Citation Nr: 21027038 Decision Date: 05/04/21 Archive Date: 05/04/21 DOCKET NO. 12-20 911A DATE: May 4, 2021 ORDER The claim for a rating in excess of 20 percent for residuals of a left (minor) shoulder disability is denied. FINDING OF FACT From February 27, 2013, the Veteran's left shoulder residuals with degenerative arthritis is characterized by limitation of motion to shoulder level. CONCLUSION OF LAW From February 27, 2013, the criteria for a disability rating in excess of 20 percent for left shoulder residuals and degenerative arthritis have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R.§§ 3.159, 4.14.14, 4.71a, Diagnostic Code 5003-5201. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Navy from October 1987 to September 1998. These matters were previously before the Board in June 2018. At that time, the Board, in pertinent part, granted a 20 percent rating to the service-connected left (minor) shoulder disability for the period from February 1, 2012, to February 26, 2013, and denied a rating in excess of 20 percent therefrom. The Veteran appealed the June 2018 Board decision as to this determination to the United States Court of Appeals for Veterans Claims (Court), and in a November 2019 Memorandum Decision, the Court vacated the Board's decision to the extent that it denied initial ratings in excess of 20 percent for the service-connected left (minor) shoulder, and remanded this matter back to the Board for development consistent with the Memorandum Decision. In September 2020, the Board remanded this matter for development consistent with the Memorandum Decision. The applicable rating criteria for musculoskeletal disorders, in particular shoulder disabilities, were amended, effective February 7, 2021 [Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 76453, 76462 (November 30, 2020) (to be codified at 38 C.F.R. § 4.71a, Diagnostic Codes 5200-5203)]. However, the Board notes that as neither the Veteran nor his representative have alleged that a new examination is warranted to consider the new regulations, scheduling of a new VA examination under the amended regulations is not required. Increased Ratings 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 percentage ratings are based on the average impairment of earning capacity as a result of a 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. VA has a duty to consider all regulations that are potentially applicable through the assertions and issues raised in the record, and to explain the reasons and bases for its conclusions. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). 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 for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. The Board will consider whether separate ratings may be assigned for separate periods of time based on facts found, a practice known as "staged ratings." Hart v. Mansfield, 21 Vet. App. 505 (2007). When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. When all of the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When rating musculoskeletal disabilities, VA may, in addition to applying schedular criteria, consider granting a higher rating based on functional loss due to limited or excess movement, pain, weakness, excess fatigability, or incoordination, to include during flare-ups and with repeated use, when those factors are not contemplated in the relevant rating criteria. DeLuca v. Brown, 8 Vet. App. 202 (1995); 38 C.F.R. §§ 4.40, 4.45, 4.59. The provisions of 38 C.F.R. § 4.40 and 38 C.F.R. § 4.45 are to be considered in conjunction with the Diagnostic Codes predicated on limitation of motion. Johnson v. Brown, 9 Vet. App. 7 (1996). Such inquiry is not to be limited to muscles or nerves. Limitation of motion determinations are, if feasible, to be expressed in terms of the degree of additional range of motion loss due to any weakened movement, excess fatigability, incoordination, flare-ups, or pain. DeLuca, 8 Vet. App. at 207. By itself, pain throughout a joint's range of motion does not constitute functional loss, but if there is additional pain, the examiner must address any additional loss of motion due to the DeLuca factors. Mitchell v. Shinseki, 25 Vet. App. 32 (2011). If a claimant is already receiving the maximum disability rating available based on symptomatology that includes limitation of motion, it is not necessary to consider whether 38 C.F.R. §§ 4.40 and 4.45 are applicable. Spencer v. West, 13 Vet. App. 376, 382 (2000); Johnston v. Brown, 10 Vet. App. 80, 85 (1997). The provisions of 38 C.F.R. § 4.59, which relate to painful motion, are not limited to arthritis, and must be considered when raised by the claimant or when reasonably raised by the record. Burton v. Shinseki, 25 Vet. App. 1 (2011). A VA examination of the joints must, wherever possible, include range of motion testing for pain on active motion, passive motion, weight-bearing, non-weight-bearing, and, if possible, with the range of the opposite undamaged joint. Correia v. McDonald, 28 Vet. App. 158, 16970 (2016); 38 C.F.R. § 4.59. Left shoulder On February 1, 2012, the Veteran filed a claim of entitlement to service connection for a left shoulder disability. In April 2012, the RO granted service connection for this disorder at an initial noncompensable rating under Diagnostic Code 5003-5201. The Veteran appealed the rating of such decision. In a subsequent November 2017 rating decision, the Veteran was assigned a 20 percent rating for his left shoulder, effective February 27, 2013. Thereafter, in a June 2018 Board decision, the Veteran was denied a disability rating in excess of 20 percent for the left shoulder disability. The Veteran appealed this denial to the United States Court of Appeals for Veterans Claims (Court), and in a November 2019 Memorandum Decision, the Court vacated the Board's decision to the extent that it denied a rating in excess of 20 percent for the service-connected left (minor) shoulder, and remanded this matter back to the Board for development consistent with the Memorandum Decision. Under Diagnostic Code 5003, degenerative arthritis established by x-ray findings will be rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved (DC 5200 etc.). 38 C.F.R. § 4.71a. In the absence of limitation of motion, under Diagnostic Code 5003, a 10 percent rating is appropriate with x-ray evidence of involvement of two or more major joints or two or more minor joint groups. 38 C.F.R. § 4.71a. A 20 percent rating is appropriate with x-ray evidence of involvement of two or more major joint groups or two or more minor joint groups, with occasional incapacitating exacerbations. Id. These ratings will not be combined with ratings based on limitation of motion and will not be utilized in rating conditions listed under Diagnostic Codes 5013 to 5024, inclusive. Id. When degenerative arthritis is established by x-ray findings and limitation of motion is noncompensable, a rating of 10 percent is appropriate for each such major joint or group of minor joints affected by limitation of motion, to be combined, not added under Diagnostic Code 5003. Id. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. Id. Diagnostic Code 5201 provides compensation for limitation of arm motion. 38 C.F.R. § 4.71a. Limitation of motion of the arm at the shoulder level (flexion and/or abduction limited to 90 degrees) is rated 20 percent for the major shoulder and 20 percent for the minor shoulder. Id. Limitation of motion of the arm midway between the side and shoulder level (flexion and/or abduction limited to 45 degrees) is rated as 30 percent for the major shoulder and 20 percent for the minor shoulder. Id. Limitation of motion of the arm to 25 degrees from the side is rated as 40 percent for the major shoulder and 30 percent for the minor shoulder. Id. Because the Veteran is right-handed, the minor codes apply. The Veteran was afforded a VA examination for his shoulder in April 2012. At that examination there was a noted report that the Veteran jumped out of a truck in December 1991, dislocating his left shoulder. The Veteran has reported numbness and tingling of the left shoulder when he does overhead lifting, and also notices decreased range of motion. He states that abduction and shoulder extension has been very difficult. He also states that despite several sessions of physical therapy, he still has limited mobility. The Veteran reported flare ups of the shoulder. The examination indicated normal left shoulder flexion at 180 degrees and abduction at 180 degrees with no objective evidence of painful motion for either. Functional loss/impairment of the shoulder was noted, specifically weakened movement. Muscle strength testing was normal and there was no evidence of ankylosis. Upon testing, the external rotation/infraspinatus strength test was positive, as was the lift of subscapularis test. No AC joint condition or other impairment of the clavicle or scapula were noted. There was no tenderness on palpation of the AC joint and cross-body abduction test was negative. The Veteran noted a prior left shoulder replacement in 1993. The Veteran noted chronic residuals consisting of severe painful motion and weakness as a result of his surgery. In his May 2012 notice of disagreement, the Veteran described how his symptoms caused him "great discomfort." This evidence of painful motion supported a rating of 20 percent, which is the minimal compensable rating for the minor shoulder joint. See 38 C.F.R. § 4.59; Burton, 25 Vet. App. at 1. A private medical record from February 27, 2013 reflects that the Veteran had left shoulder pain with flexion of 90 degrees. In a March 2013 lay statement, the Veteran also indicated left shoulder flexion of 90 degrees. April 2015 and November 2017 shoulder examinations indicated left shoulder flexion of 80 degrees. In April 2015 the Veteran was afforded another VA examination for his shoulder, at which time he was again diagnosed with arthritis of the left shoulder and adhesive capsulitis of the shoulder. At such examination he Veteran stated that he continued to have limited range of motion of his left shoulder. He was under no active treatment for his left shoulder condition. At the time he noted no left shoulder instability, and he would take ibuprofen for the pain. He was right-handed and worked in the oil industry, which he noted is largely sedentary. He noted overhead lifting is difficult, but denied numbness and tingling of the left arm. The Veteran noted about a 20-year history of general discomfort and limitations after a left shoulder reconstruction surgery in 1993. The pain is aggravated by lifting movement. The Veteran had associated symptoms of decreased mobility, joint tenderness and tingling in the arms. Bilateral upper extremity strength is normal and left shoulder strength was noted as normal. The Veteran's lifestyle of moderate activity included weights and daily exercises. Clinical testing showed limitations with active range of motion of flexion to 80 as well as abduction to 80 degrees, with corrected compensatory posturing and internal rotation at 30 degrees and external rotation at 90 degrees. The Veteran stated that despite completing several sessions of physical therapy, he still had limited mobility. He stated that he tends to sleep on his sides more and this results in numbness of the shoulder in the morning. The Veteran was afforded another VA examination in November 2017, at which point the Veteran reported progressive loss of range of motion and pain with overhead reaching. He noted that pain increases with change in the weather and that he has a sensation of popping when he rolls from his stomach to his right side. The Veteran reported flare ups of the shoulder, specifically increased pain with reaching overhead. Flexion was to 80 degrees and abduction was to 60 degrees, with pain noted on examination no resulting in functional loss. There was no evidence of pain with weight bearing but there was objective evidence of localized tenderness or pain on palpation of the joint or associated soft tissue. The Veteran was able to perform repetitive use testing with at least three repetitions. The examiner noted examination of the left shoulder was not conducted during a flare up. Muscle strength testing of the left shoulder was normal, with no noted muscle atrophy. No ankylosis was noted of the left shoulder. A rotator cuff condition was suspected of the left shoulder, but the examiner noted he was unable to perform the Hawkins Impingement test, empty can test, and lift off subscapularis test. The external rotation/infraspinatus strength test was negative. The examiner noted that shoulder instability was suspected, but without any noted impairment of the humerus, clavicle or scapula. Use of assistive devices was not noted. The examiner noted that the Veteran's left shoulder disability would have the functional impact of no reaching overhead, behind or to the left side. He was also not allowed any lifting more than twenty pounds. The examiner noted pain on passive range of motion testing, pain when the joint is used in non-weight bearing. In November 2019 a Memorandum Decision was issued upon the Veteran's appeal to the United States Court of Appeals for Veteran's Claims, after a Board denial of an increase for his left shoulder disability. The Court found that the Board erred in their prior decision in failing to clarify the April 2015 and November 2017 shoulder examinations. The Court stated in the Memorandum Decision that the respective examiners failed to describe how functional loss of the left shoulder manifested or where weakened movement began, and failed to provide any discussion supporting he determination that pain, weakness and fatigability did not significantly limit functional ability. In a recent October 2020 examination, the examiner noted the Veteran's prior diagnosis of degenerative arthritis of the left shoulder. The Veteran reported that since his surgery in 1993 he had had decreased range of motion, weakness, pain with range of motion, numbness and tingling and progressive loss of motion for the past couple of years. He attended physical therapy rehabilitation for two full courses, and he continued his hoe exercise program including range of motion exercises. The Veteran described his left shoulder as having painful range of motion with muscle spasms at the posterior and superior shoulder, and numbness and tingling down the forearm into the hand. He had this with a frequency of 4-5 times a month, with moderate pain levels. His flare up would last 12-24 hours. The Veteran reported having functional loss or functional impairment of the left shoulder, specifically reporting that left shoulder motion was getting worse. He reported he was unable to reach out, up or across and also unable to reach behind. The Veteran's range of motion measurements of the left shoulder showed flexion to 85 degrees, abduction to 85 degrees, external rotation to 55 degrees and internal rotation to 90 degrees. The examiner found that the Veteran's range of motion itself contributed to functional loss of the decreased range of motion limiting his ability to reach up, out to the side and behind. The examiner noted that the Veteran had pain upon flexion, abduction, and external rotation. There was moderate tenderness with palpation of the anterior shoulder joint and of the AC joint, which was directly related to the claimed condition. The Veteran's pain occurred in moderate severity of the left shoulder. There was noted pain with weight bearing and objective evidence of crepitus. The Veteran was able to perform repetitive use testing with at least three repetitions with no additional loss of function or range of motion after the three repetitions. The Veteran's examination of the left shoulder reflected pain, weakness or fatigability or incoordination significantly limiting functional ability with repeated use over a period of time. The examiner noted that the Veteran had pain, fatigue, weakness, and lack of endurance which were able to be described in terms of range of motion limitation. Specifically, the Veteran's flexion was to 75 degrees, abduction was to 75 degrees, external rotation was to 45 degrees and internal rotation was to 90 degrees. The Veteran's muscle strength testing showed reduction in muscle strength due to his left shoulder disability, and active movement against gravity upon testing of the left shoulder. The Veteran had muscle atrophy due to the claimed left shoulder condition. The location of the muscular atrophy was at 10 centimeters down from the humeral head. There was no ankylosis noted upon examination of the left shoulder. A rotator cuff condition was not suspected and there was no indication of instability, dislocation or labral pathology suspected. The examiner noted that a clavicle condition was suspected, specifically arthritis of the left clavicle. The examiner noted that the clavicle condition affected the range of motion of the left shoulder and there was noted tenderness of the palpation of the AC joint. Cross body abduction test was positive on the left side. No malunion or deformity of the humerus was noted. The examiner noted the prior surgery of the Veteran's left shoulder in September 1993, and noted the residuals of such surgery included painful range of motion, decreased range of motion and arthritis. The Veteran had a noted scar of the left shoulder, measuring 3cm long and 2cm wide but noted such were not painful or unstable. The examiner did not note the use of any assistive devices. The examiner noted that the Veteran's left shoulder disability affected the Veteran's ability to work, noting specifically that he lost 0-1 week of work in the past year and that because his shoulder condition causes limitation in range of motion and painful range of motion of the left shoulder, he is unable to reach up and get anything from a shelf. He is also unable to reach out to the side to grab paperwork or hand someone an item which directly and negatively affects his current job duties. His intermittent numbness in the arm does not affect his work. The Board finds that the evidence does not support an additional increased rating. The April 2012 VA shoulder examination (received 4/4/12, page 72 of 95) states that with overhead lifting, the Veteran experiences flare-ups characterized by numbness and tingling. The Veteran is able to perform repetitive use testing with three repetitions and no loss in range of motion, but with functional loss reflected by weakened movement. The examiner states that the Veteran's shoulder disorder does not impact his ability to work. There is no indication that the range of motion for the Veteran's shoulder is limited to at or below shoulder level. At such examination, with flexion and abduction both showing to 180 degrees. At the Veteran's April 2015 examination flexion and abduction were to 80 degrees. The Veteran still reported pain with overhead lifting and limited range of motion of the left shoulder. The October 2017 examination noted that flexion was to 80 degrees and abduction was to 60 degrees, with pain noted on examination no resulting in functional loss The October 2020 examination also did not reflect any indication that the motion of the Veteran's left shoulder is limited to midway between the side and shoulder level (45 degrees or less). The Veteran reported having functional loss or functional impairment of the left shoulder, specifically reporting that left shoulder motion was getting worse. He reported he was unable to reach out, up or across and also unable to reach behind. The Veteran's range of motion measurements of the left shoulder showed flexion to 85 degrees, abduction to 85 degrees. There was noted pain with weight bearing and objective evidence of crepitus. The Veteran was able to perform repetitive use testing with at least three repetitions with no additional loss of function or range of motion after the three repetitions. The Veteran's examination of the left shoulder reflected pain, weakness or fatigability or incoordination significantly limiting functional ability with repeated use over a period of time. The examiner noted that the Veteran had pain, fatigue, weakness, and lack of endurance which were able to be described in terms of range of motion limitation. Specifically, the Veteran's flexion was to 75 degrees, abduction was to 75 degrees, external rotation was to 45 degrees and internal rotation was to 90 degrees. Taken together, the weight of the evidence does not support the existence of additional limitation of motion or functional loss beyond what the Veteran is being compensated for under his current rating. Diagnostic Code 5201 requires that for the minor arm, the Veteran have limitation of motion of the arm to 25 degrees from the side. Throughout the appeal period, the Veteran did not have limitation of motion to 25 degrees of the left arm. His April 2012 showed flexion to 180 degrees and his April 2015 examination showed limitation to 80 degrees. His November 2017 examination showed flexion to 80 degrees. At his most recent examination, the Veteran's flexion was to 85 degrees and abduction was to 85 degrees. Even considering the limited functional ability with flare-ups, the examiner found that such limitation was to 75 degrees flexion and abduction. The Veteran noted pain upon such examination, and moderate tenderness with palpation of the anterior shoulder joint and of the AC joint. The Board finds that the Veteran is not entitled to an increased rating of 30 percent, as his left shoulder range of motion is not limited to 25 degrees. Furthermore, the Veteran is not entitled to an additional increased rating under DeLuca. While there is notable pain, there is no evidence that this pain limits shoulder motion beyond what he is already being compensated for. Moreover, as was noted above, limitation of motion at the next high schedular level, even if found warranted based on pain on functional use, would still not entitle the Veteran to higher rating because this is his minor shoulder. Both earlier examinations also specifically note that he can perform repetitive use testing with no loss in range of motion. The most recent examination showed some loss of range of motion upon repetitive testing, but not a significant amount, the limitation was to 75 degrees from 85 prior to repetitive testing. The weight of this evidence is against an increased rating for the Veteran's left shoulder under the applicable rating criteria and Deluca. For no period of the appeal is there evidence of ankylosis or humerus impairment so as to support a higher rating under a different Diagnostic Code. The evidence did indicate clavicle arthritis and lift of subscapularis, but such does not support a higher rating under the clavicle/scapula diagnostic code as there was not noted dislocation of or nonunion of the clavicle or scapula. The evidence does not support additional staged ratings for any time period on appeal. T. V. CASEY Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Nadia Kamal, 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.