Citation Nr: 23014746 Decision Date: 03/10/23 Archive Date: 03/10/23 DOCKET NO. 20-30 129 DATE: March 10, 2023 ORDER For right shoulder disability, an initial rating in excess of 20 percent from September 1, 2016 to September 19, 2018 (excluding a period of temporary 100 percent disability from September 20, 2018 to December 31, 2018) is denied. For right shoulder disability, a rating of 30 percent from January 1, 2019 to September 1, 2020 is granted. For left shoulder disability, a rating in excess of 20 percent from January 1, 2017 to September 1, 2020 is denied. FINDINGS OF FACT 1. From September 1, 2016 to September 19, 2018 (excluding a period of temporary 100 percent disability from September 20, 2018 to December 31, 2018), the Veteran's right shoulder disability resulted in arm motion limited to at shoulder level. 2. From January 1, 2019 to September 1, 2020, the Veteran demonstrated right shoulder flexion limited to 45 degrees, or approximately midway between side and shoulder level. 3. From January 1, 2017 to September 1, 2020, the Veteran's left shoulder disability was manifested by pain which resulted in arm motion limited to midway between side and shoulder level. CONCLUSIONS OF LAW 1. From September 1, 2016 to September 19, 2018, the criteria for a rating in excess of 20 percent rating for right shoulder disability have not been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.71a, Diagnostic Code 5201. 2. From January 1, 2019 to September 1, 2020, the criteria for a 30 percent rating for right shoulder disability have been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.71a, Diagnostic Code 5201. 3. From January 1, 2017 to September 1, 2020, the criteria for a rating in excess of 20 percent rating for left shoulder disability have not been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.71a, Diagnostic Code 5201. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Marine Corps from July 1979 to April 1983, and from December 1987 to March 1989. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2017 rating decision issued by the Agency of Original Jurisdiction (AOJ). By rating decision of September 2020, the AOJ increased the evaluation for right shoulder rotator cuff tear (major) was increased from 20 percent to the maximum 40 percent rating effective September 2, 2020. Likewise, the evaluation of left shoulder impingement syndrome status post rotator cuff surgery (minor) from 20 percent to the maximum 30 percent effective September 2, 2020. In a November 2020 correspondence, the Veteran expressed his satisfaction with the current ratings and specifically limited his appeal for left and right shoulder disabilities to the period prior to September 2, 2020. Thus, the Board's review is limited a rating in excess of 20 percent for the period from September 1, 2016 to September 1, 2020 for right shoulder and from January 1, 2017 to September 1, 2020 for left shoulder disability. Increased Rating Disability ratings are determined by applying a schedule of ratings that is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R., Part 4. Each disability must be viewed in relation to its history and the limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. § 4.1. Examination reports are to be interpreted in light of the whole recorded history, and each disability must be considered from the point of view of the appellant working or seeking work. 38 C.F.R. § 4.2. Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § 4.7. Issue: For right shoulder disability, an initial rating in excess of 20 percent for period prior to September 2, 2020. Issue: For left shoulder disability, a rating in excess of 20 percent from for period prior to September 2, 2020. Given the Veteran's written clarification received November 2020, the discussion below is specifically limited to the period prior to September 2, 2020. By way of history, in an August 2017 rating decision, the AOJ granted a temporary 100 percent rating from October 18, 2016 to December 31, 2016 for left shoulder surgery; and assigned a 20 percent rating for residuals effective January 1, 2017. By rating decision of October 2018, the Veteran was granted a temporary 100 percent rating from September 20, 2018 to December 31, 2018 for right shoulder surgery; and a rating of 20 percent post operative right shoulder effective January 1, 2019. In a September 2020 rating decision, the AOJ increased the rating for right shoulder rotator cuff tear (major) to maximum 40 percent effective September 2, 2020; and for left shoulder impingement syndrome status post rotator cuff surgery (minor) the maximum 30 percent effective September 2, 2020. The Veteran is right-handed and therefore, his right shoulder is the major upper extremity. The Veteran's shoulder disability is evaluated under Diagnostic Code 5003-5201. Hyphenated diagnostic codes are used when a rating under one diagnostic code requires the use of an additional diagnostic code to identify the basis for the evaluation assigned. 38 C.F.R. § 4.27. Under Diagnostic Code 5003, degenerative arthritis established by X-ray findings will be rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved (here, Diagnostic Codes 5201 and 5203 for the shoulder and arm). 38 C.F.R. § 4.71a, Diagnostic Code 5003. When however, the limitation of motion of the specific joint or joints involved is non-compensable under the appropriate diagnostic codes, a rating of 10 percent is for application for each such major joint or group of minor joints affected by limitation of motion, to be combined. 38 C.F.R. § 4.71a, Diagnostic Code 5003. Effective February 7, 2021, VA amended Diagnostic Code 5010, indicates post-traumatic arthritis is to be rated as limitation of motion, dislocation, or other specified instability under the affected joint. If there are 2 or more joints affected, each rating shall be combined in accordance with §4.25. Under Diagnostic Code 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, Diagnostic Code 5201. Effective February 7, 2021, VA amended Diagnostic Code 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. Normal forward flexion of the shoulder is 0 to 180 degrees; abduction is 0 to 180 degrees; and internal and external rotation are from 0 to 90 degrees. 38 C.F.R. § 4.71a, Plate I. Forward flexion and abduction to 90 degrees amounts to shoulder level. Turning to the evidence, the record shows the Veteran was afforded a VA examination in December 2016. The examiner indicated diagnoses of rotator cuff tendonitis, rotator cuff tear, and AC joint osteoarthritis. On range of motion testing, the Veteran demonstrated "all normal", full range of motion for right and left shoulder. He retained normal strength of 5/5 with no reduction in muscle strength of both shoulders. The examiner noted the Veteran's report of chronic daily moderately severe shoulder pain. See VA examination dated December 2016. The record shows the Veteran was afforded a VA contract examination in March 2018. The Veteran demonstrated right shoulder range of motion 120 degrees of flexion and 100 degrees of abduction; left shoulder range of motion 120 degrees of flexion and 80 degrees of abduction. Pain was noted on exam and causes functional loss. The Veteran reported having flare-ups of the right shoulder described as "very painful pops cracks loss of [range of motion] can't throw". He reported having functional impairment with limited range of motion, lifting, digging, shoveling, and no overhead activity. He retained normal strength of 5/5 with no reduction in muscle strength on both shoulders. There was no evidence of muscle atrophy. See Shoulder and Arm Conditions Disability Benefits Questionnaire (DBQ) dated March 2018. The Veteran's VA treatment records show a September 2018 orthopedic surgery note that the Veteran has right shoulder impingement possible rotator cuff tear. He underwent right shoulder surgery in September 2018. A VA orthopedic surgery note of October 2018 shows the Veteran demonstrated "range of motion with approximately 45 degrees abduction and forward flexion." Another post-surgery VA treatment record of December 2018 shows the Veteran's report that he "feels it is not going to get better" and having "instability with simple movements" and that he "continues to feel pain". For right shoulder, from September 1, 2016 to September 19, 2018, the Board finds that an initial rating in excess of 20 percent is not warranted. The evidence shows the Veteran demonstrated right shoulder range of motion more than shoulder level and, at worst, was 100 degrees of abduction. See VA examinations dated 2016 and 2018. The Board acknowledges the Veteran's lay reports of symptoms of functional loss due to pain, including difficulty or inability to perform work overhead. However, even considering the Veteran's lay reports of symptoms and functional loss, there remains no indication he suffers a more severe disability picture warranting a rating in excess of 20 percent for limitation of motion. In fact, the degree of additional limitation reflected by the statements would not result in symptoms more nearly approximating flexion and/or abduction limited to 45 degrees for the major extremity, which is required for the next higher 30 percent rating under Diagnostic Code 5201. However, from January 1, 2019 to September 1, 2020, the Board finds the criteria for a 30 percent rating for right shoulder have been met. Resolving reasonable doubt in the Veteran's favor, the Board concludes that the Veteran demonstrated right shoulder flexion limited to 45 degrees, or approximately midway between side and shoulder level, which is equivalent to the assigned 30 percent rating. Thus, the criteria for the assignment of a 30 percent rating under Diagnostic Code 5201 more nearly approximated from January 1, 2019 to September 1, 2020. For the left shoulder, from January 1, 2017 to September 1, 2020, the criteria for the highest schedular rating of 30 percent are not met. The evidence shows that on VA examination in March 2018, the Veteran demonstrated left shoulder range of motion more than shoulder level and, at worst, was 120 degrees of forward flexion and 80 degrees of abduction. Although the Veteran has demonstrated functional loss due to pain and reduced range of motion of midway between side and shoulder level, at no time during the course of the appeal has the Veteran had left arm limitation of motion of 25 degrees from the side, which is required for a 30 percent rating for the minor extremity under 38 C.F.R. § 4.71a, Diagnostic Code 5201. Thus, a higher disability evaluation is not warranted even in consideration of functional loss due to pain or due to weakness, fatigability, incoordination, or pain on movement of a joint limitations of range of motion under 38 C.F.R. §§ 4.40 and 4.45. See also DeLuca v. Brown, 8 Vet. App. 202 (1995). Moreover, as the Veteran is already in receipt of a 20 percent evaluation for his right and left shoulder disabilities, based upon a hyphenated code directing to range of motion, an additional evaluation based upon painful motion is not warranted. 38 C.F.R. §§ 4.40 and 4.45; DeLuca v. Brown, 8 Vet. App. 202 (1995). Here, even when considering pain, the Veteran retained range of motion in excess of that contemplated for a 20 percent rating. Further, repetitive use testing did not result in additional limitation of motion and the examiners indicated that pain, weakness, fatigability, or incoordination did not significantly limit functional ability with repetitive use over a period of time. His currently assigned ratings compensate for pain as he is assigned a 20 percent based on limitation of motion. Thus, greater ratings for limitations of range of motion are not warranted under DeLuca. As such, there is no basis for higher ratings for right shoulder from September 1, 2016 to September 19, 2018 and for left shoulder from January 1, 2017 to September 1, 2020. Lastly, 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. Diagnostic Code 5200 provides for the evaluation of a shoulder or arm disability if there is ankylosis of the scapulohumeral articulation. However, as discussed above, as there is no evidence that the Veteran has ankylosis of the right shoulder, Diagnostic Code 5200 is not for application. (Continued on the next page) Shoulder disabilities may also be evaluated pursuant to Diagnostic Code 5202, as other impairment of the humerus. However, the Veteran does not have loss of head, nonunion, or fibrous union of the humerus, and there was no malunion of the humerus with moderate or marked deformity. Thus, Diagnostic Code 5202 is not for application. In conclusion, the Board finds that the evidence of record persuasively weighs against the claims for an initial rating in excess of 20 percent for right shoulder disability from September 1, 2016 to September 19, 2018 and a rating in excess of 20 percent for left shoulder from January 1, 2017 to September 1, 2020. But, a rating of 30 percent is granted for right shoulder disability from January 1, 2019 to September 1, 2020. KELLI A. KORDICH Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. A., 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.