Citation Nr: 21040887 Decision Date: 07/07/21 Archive Date: 07/07/21 DOCKET NO. 14-38 283 DATE: July 7, 2021 July 7, 2021 ORDER Entitlement to an increased rating for impingement syndrome of the right shoulder, status post arthroscopy, subacromial decompression, and open biceps tenodesis (right shoulder impingement) in excess of 20 percent prior to October 19, 2018 is denied. Entitlement to an increased rating for right shoulder impingement of 30 percent, effective October 19, 2018, is granted. REMANDED Entitlement to a rating in excess of 30 percent from October 19, 2018 (excluding a temporary total evaluation from June 28, 2019 to July 31, 2019) is remanded. FINDING OF FACT Prior to October 19, 2018, the Veteran's right shoulder impingement is manifested by limitation of motion of the right arm at shoulder level. CONCLUSION OF LAW Prior to October 19, 2018, the criteria for a disability rating in excess of 20 percent for right shoulder impingement are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102,4.1-4.3, 4.7,4.71a, Diagnostic Code 5003-5201. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active duty in the Army from January 1978 to January 1982 and August 2004 to November 2005. The issue is on appeal from a February 2014 rating decision. In August 2017, the Veteran testified in a hearing before the undersigned. A transcript of the hearing is associated with the claims file. The Board of Veterans' Appeals (Board) remanded the issue for additional development in July 2018. The regional office (RO) granted a temporary 100 percent evaluation from June 28, 2019, based on surgical or other treatment necessitating convalescence, with a 20 percent rating assigned effective August 1, 2019, in an October 2019 rating decision. Subsequently, in an April 2020 rating decision, the Veteran was granted an increased rating of 30 percent for his right shoulder impingement, effective December 7, 2018. Generally, because a claim for an increased rating will be presumed to be for the maximum available benefit allowed by law, a claim remains in controversy when less than the maximum available benefit has been awarded. See AB v. Brown, 6 Vet. App. 35, 38 (1993). Therefore, the issue of an increased rating for right shoulder impingement, for each appeal period, remains before the Board. Increased Rating Disability ratings are determined by applying the criteria set forth in the VA's Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. If two evaluations are potentially applicable, 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. 38 C.F.R. § 4.7. Whether the issue is one of an initial rating or an increased rating, separate ratings can be assigned for separate periods of time based on the facts found, a practice known as "staged" ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007). Generally, when an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). The relevant temporal focus for adjudicating an increased rating claim is on the evidence concerning the state of the disability from the time period one year before the claim was filed until VA makes a final decision on the claim. Id. Here, the claim for an increased rating was filed in May 2013 and thus, the evidence review period begins in May 2012. VA's schedule for rating musculoskeletal and muscle injury disabilities was revised effective February 7, 2021, during the pendency of the appeal. Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 76,453 (Nov. 30, 2020) (to be codified at 38 C.F.R. § 4.71a). Prior to February 7, 2021, the old rating criteria solely applies. From February 7, 2021, the most favorable rating criteria of the two applies. Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). However, here, as the record is silent for relevant medical evidence pertaining to the right shoulder from February 7, 2021 onward, the Board will consider only the former criteria under Diagnostic Codes 5003-5201 for the appeal period discussed below. 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) 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). Right Shoulder Impingement The Veteran's right shoulder impingement is rated at 20 percent disabling prior to December 7, 2018 under Diagnostic Codes 5003-5201. The Board finds that a rating of 30 percent, but no greater, for reasons detailed below, is warranted from October 19, 2018. However, for the period prior to October 19, 2018, a rating in excess of 20 percent is not warranted. Hyphenated diagnostic codes are used when a rating under one diagnostic code requires the use of an additional diagnostic code to identify the basis for the rating assigned; the additional code is shown after the hyphen. 38 C.F.R. § 4.27. Prior to and beginning February 7, 2021, Diagnostic Code 5003 provides that degenerative arthritis substantiated 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. When limitation of motion is noncompensable under the appropriate diagnostic codes, a rating of 10 percent is for application for each major joint or group of minor joints affected by limitation of motion. A 20 percent evaluation is warranted for x-ray evidence of involvement of two or more major or minor joints, with occasional incapacitating exacerbations. Under Diagnostic Code 5201, prior to February 7, 2021, 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 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. Normal range of motion of the shoulder is flexion and abduction from 0 to 180 degrees, and internal and external rotation each to 90 degrees. 38 C.F.R. § 4.71, Plate I. Abduction is the motion of lifting the arm from the side, with 0 degrees representing the arm at the side and 90 degrees representing the arm at the shoulder level. 38 C.F.R. § 4.71a, Plate I. The major extremity is the one predominantly used by the veteran. Only one extremity may be considered to be major. 38 C.F.R. § 4.69. As the Veteran is right-handed, his right shoulder impingement impacts his major extremity. 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). Turning to the evidence, VA medical records demonstrate right shoulder joint pain, muscle pain, muscle weakness, numbness, swollen joints, tingling, and range of motion loss during this appeal period. In May 2013, the Veteran's right shoulder flexion measured zero to 150 degrees and abduction measured zero to 150 degrees, with decreased rotation and right grip strength. The Veteran was afforded a VA examination in January 2014. The Veteran reported undergoing a right shoulder arthroscopy in 2009 and continued to experience right shoulder pain, weakness, stiffness, and decreased range of motion. He denied experiencing flare-ups. Upon physical examination, right shoulder flexion was zero to 175 degrees, abduction was zero to 165 degrees, and rotation maneuvers demonstrated normal range of motions. All ranges of motion exhibited objective evidence of painful motion. Passive range of motion remain unchanged from active range of motion. There was no evidence of pain on weightbearing, pain on palpation, ankylosis, or guarding. Instability, dislocation, or other impairments including those of the clavicle or scapula were also not reported nor demonstrated. The Veteran was capable of performing repetitive-use testing with three repetitions without additional functional loss or impairment. After repetitive testing, range of motion values were unchanged from baseline values reported. Less movement than normal, weakened movement, and pain on movement contributed to his functional impairment. Abduction strength was a four out five (active movement against some resistance) and forward flexion strength was normal. Hawkins' Impingement, Empty-Can, and Lift-off Subscapularis tests revealed positive results. However, the Veteran's right shoulder was negative after the External Rotation/Infraspinatus Strength test. X-ray documentation was taken but did not reveal arthritis of the right shoulder. The examiner noted that strenuous physical employment was limited given the Veteran's service-connected right shoulder condition. Notably, in a July 2015 VA consult, the Veteran's bicipital groove and AC joint was tender to palpation. Range of motion showed flexion to 95 degrees, abduction to 90 degrees, external rotation to 70 degrees, and internal rotation to the upper lateral buttock. The Veteran confirmed feeling right shoulder pain with speeds and O'Brien's testing with some mild discomfort with impingement testing and mild discomfort with belly press testing. The Veteran sought private treatment for his right shoulder in September 2015 where he complained about pain with activities requiring overhead reach and lifting. The private physician noted administering a cortisone shot in a prior consult and the Veteran reported that the shot only helped him transiently for about a week. The private physician physically evaluated the Veteran flexion measured to 105 degrees, abduction to 100 degrees, external rotation to 70 degrees, and internal rotation measured to the upper labral buttock. Additionally, in September 2015, the Veteran underwent a MRI which suggested a right shoulder high-grade articular supraspinatus tear. The Veteran was afforded a VA examination in April 2017. He reported constant pain and tingling in his arm. He had not received treatment since 2015 as he had been living abroad. The Veteran denied experiencing flare-ups. Upon physical examination, flexion and abduction measured, each, from zero to 105 degrees, and external and internal rotation measured, each, from zero to 60 degrees. The examiner found that the abnormal range of motion contributed to functional loss as the Veteran had difficulty reaching overhead; and functional impairment also manifested as difficulty reaching behind his back with the right arm. Pain with all maneuvers was also noted and found to cause functional loss. The examination demonstrated evidence of pain with weightbearing and mild tenderness to the anterior right shoulder. There was no evidence of crepitus, muscle atrophy, nor ankylosis. The Veteran was capable of performing repetitive use testing with at least three repetitions with no additional functional loss of range of motion. The examiner stated that the Veteran's right shoulder was not being tested immediately after repetitive use over time and stated that he could not give an opinion regarding pain, weakness, fatigability, or incoordination's potential limitation on right shoulder functional ability as it was not medically possible to do so without resorting to mere speculation, as there was no conceptual or empirical basis for making this determination without directly observing function under these conditions. Additional contributions to his right shoulder disability were described as less movement than normal due to ankylosis, adhesions, etc. and weakened movement due to muscle or peripheral nerve injury, etc. Forward flexion and abduction shoulder strength was reduced due to his right shoulder impingement. Regarding a rotator cuff condition, the Veteran tested positive after the Empty-Can and Lift-Off Subscapularis tests. The Board notes that the examiner suspected shoulder instability, dislocation, or labral pathology however, the examiner also noted no history of mechanical symptoms, recurrent dislocation, and was unable to perform the Crank Apprehension and Relocation test. As part of his treatment plan, the Veteran underwent physical therapy with VA. In October 19, 2018, his shoulder flexion measured to 40 degrees, abduction to 52 degrees, external rotation to 28 degrees, and internal rotation to 58 degrees. The Veteran felt pain with each maneuver. Based on the evidence, the Board finds a rating of 30 percent is warranted effective October 19, 2018, or date of his physical therapy consult. However, at no point prior to October 19, 2018 did the Veteran's right shoulder flexion or abduction demonstrate limitation from the side to shoulder nor limitation to 25 degrees from the side, even during periods of increased symptomology. At worst, for the period prior to October 19, 2018, the Veteran's flexion was to 95 degrees and abduction to 90 degrees. Prior to October 19, 2018, the Board has considered functional loss due to pain, fatigability, incoordination, pain on movement, and weakness. 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202, 206-7 (1995). The Veteran reported difficulty with overhead movements and constant right shoulder pain. He denied experiencing flare-ups, and the April 2017 VA examiner provided a sufficient medical explanation as to why it was merely speculative to provide an opinion on additional range of motion loss or functional limitations after the shoulder joint was used repeatedly over a period of time. Therefore, in this case, the Veteran's symptoms are contemplated by the 20 percent rating assigned for the period prior to October 19, 2018. However, from October 19, 2018, the Veteran's range of motion was estimated at flexion of 40 degrees and abduction at 52 degrees, with pain. Therefore, the Board concludes that the functional impairment caused by the Veteran's right shoulder impingement more nearly approximates limitation of motion between side and shoulder level. Accordingly, an increased rating of 30 percent is warranted for the Veteran's right shoulder impingement, effective October 19, 2018. REASONS FOR REMAND Entitlement to a rating in excess of 30 percent from October 19, 2018 (excluding a temporary total evaluation from June 28, 2019 to July 31, 2019) is remanded. On June 28, 2019, the Veteran underwent a right shoulder arthroscopic debridement and open biceps tenodesis. In September 2019, the Veteran was afforded an additional VA examination. The examiner continued a diagnosis of right shoulder impingement and right bicipital tendonitis. The Veteran complained of constant right shoulder pain which limited his ability to perform activities of daily living nor any lifting of his right arm; he was required to use his left arm (minor) for these tasks instead. Importantly, the examiner noted that the Veteran kept his right arm at his side to remove and put on his shirt. Physical evaluation proved abnormal active range of motion, which contributed to functional loss as it manifested with an inability to reach. The Veteran's right shoulder did not reveal ankylosis, instability, nor impairment of the humerus. Pain was noted with each maneuver and found to contribute to functional loss. Evidence of pain with weightbearing and global tenderness about the shoulder was also demonstrated. Due to pain, the Veteran was unable to perform repetitive use testing and he was not examined immediately after repetitive use over time. Although pain, weakness, and fatigue were found to significantly limit functional ability with repeated use over a period of time, the examiner was unable to describe the functional limitation within terms of range of motion because marked limitation of motion would not further decrease after repetition. The Veteran scored a one out of five, or palpable or visible muscle contraction but no joint movement, after muscle strength testing of the flexion and abduction maneuvers. Muscle atrophy, although unmeasurable, was found on the deltoid. Notably, a rotator cuff condition was also suspected as the Veteran tested positive on the Hawkins' Impingement, Empty-Can, External Rotation, and Lift-Off Subscapularis tests. After acknowledging the Veteran's limited motion and weakness in the shoulder, the examiner opined that the hand conditions reported by the Veteran was due to his neurologic injury of lateral cord brachial plexus. The examiner did not note any observations for a clavicle, scapula, AC joint, and sternoclavicular joint condition. In November 2020, the Veteran was afforded his most recent VA examination of the right shoulder. The examiner diagnosed the Veteran with right shoulder impingement syndrome, bicipital tendonitis, labral tear including SLAP, and degenerative arthritis. The Veteran described his current symptoms as a needle sticking and limb-falling-asleep sensation, with constant pain averaging seven to eight out of 10. He reported finding it difficult to find a comfortable position and complained that his right shoulder conditions were affecting his quality of life as he was limited in the activities that he was able to conduct. The Veteran confirmed flare-ups of pain, especially if he attempted to drive using the right. In the mornings and in cold weather, his right shoulder stiffened. Functionally, he was unable to pick up or hold anything heavy with his right arm, hold anything with his right hand due to the tingling which caused shaking, and use his right arm to drive as this activity caused severe pain. Physical evaluation demonstrated abnormal range of motion and pain with all maneuvers, contributing to functional loss as he was unable to reach up with his right arm. His right shoulder was also found as tender to palpation. Evidence of pain with weightbearing (but not non-weightbearing) and passive range of motion was also noted. The Veteran was unable to perform repetitive use testing because he was in fear of pain; and although the examination was not conducted immediately after repetitive use over time, the examiner found the examination was medically consistent with the Veteran's statements describing functional loss with repetitive use over time. Importantly, the examiner also noted that pain, fatigue, weakness, lack of endurance, and incoordination significantly limited functional ability with repeated use over a period of time and during a flare-up. Limitation of functional ability, described in range of motion terms, showed flexion and abduction measured to 70 degrees, and external and internal rotation to 40 degrees, with repeated use over a period of time or during a flare-up. Muscle strength testing showed the Veteran rated at three out of five, or active movement against gravity. A rotator cuff condition was suspected as the Veteran tested positive on all four rotator cuff condition tests. Shoulder instability was also suspected after a history of mechanical symptoms was found and positive Crank Apprehension and Relocation test result. There was no history of recurrent dislocation of the glenohumeral joint noted. The Veteran was not found to have muscle atrophy; ankylosis; crepitus; a clavicle, scapula, AC joint, and sternoclavicular joint condition; nor impairment of the humerus. Finally, the examiner confirmed the Veteran's right shoulder revealed degenerative or traumatic arthritis on a June 23, 2019 MRI. The Board finds that remand is necessary for an addendum VA medical opinion regarding the September 2019 and November 2020 examiners' findings on the rotator cuff and muscle atrophy. The September 2019 examiner noted that the Veteran's right shoulder muscle atrophy was severe enough that he could not perform normal activities of daily living with his right hand and observed that he kept his right arm to his side when taking his shirt on and off. The November 2020 examiner found that the Veteran did not suffer from any muscle atrophy. Each examiner suspected a rotator cuff condition and the Veteran tested positive on all four tests evaluating the rotator cuff during both VA examinations. However, neither examiner provided an explicit opinion regarding the impact that muscle atrophy and rotator cuff condition had, if any, on the functional ability or loss of the Veteran's right shoulder impingement. The matters are REMANDED for the following action: 1. Obtain an addendum VA medical opinion from the September 2019 or November 2020 VA examiner, or another practitioner with similar expertise. The examiner is asked to provide an opinion on the level of impact and contribution to, if any, that the found rotator cuff issues and muscle atrophy had on the functional loss and ability of the Veteran's right shoulder impingement. 2. Readjudicate the appeal. L. M. BARNARD Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Lee 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.