Citation Nr: 22016302 Decision Date: 03/21/22 Archive Date: 03/21/22 DOCKET NO. 15-31 372 DATE: March 21, 2022 ORDER An initial disability rating in excess of 20 percent for right shoulder rotator cuff tear, status post arthroscopy, is denied. FINDING OF FACT Throughout the initial rating period on appeal, the Veteran's right shoulder disability has manifested pain and limited function, flexion and abduction to no worse than 90 degrees, and no arthritis or ankylosis. CONCLUSION OF LAW The criteria for a disability rating in excess of 20 percent for right shoulder rotator cuff tear, status post arthroscopy, have not been met for any part of the initial rating period on appeal. 38 U.S.C. §§ 1155, 5103(a), 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.2, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code (DC) 5201. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran, who is the Appellant in this case, had active service from May 1995 to February 2006, June 2006 to January 2008, December 2010 to September 2011, and October 2011 to September 2012. This matter comes before the Board of Veterans' Appeals (BVA or Board) from a September 2013 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran provided testimony at a September 2019 videoconference hearing before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the claims folder. In December 2019, the Board remanded the case for further development. The development requested having been completed, the case is now appropriate for appellate review. Disability Ratings Disability evaluations (ratings) are determined by evaluating the extent to which a veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing the symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Rating Schedule). 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10. In evaluating a disability, the Board considers the current examination reports in light of the whole recorded history to ensure that the current rating accurately reflects the severity of the condition. The Board has a duty to acknowledge and consider all regulations that are potentially applicable. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). The medical as well as industrial history is to be considered, and a full description of the effects of the disability upon ordinary activity is also required. 38 C.F.R. §§ 4.1, 4.2, 4.10. 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 required for that rating. Otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7. Reasonable doubt regarding the degree of disability will be resolved in the veteran's favor. 38 C.F.R. § 4.3. In view of the number of atypical instances it is not expected, especially with the more fully described grades of disabilities, that all cases will show all the findings specified. Findings sufficiently characteristic to identify the disease and the disability therefrom, and above all, coordination of rating with impairment of function will, however, be expected in all instances. 38 C.F.R. § 4.21. Staged ratings are appropriate for an initial or increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that warrant different ratings. Fenderson v. West, 12 Vet. App. 119, 126-127 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). 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."). Painful motion is considered limited motion at the point that the pain actually sets in. See VAOPGCPREC 9-98. With any form of arthritis, painful motion is an important factor of disability, the facial expression, wincing, etc., on pressure or manipulation, should be carefully noted and definitely related to the affected joints. The intent of the rating schedule is to recognize painful motion with joint or periarticular pathology as productive of disability. It is the intention to recognize actually painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. Crepitation either in the soft tissues such as the tendons or ligaments, or crepitation within the joint structures should be noted carefully as points of contact which are diseased. Flexion elicits such manifestations. 38 C.F.R. § 4.59. 1. An initial disability rating in excess of 20 percent for right shoulder rotator cuff tear, status post arthroscopy, is denied. The Veteran is in receipt of a 20 percent disability rating for his right shoulder rotator cuff tear for the entire initial rating period on appeal. For the reasons discussed below, the Board finds that the evidence weighs persuasively against the assignment of a higher disability rating for the right shoulder disability for the entire initial rating period on appeal. The Veteran's right shoulder disability has been evaluated under DC 5201. 38 C.F.R. § 4.71a. DC 5201 pertains to limitation of motion of the shoulder. A rating of 40 percent for the major arm (30 percent minor) is assigned where motion is limited to 25 degrees from the side. A rating of 30 percent for the major arm (20 percent minor) is assigned where motion is limited to midway between the side and shoulder level. A rating of 20 percent for either arm is assigned where motion is limited to shoulder level. Id. The Veteran in this case is right-handed, so in this case, the rating assigned is for the major (right) shoulder. Some of the rating criteria for evaluating musculoskeletal disabilities were revised effective February 9, 2021. Relevant to this case, DC 5201 was clarified in that "midway between side and shoulder level" means flexion and/or abduction limited to 45 degrees, and "at shoulder level" means flexion and/or abduction limited to 90 degrees. The standard range of motion for shoulder abduction and forward elevation (flexion) is 180 degrees. 38 C.F.R. § 4.71, Plate I. Standard internal and external rotation is to 90 degrees, and "shoulder level" is equivalent to 90 degrees of shoulder flexion or abduction. Id. Reviewing the evidence most relevant to the rating period on appeal, in August 2011, the Veteran reported right shoulder pain following a skiing accident. He had been evaluated 4 months prior and told he had a rotator cuff tear and was prescribed physical therapy, which he completed with little relief. An x-ray study of the right shoulder revealed no significant degenerative changes about the shoulder or acromioclavicular joint. The Veteran reported pain mostly with throwing a ball or rolling a bowling ball and had no problems with overhead activities. Following separation from service, at an August 2013 VA examination, the Veteran reported that he had strained his right biceps tendon in 2007 while skiing. The examiner diagnosed a right shoulder strain (2004). He had surgery in April 2013 to repair the tendon, supraspinatus tendonitis. Current treatment consisted of taking Aleve daily and shoulder exercises. The Veteran reported daily, constant pain, described as ranging from dull to sharp. He was still recovering from his surgery and had decreased range of motion. The examiner indicated that the Veteran reported flare-ups of shoulder pain, but then, in response to questions regarding whether there were additional limitations during flare-ups, stated that the Veteran did not report flare-ups. Right shoulder flexion was to 165 degrees, with no objective evidence of painful motion; abduction was to 165 degrees, with no objective evidence of painful motion. Range of motion remained the same after 3 repetitions. Functional loss included less movement than normal. There was no pain on palpation or guarding of the shoulder. Muscle strength was 5/5. There was no ankylosis. Hawkins' Impingement test was negative, empty-can test was negative, and external rotation/infraspinatus strength test was negative, but a lift-off subscapularis test was positive, indicating subscapularis tendinopathy or tear. There was no history of mechanical symptoms or recurrent dislocation/subluxation. The examiner indicated there was no AC joint condition or impairment of the clavicle or scapula. The Veteran had undergone acromioplasty of the bicep tendon in April 2013, with no residual signs or symptoms due to the surgery. Arthritis was not documented by x-ray (August 2011). The examiner stated that the shoulder condition affected the Veteran's ability to work in that he was still on limited duty as an FBI agent since the shoulder surgery. In his September 2014 NOD, the Veteran reported constant pain in his shoulder which limited its full use to include any fast motions such as throwing. At the August 2019 Board hearing, the Veteran testified that he had difficulty lifting his right arm above his head and performing quick movements. He also seemed to indicate that he had undergone another surgery to the right shoulder since his last VA examination in 2013. Pursuant to the Board's remand, the Veteran was afforded another VA examination in January 2020. The examiner diagnosed right shoulder rotator cuff tear with progressive pain, status post arthroscopy. The Veteran stated that the course of the condition had stayed the same since its onset, and that his current symptoms consisted of pain with reaching above. He reported flare-ups occurring when he reached above inappropriately, resulting in increased pain. Functional impairment consisted of limited reaching above. He reported undergoing an arthroscopy a long time ago but did not remember when. Flexion (0-180 degrees) of the shoulder was 0 to 90 degrees. Abduction (0-180 degrees) was 0 to 90 degrees. External rotation (0-90 degrees) was 0 to 90 degrees. Internal rotation (0-90 degrees) was 0 to 90 degrees. Range of motion itself contributed to functional loss in that he was limited in reaching above. Pain was noted in all motions and caused functional loss. There was tenderness or pain on palpation of the anterior and lateral shoulder, rated at 5 to 7 out of 10 in severity. There was evidence of pain with weight bearing, but no objective evidence of crepitus. There was no additional loss of function or range of motion after 3 repetitions. The examiner stated that pain, fatigue, and lack of endurance would significantly limit functional ability with repeated use over a period of time and during flare-ups; however, no further range of motion loss was anticipated; rather, he would have increased symptoms (pain, fatigue, and lack of endurance), and therefore no range of motion estimate was warranted. Muscle strength was 5/5. There was no ankylosis. A rotator cuff condition was suspected, as the lift-off subscapularis test was positive, indicating subscapularis tendinopathy or tear. Shoulder instability, dislocation, or labral pathology was not suspected, nor were clavicle, scapula, or AC or sternoclavicular joint conditions. There was no flail shoulder or nonunion of the humerus. Imaging studies were not available. Functional impact on ability to perform occupational tasks included limited reaching above, and limited lifting and carrying. The examiner stated there was a worsening of the Veteran's symptoms; however, there was no change to the service-connected diagnosis and no additional diagnoses were rendered. Based on the lay and medical evidence in this case, the Board finds that the criteria for an initial disability rating in excess of 20 percent for the right shoulder disability have not been met for any part of the initial rating period on appeal. Namely, the evidence does not demonstrate that right shoulder motion has been limited to midway between side and shoulder level (45 degrees) at any time during the rating period on appeal. Indeed, flexion and abduction, at worst, have been limited to 90 degrees, even with pain and after repetition, and with consideration that motion is limited at the point where pain sets in. Such limitation is consistent with the Veteran's statements that he has difficulty raising his right arm above his head, and the January 2020 VA examiner stated that further limitation would not be expected during flare-ups or after repeated use. For these reasons, the evidence persuasively demonstrates that a rating in excess of 20 percent is not warranted. The Board has considered whether any other diagnostic codes might serve as a basis for a higher disability rating but finds none. Specifically, there is no ankylosis of the scapulohumeral articulation, so DC 5200 does not apply. There is no impairment of the humerus, clavicle, or scapula, so DCs 5202 and 5203 do not apply. There are no other applicable diagnostic codes. 38 C.F.R. § 4.71a. In denying a disability rating in excess of 20 percent, the Board has considered the Veteran's statements that his right shoulder disability is worse, as well as his reports of pain and functional limitations. While he is competent to provide evidence regarding matters that can be perceived by the senses, he is not shown to be competent to render medical opinions regarding whether his symptoms meet the next higher rating criteria under VA regulations. Such competent evidence concerning the nature and extent of the Veteran's right shoulder disability has been provided by the medical personnel who have examined him during the current appeal. The medical findings (as provided in the examination reports and clinical records) directly address the criteria under which this disability is evaluated. The specific clinical measures of ranges of motion, including examiners' findings and opinions regarding additional limitations of motion due to such factors, have been weighed and considered by the Board. Such specific measures and findings are of more probative value in determining specific ranges of motion than are general histories or general descriptions of symptoms of pain or limitations, such as this Veteran's report of pain. Thus, the overall evidence does not show that pain or other factors have resulted in additional functional limitation or limitation of motion (right shoulder flexion and/or abduction limited to midway between side and shoulder level, or 45 degrees) such as to enable a finding that the disability picture more nearly approximates disability rating in excess of 20 percent under DC 5201 for the any part of the initial rating period on appeal. The current rating adequately compensates him for his pain and limited function, including during flare-ups and following repeated use. Despite the Veteran's contention of a debilitating right shoulder disability, the 20 percent disability rating for the right shoulder disability indicates a significant impact on his functional ability. Such a disability evaluation assigned by VA recognizes his painful motion and functional limitations, indicating very generally a 20 percent reduction in his ability to function due to his right shoulder disability. The critical question in this case, however, is whether the problems he has cited meet even higher levels under the rating criteria. For reasons cited above, the Board finds they do not. [CONTINUED ON NEXT PAGE] For these reasons, the Board finds that the weight of the evidence is against an initial disability rating in excess of 20 percent for the service-connected right shoulder disability throughout the rating period on appeal. The evidence weighs persuasively against this claim, and hence the benefit-of-the-doubt doctrine does not apply. See 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3, 4.7; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). Cynthia M. Bruce Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. Sherrard, 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.