Citation Nr: 22052834 Decision Date: 09/16/22 Archive Date: 09/16/22 DOCKET NO. 16-11 633 DATE: September 16, 2022 ORDER Entitlement to an initial rating in excess of 20 percent for service-connected left shoulder impingement syndrome, status-post surgical repair (left shoulder condition), is denied. Entitlement to an initial rating in excess of 20 percent for service-connected right shoulder impingement syndrome, status-post surgical repair (right shoulder condition), is denied. Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected conditions is dismissed. FINDINGS OF FACT 1. At no point during the period on appeal has the Veteran's left shoulder condition manifested with limitation to range of motion (ROM) with flexion or abduction limited to midway between side and shoulder level, or flexion or abduction limited to 25 degrees from the side. 2. At no point during the period on appeal has the Veteran's right shoulder condition manifested with limitation to range of motion (ROM) with flexion or abduction limited to midway between side and shoulder level, or flexion or abduction limited to 25 degrees from the side. 3. Throughout the period on appeal, the Veteran is in receipt of a combined total schedular rating, and the Veteran has not alleged that he is unemployable due to a single service-connected disability alone. CONCLUSIONS OF LAW 1. The criteria for an initial rating in excess of 20 percent for service-connected left shoulder condition have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.2, 4.3, 4.7, 4.10, 4.14, 4.21, 4.71a, DC 5201. 2. The criteria for an initial rating in excess of 20 percent for service-connected right shoulder condition have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.2, 4.3, 4.7, 4.10, 4.14, 4.21, 4.71a, DC 5201. 3. The appeal for entitlement to a TDIU is moot and the claim is dismissed. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from January 1994 to March 2015. These matters come before the Board of Veterans' Appeals (Board) on appeal from a September 2015 rating decision issued by a Department of Veterans Affairs (VA) regional office. These matters were previously remanded by the Board in March 2022; the issues of entitlement to increased ratings for the Veteran's bilateral shoulder conditions were also remanded by the Board in October 2020 and October 2021. As an initial matter, the Board notes that, during the pendency of this matter, the Veteran's bilateral shoulder conditions were each assigned a 20 percent rating, effective April 1, 2015, in an April 2022 rating decision. As such grants do not represent a total grant of benefits sought on appeal, the claims for higher ratings remain before the Board. See AB v. Brown, 6 Vet. App. 25 (1993). Increased Rating 1. Entitlement to an initial rating in excess of 20 percent for service-connected left shoulder condition, is denied. 2. Entitlement to an initial rating in excess of 20 percent for service-connected right shoulder condition, is denied. Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Where a claimant timely appeals the rating initially assigned for the service-connected disability, VA must consider whether the claimant is entitled to "staged" ratings to compensate them for times since filing the claim when their disability may have been more severe than at other times during the course of the appeal. See Fenderson v. West, 12 Vet. App. 119, 126 (1999). If two ratings are potentially applicable, 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. 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. 38 C.F.R. § 4.21. It is the defined and consistently applied policy of VA to administer the law under a broad interpretation, consistent with the facts shown in every case. Any reasonable doubt regarding the degree of disability is resolved in favor of the Veteran. 38 C.F.R. §§ 3.102, 4.3. The Veteran's bilateral shoulder conditions are rated pursuant to 38 C.F.R. § 4.71a, DC 5201, based on limitation of motion. The Board notes that the rating criteria applicable to musculoskeletal system conditions was revised effective February 7, 2021. See 38 C.F.R. § 4.71a; 85 Fed. Reg. 76453 (Nov. 30, 2020); 85 Fed. Reg. 85523 (Dec. 29, 2020); 86 Fed. Reg. 8142 (Feb. 4. 2021). However, while the rating criteria for DC 5201 was revised, such revision simply clarified that "shoulder level" means flexion or abduction at 90 degrees, and that "midway between side and shoulder level" means flexion or abduction limited to 45 degrees. 38 C.F.R. § 4.71a, DC 5201 (2020); 38 C.F.R. § 4.71a, DC 5201 (2021). As such, a determination as to whether the prior or revised criteria is more beneficial to the Veteran is not necessary here. Under DC 5201, limitation of motion of arm, for the dominant arm, a 20 percent rating is warranted when flexion or abduction is limited to shoulder level (90 degrees), a 30 percent rating is warranted when flexion or abduction is limited to midway between the side and shoulder level (45 degrees), and a 40 percent rating is warranted when flexion or abduction is limited to 25 degrees from the side. For the non-dominant arm, a 20 percent rating is warranted when flexion or abduction is limited to shoulder level or midway between the side and shoulder level (90 degrees and 45 degrees, respectively), and a 30 percent rating is warranted when flexion or abduction is limited to 25 degrees from the side. See id. Additionally, where functional loss is alleged due to pain upon motion, the provisions of 38 C.F.R. § 4.40 and 4.45 must be considered. See DeLuca v. Brown, 8 Vet. App. 202 (1995). However, pain may result in functional loss only if it limits the ability to perform the normal working movements of the body with normal excursion, strength, coordination, or endurance. See Mitchell v. Shinseki, 25 Vet. App. 31 (2011). Within this context, the Board notes that a veteran may be entitled to a higher disability evaluation for a musculoskeletal disability than that supported by mechanical application of the rating schedule where there is evidence that his or her disability causes additional functional loss, such as the inability to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance, including as due to pain. 38 C.F.R. § 4.40 (2020); see Lyles v. Shulkin, 29 Vet. App. 107, 117 (2017). A higher disability evaluation may also be awarded where there is a reduction of a joint's normal excursion of movement in different planes, including changes in the joint's range of movement, strength, fatigability, or coordination. 38 C.F.R. § 4.45 (2020). However, the veteran's functional loss must result in limitation of motion sufficient to satisfy the next disability rating allowable for that particular disorder to be entitled to a higher disability rating under §§ 4.40 and 4.45. See Thompson v. McDonald, 815 F.3d 781, 785-86 (Fed. Cir. 2016). Factual Background. The Veteran's treatment records reveal reports of shoulder pain, as well as left shoulder surgery in June 2015 and right shoulder surgery in 2008 during service. Such records are otherwise silent with respect to treatment of or complaints involving his bilateral shoulder conditions. See Bedford VA Medical Center (VAMC) records, received September 2015, May 2022, and May 2022 in CAPRI; Boston VAMC records, received November 2018, May 2022, and May 2022 in CAPRI; Social Security Administration (SSA) records, received December 2018; Lahey Health records, received March 2016. In August 2015, the Veteran underwent a VA examination in which he reported experiencing pain and decreased ROM and strength in his shoulders, which had improved since his surgeries. The examiner documented an abnormal initial ROM, with pain. For the right shoulder, ROM was noted as flexion to 170 degrees, abduction to 170 degrees, and external and internal rotation to 90 degrees; no additional loss was documented with observed repetitive use. For the left shoulder, ROM was noted as flexion to 160 degrees, abduction to 160 degrees, and external and internal rotation to 90 degrees; though the examiner noted that pain resulted in additional functional loss following observed repetitive use, the ROM provided was identical to the initial ROM. The examiner also noted that pain, fatigue, weakness, and incoordination significantly limited functional ability with repeated use over time for the left shoulder, but not the right shoulder. However, the examiner stated that there would be no change in ROM. The examiner further noted that instability was suspected, but testing was negative. See August 2015 VA Shoulder and Arm Conditions Disability Benefits Questionnaire (DBQ). The Board notes that this examination was found to be inadequate in the October 2020 Board remand. In March 2021, the Veteran underwent a VA examination in which he reported experiencing pain and decreased ROM in his shoulders. The examiner documented an abnormal initial ROM, with pain. For both shoulders, ROM was noted as flexion to 120 degrees, abduction to 120 degrees, and external rotation to 55 degrees, and internal rotation to 45 degrees; no additional loss was documented with observed repetitive use. The examiner also noted that pain, fatigue, weakness, and lack of endurance would result in additional functional loss with repeated use over time; however, the estimate ROM provided by the examiner was identical to the initial ROM. With respect to flare-ups, the examiner noted that pain, fatigue, weakness, and lack of endurance would result in additional functional loss during flare-ups, manifesting in both shoulders with flexion to 115 degrees, abduction to 115 degrees, external rotation to 50 degrees, and internal rotation to 40 degrees. The examiner further noted that there was no ankylosis or instability. See March 2021 VA Shoulder and Arm Conditions. In June 2021, the Veteran underwent a VA examination in which he reported experiencing pain and decreased ROM in his shoulders. The examiner documented an abnormal initial ROM, with pain; no additional loss was documented with observed repetitive use. For both shoulders, the noted flexion to 105 degrees and abduction to 90 degrees. For the right shoulder, internal rotation to 65 degrees, and external rotation to 75 degrees, was noted. For the left shoulder, internal rotation to 75 degrees, and external rotation to 90 degrees, was noted. The examiner also noted that pain and weakness would result in additional functional loss with repeated use over time or flare-ups, with the right shoulder having flexion and external rotation to 65 degrees, and abduction and internal rotation to 60 degrees, and the left shoulder having flexion and external rotation to 75 degrees, abduction to 65 degrees, and internal rotation to 60 degrees. The examiner further noted that there was no ankylosis or instability. See June 2021 VA Shoulder and Arm Conditions. Analysis The Veteran seeks higher ratings for his service-connected shoulder conditions. Importantly, as this is an appeal as to the initial ratings assigned, the relevant temporal focus is from April 2015 to current. As indicated above, the Veteran is currently rated at 20 percent under DC 5201, bilaterally. Notably, the Veteran is right-handed. Id. As such, to warrant a higher rating, the Veteran's right shoulder condition must more nearly approximate flexion or abduction limited to midway between the side and shoulder (45 degrees), and his left shoulder condition must more nearly approximate flexion or abduction limited to 25 degrees. Here, the Board finds that, throughout the period on appeal, the Veteran's bilateral shoulder conditions have more nearly approximated arm motion limited to at shoulder level, the criteria for a 20 percent rating; this includes consideration of 38 C.F.R. §§ 4.40 and 4.45, Deluca, and Mitchell. In March 2021, the Veteran underwent a VA examination in which he reported experiencing pain and decreased ROM in his shoulders. The examiner documented an abnormal initial ROM, with pain, and with flexion and abduction to 120 degrees for both shoulders; no additional loss was documented with observed repetitive use. With respect to flare-ups, the examiner noted that pain, fatigue, weakness, and lack of endurance would result in additional functional loss during flare-ups, manifesting in both shoulders with flexion and abduction to 115 degrees, abduction to 115 degrees. The examiner further noted that there was no ankylosis or instability. See March 2021 VA Shoulder and Arm Conditions. However, the examiner also noted that pain, fatigue, weakness, and lack of endurance would result in additional functional loss with repeated use over time, though the estimated ROM provided by the examiner was identical to the initial ROM. See id. The Board finds this to be internally inconsistent and, therefore, inadequate with respect to the functional impacts of repeated used over time. In June 2021, the Veteran underwent a VA examination in which he reported experiencing pain and decreased ROM in his shoulders. The examiner documented an abnormal initial ROM, with pain, with flexion to 105 degrees and abduction to 90 degrees. The examiner also noted that pain and weakness would result in additional functional loss with repeated use over time or flare-ups, with the right shoulder having flexion to 65 degrees and abduction to 60 degrees, and the left shoulder having flexion 75 degrees and abduction to 65 degrees. The examiner further noted that there was no ankylosis or instability. See June 2021 VA Shoulder and Arm Conditions. Based on the above, the Board finds record indicates that, at worst, the Veteran's right shoulder condition manifests with flexion limited to 65 degrees and abduction limited to 60 degrees. The record also indicates that, at worst, the Veteran's left shoulder condition manifests with flexion limited 75 degrees and abduction limited to 65 degrees. See March 2021 VA Shoulder and Arm Conditions DBQ; June 2021 VA Shoulder and Arm Conditions DBQ. Therefore, the Board finds that at no point during the period on appeal has the Veteran's right shoulder condition manifested with flexion or abduction limited midway between the side and shoulder level (45 degrees), nor has the Veteran's left shoulder condition manifested with flexion or abduction limited to 25 degrees. The Board acknowledges that the Veteran has reported experiencing flare-ups, occurring approximately two times per week, and lasting up to ten minutes, during which he experiences increased pain and numbness/tingling and a decreased ability to lift anything over ten pounds. See id. However, as discussed above, such flare-ups result in, at worst, a reduced ROM with right shoulder flexion and abduction limited to 65 degrees and 60 degrees, respectively, and left shoulder flexion and abduction limited to 75 degrees and 65 degrees, respectively. See id. Moreover, there is no indication in the Veteran's medical records or upon examination that the Veteran's right arm motion has been limited to midway between the side and shoulder level, or that the Veteran's left arm motion has been limited to 25 degrees. See id; Bedford VAMC records; Boston VAMC records; Lahey Health records; SSA records. As such, ratings in excess of the 20 percent currently assigned is not supported by the evidence of record. The Board has considered whether the Veteran is entitled to higher or separate ratings under other diagnostic codes involving the shoulder. Specifically, the Board has considered DCs 5200, 5202, and 5203, which provide ratings for ankylosis of scapulohumeral articulation, other impairment of the humerus, and impairment of the clavicle or scapula, respectively. See 38 C.F.R. § 4.71a. With respect to DC 5200, there is no indication in the claims file that the Veteran has ankylosis, nor has the Veteran contended that his ROM is restricted to the degree as to present with the functional equivalence of ankylosis. Indeed, as discussed above, the record shows that, at worst, the Veteran's bilateral shoulder conditions manifest with right shoulder flexion and abduction limited to 65 degrees and 60 degrees, respectively, and left shoulder flexion and abduction limited to 75 degrees and 65 degrees, respectively. See March 2021 VA Shoulder and Arm Conditions DBQ; June 2021 VA Shoulder and Arm Conditions DBQ. As such, a separate rating under DC 5200 is not warranted. With respect to DC 5202, there is no indication in the claims file that the Veteran has fibrous union, nonunion, loss of head, or recurrent dislocation of the humerus. Similarly, with respect to DC 5203, there is no indication in the claims file that the Veteran has malunion, nonunion, or dislocation of the clavicle or scapula. Indeed, though the August 2015 examination noted that recurrent dislocation was suspected, testing was negative. See August 2015 VA Shoulder and Arm Conditions DBQ. Additionally, the Veteran's medical records are silent with respect to reports of dislocation, and subsequent examinations have noted both that dislocation was not suspected, and testing was negative. See Bedford VAMC records; Boston VAMC records; Lahey Health records; SSA records; March 2021 VA Shoulder and Arm Conditions DBQ; June 2021 VA Shoulder and Arm Conditions DBQ. In sum, ratings in excess of the 20 percent ratings currently assigned is not supported by the evidence of record and, therefore, the claim must be denied. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine; however, as the evidence persuasively weighs against the claim, that doctrine does not apply. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102. In making this determination, the Board has considered, along with the schedular criteria, the Veteran's functional loss due to pain. See 38 C.F.R. § 4.40, 4.45; Deluca v. Brown, 8 Vet. App. 202, 206-207 (1995). 3. Entitlement to a TDIU due to service-connected conditions is dismissed. The Veteran seeks entitlement to a TDIU due to his service-connected psychiatric condition, sleep apnea, neck condition, back condition, and radiculopathy. However, the Board finds that the issue of entitlement to a TDIU is rendered moot as the Veteran is in receipt of a combined schedular rating of 100 percent. It has long been established that a 100 percent rating under the Schedule for Rating Disabilities means that a claimant is totally disabled. See Holland v. Brown, 6 Vet. App. 443 (1994). Therefore, if a claimant has been found to be totally disabled as a result of a particular service-connected disability or combination of disabilities pursuant to the rating schedule, there is no need, and no authority, to otherwise rate that claimant totally disabled on any other basis. See Herlehy v. Principi, 15 Vet. App. 33 (2001). However, a 100 percent rating does not necessarily render the issue of TDIU moot as TDIU may be used to establish entitlement to special monthly compensation (SMC) if the TDIU is predicated on a single disability and there exists additional disabilities independently ratable at 60 percent or more. See Bradley v. Peake, 22 Vet. App. 280 (2008); 38 U.S.C. § 1114(s). Here, the evidence does not indicate, nor has the Veteran contended, that a TDIU is warranted based on a single disability. Indeed, the Veteran has only contended that a TDIU is warranted based on his service-connected psychiatric condition, sleep apnea, back condition, neck condition, and radiculopathy. See November 2018 VA Form 21-8940. As a TDIU award based on such conditions would not meet the requirement for a separate and distinct disability necessary to award SMC pursuant to 38 U.S.C. § 1114(s), the issue of entitlement to a TDIU is moot and the claim is dismissed. C.B. Iwanowski Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. T. Martin III, 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.