Citation Nr: 24017516 Decision Date: 04/24/24 Archive Date: 04/24/24 DOCKET NO. 18-47 251 DATE: April 24, 2024 ORDER Entitlement to a rating in excess of 20 percent for service-connected left shoulder strain is denied. Entitlement to service connection for a left-hand disability, to include as secondary to service-connected left shoulder disability, is denied. FINDINGS OF FACT 1. The weight of the evidence is against a finding that the Veteran's left shoulder condition results in limitation of motion of 25 degrees from the side, or ankylosis. 2. The weight of the probative evidence is against the finding that the Veteran has a current left hand disability, other than the Veteran's already service-connected peripheral neuropathy of the left upper extremity. CONCLUSIONS OF LAW 1. 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. §§ 3.102, 3.159, 4.71a, Diagnostic Code (DC) 5201. 2. The criteria for entitlement to service connection for a left-hand disability, other than peripheral neuropathy, have not been met. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from April 1982 to September 1982, and the Army National Guard from December 1982 to September 2003. This case comes before the Board of Veterans' Appeals (Board) on appeal from a May 2018 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In February 2022, the Veteran testified before the undersigned Veterans Law Judge during a video hearing. A transcript of the proceeding has been included in the claims file. Increased Ratings Disability evaluations are determined by the application of the VA Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4. The percentage ratings contained 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 and their residual conditions in civil occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Where an increase in an existing disability rating based on established entitlement to compensation is at issue, the present level of disability is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). VA's determination of the "present level" of a disability may result in a conclusion that the disability has undergone varying and distinct levels of severity throughout the entire time period the increased rating claim has been pending and, consequently, staged ratings are 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. Hart v. Mansfield, 21 Vet. App. 505 (2007). Under the 38 C.F.R. § 4.7, when there is a question as to which two evaluations VA should assign to a disability, if the claimant's disability more closely resembles the higher disability, VA is required to assign the higher of the two evaluations. In Tatum v. Shinseki, 23 Vet. App. 152 (2009), the Court of Appeals for Veterans Claims (Court) held that veterans do not necessarily need to have all the criteria listed in the higher evaluation level in order to receive that evaluation, even if the diagnostic code uses the word "and" between multiple symptoms. 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. It is essential that the examination on which ratings are based adequately portray the anatomical damage and the functional loss with respect to all of these elements. In evaluating disabilities of the musculoskeletal system, it is necessary to consider, along with the schedular criteria, functional loss due to flare-ups of pain, fatigability, incoordination, pain on movement, and weakness. See 38 C.F.R. § 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202 (1995). Functional loss may be due to absence of part, or all, of the necessary bones, joints and muscles, or associated structures, or to deformity, adhesions, defective enervation, or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. 38 C.F.R. §§ 4.10, 4.40, 4.45. The Court has held that VA must analyze the evidence of pain, weakened movement, excess fatigability, or incoordination and determine the level of associated functional loss under 38 C.F.R. § 4.40, which requires VA to regard as "seriously disabled" any part of the musculoskeletal system that becomes painful on use. In Mitchell v. Shinseki, 25 Vet. App. 32 (2011), 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." Rather, pain may result in functional loss, but only if it limits the ability "to perform the normal working movements of the body with normal excursion, strength, speed, coordination, or endurance." 38 C.F.R. § 4.40. 1. Entitlement to a rating in excess of 20 percent for service-connected left shoulder strain Here, the Veteran is service connected for a left shoulder disability, which has been evaluated under Diagnostic Code (DC) 5201 for limitation of motion. During the pendency of this appeal, the rating criteria for evaluating musculoskeletal disabilities under 38 C.F.R. § 4.71a were amended effective February 7, 2021. 85 Fed. Reg. 230 (Nov. 30, 2020). These amendments revised selected DCs "to ensure that this portion of the rating schedule uses current medical terminology and provides detailed and updated criteria for the evaluation of musculoskeletal disabilities." Id. Under the prior version of DC 5201, a rating of 20 percent is warranted when motion of the minor or major arm is limited to shoulder level. A 20 percent evaluation is also warranted for limitation of motion of the minor arm midway between the side and shoulder level. A 30 percent rating contemplates limitation of motion of the minor arm to 25 degrees from the side or limitation of motion of the major arm to midway between the side and shoulder level. 38 C.F.R. § 4.71a, DC 5201. The revised version of DC 5201 did not alter the ratings assigned but clarified that "at shoulder level" was for flexion and/or abduction limited to 90 degrees and that "midway between side and shoulder level" was flexion or abduction limited to 45 degrees. Id. The Board notes that the Veteran is right handed, as such, the right shoulder will be considered a major arm for the purposes of rating. Regulations define the normal range of motion for the shoulder as forward flexion from 0 to 180 degrees, abduction from 0 to 180 degrees, external rotation to 90 degrees, and internal rotation to 90 degrees. 38 C.F.R. § 4.71, Plate I. As an initial matter, both VA and private medical records throughout the pendency of this claim demonstrate no ankyloses of the left shoulder, or any impairment of the clavicle, or scapula. Accordingly, DC 5200 (ankyloses of) and 5203 (clavicle or scapula, impairment of) pertaining to the shoulder are not for application. The Veteran claims that, with regards to limitation of motion, his current disability of the left shoulder is far greater than that contemplated by his current 20 percent rating. To this end, the Veteran has submitted private medical records, to include private range of motion testing. However, a close review of this medical evidence, along with other VA treatment records and examinations, reveal that the Veteran's left shoulder disability does not rise to the level of severity for which to warrant a higher rating, under the appropriate DC for limitation of motion for the shoulder. As such, the claim is denied. With regard to VA examinations, the Veteran was afforded VA examinations in May 2016, May 2018, March 2019, August 2022, November 2023, and January 2024. In addition to these VA examinations, the Veteran has also submitted private treatment records. His VA treatment records have also been associated with the claims file. The Board will discuss these in turn. The Veteran was initially examined in a May 2016 VA shoulder/arm examination. This examination report noted that the Veteran had flexion of the left shoulder to 135 degrees and abduction to 85 degrees. The examiner noted the Veteran reported flareups, especially after prolonged use or after lifting, including after lifting above his head. Repetitive motion testing showed no change of range of motion; and likewise, flare-ups were not noted to further affect range of motion of the shoulder. No ankylosis was noted, and no recurrent dislocation or the glenohumeral joint was noted. Functionally, the Veteran noted shoulder pain when lifting overhead and sleeping. In a May 2018 VA examination, the Veteran was observed to have left shoulder flexion to 110 degrees, and abduction to 95 degrees. The Veteran noted no flare-ups of the left shoulder and repeat testing did not reveal any additional evidence of loss of range of motion. Muscle strength testing noted slight decrease (4/5), but with no atrophy. No ankylosis, rotator cuff condition, or instability were noted. The examiner noted that the Veteran's left shoulder condition restricted the Veteran's ability to lift heavy weights and reach above his head. The Veteran was ultimately diagnosed with bilateral shoulder strain. The Veteran underwent another VA examination in March 2019. Upon testing, the Veteran's left shoulder was noted to be limited to 150 degrees of flexion, and 140 degrees of abduction, with reported flare-ups that caused difficulty driving, lifting, and reaching. Repeat testing revealed no further reduction in range of motion, and even considering flare-ups, the VA examiner did not note any additional loss of range of motion. Muscle strength was normal, with in indication of ankylosis, rotator cuff conditions, AC condition, or instability/dislocation. Diagnostic testing, however, revealed mild degenerative joint disease of the glenohumeral joint. With regards to functional loss, the examiner noted that the Veteran has difficulty with grasping, reaching upwards, and downwards, to especially include after prolonged activities. The Veteran was afforded another shoulder/arm examination in August 2022. After a noted review of the Veteran's claims file and examination, the Veteran was diagnosed with left shoulder strain. Upon testing the Veteran's left shoulder was noted to be limited to 120 degrees of flexion and 120 degrees of abduction, with repeat motion testing revealing no addition loss of range of motion. To this end, the Veteran reported no flare-up. No ankylosis, rotator cuff condition, or instability/dislocation were noted by the examiner. Functional loss wise, the examiner noted that the Veteran had difficulty reaching above his head. In October 2023 the Veteran was afforded yet another VA examination with regards to his claimed left shoulder disability. Upon examination the Veteran's left shoulder range of motion was noted to be limited to 100 degrees of flexion and 75 degrees of abduction, with no reduction of movement upon repeat testing or when considering flare-ups. No ankylosis, decreased muscle strength, or instability/dislocation was found. Rotator cuff testing returned positive for Hawkins', empty can, and lift-off tests, and negative for rotation. With regards to functional loss, the examiner noted that the Veteran could not lift more than 50 pounds. The Veteran's most recent VA examination conducted in January 2024, noted a similar, if not improved, left shoulder condition as the prior examination results. Upon examination, the Veteran's left shoulder was limited only to 150 degrees of flexion and 100 degrees of abduction, without reports of flare-ups. Repeat motion testing also revealed no additional loss of range of motion for the left shoulder. Rotator cuff testing reveals positive for Hawkins' and lift-off test, and negative for all others. No ankylosis, instability/dislocation, or loss of muscle strength was noted. The Board notes that a thorough review of all the additional medical evidence, to include the private and VA treatment records, reveal no additional evidence of a left shoulder condition worse than that demonstrated during the VA examinations noted herein. Indeed, private treatment record submitted expressly for the Veteran's treatment for his left shoulder show a better condition than that noted in the past examinations. Here, physical therapy sessions for the Veteran's shoulder in and around April 2023 show objective testing for range of motion of 160 degrees of flexion and 160 degrees of abduction. Other than such private testing notation, other private and VA treatment records only reflect ongoing treatment for pain with no additional objective evidence/testing for range of motion. Likewise, reviewing the Veteran's own lay assertions regarding his left shoulder disability, the Board finds no additional assertions of a condition that limited his ability to raise his arm beyond 25 degrees from his side. In this respect, written statements and submitted arguments provide little to no assertions regarding the specific degree in which the Veteran's left arm/shoulder range of motion is limited to due to her service-connected disability. The Veteran's representative's statements only rehash the results noted in the examinations and treatment records already discussed herein, and, generally, asserts a more severe condition. The Veteran's own statements only note, generally, various functional effects of his left shoulder, again, without specifically noting limitation of range of motion. Therefore, as the objective evidence of record shows that the Veteran's left shoulder disability only limits his left arm range of motion to 110 degrees of flexion, and 85 degrees of abduction, at worse, even considering repeat motion and pain, the Board must find that the weight of the probative evidence is against a finding that the Veteran is entitled to a higher rating for a left shoulder disability. As above noted, the Veteran is right handed, and therefore, the left side is considered the minor/nondominant limb, as such a higher 30 percent rating for a left shoulder disability, under the appropriate Diagnostic Code, requires medical evidence establishing the left shoulder disability is manifested by limitation of left arm motion to 25 degrees. 38 C.F.R. § 4.71a, DC 5201. Here, the Board notes that the objective medical evidence demonstrates that the Veteran's left shoulder disability, at worse, has not approached such limatisation of motion, to include consideration of both the Veteran's private treatment records and examination. Consequently, the criteria for a higher rating regarding his left shoulder disability, limitation of motion to less than 25 degrees, has not been met by the competent medical evidence, and therefore, a higher rating is not warranted. The Board has considered the Veteran's statements regarding functional loss and flare-ups. The treatment records indicated he experienced functional loss due to pain during a period of flare-up, however there is no indication as to the degree of which he is able to raise his left arm. In fact, even his recorded statements during examinations only noted that he could not lift above his head, which is well beyond the limitation required for a higher rating. Likewise, even considering functional limitations to include an inability to do overhead work, or lift heavy thing, pushing/pulling, etc., does not provide an adequate disability picture as to warrant a higher rating based on the objective criteria set out for a higher rating. The Board finds that the reported symptoms and manifestations of the Veteran's left shoulder disability have been adequately considered in the currently assigned 20 percent rating, as the rating schedule specifically contemplates factors such as weakened movement; excess fatigability; pain on movement; disturbance of locomotion; and interference with sitting, standing, and weight bearing. 38 C.F.R. §§ 4.45, 4.59. The evidence does not reflect functional impairment congruent with a higher rating for the left shoulder. Thus, the Board finds that the currently assigned 20 percent rating is appropriate, even after considering functional limitations and flare-ups. DeLuca v. Brown, 8 Vet. App. 202 (1995); Mitchell v. Shinseki, 25 Vet. App. 32 (2011). Consequently, the Veteran's claim for an increased rating must be denied. Service Connection Service connection is established if it is shown the Veteran has a disability resulting from an injury sustained or a disease contracted in the line of duty during active service, or for aggravation during service of a pre-existing condition beyond the natural progression of the disorder. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. §§ 3.303, 3.306. Evidence of continuity of symptomatology from the time of service until the present is required where the chronicity of a chronic condition manifested during service either has not been established or might reasonably be questioned. 38 C.F.R. § 3.303(b). Only disabilities listed as chronic diseases in 38 C.F.R. § 3.309(a) may be considered for service connection under 38 C.F.R. § 3.303(b). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Other disabilities initially diagnosed after service also may be service connected if the evidence, including that pertinent to service, shows the disability was incurred in service. 38 C.F.R. § 3.303(d). To establish service connection, there must be: (1) competent and credible evidence confirming the Veteran has the claimed disability or at least has since filing the claim; (2) competent and credible evidence of in-service incurrence or aggravation of a relevant disease or injury; and (3) competent and credible evidence of a nexus or link between the in-service injury or disease and the current disability. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Service connection may be established on a secondary basis for a disability that is shown to be proximately due to or the result of a service-connected disease or injury. Establishing service connection on a secondary basis requires evidence sufficient to show that a current disability exists and that the current disability was either caused or aggravated by a service-connected disability. 38 C.F.R. § 3.310(a); Allen v. Brown, 7 Vet. App. 439 (1995). In determining whether service connection is warranted for a disability, VA must determine whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). A claimant receives the benefit of the doubt when there is an approximate balance of positive and negative evidence on any issue material to the claim. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2022). The Board must assess the credibility and probative value of evidence, and the Board may favor one medical opinion over another if an adequate statement of reasons or bases is provided. Owens v. Brown, 7 Vet. App. 429 (1995); Wood v. Derwinski, 1 Vet. App. 190 (1991). While the Board cannot ignore the opinion of a treating physician, the Board may discount the credibility of a physician's statement. Guerrieri v. Brown, 4 Vet. App. 467 (1993); Sanden v. Derwinski, 2 Vet. App. 97 (1992). 2. Entitlement to service connection for a left hand disability, to include as secondary to service-connected left shoulder disability The Veteran claims that he has a left hand disability, to include as secondary to his service-connected left shoulder disability. However, a close review of the claims file, and evidence of record, to include the Veteran's lay statements, and VA/private medical evidence, to include VA hand examinations, shows no disability of the hand/wrist, other than neuropathy of the left upper extremity, which has already been service connected. Therefore, without a current disability service connection is not warranted, and the claim must be denied. By way of procedural history, the Board previously remanded the Veteran's claim for a left hand disability, along with several other claims (including for his neck and back) in a March 2023 decision. Upon development of the remand, the Veteran was afforded a VA examination regarding these disabilities, and an October 2023 examination diagnosed the Veteran was peripheral neuropathy of the left upper extremity, as secondary to his neck disability. In a November 2023 rating decision, the RO granted service connection for the neck, along with the associated secondary radiculopathy of the left and right upper extremities. As such, before the Board, on appellate review is a claim for a left hand disability, other than his service-connected neuropathy of the left upper extremity. In this regard, the Board finds that a close review of the competent and credible evidence is record reveals that the Veteran does not currently have a left hand disability, other than the neurological condition already service-connected. Here, the Veteran was afforded VA hand examinations in August 2022, October 2023, and January 2024. A close review of these examinations reveals, ostensibly, general complaints of neurological symptoms such as tinging, numbness, and pain. All three examinations provided no orthopedic disability of the hand, to include no functional loss and/or range of motion. In this regard, only the October 2023 VA examiner noted only one pertinent diagnosis, which was for left hand radiculopathy, secondary to his neck and subsequently service-connected. The Board further notes that since the November 2023 grant of service connection for the left upper extremity, the Veteran was afforded his most recent examination in January 2024. A close review of that examination also expressly concluded no clinically diagnosable disability of the left hand. Upon examination no limitation of motion and/or functional loss was noted by the examiner. Additionally, like prior examinations, the Veteran's subjective complaints were noted to be related to his neurological disability, to include tingling, weakness, and some pain. A close review of both private/VA treatment records do not show any evidence of a left hand disability. Indeed, contemporaneous VA/private treatment records do not show any evidence of complaint, treatment, and/or diagnosis for any left hand disability other than those related to his neuropathy. To this end, the Veteran has also not expressly spoken to such a condition, other than complaint of some symptoms, generally, with no specific assertion of functional loss due a condition other than what he has already been service-connected for. To this extent, again, even accepting the Veteran's is competent to report observable symptoms, he is not competent to associate such symptoms such as pain, weakness, and tingling, with a specific disability over another. Here, such has been distinguished by the VA examiner, especially the January 2024 examiner, in nothing no additional clinically diagnosable disability for the left hand, after considering the Veteran's service-connected left upper extremity neuropathy. The Board find that such medically based analysis, after a noted review of the Veteran's claim file and medical history, to be of more probative value in establishing a current disability than the Veteran's generalized lay statement regarding his hand. Consequently, in the absence of proof of a current disability, there can be no valid claim for service connection. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). As no competent evidence of record demonstrates the Veteran has a currently disability, service connection must be denied. Brammer, 3 Vet. App. at 225. DELYVONNE M. WHITEHEAD Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Ziheng Zhu, 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.