Citation Nr: 21024614 Decision Date: 04/23/21 Archive Date: 04/23/21 DOCKET NO. 18-00 788 DATE: April 23, 2021 ORDER A rating of 40 percent for residuals, injury left shoulder, with degenerative joint disease as of January 23, 2017, is granted. A separate rating of 20 percent for a left shoulder disability (recurrent dislocations) is granted. FINDINGS OF FACT 1. The competent and probative evidence is at least in equipoise as to whether range of motion of the Veteran’s dominant shoulder is limited to 25 degrees from the side; specifically, the Veteran’s shoulder is completely immobilized during flare-ups. 2. The competent and probative evidence is at least in equipoise as to whether the Veteran experiences dislocations of the major arm at the scapulohumeral joint with infrequent episodes and guarding of movement only at shoulder level. CONCLUSIONS OF LAW 1. The criteria for entitlement to a rating of 40 percent for residuals, injury left shoulder, with degenerative joint disease have been met as of January 23, 2017. 38 U.S.C. § 1155; 38 C.F.R. § 4.71a, Diagnostic Code 5201. 2. The criteria for entitlement to a separate rating of 20 percent for a left shoulder disability (recurrent dislocations) have been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.71a, Diagnostic Code 5202. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from October 1965 to July 1967. This matter is on appeal before the Board of Veterans’ Appeals (Board) from a December 2016 rating decision of the Department of Veterans Affairs (VA) Regional Office. This case was most recently before the Board in July 2020, at which time the Board remanded the matter for further development. As the requested development has been completed, no further action to ensure compliance with the remand directives is required. Stegall v. West, 11 Vet. App. 268, 271 (1998). Increased Rating Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R., Part 4. The percentages are based on the average impairment of earning capacity as a result of service-connected disability, and separate diagnostic codes identify the various disabilities and the criteria for specific ratings. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. If two disability evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. All reasonable doubt as to the degree of disability will be resolved in favor of the claimant. 38 C.F.R. § 4.3. Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the primary concern is the present level of disability. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, the Board must also consider staged ratings. Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007). 1. Entitlement to a rating in excess of 30 percent for residuals, injury left shoulder, with degenerative joint disease. 2. Entitlement to a separate rating for a left shoulder disability (recurrent dislocations). The Veteran contends that he is entitled to a rating in excess of 30 percent for his left shoulder disability, evaluated under Diagnostic Codes 5003-5201. Disabilities of the shoulder and arm are evaluated under rating criteria that contemplate ankylosis of scapulohumeral articulation (Diagnostic Codes 5200), limitation of motion of the arm (Diagnostic Code 5201), other impairment of the humerus (Diagnostic Code 5202) or the impairment of the clavicle or scapula, to include dislocation (Diagnostic Code 5203). Normal range of motion of the shoulder is as follows: forward elevation (flexion) to 180 degrees; abduction to 180 degrees; internal rotation to 90 degrees; and external rotation to 90 degrees. 38 C.F.R. § 4.71a, Plate I. Where arm limitation of motion is limited to 25 degrees from the side, a 40 percent evaluation is assigned for the major side under diagnostic code 5201 (30 percent for minor side). Limitation of motion midway between the side and shoulder level contemplates a 30 percent evaluation for the major side (20 percent for minor side), and limitation of motion at shoulder level contemplates a 20 percent evaluation for the major side. 38 C.F.R. § 4.71a, DC 5201. Under Diagnostic Code 5202, for impairment of the humerus, a 20 percent rating is granted when there is malunion, with moderate deformity, for the major arm; a 30 percent rating is warranted when there is marked deformity of the major arm. Also, under Diagnostic Code 5202, for recurrent dislocations of the major arm at the scapulohumeral joint, a 20 percent rating is granted with infrequent episodes, and guarding of movement only at shoulder level; a 30 percent rating is granted for the major arm when there are frequent episodes and guarding of all arm movements. For fibrous union of the major arm a 50 percent rating is assigned for the major arm. A 60 percent rating is warranted for nonunion (false flail joint) of the major arm. An 80 percent rating is warranted for loss of head of (flail shoulder) for the major arm. 38 C.F.R. § 4.71a, Diagnostic Code 5202. Further, under Diagnostic Code 5203, for impairment of the clavicle or scapula in the major arm, a 10 percent rating is granted for malunion or nonunion without loose movement and a 20 percent rating is granted for nonunion with loose movement or for dislocation. 38 C.F.R. § 4.71a, Diagnostic Code 5203. Degenerative arthritis is rated based on limitation of motion under the appropriate diagnostic code for the specific joint or joints involved. Where there is noncompensable limitation of motion, a 10 percent evaluation is assigned for each major joint or group of minor joints, where the limitation is objectively confirmed by swelling, muscle spasm, or satisfactory evidence of painful motion. Where there is no limitation of motion, a 10 percent evaluation is assigned for x-ray evidence of involvement of two or more major joints or minor joint groups, and a 20 percent evaluation is assigned for x-ray evidence of involvement of two or more major joints or minor joint groups, with occasional incapacitating exacerbations. 38 C.F.R. § 4.71a, DC 5003, Note (1). 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.”). However, a veteran may be entitled to a higher disability evaluation than that supported by mechanical application of the rating schedule where there is evidence that his or her disability causes “additional functional loss i.e., ‘the inability... to perform the normal working movements of the body with normal excursion, strength, speed, coordination[,] and endurance’ including as due to pain and/or other factors” or “reduction of a joint’s normal excursion of movement in different planes, including changes in the joint’s range of movement, strength, fatigability, or coordination.” Lyles v. Shulkin, 29 Vet. App. 107, 117-18 (2017) (quoting 38 C.F.R. § 4.40 and citing 38 C.F.R. § 4.45); Mitchell v. Shinseki, 25 Vet. App. 32, 36-37 (2011); DeLuca v. Brown, 8 Vet. App. 202, 205-07 (1995). The intent of the rating schedule is to recognize painful motion with joint and periarticular pathology as productive of disability. It is the intention to recognize actually painful, unstable, or maligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59. The VA treatment records reveal that, on January 23, 2017, the Veteran was treated for capsulitis with steroid injections. Specifically, the Veteran was completely unable to move his shoulder. After treatment, the movement of the Veteran’s shoulder eventually improved several weeks later, but the Veteran still had pain with abduction and internal rotation. 10/21/2017, CAPRI, pages 3 and 24. A December 2016 VA examination noted that the Veteran is left hand dominant. The examiner diagnosed the Veteran with following pertaining to his left shoulder: labral tear, including superior labral anterior-posterior lesion (SLAP); glenohumeral joint osteoarthritis; and glenohumeral joint dislocation. Also noted was the Veteran’s chronic left shoulder pain, which had been worsening in recent years and aggravated by any shoulder motion. In the range of motion (ROM) testing, the Veteran’s left shoulder flexion was noted at 0 to 70 degrees, abduction at 0 to 60 degrees, external rotation at 0 to 50 degrees, and internal rotation at 0 to 90 degrees. The ROM testing revealed a functional loss, as the Veteran is unable to lift or engage in overhead activity. Pain was noted in all ranges of motion, there was evidence of pain with weight bearing, and objective evidence of crepitus. The examiner noted no additional functional loss after three repetitions. The examiner indicated that the Veteran’s left shoulder had less movement due to ankylosis and adhesions, as well as weakened movement due to muscle or peripheral nerve injury; however, the examiner later finds that the Veteran does not have ankylosis. With regard to shoulder instability, the examiner noted guarding of movement at the left shoulder level, as well as guarding of all left arm movements. And, notably regarding flare-ups, the examiner’s notation was “not applicable.” And, the examiner noted the Veteran had a history of recurrent dislocations of the major arm at the scapulohumeral joint with guarding of movement only at shoulder level and guarding of all arm movements. However, the examiner did not indicate the frequency of the Veteran’s recurrent dislocations. 12/06/2016, C&P Exam. A May 2019 Board remand remarked that the December 2016 examiner was notably ambiguous as to whether the Veteran experiences flare-ups. The Board remanded the issue of entitlement to a rating in excess of 30 percent for a left shoulder disability and directed Agency of Original Jurisdiction (AOJ) to schedule the Veteran for a VA examination to determine the current severity of the disability. 05/13/2019, Remand BVA. A November 2019 VA examination noted that the Veteran is diagnosed with labral tear, including left shoulder superior labral anterior-posterior lesion (SLAP), glenohumeral joint osteoarthritis, and glenohumeral joint dislocation. The examiner also noted that the shoulder pain has worsened over the years and is aggravated by any shoulder movement. However, despite frequent aggravation of pain, the examiner indicated that the Veteran did not have flare-ups of the left shoulder disability. Furthermore, the examiner noted that the reduced movement of the left shoulder is exacerbated by ankylosis and adhesion. However, the examiner also indicated that the Veteran does not have ankylosis of the left shoulder. The examiner did not indicate Veteran’s episode of capsulitis was considered in assessing the severity of the left shoulder disability as previously instructed by the Board. And, the examiner noted the Veteran had a history of recurrent dislocations of the major arm at the scapulohumeral joint with infrequent episodes. 11/12/2019, C&P Exam. A July 2020 Board remand noted the November 2019 VA examination did not indicate Veteran’s episode of capsulitis was considered in assessing the severity of the left shoulder disability, as previously instructed by the Board. The Board remanded the issue of entitlement to a rating in excess of 30 percent for a left shoulder disability and directed Agency of Original Jurisdiction (AOJ) to obtain an addendum opinion from an appropriate clinician to determine the current severity of the left shoulder disability, to include an opinion as to whether the Veteran experiences flare-ups and the additional functional loss during a flare-up. The examiner was specifically directed to consider the Veteran’s episode of capsulitis. 07/29/2020, Remand BVA. An October 2020 VA addendum opinion considered the claims file, including the Veteran’s treatment records. The clinician opined that the Veteran clearly had a flare-up of his left shoulder in 2017, as evidenced by the treatment notes indicating that he had steroid injections for the condition. The clinician indicated that the presentation and aggressive treatment with an injection is clear evidence of a flare. And, the Veteran’s flare-up at the time of his January 2017 episode of capsulitis lasted many weeks. The clinician opined that these flare-ups could occur at a frequency of 1-2 times a year, with a duration of 2-4 weeks. And, that activity could precipitate into a flare-up, which is alleviated by steroid injections and time. 10/01/2020, C&P Exam. The AOJ attempted to schedule an in-person examination because the October 2020 addendum opinion did not conduct ROM testing. The Veteran reportedly cancelled the VA examination appointment, indicating that he had already completed an examination with a different vendor. 01/13/2021, Exam Request. It is unclear as to whether the Veteran is referring to the October 2020 VA addendum opinion. Nonetheless, the Board finds the October 2020 VA addendum opinion adequately considered ROM of the Veteran’s shoulder, as the VA clinician clearly indicated that the Veteran’s flare-up manifested in a complete inability to move his shoulder. 10/01/2020, C&P Exam. After review of the competent and probative evidence, the Board finds that a 40 percent rating as of January 23, 2017, is warranted for a left shoulder disability under Diagnostic Code 5201. Specifically, the Veteran experiences flare-ups that manifest in a complete inability to move his left shoulder. These flare-ups can occur frequency of 1-2 times a year with a duration of 2-4 weeks, And, these flare-ups may precipitate with any activity of the Veteran’s left shoulder and are only alleviated with steroid injections and rest. The earliest documented incident of these severe flareups occurred on January 23, 2017. Moreover, the motion of the Veteran’s dominant shoulder is clearly is limited to at least 25 degrees from the side, as the Veteran’s left shoulder is completely immobilized during flare-ups. Accordingly, a 40 percent maximum rating for limitation of motion is warranted due to functional loss. 38 C.F.R. §§ 4.40, 4.45. Additionally, the Board finds that a separate rating under Diagnostic Code 5202 is warranted. Cf. Yonek v. Shinseki, 722 F.3d 1355, 1358 (Fed. Cir. 2013) (stating that DC 5201 does not provide separate ratings for limitation of motion in the flexion and abduction planes, but rather is addressed generically to "limitation of motion of" the arm). Specifically, the December 2016 VA examination noted that noted the Veteran had a history of recurrent dislocations of the major arm at the scapulohumeral joint with guarding of movement only at shoulder level and guarding of all arm movements. And, the November 2019 VA examination noted the Veteran had a history of recurrent dislocations of the major arm at the scapulohumeral joint with infrequent episodes. When resolving reasonable doubt in favor of the Veteran, the evidence is at least in equipoise that the Veteran has dislocations of the major arm at the scapulohumeral joint with infrequent episodes and guarding of movement only at shoulder level. And, the Board also finds that a higher rating is not warranted under Diagnostic Code 5202, as the competent evidence does not reflect frequent episodes of dislocation, despite the guarding of all arm movements. Moreover, the competent evidence does not reflect loss of head, nonunion, or fibrous union of the humerus. (Continued on the next page)   Lastly, the weight of the evidence does not support a separate rating under Diagnostic Code 5203, as impairment of the clavicle or scapula is not shown. Indeed, the competent and probative examinations, as noted above, consistently note the absence of any of these disabilities. Paul Sorisio Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board David Han 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.