidence is against the claim. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 56 (1990). Any reasonable doubt regarding the degree of disability should be resolved in favor of the claimant. 38 C.F.R. § 4.3. Where there is a question as to which of two evaluations shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for the evaluation. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. During the pendency of the appeal, the rating criteria for evaluating musculoskeletal disabilities under 38 C.F.R. § 4.71a were amended effective February 7, 2021. 85 Fed. Reg. 230 (Nov. 30, 2020). These amendments revised select DCs “to ensure that this portion of the rating schedule uses current medical terminology and provides detailed and updated criteria for the evaluation of musculoskeletal disabilities.” Id. The DC for the musculoskeletal system was changed. See Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 76456, 76463 (Nov. 30, 2020) (to be codified at 38 C.F.R. § 4.71a). However, the new criteria are not relevant in this case because no evidence has been received after the February 7, 2021 effective date. Therefore, the Board will only apply the criteria that was in place prior to February 7, 2021. 1. Entitlement to an evaluation in excess of 20 percent for a left shoulder labral tear under DC 5201. 2. Entitlement to an evaluation in excess of 20 percent for a humerus impairment, left shoulder under DC 5202. The Veteran contends that his service-connected left shoulder disability, to include labral tear and humerus impairment, is more severe than what his current disability ratings reflect. During the period from July 14, 2016 to August 31, 2016 the Veteran was receiving the highest possible rating allowed for convalescence due to left shoulder surgery. See 38 C.F.R. § 4.30. All ROM measurements taken during that time are contemplated in the temporary 100 percent rating. As a result, the period of temporary total disability will not be discussed further in this decision. For the remainder of the appeal period, the Veteran has been assigned two 20 percent ratings under DC 5201 (based on the shoulder’s limitation of motion) and DC 5202 (based on recurrent dislocation of the scapulohumeral joint with infrequent episodes of guarding of movement). 38 C.F.R. § 4.71a, DC 5201. The Veteran is right-hand dominant. See VA examination, dated November 2015. As such, the non-dominant (minor) upper extremity ratings will be considered for the left shoulder disability. 38 C.F.R. § 4.71a, DC 5201. Under DC 5201, a 20 percent disability rating is warranted if range of motion (ROM) of the minor arm is limited to shoulder level OR midway between the side and the shoulder. A maximum 30 percent disability rating is warranted if the minor shoulder's ROM is limited to 25 degrees from the side. Under DC 5202, a 20 percent rating for the minor arm requires: malunion of the humerus with moderate or marked deformity; OR recurrent dislocation of the humerus at scapulohumeral joint with infrequent episodes and guarding of movement only at shoulder level OR guarding of all arm movements. In order to receive the next highest possible rating under DC 5202 of 40 percent, the record would need to establish the Veteran had a fibrous union of the humerus in the minor extremity. In summary, the only way the Veteran may be awarded a higher rating is to show the left shoulder’s ROM (abduction or flexion) is limited to 25 degrees from the side and/or that there is a fibrous union of the humerus. The evidence does not demonstrate these limitations during the appeal period. The Veteran’s VA outpatient records show consistent complaints of pain on motion of the left shoulder beginning in June 2014. In April 2015 the VA provider indicated the Veteran did not have any deformities nor edema but did note the Veteran’s ROM was limited to due to pain. In July 2015 the Veteran’s ROM was measured to be flexion at 150 degrees. In March 2016 the provider again noted pain through the Veteran’s ROM but then stated the Veteran had a full ROM. The Veteran underwent a VA examination in November 2015 to determine the nature and severity of his left shoulder disability. The Veteran demonstrated all normal ROM testing. However, the examiner did note there was pain on the examination that caused functional loss. The Veteran’s ROM was measured to be flexion 0 to 180 degrees and abduction 0 to 180 degrees. The Veteran’s repetitive use over time assessment was not completed as the examiner stated without conducting the examination directly after repetitive use, any assertion made would be speculative. Additionally, the Veteran reported having flare ups of his left shoulder condition, but the examiner could not report on the impact of flare ups without resorting to “mere speculation.” The examiner stated that these examinations should be done during the time of a flare up or after repeated use to accurately depict the limitations of this Veteran. The Veteran’s shoulder strength was normal with no ankylosis present but a “rotator cuff condition” was suspected. The examiner also noted that the Veteran was guarding movement only at shoulder level. In July 2016 the Veteran had surgery to repair his left shoulder condition. As stated above he was awarded a total disability rating on July 7, 2016 through August 31, 2016 during his recovery time. See 38 C.F.R. § 4.30. The Veteran had an additional VA examination in October 2020. The Veteran again reported flare ups that increase his pain “with overhead movements.” This causes him difficulty in dressing and undressing, lifting objects with his shoulders, and driving. The Veteran’s left shoulder ROM was measured to be flexion 0 to 150 degrees and abduction 0 to 150 degrees. The examiner also noted that the Veteran had functional loss due to pain. The Veteran was not examined directly after repetitive use over time, but the examiner noted there was additional restrictions to his ROM. The examiner described the Veteran’s estimated ROM after reparative use and during a flare up to be flexion 0 to 145 degrees and abduction 0 to 145 degrees. His left shoulder strength was normal, with no reduction in strength noted. Additionally, no muscle atrophy, ankylosis, arthritis, nor impairment to the humerus was noted. The examiner did note that there was a history of recurrent dislocation of the glenohumeral joint and that the Veteran was guarding the movement of his left shoulder at shoulder level. The examiner concluded that there was pain on passive ROM and when the joint was used for non-weight bearing activities for both shoulders. Finally, the Veteran was also given a VA examination in January 2021. The Veteran reported that his pain had increased with “left shoulder motion during activities of daily living.” This included “overhead activities,” lifting, and carrying items. The Veteran’s initial ROM was measured to be flexion 0 to 90 degrees and abduction 0 to 90 degrees. The examiner again noted the Veteran’s pain on motion of the left shoulder that limits his overhead activities and causes functional loss. However, the examiner also noted there was no crepitus nor pain with weight bearing. The Veteran’s ROM was recorded again after repetitive use testing. The examiner recorded his measurements to be flexion 0 to 90 degrees and abduction 0 to 80 degrees. Furthermore, while the Veteran reported having weekly flare ups in his left shoulder that last a few hours to a few days, but the examination did not occur during a flare up. The examiner estimated the Veteran’s ROM in his left shoulder during a flare up to be flexion 0 to 90 degrees and abduction 0 to 80 degrees. The Veteran’s left shoulder muscle strength was normal, and no atrophy was noted. No ankylosis, crepitus, shoulder instability, dislocation, or labral pathology was suspected. Additionally, no issues regarding his clavicle, scapula, acromioclavicular joint, nor sternoclavicular joint was reported. The examiner did not report a humerus condition or arthritis in either shoulder. As outlined above, the record is silent for objective evidence that the Veteran’s left shoulder ROM was limited to 25 degrees or less. The lowest ROM recorded was 90 degrees flexion (shoulder height) and 80 degrees abduction (slightly below shoulder height). 38 C.F.R. § 4.71, Plate I. Even the Veteran’s lay evidence describing flare-ups refers to pain with overhead movement, indicating he can reach overhead. Thus, the Veteran’s own competent and credible reports of limitations due to pain and on flare-ups indicate that he can move his arm more than 25 degrees from his side. Having considered all of the evidence, the Board finds that the Veteran's symptomatology does not meet the criteria for a 30 percent disability rating in the left shoulder under DC 5201. As for DC 5202, the record does not show a fibrous union of the humerus. There is no indication from the Veteran’s outpatient records, November 2015, October 2020, nor January 2021 VA examinations of a fibrous union of the humerus in the left shoulder. The Veteran himself has not asserted that there is fibrous union of the humerus. As a result, entitlement to a disability rating in excess of 20 percent under DC 5202 is not warranted. The Board has considered the Veteran’s reports of flare-ups, and that they cause him to be unable to participate in sports, limit his overhead abilities, and his ability to dress and undress. The Veteran is competent to attest to his symptomatology, and to his limitations. See Barr v. Nicholson, 21 Vet. App. 303 (2007). As discussed above, the Veteran’s lay evidence supports a rating no higher than 20 percent, even with pain and during flare-ups, as it indicates ROM greater than 25 degrees from the side. Any error flowing from the November 2015 examiner’s statement that it would be mere speculation to opine as to any ROM loss in the Veteran’s shoulder ROM due to flare-ups is cured by the multiple accounts from the Veteran of his decreased ROM during flare-ups, including the fact that pain increases “with overhead movements.” Given the very narrow range to which ROM must be limited for a higher rating in the case, the Board finds there is sufficient evidence of the limitations during flare-ups to conclude that even during flare-ups the arm is not limited to 25 degrees from the side. The Board has considered alternative DCs and finds that there is no alternative DC by which the Veteran may be awarded a higher disability rating. 38 C.F.R. § 4.71a, DCs 5200, 5203. There is no evidence that the Veteran has ankylosis of the scapulohumeral joint, as required by DC 5200. 38 C.F.R. § 4.71a, DC 5200. The record is silent for evidence of impairment of the clavicle or scapula. 38 C.F.R. § 4.71a, DC 5203. As such, the Board finds that there is no alternative DC by which to assign the Veteran's shoulder disability a higher schedular rating. Furthermore, given the record before it, the Board finds that evidence in this case does not reach the level of equipoise. See 38 U.S.C. § 5107(a) ("[A] claimant has the responsibility to present and support a claim for benefits . . . ."); Fagan v. Shinseki, 573 F.3d 1282, 1286 (Fed. Cir. 2009) (stating that the claimant has the burden to "present and support a claim for benefits" and noting that the benefit of the doubt standard in section 5107(b) is not applicable based on pure speculation or remote possibility); Skoczen v. Shinseki, 564 F.3d 1319, 1323-29 (Fed. Cir. 2009) (interpreting section 5107(a) to obligate a claimant to provide an evidentiary basis for his or her benefits claim, consistent with VA's duty to assist, and recognizing that "[w]hether submitted by the claimant or VA . . . the evidence must rise to the requisite level set forth in section 5107(b)," requiring an approximate balance of positive and negative evidence regarding any issue material to the determination). In light of the above, the Board denies ratings in excess of 20 percent under both DC 5201 and 5202, excluding the period where a temporary total rating was awarded from July 7, 2016 to August 31, 2016. LAURA E. COLLINS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Associate Counsel, S. Conti 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.