Citation Nr: 21026189 Decision Date: 04/30/21 Archive Date: 04/30/21 DOCKET NO. 18-33 920 DATE: April 30, 2021 ORDER Entitlement to a rating in excess of 20 percent for right shoulder impingement syndrome with bursitis and a history of strain, is denied. FINDING OF FACT Throughout the period on appeal, the evidence reflects that the Veteran’s right shoulder disability does not result in limitation of motion to midway between the side and shoulder level or to 25 degrees from the side. CONCLUSION OF LAW The criteria for entitlement to a rating in excess of 20 percent for a right shoulder disability have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.4, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5201. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from January 1972 to January 1975 and from May 1979 to September 2002. This matter comes before the Board of Veterans’ Appeals (the Board) on appeal from a July 2017 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). By way of history, a February 2019 Board decision denied a rating in excess of 20 percent for right shoulder impingement syndrome with bursitis and history of strain. The Veteran appealed the Board’s decision to the United States Court of Appeals for Veteran Claims (the Court). Pursuant to a Joint Motion for Remand (JMR) dated January 2020, the Court vacated the Board’s February 2019 decision and remanded the matter to the Board. The Board remanded this matter in April and November 2020 for further development. As the actions specified in the Board’s most recent remand have been substantially completed, this matter has been properly returned to the Board for appellate consideration. See Stegall v. West, 11 Vet. App. 268 (1998); D’Aries v. Peake, 22 Vet. App. 97, 105 (2008). Duties to Notify and Assist With respect to the Veteran's claim herein, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C. §§ 5100, 5102, 5103, 5103A; 38 C.F.R. § 3.159. As the Veteran has not advanced any procedural arguments in relation to VA's duties to notify and assist, the Board will proceed with appellate review. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015). Increased Rating Disability ratings are determined by application of the criteria set forth in VA’s Schedule for Rating Disabilities, which is based on average impairment of earning capacity. 38 U.S.C. § 1155; see generally 38 C.F.R. § Part 4. When a question arises as to which of two ratings applies under a particular diagnostic code, the higher rating is assigned if the disability more closely approximates the criteria for the higher rating. Otherwise, the lower rating applies. 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. The Veteran's entire history is to be considered when making disability determinations. 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where, as here, entitlement to compensation already has been established and an increase in the disability rating is at issue, it is the current level of disability that is of primary concern, and VA must only address the evidence concerning the state of the disability from the time period one year before the claim for an increase was filed until VA makes a final decision on the claim. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, in such cases, when the factual findings show distinct time periods during which the veteran exhibits symptoms of the disability at issue, and such symptoms warrant different disability ratings, staged ratings may also be assigned. Hart v. Mansfield, 21 Vet. App. 505 (2007). Where there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall resolve reasonable doubt in favor of the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518 (1996). Entitlement to a rating in excess of 20 percent for a right shoulder disability The Veteran seeks an increased rating for his service-connected right shoulder disability, which is currently rated 20 percent disabling, effective October 31, 2016. In lay statements in support of an increased rating, the Veteran reported experiencing continuous pain in his right shoulder, tremors, taking daily over the counter pain medication, and a diminished quality of life due to inability to do basic things like swimming, or household chores. See August 2017 Notice of Disagreement, October 2018 Informal Hearing Presentation. The Veteran has not put forth any specific contentions as to why he believes his right shoulder disability is of adequate severity to warrant an increased, 30 percent disability rating. In light of its generic nature, the lay evidence of record is of minimal probative weight. For the following reasons, the Board concludes that an increased rating is not warranted. The evidence of record shows that the Veteran is right-handed. Therefore, for rating purposes, his right shoulder is considered his major or dominant extremity. See 38 C.F.R. § 4.69. The Veteran's right shoulder disability is rated under DC 5201. Limitation of arm motion in the major extremity to shoulder level warrants a 20 percent rating. Limitation of motion midway between the side and shoulder level warrants a 30 percent rating. Additionally, limitation to 25 degrees from the side warrants a 40 percent rating. 38 C.F.R. § 4.71a, Diagnostic Code 5201. 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. DeLuca v. Brown, 8 Vet. App. 202 (1995). 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. Thompson v. McDonald, 815 F.3d 781, 785 (Fed. Cir. 2016). Under DC 5202, for other impairment of the humerus for the major arm, recurrent dislocation of the humerus at the scapulohumeral joint with frequent episodes and guarding of all arm movements is rated at 30 percent. 38 C.F.R. § 4.71a. Normal range of motion in the shoulder is from zero to 180 degrees of forward elevation (flexion) and zero to 180 degrees of shoulder abduction. See 38 C.F.R. § 4.71, Plate I. Turning to the relevant evidence of record, April 2017 private treatment records reflect that the Veteran underwent a right shoulder arthroscopy with partial thickness rotator cuff debridement. VA treatment records from the period on appeal note the Veteran’s February 2018 reports of right shoulder pain. However, nothing in the records supports that the Veteran's symptoms have worsened to warrant an increase to 30 percent. In September 2017, the Veteran underwent a VA examination. The Veteran reported having right shoulder symptoms of ache, cramps, persistent pain with the sensation of weakness, tremors, and flare-ups. The Veteran reported flare-ups as episodes of more intense grinding and aching pain affecting both shoulders. Functional loss was reported as having difficulty with overhead work, weakness, difficulty moving heavy items, painting and washing, and inability to swim, play softball or “roughhouse with the kids.” Physical examination revealed flexion limited to 90 degrees, abduction to 95 degrees, external rotation to 80 degrees, and internal rotation to 80 degrees. Repetitive motion testing did not reveal any additional limitation of motion. Muscle strength testing revealed active moment against some resistance. Upon objective evaluation, the VA examiner noted that the Veteran had no recurrent shoulder dislocations, no ankylosis, and no evidence of abnormal weight-bearing. The Board notes that while the Court ultimately found this examination to be inadequate due to the examiner’s failure to estimate functional loss during periods of flare up, the remaining parts of the exam are probative for purposes of assessing the severity of the Veteran’s disability at the time of the examination. In August 2017 and October 2018 statements, the Veteran reported that his right shoulder continues to ache and that he experiences tremors, both of which diminish his quality of life. He cannot do any activities without his right shoulder getting sore and achy, and specifically is unable to swim, clean the pool, or do chores around the house. The Veteran reported taking Aleve daily for pain. Pursuant to the Board’s April 2020 remand, the Veteran was afforded a new VA examination in October 2020. The Veteran reported experiencing moderate flare-ups which “make it difficult for movement such as lifting and pushing.” The Board ultimately found this exam to be inadequate because the examiner indicated that neither pain, fatigue, weakness, lack of endurance nor incoordination, limited the Veteran’s functional ability during periods of flare-up. Similarly, the exam was found to be inadequate because the examiner did not portray functional loss during periods of flare-up in terms of range of motion. However, the Board finds the remaining parts of the exam to be instructive for purposes of assessing the severity of the Veteran's disability at the time of the examination. Upon objective evaluation, muscle strength testing revealed active moment against some resistance. No muscle atrophy, ankylosis, shoulder instability, dislocation or labral pathology was evident on exam. The examiner noted no evidence of localized tenderness, but observed objective evidence of crepitus, and pain with weight and non-weightbearing. Rotator cuff conditions testing results for the right shoulder were positive. No clavicle, scapula, AC joint, or sternoclavicular joint condition was suspected. No loss of head, nonunion or fibrous union of the humerus was found. There was no malunion of the humerus with moderate or marked deformity. Additional contributing factors to the Veteran’s right shoulder disability were noted as less movement than normal and disturbance of locomotion. Range of motion testing revealed flexion to 90 degrees with pain, abduction to 85 degrees with pain, external rotation to 40 degrees with pain, and internal rotation to 55 degrees with pain. The examiner noted that pain did not cause functional loss in the right shoulder. Following repetitive use testing, there was no additional loss in range of motion. Pursuant to the October 2020 VA examination, x-ray imaging of the Veteran’s right shoulder was obtained. Imaging revealed status post rotator cuff repair with mild degenerative hypertrophic change medial articular margin of the humeral head. No fracture, dislocation or other significant abnormality was identified. Pursuant to the Board's November 2020 remand, the Veteran was afforded an additional VA examination in January 2021. On examination, the examiner noted then current symptoms of dull pain in the Veteran’s right shoulder, with limitations in range of motion. Range of motion testing revealed flexion at 70 degrees with pain, abduction at 70 degrees with pain, external rotation at 50 degrees with pain, and internal rotation at 45 degrees with pain. The examiner noted that pain causes functional loss, with the Veteran having difficulty lifting objects more than 10 pounds due to pain. Functional loss also resulted in the Veteran’s inability to raise his right arm above shoulder level. Repetitive motion testing revealed additional limitation of motion of flexion and abduction at 65 degrees, external rotation at 45degrees, and internal rotation at 40 degrees. Functional loss with repeated use over a period of time was attributed to pain. Muscle strength testing revealed active moment against some resistance. Estimated range of motion loss during flare-ups was record as flexion and abduction at 65 degrees, external rotation at 45 degrees, and internal rotation at 40 degrees, with pain noted as the cause of this functional loss. There was no objective evidence of crepitus, nor pain on non-weightbearing. However, the examiner noted pain on weightbearing. Rotator cuff conditions testing results for the right shoulder were positive. No clavicle, scapula, AC joint, or sternoclavicular joint condition was suspected. No loss of head, nonunion or fibrous union of the humerus was found. There was no malunion of the humerus with moderate or marked deformity. The above findings are not consistent with the criteria for a higher rating of 30 percent. There is no evidence to support a finding that the Veteran's right shoulder condition results in impairment approximating motion limited to just 25 degrees from the side, even when considering any pain, weakened movement, excess fatigability, or incoordination. Instead, physical examination revealed limitation of motion at the shoulder level, which is consistent with the 20 percent rating currently assigned. In considering the rating criteria, the Board considered functional loss due to flare-ups of pain, fatigability, incoordination, pain on movement, and weakness. 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202, 206-7 (1995). While the provisions of 38 C.F.R. § 4.59 establish that the Veteran is entitled to a minimum compensable evaluation for painful motion without demonstration of additional functional loss, a 20 percent rating is already assigned here. Evaluations in excess of the minimum compensable rating must be based on demonstrated functional impairment approximating the rating criteria. See 38 C.F.R. § 4.71a, Diagnostic Code 5003. Thus, an increased evaluation for the Veteran's right shoulder is not warranted on the basis of functional loss due to pain or weakness. See Mitchell v. Shinseki, 25 Vet. App. 32 (2011); Correia v. McDonald, 28 Vet. App. 158 (2016), and Sharp v. Shulkin, 29 Vet. App. 26 (2017). In making this finding, the Board acknowledges that the Veteran believes his right shoulder disability is more severe than contemplated by his currently-assigned 20 percent disability rating. The Board notes that the Veteran is competent to report on factual matters of which he has first-hand knowledge. See Layno v. Brown, 6 Vet. App. 465 (1994). However, the Board finds the objective measurements of limitation of motion fall outside the realm of common knowledge of a layperson and the Veteran is, thus, not competent to provide evidence on the issue of severity. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). The Board finds the VA examinations described herein are more probative than the Veteran's subjective complaints of increased symptomatology in establishing the degree of limitation of motion in light of the rating schedule. Finally, the Board has considered the applicability of other diagnostic codes. The record does not establish, and the Veteran has not alleged, ankylosis, recurrent dislocation of the humerus at the scapulohumeral joint, a flail shoulder, a false flail joint, malunion of the humerus, or impairment of the clavicle or scapula. Therefore, consideration under Diagnostic Codes 5200, 5202, or 5203 is not warranted. Accordingly, the Board finds that the preponderance of the evidence weighs against finding that a rating in excess of 20 percent for the Veteran's right shoulder disability is warranted. Therefore, the benefit-of-the-doubt rule does not apply, and the claim must be denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; see Gilbert v. Derwinski, 1 Vet. App. 49 (1990). LESLEY A. REIN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Gates, Charlene F. 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.