Citation Nr: 21028381 Decision Date: 05/11/21 Archive Date: 05/11/21 DOCKET NO. 12-01 825 DATE: May 11, 2021 ORDER A rating in excess of 20 percent for residuals of right shoulder surgery with arthritis is denied. REMANDED Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities is remanded for referral to the Director, Compensation Service, for extraschedular consideration. FINDING OF FACT The Veteran's residuals of right shoulder surgery to repair a humerus impairment, including arthritis, is manifest, at worst, by minor extremity flexion and abduction limited to 75 degrees during a flare-up or lay reports of limitation to 45 degrees during flare-ups, and the record contains no evidence of dislocations, guarding movements, or limitation of motion of the arm to 25 degrees from the side during the 11-year period on appeal. CONCLUSION OF LAW The criteria for a rating in excess of 20 percent for residuals of right shoulder surgery with arthritis are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5202-5201. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from April 1972 to April 1975. This case is before the Board of Veterans' Appeals (Board) on appeal from September 2010 and September 2016 rating decisions from a Department of Veterans Affairs (VA) Regional Office (RO). In March 2017, the Veteran testified at a Board hearing. The transcript of the hearing has been associated with the record. The Board remanded this case in September 2017 for a new examination as the decreased range of motion and neurologic symptoms the Veteran described during the March 2017 hearing were not reflected in the medical evidence in the record at the time, and the VA treatment records and VA examinations of record did not include right shoulder active and passive range of motion testing. In a July 2019 decision, the Board denied the claim for a rating in excess of 20 percent for the right shoulder disability. The Veteran appealed the denial to the United States Court of Appeals for Veterans Claims, which vacated the Board's July 2019 decision in a June 2020 Order. In an accompanying Joint Motion for Remand (JMR), the parties agreed that the Board failed to provide an adequate statement of reasons or bases for its findings. Expressly, the parties agreed that the Board erred regarding its discussion and consideration of the Veteran's symptoms that are not encompassed by Diagnostic Code 5202, such as additional limitation of motion of his right arm under 38 C.F.R. § 4.71a, DC 5201. The JMR states the Board must consider the foregoing evidence to determine whether the Veteran can establish compensation under any additional schedular rating code, including to account for any functional loss. Increased Rating 1. Right shoulder disability. The Veteran's right shoulder disability is rated under 38 C.F.R. § 4.71a, Diagnostic Code 5202-5201, for other impairment of the humerus manifest in functional loss. See 38 C.F.R. § 4.27. The Veteran's representative contends that the Veteran is entitled to a separate rating of 20 percent for his right shoulder disability because the disability causes dislocation of his shoulder joint, guarding of movement, and limitation of motion of his right arm. The representative cites the Board decision, an August 2010 VA orthopedic surgery consultation, and an October 2017 VA examination in support of the argument; however, those sources do not support the contention that the Veteran's disability results in a guarding of movement or dislocations during the appeal period. The representative further argues, the Veteran experiences a limitation of motion midway between his side and shoulder level, or at 45 degrees, as the Veteran testified to during the March 2017 Board Hearing. Alternatively, the representative argues the Veteran is entitled to a separate 10 percent rating under Diagnostic Code 5003 for osteoarthritis of the right shoulder. Disability evaluations are determined by the application of a schedule of ratings, which is based on average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Separate Diagnostic Codes identify the various disabilities. Where there is a question as to which of two evaluations shall be applied, VA will assign the higher evaluation if the disability picture more nearly approximates the criteria required for that rating. Otherwise, it will assign the lower rating. 38 C.F.R. § 4.7. VA resolves any reasonable doubt regarding the degree of disability in favor of the Veteran. 38 C.F.R. § 4.3. Where a claimant appeals the denial of a claim for an increased disability rating for a disability for which service connection was in effect before he filed the claim for increase, the present level of disability is the primary concern, and past medical reports should not be given precedence over current medical findings. Francisco v. Brown, 7 Vet. App. 55, 57-58 (1994). Nevertheless, where the evidence contains factual findings that show a change in the severity of symptoms during the rating period on appeal, the Board can assign different or "staged" ratings for such different periods. See Hart v. Mansfield, 21 Vet. App. 505, 509-510 (2007). In evaluating a disability, the current examination reports in light of the whole recorded history are considered to ensure that the current rating accurately reflects the severity of the disorder. The medical and industrial history are 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. Hyphenated Diagnostic Codes are used when an unlisted disease, injury, or residual condition is encountered, requiring rating by analogy, or rating under one Diagnostic Code requires the use of an additional Diagnostic Code to identify the basis for the evaluation assigned; the additional code is shown after the hyphen. 38 C.F.R. § 4.27. The evaluation of the same disability under several Diagnostic Codes, known as pyramiding, must be avoided; however, separate ratings may be assigned for distinct disabilities resulting from the same injury so long as the symptomatology for one disorder is not duplicative of the symptomatology of the other disorder. 38 C.F.R. § 4.14; Esteban v. Brown, 6 Vet. App. 259, 262 (1994). Veterans are competent to report observable symptoms in the realm of their personal knowledge. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). The standard of proof to be applied in decisions on claims for VA benefits is set forth in 38 U.S.C. § 5107(b). Under that provision, VA shall consider all information, including lay and medical evidence of record, in a case before the Secretary concerning benefits under laws the Secretary administers. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b); see also Gilbert v. Derwinski, 1 Vet. App. 49, 57-58 (1990). The higher evaluation will be assigned when two disability evaluations are potentially applicable, and the disability picture more nearly approximates the criteria for the higher rating. 3 8 C.F.R. § 4.7. VA has an independent obligation to consider all potentially applicable provisions of law and regulation and to apply the diagnostic criteria in a manner that maximizes benefits. Schafrath v. Derwinski, 1 Vet. App. 589 (1991); Bradley v. Peake, 22 Vet. App. 280 (2008). Diagnostic Code 5003 provides that degenerative arthritis will be rated based on limitation of motion under the appropriate Diagnostic Codes for the specific joint or joints involved. 38 C.F.R. § 4.71a, Diagnostic Code 5003. A rating of 10 percent is applicable, to be combined, not added under Diagnostic Code 5003, for each major joint or group of minor joints limitation of motion effects when it is noncompensable under the appropriate Diagnostic Codes. Findings such as swelling, muscle spasm, or satisfactory evidence of painful motion must objectively confirm the limitation of motion. Disabilities of the shoulder and arm are evaluated under rating criteria that contemplate ankylosis of scapulohumeral articulation (Diagnostic Code 5200), limitation of motion of the arm (Diagnostic Code 5201), other impairment of the humerus (Diagnostic Code 5202), or impairment of the clavicle or scapula (Diagnostic Code 5203). Diagnostic Code 5201 is used to evaluate injuries resulting in limited motion of the arm. A 20 percent rating is warranted for limitation of motion of either arm at shoulder level (flexion or abduction limited to 90 degrees). Limitation of motion of the arm midway between the side and shoulder (flexion or abduction limited to 45 degrees) warrants a 20 percent rating for the minor extremity and a 30 percent rating for the major extremity. Limitation of motion of the arm to 25 degrees from side warrants a maximum 30 percent rating for the minor joint and a maximum 40 percent rating for the major joint. 38 C.F.R. § 4.71a, Diagnostic Code 5201. Under Diagnostic Code 5202, malunion of the humerus with moderate deformity warrants a 20 percent rating for both the major and minor extremity. Malunion of the humerus with marked deformity warrants a 20 percent rating for the minor extremity and a 30 percent rating for the major extremity. Recurrent dislocation of the humerus at the scapulohumeral joint with infrequent episodes and guarding of movement only at shoulder level warrants a 20 percent rating for both the major and minor extremity. Recurrent dislocation of the humerus at the scapulohumeral joint with frequent episodes and guarding of all arm movements warrants a 20 percent rating in the minor extremity and a 30 percent rating in the major extremity. The fibrous union of the humerus warrants a 40 percent rating in the minor extremity and a 50 percent rating in the major extremity. Nonunion of the humerus (false fail joint) warrants a 50 percent rating in the minor extremity and a 60 percent rating in the major extremity. Loss of head of the humerus (flail shoulder) warrants a maximum 70 percent rating for the minor extremity and a maximum 80 percent rating for the major extremity. 38 C.F.R. § 4.71a, Diagnostic Code 5202. The terms "major" and "minor" are used in the rating criteria to refer to the dominant or non-dominant upper extremity. See 38 C.F.R. § 4.69. The Veteran has stated, including in the March 2017 Board hearing, that his left arm is his dominant upper extremity. The standard 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. Forward flexion and abduction to 90 degrees amounts to shoulder level. See id. 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; 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 criteria."). Under 38 C.F.R. § 4.59, painful motion is a factor to be considered with any form of arthritis; however, 38 C.F.R. § 4.59 is not limited to disabilities involving arthritis. See Burton v. Shinseki, 25 Vet. App. 1 (2011). In Correia v. McDonald, 28 Vet. App. 158 (2016), the Court held that the final sentence of 38 C.F.R. § 4.59 requires that the examiner record the results of range of motion testing "for pain on both active and passive motion [and] in weight-bearing and non-weight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint." In Sharp v. Shulkin, 29 Vet. App. 26 (2017), the Court held that VA examiners must obtain information about the severity, frequency, duration, precipitating and alleviating factors, and extent of functional impairment of flares from the veterans themselves when a flare-up is not observable at the time of examination. During the period on appeal, the Veteran's diagnosis is for the residuals of right shoulder surgery for recurrent dislocations, including residual arthritis. The record demonstrates the Veteran underwent right shoulder surgery in 1976 after recurrent dislocations and a Bankart procedure in 2000; however, the record contains no direct lay or medical evidence of guarding or dislocations during the 11-year period on appeal. The record also has no evidence of ankylosis of scapulohumeral articulation or impairment of the clavicle or scapula; thus, Diagnostic Codes 5200 and 5203 will not be considered. A June 2010 VA treatment addendum notes the Veteran's complaints of occasional "catch-in" and pain with some right shoulder movement, occasional discomfort at night, and pain when reaching behind his head and back. In the July 2010 VA examination, the Veteran reported symptoms of weakness, giving way, lack of endurance, fatigability, and pain. He indicated he did not experience stiffness, swelling, heat, redness, locking, deformity, tenderness, drainage, effusion, subluxation, or dislocation. The Veteran described experiencing flare-ups precipitated by physical activity twice per week, lasting about two hours. The flare-ups cause increased pain in pulling, lifting, pushing, swimming, and sometimes difficulty sleeping. Examination of the range of motion showed flexion limited to 160 degrees and abduction limited to 150 degrees with no change to flexion or abduction after repetitive use. An August 2010 VA orthopedic surgery consultation note states the Veteran's status post-Bristow procedure in the right shoulder for recurrent dislocations has been stiffness and pain without trauma or change in activity. Non-steroidal anti-inflammatory drugs (NSAIDs) provide some relief. He does not have neurologic symptoms, but he does have right shoulder discomfort beyond 120 degrees elevation and 30 degrees external rotation. X-rays of the right shoulder showed mild acromioclavicular joint arthrosis and intact placement of glenoid rim screw; the diagnostic impression was bursitis of the right shoulder. Active range of motion testing of the right shoulder during a September 2010 VA physical therapy consultation demonstrated flexion limited to 135 degrees, abduction limited to 130 degrees, internal rotation limited to 35 degrees, and external rotation limited to 65 degrees. A couple of weeks after, a VA physical therapy note demonstrated a slight improvement with abduction increased to 132 degrees, internal rotation increased to 75 degrees, external rotation increased to 80 degrees, and flexion remained 135 degrees. The September 2016 VA examination was conducted during a flare-up. The examiner noted that the Veteran described flare-ups of the right shoulder as intermittent pain and limitation of motion. The examiner measured flexion and abduction limited to 75 degrees and external and internal rotation limited to 20 degrees. No additional functional loss was found after three repetitions. The examiner found no evidence of loss of muscle strength, rotator cuff condition, nor shoulder instability dislocation of labral pathology. The examiner opined that the Veteran would experience pain and decreased range of motion during exacerbations and overuse; this will affect the claimant's ability to perform some physical tasks. As noted in the September 2017 Board decision, the July 2010 and September 2016 VA examinations' range of motion testing was inadequate to the extent that they did not include a range of motion testing for both active and passive motion for the right shoulder. See Correia, 28 Vet. App. 158. In the March 2017 Board hearing, the Veteran described his arm feeling numb and weak to the point he felt like a coffee cup would fall out of his hand, and he could not pick up his grandchildren. He noted he had not had any dislocations since his surgery, but he feels as though it is going to, and he feels a dull pain all the time and regularly feels a sharp pain which lasts for about five seconds. The Veteran also testified that, during flare-ups, his range of motion is additionally limited to approximately 45 degrees. In the October 2017 VA examination, the Veteran reported his shoulder pain causes difficulty with holding objects, opening jars, lifting, pulling, and carrying; he said symptoms are worse during flare-ups, and he was not experiencing a flare-up on the day of the October 2017 VA examination. Range of motion testing of the right shoulder showed flexion limited to 130 degrees, abduction limited to 140 degrees, external rotation limited to 75 degrees, and internal rotation limited to 55 degrees with pain in all ranges of motion not resulting in or causing functional loss. There was no additional limitation of motion on repetitive range of motion testing. Physical examination of the right shoulder showed normal muscle strength, no guarding, no muscle atrophy, and no ankylosis. The impingement, empty-can, external rotation/supraspinatus strength, lift-off subscapularis, and crank apprehension and relocation tests were all negative. There was objective evidence of pain on passive range of motion testing. There was no objective evidence of pain on non-weight bearing. The examiner found no objective neurological symptoms. During the October 2018 VA examination, the Veteran described right shoulder flare-ups as an aching pain in the upper arm and right shoulder blade area, numbness, tingling, and it prevents him from sleeping on his side. The Veteran described his functional impairment as pain, numbness, and loss of the use of the arm for a few minutes. Range of motion testing of the right shoulder showed flexion limited to 160 degrees, abduction limited to 155 degrees, and external and internal rotation, each limited to 70 degrees with pain in all directions not causing functional loss. There was no additional limitation of motion on repetitive testing. Physical examination of the right shoulder showed tenderness to palpation of the joint or associated soft tissues. The examination revealed no evidence of pain with weight-bearing, crepitus, muscle atrophy, ankylosis, or impairments of the humerus. The right shoulder did have less movement than normal, limited range of motion due to pain, and strength reduced to the active movement against some resistance. A rotator cuff condition was suspected as the impingement, empty-can, external rotation/infraspinatus strength, and lift-off subscapularis tests were positive. The crank apprehension and relocation test for instability was positive. There was no evidence of pain on passive range of motion testing. There was no evidence of pain on non-weight bearing. The examiner opined that the shoulder disability results in difficulty lifting heavy weight overhead with both arms. A May 2019 VA primary care-provider progress note states the Veteran was able to reach behind his head and back. He had a negative drop arm test, which is used to assess rotator cuff tears. The Veteran was last afforded a VA examination in October 2018. VA treatment records dating through April 2021 have been reviewed, and the Board finds that the October 2018 VA examination and testing is adequate and provides an accurate picture of the Veteran's disability picture from his right shoulder disability and enables the Board to rate the disability. Neither the Veteran nor the representative argued that the Veteran's right shoulder disability has increased in severity since the last examination. Therefore, Board finds a new examination is not warranted at this time. The Board finds that the preponderance of the evidence is against a rating in excess of 20 percent for a right shoulder disability. The Board acknowledges the Veteran's lay reports of symptoms and functional loss limiting motion to 45 degrees due to pain, weakened movement, excess fatigability, incoordination, repetitive use, pain during flare-ups, and numbness. However, although the most probative evidence of the record does not demonstrate flexion or abduction limited to 45 degrees; even if it did, it would not warrant a rating in excess of 20 percent as the Veteran's right shoulder is his minor extremity. The Veteran does not contend, and the evidence does not support a finding of symptoms more nearly approximating limitation of motion of the arm to 25 degrees from the side of the minor extremity. Accordingly, a rating in excess of 20 percent, pursuant to Diagnostic Code 5201, is not warranted. The Board notes the record contains medical evidence of instability of the right shoulder. Nevertheless, the record does not demonstrate any episodes of dislocation in over a decade or throughout the period on appeal. Further, the Veteran's lay reports of symptoms, including a feeling of instability, do not result in symptoms more nearly approximating malunion of the humerus, any deformity of the joint, any episodes in the past decade of dislocation of the humerus at the scapulohumeral joint, any guarding of movements of the joint, fibrous union of the humerus, nonunion of the humerus, or loss of head of the humerus. The conclusion that the Veteran's right shoulder disability was not manifested by any episodes of dislocation since before 2010 is bolstered by the Veteran's testimony during the Board March 2017 hearing that his shoulder did not dislocate since his surgery. While he has certainly experienced episodes of instability, no dislocations have been demonstrated at any time during the period on appeal. Moreover, there is simply no medical evidence of guarding of arm movements during the period in question. The probative evidence of the record demonstrates that the residuals of the Veteran's right shoulder surgery are loss of range of motion, instability, and arthritis. The foregoing evidence does not establish any episodes of dislocation or guarding of arm movements, as required for an increased rating or any rating under Diagnostic Code 5202. Accordingly, a rating of the Veteran's residuals of right shoulder surgery to repair a humerus impairment under Diagnostic Code 5202 requires the use of Diagnostic Code 5201, which considers the symptoms of the Veteran's disability and is the basis for the evaluation assigned. Hence, why the Veteran's disability is rated under the hyphenated Diagnostic Code 5202-5201. See 38 C.F.R. § 4.27. In reaching the above-noted conclusion, the Board has, consistent with DeLuca, considered the Veteran's functional loss due to pain and other factors set forth in 38 C.F.R. § 4.40 and 4.45; however, the pertinent medical evidence reflects that the assigned 20 percent rating properly compensates the Veteran for the extent of any such loss, including the worse of the Veteran's self-described symptoms of range of motion loss albeit no medical evidence of flexion and abduction limited to less than 75 degrees as recorded during a flare-up in September 2016. Notably, the Veteran did not argue, and no evidence demonstrates his arm motion was limited to 25 degrees or less from the side, as required for assignment of the next higher rating under Diagnostic Code 5201. While the Veteran described symptoms of numbness, the record contains no objective neurological symptoms, including radiculopathy or neuropathy, despite diagnostic testing. The Board has also considered the argument made by the Veteran's attorney that the Veteran is entitled to a separate rating for arthritis. Under Diagnostic Code 5003, arthritis is evaluated based on limitation of motion under the appropriate Diagnostic Codes for the specific joint involved. When, however, the limitation of motion of the specific joint or joints involved is noncompensable under the applicable Diagnostic Codes, a rating of 10 percent is for application for each such joint or group of minor joints affected by limitation of motion, to be combined, not added, under Diagnostic Code 5003. The limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. 38 C.F.R. § 4.71a, Diagnostic Code 5003. When a Veteran has separate and distinct manifestations attributable to the same injury, he should be compensated under different Diagnostic Codes. See Esteban v. Brown, 6 Vet. App. 259 (1994). However, the evaluation of the same disability or the same manifestations of a disability under various diagnoses constitutes pyramiding and is prohibited. 38 C.F.R. § 4.14. The Veteran does not have two wholly separate impairments of the right shoulder; rather, the 20 percent rating currently assigned contemplates symptomatology that is not separate and distinct from that considered under the Diagnostic Codes for rating arthritis and limitation of motion. As such, a separate rating for arthritis is not warranted. The Board has considered whether any other Diagnostic Codes related to disabilities of the shoulder would provide for a higher disability rating. However, the evidence does not reflect that the symptoms warrant a higher rating under a different Diagnostic Code, and Diagnostic Code 5202-5201 wholly considers the Veteran's symptoms. See 38 C.F.R. § 4.71a. In conclusion, the Board finds that the preponderance of the evidence is against the Veteran's appeal for a rating in excess of 20 percent for residuals of right shoulder surgery, including arthritis. In denying a higher rating, the benefit of the doubt doctrine has been considered, but it is not applicable. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. REASONS FOR REMAND 1. Entitlement to a TDIU. In the April 2021 Brief, the Veteran's representative raised the issue of entitlement to a TDIU pursuant to Rice v. Shinseki, 22 Vet. App. 447 (2009). A remand is required for referral of the claim for a TDIU to the Director, Compensation Service, for extraschedular consideration. The Veteran has the following disabilities that are service connected: residuals of prostate cancer in remission, including voiding dysfunction (rated 100 percent from July 29, 2014, to July 31, 2015, and 40 percent from August 1, 2015, to present); residuals of right shoulder surgery with arthritis (noncompensable from July 22, 1976, 100 percent from August 27, 1976 to December 31, 1976, noncompensable from January 1, 1977 to March 17, 2002, 10 percent from March 18, 2002, 20 percent from May 10, 2010 to present); right knee degenerative joint disease (DJD) flexion (rated 10 percent from April 16, 2013); right shoulder surgical scar (noncompensable from March 18, 2002, to present); right knee DJD extension (noncompensable from April 16, 2013). Based on the forgoing, the Veteran does not meet the percentage standards set forth in § 4.16(a). Therefore, the Board may not consider his claim for a TDIU in the first instance but will refer it to the Director, Compensation Service; there is a reasonable possibility that he is unemployable by reason of service-connected disabilities. 38 C.F.R. § 4.16(b). In the April 2021Appellate Brief, the Veteran's representative argued the Veteran cannot work since December 2013 due to symptomatology associated with service-connected right shoulder disability, right knee disability, and voiding dysfunction. Accordingly, remand is required to refer of the claim for a TDIU to the Director, Compensation Service, for extraschedular consideration. The matters are REMANDED for the following action: Refer the Veteran's claim for TDIU to VA's Director of Compensation Service for extraschedular consideration. R. FEINBERG Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. Costa, 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.