Citation Nr: 23023917 Decision Date: 04/25/23 Archive Date: 04/25/23 DOCKET NO. 09-04 745 DATE: April 25, 2023 ORDER For the appeal period prior to November 22, 2013, entitlement to an initial 30 percent rating, but no higher, for left shoulder tendonitis and impingement syndrome (herein left shoulder disability) is granted. FINDING OF FACT The Veteran's left shoulder disability manifests in symptoms that more nearly approximate left arm motion limited to 25 degrees from the side. CONCLUSION OF LAW Resolving all reasonable doubt in favor of the Veteran, for the period on appeal from April 21, 2006, to November 22, 2013, the criteria for entitlement to a 30 percent rating, but no higher, for the Veteran's left shoulder disability have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1-4.7, 4.10, 4.14, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code (DC) 5201. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from February 1984 to April 1992. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2009 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO) that granted service connection for the Veteran's left shoulder disability and assigned an initial 10 percent rating from April 21, 2006. The Veteran timely appealed this decision to the Board. In February 2011, December 2017, September 2018, and December 2019 decisions, the Board remanded this matter to the RO for further development. In an August 2020 rating decision, the Agency of Original Jurisdiction (AOJ) awarded a 20 percent rating for the Veteran's left shoulder disability from April 21, 2006. Thereafter, in March 2021 and August 2021 decisions, the Board again remanded the Veteran's claim to the RO for further development. In a February 2022 Board decision, the Board denied entitlement to a rating in excess of 20 percent for the Veteran's left shoulder disability for the appeal period prior to November 22, 2013. The Veteran subsequently appealed the February 2022 Board decision to the United States Court of Appeals for Veterans Claims (Court). In December 2022, the Court granted a Joint Motion for Partial Remand (JMPR), which vacated and remanded the February 2022 Board decision insofar as it denied entitlement to a rating in excess of 20 percent for the Veteran's left shoulder disability for the appeal period prior to November 22, 2013. In the December 2022 JMPR, the parties (the Veteran and the Secretary of VA) agreed that the Board erred by failing to provide an adequate statement of reasons or bases as to whether there was substantial compliance with the March 2021 Board remand order requesting a VA retrospective opinion. The parties also agreed that the Board provided an inadequate statement of reasons or bases because the Board did not discuss whether the Veteran's painful left shoulder motion affected the normal working movements of the body such as excursion, strength, speed, coordination, and endurance. See Mitchell v. Shinseki, 25 Vet. App. 32, 43 (2011). Entitlement to an initial 30 percent rating for the Veteran's left shoulder disability for the appeal period prior to November 22, 2013 The Veteran seeks an initial increased rating for his left shoulder disability. Disability ratings are determined by the application of VA's Schedule for Rating Disabilities (Rating Schedule). The percentage ratings in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Disabilities must be reviewed in relation to their history. 38 C.F.R. § 4.1. Where an increase in the level of a service-connected disability is at issue, the primary concern is the present level of disability. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Separate ratings can be assigned for separate periods of time based on the facts found, a practice known as "staged" ratings. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). VA regulations allow for the assignment of an increased rating up to one year prior to receipt of a claim for increase, when it is factually ascertainable that an increase in the disability had occurred. 38 C.F.R. §§ 3.157, 3.400. When there is a question as to which of two evaluations shall be assigned the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is assigned. 38 C.F.R. § 4.7. Reasonable doubt regarding the degree of disability is to be resolved in favor of the claimant. 38 C.F.R. § 4.3. Disability of the musculoskeletal system is primarily the inability, due to damage or infection in the parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. In addition, the intent of the Rating Schedule is to recognize painful motion with joint or periarticular pathology as productive of disability. Thus, with or without degenerative arthritis, it is the intention to recognize 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; see Burton v. Shinseki, 25 Vet. App. 1, 5 (2011) (holding that the provisions of 38 C.F.R. § 4.59 are not limited to disabilities involving arthritis). For disabilities evaluated on the basis of limitation of motion, VA is required to apply the provisions of 38 C.F.R. §§ 4.40, 4.45, pertaining to functional impairment. The Court has instructed that in applying these regulations VA should obtain examinations in which the examiner determined whether the disability was manifested by weakened movement, excess fatigability, incoordination, or pain. Such inquiry is not to be limited to muscles or nerves. These determinations are, if feasible, to be expressed in terms of the degree of additional range-of-motion loss due to any weakened movement, excess fatigability, incoordination, flare-ups, or pain. DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Johnston v. Brown, 10 Vet. App. 80, 84-5 (1997); 38 C.F.R. § 4.59. The Board notes that in Mitchell, the Court held that, although pain may cause a functional loss, "pain itself does not rise to the level of functional loss as contemplated by VA regulations applicable to the musculoskeletal system." 25 Vet. App. at 43. Rather, pain may result in functional loss if it limits the ability "to perform the normal working movements of the body with normal excursion, strength, speed, coordination, or endurance." Id., quoting 38 C.F.R. § 4.40. In Correia v. McDonald, 28 Vet. App. 158, 169-170 (2016), the Court clarified the additional requirements that VA examiners should address when assessing musculoskeletal disabilities, holding specifically, that the joints involved should be tested for pain on both active and passive motion, in weight-bearing and non-weight-bearing and, if possible, with the range of the opposite undamaged joint. Further, 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. For the appeal period prior to November 13, 2022, the Veteran is in receipt of a 20 percent rating under DC 5201 for his service-connected left shoulder disability. In general, disabilities of the shoulder and arm are rated under 38 C.F.R. § 4.71a, DCs 5200 through 5203. A distinction is made between major (dominant) and minor (non-dominant) musculoskeletal groups for rating purposes. 38 C.F.R. § 4.69. In this case, the record clearly indicates that the Veteran is right hand dominant. As such the left shoulder disability is rated as a minor joint. Under DC 5201 (minor), a rating of 20 percent is warranted for limitation of motion at the shoulder level. A 20 percent rating is warranted for limitation of motion midway between side and shoulder level. A 30 percent rating is warranted for limitation of motion to 25 degrees from the side. 38 C.F.R. § 4.71a, DC 5201. DC 5201 does not provide separate ratings for limitations of flexion, extension, abduction, and rotation, but rather permits only a single rating for limitation of an arm. Yonek v. Shinseki, 722 F.3d 1355 (Fed. Cir. 2013). For VA compensation purposes, normal range of motion of the shoulder is forward elevation (flexion) to 180 degrees, abduction to 180 degrees, external rotation to 90 degrees, and internal rotation to 90 degrees. 38 C.F.R. § 4.71a, Plate I. During the pendency of the claim, the rating criteria for evaluating musculoskeletal disorders were amended effective February 7, 2021. See Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 230 (Nov. 30, 2020). However, as the Board is addressing the appeal period from April 21, 2006, to November 22, 2013, the amended criteria are not for application and will not be discussed in this decision. After review of the lay and medical evidence of record, the Board resolves all reasonable doubt in favor of the Veteran and finds that the criteria for a 30 percent rating, but no higher, for his left shoulder disability has been met or more nearly approximated for the appeal period from April 21, 2006, to November 22, 2013. In this regard, the Board finds that for this period on appeal, and with consideration of functional loss due to pain, after repeated use, and during flare-ups, the Veteran's left shoulder disability more nearly approximated left arm motion limited to 25 degrees from the side. Turning to the evidence of record, for the applicable appeal period, the Veteran underwent VA examinations in April 2007, April 2012, and October 2013. He also underwent examinations and testing in relation to his Social Security Administration (SSA) claim. Further, VA obtained retrospective medical opinions in May 2021 and October 2021. The April 2007 VA examination reflects that the Veteran complained of constant left shoulder pain that ached. He denied flare-ups of the left shoulder and reported pain that was rated a five out of 10. His shoulder felt stiff, and his left arm felt weak. The VA examiner noted that the Veteran's left shoulder fatigued and that he experienced painful motion. The Veteran's range of motion of the left shoulder showed forward flexion on active range of motion to 170 degrees, with pain at 110 degrees. His abduction was to 120 degrees, with pain at 110 degrees while both internal and external rotation were to 70 degrees. The VA examiner noted that during a flare-up or following repetitive use, the Veteran would be additionally limited by pain but not by weakened movement, excess fatigability (endurance), or incoordination. The VA examiner also explained that an August 2006 MRI showed tendinopathy of the supraspinatus and infraspinatus tendons and a partial tear of the long head of the biceps tendon; a small amount of fluid in the subacromial subdeltoid bursa; and hypertrophy of the AC joint with degenerative edema of the acromion and clavicle. The Board notes that the February 2011 Board decision remanded the Veteran's claim for another examination after noting that the April 2007 VA examiner did not specify the degree of additional limitation of motion of the Veteran's left shoulder due to pain during a flare-up. A February 2008 Bureau of Disability Determination examination reflects that the Veteran's left shoulder forward flexion was to 100 degrees, abduction to 90 degrees, internal rotation to 40 degrees, and external rotation to 60 degrees. There was moderate crepitus and tenderness at the joint upon examination. The Veteran was diagnosed with left rotator cuff tear and left acromioclavicular joint arthritis. The Veteran next underwent a VA shoulders examination in April 2012. At the time of the VA examination, the Veteran reported that he experienced flare-ups of the left shoulder in that his shoulder would hurt more when he was lying on it at night. Upon range of motion testing, there was objective evidence of painful motion beginning at 105 degrees for left shoulder flexion and 70 degrees for left shoulder abduction. His range of motion was the same following three repetitions. The examiner indicated that less movement than normal and pain on movement were contributing factors of his disability and that the Veteran had functional impairment after repetitive use. On examination, he had guarding of the left shoulder but no ankylosis. Hawkins' Impingement and Lift-off subscapularis testing were positive. There was no history of recurrent dislocation (subluxation) of the glenohumeral (scapulohumeral) joint. The VA examiner also noted that the Veteran had an AC joint condition or any other impairment of the clavicle or scapula in the form of moderate degenerative arthrosis. In October 2013, the Veteran underwent another VA shoulder and arms conditions examination. At the time of that examination, he reported that he was scheduled to have surgery on November 22, 2013. He denied experiencing flares of the shoulder. Range of motion testing revealed objective evidence of painful motion beginning at 140 degrees for left shoulder flexion and 90 degrees for left shoulder abduction. Internal rotation was to 50 degrees and external rotation to 60 degrees. His range of motion was the same following three repetitions. The VA examiner found that the Veteran had functional loss after repetitive use and that pain on movement and less movement than normal were contributing factors to his disability. Upon examination, the Veteran did not have guarding, localized tenderness, or pain on palpitation of the joints/soft tissue/biceps tendon. There was no evidence of ankylosis nor history of recurrent dislocation (subluxation) of the glenohumeral (scapulohumeral) joint. Empty-can testing was positive for his left shoulder. The VA examiner noted that the Veteran had an AC joint condition or any other impairment of the clavicle or scapula in the form of left arthrosis. The examiner also found that it was less likely than not that pain, weakness, fatigability, or incoordination would significantly limit functional ability during flare-ups, or when the joint was used repeatedly over a period of time and that there was no additional limitation due to pain, weakness, fatigability or incoordination with no change in the baseline range of motion due to pain on use or during flare-ups. The VA examiner explained that it would be pure speculation to state what additional range of motion loss would be present due to pain on use or during flare-ups since the Veteran was not examined during a flare-up. The Board notes that the December 2017 Board decision found that the previous VA shoulder examinations were insufficient to assess the Veteran's shoulder range of motion in passive motion and non-weight-bearing under Correia. See 28 Vet. App. at 169-170. Additionally, the March 2021 Board decision also discussed that the April 2012 and October 2103 VA examinations did not comply with Correia. In the March 2021 Board decision, the Board additionally found that the April 2012 VA examiner failed to estimate the degree of additional range of motion loss after repeated use and during flare-ups while the October 2013 VA examiner failed to estimate the degree of additional range of motion loss after repeated use. As such, the Board found that these VA examinations were further inadequate under Sharp. Pursuant to the March 2021 Board remand directives, in May 2021, VA attempted to obtain a retrospective opinion concerning the Veteran's left shoulder disability. However, the VA clinician would not provide an opinion without resorting to speculation. As discussed in the August 2021 Board decision, the Board found that this retrospective opinion was inadequate. As such, the Board assigns no probative weight to the May 2021 mere speculation opinion. Pursuant to the August 2021 Board remand directives, the Veteran's left shoulder claim was again remanded for a retrospective opinion. In that decision and the previous March 2021 Board remand, the Board requested that a VA examiner determine whether the Veteran's left shoulder would have shown objective evidence of pain in passive motion and in non-weight-bearing motion from April 2006 to November 2013 and address any functional limitations of the Veteran's left shoulder disability in terms of range of motion due to repetitive use and flare-ups based on the Veteran's medical records and lay statements. In October 2021, a retrospective opinion was obtained in conjunction with a VA examination. The VA examiner reviewed the treatment records for this period of time and extensively documented the Veteran's history of treatment in the corresponding October 2021 VA shoulders examination. In providing the opinion, the VA examiner documented the medical treatment records for the applicable appeal period that discussed the Veteran's range of motion and noted whether the treatment records specified if the Veteran experienced pain with passive motion and/or with non-weightbearing. She noted that a review of the examination findings from April 2006 to November 2013 for the most part did not document if the Veteran had any evidence of pain in passive motion and non-weightbearing motion during the time period and noted that the first documentation of whether the Veteran had pain with passive motion was a September 2009 orthopedic note. Due to the lack of other records during this period of time, the VA examiner found that it would be speculative to state whether the Veteran had pain with passive motion as the currently available evidence of record was insufficient to provide this information. She then explained that pain with active range of motion without resistance could be considered pain with non-weight-bearing motion and, with that in mind, found that the Veteran had pain with non-weight bearing motion for some periods between April 2006 to November 2013. The VA examiner also stated that regarding functional limitations, the Veteran reported that during flare-ups and with repetitive use of the left shoulder, particularly with abduction and overhead activities, he had pain. He reported that he did not have decreased range of motion during these situations but had increased pain and, therefore, would limit his left shoulder range of motion to rest but reported that his shoulder could still perform activities and range of motion if needed. The Board finds that the October 2021 retrospective opinion substantially complies with the prior Board remand directives. In this respect, the VA examiner responded to the Board's remand directives by addressing whether the medical evidence from April 2006 to November 2013 showed objective evidence of pain in passive motion and non-weightbearing. She then provided the requested opinions concerning passive motion and non-weightbearing motion with an explanation for her conclusion. She further explained why an opinion concerning passive motion would be speculative. She also addressed functional limitations with the Veteran's left shoulder disability with repetitive use and during flares by noting the Veteran's descriptions of pain and motion under these conditions. Although she did not provide range of motion measurements (the Board notes that specific measurements were not explicitly asked in the Board remand directives with respect to this retrospective opinion), she did address the Veteran's functional limitations in terms of where the Veteran could move his shoulder/arm and where he felt pain under these circumstances. As such, the Board finds there has been substantial compliance with the prior Board remand directives and that there is no prejudice to the Veteran in proceeding to a decision without a remand under the circumstances. Moreover, the Board notes that remanding for another retrospective opinion would not remedy the inadequacies of the evidence for the applicable period of time. The Board also notes that the treatment records for the applicable appeal period further show that the Veteran's left shoulder disability manifested in pain and decreased range of motion. For example, an August 2006 letter from the Veteran's VA physician reflects that the Veteran noted difficulties reaching overhead and behind due to his left shoulder. An August 2006 physical therapy record also shows that the Veteran experienced pain on a scale of five out of ten at rest for his left shoulder and that any shoulder elevation or lifting aggravated his shoulder. His goal for physical therapy was to complete shoulder level work around his house. A subsequent January 2007 VA pain consultation reflects that the Veteran complained that his left arm pain worsened with repetitive upper extremity activity especially pushing/pulling. Likewise, a January 2009 VA pain consultation reflects that the Veteran's left shoulder pain was aggravated by active abduction. Thereafter, an August 2009 VA orthopedic surgery note reflects the Veteran reported that reaching out to the side caused him significant pain. A June 2010 VA treatment record also documents that the Veteran's left shoulder was painful with certain motions, particularly abductions. It was noted that moving his shoulder to approximately 60/70 degrees of abduction created pain. A March 2011 VA treatment record further reflects that he had pain with every provocative movement of his right and left shoulders. Further, an October 2012 VA treatment record shows that the Veteran's reported he was unable to abduct his left shoulder as it caused him much more discomfort. On examination, abduction of the left shoulder was to 90 degrees with marked pain. In light of the above and given the totality of the evidence when considering the Veteran's competent and credible reports of limited left shoulder motion and pain, combined with his reports of flare-ups, the Board finds that a 30 percent rating, but no higher, is warranted. In this respect, the April 2007 VA examination reflects that the Veteran had additional limitation of motion due to pain during flares while the April 2012 VA examiner also indicated that the Veteran had functional impairment after repetitive use. Moreover, the October 2021 VA retrospective opinion also suggests that the Veteran experienced significant pain that impacted his left arm functioning because he reported limiting his shoulder to a rest position when he experienced flares and repetitive use. In reviewing the evidence, the Board has considered functional loss due to pain and weakness that causes additional disability beyond that which is reflected on range of motion measurements. 38 C.F.R. § 4.40; DeLuca, 8 Vet. App. 202. The Board has also considered the effects of less movement than normal, weakened movement, fatigability, incoordination, and pain on movement. 38 C.F.R. § 4.45. The Board accepts the Veteran's competent and credible assertions that his left shoulder was painful and, as described, that he had additional loss of motion and pain during flare-ups. The Board also finds that the Veteran's painful left shoulder motion affected his excursion, strength, and endurance especially upon consideration of repeated use over time and during flare-ups. Thus, after resolving all reasonable doubt in favor of the Veteran, the Board finds that the evidence demonstrates limited left shoulder motion that more nearly approximates motion limited to 25 degrees from the side, which warrants the maximum 30 percent rating for the Veteran's left [minor] shoulder under DC 5201. While range of motion testing over the appeal period typically did not, by itself, approximate motion limited to 25 degrees from the side, the evidence shows that the Veteran experienced severe symptoms as a result of his left shoulder disability. Additionally, the Board acknowledges that the noted inadequacies with the VA examinations during this appeal period resulted in the loss of certain evidence concerning range of motion during flare-ups, after repeated use over time, and on passive motion and in non-weight-bearing where applicable. Accordingly, with consideration of these factors as well as pain and weakness, the Board finds that the Veteran's overall disability more nearly approximates limitation of motion to 25 degrees from the side. As such, the Board grants a 30 percent rating, which is the maximum schedular rating based on limitation of motion of the minor arm under DC 5201, from April 21, 2006, to November 22, 2013. In reaching this decision, the Board, does not find that a higher or separate rating is warranted under another DC. To that end, a separate or higher rating under DC 5200 for ankylosis is not warranted as the treatment records and shoulder examinations do not indicate the presence of ankylosis or the functional equivalent of ankylosis. The Board also finds that separate or higher ratings under DC 5202 for other impairment of the humerus and DC 5203 for impairment of the clavicle or scapula are also not supported by the examinations of record. In this regard, the VA examinations do not indicate malunion of, nonunion of, or dislocation of the clavicle or scapula nor malunion of the humerus, dislocation at the scapulohumeral joint, fibrous union of the humerus, nonunion of the humerus, or loss of head. Instead, the Board finds that the functional limitations the Veteran has described as related to his left shoulder disability and the functional limitations of his left shoulder disability, as documented in the medical evidence, are now contemplated in his 30 percent rating under DC 5201 based on painful, limited motion. In sum, the weight of the persuasive evidence of record establishes that the Veteran's service-connected left shoulder disability was manifested by left arm motion limited to 25 degrees from the side. To the extent that the Veteran seeks an even higher rating, the approximate balance of the evidence is against the claim. 38 U.S.C. § 5107(b). Thus, entitlement to a 30 percent rating, but no higher, from April 21, 2006, to November 22, 2013, is granted. MARJORIE A. AUER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Purcell, Amanda 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.