Citation Nr: 23027196 Decision Date: 05/07/23 Archive Date: 05/07/23 DOCKET NO. 13-29 111 DATE: May 7, 2023 ORDER Entitlement to a rating in excess of 20 percent for left shoulder impingement syndrome and left shoulder acromioclavicular joint degenerative joint disease with left upper extremity muscle atrophy ("left shoulder disability") is denied. FINDINGS OF FACT 1. The Veteran is right-hand dominant. 2. The Veteran's left shoulder disability has not resulted in ankylosis, recurrent dislocation of the humerus at the scapulohumeral joint with frequent episodes of guarding of all arm movements, or motion limited to 25 degrees from the side. CONCLUSION OF LAW The criteria for a rating in excess of 20 percent for left shoulder disability have not been met. 38U.S.C. §§1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5003-5201. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from July 1977 to August 1994. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2009 rating decision. In January 2017, the Veteran testified at a Board hearing before the undersigned. A transcript of that hearing is of record. The issue was remanded in October 2017 and March 2019 for further development. In July 2020, the Board denied entitlement to a rating in excess of 20 percent for the left shoulder disability. The Veteran timely appealed the denial to the United States Court of Appeals for Veterans Claims (Court) which in April 2021 set aside the Board decision and remanded the matter for further action consistent with the Joint Motion for Partial Remand (JMPR). Consistent with the JMPR, the Veteran was scheduled for a hearing to be held in February 2023. In a January 2023 correspondence, the Veteran withdrew his request for a hearing. As such, the appellant's hearing request is considered to have been withdrawn. See 38 C.F.R. § 20.704. Increased Rating Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities. 38 C.F.R. Part 4. The Schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. The Veteran's entire history is reviewed when making disability ratings. See generally 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Where entitlement to compensation already has been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, when the question for consideration is the propriety of the initial disability rating assigned, evaluation of the medical evidence since the grant of service connection and consideration of the appropriateness of "staged rating" is required. See Fenderson v. West, 12 Vet. App. 119, 126 (1999). Staged ratings are also appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. The relevant focus for adjudicating an increased rating claim is on the evidence concerning the state of the disability from the time period one year before the claim was filed until VA makes a final decision on the claim. Hart v. Mansfield, 21 Vet. App. 505 (2007). Entitlement to a rating in excess of 20 percent for left shoulder impingement syndrome and left shoulder acromioclavicular joint degenerative joint disease with left upper extremity muscle atrophy The Veteran contends that his left shoulder disability symptoms warrant a rating in excess of the 20 percent evaluation currently assigned. The left shoulder disability is currently rated under 38 C.F.R. § 4.71a, Diagnostic Codes 5003-5201, with a 20 percent rating effective from November 26, 2008, the date of claim for service connection. Degenerative arthritis, when 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. When the limitation of motion of the specific joint or joints involved is noncompensable 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, not added under Diagnostic Code 5003. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm or satisfactory evidence of painful motion. 38C.F.R. §4.71a, Diagnostic Code 5003. For purposes of rating disability from arthritis, the shoulder is considered a major joint. 38 C.F.R. §4.45 (f). The diagnostic code that focuses on limitation of motion of the shoulder is Diagnostic Code 5201. Disorders of the shoulders are rated under DCs 5200 through DCs 5203 of 38 C.F.R. § 4.71a. The above-referenced DC provide for different ratings in certain instances depending on whether the shoulder involved is the major or minor joint. A June 2009 VA examination report reflects that the Veteran is right hand dominant, therefore his disability affects his non-dominant shoulder joint. Concerning impairment of function of the contiguous joint, under DC 5201 limitation of motion of an arm at the shoulder level warrants a 20 percent rating whether it is the major or minor extremity. When motion is limited to midway between the side and shoulder level, a 30 percent rating is warranted for the major extremity. When motion is limited to 25 degrees from the side, a 40 percent rating is warranted for the major extremity. 38 C.F.R. § 4.71a. Normal ranges of shoulder flexion and abduction are from 0 to 180 degrees, and external and internal rotations are from 0 to 90 degrees. See 38 C.F.R. § 4.71, Plate I. Diagnostic Code 5202 provides for a 20 percent rating for recurrent dislocation of the humerus at the scapulohumeral joint with infrequent episodes and guarding of movement only at shoulder level; a 30 percent rating for recurrent dislocation of the humerus at the scapulohumeral joint with frequent episodes of guarding of all arm movements; a 50 percent rating for fibrous union of the humerus; a 60 percent rating for nonunion of the humerus; and an 80 percent rating for loss of head of the humerus of the major arm. 38 C.F.R. § 4.71a. Diagnostic Code 5203 provides that impairment of the clavicle or scapula is to be rated as dislocation, nonunion, or malunion, or rate on impairment of function of the contiguous joint. DC 5203 does not provide for a rating in excess of the current 20 percent disability rating. Under DC 5200, a 40 percent rating is warranted in instances of intermediate ankylosis between favorable and unfavorable. A 50 percent rating is warranted where there is unfavorable ankylosis of the scapulohumeral articulation with abduction limited to 25 degrees from the side. 38 C.F.R. § 4.71a, DC 5200. The revised schedule, in effect as of February 7, 2021, contemplating limitation of motion of the arm (major extremity) under DC 5201, provides that a 20 percent rating is assigned for limitation of the arm at shoulder level (flexion and/or abduction limited to 90 degrees); a 30 percent rating is assigned for limitation of motion of the arm midway between the side and shoulder level (flexion and/or abduction limited to 45 degrees); and a 40 percent rating is assigned for flexion and/or abduction of the arm limited to 25 degrees from the side. Diagnostic Code 5202 was unchanged, save for clarifying that "shoulder level" means flexion and/or abduction limited to 90 degrees (recurrent dislocation at scapulohumeral joint with infrequent episodes and guarding of movement only at shoulder level), required for the assignment of a 20 percent rating. No revisions were made to DCs 5200 and 5203. The Board emphasizes that the cited revisions do not contain any outcome-determinative changes that impact the Veteran's service-connected left shoulder disability. Instead, the revisions clarify that "shoulder level" means 90 degrees and "midway between the side and shoulder level" means 45 degrees, information which was previously available and garnered from 38 C.F.R. § 4.71a, Plate I. As such, the Board finds there is no prejudice to the Veteran in the Board's consideration of the amended regulations in this appeal. See Bernard v. Brown, 4 Vet. App. 384, 393-94 (1993); 38 C.F.R. § 20.904(d)(2). Limitation of motion under DC 5201 may be compensated based on limitation of abduction or limitation of flexion - the two planes of movement involving lifting the arm from the side, whichever would afford the higher rating. Yonek v. Shinseki, 722 F.3d, 1355, 1358-59 (2013) (citing Mariano v. Principi, 17 Vet. App. 305, 314-16 (2003)). However, separate ratings for both limitation of abduction and flexion are not available under this diagnostic code. Id. (holding that "the plain language of [DC] 5201... allows only a single rating for 'limitation of motion of' an arm"); cf. Cullen v. Shinseki, 24 Vet. App. 74, 84 (2010) (holding that within a single diagnostic code, a claimant is not entitled to more than one rating for a given disability unless the diagnostic code expressly provides otherwise). In evaluating disabilities of the musculoskeletal system, consideration must be given to functional loss, including due to weakness and pain, affecting the normal working movements of the body in terms of excursion, strength, speed, coordination, and endurance. 38 C.F.R. § 4.40; see Mitchell v. Shinseki, 25 Vet. App. 32, 43 (2011) (holding that pain "must actually affect some aspect of 'the normal working movements of the body' [under] 38 C.F.R. § 4.40 in order to constitute functional loss" warranting a higher rating). With respect to disabilities of the joints, it must be considered whether there is less movement or more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement, as well as swelling, deformity, or atrophy of disuse. 38 C.F.R. § 4.45. These provisions thus require a determination of whether a higher rating may be assigned based on functional loss of the affected joint on repeated use as a result of the above factors, including during flare-ups of symptoms, beyond any limitation reflected on one-time measurements of range of motion. DeLuca v. Brown, 8 Vet. App. 202, 206-07 (1995) (holding that the provisions of 4.40 and 4.45 are not subsumed by the DC's applicable to the affected joint). However, a higher rating based on functional loss may not exceed the highest rating available under the applicable diagnostic code(s) pertaining to range of motion. See Johnston v. Brown, 10 Vet. App. 80, 85 (1997). Under 38 C.F.R. § 4.59, painful motion is a factor to be considered with any form of arthritis Moreover, the intent of the schedule is to recognize painful motion with joint or periarticular pathology as productive of disability. See 38 C.F.R. § 4.59. Joints that are actually painful, unstable, or misaligned, due to healed injury, should be entitled to at least the minimum compensable rating for the joint. Id.; see also Burton v. Shinseki, 25 Vet. App. 1 (2011) (holding that section 4.59 applies to all forms of painful motion of joints, and not just to arthritis). After a review of all the evidence, lay and medical, the Board finds that, for the entire rating period on appeal the criteria for an initial rating in excess of 20 percent for the left shoulder disability have not been met or more nearly approximated. A June 2009 VA shoulder examination shows a diagnosis of left shoulder impingement syndrome. At the examination the Veteran reported left arm, hand and finger pain that was constant and described as aching, oppressing, and sticking. The pain was brought on by physical activity and relieved by rest. Other symptoms were reported as weakness, stiffness, giving way, lack of endurance, locking, and fatigability. The Veteran denied swelling, heat, redness, and dislocation. Functional impairment was described by the Veteran as no functionality of the left arm and hand, the inability to type on a computer with both hands, and difficulty with daily functions. The Veteran's right hand is his dominant hand. The examiner noted the left shoulder had weakness, tenderness and guarding of movement. The left shoulder showed no signs of edema, effusion, redness and heat and there was no subluxation. Left shoulder ROM was flexion to 135 degrees with pain at 20 degrees, abduction to 125 degrees with pain at 20 degrees, external rotation to 82 degrees with pain at 80 degrees, and internal rotation was to 30 degrees with pain at 15 degrees. Joint function on the left was additionally limited by pain, fatigue, weakness, lack of endurance and pain following after repetitive use estimated by the examiner to additionally limit the joint function by 12 degrees. Motor function testing of the left hand was 3/5 and the left arm was 4/5. Sensory testing showed hypersensitivity of the left hand and posterior forearm. The examiner noted atrophy of the left hand, forearm, and upper arm muscles. Left shoulder x-ray findings were within normal limits. During a May 2013 VA examination, the Veteran reported being unable to do pushups, lift his left arm above shoulder level, a loss of feeling in his left hand and forearm, loss of movement and strength in the left arm and hand, and loss of movement in his neck. He stated that his symptoms had progressively worsened to include increased sensitivity in his left arm and hand. Flare-ups were reported to restrict range of motion (ROM), cause loss of strength, and to cause pain and hypersensitivity. On examination, flexion was limited to 110 degrees with painful motion at 85 degrees and abduction was limited to 85 degrees with painful motion beginning at 75 degrees. After repetitive use testing left shoulder flexion was limited to 90 degrees and abduction was limited to 75 degrees. The Veteran had functional loss in his left upper extremity described as less movement than normal, weakened movement, incoordination, impaired ability to execute skilled movements smoothly, pain on movement, and atrophy of disuse. The Veteran had localized tenderness or pain on palpation of with guarding. Muscle strength for left shoulder abduction and forward flexion showed active movement against some resistance. The Veteran did not have ankylosis and there was no history of recurrent dislocation of the glenohumeral joint or any impairment of the clavicle or scapula. Degenerative or traumatic arthritis of the left shoulder was seen on diagnostic testing. The examiner further reported that left shoulder external rotation was limited to 70 degrees with painful motion beginning at 50 degrees and internal rotation was limited to 45 degrees with painful motion beginning at 35 degrees. After repetitive use testing, external rotation was limited to 70 degrees and internal rotation was limited to 45 degrees. The examiner noted there were contributing factors of pain, weakness, fatigability and/or incoordination as well as additional limitation of functional ability of the shoulder joint during flare ups and repeated use over time. Unfortunately, the examiner stated he was unable to provide the degree of additional ROM loss as it could not be determined based on the findings of an isolated examination. In a December 2013 private medical report, the examiner provided a medical history concerning the Veteran's left shoulder disability and reported that the Veteran complained of pain in the neck with weakness of the left upper extremity. The examiner reported that from a general examination of the left upper extremity it is consistent with mild generalized atrophy. There was some mild sensory loss, which was patchy and generalized. There was an obvious mild weakness of the left upper extremity when compared to the right. The examiner did not have any access to any x-rays or MRI of the left shoulder. The examiner's impression was that the Veteran had left upper extremity pain with pain in the shoulder and left thumb which was most likely secondary to a cervical sprain due to as well as congenital stenosis of the cervical spine. The examiner also reported that the Veteran had resultant weakness and radiculopathy in the left upper extremity post anterior cervical diskectomy and fusion status. During the January 2017 Board hearing, the Veteran reported experiencing a great deal of pain when raising his left arm, especially to 45 degrees. He also reported that he had very little strength in his left arm, his grip was terrible, he had lost feeling in his left hand and fingers, and his thumb spasmed. An October 2019 VA examination reflects the Veteran reported constant pain and weakness in the left shoulder, numbness and tingling of the left hand, and decreased ROM. The Veteran reported that he does not have flare ups of his left shoulder, but that he has functional loss where is left arm is "pretty useless." Initial ROM measurements for the left shoulder show flexion limited to 60 degrees, abduction limited to 50 degrees, external rotation limited to 10 degrees, and internal rotation limited to 10 degrees. The examiner noted that the ROM itself contributes to a functional loss since the Veteran is unable to fully flex his shoulder. The examiner also noted that pain was noted on examination that caused functional loss when conducting flexion, abduction, external rotation, and internal rotation measurements. There was no objective evidence of localized tenderness or pain on palpation of the shoulder joint, but there was evidence of pain with weight bearing. There was no objective evidence of crepitus. The Veteran was able to perform repetitive use testing with at least three repetitions with no additional loss of function or ROM. Pain, weakness, fatigability, or incoordination did not significantly limit functional ability with repeated use over a period of time. The examiner was unable to describe any functional loss in terms of ROM since the Veteran was not examined after repetitive use over time and there was no rational basis to make a notation regarding any additional losses of function or motion. There was no pain, weakness, fatigability, or incoordination that significantly limited functional ability with flare ups. Moreover, the Veteran denied any flare ups. Additional contributing factors of disability included less movement than normal which translated to decreased ROM due to pain and atrophy of disuse of the left shoulder which translated to the left arm being visibly smaller than the right arm. Muscle strength testing for left forward flexion and abduction showed active movement against some resistance, which showed a reduction in muscle strength. When circumference of the right arm was compared to the left arm, there was a two centimeters difference. There was no ankylosis of the left upper extremity. A rotator cuff condition was not suspected for either shoulder. There was no shoulder instability, dislocation, labral pathology, clavicle, scapula, acromioclavicular joint, or sternoclavicular joint condition suspected. There was no history of recurrent dislocation of the glenohumeral joint, nor did the Veteran have loss of head, nonunion, fibrous union of the humerus, or malunion of the humerus with moderate or marked deformity. The arthritis and impingement of the left shoulder caused pain with lifting his arm or lifting items. There was no objective evidence of pain on passive ROM testing or when the joint was used in non-weight bearing. Based on the foregoing evidence, the Board finds, for the entire rating period on appeal, the criteria for a rating in excess of 20 percent for the left shoulder disability have not been met under DC 5201. The evidence throughout appeal period shows the left shoulder disability did not manifest in limitation of the left arm midway between side and shoulder level (i.e., to 45 degrees), the criteria for a 30 percent rating under DC 5201. At worst, the Veteran's flexion and abduction was limited to 60 and 50 degrees respectively with no additional loss or ROM after repetitive use or with flare-ups, which exceeds flexion/abduction limited to 45 degrees and 25 degrees, as is required for a 30 percent rating under DC 5201. The Board has considered the Veteran's statements regarding his left shoulder symptomatology and his contention that a rating in excess of 20 percent is warranted. However, the Board finds that the objective evidence provided by the VA examiners on examination to be more persuasive than the Veteran's contentions. The Veteran is a lay person, and while he is competent to report observable symptoms such as pain, the analysis of the severity of his left shoulder disability requires medical training and experience, which the Veteran has not demonstrated he possesses. Layno v. Brown, 6 Vet. App. 465 (1994); Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007). Furthermore, at no time during the appeal period has the Veteran's left shoulder disability been shown to be manifested by loss of head of the humerus, nonunion of the humerus, or recurrent dislocation of the humerus at the scapulohumeral joint. Accordingly, a higher rating under Diagnostic Code 5202 is not applicable. Id. Additionally, as there have been no findings of ankylosis of the left shoulder, a higher rating under DC 5200 is not warranted. See 38 C.F.R. § 4.71a, DC 5200. The Board notes that there has been no finding of any impairment of the clavicle or scapula and even if there were, the Veteran is already in receipt of the maximum 20 percent rating available under DC 5203. As for whether the Veteran is entitled to a rating higher than 20 percent for arthritis of the left shoulder under DC 5010, the Board notes that there is no evidence the Veteran's left shoulder ROM has been limited to 25 degrees from the side, which is necessary for a 30 percent evaluation for a minor upper extremity. The Board has also considered the provisions of 38C.F.R. §§4.40, 4.45, 4.59, and the holdings in DeLuca. However, an evaluation in excess of 20 percent for the Veteran's left shoulder disability is not warranted on the basis of functional loss due to pain or weakness in this case, as the Veteran's symptoms are supported by pathology consistent with the assigned 20 percent rating, and no higher. In this regard, the Board observes that the Veteran complained of left shoulder pain in several post service treatment records; however, the effect of the pain in the Veteran's shoulder is contemplated in the currently assigned disability evaluations. The Veteran's complaints do not, when viewed in conjunction with the medical evidence, tend to establish weakened movement, excess fatigability, or incoordination to the degree that would warrant an increased evaluation. Accordingly, as the evidence is not in approximate balance but is persuasively against the claim, the benefit of the doubt doctrine enunciated in 38 U.S.C. § 5107 (b) is not applicable, as there is no approximate balance of evidence. Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021); Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990); Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001). Thomas H. O'Shay Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Mitchell, Kimberly A. 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.