Citation Nr: 21030057 Decision Date: 05/17/21 Archive Date: 05/17/21 DOCKET NO. 16-23 960 DATE: May 17, 2021 ORDER A rating in excess of 20 percent prior to November 12, 2013 for residuals, status post axillary and suprascapular nerve palsy, status post axillary nerve exploration surgery, with residual left deltoid atrophy, weakness, and limitation of motion, left (minor) shoulder is denied. A rating in excess of 30 percent from November 12, 2013 for residuals, status post traumatic injury, with axillary and suprascapular nerve palsy, status post axillary nerve exploration surgery with residual left deltoid atrophy, weakness, and limitation of motion, left (minor) shoulder is denied. FINDINGS OF FACT 1. For the one year period prior to the claim for increase received by VA on November 12, 2013, the most probative evidence of record does not show a factually ascertainable increase, to the 30 percent or higher level, for the Veteran's left shoulder disability at issue. 2. From November 12, 2013, the Veteran's left shoulder disability, as a minor extremity, is assigned the maximum schedular rating under Diagnostic Code 5303. 3. The Veteran's left shoulder disability has not manifested in symptomology productive of complete paralysis of his left circumflex nerve or severe incomplete paralysis of his left upper radicular group. 4. The Veteran's left shoulder disability has not manifested in symptomology productive of scapulohumeral articulation ankylosis. 5. The Veteran's left shoulder disability has not been shown to have fibrous union or nonunion of the left humerus; and he does not have loss of the head of the left humerus. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 20 percent prior to November 12, 2013 for residuals, status post axillary and suprascapular nerve palsy, status post axillary nerve exploration surgery, with residual left deltoid atrophy, weakness, and limitation of motion, left (minor) shoulder have not been met. 38 U.S.C. §§ 1155, 5110, 5107; 38 C.F.R. §§ 3.400, 4.124a, Diagnostic Code 8518. 2. The criteria for a rating in excess of 30 percent from November 12, 2013 for residuals, status post traumatic injury, with axillary and suprascapular nerve palsy, status post axillary nerve exploration surgery with residual left deltoid atrophy, weakness, and limitation of motion, left (minor) shoulder have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.71a, Diagnostic Code 5201, § 4.73, Diagnostic Code 5303, § 4.124a, Diagnostic Code 5303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from November 2000 to November 2006. His service decorations include the combat action ribbon. The Board thanks him for his service. He appeals an August 2014 agency of original jurisdiction (AOJ) rating decision based on a claim filed in November 2013. A March 2016 rating decision increased the rating to 30 percent from November 12, 2013. These are legacy appeals which were remanded by the Board in September 2020. Additional evidence was submitted by the Veteran in February 2021, subsequent to the most recent, January 2021 Supplemental Statement of the Case issued for the appeal herein. In March 2021, the Veteran's representative waived AOJ review of any newly submitted evidence. Further, if new evidence is submitted with or after a substantive appeal received on or after February 2, 2013, then it is subject to initial review by the Board unless the veteran explicitly requests AOJ consideration. Here, the substantive appeal for this appeal was filed after February 2, 2013, and the record reflects that the entirety additional evidence was submitted by the Veteran. Thus, the Board may proceed with appellate review. Disability ratings are based upon VA's Schedule for Rating Disabilities as set forth in 38 C.F.R. Part 4. The percentage ratings represent as far as can practicably be determined the average impairment in earning capacity in civil occupations. 38 U.S.C. § 1155. The disability must be viewed in relation to its history. 38 C.F.R. § 4.1. A higher evaluation shall be assigned where the disability picture more nearly approximates the criteria for the next higher evaluation. 38 C.F.R. § 4.7. Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary importance. Francisco v. Brown, 7 Vet. App. 55 (1994). Nevertheless, where the evidence contains factual findings that show a change in the severity of symptoms during the course of the rating period on appeal, assignment of staged ratings would be permissible. Hart v. Mansfield, 21 Vet. App. 505 (2007). When determining the severity of musculoskeletal disabilities, which are at least partly rated on the basis of range of motion, VA must consider the extent of additional functional impairment a Veteran may have above and beyond the limitation of motion objectively demonstrated due to pain, limited or excess movement, weakness, incoordination, and premature or excess fatigability, etc., particularly when symptoms "flare up," to include periods of prolonged use, and assuming these factors are not already contemplated in the governing rating criteria. See 38 C.F.R. §§ 4.40, 4.45, 4.59; Sharp v. Shulkin, 29 Vet. App. 26, 31-35 (2017); DeLuca v. Brown, 8 Vet. App. 202, 206 (1995). Painful, unstable, or malaligned joints, due to healed injury, are entitled to at least the minimum compensable rating for the joint. See 38 C.F.R. § 4.59. The Veteran appeals for a rating in excess of 20 percent for the left shoulder disability at issue, for the period from November 12, 2012 through November 11, 2013; and for a rating in excess of 30 percent from November 12, 2013. Prior to November 12, 2013, the Veteran's left shoulder disability is rated under Diagnostic Code 8518, which provides for a 20 percent rating for severe incomplete paralysis of the minor extremity's circumflex nerve. A 40 percent rating is warranted under Diagnostic Code 8518 for the minor extremity's circumflex nerve when there is complete paralysis; abduction of the arm is impossible, outward rotation is weakened; muscles supplied are deltoid and teres minor. From November 12, 2013, the Veteran's left shoulder disability rated under Diagnostic Code 5303, which is for muscle group III. Function is elevation and abduction of the arm to the level of the shoulder. Acts with 1 and 2 of muscle group II in forward and backward swing of arm. Intrinsic muscles of shoulder girdle: (1) Pectoralis major l (clavicular) (2) deltoid. Thirty percent is the maximum schedular rating under Diagnostic Code 5303 for non dominant extremity. Other Codes are also for consideration. See Butts v. Brown, 5 Vet. App. 532, 538 (1993) (en banc). Under Diagnostic Code 5201, a 20 percent rating is warranted when range of motion is limited at shoulder level, a 30 percent rating is assigned when the range of motion is limited to midway between side and shoulder level and a 40 percent rating is assigned when range of motion of the arm is limited to 25 degrees from the side. 38 C.F.R. § 4.71a. Effective February 7, 2021, under Diagnostic Code 5201, a 20 percent rating contemplates limitation of motion of the arm at shoulder level (flexion and/or abduction limited to 90 degrees) (for both major and minor extremity) and midway between side and shoulder level (flexion and/or abduction limited to 45 degrees) (minor extremity). A rating of 30 percent rating requires limitation of motion of the arm midway between side and shoulder level (flexion and/or abduction limited to 45 degrees) (major extremity) and to 25 degrees from side (minor extremity). A 40 percent rating is assigned for limitation of motion of the arm to 25 degrees from the side (major extremity). See 85 Fed. Reg. 76453 (Nov. 30, 2020) Normal range of motion of the shoulder is set forth in 38 C.F.R. § § 4.71a, Plate I. Normal forward elevation, or flexion, is from 0 to 180 degrees. Normal shoulder abduction is also from 0 to 180 degrees. Normal external rotation and internal rotation are from 0 to 90 degrees. 38 C.F.R. § 4.71, Plate I. Under Diagnostic Code 8510, a 30 percent rating is warranted for moderate incomplete paralysis of the minor upper radicular group. A 40 percent rating is warranted when it is severe. A 60 percent rating is warranted when it is complete; all shoulder and elbow movements lost or severely affected, hand and wrist movements not affected. Based on the evidence, the Board concludes that from November 12, 2012 through November 11, 2013, a rating in excess of 20 percent is not warranted for the Veteran's service connected disability at issue. It is it not factually ascertainable based on the evidence of record, that a worsening of the Veteran's service connected left shoulder disability, occurred, to the 30 percent level or higher, at any point within one year prior to the November 12, 2013 claim. See 38 U.S.C. § 5110; 38 C.F.R. § 3.400. Accordingly, a rating in excess of 20 percent for the disability at issue from November 12, 2012 through November 11, 2013 is not warranted. Based on the evidence, the Board also concludes that a rating in excess of 30 percent is not warranted for the disability at issue at any time since November 12, 2013. In this regard, the Veteran's service connected left shoulder disability at issue is currently assigned the maximum schedular rating of 30 percent under the diagnostic code under which it is rated, Diagnostic Code 5303. As no higher rating is possible under this diagnostic code, a higher rating is not warranted. Also, the Veteran does not have the complete paralysis of his circumflex nerve warranted for the next higher alternative (40 percent) rating under Diagnostic Code 8518, and so a 40 percent rating is not warranted under Diagnostic Code 8158. In this regard, the evidence, including the September 2015 VA examination report, shows that abduction of the Veteran's left arm is not impossible. Specifically, as to the Veteran's left shoulder, the September 2015 VA examination report documented he had abduction to 50 degrees, even with repetitive testing and with consideration of pain, fatigue, weakness, lack of endurance and incoordination. Also as to his left shoulder disability, at the time of the September 2015 VA examination report, he had 5 out of 5 muscle strength in abduction. This demonstrates he does not have complete paralysis of his circumflex nerve. Additionally, under 38 C.F.R. § 4.123 for neuritis not characterized by organic changes, the maximum available is equal to moderately severe incomplete paralysis for the affected nerve. In terms of neuralgia under 38 C.F.R. § 4.124, the maximum rating available is equal to moderate incomplete paralysis for the affected nerve. Thus, application of these provisions would provide less than has already been assigned for the disability at issue, and thus, do not assist the Veteran. Also, the Veteran does not have severe incomplete paralysis of his left upper radicular group to warrant a 40 percent rating under Diagnostic Code 8510. On VA examination in June 2014, the Veteran had 5 out of 5 left elbow flexion and extension strength, and his deep tendon reflexes were normal at the biceps, triceps, and brachioradialis. Also, the June 2014 VA examiner documented the Veteran's sensory function was only decreased at the left shoulder, rather than absent; and it was normal at his left inner and outer forearm and in his left hands/fingers. The June 2014 VA examiner also documented, as to the Veteran's left upper extremity, he had moderate constant pain, mild intermittent pain, and no paresthesias, dysesthesias, or numbness. Further, a July 2014 VA treatment record, documented, in part, the Veteran gave poor effort, but even then, his muscle strength in his left shoulder was graded as "at least 2/5 strength". Next, the Veteran does not have scapulohumeral articulation ankylosis, and so a 40 percent rating cannot be assigned under Diagnostic Code 5200. Also, the currently assigned rating of 30 percent is the maximum percent that could alternatively be assigned under Diagnostic Code 5201. Further, assigning a separate rating under Diagnostic Code 5201 would constitute pyramiding, as the currently assigned diagnostic code would overlap with Diagnostic Code 5201 with respect to limitation of motion. 38 C.F.R. § 4.14. Thus, Diagnostic Code 5201 is of no assistance. The Veteran and his representative, in March 2021, argued Diagnostic Code 5202 was applicable and submitted medical evidence indicating that the Veteran had a "flail" shoulder. Diagnostic Code 5202 will be discussed in separate parts as applicable to the rating criteria. First, the Board has carefully reviewed the evidence, and there is no evidence that the Veteran has fibrous union of the humerus, and so a 40 percent rating cannot be assigned under Diagnostic Code 5202 under this criteria. Next, there is no evidence of nonunion of the humerus "(false flail joint)" and so a 50 percent rating cannot be under Diagnostic Code 5202 under this criteria. Next, the Veteran does not have loss of the head of the humerus, which is clearly what the VA rating schedule requires for a 70 percent rating. The words "(flail shoulder)" in the rating criteria for the 70 percent rating, under Diagnostic Code, describe a loss of the head of the humerus, which has not been demonstrated, and so the Veteran cannot be assigned a 70 percent rating under Diagnostic Code 5202. The way the criteria is worded, it means that only a loss of head of the humerus constitutes a flail shoulder for VA rating purposes. While the evidence of record, including a November 2020 VA opinion and 2020 reports from Dr. Ken Carpenter, demonstrates that there are other appropriate uses of the term "flail shoulder" which the Veteran's left shoulder meets, the September 2015 VA examination report and other evidence indicates that he does not meet the definition of flail shoulder in VA's Diagnostic Code 5202, which very specifically and unequivocally indicates that loss of the head of the humerus is necessary. In this regard, a December 2020 VA examiner found, in part, that technically speaking the Veteran's condition does not meet the definition of flail shoulder. Accordingly, he may not be assigned a 70 percent rating under Diagnostic Code 5202. See Massey v. Brown, 7 Vet. App. 204 (1994). In Massey, the United States Court of Appeals for Veterans Claims, citing Pernorio v. Derwinski, 2 Vet. App. 625, 628 (1992), stated: "The Board's consideration of factors which are wholly outside the rating criteria provided by the regulations is error as a matter of law." The Veteran's representative argued, in March 2021, that the Veteran should be awarded a cumulative 70 percent rating because he is service connected for residuals including left deltoid atrophy, weakness, and limitation of motion and his current 30 percent rating under Diagnostic Code 5303 only reflects his left deltoid atrophy. However, Diagnostic Code 5303, by its terms, compensates for weakness and limitation of motion. Specifically, it mentions that muscle group III functionality includes elevation and abduction of the arm, as well as backward swing. The Veteran's representative further argued, in March 2021, that the Veteran is entitled to a concurrent 20 percent rating under Diagnostic Code 5201 for limited range of motion. However, as indicated above, Diagnostic Code 5303 compensates the Veteran for limitation of motion. Compensating the Veteran twice for the same impairment would be pyramiding, which is prohibited. 38 C.F.R. § 4.14. While the Veteran's representative argues that the limitation in range of motion and weakness are distinct manifestations of functional loss, they are all manifestations compensated under Diagnostic Code 5303, and so they cannot alternatively be compensated at the same time under another Diagnostic Code. Id. The representative also argued, in March 2021, that the medical opinions of record demonstrated that the functional limitations caused by the combination of weakness and restricted motion of the Veteran's left shoulder disability are equivalent to a 70 percent rating under Diagnostic Code 5202. However, as discussed above, the evidence indicates the Veteran has a "flail shoulder", but not the type of flail shoulder necessary for a 70 percent rating under Diagnostic Code 5202. The Veteran's representative also argued, in March 2020, that functional loss due to the Veteran's pain should be rated separately; however, additional functional loss, which is not already being compensated under Diagnostic Code 5303, has not been identified. The Veteran's representative also argued, in September 2017, that the Veteran's left shoulder ball deteriorated due to malunion; however, this is not demonstrated by the evidence of record. Further, it is outside the competence of the Veteran's representative in this case because the record does not show that he has the medical training or credentials to make this determination. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The Veteran argued, in May 2016, that he has no use of his left arm, and so it should be rated under Diagnostic Codes 5200 and 5202, along with the nerve damage. However, the objective medical evidence, as discussed above, does not support this contention, and providing additional ratings as requested would constitute impermissible pyramiding. Thus, based on the reasons and bases discussed, the preponderance of the evidence is against a rating in excess of 20 percent prior to November 12, 2013 and in excess of 30 percent from November 12, 2013, for the Veteran's service-connected left shoulder disability, and the benefit of the doubt rule is inapplicable. 38 U.S.C. § 5107; 38C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1991). M. ESPINOZA Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. Lawson 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.