Citation Nr: 21042801 Decision Date: 07/14/21 Archive Date: 07/13/21 DOCKET NO. 15-40 446 DATE: July 14, 2021 ORDER Entitlement to an initial rating in excess of 20 percent for residuals of a left humeral fracture (left shoulder disability) is denied. FINDING OF FACT Left (minor) shoulder disability is manifested by not more than arm limitation of not more than in excess of midway between side and shoulder level; limitation of motion to 25 degrees from side is not shown or approximated. CONCLUSION OF LAW The criteria for a rating in excess of 20 percent for left (minor) shoulder disability have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.59, 4.7, 4.71a, Diagnostic Code 5003-5201. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran appealed a May 2013 rating decision from a Department of Veterans Affairs (VA) Regional Office (RO) that granted an initial 10 percent rating for the left shoulder. In August 2019, and the Board granted an initial rating of 20 percent, but no higher, for the Veteran's left shoulder disability. The Veteran timely appealed the April 2019 Board decision to the United States Court of Appeals for Veterans Claims (Court). In April 2020, the parties filed a Joint Motion for Partial Remand (JMR), which the Court granted in an April 2020 Order, partially vacating the portion of the Board's decision that had denied an initial rating higher than 20 percent for the Veteran's left shoulder disability and remanded this claim back to the Board for further development and readjudication in compliance with its Order. In July 2020, the Board remanded this matter in order to obtain a new VA examination per the Court's Order. In February 2021, the Board remanded this matter again in order to obtain a new VA examination per the Court's Order, finding the recently-obtained examination inadequate. The matter has been returned to the Board. 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 resulting from disability. Separate diagnostic codes identify the various disabilities. 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 for the higher evaluation; otherwise, the lower evaluation will be assigned. 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability will be resolved in favor of the Veteran. 38 C.F.R. § 4.3. Separate ratings may be assigned for separate periods of time based on the facts found. This practice is known as "staged" ratings." Fenderson v. West, 12 Vet. App. 119, 126-127 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). When assessing the severity of a musculoskeletal disability that is at least partly rated on the basis of limitation of motion, VA must also consider the extent that the Veteran may have additional functional impairment above and beyond the limitation of motion objectively demonstrated, such as during times when his symptoms are most prevalent ("flare-ups") due to the extent of his pain (and painful motion), weakness, premature or excess fatigability, and incoordination-assuming these factors are not already contemplated by the governing rating criteria. DeLuca v. Brown, 8 Vet. App. 202, 204-7 (1995); see also 38 C.F.R. §§ 4.40, 4.45, 4.59. Entitlement to an initial rating in excess of 20 percent for left shoulder disability is denied. The Veteran seeks a higher rating, arguing that medical evidence of record supports a higher rating. However, as explained below, we find that the preponderance of the evidence is against the claim. In the JMR, the parties stated that the Veteran's November 2012 and January 2016 VA examinations were inadequate because the examiners failed to comply with the requirements of Correia v. McDonald, 28 Vet. App. 158, 168 (2016) (measuring active and passive ranges of motion as well as pain with both weight-bearing and non-weight-bearing), as well as the requirements of Sharp v. Shulkin, 29 Vet. App. 26, 34-36 (2017) (soliciting information regarding flareups and providing an opinion on how flareups impact range of motion). The Veteran was afforded a new VA examination in October 2020, but the examination was also inadequate because examiner did not adequately consider the Veteran's reports regarding flare ups. The Board noted in the second remand that the contentions were (1) that pain was worse with weather changes and (2) that pushing, pulling, and movement to chest level and above caused pain. The Veteran argued in December 2020 that the October 2020 examination was incomplete because the examiner did not measure 'range of motion, strength or flare ups'. A new VA examination was conducted in April 2021. The left (minor) shoulder disability is rated 20 percent disabling under DCs 5003 and 5201 using the Schedule of Ratings Musculoskeletal System. 38 C.F.R. § 4.71a. This is representative of degenerative arthritis of the joint established by X-ray in combination with limitation of motion of the arm, specifically at shoulder level. The medical record reflects that the Veteran is right-handed, so this is the non-dominant or minor upper extremity. Here, we find that the April 2021 VA shoulder disability benefits questionnaire (DBQ) is the most accurate assessment of the current manifestations of the left shoulder. It is comprehensive and based upon a review of the entirety of the record as well as examination. It is considered wholly consistent with the treatment record as to degree of disability throughout the rating period. It is fully compliant with 38 C.F.R. §§ 4.40, 4.45, 4.59, and the related case of Correia v. McDonald, 28 Vet. App. 158 (2016), with regard to joint testing and the assessment of functional loss during flare-ups. Here, we note that the Veteran specifically denied flare-ups during this examination. Higher ratings under DC 5201 include a 30 percent rating for the minor arm with limitation to 25 degrees from side. The Veteran's arthritis, 38 C.F.R. § 4.59 allows consideration of functional loss due to painful motion to be rated to at least the minimum compensable rating for a particular joint, and the current 20 percent rating takes into account his painful and limited motion. The preponderance of the evidence is against this claim. First, the Board observes there is no ankylosis of the scapulohumeral articulation, nor is there flail joint, false flail joint or fibrous union of the humerus. Nor is there malunion of the humerus with moderate or marked deformity nor is there recurrent dislocation. See April 2021 VA shoulder examination. Consequently, higher ratings are not warranted based on DCs 5200 (ankylosis) or 5202 (other impairment of humerus). Second, the examination and treatment record does not demonstrate, nor does the Veteran assert that there is limited motion of the arm 25 degrees from side. Here, we note he has primarily and repeatedly complained of problems with overhead-type activity. During the April 2021 examination, he reported the functional effects as, "My pain to both shoulders is chronically a constant 8/10, left greater than right. Pain is sharp, knife like pain if working. If sitting it is a dull ache. At best 5-6/10, worse 10/10. Have limited range of motion to both shoulders, less ROM in my left compared to the right. I have tingling in the left hand, I have decreased strength in both upper extremities. I retired from my job due to no longer being able to repeatedly do over head work d/t pain, weakness, fatigue, and less endurance." Historically, he injured the left shoulder in 1987 and had surgery on the shoulder in 2012 (or 2011), which 'cleaned up the arthritis' in the shoulder. He still has pain and limited motion. He currently takes OTC Tylenol, EC 2-4 tabs daily as needed. Flexion was initially limited to 75 out of 180 degrees, abduction is limited to 65 degrees out of 180 degrees. Internal rotation was limited to 60 degrees and external rotation was limited to 50 degrees, both out of 90 degrees. On passive range of motion, flexion was limited to 65 degrees, abduction is limited to 55 degrees, internal rotation was limited to 55 degrees and external rotation was limited to 45 degrees. Pain noted on exam was determined to cause functional loss described as severe increase with pain to 9-10/10 with increased repeated movement with flexion, abduction, internal and external rotation. There was tenderness and pain at the AC joint, humeral head, posterior shoulder (scapular). With observed repetitive use, flexion was limited to 60 degrees, abduction is limited to 50 degrees, internal rotation was limited to 50 degrees and external rotation was limited to 45 degrees. With repeated use over time, flexion was limited to 60 degrees, abduction is limited to 50 degrees, internal rotation was limited to 55 degrees and external rotation was limited to 45 degrees. Fatigability, lack of endurance, pain and weakness caused functional loss with both of these ranges. As to repeated use over time, the examiner noted that the Veteran stated he is no longer able to do over the head work. The range of motion is more limited with each repetition. Pain rating 9-10/10 after repetition is noted. Veteran had visible pain with facial expressions and verbalization stating it hurts right there. Popping, grinding, noted with range of motion movements to the shoulder. Rotator cuff testing was positive. There was crepitus. There was osteoarthritis of the AC joint. Residuals of the 2011 AC arthroscopic surgery were noted as pain, limited range of motion with flexion, abduction, internal and external rotation, with pain rating 5/10 at rest. Looking posteriorly at back and shoulders, right shoulder was slanted downward, left shoulder was not as rounded and 'more flat' in appearance. There was no visible scarring from the left shoulder surgery. As to the functional impact, the examiner noted he was an aircraft mechanic/ custodian and facility director for a school system, and he was retired. 0-1 week work time lost in last 12 months. Also noted were pain, limited range of motion and no overhead work as well as no repetitive lifting, pushing or pulling. There was no muscle atrophy. The new diagnosis was bilateral AC, glenohumeral osteoarthritis, bilateral rotator cuff tendonitis. Treatment records do not show a more restricted range of motion of the left shoulder than was demonstrated on the examination nor are other symptoms noted. The 2021 examination contains all information required to evaluate the left shoulder. Based on the above, the Board finds that the Veteran does not meet or approximate the criteria for a higher rating for the left shoulder. The Board finds the 2021 VA examiner's assessments as to range of motion and functional impact to be significant and highly probative as to the fact that motion is not limited to 25 degrees from side, the criteria for a 30 percent rating, even considering his functional limits due to pain, fatigue, weakness and lack of endurance. The Veteran has not actually made assertions as to limitations in excess of this. Also, the examination in 2021 was conducted with consideration of whether there were flare-ups, but the Veteran specifically denied flare-ups, so no further reduction in range of motion is suggested for flare-ups. He has indicated that he has trouble with overhead work and repetitive work due to problems with his shoulder. The functional limitation identified by the 2021 VA examiner is he cannot raise left arm above head, no repetitive lifting, pushing or pulling. This is judged to be consistent with the 20 percent rating. Nor is there any suggestion in the record of the functional equivalent of ankylosis as discussed in Chavis v. McDonough, No. 18-2928, slip op. (U.S. Vet. App. Apr. 16, 2021). He continues to retain motion in the shoulder. The Board finds the observations in the 2021 VA report to be consistent with the record, constituting compelling and uncontroverted evidence that the left shoulder is not productive of any of manifestations warranting a higher rating. Finally, while the Board has considered the actual degree of functional impairment imposed by pain, incoordination, weakness, fatigue, and lack of endurance with repetitive motion, in accordance with 38 C.F.R. § § 4.40, 4.45, 4.59, the totality of the evidence persuades the Board that no factors are present to any appreciable degree that would support or approximate a still higher rating. We note that these factors have been considered in support of the 20 percent rating. The Veteran has reported that he has difficulty and pain with overhead action. We accept such statement. However, the current evaluation contemplates motion limited to between midway and the shoulder level. In essence, the evaluation contemplates functional use limited to significantly below shoulder level. Neither the lay nor medical evidence establishes that use of the extremity is limited to 25 degrees from the side. The criteria for a higher rating are not met or approximated at any time throughout the appeal period when all the evidence is considered. See 38 C.F.R. § 4.7. There is no reasonable doubt regarding the degree of disability. See 38 C.F.R. § 4.3 Parenthetically, we note again that there have been changes to the Schedule of Ratings for the Musculoskeletal System effective February 7, 2021, but these changes do not result in any higher rating for the left shoulder disability. Rather, the changes, in relevant part, clarify that limitation of motion of the arm under DC 5201 warrants a 30 percent rating for the minor arm with flexion and/or abduction limited to 25° from side. The manifestations present and discussed in the Veteran's case are against higher or separate ratings under any criteria. Lastly, we note a report of tingling in the fingers or hand. A neurologic disability is not shown and such manifestation, if established, does not provide a basis for a higher evaluation. H. N. SCHWARTZ Veterans Law Judge Board of Veterans' Appeals Attorney for the Board N. RIPPEL, 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.