Citation Nr: 22019317 Decision Date: 04/01/22 Archive Date: 04/01/22 DOCKET NO. 17-60 789 DATE: April 1, 2022 ORDER For the entire increased rating period on appeal from November 2, 2016, a disability rating (or evaluation) in excess of 20 percent for right supraspinatus tendon disability (right shoulder disability) is denied. FINDING OF FACT For the entire increased rating period on appeal from November 2, 2016, the right shoulder (major extremity) disability did not manifest as ankylosis of scapulohumeral articulation, malunion of the humerus, recurrent dislocation of the humerus at the scapulohumeral joint, fibrous union of the humerus, nonunion of the humerus (false flail joint), or loss of head of the humerus (flail shoulder); and painful limitation of motion was not limited to midway between the side and shoulder level (flexion and/or abduction limited to 45 degrees), even when considering additional loss due to a painful flare up. CONCLUSION OF LAW For the entire increased rating period on appeal, from November 2, 2016, the criteria for a disability rating in excess of 20 percent for the service-connected right shoulder disability have not been met or more nearly approximated. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.321, 3.326, 4.3, 4.7, 4.10, 4.20, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5200-5202. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran, who is the appellant, had active service from July 1981 to July 1984. This matter came before the Board of Veterans' Appeals (Board) on appeal from an April 2017 Department of Veterans Affairs (VA) Regional Office (RO) rating decision. The instant matter was previously before the Board in December 2021, where the issue on appeal was remanded to obtain a new VA shoulder examination. Review of the record reflects that an adequate VA shoulder examination was subsequently performed in January 2022. As such, the Board finds the instant matter ripe for adjudication. See Stegall v. West, 11 Vet. App. 268, 271 (1998). The Veteran testified at an April 2021 virtual Board hearing before the undersigned Veterans Law Judge. The hearing transcript has been associated with the record. The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C. §§ 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.159, 3.326(a). Concerning the duty to notify, the record reflects that the Veteran received adequate VCAA notice during the course of this appeal. Regarding the duty to assist, the record reflects that VA obtained all relevant documentation and obtained an adequate VA shoulder examination. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). For these reasons, the Board finds that the duties to notify and assist the Veteran in this case have been fulfilled. Neither the Veteran nor the evidence has raised any specific contentions regarding the duties to notify or assist. An Increased Disability Rating in Excess of 20 Percent for Service Connected Right Shoulder Disability is Denied Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule) found in 38 C.F.R. Part 4. 38 U.S.C. § 1155. It is not expected that all cases will show all the findings specified; however, findings sufficiently characteristic to identify the disease and the disability therefrom and coordination of rating with impairment of function will be expected in all instances. 38 C.F.R. § 4.21. Where there is a question as to which of two disability ratings shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. It is the defined and consistently applied policy of VA to administer the law under a broad interpretation, consistent, however, with the facts shown in every case. When after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability such doubt will be resolved in favor of the claimant. 38 C.F.R. § 4.3. Where an increase in an existing disability rating is at issue, the present level of disability is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). The relevant temporal focus for adjudicating an increased rating claim is on the evidence concerning the state of the disability from the time period one year before the claim was filed until VA makes a final decision on the claim. Hart v. Mansfield, 21 Vet. App. 505 (2007). When evaluating disabilities of the musculoskeletal system, 38 C.F.R. § 4.40 allows for consideration of functional loss due to pain and weakness causing additional disability beyond that reflected on range of motion measurements. DeLuca v. Brown, 8 Vet. App. 202 (1995). Further, 38 C.F.R. § 4.45 provides that consideration also be given to decreased movement, weakened movement, excess fatigability, incoordination, and pain on movement, swelling, and deformity or atrophy of disuse. Painful motion is considered limited motion at the point that 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 affected joints. Muscle spasm will greatly assist the identification. Sciatic neuritis is not uncommonly caused by arthritis of the spine. The intent of the 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. The joints involved should be tested for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with the range of the opposite undamaged joint. 38 C.F.R. § 4.59. A veteran is competent to report symptoms because this requires only personal knowledge, not medical expertise, as it comes to him through his senses. See Layno v. Brown, 6 Vet. App. 465, 470 (1994). Lay testimony is competent to establish the presence of observable symptomatology, where the determination is not medical in nature and is capable of lay observation. Barr, 21 Vet. App. 303. The Veteran is currently rated under Diagnostic Code 5201 for disability rated on the basis of limitation of motion of the right shoulder. Pursuant to Diagnostic Code 5201, limitation of motion of an arm at the shoulder level warrants a 20 percent rating, whether it is the major or minor extremity. When motion is limited to midway between the side and shoulder level, a 30 percent rating is warranted for the major extremity and 20 percent for the minor extremity. When motion is limited to 25 degrees from the side, a 40 percent rating is warranted for the major extremity and 30 percent for the minor extremity. 38 C.F.R. § 4.71a. The right extremity is the Veteran's major extremity. Normal ranges of shoulder flexion and abduction are from 0 to 180 degrees, and external and internal rotations are from 0 to 90 degrees. See 38 C.F.R. § 4.71, Plate I. In determining whether a veteran has limitation of motion to shoulder level, it is necessary to consider forward flexion and abduction. See Mariano v. Principi, 17 Vet. App. 305, 314-316 (2003). Under Diagnostic Code 5200, ratings of 20, 30, 40, and 50 percent may be assigned when there is ankylosis of scapulohumeral articulation, depending on whether the ankylosis is in the major or minor extremity. 38 C.F.R. § 4.71. Under Diagnostic Code 5202, a 30 percent rating for the major extremity is warranted for malunion of the humerus with marked deformity or recurrent dislocation of the humerus at the scapulohumeral joint with frequent episodes and guarding of all arm movement, a 40 or 50 percent disability rating is warranted when there is fibrous union of the humerus of the minor or major extremity respectively, a 50 or 60 percent disability rating is warranted when there is nonunion of the humerus (false flail joint) of the minor or major extremity respectively, and a 70 or 80 percent disability rating is warranted when there is loss of head of the humerus (flail shoulder) of the minor or major extremity respectively. 38 C.F.R. § 4.71. During the pendency of this appeal, various portions of 38 C.F.R. § 4.71a were amended, effective February 7, 2021. The Board has considered whether these changes could result in an increased disability rating from the effective date of the regulation change. Relevant to the question of an increased rating based on limitation of motion, Diagnostic Code 5201 was amended to reflect that "shoulder level" is contemplated by flexion and/or abduction limited to 90 degrees, and "midway between side and shoulder level" is contemplated by flexion and/or abduction limited to 45 degrees. Further, the amendments also slightly modified Diagnostic Code 5202 for clarification purposes not relevant to the instant decision. At the outset, the Board notes that, in the April 2017 rating decision, the RO granted an increased disability rating of 20 percent, from 10 percent, for the service connected right shoulder disability from November 2, 2016, the date of claim for increased rating. The Board has considered whether this increase to 20 percent was warranted at any point during the one-year lookback period from November 2, 2015 through November 2, 2016; however, nothing in the record supports that the Veteran first became entitled to the increased 20 percent disability rating during the year prior to the date of claim for increased rating. 38 C.F.R. § 3.400. As such, the remaining question before the Board is entitlement to an increased disability rating in excess of 20 percent from November 2, 2016, the date of claim for increased rating for the right shoulder disability. Having reviewed all the evidence of record, lay and medical, the Board finds that, for the entire increased rating period on appeal, from November 2, 2016, the right shoulder (major extremity) disability did not manifest as ankylosis of scapulohumeral articulation, malunion of the humerus, recurrent dislocation of the humerus at the scapulohumeral joint, fibrous union of the humerus, nonunion of the humerus (false flail joint), or loss of head of the humerus (flail shoulder); and painful limitation of motion was not limited to midway between the side and shoulder level (flexion and/or abduction limited to 45 degrees), even when considering additional loss due to a painful flare up. The Veteran testified at an August 2021 virtual Board hearing. At that time, the Veteran first testified to having difficulty raising the right arm between midway from the side and shoulder level due to pain; however, when asked to demonstrate how far the right arm could move before pain set in, the Veteran lifted the right arm past the midway point, but not all the way to shoulder level. This demonstration is consistent with the medical evidence discussed below. Further, the Veteran did not testify to having ankylosis or impairment of the humerus at that time or describe symptoms that would evidence ankylosis or impairment of the humerus. A VA shoulder examination was performed in December 2016. Range of motion testing showed painful limitation of flexion and abduction to 160 degrees, external rotation to 80 degrees, and full internal rotation. While the Veteran conveyed having flare-ups of pain, no estimate as to additional range of motion lost during a flare-up was provided at that time. Upon examination the Veteran had full muscle strength, no ankylosis, and no impairment of the humerus, clavicle, or scapula. Further, the VA examiner assessed that right shoulder functioning was not so limited that the Veteran would be equally well served by amputation with prosthesis. Per a December 2017 VA treatment record, the Veteran conveyed having right shoulder pain with over the head activities. In another December 2017 VA treatment record, the Veteran stated that, after doing overhead work at the warehouse, he cannot raise the right arm above his head. The Veteran received a new VA shoulder examination in January 2022. Again, the Veteran conveyed having flare-ups of pain in the right shoulder, being unable to raise the right arm over the head for long periods of time, and that raising the right arm above the head is what causes painful flare-ups. Upon range of motion testing, there was flexion and abduction limited to 160 degrees, with internal rotation limited to 75 degrees, and external rotation limited to 65 degrees. While the examination was not being performed during a flare-up of pain, the VA examiner opined that during such a flare-up range of motion would be limited by an additional 10 degrees for all measurements. Once again, upon examination in January 2022 the Veteran had full muscle strength, no ankylosis, and no impairment of the humerus, clavicle, or scapula. The VA examiner assessed that right shoulder functioning was not so limited that the Veteran would be equally well served by amputation with prosthesis. VA treatment records do not reflect right shoulder symptoms and limitation of motion beyond that discussed above. Based upon the evidence discussed above, the Board finds that the weight of the evidence is persuasively against a finding that flare-ups of pain limit the motion in the right arm to midway between the side and shoulder level (flexion and/or abduction limited to 45 degrees). The Board has considered the Veteran's testimony at the August 2021 virtual Board hearing that right shoulder pain limits motion in the right arm to midway between the side and shoulder level; however, also as discussed above, when asked to demonstrate how far the right arm could move before pain set in, the Veteran lifted the right arm past midway, but not all the way to shoulder level. This demonstration, rather than the Veteran's testimony, is more consistent with the range of motion testing performed at the VA examinations in December 2016 and January 2020. Further, by the Veteran's own lay statement at the time of the January 2020 VA shoulder examination, flare-ups are caused by lifting the right arm over the head, and range of motion testing in December 2016 and January 2020 showed range of motion far beyond midway between the side and shoulder level (flexion and/or abduction limited to 45 degrees). The range of motion shown at the time of the August 2021 Board hearing, which was much less than that recorded at the VA examinations and still did not show limitation to midway between the side and shoulder level, was likely the Veteran's estimated range of motion lost during a flare-up. Additionally, the persuasive weight of the evidence shows that at no point during the increased rating period on appeal did the right shoulder symptoms or functional impairments manifest as ankylosis of scapulohumeral articulation, malunion of the humerus, recurrent dislocation of the humerus at the scapulohumeral joint, fibrous union of the humerus, nonunion of the humerus (false flail joint), or loss of head of the humerus (flail shoulder). For the above reasons, the Board finds that the weight of the evidence is persuasively against the appeal for a disability rating in excess of 20 percent for the service connected right shoulder disability, and the appeal for an increased disability rating from November 2, 2016 must be denied. 38 C.F.R. §§ 4.3, 4.7, 4.71a, Diagnostic Codes 5200 5202. (Continued on the next page) Extraschedular Claim Not Raised The Board finds that neither the Veteran nor the record has raised a claim for extraschedular rating under 38 C.F.R. § 3.321(b) for any period for the increased rating issue on appeal. See Thun v. Peake, 22 Vet. App. 111 (2008); Doucette v. Shulkin, 28 Vet. App. 366 (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); Yancy v. McDonald, 27 Vet. App. 484, 494 (2016), citing Dingess v. Nicholson, 19 Vet. App. 473, 499 (2006), aff'd, 226 Fed. Appx. 1004 (Fed. Cir. 2007) (holding that when 38 C.F.R. § 3.321(b)(1) is not "specifically sought by the claimant nor reasonably raised by the facts found by the Board, the Board is not required to discuss whether referral is warranted"). Further, as the evidence of record indicates that the Veteran is currently employed, the Board need not consider entitlement to a total disability rating for compensation purposes based on individual unemployability due to service connected disabilities (TDIU) pursuant to Rice v. Shinseki, 22 Vet. App. 447 (2009), at this time. J. PARKER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board E. Blowers, 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.