Citation Nr: 22015303 Decision Date: 03/17/22 Archive Date: 03/17/22 DOCKET NO. 17-21 813 DATE: March 17, 2022 ORDER Entitlement to a rating in excess of 20 percent for left shoulder disability is denied. FINDING OF FACT The evidence shows that the lost motion of the left shoulder is not manifested by at least flexion and/or abduction limited to 25 degrees from side or ankylosis even when considering the Veteran's complaints of pain with and without weight bearing and resistance in passive and active range of motion as well as during flare-ups nor fibrous union of the humerus, nonunion of the humerus, loss of head of humerus, or impairment of the humerus at all times during the pendency of the appeal. CONCLUSION OF LAW The criteria for disability rating in excess of 20 percent for a left shoulder disability are not met. 38 U.S.C. §§ 1155, 5100, 5107; 38 C.F.R. §§ 3.102, 3.326, 4.1, 4.2, 4.3, 4.7, 4.10, 4.20, 4.27, 4.71a, Diagnostic Codes 5200 to 5203. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from September 1984 to June 1987 with additional periods of active and inactive service in the Army National Guard. This matter comes before the Board of Veterans' Appeals (Board) from a March 2016 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO) that granted service connection for status post rotator cuff tear with impingement syndrome, left arm, with an evaluation of 10 percent effective January 4, 2013. An April 2017 rating decision increased the rating assigned to the left should disability to 20 percent, effective from January 4, 2013. In August 2019, November 2019 and September 2021 the Board remanded the Veteran's claim for further development. It has now returned to the Board for further appellate review. In this regard, the Board must apologize to the Veteran for the delays in the full adjudication of his claim. The Post-Remand Development and Correia and Sharp Concerns In adjudicating below whether the Veteran meets the criteria for a higher evaluation for his left shoulder disorder the Board has not overlooked the Board's three prior remands and the Court's holdings in Sharp v. Shulkin, 29 Vet. App. 26 (2017) and Correia v. McDonald, 28 Vet. App. 158 (2016). Tellingly, the Board finds that the record is adequate to address the concerns raised by the Board and the Court in both cases. Specifically, the Board finds that the post-Remand VA examination dated in November 2021, in conjunction with prior VA examinations dated in April 2016, November 2018 and August 2020, provide VA with medical opinion evidence adequate to rate the Veteran's left shoulder when considering his complaints of pain with and without weight bearing and resistance in passive and active range of motion (see Correia, supra) as well as during flare-ups (see Sharp, supra) because, when taken together, the examiners addressed each of these concerns. See 38 U.S.C. § 5103A(d); Barr v. Nicholson, 21 Vet. App. 303 (2007); Stegall v. West, 11 Vet. App. 268 (1998); D'Aries v. Peake, 22 Vet. App. 97 (2008) (holding that only substantial, and not strict compliance with the terms of a remand request is required); Dyment v. West, 13 Vet. App. 141, 146-47 (holding that there was no Stegall violation when the examiner made the ultimate determination required by the Board's remand, because such determination more than substantially complied with the Board's remand order); Next, the Board finds that the post-Remand development substantially complied with the Remand because all identified and available VA and private treatment records were obtained and associated with the claims file. See 38 U.S.C. § 5103A(b); Stegall, supra. Given the above, the Board finds that further delay by remanding the appeal to provide the Veteran with new VA examinations or to obtain additional medical records again is not required. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (remands which would only result in unnecessarily imposing additional burdens on VA with no benefit flowing to the veteran are to be avoided). Further development or analysis does not serve the interests of the Veteran or the VA. The Rating Claim The Veteran contends that his shoulder disability is more severe than represented by the rating assigned at all times during the appeal. Disability evaluations are determined by the application of a schedule of ratings which is based, as far as can practically be determined, on the average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Each service-connected disability is rated on the basis of specific criteria identified by a Diagnostic Code (DC). 38 C.F.R. § 4.27. When rating the Veteran's service-connected disability, the entire medical history must be borne in mind. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Separate higher or lower compensable evaluations may be assigned for separate periods of time if such distinct periods are shown by the competent evidence of record during the appeal, a practice known as "staged" ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007); Fenderson v. West, 12 Vet. App. 119, 126 (1999). The assignment of a particular diagnostic code is "completely dependent on the facts of a particular case." See Butts v. Brown, 5 Vet. App. 532, 538 (1993). One diagnostic code may be more appropriate than another based on such factors as an individual's relevant medical history, the current diagnosis and demonstrated symptomatology. Importantly, the evaluation of the same disability under several diagnostic codes, known as pyramiding, must be avoided. 38 C.F.R. § 4.14. 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 condition. Id. When evaluating joint disabilities rated on the basis of limitation of motion, VA must consider granting a higher rating in cases in which functional loss due to pain, weakness, excess fatigability, or incoordination is demonstrated, and those factors are not contemplated in the relevant rating criteria. See 38 C.F.R. §§ 4.40, 4.45, 4.59 (2016); DeLuca v. Brown, 8 Vet. App. 202 (1995). The United States Court of Appeals for Veterans Claims (Court) has clarified that although pain may be a cause or manifestation of functional loss, limitation of motion due to pain is not necessarily rated at the same level as functional loss where motion is impeded. See Mitchell v. Shinseki, 25 Vet. App. 32 (2011); cf. Powell v. West, 13 Vet. App. 31, 34 (1999); Hicks v. Brown, 8 Vet. App. 417, 421 (1995); Schafrath v. Derwinski, 1 Vet. App. 589, 592 (1991). Instead, the Mitchell Court explained that pursuant to 38 C.F.R. §§ 4.40 and 4.45, the possible manifestations of functional loss include decreased or abnormal excursion, strength, speed, coordination, or endurance, as well as less or more movement than is normal, weakened movement, excess fatigability, and pain on movement (as well as swelling, deformity, and atrophy) that affects stability, standing, and weight-bearing. See 38 C.F.R. §§ 4.40, 4.45. Thus, functional loss caused by pain must be rated at the same level as if the functional loss were caused by any of the other factors cited above. Therefore, in evaluating the severity of a joint disability, VA must determine the overall functional impairment due to these factors. The provisions of 38 C.F.R. § 4.59, which relate to painful motion, are not limited to arthritis and must be considered when raised by the claimant or when reasonably raised by the record. See Burton v. Shinseki, 25 Vet. App. 1 (2011). Moreover, in Jones v. Shinseki, 26 Vet. App. 56, 61-63 (2012) the Court held that the Board may not deny entitlement to an increased rating on the basis of relief provided by medication when those effects are specifically contemplated by the rating criteria. The Court in Southall-Norman v. McDonald, 28 Vet. App. 346, 352 (2016) held that the provisions of 38 C.F.R. § 4.59, which relate to painful motion, are not limited to the evaluation of musculoskeletal disabilities under Diagnostic Codes predicated on range of motion measurements. Lastly, in Chavis v. McDonough, No. 18-2928 (2021) the Court held that ankylosis of the spine may be shown based on symptoms of fixation of the joint equivalent to ankylosis. In evaluating the evidence, the Board has been charged with the duty to assess the credibility and weight given to evidence. Davidson v. Shinseki, 581 F. 3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007). Indeed, the Court has declared that in adjudicating a claim, the Board has the responsibility to do so. Bryan v. West, 13 Vet. App. 482, 488-89 (2000). In doing so, the Board is free to favor one medical opinion over another, provided it offers an adequate basis for doing so. Owens v. Brown, 7 Vet. App. 429, 433 (1995). The Board notes that except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under the laws administered by VA. VA shall consider all information and medical and lay evidence of record. Where there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990); Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021) (en banc). The Veteran's left shoulder disability is rated as 20 percent disabling under Diagnostic Code 5201. In terms of the pertinent rating criteria, Diagnostic Codes 5200 through 5203 address disability ratings for the shoulder and arm. Those codes distinguish between the major (dominant) extremity and the minor (non-dominant) extremity. See 38 C.F.R. § 4.69. In this regard, the medical evidence of record shows that the Veteran is right-hand dominant; thus, his left shoulder is his minor shoulder for rating purposes. See e.g., VA Shoulder and Arm Examinations, April 2016, November 2018 and August 2020. The Board acknowledges the November 2021 VA examiner's report that the Veteran was left-hand dominant. However, the most probative evidence of record in this regard is the three prior VA examinations that each reported the Veteran was right-hand dominant. Diagnostic Code 5200 provides that favorable ankylosis of scapulohumeral articulation, with abduction to 60 degrees, and the ability to reach mouth and head warrants a 20 percent evaluation (minor shoulder) and 30 percent evaluation (major shoulder). Intermediate, between favorable and unfavorable, ankylosis of scapulohumeral articulation warrants a 30 percent evaluation (minor) and 40 percent evaluation (major). Unfavorable ankylosis of scapulohumeral articulation, with abduction limited to 25 degrees from side, warrants a 40 percent evaluation (minor) and 50 percent evaluation (major). 38 C.F.R. § 4.71a. Diagnostic Code 5201 provides that limitation of motion of the major or minor arm at shoulder level (flexion and/or abduction limited to 90 degrees) warrants a 20 percent evaluation. Limitation of motion of the arm midway between side and shoulder level (flexion and/or abduction limited to 45 degrees) warrants a 20 percent evaluation (minor) and 30 percent evaluation (major). Limitation of motion of the arm (flexion and/or abduction) to 25 degrees from side warrants a 30 percent evaluation (minor) and 40 percent evaluation (major). Effective February 7, 2021, Diagnostic Code 5201 was revised, providing clarification as to what degree of range of motion loss is required at each level. For example, as of February 7, 2021, the regulation defines limitation of lifting an arm to shoulder level as 90 degrees, and limitation to midway between the side and shoulder level as 45 degrees. As such, the Board finds that the Veteran will not be prejudiced by adjudicating this claim without first providing him notice of the amendment because it finds that the amendments are not substantive; instead, they merely quantify the criteria VA has always applied when rating the shoulder under these Diagnostic Codes. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (remands which would only result in unnecessarily imposing additional burdens on VA with no benefit flowing to the veteran are to be avoided). Normal ranges of motion of the shoulder are flexion (forward elevation) from zero degrees to 180 degrees, abduction from zero degrees to 180 degrees, external rotation from zero degrees to 90 degrees, and internal rotation from zero degrees to 90 degrees. 38 C.F.R. § 4.71, Plate I. Diagnostic Code 5202 provides that malunion of the humerus with moderate deformity warrants a 20 percent evaluation. Malunion of the humerus with marked deformity warrants a 20 percent evaluation (minor) and 30 percent evaluation (major). Recurrent dislocation of the humerus at the scapulohumeral joint with infrequent episodes, and guarding of movement only at shoulder level (flexion and/or abduction limited to 90 degrees), warrants a 20 percent evaluation. Recurrent dislocation of the humerus at the scapulohumeral joint with frequent episodes and guarding of all arm movements warrants a 20 percent evaluation (minor) and 30 percent evaluation (major). Fibrous union of the humerus warrants a 40 percent evaluation (minor) and 50 percent evaluation (major). Nonunion of the humerus (false flail joint) warrants a 50 percent evaluation (minor) and 60 percent evaluation (major). Loss of head of humerus (flail shoulder) warrants a 70 percent evaluation (minor) and 80 percent evaluation (major). Effective February 7, 2021, Diagnostic Code 5202 was revised, providing clarification as to what degree of range of motion loss is required recurrent dislocations of the humerus with guarding of movement only at the shoulder level, quantifying it as flexion and/or abduction limited to 90 degrees. See Sabonis, supra. Diagnostic Code 5203 provides that malunion of the clavicle or scapula warrants a 10 percent evaluation. Nonunion of the clavicle or scapula without loose movement warrants a 10 percent evaluation. Nonunion of the clavicle or scapula with loose movement warrants a 20 percent evaluation. Dislocation of the clavicle or scapula warrants a 20 percent evaluation. 38 C.F.R. § 4.71a. As to a rating in excess of 20 percent for the left shoulder disability due to ankylosis under Diagnostic Code 5200, the Board notes that the claims file does not contain a diagnosis of ankylosis of the left shoulder. In fact, the April 2016, November 2018, August 2020 and November 2021 VA examiners each expressly opined the Veteran did not have ankylosis and these medical opinions are not contradicted by any other medical evidence of record. See Colvin, supra. The Board also finds that even when considering the Veteran's reports of pain as per 38 C.F.R. §§ 4.40, 4.45, 4.59 and the Court's holding in Correia, Sharp, Mitchell, Burton, Southall-Norman, DeLuca, and Chavis, as well as when considering his competent reports of observable adverse symptomatology (see Davidson, supra), the disability does not meet the criteria for a higher rating by rating it is ankylosis because the record is uniform in documenting at least some motion, albite limited (see, e.g., April 2016 VA examination the left arm had flexion to 120 degrees and abduction to 100 degrees; at the November 2018 VA examination the left arm had flexion to 85 degrees and abduction to 85 degrees; at the August 2020 VA examination the left arm had flexion to 95 degrees and abduction to 95 degrees; and at the November 2021 VA examination the left arm had flexion to 90 degrees and abduction to 90 degrees), and ankylosis is defined as immobility and consolidation of a joint due to disease, injury, or surgical procedure. See Lewis v. Derwinski, 3 Vet. App. 259 (1992); Also see Owens, supra. Moreover, the Board notes that the treatment records do not document ankylosis. See Colvin, supra. The Board also finds that the Veteran is not competent to provide the missing diagnosis of ankylosis because this is a medical finding. See Davidson, supra. Moreover, the Board finds the VA examiners opinions as to the Veteran's adverse symptomatology more probative than any lay claims to the contrary even though the symptomatology is observable by a lay person because the examiners have medical training. See Black v. Brown, 10 Vet. App. 297, 284 (1997) (in evaluating the probative value of medical statements, the Board looks at factors such as the individual knowledge and skill in analyzing the medical data). Consequently, the Board finds that a rating in excess of 20 percent is not warranted for the Veteran's left shoulder disability under Diagnostic Code 5200 at all times during the appeal. See 38 C.F.R. § 4.71; Hart, supra; Fenderson, supra. As to a rating in excess of 20 percent for the left shoulder disability from under Diagnostic Code 5201, the Board notes that when considering the Veteran's complaints of pain as per 38 C.F.R. §§ 4.40, 4.45, 4.59 and the Court's holding in Correia, Sharp, Mitchell, Burton, Southall-Norman, and DeLuca, as well as when considering the appellant's competent reports of his observable adverse symptomatology (see Davidson, supra), he does not meet the criteria for at least the next higher rating from because at the April 2016 VA examination the left arm had flexion to 120 degrees and abduction to 100 degrees; at the November 2018 VA examination the left arm had flexion to 85 degrees and abduction to 85 degrees; at the August 2020 VA examination the left arm had flexion to 95 degrees and abduction to 95 degrees; and at the November 2021 VA examination the left arm had flexion to 90 degrees and abduction to 90 degrees (i.e., the arm motion was never limited to 25 degrees from the side as needed for a higher rating). These ranges of motion are not contradicted by any other medical evidence of record. 38 C.F.R. §§ 4.2, 4.3, 4.7, 4.71a; Hart, supra; Fenderson, supra, Colvin, supra. Importantly, notwithstanding that some of the VA examinations in this case failed to test passive range of motion and/or range of motion in non-weight-bearing conditions, the Board finds that the four examinations, taken as a whole, nevertheless are adequate for VA rating purposes. See Owens, supra. The Board has reached this conclusion because passive range of motion is the amount of motion possible when an examiner moves a body part with no assistance from the individual being evaluated. It is usually greater than active range of motion because the integrity of the soft tissue structures does not dictate the limits of movement. Comparisons between passive range of motion and active range of motion provide information about the amount of motion permitted by the associated joint structures (passive range of motion) relative to the individual's ability to produce motion at a joint (active range of motion). CYNTHIA NORKIN & D. JOYCE WHITE, MEASUREMENT OF JOINT MOTION: A GUIDE TO GONIOMETRY 8-9 (2016). Testing the joint under weight-bearing conditions involves movement of the body against gravity. J. Randy Jinkins, et. al., Upright, Weight-bearing, Dynamic-kinetic Magnetic Resonance Imaging of the Spine: Initial Results, 15 J. Eur. Radiol. 1815-25 (2005). When evaluating range of motion, it is preferable to test in weight-bearing conditions because testing in non-weight-bearing conditions underestimates the degree of pathology present. Id. at 1823. In this case, because there is no indication that the structural integrity of the Veteran's left shoulder 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. Moreover, the Board notes that the treatment records do not document less range of motion than what was reported by the above VA examiners. See Colvin, supra. The Board also finds that the Veteran is not competent to provide range of motion studies because this is a medical finding. See Davidson, supra. Moreover, the Board finds the VA examiners opinions as to the Veteran's adverse symptomatology more probative than any lay claims to the contrary even though the symptomatology is observable by a lay person because the examiners have medical training. See Black, supra. Consequently, the Board finds that a rating in excess of 20 percent is not warranted for the Veteran's left shoulder disability under Diagnostic Code 5201 at all times during the appeal. See 38 C.F.R. § 4.71; Hart, supra; Fenderson, supra. As to a rating in excess of 20 percent for the left shoulder disability under one of the other criteria for rating should disabilities, the record contains no evidence of an impairment of the humerus and the Veteran has not described symptoms that are suggestive of an impairment of the humerus, Diagnostic Code 5202 is not applicable. See Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991) (VA may only consider independent medical evidence to support its findings and is not permitted to base decisions on its own unsubstantiated medical conclusions). Likewise, Diagnostic Code 5203 is not applicable because the record does not document dislocation, nonunion, or malunion of the clavicle and scapula. Id. As such, the best medical evidence in this claim shows that the Veteran's left shoulder disability was not manifested by fibrous union of the humerus; nonunion of the humerus; or flail shoulder, loss of head of humerus. See Owens, supra. Consequently, the Board finds that it will not rating the Veteran's left shoulder disability under Diagnostic Code 5202 or Diagnostic Code 5201 at all times during the appeal. See 38 C.F.R. § 4.71; Hart, supra; Fenderson, supra; Butts, supra. Nothing above suggests that the Veteran is not having problems with this disability. The only question is the degree of the problem based on the evidence and the law. It is important for the Veteran to understand that the medical findings provide highly probative evidence against the claim that the Board cannot, unfortunately, ignore. Also, notwithstanding the Court holding in Rice v. Shinseki, 22 Vet. App. 447 (2009) the Board finds that the record does not raise a claim for a total rating based on individual unemployability (TDIU). The Board has reached this conclusion because the record does not show that his service-connected left shoulder disability interfered with his substantial gainful employment during the appeal. See August 2020 VA Examination (Veteran reported he returned to some construction work until 2018 when back pain forced him to discontinue). Finally, the Veteran has not raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin,28 Vet. App. 366, 69-70 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). (Continued on the next page) In reaching the above conclusions the Board has considered the applicability of the benefit of the doubt doctrine. However, as there is not an approximate balance of positive and negative evidence regarding the claim that doctrine is not applicable in this case. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021) (en banc). NEIL T. WERNER Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Christopher M. Davidson 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.