Citation Nr: 21023953 Decision Date: 04/21/21 Archive Date: 04/21/21 DOCKET NO. 12-31 253A DATE: April 21, 2021 ORDER Entitlement to an initial rating higher than 20 percent for a left shoulder impingement syndrome is denied. FINDING OF FACT Throughout the initial rating period on appeal, the Veteran’s non-dominant left shoulder disability manifested by pain, limitation of motion most nearly approximated by limitation of motion to shoulder level, recurrent dislocations with frequent episodes and guarding only at shoulder level, but without fibrous union of the humerus, nonunion of the humerus, loss of head of the humerus, or ankylosis. CONCLUSION OF LAW The criteria for an initial rating higher than 20 percent for a left shoulder disability are not met or approximated. 38 U.S.C. §§ 1155, 5107, (2012); 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5201, 5202 (2020). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from June to November 2002, from March 2003 to August 2004, and from May 2007 to June 2008. He also had several periods of active duty for training (ACDUTRA). This appeal stems from a June 2011 rating decision, which granted service connection for impingement syndrome of the left shoulder. In June 2016 and April 2018, the Board remanded the claim for further development. Subsequently, in a February 2020 rating decision, the RO increased the Veteran rating to 20 percent for the entire initial rating period on appeal. In April 2020, the Board remanded the claim for the RO to reschedule the Veteran for a VA examination as directed by the Board in April 2018. Subsequently, in a January 2021 rating decision, the RO granted a separate 20 percent rating for impairment of the left scapulohumeral joint, effective January 22, 2021. The case has since returned to the Board for further appellate review. Initial Rating – Applicable Laws and Regulations Disability evaluations are determined by comparing a veteran’s present symptoms with the criteria set forth in the VA Schedule for Rating Disabilities, which is based upon average impairment in earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. When a question arises as to which of two ratings applies under a particular diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt is resolved in favor of the Veteran. 38 C.F.R. § 4.3. A disability rating may require re-evaluation in accordance with changes in a veteran’s condition. Thus, it is essential that the disability be considered in the context of the entire recorded history when determining the level of current impairment. See 38 C.F.R. § 4.1. When a claimant is awarded service connection and assigned an initial disability rating, separate disability ratings may be assigned for separate periods of time in accordance with the facts found. Where the veteran is appealing the rating for an already established service-connected condition, her present level of disability is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (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. Hart v. Mansfield, 21 Vet. App. 505 (2007). Left Shoulder – Rating Criteria The Veteran is right-hand dominant. His left (minor) shoulder is rated as 20 percent disabling for the entire initial period on appeal pursuant to DC 5201. Beginning January 22, 2021, the Veteran is in receipt of a separate 20 percent rating pursuant to DC 5202. Under DC 5201, 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 major extremity. Where motion is limited to 25 degrees from the side, a 30 percent rating is warranted for the minor extremity. 38 C.F.R. § 4.71a, DC 5201. Under Diagnostic Code 5202, infrequent episodes of recurrent dislocation of the humerus at the scapulohumeral joint with guarding of movement only at the shoulder level warrants a 20 percent rating. Frequent episodes of recurrent dislocation of the humerus at the scapulohumeral joint with guarding of all arm movements also warrants a 20 percent rating for the non-dominant arm. Normal range of motion of the shoulder is flexion from 0 to 180 degrees, abduction from 0 to 180 degrees, and internal and external rotation from 0 to 90 degrees. 38 C.F.R. § 4.71a, Plate I. When evaluating musculoskeletal disabilities based on limitation of motion, 38 C.F.R. § 4.40 requires consideration of functional loss caused by pain or other factors listed in that section that could occur during flare-ups or after repeated use and, therefore, not be reflected on range-of-motion testing. 38 C.F.R. § 4.45 requires consideration also be given to less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement. See DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011). Nonetheless, even when the background factors listed in § 4.40 or 4.45 are relevant when evaluating a disability, the rating is assigned based on the extent to which motion is limited, pursuant to 38 C.F.R. § 4.71a (musculoskeletal system) or § 4.73 (muscle injury); a separate or higher rating under § 4.40 or 4.45 itself is not appropriate. See Thompson v. McDonald, 815 F.3d 781, 785 (Fed. Cir. 2016) (“[I]t is clear that the guidance of § 4.40 is intended to be used in understanding the nature of the veteran’s disability, after which a rating is determined based on the § 4.71a [or 4.73] criteria.”). The evaluation of the same disability under various diagnoses, known as pyramiding, is generally to be avoided. 38 C.F.R. § 4.14. The critical element in permitting the assignment of several ratings under various diagnostic codes is that none of the symptomatology for any one of the disabilities is duplicative or overlapping with the symptomatology of the other disability. See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994). Of note, the rating criteria pertaining to DCs 5201 and 5202 were revised effective February 7, 2021. However, as these DCs do not materially change the outcome of the decision, and have been integrated into the decision, without prejudice to the Veteran, as the changes are only clarifications of the existing code in terms of degrees for the arm placement, the February 7, 2021 effective revisions do not require further discussion. Left Shoulder – Rating Analysis After review of all the evidence, lay and medical, the Board finds that a rating higher than 20 percent for the service-connected left shoulder disability is not warranted pursuant to DC 5201. However, the Board finds that a separate 20 percent rating pursuant to DC 5202 is warranted for the entire initial rating period on appeal prior to January 22, 2021. In February 2009, the Veteran underwent a VA general medical examination, at which time the examiner rendered a diagnosis of impingement syndrome of the left shoulder. The Veteran reported that since service he has felt tightness and a constant aching in the shoulder with sharper pain during movement and a shock-like feeling down his left arm and into his fingertips. He further reported grinding pain with movement, weakness, and morning stiffness. He added that the shoulder gave way but denied having fatiguability of the shoulder because he tries to avoid repetitive use. The Veteran reported having flare-ups in the previous two weeks, which was described as increased pain once or twice a week, which lasted anywhere from 2 days to 2 weeks and was usually precipitated by lifting something heavy. On physical examination, the examiner noted that the left shoulder was “high riding” in comparison to the right shoulder. There was no deformity, deviation, or muscle atrophy. There was tenderness over the anterior cruciate ligament (ACL) and over the insertion of the deltoid muscle. There was no laxity of the shoulder. Range of motion testing of the left shoulder revealed flexion to 180 degrees with pain; abduction to 160 degrees with pain; external rotation to 90 degrees with pain; and, internal rotation to 80 degrees with pain. The pain was evidenced by guarding of the shoulder joint and facial grimacing. The Veteran also had slight scapular winging during range of motion testing. There was no additional loss of function or range of motion after repetitive use testing. X-rays of the left shoulder showed no evidence of fracture, dislocation, or osseous mass lesion. Muscle strength testing and reflex and sensory examinations were normal. According to a February 2009 VA treatment record, there was mild questionable tenderness in the Veteran’s left rotator cuff tendons. The Veteran underwent a left shoulder x-ray, which showed that the bones and joints of the left shoulder were intact without evidence of fracture, dislocation, or osseous mass lesion. The impression included degenerative joint disease and possible posttraumatic arthritis of the left shoulder. According to a June 2009 VA treatment record, the Veteran reported a history of left shoulder pain on moving the joints. There was restricted abduction of the left shoulder that caused pain but with normal contour and no crepitus. The assessment included left shoulder arthralgia. The examiner noted that x-rays were normal. A September 2009 VA treatment record noted an impression of an intact rotator cuff tendon, chronic posterior glenoid fracture with tears of the overlying posterior labrum, a superior labrum anterior and posterior (SLAP) tear of the superior labrum, and degeneration and a possible tear of the anterior labrum. During an October 2009 DRO hearing, the Veteran testified that at times his left shoulder pain was so severe that he could not take off his shirt. According to April and December 2010 VA treatment records, the Veteran reported left shoulder pain with decreased range of motion especially with increased resistance. The Veteran felt that his shoulder was “separating” and “popping” on range of motion testing. There was tenderness to touch of the bicep tendon. Muscle strength testing was normal with pain. On physical examination, the examiner range of motion of the left shoulder revealed flexion to 180 degrees, abduction to 160 degrees, external rotation to 180 degrees, and internal rotation to 55 degrees. In March 2011, the Veteran underwent an additional compensation examination, at which time the examiner confirmed a diagnosis of impingement syndrome of the left shoulder. The Veteran reported symptoms of weakness, stiffness, swelling, giving way, lack of endurance, deformity, tenderness, and pain. The Veteran denied heat, redness, locking, fatigability, drainage, effusion, subluxation and dislocation. He further reported having flare-ups as often as once a day, occurring spontaneously, and lasting two days, during which time the pain was described as 7 out of 10 in severity. Functional impairment was described as inability to sleep on the left side due to pain and limitation of motion of the joint. On physical examination, the examiner noted tenderness and guarding of movement in the Veteran’s left shoulder. There was no evidence of edema, instability, abnormal movement, effusion, weakness, redness, heat, deformity, malalignment, or drainage. There was no evidence of subluxation. Range of motion of the left shoulder revealed flexion to 125 degrees, abduction to 130 degrees, external rotation to 70 degrees, and internal rotation to 70 degrees. After repetitive use testing range of motion showed flexion to 130 degrees, abduction to 130 degrees, external rotation to 70 degrees, and internal rotation to 70 degrees. Joint function was not additionally limited by pain, fatigue, weakness, lack of endurance or incoordination after repetitive use. X-rays of the left shoulder were within normal limits. There was no ankylosis. According to August 2011 VA treatment records, the Veteran reported left shoulder pain. On physical examination, the medical professional noted left shoulder pain with forward flexion, tenderness to palpation over AC, and no apprehension. The assessment was left shoulder pain with labral tear and AC pain on examination. An MRI showed anterior and posterior labral pathology. In August 2013, it was noted that the Veteran’s left shoulder were diminished with questionable crepitus. In December 2013, the Veteran reported significant left shoulder pain. On examination there was mild crepitus. Subsequent records continued to show complaints of left shoulder pain. According to July 2018 VA treatment records, there was full range of motion with crepitus. In January 2021, the Veteran underwent an additional compensation examination, at which time the examiner confirmed a diagnosis of impingement syndrome of the left shoulder. The Veteran reported having limited range of motion and painful movement. He took Ibuprofen for treatment daily with TENS unit on weekends. Flare-ups were described as increased pain with movement, which occurred daily and lasted for twenty-four hours. The severity of the pain was described as 7 out of 10. Functional loss/impairment was described as limited range of motion and pain. Upon physical examination, range of motion of the left shoulder revealed flexion to 145 degrees, abduction to 130 degrees, and external and internal rotation to 65 degrees. The examiner indicated that range of motion itself contributed to a functional loss due to inability to work over head and limited range of motion. Pain was noted on examination and caused functional loss. There was objective evidence of tenderness to palpitation over the medial and lateral shoulder that was 7 out of 10 in severity. There was evidence of pain with weight bearing and crepitus. There was no additional loss of function or range of motion after repetitive use testing. The examiner noted that the Veteran was not examined after repetitive use over time or during flare-ups but that the examination report was consistent with the Veteran’s statements describing functional loss under these conditions. The examiner estimated that after repetitive use/during flare-ups, range of motion would cause no change in flexion and abduction but decrease external and internal rotation to 50 degrees. Muscle strength testing showed active movement against gravity (3/5) for forward flexion and active movement against some resistance (4/5) on abduction. The examiner indicated that the reduction was due to the claimed condition. There was no evidence of muscle atrophy. There was no ankylosis. There was no rotator cuff condition. There was instability and history of mechanical symptoms. There was also history of recurrent dislocations with frequent episodes and guarding on movement only at shoulder level. Crank apprehension and relocation test were positive. There was no AC joint condition or any other impairment of the clavicle or scapula. There was tenderness to palpation of the AC joint and cross-body adduction test was positive. There was no evidence of flail shoulder, false flail shoulder, or fibrous union of the humerus. There was also no evidence of malunion of the humerus with moderate or marked deformity. The Veteran used no assistive devices. Based on the foregoing, a rating higher than 20 percent for a left shoulder disability is not warranted pursuant to DC 5201. Notably, the evidence did not show limitation of motion of the left shoulder to 25 degrees from side or midway between side and shoulder level to warrant a 30 percent rating. Specifically, the Board acknowledged the Veteran’s subjective reports of left shoulder flare-ups and functional impairment after repeated use over a period of time; however, the record did not show that the Veteran’s reports of flare-ups and functional impairment after repeated use was so significant as to meet or approximate the criteria for the next-higher rating; i.e., limitation of motion to 25 degrees or midway between side and shoulder level. Again, the Veteran range of motion, at worse, revealed flexion to 125 degrees and abduction to 130 degrees, which does not more nearly approximate the criteria for a 30 percent rating. Furthermore, while the Board will not disturb the already assigned separate ratings pursuant to DC 5202, even if the Board is to resolve all doubt in the Veteran’s favor in finding that he had recurrent dislocations with frequent episodes and guarding of movement only at shoulder level for the entire initial rating period on appeal, separate ratings are not permissible. In this regard, it would be pyramiding to assign a separate 20 percent rating under Diagnostic Code 5202 in addition to the already assigned 20 percent rating under Diagnostic Code 5201 because a dislocation also results in pain, weakness, and limited motion, the symptoms of which are already accounted for in the rating under Diagnostic Code 5201. Thus, the assignment of two separate ratings in this case would compensate the Veteran twice for the same symptomatology. This would result in pyramiding, contrary to the provisions of 38 C.F.R. § 4.14. Additionally, as there is no evidence of malunion, nonunion, loose motion, or ankylosis of the shoulder, or other impairment of the humerus not discussed above, the Diagnostic Codes pertaining to such impairments are not applicable. 38 C.F.R. § 4.71a, Diagnostic Codes 5200, 5202, 5203. Therefore, since the preponderance of the evidence is against the assignment of a rating higher than 20 percent for a left shoulder disability for the entire initial rating period on appeal, the benefit of the doubt rule is not applicable, and the claim must be denied. See 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. Finally, neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366, 69-70 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). Specifically, although the Veteran filed a claim for a TDIU in 2014, he specifically indicated that he could not work due to his service-connected PTSD. Moreover, the most recent VA examination confirmed that the Veteran was still employed at the post office and despite some difficulties and missed work as a result of his left shoulder disability, he continued to work full time. A. Yaffe Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. J. Rogers, Associate 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.