Citation Nr: 22042897 Decision Date: 07/28/22 Archive Date: 07/28/22 DOCKET NO. 18-45 653 DATE: July 28, 2022 ORDER Evaluation in excess of 20 percent for right shoulder strain is denied. Evaluation in excess of 20 percent for left shoulder strain is denied. FINDINGS OF FACT 1. The Veteran's right shoulder strain did not result in limitation of flexion and/or abduction of the arm to midway between the side and the shoulder or to 45 degrees. 2. The Veteran's left shoulder strain did not result in limitation of flexion and/or abduction of the arm to midway between the side and the shoulder or to 45 degrees. CONCLUSIONS OF LAW 1. The criteria for an evaluation in excess of 20 percent for right shoulder strain have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.7, 4.40, 4.45, 4.71a, Diagnostic Code 5201. 2. The criteria for an evaluation in excess of 20 percent for left shoulder strain have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.7, 4.40, 4.45, 4.71a, Diagnostic Code 5201. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the U.S. Navy from September 1998 to November 1996 and in the U.S. Army from November 2006 to November 2010. This matter comes before the Board of Veterans Appeals (Board) on appeal from a June 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). This matter was previously before the Board in December 2021 when it was remanded to the Agency of Original Jurisdiction (AOJ) for additional development. The Board finds that there has been substantial compliance with its remand and will proceed with adjudication. Stegall v. West, 11 Vet. App. 268, 271 (1998). In December 2021, the Board also remanded the issues of service connection for a neck disability and a heart condition. In a June 2022 rating decision, the RO granted service connection for a neck disability and a heart condition, which constitutes a full award of the benefits sought on appeal. See Grantham v. Brown, 114 F. 3d 1156, 1158 (Fed. Cir. 1997). Thus, these matters are no longer in appellate status. Increased Rating Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4. The Board should consider only those factors contained in the rating criteria. Massey v. Brown, 7 Vet. App. 204 (1994). Where there is a question as to which of two 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. The Board will also consider entitlement to staged ratings to compensate for times since filing the claim when the disability may have been more severe than at other times during the course of the claim on appeal. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and recurrence of his symptoms. Layno v. Brown, 6 Vet. App. 465, 470 (1994). More generally, disability of the musculoskeletal system is primarily the inability, due to damage or infection in parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. Functional loss may be due to the absence or deformity of structures or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by the visible behavior in undertaking the motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. 38 C.F.R. § 4.40. With respect to joints, in particular, the factors of disability reside in reductions of normal excursion of movements in different planes. Inquiry will be directed to more or less than normal movement, weakened movement, excess fatigability, incoordination, pain on movement, swelling, deformity or atrophy of disuse. 38 C.F.R. § 4.45. In addition, the intent of the Rating Schedule is to recognize actually painful, unstable or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59. This regulation also provides that the intent of the Rating Schedule is to recognize painful motion with joint or periarticular pathology as productive of disability, and that crepitation should be noted carefully as points of contact which are diseased. Thus, when assessing the severity of a musculoskeletal disability that, as here, is at least partly rated on the basis of limitation of motion, VA must also consider the extent that the veteran may have additional functional impairment above and beyond the limitation of motion objectively demonstrated, such as during times when his symptoms are most prevalent ("flare-ups") due to the extent of his pain (and painful motion), weakness, premature or excess fatigability, and incoordination, assuming these factors are not already contemplated by the governing rating criteria. DeLuca v. Brown, 8 Vet. App. 202, 204-07 (1995). A finding of functional loss due to pain must be supported by adequate pathology and evidenced by the visible behavior of the claimant. 38 C.F.R. § 4.40; Johnston v. Brown, 10 Vet. App. 80, 85 (1997). Although VA is required to apply 38 C.F.R. §§ 4.40 and 4.45, pertaining to functional impairment for disabilities evaluated on the basis of limitation of motion, where the Veteran is in receipt of the maximum schedular evaluation based on limitation of motion and a higher rating requires ankylosis, these regulations are not for application. Johnston, 10 Vet. App. at 84-85. Moreover, pain itself does not constitute functional loss. Mitchell v. Shinseki, 25 Vet. App. 32 (2011). Rather, pain must affect some aspect of "the normal working movements of the body" such as "excursion, strength, speed, coordination, and endurance," in order to constitute functional loss. Id.; see 38 C.F.R. § 4.40. In Correia v. McDonald, 28 Vet. App. 158 (2016), the Court held that the final sentence of 38 C.F.R. § 4.59 requires that the examiner record the results of range of motion testing "for pain on both active and passive motion [and] in weight-bearing and non-weight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint." In Sharp v. Shulkin, 29 Vet. App. 26 (2017), the Court held that VA examiners must obtain information about the severity, frequency, duration, precipitating and alleviating factors, and extent of functional impairment of flares from the veterans themselves, when a flare-up is not observable at the time of examination. The Board has reviewed all of the evidence of record, with an emphasis on the evidence relevant to the Veteran's claims. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (holding that VA must review the entire record but does not have to discuss each piece of evidence). Hence, the Board will summarize the relevant evidence where appropriate and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, as to the Veteran's claims. 1. Evaluation in excess of 20 percent for right shoulder strain 2. Evaluation in excess of 20 percent for left shoulder strain The Veteran's right and left shoulder strain are rated under 38 C.F.R. § 4.71a, Diagnostic Code (DC) 5201, for limitation of motion of the arm. Under DC 5201, limitation of motion of the arm at shoulder level warrants a 20 percent rating for both the major and minor extremity. Limitation of motion of the arm midway between side and shoulder warrants a 20 percent rating for the minor extremity and a 30 percent rating for the major extremity. Limitation of motion of the arm to 25 degrees from side warrants a maximum 30 percent rating for the minor joint and a maximum 40 percent rating for the major joint. 38 C.F.R. § 4.71a, DC 5201. DC 5201 "does not provide separate ratings for limitation of motion in the flexion and abduction planes, but rather is addressed generically to limitation of motion of the arm." Yonek v. Shinseki, 722 F.3d 1355, 1358 (Fed. Cir. 2013). Effective February 7, 2021, VA amended DC 5201 to reflect that limitation of motion may be shown by flexion and/or abduction and clarified the degrees of limitation of motion that correspond to each rating. Now, limitation of motion at the shoulder level (flexion and/or abduction limited to 90 degrees) warrants a 20 percent rating for both the major and minor extremity. Limitation of motion of the arm midway between side and shoulder level (flexion and/or abduction limited to 45 degrees) warrants a 20 percent rating for the minor extremity and a 30 percent rating for the major extremity. Flexion and/or abduction limited to 25 degrees from the side warrants a maximum 30 percent rating for the minor joint and a maximum 40 percent rating for the major joint. The Veteran underwent VA examination in May 2014, November 2016, and February 2022. During the May 2014 examination, the Veteran had diagnoses of right shoulder strain and left shoulder status post arthroscopic procedure. The Veteran is right hand dominant. For his right shoulder, the Veteran reported intermittent, moderate, sharp pain that travels down the upper arm. He also experienced intermittent, moderate, dull ache of his left shoulder. The Veteran reiterated these symptoms in experiencing flare-ups. His initial range of motion for his right shoulder was noted as flexion and abduction to 170 degrees and left shoulder flexion and abduction to 180 degrees. No objective evidence of painful motion was noted. Repetitive use testing did not result in an additional loss of range of motion. Functional loss of the right shoulder was noted with less movement than normal. Additionally, the Veteran did not have any muscle atrophy or ankylosis. The Veteran had negative test results for the Hawkins' impingement test, the empty can test, external rotation/infraspinatus straight test, and lift off subscapular test. Left shoulder mechanical symptoms were noted. No dislocation was noted. No acromioclavicular joint condition or other impairment of the clavicle or scapula was noted. He had negative results for the cross-body abduction test, and there was no tenderness upon palpation of the acromioclavicular joint. The examiner noted the functional impact of the shoulder issues limited his ability to lift or carry heavy objects. During the November 2016 examination, the Veteran had diagnoses of right and left shoulder strain. The Veteran reported experiencing pain, popping, and limitation of movement. He treated pain with prescription pain medications, heating pads, and TENS unit. He denied experiencing flare-ups. His initial range of motion for his right shoulder was noted as flexion to 90 degrees, abduction to 95 degrees, internal rotation to 50 degrees, and external rotation to 90 degrees. Range of motion for his left shoulder was flexion to 100 degrees, abduction to 105 degrees, internal rotation to 60 degrees, and external rotation to 90 degrees. Pain was noted on weight-bearing. Functional loss was noted with pain on movement. Repetitive use testing resulted in an additional loss of range of motion. Right shoulder flexion was to 85 degrees, abduction to 90 degrees, internal rotation to 45 degrees, and external rotation to 90 degrees. Left shoulder flexion was to 95 degrees, abduction to 100 degrees, internal rotation to 55 degrees, and external rotation to 90 degrees. Additional factors contributing to the Veteran's disability included the inability to raise his shoulder or lift more than 5 pounds. Additionally, the Veteran did not have any muscle atrophy or ankylosis. The Veteran had negative test results for the Hawkins' impingement test, the empty can test, external rotation/infraspinatus straight test, and lift off subscapular test. No instability, dislocation, or labral pathology was noted. He had positive results for the cross-body abduction test, and there was tenderness upon palpation of the acromioclavicular joint. Acromioclavicular arthropathy was noted. The Veteran did not have any additional shoulder conditions. September 2016 x-rays were conducted but results were unremarkable. The examiner noted the functional impact of the Veteran's bilateral strain was pain in his shoulders, neck, and back. During his July 2021 hearing testimony, the Veteran described how he experienced severe pain in his left shoulder. He tried physical therapy and managing the pain with medication but eventually needed surgery for his left shoulder. Pursuant to the December 2021 Board remand, the Veteran received another VA examination in February 2022. The Veteran's diagnosis was noted as right and left shoulder strain. He indicated worsening pain requiring more medication and rest with minimal relief. He did not endorse flare-ups. The functional impairment of his bilateral shoulder strain was the inability to work overhead. On physical examination, initial range of motion for his right shoulder was noted as flexion to 105 degrees, abduction to 105 degrees, internal rotation to 90 degrees, and external rotation to 90 degrees. Left shoulder range of motion was flexion to 120 degrees, abduction to 100 degrees, internal rotation to 90 degrees, and external rotation to 90 degrees. There was evidence of pain on weight-bearing and on active motion. The Veteran was able to perform repetitive use testing with no additional loss of motion. Repeated used over time range of motion for the right shoulder was flexion to 100 degrees, abduction to 100 degrees, internal rotation to 85 degrees, and external rotation to 85 degrees. Range of motion for the left shoulder was flexion to 115 degrees, abduction to 95 degrees, internal rotation to 85 degrees, and external rotation to 85 degrees. Additionally, the Veteran did not have any muscle atrophy or ankylosis. The Veteran had negative test results for both shoulders for Hawkins' impingement test, empty can test, external rotation/infraspinatus straight test, lift off subscapular test, and crank apprehension and relocation test. No instability, dislocation, or labral pathology was noted. His cross-body abduction tests were negative, and no acromioclavicular joint condition or other impairment of the clavicle or scapula was noted. No conditions or impairments of the humerus were identified, nor were there any other physical findings. The examiner determined the functional impact of the Veteran's shoulder conditions was that he was unable to perform overhead work. March 2022 x-rays were conducted but results were unremarkable. The Board finds that the evidence of record persuasively weighs against ratings in excess of 20 percent for the Veteran's right and left shoulder strain. The Veteran could receive a rating in excess of 20 percent under either the amended or prior criteria by demonstrating limitation of motion of the arm between side and shoulder level (flexion and/or abduction limited to 45 degrees) or limitation of motion of the arm to 25 degrees from the side. See 38 C.F.R. § 4.71a, DC 5201. Here, however, the evidence does not show the required limitation of range of motion in either arm for an increased rating. As shown by the May 2014, November 2016, and February 2022 VA examinations, the Veteran's flexion and abduction are limited to no less than 85 degrees, which exceeds the limitation to either midway between the side and shoulder or to 45 degrees required by the 30 percent rating criteria. A rating in excess of 20 percent under the rating criteria set forth in DC 5201 is therefore not warranted. The Board has considered whether any other Diagnostic Codes related to disabilities of the shoulder would provide for a higher disability rating. However, the evidence does not reflect that the symptoms would warrant a higher rating under a different Diagnostic Code. See 38 C.F.R. § 4.71a. In conclusion, the Board finds that the evidence of record persuasively weighs against the Veteran's appeal for a rating in excess of 20 percent for right and left shoulder strain. As the evidence of record persuasively weighs against a rating in excess of 20 percent, the benefit-of-the-doubt rule does not apply. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 4.3, 4.7; Lynch v. McDonough, No. 2020-2067, 2021 U.S. App. LEXIS 37307 (Fed. Cir. Dec. 17, 2021). The claim is denied. Caroline B. Fleming Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. Javed, 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.