Citation Nr: 22014397 Decision Date: 03/12/22 Archive Date: 03/12/22 DOCKET NO. 16-37 943 DATE: March 12, 2022 ORDER Entitlement to an initial rating in excess of 20 percent for right shoulder impingement syndrome status post arthroscopy is denied. Entitlement to an initial compensable rating for service-connected right shoulder scar prior to March 24, 2021 and in excess of 10 percent from March 24, 2021. FINDINGS OF FACT 1. The Veteran's right shoulder impingement syndrome status post arthroscopy is not manifested by limitation of flexion and abduction of the right arm to midway between the side and shoulder, or 45 degrees of flexion and abduction. 2. The Veteran's two painful linear scars from arthroscopy on the right shoulder were not deep or unstable, and do not cover an area of 144 square inches or greater. CONCLUSIONS OF LAW 1. The criteria for an initial rating higher than 20 percent for right shoulder impingement syndrome status post arthroscopy have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 3.321, 4.3, 4.71a, Diagnostic Code 5201 (2020). 2.The criteria for an initial compensable rating in excess of 10 percent for linear scar on the right shoulder due to arthroscopy prior to March 24, 2021, and for a rating in excess of 10 percent after March 24, 2021 have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 3.321, 4.3, 4.118, Diagnostic Codes 7804, 7805 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States. Navy from July 1992 to August 2012. This case comes before the Board of Veterans' Appeals on appeal from a February 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In September 2019 the Veteran testified before the undersigned Veterans Law Judge (VLJ) in a videoconference hearing. A transcript of the proceeding has been associated with the electronic record. The claim was previously before the Board in November 2019 and February 2021 and was remanded for further evidentiary development. It is now returned to the Board for appellate review. Increased Ratings VA has adopted a Schedule for Rating Disabilities to evaluate service-connected disabilities. 38 U.S.C. § 1155; 38 C.F.R. § 3.321; see generally, 38 C.F.R. § Part IV. The basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life, including employment. 38 C.F.R. § 4.10. The percentage ratings in the Schedule for Rating Disabilities represent, as far as practicably can be determined, the average impairment in earning capacity resulting from service-connected disabilities in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbation or illness proportionate to the severity of the several grades of disability. 38 C.F.R. § 4.1. Diagnostic codes in the rating schedule identify the various disabilities and the criteria for specific ratings. If two disability evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. 38 C.F.R. § 4.7. Otherwise, the lower rating will be assigned. Id. All reasonable doubt regarding the degree of disability will be resolved in favor of the claimant. 38 C.F.R. § 4.3. Because the level of disability may have varied over the course of the claim, the rating may be "staged" higher or lower for segments of time during the period under review in accordance with such variations. Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007); Fenderson v. West, 12 Vet. App. 119, 126 (1999). Entitlement to an initial rating in excess of 20 percent for service-connected right shoulder impingement status post arthroscopy The Veteran contends that his 20 percent disability rating does not contemplate the severity of his right shoulder symptoms. A pre-discharge claim for compensation for his shoulder was filed in April 2012. The Veteran was granted service connection for right shoulder impingement status post arthroscopy with a 10 percent rating effective with his date of discharge on September 1, 2012. The Veteran filed a timely notice of disagreement regarding his right shoulder. In a June 2016 rating decision, the Veteran's initial rating was increased to 20 percent. After review of the pertinent evidence of record, the Board does not find that the Veteran is entitled to an increased initial rating in excess of 20 percent for his right shoulder disability. The Veteran's right shoulder disability is rated under Diagnostic Code (DC) 5201, which pertains to limitation of motion of the arm. 38 C.F.R. § 4.71a. The rating assigned under DC 5201 differ depending on whether the disability involves the major (dominant) or minor (non-dominant) extremity. The Veteran's right arm is his major extremity, according to the VA examination reports. See 38 C.F.R. § 4.69. Thus, the rating assigned for limitation of motion of the major upper extremity apply. Under DC 5201, a 20 percent rating is assigned for limitation of motion of the arm to shoulder level in the major or minor extremity. A 30 percent rating is assigned for limitation of motion to midway between side and shoulder level in the major extremity, and 20 percent for the minor extremity. A 40 percent rating is assigned for limitation of motion to 25 degrees from the side in the major extremity, and 30 percent in the minor extremity. Id. VA regulation defines normal range of shoulder motion as forward elevation (flexion) from 0 to 180 degrees; abduction from 0 to 180 degrees; internal rotation from 0 to 90 degrees; and external rotation from 0 to 90 degrees. 38 C.F.R. § 4.71, Plate I (2013). Lifting the arm to shoulder level means lifting it to 90 degrees. See Id. Limitation of motion under DC 5201 may be compensated based on limitation of abduction or limitation of flexion the two planes of movement involving lifting the arm from the side whichever would afford the higher rating. Yonek v. Shinseki, 722 F.3d, 1355, 1358-59 (2013) (citing Mariano v. Principi, 17 Vet. App. 305, 314-16 (2003)). However, separate ratings for both limitation of abduction and flexion are not available under this diagnostic code. Id. (holding that "the plain language of [DC] 5201 allows only a single rating for 'limitation of motion of' an arm. June 2012 x-rays of the right and left shoulders were unremarkable. A March 2017 VA medical center intake problem list included shoulder pain as an active problem. During the Veteran's September 2019 hearing, he demonstrated his right shoulder range of motion limitations. The Veteran noted that he still experienced discomfort in his shoulder after the surgery and that he sleeps with a pillow under his shoulder to avoid rolling over on this right shoulder. He does not reach or lift above his head to avoid pain. A January 2020 x-ray of the right shoulder showed normal alignment of the glenohumeral and acromioclavicular joints without degenerative changes, calcification, or osseous lesions. In a January 2020 VA disability examination for shoulder and arm conditions, the Veteran indicated that the Veteran was right hand dominant, had limited range of motion of his right shoulder, difficulty sleeping on his right side, and difficulty with lifting. Flare-ups occur randomly due to overexertion, are relieved by light massage and produce moderate pain and limitation and last for hours. The examiner noted that the left shoulder was normal on all range of motion testing. Upon initial range of motion testing the right shoulder showed pain causing functional loss with flexion and abduction reduced to 140 degrees and external and internal rotation limited to 40 and 30 degrees respectively. There was no additional loss of range of motion of the right shoulder with observed repetitive use or repeat use over time. With flare-ups the examiner expected pain with flexion and abduction further reduced to 135 degrees and external and internal rotation reduced to 35 and 25 degrees respectively. There was no evidence of rotator cuff conditions, muscle atrophy, ankylosis, clavicle, scapula, or acromioclavicular joint conditions, ankylosis, muscle atrophy, shoulder instability, dislocation, or labral pathology, nor was there evidence of muscle atrophy of either shoulder. There was no evidence of pain on passive range of motion testing or with non-weightbearing testing of the left shoulder while there was evidence of pain for both in the right shoulder. In its February 2021 decision, the Board remanded the claim for specific passive range of motion measurements including the point in the range of motion testing when pain was elicited. The Board finds that as both the January 2020 and March 2021 examinations reflect that there was not pain on passive range of motion testing there has been substantial compliance with the remand instructions. Stegall v. West, 11 Vet. App. 268, 271 (1998). In March 2021 the Veteran underwent a VA shoulder and arm conditions examination in support of his claim. The examiner endorsed a right shoulder impingement status post arthroscopy. Initial range of motion texting for both shoulders was documented as normal. However, with active and passive range of motion testing, the right shoulder exhibited pain with flexion and abduction and was limited to 100 degrees of the expected 180 degrees of flexion and abduction, and 50 degrees of the expected 90 degrees internal and external rotation. The left shoulder exhibited full range of motion without pain. The Veteran performed observed repetitive use and repeated use over time testing of both arms without additional loss of range of motion above that exhibited with active and passive range of motion. There was evidence of pain noted with active motion but there was no evidence of pain with non-weight-bearing and passive motion. Evidence procured from the Veteran indicates that with flare-ups of the right shoulder he experienced pain and lack of endurance and his range of motion was further reduced to 80 degrees of flexion and abduction and 40 degrees of internal and external rotation. The Veteran did not endorse flare-ups of the left shoulder. There was no evidence of clavicle or scapula of acromioclavicular joint conditions, ankylosis, muscle atrophy, shoulder instability, dislocation, or labral pathology, nor was there evidence of muscle atrophy of either shoulder. The examiner noted that the Veteran underwent right shoulder arthroscopic surgery in 2006 for nerve impingement syndrome and that his limitations have been lifting and reaching above his head. The evidence does not show additional functional loss of the right shoulder, including with repetitive use. See DeLuca, 8 Vet. App. at 206-07. Accordingly, a higher rating is not warranted. The examiner noted scars on the shoulder which have been rated separately. A higher evaluation of 30 percent is not warranted for limitation of motion of the arm unless the evidence shows limited motion of the arm, midway between the side and shoulder level, with flexion and/or abduction limited to no more than 45 degrees. 38 C.F.R. § 4.69, 38 C.F.R. § 4.71a., DC 5201. Because the weight of the probative evidence shows that the criteria for higher ratings have not been satisfied, an initial rating higher than 20 percent for right shoulder impingement is denied. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102, DC 5201. 2. Entitlement to an initial compensable rating for service-connected right shoulder scar prior to March 24, 2021 and in excess of 10 percent from March 24, 2021 The Veteran's right shoulder scars have been assigned a 0 percent rating under 38 C.F.R. § 4.118, Diagnostic Code 7805 prior to March 24, 2021, and a 10 percent rating from March 24, 2021. Under DC 7805 a noncompensable rating is assigned for characteristic lesions covering less than 5 percent of the body. A 10 percent rating is assigned for scars covering 5 to 20 percent of the body or requiring intermittent systemic therapy for up to 6 weeks and a 30 percent rating is assigned or characteristic lesions covering 20 to 40 percent of the body or lesions requiring systemic therapy for more than 6 weeks. Under DC 7804, a 10 percent rating is assigned for one or two scars that are unstable or painful, a 20 percent rating is assigned for three or 4 scars that are unstable or painful. The schedule for rating disabilities applicable to the skin was recently amended effective August 13, 2018. 83 Fed. Reg. 32593 (July 13, 2018). Claims pending prior to the effective date of the new rating criteria will be considered under both the old and new criteria, and whatever criteria is more favorable to the Veteran will be applied. Id. Under the amended rating criteria, no changes were made to DC's 7804 and 7805, and no other diagnostic code was added that would be applicable to the Veteran's scar. Accordingly, a higher evaluation is not available under the amended rating criteria. VA treatment records reveal no evidence of complaints or treatment for the Veteran's right shoulder scars. On March 24, 2021 the Veteran was afforded an in-person VA disability examination for scars or disfigurement with a physician examiner. The examiner observed two shoulder scars, each 3 cm in length and 1 cm in width, which were tender to palpation. The scars were not unstable, did not have abnormal pigment, were not elevated, or depressed from the surrounding skin, did not adhere to underlying tissue, were not missing underlying soft tissue and did not cause limitation of motion or any other loss of function. The examiner conducted a review of the Veteran's treatment records but did not note that the Veteran had received any treatment for the scars. Under DC 7805 the Veteran is not entitled to a 10 percent disability rating. Under DC 7804 a higher evaluation of 20 percent is not warranted for unstable or painful scars unless the evidence shows one or two scars that are unstable or painful, with at least one scar being both painful and unstable; or three or four scars that are unstable or painful. 38 C.F.R. § 4.118. The evidence required for assignment of a 20 percent rating is not apparent. In sum, a rating of 10 percent, but no higher, is assigned the Veteran's painful right shoulder scars effective March 24, 2021. Because the weight of the probative evidence is against an initial compensable rating prior to March 24, 2021 or a rating higher than 10 percent as of that date, the benefit-of-the-doubt rule does not apply. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102. KRISTI L. GUNN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D. Adams Hill, 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.