Citation Nr: 22011359 Decision Date: 02/28/22 Archive Date: 02/28/22 DOCKET NO. 12-27 619 DATE: February 28, 2022 ORDER An initial rating of 20 percent, but no higher, for left shoulder bursitis is granted. FINDINGS OF FACT 1. The Veteran died in May 2016. 2. At the time of the Veteran's death, he had a pending claim of an increased rating for a left shoulder disability. 3. The competent and probative evidence shows the Veteran's left shoulder is limited to midway between side and shoulder level throughout the period on appeal. CONCLUSION OF LAW The criteria for an initial rating of 20 percent, but no higher, for a left shoulder disability are met. 38 U.S.C. § 1155; 38 C.F.R. § 4.71a, Diagnostic Code (DC) 5201. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran had active service in the United States Army from September 1969 to April 1976. This matter is before the Board of Veterans' Appeals (Board) on appeal from an August 2010 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran died in May 2016. The appellant is his surviving spouse. She requested to be a substitute claimant for the Veteran's claims that were pending at the time of his death. An April 2020 letter from the RO indicated that the request for substitution was granted. 38 U.S.C. § 5121A. Additionally, the appellant, through her representative withdrew her hearing request in January 2022. See 1/3/2022, VA 21-4138. Increased Rating Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R., Part 4. The percentages are based on the average impairment of earning capacity as a result of service-connected disability, and separate diagnostic codes identify the various disabilities and the criteria for specific ratings. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. If two disability evaluations are potentially applicable, 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. All reasonable doubt as to the degree of disability will be resolved in favor of the claimant. 38 C.F.R. § 4.3. Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the primary concern is the present level of disability. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, the Board must also consider staged ratings, which are appropriate in this case. Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007). The evaluation of the same disability under several diagnostic codes, known as pyramiding, must be avoided; however, separate ratings may be assigned for distinct disabilities resulting from the same injury so long as the symptomatology for one condition is not duplicative of or overlapping with the symptomatology of the other. Esteban v. Brown, 6 Vet. App. 259, 262 (1994); 38 C.F.R. § 4.14. The Veteran is competent to report symptoms and experiences observable by his senses. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); 38 C.F.R. § 3.159(a). Entitlement to an initial compensable rating prior to August 5, 2015, and 20 percent thereafter. The Veteran was in receipt of a noncompensable rating prior to August 5, 2015 and 20 percent thereafter for left shoulder bursitis under DC 5019-5201. 38 C.F.R. § 4.71a. Disabilities of the shoulder and arm are evaluated under rating criteria that contemplate ankylosis of scapulohumeral articulation (Diagnostic Codes 5200), limitation of motion of the arm (Diagnostic Code 5201), other impairment of the humerus (Diagnostic Code 5202) or the impairment of the clavicle or scapula, to include dislocation (Diagnostic Code 5203). Normal range of motion of the shoulder is as follows: forward elevation (flexion) to 180 degrees; abduction to 180 degrees; internal rotation to 90 degrees; and external rotation to 90 degrees. 38 C.F.R. § 4.71a, Plate I. Where arm limitation of motion is limited to 25 degrees from the side, a 40 percent evaluation is assigned for the major side under diagnostic code 5201 (30 percent for minor side). Limitation of motion midway between the side and shoulder level contemplates a 30 percent evaluation for the major side (20 percent for minor side), and limitation of motion at shoulder level contemplates a 20 percent evaluation for the major side. 38 C.F.R. § 4.71a, DC 5201. Under Diagnostic Code 5202, for impairment of the humerus, a 20 percent rating is granted when there is malunion, with moderate deformity, for the major arm; a 30 percent rating is warranted when there is marked deformity of the major arm. Also, under Diagnostic Code 5202, for recurrent dislocations of the major arm at the scapulohumeral joint, a 20 percent rating is granted with infrequent episodes, and guarding of movement only at shoulder level; a 30 percent rating is granted for the major arm when there are frequent episodes and guarding of all arm movements. For fibrous union of the major arm a 50 percent rating is assigned for the major arm. A 60 percent rating is warranted for nonunion (false flail joint) of the major arm. An 80 percent rating is warranted for loss of head of (flail shoulder) for the major arm. 38 C.F.R. § 4.71a, Diagnostic Code 5202. Further, under Diagnostic Code 5203, for impairment of the clavicle or scapula in the major arm, a 10 percent rating is granted for malunion or nonunion without loose movement and a 20 percent rating is granted for nonunion with loose movement or for dislocation. Effective February 7, 2021, VA amended DCs 5201 and 5202 to clarify that loss of motion includes flexion or abduction under DC 5201. Additionally, specific range of motion measurements were established. For a 20 percent rating, at shoulder level, flexion and/or abduction limited to 90 degrees. For a 30 percent rating (20 percent minor side), midway between side and shoulder level, flexion and/or abduction limited to 45 degrees. For a 40 percent rating (30 percent for minor side), flexion and/or abduction limited to 25 degrees from side. Under DC 5202, impairment of the humerus, movement only at shoulder level is defined as flexion and/or abduction at 90 degrees. Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 38 C.F.R. § 4.71a, Diagnostic Codes 5201, 5202. Prior to February 7, 2021, the Board will apply the prior rating criteria. From February 7, 2021 onward, the Board applies the criteria that is more favorable to the Veteran. Degenerative arthritis is rated based on limitation of motion under the appropriate diagnostic code for the specific joint or joints involved. Where there is noncompensable limitation of motion, a 10 percent evaluation is assigned for each major joint or group of minor joints, where the limitation is objectively confirmed by swelling, muscle spasm, or satisfactory evidence of painful motion. Where there is no limitation of motion, a 10 percent evaluation is assigned for x-ray evidence of involvement of two or more major joints or minor joint groups, and a 20 percent evaluation is assigned for x-ray evidence of involvement of two or more major joints or minor joint groups, with occasional incapacitating exacerbations. 38 C.F.R. § 4.71a, DC 5003, Note (1). Effective February 7, 2021, DC 5010 provides that traumatic arthritis is now to be rated as limitation of motion, dislocation, or other specified instability under the affected joint. 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 (musculoskeletal system) or § 4.73 (muscle injury); 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) ("[I]t is clear that the guidance of § 4.40 is intended to be used in understanding the nature of the veteran's disability, after which a rating is determined based on the § 4.71a [or 4.73] criteria."). However, a veteran may be entitled to a higher disability evaluation than that supported by mechanical application of the rating schedule where there is evidence that his or her disability causes "additional functional lossi.e., 'the inability... to perform the normal working movements of the body with normal excursion, strength, speed, coordination[,] and endurance'including as due to pain and/or other factors" or "reduction of a joint's normal excursion of movement in different planes, including changes in the joint's range of movement, strength, fatigability, or coordination." Lyles v. Shulkin, 29 Vet. App. 107, 117-18 (2017) (quoting 38 C.F.R. § 4.40 and citing 38 C.F.R. § 4.45); Mitchell v. Shinseki, 25 Vet. App. 32, 36-37 (2011); DeLuca v. Brown, 8 Vet. App. 202, 205-07 (1995). The intent of the rating schedule is to recognize painful motion with joint and periarticular pathology as productive of disability. It is the intention to recognize actually painful, unstable, or maligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59. "The question of whether a particular medical issue is beyond the competence of a laypersonincluding both claimants and Board membersmust be determined on a case-by-case basis." Kahana v. Shinseki, 24 Vet. App. 428, 438 (2011) (Lance, J., concurring). In this case, the Board is competent to observe that voluntary range of motion testing is going to be more favorable to the Veteran than involuntary range of motion testing. In DORLAND'S ILLUSTRATED MEDICAL DICTIONARY 1592 (32nd ed. 2012), range of motion redirects the reader to "exercise." Passive exercise "is motion imparted to a segment of the body by another individual, machine, or other outside force, or produced by voluntary effort of another segment of the patient's own body." Id. at 658. Active exercise is "motion imparted to a part by voluntary contraction and relaxation of muscles controlling the part." It is reasonable from these definitions to conclude that active motion is the more difficult of the two types of motion to perform because it is done without assistance from external forces, which would be capable of pushing the Veteran's joint farther than he would be able to move it on his own. Therefore, active motion is more favorable to the Veteran, and the results of active motion testing were provided. Similarly, it is reasonable to conclude that non-weightbearing motion is less difficult than weightbearing motion. The competent evidence of record does not tend to indicate that the structural integrity of the Veteran's service-connected joints is compromised, such that passive range of motion in this case would be more limited than active, and because testing in weight-bearing conditions is more demonstrative of the degree of pathology, the Board finds that the failure to test for limitation of motion on passive range of motion and in non-weight-bearing is not prejudicial. The Board will therefore evaluate the Veteran's range of motion using the available findings of active range of motion and looking at all the relevant medical and lay evidence. It is acknowledged that some of examiners did not provide an estimated loss of motion during flare-ups. Sharp v. Shulkin, 29 Vet. App. 26 (2017). However, the Board finds that additional development solely for this purpose would serve only to delay the claim. Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991); see also Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to an appellant's failure to raise a duty to assist argument before the Board). As noted below, the examination report contains evidence regarding the frequency, severity, and duration of the Veteran's pain level during flare-ups per his report. The Board finds such information pertinent and useful when evaluating the disability picture concerning the Veteran's service-connected disabilities. The Veteran is competent to report symptoms and experiences observable by his senses. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); 38 C.F.R. § 3.159(a). The record reflects that the Veteran was right hand dominant per a November 2015 VA examination report. The Veteran underwent an examination for his shoulder in May 2009. He reported shoulder discomfort due to activity, steering his tractor, and difficulty reaching overhead. His shoulder had progressively worsened. Pain, stiffness, weakness, and decreased speed of the joint were reported. He had moderate flare-ups every five to six months and they would last one to two weeks. The Veteran stated his flare-ups/functional impairment would be 55 to 65 percent. He did not have recurrent shoulder dislocations or inflammatory arthritis. He had guarding of movement. He did not have pain on active motion. His flexion was 170 degrees, abduction of 170 degrees, internal rotation of 80 degrees and external rotation of 80 degrees. He did not have objective evidence of pain following repetitive motion or additional limitations following three repetitions. He did not have joint ankylosis. He had a history of a clavicle facture, but his acromioclavicular joint, glenohumeral interval, and acromiohumeral interval were within normal limits. The examiner reported moderate effect on chores, and mild effect on exercise, sports, and recreation. In November 2015, he participated in an additional examination. He reported reduced range of motion and increased pain. At the time, he did not report flare-ups. However, he had functional loss where he lost most of his range of motion in all planes with the inability to raise near his shoulder level. He had intense pain. He had flexion of 40 degrees, abduction of 35 degrees, and external/internal range of motion testing was not performed due to the inability to achieve the proper positioning. He had pain on all ranges of motion, pain on weight bearing, and localized tenderness. He did not have objective evidence of crepitus. He was unable to perform three times repetitive use testing due to pain. He did not have ankylosis. He had rotator cuff conditions suspected, but the testing could not be performed. Shoulder instability, dislocation, or labral pathology were not suspected. He had tenderness of the AC joint on palpation. His cross-body adduction test was positive. He did not have loss of head (flail shoulder), nonunion (false flail shoulder), or fibrous union of the humerus. The examiner stated the signs and symptoms on examination were less likely than not related to the Veteran's service-connected disability. However, this statement was not explained further. The Veteran reported left shoulder pain in December 2009. He received joint injections. A 2013 medical record stated he could lift 70 pounds. He submitted a lay statement in September 2010. He explained that it was difficult for him to perform the range of motion testing at the 2009 examination and that he had a significant amount of pain on range of motion that had been continuing to increase. After review of the competent and probative evidence, the Board finds that an initial rating of 20 percent, but no higher, for the left shoulder disability is warranted under DC 5201. The minimum compensable rating for limitation of the shoulder joint is 20 percent. Sowers v. McDonald, 27 Vet. App. 472, 482 (2016); see 38 C.F.R. § 4.71a, DC 5201. The Court indicated that the minimum rating for the shoulder joint, as opposed to any diagnostic code for a shoulder disability, would be assigned under DC 5201 rather than DC 5203 when applying § 4.59. Id. As the evidence demonstrates painful motion of the shoulder, the Veteran is entitled to the minimum rating of 20 percent for the entirety of the appeal under DC 5201. A rating in excess of 20 percent is not warranted. The relevant competent evidence does not tend to show that the Veteran's left shoulder disability was more nearly approximated as flexion/abduction limited to 25 degrees. In this regard, he has had flexion of 40 degrees (with pain) or greater and abduction of 35 degrees (with pain) or greater. He could lift 70 pounds in 2013. Additionally, he reported at the 2015 examination that when he has functional loss, he is not able to move his arm above shoulder level. There is no indication that his shoulder is more nearly approximated by flexion/abduction of 25 degrees even when accounting for functional loss. For the periods he has had flare-ups, he reported reduced motion of 55 to 65 percent which the Board finds would be more nearly approximated by midway between the side and shoulder level. As his disability was progressively worsening during the period on appeal, the Board finds it reasonable to conclude that his range of motion at the 2015 examination would be worse than at the 2009 examination. Therefore, the Board finds that under the DeLuca factors and § 4.59, he is entitled to a rating of 20 percent, but no higher, for limited motion resulting in documented functional loss. 38 C.F.R. §§ 4.40, 4.45. The Board acknowledges passive range of motion and non-weight bearing testing was not performed. However, based on the totality of the evidence of record, the Board finds that a higher rating would not be warranted. In this regard, the Veteran stated that he had up to 55 to 65 percent reduction in range of motion which would be most nearly approximated by midway between side and shoulder. Additionally, he was able to lift up to 70 pounds. As such, based on the Veteran's statements and evidence of record, the Board finds that the failure to test for limitation of motion on passive range of motion and in non-weight-bearing is not prejudicial. Concerning Diagnostic Code 5202, recurrent dislocation at the scapulohumeral joint, fibrous union of the humerus, and malunion of the humerus are not shown. Indeed, the competent and probative examinations, as noted above, consistently note the absence of any of these disabilities. Ankylosis has not been shown, thus a rating is not warranted per Diagnostic Code 5200. Additionally, a separate rating under DC 5203 is not warranted. The above examinations (2009 and 2015) and his treatment records do not show clavicle or scapula impairment. The Veteran did not assert that he has dislocations. In sum, an increase to 20 percent, but no more, for left shoulder bursitis is warranted. Paul Sorisio Veterans Law Judge Board of Veterans' Appeals Attorney for the Board G. Morales, 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.