Citation Nr: 21026735 Decision Date: 05/03/21 Archive Date: 05/03/21 DOCKET NO. 18-30 450 DATE: May 3, 2021 ORDER A 30 percent disability rating for degenerative joint disease of the left shoulder ("left shoulder disability") is granted for the entire initial rating period prior to March 1, 2018. FINDING OF FACT Throughout the initial rating period prior to March 1, 2018, the Veteran's left (minor) shoulder disability manifested pain beginning at 25 degrees of flexion and abduction. CONCLUSION OF LAW Resolving reasonable doubt in favor of the Veteran, the criteria for a 30 percent disability rating for the left shoulder disability have been met for the entire initial rating period prior to March 1, 2018. 38 U.S.C. §§ 1155, 5103(a), 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.2, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes (DCs) 5003 - 5201. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran, who is the Appellant in this case, had active service from November 1985 to May 1993. This matter comes before the Board of Veterans' Appeals (BVA or Board) from an October 2016 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri. In June 2019, the Board denied a higher initial disability rating for the left shoulder disability, evaluated as 20 percent disabling prior to March 1, 2018, and as 30 percent disabling thereafter. The Veteran appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court). In November 2020, the Court granted a Joint Motion for Partial Remand (Joint Motion). In the November 2020 Order, the Court vacated the portion of the June 2019 Board decision that had denied an initial disability rating in excess of 20 percent prior to March 1, 2018, and remanded the case back to the Board for compliance with instructions provided in the Joint Motion. The Board observes that the Veteran has other claims on appeal, including the issue of entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU), with regard to which he presented testimony before a different Veterans Law Judge than the undersigned. A separate decision will be issued by the Board with regard to those claims. Disability Ratings Disability evaluations (ratings) are determined by evaluating the extent to which a veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing the symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Rating Schedule). 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10. In evaluating a disability, the Board considers the current examination reports in light of the whole recorded history to ensure that the current rating accurately reflects the severity of the condition. The Board has a duty to acknowledge and consider all regulations that are potentially applicable. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). The medical as well as industrial history is to be considered, and a full description of the effects of the disability upon ordinary activity is also required. 38 C.F.R. §§ 4.1, 4.2, 4.10. 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. See 38 C.F.R. § 4.7. Reasonable doubt regarding the degree of disability will be resolved in the veteran's favor. 38 C.F.R. § 4.3. In view of the number of atypical instances it is not expected, especially with the more fully described grades of disabilities, that all cases will show all the findings specified. Findings sufficiently characteristic to identify the disease and the disability therefrom, and above all, coordination of rating with impairment of function will, however, be expected in all instances. 38 C.F.R. § 4.21. Staged ratings are appropriate for an initial or increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that warrant different ratings. Fenderson v. West, 12 Vet. App. 119, 126-127 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). 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."). Painful motion is considered limited motion at the point that the pain actually sets in. See VAOPGCPREC 9-98. With any form of arthritis, painful motion is an important factor of disability, the facial expression, wincing, etc., on pressure or manipulation, should be carefully noted and definitely related to the affected joints. The intent of the rating schedule is to recognize painful motion with joint or periarticular pathology as productive of disability. It is the intention to recognize actually painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. Crepitation either in the soft tissues such as the tendons or ligaments, or crepitation within the joint structures should be noted carefully as points of contact which are diseased. Flexion elicits such manifestations. 38 C.F.R. § 4.59. 1. A 30 percent disability rating for degenerative joint disease of the left shoulder ("left shoulder disability") is granted for the entire initial rating period prior to March 1, 2018. As noted above, the Veteran is in receipt of a 20 percent disability rating for his left shoulder disability prior to March 1, 2018. For the reasons discussed below, resolving reasonable doubt in favor of the Veteran, the Board finds that a 30 percent disability rating is warranted for the entire initial rating period prior to March 1, 2018. The Veteran's left shoulder disability has been evaluated under DCs 5003-5201. 38 C.F.R. § 4.71a. Hyphenated diagnostic codes are used when a rating under one diagnostic code requires use of an additional diagnostic code to identify the basis for the evaluation assigned; the additional code is shown after the hyphen. See 38 C.F.R. § 4.27. The hyphenated diagnostic code in this case indicates that degenerative arthritis, under DC 5003, is the service-connected left shoulder disorder, while the residual condition is limitation of motion of the arm, evaluated under 38 C.F.R. § 4.71a, DC 5201. DC 5201 pertains to limitation of motion of the shoulder. A rating of 30 percent for the minor arm is assigned where motion is limited to 25 degrees from the side. A rating of 20 percent for the minor arm is assigned where motion is limited to shoulder level or to midway between the side and shoulder level. Id. The Veteran in this case is right-handed, so in this case, the rating assigned is for the minor (left) shoulder. The standard range of motion for shoulder abduction and forward elevation (flexion) is 180 degrees. 38 C.F.R. § 4.71, Plate I. Standard internal and external rotation is to 90 degrees, and "shoulder level" is equivalent to 90 degrees of shoulder flexion or abduction. Id. Reviewing the most relevant evidence of record, a July 2016 Shoulder Impairment Questionnaire was completed by a private clinician on behalf of the Veteran. The clinician indicated she had treated the Veteran for his left shoulder condition since 2004 and had seen him every 4 to 6 months since that time. She noted a March 2014 MRI study of the left shoulder that had shown moderate acromioclavicular joint hypertrophy. The Veteran reported constant left shoulder pain and the clinician stated he was unable to perform his activities of daily living due to the pain. On examination, pain began at 25 degrees of flexion and abduction of the left shoulder. The clinician stated that the current symptoms and limitations had been present since 2004. The Veteran was afforded a VA examination in September 2016. The examiner diagnosed left shoulder degenerative arthritis. The Veteran reported that overuse and daily chores caused flare-ups of pain, rating his normal pain level at 6 to 7 out of 10, and 10 out of 10 during flare-ups. The Veteran reported loss of motion, weakness, and increased pain with use of both shoulders. Flexion (0 to 180) was 0 to 40 degrees and abduction (0 to 180) was 0 to 45 degrees. Range of motion contributed to functional loss, in that the Veteran stated he had difficulty dressing himself, brushing teeth, etc. Pain was noted in all directions, but the examiner did not indicate at which point pain began. Range of motion was the same after 3 repetitions, but the examiner noted additional functional loss due to pain, weakness, and lack of endurance. The examiner was unable to estimate range of motion during flare-ups or after repeated use. The Veteran was unable to lift his arms above his head or carry any weight but was able to drive. In August 2017, the clinician who had completed the July 2016 Shoulder Impairment Questionnaire completed another questionnaire on the Veteran's behalf. She indicated that the Veteran had pain with range of motion and crepitus in the left shoulder. Pain began at 25 degrees from the side in both flexion and abduction. The Veteran was unable to use his left arm for activities of daily living, including combing his hair, grooming his beard, and brushing his teeth. She opined that the current symptoms and limitations had been present since 2010. Based on the lay and medical evidence in this case, and resolving reasonable doubt in favor of the Veteran, the Board finds that the criteria for a 30 percent disability rating for the left shoulder disability have been met for the entire initial rating period prior to March 1, 2018. Namely, the July 2016 and August 2017 Shoulder Impairment Questionnaires indicate that pain in the left shoulder began at 25 degrees of flexion and abduction, which is the criteria for a 30 percent rating for the minor side under DC 5201. The clinician indicated that such symptoms and limitations as recorded in those reports had been present throughout the initial rating period on appeal prior to March 1, 2018. The Board reiterates that painful motion is considered limited motion at the point that the pain actually sets in. See VAOPGCPREC 9-98. The Board acknowledges that there is evidence against the assignment of a 30 percent disability rating prior to March 1, 2018 e.g., the September 2016 VA examination flexion and abduction measurements. However, the Board notes that while the examiner stated that there was additional functional loss following repetition of range of motion testing, the examiner was unable to estimate additional loss of range of motion during flare-ups and following repetitive use; given the examiner's finding that repetitive testing caused additional functional loss, it seems likely that there would be additional loss of motion during flare-ups and/or following repetitive use. Resolving reasonable doubt in favor of the Veteran, the Board finds that a 30 percent disability rating, but no higher, is warranted for the left shoulder disability for the entire initial rating period prior to March 1, 2018. The Board finds that the 30 percent disability rating assigned herein adequately compensates the Veteran for his left shoulder impairment resulting in pain and limited function; a higher rating is not available under DC 5201. The Board has considered whether any other diagnostic codes might serve as a basis for an even higher disability rating but finds none. Specifically, there is no ankylosis of the scapulohumeral articulation, so DC 5200 does not apply. The evidence of record does not indicate that the Veteran's left shoulder disability manifests any of the symptoms warranting a rating higher than 30 percent under DC 5202 such as loss of head (flail shoulder), nonunion (false flail joint), fibrous union, or malunion of the humerus during the period on appeal. The Board notes that the VA examinations indicate that the Veteran had an impairment of the clavicle or scapula; however, the medical evidence does not indicate any dislocation, nonunion or malunion of the joint. Moreover, the maximum rating under DC 5203 is 20 percent; thus, a higher rating is not available under DC 5203. Finally, under DC 5003, a 10 percent evaluation is the highest possible evaluation for the Veteran's left shoulder disability because the shoulder is a single major joint. There are no other applicable diagnostic codes. 38 C.F.R. § 4.71a. For these reasons, resolving reasonable doubt in favor of the Veteran, the Board finds that the evidence is at least in equipoise as to whether a 30 percent disability rating for the left shoulder disability is warranted for the entire initial rating period prior to March 1, 2018. To the extent any higher level of compensation is sought, the preponderance of the evidence is against this claim, and, hence, the benefit-of-the-doubt doctrine does not apply. See 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3, 4.7; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). Cynthia M. Bruce Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. Sherrard, 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.