Citation Nr: 21024104 Decision Date: 04/22/21 Archive Date: 04/22/21 DOCKET NO. 16-16 010 DATE: April 22, 2021 ORDER Entitlement to an increased rating in excess of 20 percent for a right shoulder disability is denied. FINDING OF FACT The Veteran’s right shoulder disability does not cause the functional equivalent of a limitation of motion of 45 degrees or less. CONCLUSION OF LAW The criteria for an increased rating in excess of 20 percent for a right shoulder disability have not been met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5201. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from August 1972 to August 1974 and from February 2003 to May 2004. This matter comes before the Board of Veterans’ Appeals (Board) on appeal of an August 2014 rating decision. In September 2018, the Board remanded the Veteran’s claim for additional development. It has returned for adjudication. Increased Rating Disability evaluations are determined by evaluating the extent to which a Veteran’s service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, including employment, by comparing his or her symptomatology with the criteria set forth in the Schedule for Rating Disabilities. The percentage ratings represent as far as can practicably be determined the average impairment in earning capacity resulting from such diseases and injuries and the residual conditions in civilian occupations. Generally, the degree of disabilities specified are considered adequate to compensate for considerable loss of working time from exacerbation or illness proportionate to the severity of the several grades of disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities and the criteria for specific ratings. If two disability evaluations are potentially applicable, the higher evaluation will be assigned to the disability picture that more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability will be resolved in favor of the Veteran. 38 C.F.R. § 4.3. However, the evaluation of the same disability under various diagnoses, known as pyramiding, is to be avoided. 38 C.F.R. § 4.14. Where entitlement to compensation has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, staged ratings are appropriate for an increased rating claim if the factual findings show distinct time periods where the service-connected disability exhibited symptoms that would warrant different ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007). Entitlement to a disability rating in excess of 20 percent for a right shoulder disability The Veteran contends that he is entitled to an evaluation greater than twenty percent for a right shoulder disability. In his June 2014 statement he stated that his shoulder prevented him from playing certain sports with his kids and caused pain when working around the house. Sometimes it would cause pain so significant that it would be difficult to perform tasks. The Veteran is currently assigned a 20 percent rating for his service-connected right (dominant) shoulder disability under Diagnostic Code 5201. He was rated at 10 percent disabled prior to January 28, 2011, but that period is not on appeal. Diagnostic Code 5201 provides that limitation of motion of the arm at the shoulder level (90 degrees) is rated 20 percent for the major shoulder; limitation of motion of the arm midway between the side and shoulder level (45 degrees) is rated as 30 percent for the major shoulder; limitation of motion of the arm to 25 degrees from the side is rated as 40 percent for the major shoulder. 38 C.F.R. § 4.71a. The evidence of record establishes that the Veteran is right hand dominant; therefore, his right shoulder is considered his major shoulder. Normal range of motion for the shoulder are flexion (forward elevation) from 0 degrees to 180 degrees, abduction from 0 degrees to 180 degrees, external rotation from 0 degrees to 90 degrees, and internal rotation from 0 degrees to 90 degrees. 38 C.F.R. § 4.71, Plate I. VA most recently examined the Veteran in September 2018. The examiner found abnormal motion of 0 to 90 degrees for both flexion and abduction. The examiner reported pain and functional loss over time and with flare ups, which the examiner opined could be described in terms of a range of motion of 0 to 75 degrees flexion and abduction. The examiner also described difficulties in lifting more than 10 pounds overhead and difficulties with prolonged arm extension such as during driving as functional limitations. The limitations found during the examination are significant and match with the statements that the Veteran made in June 2014 that he had trouble with sports and housework. A higher rating, however, requires an even more significant limitation of 45 degrees. The examiner opined that even accounting for the Veteran’s pain and lack of endurance the functional equivalent range of motion was 75 degrees. This is more akin to the 90-degree rating both numerically and functionally. The Veteran was previously afforded a VA examination in March 2018. It recorded range of motion (ROM) testing as follows: Flexion 0 to 110 degrees; abduction 0 to 110 degrees; external rotation 0 to 80 degrees; and internal rotation of 0 to 80 degrees. As these measurements do not benefit the Veteran they do not need to be addressed further. A review of the remainder of the record does not show any range of motion testing or other evidence supporting a limitation of motion of the arm at midway between side and shoulder level (45 degrees) or lower such that a 30 percent rating or higher would be appropriate. See 38 C.F.R. § 4.71a, Code 5201. The Board has considered other applicable diagnostic codes. The Veteran, however, does not have upper extremity ankylosis, a rotator cuff condition, instability, clavicle, scapula, acromioclavicular joint or sternoclavicular joint, or nonunion or malunion of the humerus or other conditions, signs or symptoms that warrant a higher rating than 20 percent. P. Saindon Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Black, 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.