Citation Nr: 21024273 Decision Date: 04/22/21 Archive Date: 04/22/21 DOCKET NO. 15-22 939 DATE: April 22, 2021 ORDER Entitlement to a disability rating in excess of 20 percent for left shoulder impingement syndrome is denied. FINDING OF FACT Throughout the appellate period, the Veteran’s left shoulder disability has not manifested as motion to 25 degrees or less from the side. CONCLUSION OF LAW The criteria for entitlement to a disability rating in excess of 20 percent for left shoulder impingement syndrome have not been met. 38 U.S.C. §§ 1155, 5107, 38 C.F.R. §§ 4.1 4.7, 4.21, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5201. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active duty service in the United States Army from February 2008 to August 2011. This case comes before the Board of Veteran’s Appeals (Board) on appeal from a December 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In November 2018, the Veteran had a Videoconference hearing before the undersigned Veterans Law Judge (VLJ). A transcript of that hearing is of record. During the pendency of the appeal, in a June 2020 rating decision, the RO granted service connection for left and right upper extremity neuroplegic disorder, which are full grants of the benefits sought on appeal. Therefore, the issue of service connection is no longer before the Board. During the pendency of the appeal, the RO granted an increased rating to 20 percent for left shoulder impingement syndrome effective for the entire period on appeal. Increased Rating Disability evaluations are determined by the application of the Schedule for Rating Disabilities, which assigns ratings based on the average impairment of earning capacity resulting from a service-connected disability. 38 U.S.C. § 1155; 38 C.F.R. Part 4. 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 required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3. Pertinent regulations do not require that all cases show all findings specified by the Rating Schedule, but that findings sufficiently characteristic to identify the disease and the resulting disability and, above all, coordination of rating with impairment of function will be expected in all cases. 38 C.F.R. § 4.21. In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the Veteran’s condition. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). Separate evaluations may be assigned for separate periods of time based on the facts found. In other words, the evaluations may be staged. Staged ratings are appropriate for any rating claim when the factual findings show distinct time periods during the appeal period where the service-connected disability exhibits symptoms that would warrant different ratings. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive and provide the reasons for its rejection of any material favorable to the claimant. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994). When considering whether lay evidence is competent, the Board must determine, on a case-by-case basis, whether a Veteran’s particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). A Veteran is competent to report symptoms because this requires only personal knowledge, not medical expertise, as it comes to him through his senses. See Layno, 6 Vet. App. 465, 469. Lay testimony is competent to establish the presence of observable symptomatology, where the determination is not medical in nature and is capable of lay observation. Barr v. Nicholson, 21 Vet. App. 303 (2007). The Veteran is seeking an increased rating in excess of 20 percent for his left shoulder disability. His left shoulder disability is rated under 38 C.F.R. § 4.71a, Diagnostic Code 5201. The evidence of record shows that the Veteran is right-handed, therefore his right arm is the major extremity and his left arm is the minor extremity. See 38 C.F.R. § 4.69. For VA purposes, normal range of arm motion is flexion 0 to 180 degrees; abduction 0 to 180 degrees; external rotation 0 to 90 degrees; and internal rotation 0 to 90 degrees. 38 C.F.R. § 4.71, Plate I. Pursuant to the rating criteria associated with Code 5201, arm, limitation of motion of, a 20 percent rating is assigned for limitation of motion of the minor arm at shoulder level or limitation of motion of the minor arm to midway between side and shoulder level. A higher rating of 30 percent is assigned for limitation of motion of the minor arm to 25 degrees from the side. Effective February 7, 2021, the criteria pertaining to the evaluation of musculoskeletal disabilities were revised. See 85 Fed. Reg. 76460 (November 30, 2020). The evaluations assigned in the present case were assigned effective prior to February 7, 2021, and the revised regulations do not provide an avenue to a higher evaluation for the service-connected lower back disability. The new criteria define midway between side and shoulder (45 degrees in flexion and/or abduction) and shoulder level (flexion and/or abduction to 90 degrees), but do not alter the ratings for those findings. Given the greater specificity of the amended criteria, the Board finds the older criteria to be more beneficial, and will apply them. In November 2012, the Veteran was afforded a VA examination. He was diagnosed with left shoulder impingement syndrome. The Veteran had left shoulder pain over the scapular area with a popping sensation. He noted that he had noises on movement of the shoulder. He was right hand dominant. He did not report any flare-ups of his shoulder. His initial range of motion (ROM) was 170 degrees for flexion with pain at 150 degrees, 170 degrees for abduction with pain at 110 degrees. He was able to perform repetitive use testing. There was no additional limitation in ROM with repetitive use testing. There was a functional loss/impairment described as less movement than normal and pain on movement. He had a normal muscle strength testing. He did not have ankylosis. He had a history of mechanical symptoms. He did not have a history of recurrent dislocation. The examiner opined that the Veteran’s condition impacted his ability to work. The examiner noted that the Veteran should refrain from overhead work if his shoulder was in pain. The examiner noted that aggravating activities should be avoided until symptoms had been relieved. A February 2014 private treatment note documented that the Veteran had 170 degrees active shoulder abduction. Private treatment records from February 2016 through October 2018 reflected treatment for complaints of left shoulder pain. In November 2018, the Veteran testified that after his surgery in 2014 he still had pain. He indicated that he received injections, but they did not work. He felt that the injection made the symptoms worse. He stated that he had more pain and less mobility. He indicated that it was recommended for him to have medical massage therapy or a chiropractor treatment. He indicated that he also had numbness in his shoulder. The Veteran indicated that he could not completely stretch his arm out. In November 2018, the Veteran’s wife testified that the pain in his shoulder had limited the activities he could do around the house. She indicated that he tossed and turned in his sleep because of pain and numbness in his shoulder. On November 2018 SS (the Veteran’s wife) statement, she indicated that the Veteran was an honest and hard worker. She indicated that the Veteran was not able to drive their car because it was too uncomfortable for him. She wrote that if the Veteran drove the car it caused his arm and fingers to go numb. She noted that the pain in his shoulder interrupted his sleep. She indicated that his stretches, medications, heating packs, and ice packs did not relieve his pain. She wrote that the Veteran was not able to sit for too long. She noted that the Veteran tried to play with his kids, but he would have to stop because of pain in his shoulder. She noted that he tried physical therapy, exercises, medical massages, chiropractor treatment, injections, and oral medications but nothing helped. In December 2019, the Veteran was afforded a VA examination. The Veteran was diagnosed with partial tear of infraspinatus tendon. The Veteran reported that he had pain, numbness, and tingling in his arm. He noted that he had muscle spasm in the left scapular area. He was right hand dominant. He described his flare-ups as muscle spasms. He described his functional loss/impairment as pain in the left scapular area with movement without change in ROM. His initial ROM was 140 degrees for flexion, 140 degrees for abduction, 90 degrees for external rotation, and 90 degrees for internal rotation. There was no pain noted on examination. There was no evidence of pain with weight bearing. There was no objective evidence of localized tenderness or pain on palpation of the joint or associated soft tissue. There was objective evidence of crepitus. The Veteran was able to perform repetitive use testing with no additional functional loss or ROM. Pain, weakness, fatigability, or incoordination did not significantly limit functional ability with repeated use over a period of time. The examiner noted that the Veteran was examined during a flare-up. The Veteran had pain that significantly limited functional ability with flare-ups. Described in terms of ROM was the same as initial ROM. He had normal muscle strength testing. He did not have muscle atrophy. He did not have ankylosis. He had a negative Hawkins’ impingement test, empty-can test, and lift-off subscapularis test. He had a positive external rotation/ infraspinatus strength test. There was no shoulder instability. The Veteran had scapular crepitus and pain. The Veteran’s scapula condition affected ROM. There was no tenderness on palpation of the AC joint. There was a negative cross-body adduction test. He did not have conditions or impairments of the humerus. He had an arthroscopic acromioplasty in 2014. He did not use an assistive device for his condition. There was no evidence of pain when the joint was used in non-weight bearing. The examiner opined that the Veteran’s condition impacted his ability to perform any type of occupational task. The examiner noted that the Veteran should refrain from working overhead. The Board has carefully considered all the evidence and potentially applicable diagnostic codes, including the DeLuca factors, and finds that the disability picture of the Veteran’s left shoulder disability does not more nearly approximate the rating criteria at a higher disability level. The Board notes and finds credible the Veteran’s lay statements and the statement submitted by the Veteran’s spouse in regard to the Veteran’s pain and difficulty performing daily tasks. However, pain and difficulty performing tasks of daily living is considered by the rating schedule. Because the Veteran does not meet the criteria for a rating in excess of 20 percent, the Veteran’s claim for an increased rating is denied. The evidence does not show that the Veteran’s symptoms meet the criteria for a 30 percent disability rating under Code 5201 because the Veteran’s left shoulder disability does not limit the range of motion of his left arm to 25 degrees from his side in any plane, even upon consideration of the impact of pain at flare-ups. While pain is present with motion, such is not limiting to 25 degrees. Additionally, there is no ankylosis of the joint or impairment of the humerus (Codes 5200 or 5202) which could warrant application of a rating in excess of 20 percent. An increased rating is not warranted. WILLIAM H. DONNELLY Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. Baxter 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.