Citation Nr: 21028731 Decision Date: 05/11/21 Archive Date: 05/11/21 DOCKET NO. 10-46 518 DATE: May 11, 2021 ORDER Entitlement to a 30 percent evaluation for service-connected left shoulder degenerative arthritis with recurrent dislocations (left shoulder disorder) is granted. FINDING OF FACT Resolving reasonable doubt in the Veteran's favor, at worst left shoulder motion is limited to 25 degrees from the side or less during flares. The symptoms do not more nearly approximate unfavorable ankylosis. CONCLUSION OF LAW The criteria for a rating of 30 percent for the left shoulder disorder, but no higher, have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Codes (DCs) 5200, 5201, 5202. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served honorably on active duty in the U.S. Army from October 1979 to October 1982. This matter comes to the Board of Veterans Appeals (Board) on appeal from an April 2010 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In May 2015, the Board denied the Veteran's increased rating claim and remanded a claim of entitlement to a total disability rating based on individual unemployability (TDIU). Then, a June 2016 Board decision denied the claim of entitlement to a TDIU. The Veteran appealed the May 2015 Board denial to the United States Court of Appeals for Veterans Claims (Court). In October 2016, the Court issued a memorandum decision setting aside the May 2015 Board decision as to the increased rating claim and remanded it to the Board. Thereafter, the Board remanded the matter in July 2017, April 2019, and November 2020. The matter is again before the Board for review. 1. Entitlement to an evaluation higher than 20 percent for service-connected left shoulder disorder. The Veteran seeks an evaluation higher than 20 percent for the service-connected left shoulder disorder. Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Schedule), found in 38 C.F.R. Part 4. The Schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. 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. When reasonable doubt arises as to the degree of disability, such doubt will be resolved in the Veteran's favor. 38 C.F.R. § 4.3. Where entitlement to compensation has been established and an increase in the disability rating is at issue, the present level of disability is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). If later evidence indicates that the degree of disability increased or decreased following the assignment of the initial rating, staged ratings may be assigned for separate periods of time. Hart v. Mansfield, 21 Vet. App. 505 (2007) (noting that staged ratings are appropriate whenever the factual findings show distinct time periods in which a disability exhibits symptoms that warrant different ratings). When adjudicating an increased rating claim, the relevant time period for consideration is the time period one year before the claim was filed. Hart, 21 Vet. App. at 509. The Veteran's left shoulder disorder is rated under 38 C.F.R. § 4.71a, DC 5201, for limitation of motion of the arm. That DC providers for different ratings for the major and minor joint. Here, the Veteran's left shoulder is the minor joint. Under DC 5201, limitation of motion of the arm at shoulder level warrants a 20 percent rating for both the major and minor extremity. Limitation of motion of the arm midway between side and shoulder warrants a 20 percent rating for the minor extremity. Limitation of motion of the arm to 25 degrees from side warrants a maximum 30 percent rating for the minor joint. 38 C.F.R. § 4.71a, DC 5201. Diagnostic Code 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." Yonek v. Shinseki, 722 F.3d 1355, 1358 (Fed. Cir. 2013). 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."). 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. In this case, the relevant evidence includes lay testimony, VA medical records, VA examination reports, private medical records, and Social Security Administration (SSA) records. Review of the evidence demonstrates it is at least as likely as not that the Veteran's left shoulder symptoms more nearly approximate motion limited to 25 degrees from the side or less during flares. The symptoms do not more nearly approximate unfavorable ankylosis with abduction limited to 25 degrees from the side. A June 2009 VA orthopedic note records the Veteran's left upper extremity passive range of motion as forward flexion to 110 degrees, abduction to 100 degrees, internal rotation to 40 degrees, and external rotation to 10 degrees. A December 2009 physical therapy discharge note reports the Veteran did very well in rehab with no additional episodes of dislocation. The Veteran was able to accomplish forward flexion to 165 degrees, abduction to 180 degrees, extension to 55 degrees, internal rotation to 97 degrees, and external rotation to 64 degrees. External rotation strength was rated 4+/5, and the Veteran continued to complain of weakness with overhead movements. In February 2010 the Veteran's private physical therapist documented that the Veteran had been treated on 2 separate occasions after undergoing left shoulder surgery for recurrent dislocations. Despite treatment, the Veteran was never able to achieve full range of motion, especially in flexion and external rotation, and his overall pain level was still rather high at 8/10 on a pain scale of 1 to 10. Although his overall strength progressed to functional levels, that did not translate to functional use of the left upper extremity. A March 2010 VA orthopedic note records left upper extremity active range of motion as forward flexion to 110 degrees, abduction to 120 degrees, internal rotation to 40 degrees, and external rotation to 30 degrees. In March 2010 VA received lay testimony from the Veteran's family members and acquaintances that the Veteran had no strength in his shoulder, and he was unable to work on vehicles or do any work that used the left arm too much. The Veteran underwent a VA examination in April 2010, at which time the Veteran reported very poor strength and persistent pain particularly when elevating the left arm. The examiner summarized the joint symptoms as instability, pain, stiffness, weakness, incoordination, decreased speed of joint, and tenderness. There was guarding of movement at the shoulder level. Initial range of motion testing in active motion showed flexion to 100 degrees, abduction to 110 degrees, internal rotation to 40 degrees, and external rotation to 65 degrees. The examiner found there was no additional limitation after 3 repetitions of range of motion. Due to the left shoulder symptoms, the Veteran had decreased manual dexterity, problems with lifting and carrying, and difficulty reaching. The SSA records include a June 2010 medical assessment report noting the Veteran's testimony that he could not move his left shoulder due to pain. Range of motion testing performed at that time shows flexion and abduction to 80 degrees, adduction to 35 degrees, internal rotation to 25 degrees, and external rotation to 30 degrees. That physician assessed the limitation of motion of the left arm as severe. The Veteran's SSA disability claim was granted, and the SSA decision discussed impairment from the left shoulder, lower back, cervical spine, and obesity. In October 2010, the Veteran's neighbor and former employer wrote that the Veteran was unable to work as a handyman, automobile mechanic, or general laborer any longer due to his left shoulder. The Veteran underwent another VA examination in February 2011. At that time initial range of motion testing showed flexion and abduction to 120 degrees, internal rotation to 70 degrees, and external rotation to 75 degrees. Pain and crepitus were noted in active motion, and there was no additional limitation after repetitive motion. The examiner noted mild weakness of the left shoulder extension, and that the left shoulder condition would affect employment and daily activities to the degree the Veteran had problems with lifting and carrying, decreased strength, and inability to do overhead work. The Veteran was again examined in May 2013, at which time he reported pain with overhead movement, extended reach, and carrying, and intermittent weakness. Initial range of motion showed flexion and adduction to 115 degrees with pain at 105 degrees. There was no loss of range of motion after repetitive use testing. That examiner noted symptoms of less movement than normal, weakened movement, excess fatigability, and pain on movement of the left shoulder. The October 2016 Court memorandum decision explained that the Board provided inadequate reasons and bases for its decision to rely on the April 2010, February 2011, and May 2013 VA examination reports when denying an evaluation higher than 20 percent for the left shoulder disorder. The Court explained that those examination reports did not provide sufficient information regarding the additional functional limitation due to weakness when lifting items, carrying items, and doing overhead work. The Veteran was again examined in April 2019. Initial range of motion testing showed flexion to 80 degrees, abduction to 90 degrees, external rotation to 60 degrees, and internal rotation to 80 degrees. The examiner reported there was no additional loss of function or range of motion after 3 repetitions. Pain was observed in active and passive motion, and in weight bearing and non-weight bearing. Muscle strength in flexion and abduction was 4/5. The Veteran reported flares of pain that caused additional loss of motion, but the examiner reported there was no basis in the medical record to offer an estimate of additional loss of function or motion during flares. The Board remanded the matter in April 2019 based on a finding that the April 2019 VA examination was inadequate. A May 2019 examiner documented the Veteran's lay testimony of flares of pain that further limited movement, and that some mornings he was unable to move his left arm due to pain. That examiner recorded initial range of motion findings as flexion to 96 degrees, abduction to 130 degrees, external rotation to 60 degrees, and internal rotation to 30 degrees. The examiner reported the Veteran was unable to move or lift the arm without pain, that there was pain in all ranges of motion, and that the pain caused functional loss. After 3 repetitions, flexion was additionally limited to 90 degrees, abduction was limited to 125 degrees, external rotation was limited to 55 degrees, and internal rotation was limited to 25 degrees. The examiner estimated that with repetitive use over time or during flares, flexion would be limited to 80 degrees, abduction would be limited to 120 degrees, external rotation would be limited to 50 degrees, and internal rotation would be limited to 20 degrees. Strength was recorded as 4/5 in flexion and abduction. The May 2019 VA examination report is also inadequate as the examiner failed to comment on the left shoulder weakness or discuss the lay testimony when providing the opinion on the additional degree of limitation during flares. In March 2021, a VA examiner opined that there was no additional functional loss due to weakness based on the findings of no weakness in the April 2019 and May 2019 examination reports. As the March 2021 examiner's conclusion is based on the inadequate April and May 2019 examination reports, the March 2021 addendum is also inadequate. In sum, all VA examinations completed during this appeal period have not adequately reported the additional degree of functional impairment due to pain and/or weakness, and during flares of symptoms. Resolving reasonable doubt in the Veteran's favor, the criteria for a 30 percent evaluation for limitation of motion of the minor joint are met for the entire period on appeal. The Veteran has testified of worsening pain and loss of motion during flares of left shoulder symptoms, with occasional inability to move the left arm during flares. That lay testimony is consistent with flexion and/or abduction limited to 25 degrees or less from the side. The Veteran's lay testimony is also consistent with the February 2010 private physical therapist's notation that the Veteran did not regain functional use of the left upper extremity, the June 2010 SSA evaluation that found severe limitation of motion of the left arm, and the May 2019 VA examination report documenting the Veteran could not move the shoulder without pain. It is not the Veteran's fault that the prior VA examination reports failed to adequately document the additional degree of functional impairment due to pain, weakness, or during flares. For these reasons, it is at least as likely as not that the left shoulder symptoms more nearly approximate the criteria for a 30 percent evaluation during flares of symptoms. To this extent, the Veteran's increased rating claim is granted. Although VA has not substantially complied with the prior remand directives, any due process error does not result in prejudice to the Veteran as this decision grants entitlement to a 30 percent evaluation for the left shoulder under DC 5201 for the entire period on appeal. Thirty percent is the highest schedular rating under DC 5201 based on limitation of motion of the minor joint without ankylosis. As a result, the deficiencies in the prior VA examinations are moot. The evidence does not reflect that the symptoms would warrant a higher rating under a different DC. See 38 C.F.R. § 4.71a. To warrant an evaluation higher than 30 percent for the minor extremity, the evidence would need to show unfavorable ankylosis with abduction limited to 25 degrees from the side. See 38 C.F.R. § 4.71a DC 5200. Ankylosis is defined as "immobility and consolidation of a joint due to disease, injury, or surgical procedure." Dorland's Illustrated Medical Dictionary, 92 (33rd ed. 2020). Here, the Veteran retains range of motion in excess of 25 degrees from the side when he is not experiencing a flare of symptoms based on the initial range of motion findings in the prior VA examination reports. There is no evidence in the claims file to indicate the Veteran's joint is completely immobilized. The Board has considered whether the requirement of ankylosis can be met with evidence of the functional equivalent of ankylosis (i.e. functional immobility of the joint) during a flare-up. Chavis v. McDonough, No. 18-2928, (Vet. App. Apr. 16, 2021). However, the evidence does not indicate that the flare-ups during which the Veteran cannot move his arm occur with the frequency or duration to approximate the overall disability picture during the appeal period. On the contrary, this extreme degree of limitation appeared only a few times in a 10+ year appeal period and was reported as occurring only "some mornings." The Board finds that the requirement of ankylosis cannot be met with evidence of the functional equivalent of ankylosis in this particular case. Thus, the criteria for an evaluation higher than 30 percent under DC 5200 are not met. The evidence also does not show fibrous union of the humerus, false flail joint, or flail joint to warrant an evaluation higher than 30 percent under DC 5202. The Board also acknowledges the prior lay testimony and medical evidence indicating that the Veteran is unable to work due to his left shoulder; however, the claim of entitlement to a TDIU was addressed and denied in a June 2016 Board decision. Since that decision, VA has not received new medical or lay evidence indicating the Veteran is unable to work due to the left shoulder disorder. The ratings assigned for the left should adequately contemplate the functional impairment due to the left shoulder disability. In sum, the criteria for an evaluation of 30 percent, but no higher, are met. LAURA E. COLLINS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. Smith, 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.