Citation Nr: 21022917 Decision Date: 04/19/21 Archive Date: 04/19/21 DOCKET NO. 16-35 343A DATE: April 19, 2021 ORDER Entitlement to initial disability ratings in excess of 20 percent prior to December 11, 2020 and 40 percent thereafter for service-connected recurrent impingement syndrome of the right shoulder is denied. FINDINGS OF FACT 1. From the date of service connection, the Veteran’s recurrent impingement syndrome of the right shoulder has, at worst, been manifested by limitation of motion at shoulder level; there is no evidence of limitation of motion midway between side and shoulder level, or 25 degrees from the side. 2. From December 11, 2020, the Veteran’s service-connected recurrent impingement syndrome of the right shoulder has been manifested by disability equating to abduction limited to 25 degrees with pain and lack of endurance due to flare-ups. CONCLUSIONS OF LAW 1. The criteria for an initial rating in excess of 20 percent prior to December 11, 2020 for service-connected recurrent impingement syndrome of the right shoulder have not been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.71a, Diagnostic Code 5201. 2. From December 11, 2020, the criteria for an initial rating in excess of 40 percent for service-connected recurrent impingement syndrome of the right shoulder have not been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.71a, Diagnostic Code 5201. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from October 1975 to September 1979, June 1983 to September 1983, and from June 1986 to September 1986. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a January 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida, which granted service connection for recurrent impingement syndrome of the right shoulder and assigned an initial 10 percent rating from September 13, 2010. In July 2018, the Veteran presented sworn testimony during a videoconference hearing, which was chaired by the undersigned Veterans Law Judge. A transcript of the hearing has been associated with the Veteran’s VA claims file. In a March 2019 decision, the Board increased the assigned initial rating for service-connected recurrent impingement syndrome of the right shoulder to 20 percent, but no higher, from the date of service connection. The Board also determined that a temporary total disability was warranted for the Veteran’s service-connected right shoulder disability based upon surgical treatment necessitating a period of convalescence from June 26, 2017 to September 27, 2017. The March 2019 Board decision also denied a compensable initial rating for service-connected surgical scar of the right shoulder. The Veteran appealed the Board’s decision to the United States Court of Appeals for Veterans Claims (Court). In January 2020, the Court granted a November 2019 Joint Motion for Remand (Joint Motion), which vacated and remanded the part of the Board’s March 2019 decision that denied an initial rating in excess of 20 percent for recurrent impingement syndrome of the right shoulder. In a June 2020 Board decision, the claim was remanded for further evidentiary development. A January 2021 rating decision increased the assigned rating for the service-connected right shoulder disability to 40 percent from December 11, 2020. The Veteran has not expressed satisfaction with the increased initial rating; this case thus remains in appellate status. See AB v. Brown, 6 Vet. App. 35, 38 (1993) (when a veteran is not granted the maximum benefit allowable under the VA Schedule for Rating Disabilities, the pending appeal as to that issue is not abrogated). As will be discussed below, a review of the record reflects substantial compliance with the Board's Remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998). A supplemental statement of the case (SSOC) was issued in January 2021. The Veteran’s VA claims file has been returned to the Board for further appellate proceedings. 1. Entitlement to initial disability ratings in excess of 20 percent prior to December 11, 2020 and 40 percent thereafter for service-connected recurrent impingement syndrome of the right shoulder. Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities. 38 C.F.R. Part 4. The Board determines the extent to which a veteran’s service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, and the assigned rating is based, as far as practicable, upon the average impairment of earning capacity in civil occupations. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.10. Where there is a question as to which of two ratings should be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. In general, when an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). When the appeal arises from an initial assigned rating, consideration must be given to whether staged ratings should be assigned to reflect entitlement to a higher rating at any point during the pendency of the claim. Fenderson v. West, 12 Vet. App. 119 (1999). However, staged ratings are also appropriate in any increased rating claim in which distinct time periods with different ratable symptoms can be identified. Hart v. Mansfield, 21 Vet. App. 505 (2007). Here, analysis in this decision has therefore been undertaken with consideration of the possibility that different ratings may be warranted for different time periods as to the pending claim. In all cases, the Board must determine the value of all evidence submitted, including lay and medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). The evaluation of evidence generally involves a three-step inquiry. First, the Board must determine whether the evidence comes from a “competent” source. The Board must then determine if the evidence is credible, or worthy of belief. Barr, at 308 (observing that once evidence is determined to be competent, the Board must determine whether such evidence is also credible). The third step of this inquiry requires the Board to weigh the probative value of the proffered evidence in light of the entirety of the record. In this function, the Board may properly consider internal inconsistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant. Caluza v. Brown, 7 Vet. App. 498, 511-12 (1995), aff’d, 78 F.3d 604 (Fed. Cir. 1996) (per curiam) (table); see Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997) (holding that the Board has the “authority to discount the weight and probative value of evidence in light of its inherent characteristics in its relationship to other items of evidence”). The Board has considered all evidence of record as it bears on the issues before it. See 38 U.S.C. § 7104(a) (“Decisions of the Board shall be based on the entire record in the proceeding and upon consideration of all evidence and material of record”); 38 U.S.C. § 5107(b) (“Secretary shall consider all information and lay and medical evidence of record in a case”). Although the Board has an obligation to provide reasons and bases supporting these decisions, there is no need to discuss, in detail, the extensive evidence of record. The Federal Circuit has held that the Board must review the entire record, but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Therefore, the Board will summarize the relevant evidence where appropriate, and the Board’s analysis below will focus specifically on what the evidence shows, or fails to show, as to the Veteran’s appeal. Here, the Veteran is assigned a 20 percent evaluation prior to December 11, 2020 and 40 percent thereafter for recurrent impingement syndrome of the right shoulder pursuant to Diagnostic Code (DC) 5201 (arm, limitation of motion of). Limitation of motion of the arm is evaluated under DC 5201. Ratings assigned pursuant to this code may differ depending on whether the extremity at issue is considered the major (dominant) extremity or the minor (non-dominant) extremity. As the Veteran in the case at hand is right-handed (documented by VA examinations in October 2010, May 2015, March 2018, and November 2020), his service-connected right shoulder disability affects his major extremity and will be evaluated accordingly. 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 diagnostic codes “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. If a law or regulation changes during the course of a claim or an appeal, the version more favorable to the Veteran will apply, to the extent permitted by any stated effective date in the amendment in question. 38 U.S.C. § 5110(g). If the revised version of the regulation is more favorable, the implementation of that regulation under 38 U.S.C. § 5110(g) can be no earlier than the effective date of that change. If the former version is more favorable, VA can apply the earlier version of the regulation for the period prior to, and from, the effective date of the change. 38 U.S.C. § 5110. Therefore, the Board will consider the Veteran’s claim under the old criteria prior to February 7, 2021 and both the old and revised rating criteria from February 7, 2021. The criteria that is more favorable to the Veteran will be applied. Prior to the regulatory change DC 5201 indicated that limitation of motion of the minor extremity at the shoulder level warrants a 20 percent rating. Limitation of motion midway between the side and shoulder level warrants a 20 percent rating for the minor extremity. Where motion is limited to 25 degrees from the side, a 30 percent rating is warranted for the minority extremity. 38 C.F.R. § 4.71a, DC 5201. As of February 7, 2021, under the amended criteria, the DC 5201 indicated that limitation of motion of the shoulder should be rated as follows: Flexion and/or abduction limited to 25° from side warrants a 40 percent rating in the major extremity and a 30 percent rating in the minor extremity; Midway between side and shoulder level (flexion and/or abduction limited to 45°) warrants a 30 percent rating in the major extremity and a 20 percent rating in the minor extremity; At shoulder level (flexion and/or abduction limited to 90°) warrants a 20 percent rating in the major extremity and a 20 percent rating in the minor extremity. For reference, standard ranges of shoulder motion are forward elevation (flexion) and abduction each from 0 to 180 degrees (with shoulder level at 90 degrees); and external and internal rotation each to 90 degrees. See 38 C.F.R. § 4.71, Plate I. Under DC 5203, malunion or nonunion without loose movement of the clavicle or scapula are to be rated as 10 percent disabling for the major arm. A 20 percent rating is granted for nonunion with loose movement or for dislocation of the major arm. This code indicates that impairment of the scapula or clavicle may also be rated on impairment of function of the contiguous joint. In this matter, the Veteran asserts entitlement to ratings in excess of 20 percent prior to December 11, 2020 and 40 percent thereafter for recurrent impingement syndrome of the right shoulder. For the reasons set for below, the Board finds that higher initial ratings are not warranted from the date of service connection. The Veteran asserted a claim of entitlement to service connection for a right shoulder disability in September 2010. He was afforded a VA examination in October 2010 at which time the examiner confirmed a diagnosis of recurrent impingement syndrome of the right shoulder. He underwent an open rotator cuff repair and subacromial decompression surgery in 2003. He complained of subsequent pain with lifting and repetitive use. Range of motion testing revealed flexion to 150 degrees with pain, abduction to 175 degrees with pain, and external rotation to 20 degrees. There was no additional limitation of motion on repetitive use testing. The examiner noted that the Veteran does have functional loss of the right shoulder; specifically, weakened movement, excess fatigability, and pain on movement. The Veteran exhibited localized tenderness or pain on palpation. There was no guarding. Muscle strength was 4/5 on abduction and 5/5 on flexion. There was no ankylosis. The Hawkins’ Impingement test was negative, the Empty Can test was positive, the External Rotation/Infraspinatus test was positive, and the Lift-Off Subscapular test was positive. There were no mechanical symptoms of the right shoulder such as clicking or catching. The Veteran reported no history of recurrent dislocation. The examiner stated that there was no acromioclavicular (AC) joint abnormality. There was evidence of degenerative arthritis in the right shoulder. The examiner stated that the Veteran’s right shoulder disability does impact his ability to work; specifically, no heavy lifting or prolonged overhead use. In the January 2014 notice of disagreement (NOD), the Veteran reported that he is unable to lift his arm to shoulder level and is unable to perform repetitive motions due to fatigue. The Veteran underwent an acromioplasty, exploration of rotator cuff, and excision of distal clavicle of the right shoulder in August 2014. He was afforded a VA examination in May 2015 to assess the severity of right shoulder disability. The examiner stated that the Veteran’s right shoulder disability causes functional impairment; namely, difficulty with lifting the right arm and holding with the right hand. Range of motion testing revealed flexion to 110 degrees, abduction to 100 degrees, external rotation to 70 degrees, and internal rotation to 70 degrees. The examiner noted that there was a significant discrepancy between the Veteran’s range of motion noted upon VA examination and the range of motion during his November 2014 orthopedic follow-up examination, which documented nearly normal range of motion. The Veteran denied flare-ups of right shoulder symptoms. There was no objective evidence of localized tenderness or pain on palpation. There was no crepitus of the right shoulder. The examiner stated that “[i]t would be resorting to mere speculation to provide an opinion on whether pain, weakness, fatigability, or incoordination could significantly limit functional ability during flare-ups, or when the joint is used repeatedly over a period of time.” There was no reduction in muscle strength, no muscle strength, and no ankylosis of the right shoulder. The Hawkins’ Impingement, Empty Can, External Rotation/Infraspinatus Strength, and the Lift-Off Subscapularis tests were all positive. The examiner indicated that there was AC joint involvement. The examiner also reported that there was a clavicle or scapular condition affecting range of motion of the shoulder joint. The examiner reported that the Veteran has experienced decreased range of motion of the right shoulder following his August 2014 surgery. The examiner reported that the Veteran’s right shoulder disability does impact his daily life and occupation. Specifically, “[t]he Veteran’s ability to perform heavy physical activities requiring heavy lifting is affect[ed]. Sedentary occupational activities are not affect[ed].” Range of motion testing of the right shoulder conducted in February 2016 showed flexion to 160 degrees, abduction to 90 degrees, and external rotation to 60 degrees. See the VA treatment records dated in February 2016. VA treatment records dated in April 2016 noted that the Veteran has painful active and passive range of motion of the right shoulder. The impression was rotator cuff tear. Private treatment records dated in June 2017 showed a massive recurrent rotator cuff tear of the right shoulder. In June 2017, the Veteran underwent a right shoulder arthroscopy with superior capsular reconstruction. Private treatment records dated in September 2017 noted that the Veteran is “under active orthopedic care for a complex [right] shoulder reconstruction. It is estimated that it will take him six months to recover and rehabilitate from his surgery.” VA treatment records dated in September 2017 and January 2018 showed that the Veteran has nearly full range of motion of the right shoulder; he lacked some lateral rotation but had full flexion and abduction. VA treatment records dated in February 2018 noted that the Veteran reports pain and loss of motion following his June 2017 surgery, particularly with overhead reaching and lifting. He reported that his pain level is 5/10 increasing to 7/10. Range of motion testing showed flexion to 93 degrees, extension to 35 degrees, abduction to 65 degrees, internal rotation to 60 degrees, and external rotation to 27 degrees. A separate February 2018 treatment record indicated that the Veteran had no focal tenderness in his right shoulder. Range of motion testing revealed flexion to 160 degrees, extension to 50 degrees, abduction to 170 degrees, external rotation to 40 degrees, and internal rotation to 60 degrees. The Veteran was afforded a VA examination in March 2018 at which time the examiner documented a continuing diagnosis of recurrent impingement syndrome of the right shoulder, status-post superior capsular reconstruction. The Veteran endorsed on-going limited range of motion of the shoulder. He treats his right shoulder symptoms with 200 mg. of Ibuprofen and is currently undergoing physical therapy. He denied flare-ups of right shoulder symptoms. Range of motion testing revealed flexion to 90 degrees, abduction to 90 degrees, external rotation to 70 degrees, and internal rotation to 70 degrees. There was pain throughout all ranges of motion. There is no objective evidence of pain on passive range of motion testing. There was no additional limitation of motion upon repetitive testing. The examiner indicated that, with respect to whether pain, weakness, and fatigability limit the Veteran’s functional ability with repeated use over time, “[t]here is no conceptual or empirical basis for making such a determination without directly observing function under these conditions.” The Hawkins’ Impingement, Empty Can, External Rotation/Infraspinatus Strength, and the Lift-Off Subscapularis tests were all positive. There was no evidence of muscle atrophy; muscle strength was 4/5. There was no evidence of instability, dislocation, or labral pathology. The examiner stated that there was pain noted upon examination, but it does not result in functional loss. The examiner indicated that the Veteran’s right shoulder disability does impact his ability to perform occupational tasks. The Veteran’s current occupation is security and he reports two to four weeks of work-time lost in the last 12 months due to his right shoulder. He also stated that he cannot lift over his head and cannot lift greater than five pounds. At the July 2018 Board hearing, the Veteran testified that he experiences constant right shoulder pain with difficulty lifting and throwing. See the Board hearing transcript, pgs. 3-6. He stated that he is unable to lift his arm without pain. Id. at pg. 6. He sees an occupational therapist to help treat his right shoulder symptoms. Id. at pg. 8. Pursuant to the June 2020 Board Remand, the Veteran was afforded a VA examination in November 2020 at which time the examiner confirmed a continuing diagnosis of recurrent impingement of the right shoulder. The examiner reported that the Veteran had undergone surgery for his right shoulder in 2002, 2014, and 2017. The Veteran reported that his right shoulder disability has worsened over the years with current symptoms of pain and stiffness. The Veteran described moderate flare-ups of right shoulder symptoms, which last one to two days. The flare-ups are precipitated by physical activity and alleviated by rest. Functional loss of the right shoulder was manifested by shoulder pain, stiffness, limited range of motion, and difficulty with heavy lifting. Range of motion testing documented flexion to 55 degrees, abduction to 50 degrees, external rotation to 50 degrees, and internal rotation to 50 degrees. Pain was noted on examination and causes functional loss. There was pain with weight-bearing. The examiner reported there was no objective evidence of crepitus. Repetitive use testing showed flexion to 45 degrees, abduction to 40 degrees, external rotation to 40 degrees, and internal rotation to 40 degrees. Pain and lack of endurance cause functional loss on repetitive use testing, with repeated use over time, and during flare-ups. The examiner estimated the following range of motion measurements with repeated use over time: flexion to 35 degrees, abduction to 30 degrees, external rotation to 40 degrees, and internal rotation to 40 degrees. The examiner reported that during periods of flare-ups, the Veteran’s range of motion is additionally limited to flexion at 25 degrees, abduction to 20 degrees, external rotation to 35 degrees, and internal rotation to 35 degrees. Muscle strength was 4/5 in the right shoulder and there was no muscle atrophy. The examiner reported there was no ankylosis. A rotator cuff condition was suspected. There was evidence of pain on passive range of motion, as well as with nonweight-bearing. The Veteran was unable to perform the Hawkins’ Impingement Test or the Empty Can Test. The External Rotation Infraspinatus Strength Test and the Lift-Off Subscapularis Test were negative. There was no evidence of joint instability, dislocation, or labral pathology. Impairment of the clavicle, scapula, or acromioclavicular joint were not suspected. There was no impairment of the humerus. The examiner stated that the Veteran’s right shoulder disability does impact his ability to work. Specifically, the Veteran has shoulder pain, stiffness, limited range of motion, difficulty with heavy lifting 5 to 10 pounds due to pain, and cannot lift his arm over his head. The examiner additionally reported that the Veteran is limited in lifting heavy objects for prolonged time period due to the pain, but there are no restrictions on sedentary occupational tasks. For the period prior to December 11, 2020, the evidence shows that, at worst, range of motion was reflected by flexion to 90 degrees; abduction to 65 degrees, internal rotation to 60 degrees, and external rotation to 27 degrees. At no time prior to December 11, 2020 has the objective evidence demonstrated limitation of motion at midway between side and shoulder level, or 25 degrees from the side. Thus, a rating in excess of 20 percent is not warranted under the pertinent rating criteria. 38 C.F.R. § 4.71a, DC 5201. As indicated above, the Veteran is assigned a 40 percent rating for the service-connected right shoulder disability from December 11, 2020. See the rating decision dated January 2021. The Board recognizes that 40 percent is the maximum allowable rating under DC 5201 based on limitation of motion in the major shoulder. See 38 C.F.R. § 4.71a, DC 5201. The Board has also considered other Diagnostic Codes which may be assigned for disabilities to the shoulder based on ankylosis of the shoulder joint or an anatomical deformity such as an impairment of the humerus, clavicle or scapula. 38 C.F.R. § 4.71a, DCs 5200, 5202, 5203. On review, the evidence has not demonstrated, and neither the Veteran nor his representative have contended, that any of the evidence of record supports a rating under one of these other Diagnostic Codes. There have been no reports of ankylosis in the Veteran’s right shoulder, and there is no evidence of a disability to the humerus, the clavicle, or the scapula. 38 C.F.R. § 4.71a, Diagnostic Codes 5200, 5202, 5203. As such, the Board finds no basis to grant a rating based on one of these other Diagnostic Codes. The Board notes that higher ratings are not warranted under the revised criteria in effect from February 7, 2021. 85 Fed. Reg. 230 (Nov. 30, 2020). Specifically, the applicable range of motion measurements contemplated under the revised criteria do not warrant ratings in excess of 20 percent prior to December 11, 2020 or 40 percent thereafter. With respect to both time frames at issue, the Board notes that the Veteran has reported significant pain including flare-ups and with repeated use as a result of his right shoulder disability. See 38 C.F.R. §§ 4.40, 4.45; see also DeLuca v. Brown, 8 Vet. App. 202, 204-07 (1996). These symptoms were considered by the 20 percent and 40 percent assigned ratings. Critically, as detailed above, there is no evidence to corroborate additional functional limitations such as would warrant evaluations in excess of 20 percent prior to December 11, 2020 and 40 percent thereafter. While the Board is required to consider the effect of the Veteran’s pain when making a rating determination and has done so in this case, the Rating Schedule does not provide for a separate rating for pain. Rather, it provides guidance for determining ratings under other diagnostic codes assessing musculoskeletal function. Spurgeon v. Brown, 10 Vet. App. 194 (1997). In this case, the Veteran is already being adequately compensated for pain and the resulting functional loss. Therefore, ratings in excess of those assigned are not warranted under the schedular criteria. Accordingly, the probative evidence of record does not support a finding that ratings in excess of 20 percent prior to December 11, 2020 or 40 percent thereafter are warranted for the Veteran’s service-connected recurrent impingement syndrome of the right shoulder. The preponderance of the evidence is against the Veteran’s claim for higher initial ratings. Consequently, the benefit-of-the-doubt rule does not apply. 38 U.S.C. § 5107(b); Gilbert, 1 Vet. App. at 55. K. Conner Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K. K. Buckley, 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.