Citation Nr: 22011087
Decision Date: 02/25/22	Archive Date: 02/25/22

DOCKET NO. 16-45 083
DATE: February 25, 2022

ORDER

Entitlement to a rating of 20 percent, but no higher, for the period from August 13, 2015 to November 11, 2021 for a left shoulder disability is granted.

Entitlement to a rating in excess of 20 percent for the period November 12, 2021 forward for a left shoulder disability is denied.

REMANDED

Entitlement to service connection for a neck disability, to include as secondary to  service-connected left shoulder disability and/or service-connected migraine headaches is remanded.

FINDINGS OF FACT

1. From August 13, 2015 to November 11, 2021, the evidence reflects that the Veteran's left shoulder disability was manifested by painful motion.

2. For the period from November 12, 2021, the Veteran's left shoulder disability has been manifested by limitation of motion at the shoulder level during flare ups but does not show limitation of motion approximating flexion and/or abduction limited to 25 degrees to warrant a 30 percent rating.

CONCLUSIONS OF LAW

1. For the period from August 13, 2015 to November 11, 2021, the criteria for a rating of 20 percent, but no higher, for a left shoulder disability have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.4, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5024-5201.

2. The criteria for a rating in excess of 20 percent for a left shoulder disability from November 12, 2021 have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5024-5201.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty in the United States Army from October 2002 to June 2005.

These matters come before the Board of Veterans' Appeals (Board) on appeal from a November 2015 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO).

In May 2021, the Veteran testified before the undersigned Veterans Law Judge at a video conference hearing. A transcript of the hearing is of record.

The Board remanded these claims in August 2021 for additional development. As the actions specified in the remand have been substantially completed, this matter has been properly returned to the Board for appellate consideration. See Stegall v. West, 11 Vet. App. 268 (1998); D'Aries v. Peake, 22 Vet. App. 97, 105 (2008).

The Board notes that while in remand status, the RO issued a December 2021 rating decision granting the Veteran an increased 20 percent rating for her left shoulder, effective November 12, 2021. As this constitutes a partial grant of the benefits sought, the claims remain on appeal and has been recharacterized accordingly. AB v. Brown, 6 Vet. App. 35, 38 (1993) (holding that a claimant is presumed to be seeking the maximum rating allowed by law). The issue has been recharacterized to reflect the award of the staged increased rating.

Duties to Notify and Assist

With respect to the Veteran's claim herein, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C. §§ 5100, 5102, 5103, 5103A; 38 C.F.R. § 3.159. The Veteran has not advanced any procedural arguments in relation to VA's duty to notify and assist; therefore, the Board will proceed with appellate review. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015).

Increased Rating

The Veteran generally contends that she is entitled to an increased rating for her service-connected left shoulder disability because her symptoms are more severe than contemplated by her currently-assigned ratings.

Disability ratings are determined by application of the criteria set forth in VA's Schedule for Rating Disabilities, which is based on average impairment of earning capacity. 38 U.S.C. § 1155; see generally 38 C.F.R. Part 4. When a question arises as to which of two ratings applies under a particular diagnostic code, the higher rating is assigned if the disability more closely approximates the criteria for the higher rating. Otherwise, the lower rating applies. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the veteran. 38 C.F.R. § 4.3.

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.

The Veteran's entire history is to be considered when making disability determinations. 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where, as here, entitlement to compensation already has been established and an increase in the disability rating is at issue, it is the current level of disability that is of primary concern, and VA must only address the evidence concerning the state of the disability from the time period one year before the claim for an increase was filed until VA makes a final decision on the claim. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, in such cases, when the factual findings show distinct time periods during which the veteran exhibits symptoms of the disability at issue, and such symptoms warrant different disability ratings, staged ratings may also be assigned. Hart v. Mansfield, 21 Vet. App. 505 (2007).

In determining the appropriate evaluation for musculoskeletal disabilities, particular attention is focused on functional loss of use of the affected parts. Under 38 C.F.R. § 4.40, functional loss may be due to pain, supported by adequate pathology and evidenced by visible behavior on motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. Under 38 C.F.R. § 4.45, factors of joint disability include increased or limited motion, weakness, fatigability, or painful movement, swelling, deformity or disuse atrophy.

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 non-weight-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).

The Veteran is presently in receipt of a 10 percent rating for her left shoulder disability for the period of August 13, 2015 to November 12, 2021 and 20 percent for the period from November 12, 2021 under Diagnostic Codes 5024-5201 (previously rated as left scapular and shoulder tendinopathy and tendinitis by history under Diagnostic Codes 5201-5019). 38 C.F.R. § 4.71a. Hyphenated diagnostic codes are used when a rating under one code requires use of an additional code to identify the basis for the rating assigned. See 38 C.F.R. § 4.27.

Diagnostic Codes 5019 and 5024 will be rated on limitation of motion of the affected parts, as degenerative arthritis. Diagnostic Code 5003 provides that degenerative arthritis that is established 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 there is no limitation of motion of the specific joint or joints that involve degenerative arthritis, DC 5003 provides a 20 percent rating for degenerative arthritis with x-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups, with occasional incapacitating exacerbations, and a 10 percent rating for degenerative arthritis with x-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups. Note (1) provides that the 20 percent and 10 percent ratings based on x-ray findings will not be combined with ratings based on limitation of motion. Note (2) provides that the 20 percent and 10 percent ratings based on x-ray findings, above, will not be utilized in rating conditions listed under DCs 5013 to 5024, inclusive.

Under Diagnostic Code 5201, a 20 percent rating is warranted for limitation of motion of the arm at the shoulder level for the major or minor side. 38 C.F.R. § 4.71a, Diagnostic Code 5201. Limitation of motion to midway between the side and shoulder level warrants a 20 percent rating for the minor side and a 30 percent rating for the major side. Id. Finally, limitation of motion to 25 degrees from the side warrants a 30 percent rating for the minor side and a 40 percent rating for the major side. Id.

Normal range of motion of the shoulder is flexion from 0 degrees to 180 degrees, abduction from 0 degrees to 180 degrees, to 0 degrees extension and to 140 degrees flexion. 38 C.F.R. § 4.71a, Plate II. When rating shoulder disabilities, different ratings are available for the dominant (major) and non-dominant (minor) side. 

The evidence of record shows that the Veteran is right-handed. Therefore, for rating purposes, her left shoulder is considered her minor or non-dominant extremity. See 38 C.F.R. § 4.69.

As an initial matter, the Board notes that effective February 7, 2021 VA amended the schedule of ratings for musculoskeletal disabilities. 85 Fed. Reg. 76,453 (Nov. 30, 2020) (eff. Feb. 7, 2021). However, this amendment did not change the rating criteria contained in the General Formula. Id. While the amendment did change the language contained in Diagnostic Code 5003 and 5201, these changes simply provided clarification that Diagnostic Code 5003 should be utilized for degenerative arthritis and that Diagnostic Code 5201, clarifies that loss of motion includes flexion or abduction and provides a specific range of motion measurements for the ratings (i.e., midway between side and shoulder level defined as 45 degrees, at shoulder level defined as 90 degrees). As the amendment did not substantively change the rating criteria utilized in rating the Veteran's shoulder disability, the Board will not address the amendment further herein.

1. Entitlement to an increased rating for a left shoulder disability

The Board notes that the Veteran filed her claim for an increased rating for her left shoulder disability in August 2015; therefore, the following analysis considers the relevant evidence of record up to one year prior to the date of claim.

Turning to the evidence of record, February 2015 VA medical records reflect that the Veteran complained of chronic left shoulder pain, described as intermittent sharp pain, aggravated by sleeping and certain movements- driving.  Denies any trauma, decreased range of motion of the shoulder.  On examination her left shoulder was noted as resting lower than the right, positive for left scapular crepitus.  Full range of motion in upper extremities, decrease in strength with left shoulder lateral and frontal abduction 4/5 strengths.  Point tenderness and muscle tightening located posterior neck, proximal to left shoulder.  The assessment was chronic shoulder pian, continue with Alive, Naproxen and Methocarbamo.  Acupuncture was ordered.   

The Veteran underwent a VA arm and shoulder examination in October 2015 to determine the current severity of her left shoulder disability. On VA examination, the VA examiner noted diagnoses of left scapular and shoulder tendinopathy. The Veteran reported constant, chronic left shoulder pain that she has treated with acupuncture, physical therapy, and cortisone injections as well as over the counter pain relief medication. She did not endorse experiencing flare ups. 

Physical examination revealed full range of motion of the left shoulder, with flexion to 180 degrees, abduction to 180 degrees, external rotation to 90 degrees, and internal rotation to 90 degrees. Pain was noted on abduction, but the pain did not result in any additional functional loss. Repetitive motion testing did not reveal any additional limitation of motion. There was evidence of mild discomfort medial left scapula on palpation and crepitus. The examiner found no evidence of pain on weightbearing. The Veteran's left shoulder had no reduction in muscle strength, muscle atrophy, ankylosis, no rotator cuff conditions, malunion of the joint or impairment of the humerus in either shoulder. She has not undergone any surgery to treat her shoulder condition. The Veteran noted that she occasionally uses a tens unit to relieve her shoulder pain. The examiner did not note any functional impact.

Pursuant to the October 2015 VA examination, imaging of the Veteran's left shoulder was obtained. Two views of the Veteran's shoulder revealed no fracture or other significant bone, joint or soft tissue abnormality.

Pursuant to the Board's August 2021 remand, the Veteran was afforded a new VA examination in November 2021. On examination, the examiner confirmed diagnoses of left shoulder impingement syndrome, left shoulder bicipital tendonitis, a left rotator cuff tear and bursitis. The Veteran stated she has pain in her left shoulder which she describes as a constant burning, inflaming pain with decreased range of motion and strength that she treats with physical therapy, acupuncture, cortisone shots and over the counter pain relievers.

Range of motion testing revealed flexion at 60 degrees, abduction at 55 degrees, internal rotation at 40 degrees and external rotation at 80 degrees with pain on flexion, abduction, internal rotation, and external rotation. Passive range of motion was reported as flexion at 65 degrees, abduction at 70 degrees, internal rotation at 40 degrees, external rotation at 60 degrees and pain on all ranges of motion. The VA examiner observed pain on weight bearing, non-weight bearing, active motion, passive motion, on rest/nonmovement, and noted that the observed pain causes functional loss. Further, there was evidence of crepitus and localized anterior, posterior, and inferior shoulder pain on palpation and evidence of crepitus.

The Veteran was able to perform repetitive use range of motion testing without additional loss of motion. Further, although examination not being done immediately after repetitive use over time, evidence suggests pain upon repetitive us with an estimated range of motion of flexion at 55 degrees, abduction at 50 degrees, internal rotation at 35 degrees, and external rotation at 55 degrees.

The Veteran reported flare-ups of the left shoulder that occur daily. She described them as severe, lasting hours to all day, precipitated by activity of her left arm or shoulder, overhead movements, sleeping on her left side, and lifting more than ten pounds and are alleviated by over-the-counter pain relievers, tennis balls, physical therapy, and rest. The Veteran's examination did not take place during flare up, but evidence suggests pain during flare ups and an estimated range of motion during flare ups was flexion at 50 degrees, abduction at 45 degrees, internal rotation at 30 degrees, and external rotation at 50 degrees with pain as well as reduced and weakened movement. 

The Veteran's left shoulder had no reduction in muscle strength, muscle atrophy, or ankylosis, no rotator cuff conditions, malunion of the joint or impairment of the humerus in either shoulder. She has not undergone any surgery to treat her shoulder condition. The Veteran noted that she occasionally uses a tens unit to relieve her shoulder pain. 

The Veteran exhibited full muscle strength and there was no noted muscle atrophy, ankylosis, shoulder instability, dislocation, or labral pathology. Rotator cuff conditions testing results for the left shoulder were positive. No clavicle, scapula, AC joint, or sternoclavicular joint condition was suspected. No loss of head, nonunion or fibrous union of the humerus was found. There was no malunion of the humerus with moderate or marked deformity. She did not endorse the use of any assistive devices.

Assessing the functional loss caused by the Veteran's left shoulder disability, the examiner stated that the Veteran's left shoulder negatively affects her ability to perform occupational tasks that require the movement of her neck in all positions as well as occupational tasks such as overhead movements with her arm and holding objects less than ten pounds. The examiner therefore concluded that acquiring and maintaining jobs that require the use or demand of the above occupational tasks would be difficult.

Finally, in evaluating the Veteran's current level of disability functional loss was considered. 38 C.F.R. §§ 4.40, 4.45. However, the November 2021 examiner noted that there was no further loss of range of motion after repetitive testing due to pain, fatigue, lack of endurance, flare ups and other factors. Therefore, the Veteran is still capable of flexion or abduction within range of shoulder height. 38 C.F.R. § 4.71a, Plate II.

There is no evidence that either examiner was not competent or credible. As such, the Board finds the examination reports are entitled to significant probative weight as to the severity of the Veteran's disability during the period on appeal. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301 (2008).

VA and private treatment records for the relevant period document that the Veteran continually sought treatment for her left shoulder problems. She complained of having left shoulder pain and numbness. Additionally, VA and private treatment records reflect on-going treatment for the Veteran's left shoulder disability, with consistent reports of left shoulder pain. Private treatment records note that the Veteran had good or full range of motion in October 2020, November 2020, December 2020, January 2021, and March 2021 and VA treatment records from July 2019 note full range of motion of the left shoulder. None of the treatment records indicate that the Veteran had ankylosis of the left shoulder or loss of use of her left upper extremity.

After careful review of the medical and lay evidence of record, and in consideration of the above legal criteria, the Board finds that a 20 percent rating for the Veteran's left shoulder disability, but no higher, is warranted for the entire period on appeal.

When there is evidence of painful motion, 38 C.F.R. § 4.59 operates to provide at least the minimum compensable rating available under the Diagnostic Code for the joint. Sowers v. McDonald, 27 Vet. App. 472, 478 (2016). Limitation of motion of the arm is governed by Diagnostic Code 5201, and the minimum compensable rating under this Diagnostic Code is 20 percent for the minor arm. Accordingly, an assignment of a rating of 20 percent, but no higher, for the period from August 13, 2015 to November 11, 2021 is warranted. 

However, an increased rating in excess of 20 percent for the Veteran's left shoulder disability for the period on appeal is not warranted in this case. 38 C.F.R. § 4.71a, Diagnostic Code 5201.

As noted above, the currently assigned 20 percent rating contemplates limitation of motion to shoulder level for both the major and minor side. Here, the November 2021 physical examination revealed limitation of motion at the shoulder level during flare ups, which is consistent with the 20 percent rating currently assigned and there is no evidence to support a finding that the Veteran's left shoulder condition results in impairment of the minor shoulder approximating flexion and/or abduction limited to 25 degrees from the side, even when considering any pain, weakened movement, excess fatigability, or incoordination for the relevant period to warrant a 30 percent rating under Diagnostic Code 5201. Therefore, a rating higher than 20 percent under Diagnostic Code 5201 is not warranted. 38 C.F.R. § 4.71a.

Finally, the Board has considered the applicability of other diagnostic codes. The record does not establish, and the Veteran has not alleged, ankylosis, recurrent dislocation of the humerus at the scapulohumeral joint, a flail shoulder, a false flail joint, malunion of the humerus, or impairment of the clavicle or scapula. Therefore, consideration under Diagnostic Codes 5200, 5202, or 5203 is not warranted. Neither the Veteran nor her representative has raised any other issues, nor have any other issues been reasonably raised by the record. Doucette v. Shulkin, 28 Vet. App. 366, 36970 (2017). 

For the above reasons, the evidence is neither evenly balanced nor approximately so with regard to whether a rating in excess of 20 percent for the Veteran's left shoulder disability is warranted at any time during the appeal period. The benefit of the doubt doctrine, see 38 U.S.C. § 5107(b), is therefore not for application as to this claim and a rating in excess of 20 percent therefore must be denied. Lynch v. McDonough, No. 2020-2067, 2021 U.S. App. LEXIS 37307 (Fed. Cir. Dec. 17, 2021) (only when the evidence persuasively favors one side, or another is the benefit of the doubt doctrine not for application).

REASONS FOR REMAND

Although the Board regrets the additional delay, the Board finds that remand is warranted for the remaining issue on appeal as it is necessary to ensure that there is a complete record upon which to decide these issues so that the Veteran is afforded every possible consideration.

1. Entitlement to service connection for a neck disability, to include as secondary to a service-connected left shoulder disability and/or service-connected migraine headaches is remanded.

The Veteran seeks entitlement to service connection for a neck disability, which she contends was incurred in service. The Veteran alternatively argues that her neck condition be proximately due to or caused by her service-connected left shoulder disability and/or migraine headache condition to include as do to the medications she takes to treat the conditions. 

VA treatment and private medical records show on MRI that the Veteran has degenerative changes, a subacromial spur, tendinosis, and mild bursitis in her cervical spine, or neck. At the May 2021 Board hearing, the Veteran testified that she has had neck symptoms since an initial injury to her left shoulder in service.

Pursuant to the August 2021 remand, the Veteran underwent a VA examination to determine the nature and etiology of her neck condition. Upon examination, the VA examiner confirmed diagnoses of degenerative disc disease, intervertebral disc syndrome, spinal stenosis of the cervical spine. The VA examiner then opined that the Veteran's neck disability was not likely incurred in or caused by service, stating that there was no evidence any cervical neck injury or neck condition in the medical records. 

The examiner based his negative opinion on the absence of any documented left shoulder disability during service without consideration of the Veteran's lay contentions regarding onset and continuity of symptomatology of her left shoulder condition. An opinion based on the absence of in-service complaint or diagnosis without consideration of a veteran's competent reports is inadequate. See Dalton v. Nicholson, 21 Vet. App. 23, 39-40 (2007); see also Smith v. Derwinski, 2 Vet. App. 137, 140 (1992).

The examiner further opined that there was no evidence that the Veteran's service-connected left shoulder disability and/or her service-connected migraine disability caused her neck condition, stating that shoulder pain only causes "referred neck" pain and does not cause pathological disease of the cervical spine such as degenerative joint disease, intervertebral disc syndrome or spinal stenosis. The examiner also reasoned that the medical literature and relevant scholarly sources do not connect cervical spinal diseases to left shoulder pathology and/or migraines. 

However, the RO did not provide the examiner with proper instructions regarding requirements for an adequate secondary service connection opinion and therefore the examiner did not have the opportunity to address the issue of aggravation. See El-Amin v. Shinseki, 26 Vet. App. 136, 140 (2013) (a medical opinion regarding secondary service connection must address both causation and aggravation). Therefore, the November 2021 opinion is not incomplete.

In September 2021, the Veteran submitted a letter from a VA nurse practitioner, E.D. The nurse opined the evidence persuasively weighs in favor of finding that the Veteran's neck condition is the result of her military service, reasoning that the location of her pain during her service matches the location of the pain she has been seeing VA treating providers for.

Although favorable to the Veteran, the Board cannot rely upon the above opinion as a basis to grant the Veteran's claim for service connection for a cervical spine disability. The Board finds the VA nurse's opinion to be inadequate because she reasoned that the Veteran's neck pain matches the pain she complained of in service, however, the Veteran's service treatment records do not indicate any injury, treatment, or complaints of neck pain at any time. 

Therefore, the Board finds that the Veteran's claim must be remanded once again because the RO did not comply with the Board's prior remand directives to obtain an adequate medical opinion on the Veteran's behalf. See Stegall, 11 Vet. App. at 268. On remand, the RO must obtain a medical opinion from a qualified medical professional that is adequate for the Board to make an informed decision on the Veteran's claim. See Barr v. Nicholson, 21 Vet. App. 303, 311-12 (2007); Douglas v. Shinseki, 23 Vet. App. 19, 26 (2009).

Accordingly, the matter is REMANDED for the following action:

1. Schedule the Veteran for VA examinations with a VA physician of appropriate expertise to determine the nature and etiology of the Veteran's cervical spine disability. The examiner must review the Veteran's entire claims file, to include a copy of this REMAND, and that review must be noted in the report. A complete history of symptoms must be elicited from the Veteran.

Thereafter, the examiner is asked to respond to the following:

(a) Whether the Veteran's neck disability began during service or is related to an incident of service, or began within one year of service?

(b) Whether the Veteran's neck disability was proximately due to the left shoulder disability and/or migraine headache condition, to include any medications she uses to treat those disabilities?

(c) Whether the Veteran's neck disability was aggravated by (permanently increased in severity beyond its natural progression) the left shoulder disability and/or migraine headache condition?

The examiner is advised that the Veteran is competent to report her symptoms and history and such reports must be acknowledged and considered in formulating any opinion. 

The examiner must provide a complete rationale for any opinion offered, citing to medical evidence, such as examination findings or other pertinent evidence in the record, when necessary, to support the conclusion reached. If an opinion cannot be reached without resorting to speculation, the examiner must fully explain why that is so. 

 

LESLEY A. REIN

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	Rosenthal, Ariana

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.