Citation Nr: 23013085 Decision Date: 03/03/23 Archive Date: 03/03/23 DOCKET NO. 18-44 892 DATE: March 3, 2023 ORDER Entitlement to a disability rating greater than 20 percent for residuals, left shoulder, status post-surgery for impingement syndrome, is denied. FINDING OF FACT The Veteran's left shoulder disability is manifested by painful motion and weakness, but without ankylosis or impairment of the humerus, clavicle, or scapula. CONCLUSION OF LAW The criteria for an increased disability rating for left shoulder disability, with residuals status post-surgery for impingement syndrome, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. Part 4, including §§ 3.400, 4.3, 4.7, 4.27, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5200, 5201 (as in effect prior to February 7, 2021), and 4.71a, DC 5201 (as in effect from February 7, 2021). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from March 1996 to March 1999 and from January 2000 to January 2003. This matter comes to the Board on appeal from an August 2015 rating decision issued by a Department of Veterans Affairs (VA) Regional Office. In July 2019 the Board remanded the issue of entitlement to an increased rating for a left shoulder disability to the Agency of Original Jurisdiction (AOJ) for additional action. The Board also instructed the AOJ to issue a Statement of the Case (SOC) with respect to the issues of entitlement to increased ratings for status post low back strain with degenerative disc disease and a left knee injury. Subsequently, the AOJ obtained an opinion as to the severity of the Veteran's left shoulder disability. In particular, the examination report included adequate findings regarding left shoulder impairment during flare-ups and after repetitive use over time. In addition, the AOJ issued an October 2020 SOC regarding the increased ratings for status post low back strain with degenerative disc disease and a left knee injury. Accordingly, the Board finds that there has been substantial compliance with the remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998); see also D'Aries v. Peake, 22 Vet. App. 97, 105 (2008). The Veteran filed a substantive appeal in November 2020 and requested a hearing with respect to the other two increased rating claims. In view of the Veteran's hearing request, the issues of increased ratings for status post low back strain with degenerative disc disease and left knee injury will be addressed in a future and separate Board decision, if otherwise in order. Ratings for left shoulder disability The Veteran contends that the extent and effects of his left shoulder disability warrant a rating higher than 20 percent. VA assigns disability ratings 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 his symptomatology with the criteria set forth in the VA Schedule for Rating Disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4, including §§ 4.1, 4.2, 4.10. In determining the current level of impairment, the disability must be considered in the context of the whole recorded history, including service medical records. 38 C.F.R. § 4.2. If two disability 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. The United States Court of Appeals for Veterans Claims (Court) has held that a claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the claim for an increased rating was filed until a final decision is made. See Hart. v. Mansfield, 21 Vet. App. 505 (2007). When evaluation of a musculoskeletal disability is based on limitation of motion, that evaluation must include consideration of impairment of function due to such factors as pain on motion, weakened motion, excess fatigability, diminished endurance, or incoordination. 38 C.F.R. §§ 4.40, 4.45, 4.59; see DeLuca v. Brown, 8 Vet. App. 202 (1995). Evaluation of joints that have painful motion also should include consideration of whether there is pain on both active and passive motion, consideration of whether there is pain with and without weightbearing, and comparison of the range of motion to that of any opposite undamaged joint. 38C.F.R. § 4.59; see Correia v McDonald, 28 Vet. App. 158 (2016). The Court has noted that "A veteran may... be entitled to a higher disability evaluation than that supported by mechanical application of the schedule where there is evidence that his or her disability causes additional functional lossi.e., 'the inability...to perform the normal working movements of the body with normal excursion, strength, speed, coordination[,] and endurance'including as due to pain." Sharp v. Shulkin, 29 Vet. App. 26, 31-32 (2017); 38 C.F.R. § 4.40. The Court added, "A higher 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." Sharp at 32; 38 C.F.R. § 4.45. As the Court explained in Sharp, supra, at 33, "the VA Clinician's Guide makes explicit what DeLuca clearly implied: it instructs examiners when evaluating certain musculoskeletal conditions to obtain information about the severity, frequency, duration, precipitating and alleviating factors, and extent of functional impairment of flares from the Veterans themselves." Sharp, 29 Vet. App. at 6. "Even when the claimant is not experiencing a flare-up at the time of the examination, a VA examiner must elicit relevant information as to the Veteran's flares or ask him to describe the additional functional loss, if any, he suffered during flares and then estimate the Veteran's functional loss due to flares based on all the evidence of record-including the Veteran's lay information-or explain why [he or] she could not do so." Id. The rating criteria for musculoskeletal disorders changed effective February 7, 2021. 38 C.F.R. §§ 4.71a. Where the rating criteria affecting a disability have changed, VA will apply the earlier version before the effective date of the change. From the effective date of the change, VA will apply either the earlier version or the revised version, whichever is more favorable to the claimant. See Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). The Veteran's left shoulder disability is currently rated under 38 C.F.R. § 4.71a, Diagnostic Code (DC) 5200. DC 5200 is for ankylosis of scapulohumeral articulation, when the scapula and humerus move as one piece. The criteria under that DC did not change with the February 2021 revisions. The Veteran is right-handed. For the minor shoulder, DC 5200 provides a 40 percent rating if the ankylosis is unfavorable, with abduction limited to 25 degrees from the side. A 30 percent rating is assigned with ankylosis that is intermediate between favorable and unfavorable. A 20 percent rating is assigned with favorable ankylosis, with abduction to 60 degrees, and ability to reach the mouth and head. DC 5201 evaluates limitation of motion of the arm at the shoulder. The version of that DC in effect prior to February 7, 2021, provides for the minor shoulder a rating of 30 percent if motion of the arm is limited to 25 degrees from the side, 20 percent if limited to midway between side and shoulder level, and 20 percent if limited at shoulder level. The revised version effective February 7, 2021, contains specifications of more positions in degrees, and provides for the minor shoulder a rating of 30 percent if flexion and/or abduction of the arm is limited to 25 degrees from the side, 20 percent if flexion and/or abduction is limited to midway between side and shoulder level (45 degrees), and 20 percent if flexion and/ or abduction is limited at shoulder level (90 degrees). DC 5202 is for other impairment of the humerus. The version of that DC in effect prior to February 7, 2021, provides for the minor shoulder a rating of 70 percent for loss of head of the humerus, that is, flail shoulder. A 50 percent rating is assigned for nonunion of the humerus, that is, false flail shoulder. A 40 percent rating is assigned for fibrous union of the humerus. A 20 percent rating is assigned for recurrent dislocation of the humerus as the scapulohumeral joint. A 20 percent rating is assigned malunion of the humerus. Under the revised version effective February 7, 2021, the rating criteria for the minor shoulder are the same, except that the criteria for a 20 percent rating recurrent dislocation of the humerus as the scapulohumeral joint, with infrequent episodes, and guarding of movement only at shoulder level, contain a clarification that "at shoulder level" means flexion and/or abduction at 90 degrees. For VA compensation purposes, normal forward elevation (flexion) and abduction of the shoulder is from 0 degrees to 180 degrees, with 90 degrees being shoulder level. 38 C.F.R. § 4.71, Plate I. DC 5203 evaluates impairment of the clavicle or scapula. The criteria did not change in the February 2021 revisions. For the minor shoulder, DC 5203 provides a 20 percent rating for dislocation. Nonunion is rated at 20 percent with loose movement and at 10 percent without loose movement. Malunion is rated at 10 percent. In the alternative, the impairment may be rated based on impairment of function of a contiguous joint. The Court has indicated that the Board must assess the credibility and weight of all the evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. See Masors v. Derwinski, 2 Vet. App. 181 (1992); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992); Hatlestad v. Derwinski, 1 Vet. App. 164 (1991). Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a claim, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107. In Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021) (en banc), the Court of Appeals for the Federal Circuit (Federal Circuit) explained that positive and negative evidence does not have to be in exact equipoise before the benefit of the doubt should be given to the claimant. Rather, a claimant is entitled to the benefit of the doubt when the evidence is in approximate balance, that is, "nearly equal." The Federal Circuit explained that evidence is not in approximate balance or nearly equal when the evidence "persuasively favors one side or the other." The Veteran filed the current increased rating claim in June 2015. The record shows that the Veteran has had treatment and physical therapy for his shoulder over the years, but those records do not contain information that can be applied to the rating schedule except as noted below. On VA examination on July 21, 2015, the Veteran reported ongoing left shoulder problems, with current symptoms of pain, popping, grinding, and locking. He stated that his left shoulder problems made it harder to dress, necessitating using the right arm more. He related having flare-ups with pain, worsened grinding and popping, and numbness in certain positions. He stated that the flare-ups were moderate, lasted about an hour, and occurred every two to three days. He related that left shoulder numbness was worsening. He stated that left shoulder problems caused increased reliance on his right shoulder, which had led to onset of popping in his right shoulder. He reported working as a truck driver. He stated that for long periods of time he experienced left shoulder pain and numbness that interfered with handling the steering wheel. On examination the left shoulder had initial ranges of motion to 150 degrees of flexion, 150 degrees of abduction, 60 degrees of external rotation, and 60 degrees of internal rotation. There was moderate pain on flexion and on external rotation. There was crepitus. After at least three repetitions, the ranges of motion were the same. The examiner stated that the limitations of motion contributed to functional loss by decreasing capacity for carrying things and for overhead lifting. The examiner found that the shoulder had less movement than normal and had weakened movement. The examiner found that the scapulohumeral (glenohumeral) articulation of the Veteran's left shoulder was in favorable ankylosis, with abduction up to 60 degrees and ability to reach the mouth and head. In an August 2016 Notice of Disagreement (NOD), the Veteran wrote that his left shoulder disability had required continued medical treatment from 2015 forward. He stated that the disability was worsening, with persistent pain and continuous popping. On VA examination in May 2018, the Veteran reported that presently his left shoulder had constant pain, morning stiffness, and popping. He related that he worked driving a truck and had increased left shoulder pain when he held the steering wheel too long. He stated that since 2012 he had not had loading and unloading duties. He reported that with lifting his left arm out and up he had flare-ups of left shoulder pain. On examination, the Veteran's left shoulder had flexion to 165 degrees, abduction to 130 degrees, external rotation to 60 degrees, and internal rotation to 50 degrees. There was pain on abduction, external rotation, and internal rotation. There was pain on active and passive motion. The shoulder had muscle strength of 5/5 in flexion and 4/5 in abduction. The examiner found that the scapulohumeral (glenohumeral) articulation of the shoulder was not in ankylosis. The examiner found that the shoulder had less movement than normal and had weakened movement. The examiner stated that the Veteran's left shoulder disability caused difficulty with heavy lifting and overhead lifting. A June 2018 MRI was negative for a rotator cuff tear, but showed tendonitis and osteoarthritis at the acromioclavicular and glenohumeral joints. In a September 2018 substantive appeal, the Veteran wrote that his left shoulder had pain at all times, with and without movement. He stated that he had frequent muscle spasms causing rigidity of the arm. He noted that he had limited ranges of flexion and extension. He reported that the left shoulder had decreased strength, such that he was unable to lift with his left arm. He related that left shoulder pain kept him awake. In VA physical therapy in September 2018, the Veteran reported left shoulder pain and limited motion. He stated that the pain was constant and was some days than others. He indicated that the pain was worse during his work as a truck driver. Later in 2018 he began VA chiropractic treatment for his left shoulder and other areas. In the July 2019 remand, the Board found that the July 2015 and May 2018 examinations provided inadequate findings regarding left shoulder impairment during flare-ups and after repetitive use over time. The Board called for a new examination with findings on those matters and other relevant questions. On VA examination in December 2019, the Veteran reported left shoulder pain that interfered with dressing and undressing, raising his arm above shoulder level, and reaching behind himself. He indicated that he continued to work as a truck driver. He stated that his left shoulder disability limited him to driving with his left hand at the bottom of the steering wheel. He related that his left shoulder disability caused him to miss two days of work in the last year. He reported that left shoulder pain interrupted his sleep and limited the positions in which he could sleep. He stated that the left shoulder clicked and popped, was stiff in the mornings, and had aching and increased stiffness in cold weather. The examiner found that the Veteran's left shoulder had flexion to 145 degrees, abduction to 110 degrees, external rotation to 80 degrees, and internal rotation to 90 degrees. There was pain with motion in each of those directions, that the painful motion caused functional loss. There was pain with weightbearing. There was crepitus with motion. After at least three repetitions, pain and lack of endurance caused additional functional loss, with limitation of flexion to 120 degrees, abduction to 95 degrees, and external rotation to 65 degrees. The examiner found that pain and lack of endurance significantly limited functional ability with repetitive use over time, and with flare-ups, to an estimated 40 percent loss of motion. The left shoulder muscle strength was 4+/5 in flexion and abduction. The examiner found that the scapulohumeral (glenohumeral) articulation of the shoulder was not in ankylosis. The examiner endorsed that the left shoulder had mechanical symptoms such as clicking or catching. The examiner indicated that there was no left humerus impairment and no suspected left clavicle or scapula condition. In a November 2020 statement, the Veteran stated that his shoulder "freezes up" two to three times per month to where he has trouble sleeping and is unable to move the shoulder, lift objects, or get fully dressed. As to ankylosis of scapulohumeral or glenohumeral articulation in the Veteran's left shoulder, the Board acknowledges that the July 2015 examiner noted that ankylosis was present. However, the subsequent VA examinations specifically found that the Veteran did not have such ankylosis and that the Veteran had some range of motion, although limited by pain. Thus, a higher rating under DC 5200 is not warranted based on this isolated and inconsistent finding of ankylosis. The Board recognizes that the earlier VA examination reports in the record are not fully compliant with the requirements of Correia and Sharp. These deficiencies are cured, however, by the fully adequate examination conducted in December 2019. The Veteran did not report improvement of his symptoms during the appeal period; rather, he persistently stated that they had worsened. It is thus unlikely that remand for a retrospective opinion to cure the defects in the earlier examinations would serve any useful purpose, and the adequate Correia and Sharp findings of the later examinations may thus be applied to the entirety of the appeal period without prejudice to the Veteran. The July 2015 examination reflects that the Veteran's left shoulder disability was manifested by decreased endurance and capacity for carrying, lifting, and performing his work as a truck driver. The May 2018 examination contains similar findings. The July 2019 Board remand found that those examinations reports did not adequately address the severity of the Veteran's left shoulder disability after repetitive use over time or during a flare-up. The Board notes that the December 2019 examiner's estimate of flexion and abduction during flares and after repetitive use over time essentially amounts to limitation of motion to 87 degrees and 66 degrees from the side, respectively. This evidence of functional loss is not sufficient to meet the criteria for a higher rating for the left (minor) shoulder. The record does not show that the Veteran's pain, fatigue, or weakness has ever caused his left shoulder abduction or flexion to be reduced to 25 degrees from the side, which is required for the next higher rating for the minor extremity under DC 5201. See DeLuca, supra. The Board acknowledges that the Veteran has AC joint osteoarthritis in addition to tendonitis and impingement syndrome. However, the current disability rating contemplates painful and limited motion. Assigning a separate rating under DC 5003 for this aspect of his shoulder disability would constitute impermissible pyramiding of disabilities. See 38 C.F.R. § 4.14. No impairment of the humerus, clavicle, or scapula is shown. Therefore, DCs 5202 and 5203 are not for application. The Board finds that the Veteran's 20 percent rating for the left shoulder must be continued based upon the evidence of record. The Board acknowledges that the Veteran experiences left shoulder pain and loss of motion, and that the left shoulder limits the kind of activities that he can do over his head. However, industrial impairment is already contemplated by the rating schedule and the rating assigned during the period on appeal. The Board has also considered whether an extraschedular rating is warranted based on the Veteran's statements of trouble sleeping due to left shoulder pain. Thun v. Peake, 22 Vet. App. 111 (2008). The evidence fails to show that the manifestations of the Veteran's left shoulder are exceptional or unusual in any way that would render the schedular rating criteria inadequate. The Veteran has not stated that the sleeplessness associated with the left shoulder has marked interference with employment. Further, trouble sleeping is already contemplated by the schedular rating for his service connected dysthymic disorder. See October 2002 Examination Report. In addition, there is no indication of frequent hospitalizations for this disability. Therefore, referral for consideration for an extraschedular rating is not warranted. The Board is sympathetic to the Veteran's lay statements that the shoulder disability is worse than currently evaluated and those statements have been considered. The Veteran is competent to report symptoms that require only personal knowledge as it comes to them through their senses. Layno v. Brown, 6 Vet. App. 465 (1994). He is not, however, competent to identify a specific level of disability according to the appropriate diagnostic codes. Such competent evidence concerning the nature and extent of the Veteran's disability have been provided by the medical personnel who have examined and interviewed him during the current appeal and who have rendered pertinent opinions in conjunction with the evaluations. The medical findings (as provided in the examination reports) directly address the criteria under which the disability is evaluated. The medical and lay evidence has been assessed by the Board in determining the overall disability rating. Accordingly, the claim of entitlement to an increased evaluation for the service-connected left shoulder disability is denied. In reaching this decision the Board considered the doctrine of reasonable doubt, however, as the evidence is persuasively against the claim and the positive and negative evidence is not in approximate balance, the doctrine is not for application. See Lynch, supra. Rebecca N. Poulson Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K. J. Kunz, 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.