Citation Nr: 23014348 Decision Date: 03/09/23 Archive Date: 03/09/23 DOCKET NO. 15-09 873 DATE: March 9, 2023 ORDER Entitlement to an increased disability rating in excess of 20 percent for a left shoulder disability is denied. FINDINGS OF FACT 1. The Veteran's left shoulder disability is not productive of limitation of motion of the arm to midway between his side and shoulder level. 2. The Veteran's left shoulder disability does not cause functional loss due to pain and weakness beyond that reflected on range of motion measurements. CONCLUSION OF LAW The criteria for a rating in excess of 20 percent for a left shoulder disability have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71(a), Diagnostic Code (DC) 5010-5201. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from June 1983 to June 1987, and from January 1989 to January 1993. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2014 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). In July 2016, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge. A transcript of the hearing has been associated with the claims file. In May 2017, the Board, in pertinent part, denied the Veteran's claim of entitlement to an increased rating for a left shoulder disability and entitlement to service connection for a back disability. The Veteran appealed the Board's May 2017 decision to the United States Court of Appeals for Veterans Claims (CAVC or the Court), which, in a December 2017 Joint Motion for Partial Remand (JMPR), vacated and remanded the decision. In June 2018, the Board remanded these issues to complete additional development, as instructed by the December 2017 JMPR. In September 2019, the Board again denied entitlement to an increased rating for a left shoulder disability and entitlement to service connection for a back disability. The Veteran appealed the Board's September 2019 decision to CAVC, which, in a May 2020 Joint Motion for Remand (JMR), vacated and remanded the decision. In December 2020, the Board again denied entitlement to an increased rating for a left shoulder disability and entitlement to service connection for a back disability. The Veteran appealed the Board's December 2020 decision to CAVC, which, in a May 2022 Memorandum Decision, vacated and remanded the decision. In January 2023, the Board denied service connection for a low back disability, and remanded the increased rating claim. The increased rating claim has since been returned to the Board, after the Board's requested action was completed. Entitlement to an increased disability rating in excess of 20 percent for a left shoulder disability is denied. Disability ratings are determined by applying the criteria set forth in the 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. The basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. 38 C.F.R. § 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 for that rating. Otherwise, the lower rating will be assigned. 38C.F.R. §4.7. All benefit of the doubt will be resolved in the Veteran's favor. 38C.F.R. §4.3. The RO has evaluated the Veteran's left shoulder disability under Diagnostic Codes 5010-5201. When evaluating disabilities of the musculoskeletal system, 38C.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); Mitchell v. Shinseki, 25 Vet. App. 32 (2011). Further, 38C.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. The Veteran was initially awarded service connection for his left shoulder disability in January 1994, and an initial 10 percent rating was assigned effective January 4, 1993. In a September 1997 rating decision, the RO awarded a 20 percent disability rating effective June 11, 1997. In a September 2014 rating decision, the RO awarded a 40 percent disability rating effective April 21, 2014, which was subsequently reduced to 20 percent effective July 1, 2015. A May 2020 Board decision found the reduction in the rating from 40 percent to 20 percent was proper, which decision was affirmed by the CAVC in October 2021. The RO has evaluated the Veteran's left shoulder disability under Diagnostic Codes 5010-5201. The Veteran contends that he is entitled to an evaluation in excess of 20 percent for his left shoulder disability. The Board acknowledges that VA has revised portions of the rating criteria for the musculoskeletal system, effective February 7, 2021. 82 F.R. 35719. When a law or regulation changes during the pendency of a Veteran's appeal, the version most favorable to the Veteran applies, absent congressional intent to the contrary. The amended rating criteria, if favorable to the claim, can be applied only for periods from the effective date of the regulatory change; however, the old regulations will be considered for the periods both before and after the change was made. See 38 U.S.C. § 5110 (g); 38 C.F.R. § 3.114; VAOPGCPREC 3-2000, 65 Fed. Reg. 33,422 (2000); Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). DC 5200 provides for the evaluation of a shoulder or arm disability if there is ankylosis of the scapulohumeral articulation. As there is no evidence that the Veteran has ankylosis of the left shoulder, DC 5200 is not for application. Prior to February 7, 2021, under DC 5201, for the major arm, a 20 percent rating is warranted for limitation of motion to shoulder level, while a 30 percent rating is warranted for limitation of motion of the arm midway between the side and shoulder level, and a 40 percent rating is warranted for limitation of arm motion to 25 degrees from the side. 38 C.F.R. § 4.71a, DC 5201. Relevant to the question of increased ratings based on limitation of motion, DC 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. Shoulder disabilities may also be evaluated pursuant to DC 5202, as other impairment of the humerus. When that Code is used to evaluate a dominant limb, a 30 percent evaluation is assigned when there is malunion of the humerus with marked deformity or with recurrent dislocation of the scapulohumeral joint with frequent episodes and guarding of all arm movements. A 50 percent evaluation is assigned for the major extremity when there is fibrous union. A 60 percent evaluation for the major extremity is warranted with a showing of nonunion of the humerus (false flail joint), and an 80 percent evaluation for the major extremity is assigned with a showing of loss of head of the humerus (flail shoulder). DC 5203 provides for a 10 percent rating for malunion of the clavicle or scapula or nonunion of the clavicle or scapula without loose movement. A 20 percent rating is warranted for nonunion of the clavicle or scapula with loose movement or dislocation of the clavicle or scapula. DC 5203 provides that the shoulder disability may alternatively be rated on impairment of function of the contiguous joint. Normal range of motion of the shoulders are flexion (forward elevation) from 0 to 180 degrees, abduction from 0 to 180 degrees, and both internal and external rotation from 0 to 90 degrees. 38 C.F.R. § 4.71, Plate I. In determining whether the Veteran has limitation of motion to shoulder level, it is necessary to consider forward flexion and abduction. Mariano v. Principi, 17 Vet. App. 305, 314-16 (2003). Ratings vary depending on whether the impairment is to the major or minor arm. As noted above, the Veteran is left hand dominant, as reported at his VA examinations, therefore, only the ratings for impairments to the "major" arm are applicable. The record shows the Veteran underwent surgery on his left shoulder in October 2014, which was found to be related primarily to a non-service-connected injury he sustained in September 2014 when he fell on his roof. A February 2015 outpatient record reflects that the Veteran frequently worked out in his gym at home and was not doing the specific exercises that were recommended to him. He was cautioned to return to the home program and to complete it as directed. At that time, he had no external rotation, but abduction was to 70 degrees. Notably, these findings were made in the context of follow-up for the Veteran's October 2014 surgery and the restrictions would likely be in place for another month or 6 weeks. In a March 2015 outpatient record, the Veteran's range of motion was within normal limits, and he reported that his pain was a result of over working his shoulder and heavy lifting. The Veteran was cautioned on overuse, and no further therapy was planned at that time. Later that same day, a physician's assistant measured the Veteran's abduction as lacking 10 degrees, and remarked that strength was very good. The claims file also includes May 2015 and December 2015 clinic notes indicating that the Veteran's left shoulder had improved since surgical repair in October 2014, but he still did not have full range of motion and had some pain. It was also still painful to raise his arms above his head. During the July 2016 hearing, the Veteran stated that it was painful for him to lift his arm to shoulder level. During a May 2017 follow up appointment for his right shoulder, the Veteran reported his left shoulder still hurt, but the pain and function had improved since surgery. The Veteran indicated he would be returning to work the next day as a truck driver and changes had been made to the types of loads he would be hauling to decrease the amount of heavy lifting required. In July 2017, the Veteran had a VA examination which included an evaluation of his left shoulder as the opposing joint. For his left shoulder, he denied experiencing flare-ups. Flexion was to 140 degrees and abduction to 130 degrees, with external rotation to 70 degrees and internal rotation to 60 degrees. There was no pain on passive range of motion or with non-weight bearing. In a February 2018 outpatient record, the Veteran indicated that he had excellent function, his pain was better than it was prior to surgery, and he had no real limitations at that point. Range of motion was full, and "excellent strength with resist[ance]." In May 2018, the Veteran injured his left shoulder pulling a motor out of a car, which produced pain and limitation of motion. This improved following a period of rest. The Veteran was afforded a VA examination in March 2019 to evaluate the severity of his left shoulder. He described the functional loss as "painful and limited overhead reach, reach behind and driving with arm on steering wheel." He denied flare-ups. Flexion was to 120 degrees and abduction to 110 degrees, with external rotation to 80 degrees and internal rotation to 75 degrees. All ranges of motion exhibited pain, but pain did not result in or cause functional loss. There was no further loss of motion after three repetitions. The Veteran was not evaluated after repetitive use over time, but the examiner concluded that the examination was not medically consistent or inconsistent with the Veteran's reported functional loss in such circumstances. Notably, he did not report flare-ups, and the examiner indicated the Veteran stated there was some reduction in range of motion with repetitive use, but the Veteran could not describe or demonstrate the decrease in range of motion with repetitive use. There was no reduction in muscle strength, or instability. With respect to functional impact, the examiner wrote there was limitation in range of motion above shoulder and overhead, as well as pain with prolonged raising of the arm to or above shoulder height, which made tasks such as driving with his left arm on the steering wheel difficult due to pain. As the March 2019 examiner noted pain with prolonged raising of the arm to or above shoulder height, the parties in the May 2020 JMR noted that the statement suggested that there was pain which had a functional limitation when the Veteran would raise his left arm to shoulder level. In addition, the JMR indicated that it was not clear whether that limitation to the shoulder level is midway between the side and shoulder level. However, given the entire content of the examination report, the most reasonable interpretation is that range of motion was not limited to midway between the side and shoulder level. Indeed, in the phrase preceding the one which referenced pain resulting in functional limitation, the examiner specifically discussed that limitation of motion was to above the shoulder. Further, earlier in the report, pain was not considered to result in or cause functional loss, and to interpret the remark as the JMR suggests, would appear to render it to mean an inability to raise the arm at all. However, the remainder of the examination report indicates the relevant point of reference for impairment to be at the shoulder and above, with no suggestion limitation of motion to the extent as implied in the JMR. Reinforcing this conclusion is the presence of full strength, and the apparent inability of the Veteran to describe or demonstrate any reduction in range of motion after repetitive use. (The limitation of motion of the arm to midway between the side and shoulder level being a simple concept, the inability to describe it if it were present, or show it at the time of the examination if at any time it was present, suggests that level of limitation did not exist.) The Board finds the March 2019 VA examination report to be adequate for the purposes of adjudicating this appeal. Indeed, the examiner performed a complete in-person examination and reviewed the entire claims file in rendering her conclusions. The Board finds that the determination concerning the Veteran's functional impairment fully considered his lay statements regarding the severity of his symptoms. The report reflects that the examiner elicited information from the Veteran concerning any additional limitation of range of motion following repeated use over time, as it is noted that the Veteran was unable to provide a complete description of such circumstances. It is clear that the examiner considered and addressed the lay reports of limited range of motion and related symptomatology of the left shoulder, along with the objective evidence presented during the examination itself, in providing her conclusions related to the Veteran's overall disability picture at the time of the examination. As such, the Board concludes that the March 2019 examiner's findings are adequate and affords them significant probative weight. In a June 2019 letter to the VA, the Veteran reported experiencing consistent shoulder pain. He described a snapping and popping sensation, as well as numbness from his shoulder to his fingers, which impaired his ability to sleep. The Veteran did not provide any additional indications of functional impairment worse than that which was seen in the record prior to that time. Thus, the Board continues to find the March 2019 opinion to be adequate, even in light of the additional statement. In November 2020, the Veteran underwent another VA examination for his left shoulder disability, which is adequate for rating purposes. He reported experiencing constant pain that was aggravated by overhead activity and repetitive motion. He described flare-ups that restricted overhead movement due to increased pain and stiffness. Flexion was to 120 degrees, with abduction to 100 degrees. External and internal rotation were to 25 degrees. The Veteran was unable to reach above shoulder height without significant pain and could not reach behind his back. There was no evidence of pain with weight-bearing or nonweight-bearing. The Veteran was able to perform repetitive use testing with at least three repetitions with no additional loss of range of motion. The examiner concluded that there would be no additional loss of range of motion following repeated use over time or during a flare-up. Because the record fails to show limitation of motion to midway between side and shoulder level or worse, the Board concludes a basis upon which to assign an increased rating for the Veteran's left shoulder disability has not been presented. Indeed, during the appeal period, flexion was to no less than 120 degrees and abduction was to no less than 70 degrees following surgery. In 2015, range of motion was normal or only lacking 10 degrees; in 2017 abduction was to 130 degrees; and full in 2018. A very robust subjective functional capacity was demonstrated in 2018, when the Veteran acknowledged an injury in the context of pulling out an automobile engine. (That he felt capable of pulling a car engine speaks to a high level of functional capacity prior to the injury.) When examined in 2019, flexion was to 120 degrees and abduction to 110 degrees, with no flare-ups reported. In 2020, flexion was to 120 degrees, with abduction to 100 degrees. Indeed, the record does not reflect that the Veteran's range of motion in the left shoulder has been limited to 45 degrees throughout the period on appeal. As such, a higher 30 percent rating under DC 5201 is not warranted. In evaluating the Veteran's increased rating claim under DeLuca and Mitchell, supra, the Board notes that there has been objective evidence of painful motion on examination, as well as notations of functional impairment regarding the Veteran's ability to reach overhead. The evidence of record reflects that the Veteran demonstrated pain, but no additional limitation of motion following repetitive use testing as to warrant an increased rating for the left shoulder. Indeed, the November 2020 examiner concluded that repetitive use over time would not result in additional limitation of motion. The remainder of the record also does not indicate that the Veteran's range of motion was limited to midway between side and shoulder level at any point. As such, the pertinent evidence of record has not revealed that range of motion was further limited as a result of pain, weakness, fatigability, incoordination, lack of endurance, or repetitive motion to a degree as to warrant a higher rating. Therefore, the Board finds that any rating higher than the current rating assigned for the left shoulder is not warranted based on application of 38 C.F.R. §§ 4.40 and 4.45. The Board notes that, in Sharp v. Shulkin, 29 Vet. App. 26 (2017), the Court held that VA examiners must provide opinions regarding flare-ups based upon estimates derived from information procured from relevant sources, including lay statements, when a flare-up is not observable at the time of examination. However, as with DeLuca, guidance on how to evaluate flare-ups has not been particularly clear. Nevertheless, it is reasonable that flare-ups must be quantifiable and must result in limitation of motion or function beyond that contemplated by the already provided evaluation. In addition, because there is a regulation addressing stabilization of ratings, the flare-up must be of such length as to establish that the overall impairment is more severe than currently evaluated, rather than a brief snapshot in time. At the May 2019 VA examination, the Veteran denied experiencing flare-ups. In November 2020, he reported flare-ups resulting in increased pain and stiffness when reaching overhead. Considering the Veteran's lay reports, the examiner concluded that no additional loss of range of motion would result during a flare-up. The remainder of the record is also silent regarding any reports of flare-ups. As such, the Board finds the examination reports to be adequate for rating purposes in consideration of Sharp. The Board has considered other potentially applicable DCs in determining whether higher ratings are warranted; however, the Veteran's left shoulder disability has not been shown to involve any other factor or diagnosis that would warrant evaluation under any other provision of the rating schedule. The VA examination reports demonstrate that the Veteran has no history of ankylosis, impairment of the humerus, or impairment of the clavicle or scapula of the left shoulder as contemplated by other rating criteria. Consequently, separate evaluations under DCs 5200, 5202, or 5203 would be inappropriate. (Continued on the next page) Based on the foregoing, the Board finds the criteria for an increased rating for the Veteran's service-connected left shoulder disability are not met. See 38 C.F.R. §§ 3.321, 4.1, 4.3, 4.7, 4.96, 4.97. MICHAEL E. KILCOYNE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Erin J. Trojanowski, 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.