Citation Nr: 22063243 Decision Date: 11/10/22 Archive Date: 11/10/22 DOCKET NO. 15-04 471 DATE: November 10, 2022 ORDER Entitlement to a rating in excess of 20 percent for left shoulder rotator cuff tendonitis is denied. FINDING OF FACT At no time during the period on appeal (excluding a period of temporary total rating) has the Veteran's service-connected left shoulder rotator cuff tendonitis, biceps tendonitis with post distal clavicle excision, and shoulder instability been shown to be productive of ankylosis of scapulohumeral articulation; arm motion functionally limited to 25 degrees from the side; or impairment of the humerus, clavicle, or scapula. CONCLUSION OF LAW The criteria for a rating in excess of 20 percent for left shoulder rotator cuff tendonitis have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes (DCs) 5024, 5201. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from October 1984 to January 1988 and from November 1994 to June 2011. The claim of entitlement to a higher initial rating for the left shoulder rotator cuff tendonitis was denied in a November 2018 decision of this Board and, in response, the Veteran appealed to the U.S. Court of Appeals for Veterans Claims (the Court). In a June 2019 Order, the Court granted the contesting parties' Joint Motion for Partial Remand (JMPR), vacating the Board's decision denying this claim and remanding it back to the Board for further development and readjudication pursuant to agreement in the JMPR. In October 2019, the Board remanded this claim to the local Regional Office (RO), which is the Agency of Original Jurisdiction (AOJ). In November 2020 and January 2022, the claim was again remanded to the AOJ based on a finding that there had not been substantial compliance with the Board's prior remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998). The matter is now returned to the Board for adjudication. Entitlement to a rating in excess of 20 percent for left shoulder rotator cuff tendonitis The Veteran is currently assigned a 20 percent rating for his left shoulder disability throughout the appellate period, which dates back to July 1, 2011. He contends that an initial rating in excess of 20 percent is warranted. DC 5024 is assigned for tendonitis and provides that disabilities assigned this DC are to be evaluated as degenerative arthritis based on limitation of motion of the joint and DC 5201 is assigned for limitation of motion of the arm. 38 C.F.R. § 4.71a, DCs 5024, 5201. Ratings for functional impairment of the upper extremities depend on which extremity is the major extremity, i.e., the one predominantly used by the individual. 38 C.F.R. § 4.69. Here, because the Veteran is right hand dominant, only ratings for impairments to the "minor" arm are applicable and will be set forth herein. Shoulder disability ratings are assigned pursuant to DCs 5200-5203. However, DCs 5200, 5202, and 5203 are not raised by the record, as the record does not contain a diagnosis of ankylosis or impairment of the humerus, the clavicle, or the scapula. 38 C.F.R. § 4.71a. As such, DC 5201 is the only code under which a rating higher than 20 percent is available in this case, and DCs 5200, 5202, and 5203 will not be analyzed further in this decision. DC 5201 contemplates a 20 percent rating for limitation of motion of the arm at shoulder level for both the major and minor extremity. Limitation of motion of the arm from midway between the side and shoulder level for a major extremity is rated at 30 percent and 20 percent for a minor extremity. Limitation of motion to 25 degrees from the side is rated at 40 percent for a major extremity and 30 percent for a minor extremity. 38 C.F.R. § 4.71a. Effective February 7, 2021, the criteria for Diagnostic Code 5201 were amended. See 82 Fed. Reg. 76453 (Nov. 30, 2020); 38 C.F.R. § 4.71a, Diagnostic Code 5201. Under the new criteria for Diagnostic Code 5201, a 20 percent evaluation is warranted for range of motion of either arm limited to shoulder level (flexion and/or abduction to 90 degrees); for range of motion limited to midway between the side and shoulder level (flexion and/or abduction to 45 degrees) a 30 percent rating is warranted for the major extremity and a 20 percent rating is warranted for the minor extremity; for range of motion limited to within 25 degrees from the side, a 40 percent rating is warranted for the major extremity and a 30 percent rating is warranted for the minor extremity. 38 C.F.R. § 4.71a, Diagnostic Code 5201. The Board finds the criteria for Diagnostic Code 5201 prior to and after the regulatory change are similar, with the exception that the amended rating criteria added degrees of ranges of motion to clarify that at shoulder level means 90 degrees on flexion and/or abduction and midway between side and shoulder level means 45 degrees on flexion and/or abduction. The normal range of motion of the shoulder is from 0 degrees of flexion (forward elevation) to 180 degrees of flexion, from 0 degrees of abduction to 180 degrees of abduction, from 0 degrees of external rotation to 90 degrees of external rotation, and from 0 degrees of internal rotation to 90 degrees of internal rotation. 38 C.F.R. § 4.71, Plate I. Under 38 C.F.R. § 4.59, painful motion is an important factor of joint disability and actually painful joints are entitled to at least the minimum compensable rating for the joint. This regulation also requires that, whenever possible, the joints involved are tested for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with the range of the opposite undamaged joint. See Correia v. McDonald, 28 Vet. App. 158, 168 (2016). Where functional loss is alleged due to pain upon motion, the provisions of 38 C.F.R. § 4.40 and § 4.45 must be considered. DeLuca v. Brown, 8 Vet. App. 202, 207-08 (1995). Within this context, a finding of functional loss due to pain must be supported by adequate pathology, and evidenced by the visible behavior of the claimant. Johnston v. Brown, 10 Vet. App. 80, 85 (1997). Pain itself does not rise to the level of functional loss as contemplated by § 4.40 and § 4.45, but may result in functional loss only if it limits the ability to perform the normal working movements of the body with normal excursion, strength, coordination, or endurance. Mitchell v. Shinseki, 25 Vet. App. 32, 43 (2011). Turning to the evidence of record, range of motion (ROM) findings from a September 2011 VA examination and November 2014 VA records show that active left shoulder flexion and abduction was at least 105 degrees, which is greater than shoulder level. However, the Veteran reported flare-ups or aggravation of his condition with overhead activity in both September 2011 and November 2014, as well as in October 2014. Because his ability to engage in overhead activity is limited, his disability picture approximates limitation of motion to shoulder level. During a May 2018 examination, the Veteran again reported that reaching above his head aggravated his shoulder. He further reported that he avoids certain sports and lifting due to his shoulder. On examination, flexion was to 110 degrees and abduction was to 90 degrees. There was no additional loss of range of motion after repetitive use. Pain was noted to cause functional loss. There was no evidence of pain with weight-bearing use of the shoulder. The examiner noted that pain significantly limited functional ability with repetitive use over time and flare-ups, but the examiner failed to offer ROM estimates. Based on the foregoing, when the Veteran's claim for an increased rating was before the Board in November 2018, he was granted an initial 20 percent rating based on a finding that his left shoulder disability significantly limited overhead activity. As noted above, the Veteran appealed this decision to the Court. In a June 2019 Joint Motion for Partial Remand, the parties agreed that (1) while the prior examinations noted that the Veteran had painful motion of the shoulder, the examiners failed to note the point at which such pain began, and (2) the examiners failed to note the degrees at which the Veteran's range of motion was limited on passive motion and on weight-bearing. Accordingly, when the matter was returned to the Board in October 2019, it was remanded to obtain a new VA examination. Subsequent to the October 2019 remand, the Veteran has been afforded several VA examinations. At the time of a June 2019 examination, both flexion and abduction of the Veteran's left shoulder was to 100 degrees, with pain that caused functional loss. There was evidence of pain with weight-bearing, non-weight bearing, and passive motion. With repetitive use, repeated use over time, and flare-ups, flexion and abduction of the left shoulder were to 90 degrees. Pain and lack of endurance caused functional loss. During a December 2019 examination, the Veteran reported that his left shoulder condition hinders his ability to reach, climb, and lift things. He reported severe flare-ups that occur twice daily, lasting 30 minutes to an hour, that are precipitated by sleeping on the side, attempting to reach overhead, lifting, and performing physical activities. On examination, both flexion and abduction of the Veteran's left shoulder was to 60 degrees, with pain that caused functional loss. There was evidence of pain with weight-bearing and passive motion; however, the examiner failed to provide ROM findings. There was no loss of ROM with repetitive use. With repeated use over time, flexion and abduction of the left shoulder were to 45 degrees; pain, weakness, and lack of endurance contributed to functional loss. With flare-ups, flexion and abduction were to 40 degrees; pain, weakness, lack of endurance, and incoordination contributed to functional loss. At the time of a March 2020 examination, the Veteran reported mild daily flare-ups of the shoulder, that last less than a day, and are precipitated by exertion, sleeping, climbing, and reaching. He also reported being unable to lift heavy objects without pain. On examination, flexion of the shoulder was measured to 100 degrees and abduction to 180 degrees, with pain that caused functional loss. There was evidence of pain with weight-bearing and passive motion. There was no loss of ROM with repetitive use. With repeated use over time, flexion was to 90 degrees and abduction was to 180 degrees, with pain contributing to functional loss. With flare-ups, flexion was to 90 degrees and abduction was to 180 degrees, with pain contributing to functional loss. At the time of a February 2021 examination, the Veteran reported moderate flare-ups that occur occasionally, last days, and are precipitated by lifting. He also reported pain when he lifted more than 5 pounds or put his hands behind his back. On both active and passive ROM testing, flexion and abduction of the shoulder were measured to 110 degrees with pain. There was also evidence of pain with weight-bearing. There was no loss of ROM with repetitive use. With repeated use over time, flexion and abduction were to 100 degrees with pain contributing to functional loss. With flare-ups, flexion and abduction were to 90 degrees with pain contributing to functional loss. During a September 2021 examination, the Veteran reported aching pain with certain motion, but no pain when his arms were at his sides. He reported daily flare-ups of the shoulder, that last for a couple hours, and are precipitated by movement of the arm during sleep or while taking a shower. He further stated that he could not put his hands behind his back or extend to reach things. He also reported an inability to play sports, wash the car, or take an adequate shower. On both active and passive ROM testing, flexion was to 60 degrees and abduction was to 70 degrees with pain that did not cause functional loss. There was no loss of ROM with repetitive use. With repeated use over time, flexion was to 60 degrees and abduction was to 65 degrees, with pain contributing to functional loss. On flare-up, flexion was to 55 degrees and abduction was to 60 degrees, with pain contributing to functional loss. The Veteran stated that he could not move his arm in different directions due to pain, but that he was able to type at work without pain. The examiner indicated that the Veteran was unable to lift his arm towards the head or past the shoulder level. At the time of a February 2022 examination, the Veteran reported that he could not perform certain movements, and that he needed help putting on a belt and doing other basic activities. He reported that he could not climb ladders and that he had to keep his hand "not doing anything or steady". He reported severe flare-ups that last for 30 minutes to an hour and are precipitated by any activity involving the shoulder. On active ROM testing, flexion was to 70 degrees and abduction was to 60 degrees with pain that caused functional loss. On passive ROM testing, flexion was to 90 degrees and abduction was to 80 degrees with pain that caused functional loss. There was also pain with weight-bearing and non-weight bearing. The examiner noted that the Veteran's condition affects his abilities with prolonged weight-bearing and grasp, to include limitations with reaching. The Veteran began experiencing pain at 30 degrees flexion, but could move his arm to 70 degrees. With repetitive use, flexion was to 60 degrees and abduction to 65 degrees; pain, fatigability, weakness, and lack of endurance contributed to functional loss. With repeated use over time and flare-ups, flexion was to 30 degrees and abduction to 60 degrees; pain, fatigability, weakness, and lack of endurance contributed to functional loss. Finally, an addendum medical opinion was obtained in June 2022. The examiner described the Veteran's left shoulder condition as manifested by reduced ROM, pain with ROM, reduced strength, reduced mobility, fatigability, and lack of endurance. He was noted to begin experiencing pain at 60 degrees flexion and 65 degrees abduction. After careful review of the evidence, the Board finds that an initial rating in excess of 20 percent for the service-connected left shoulder disability is not warranted. A schedular disability rating in excess of 20 percent for a minor extremity requires limitation of movement to 25 degrees from the side (flexion and/or abduction). Here, even considering pain, flare-up, and repeated use, the Veteran's left shoulder range of motion has been limited to no worse than flexion to 30 degrees and abduction to 45 degrees throughout the appeal period. Thus, the objective evidence of record shows that at no time during the appeal period (excluding a period of temporary total ratings) has the range of motion of the Veteran's left shoulder been limited to 25 degrees or less. In assessing the severity of the Veteran's right shoulder disability, the Board has given due consideration to the competent lay assertions regarding symptoms experienced and observed. See, e.g., Layno v. Brown, 6 Vet. App. 465, 470 (1994) and Grottveit v. Brown, 5 Vet. App. 91, 93 (1993). However, the criteria needed to support higher ratings involve medical findings that are within the province and purview of trained medical professionals. See Jones v. Brown, 7 Vet. App. 134, 137-138 (1994). As such, the Veteran's lay assertions are not considered more persuasive than the objective medical findings which, as indicated above, do not support assignment of any higher rating pursuant to any applicable criteria at any point pertinent to this appeal. While the Veteran is competent to report symptoms because this requires only personal knowledge as it comes to him through his senses, he is not competent to identify a specific level of disability of his left shoulder disability according to the appropriate diagnostic codes. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994). Based on the foregoing, the weight of the evidence is against the claim for an initial rating in excess of 20 percent for the service-connected left shoulder rotator cuff tendonitis. Marcus N. Fulton Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Marsh II, Associate 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.