Citation Nr: 1736613	
Decision Date: 08/31/17    Archive Date: 09/06/17

DOCKET NO.  14-23 913	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. Petersburg, Florida


THE ISSUES

1.  Entitlement to an initial disability rating in excess of 10 percent for degenerative joint disease (DJD) to include rotator cuff tendonitis and impingement of the right shoulder prior to July 26, 2016 and in excess of 20 percent thereafter.

2.  Entitlement to an initial disability rating in excess of 10 percent for DJD to include rotator cuff tendonitis and impingement of the left shoulder prior to July 26, 2016 and in excess of 20 percent thereafter.


REPRESENTATION

Veteran represented by:	The American Legion


ATTORNEY FOR THE BOARD

B. J. Komins, Associate Counsel


INTRODUCTION

The Veteran served on active duty from August 1959 to August 1979 in the U.S. Navy.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida,

The Board previously remanded this matter for additional development in May 2016 and November 2016.

The case has returned to the Board for further appellate action.

This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2016). 38 U.S.C.A. § 7107(a)(2) (West 2014).


FINDINGS OF FACT

1.  From October 19, 2011 to July 26, 2016, the Veteran's right shoulder disability, best diagnosed as degenerative joint disease with degenerative joint disease (DJD) to include rotator cuff tendonitis and impingement, manifested with X-ray evidence of degenerative disease of a major joint with limitation of motion above the shoulder level with constant pain, pain on motion,  and difficulty lifting  and performing overhead activities but without involvement of two or more major joint groups or more minor groups with occasional incapacitating exacerbations.

2.  From October 19, 2011 to July 26, 2016, the Veteran's left shoulder disability, best diagnosed as degenerative joint disease with degenerative joint disease (DJD) to include rotator cuff tendonitis and impingement, manifested with X-ray evidence of degenerative disease of a major joint with limitation of motion above the shoulder level with constant pain, pain on motion, and difficulty lifting  and performing overhead activities but without involvement of two or more major joint groups or more minor groups with occasional incapacitating exacerbations.  .

3.  From July 26, 2016, the Veteran's right shoulder disorder continued to manifest as before but with additional limitation of motion to approximately 55 to 60 degrees between side and shoulder level. 

4.  From July 26, 2016, the Veteran's left shoulder disorder continued to manifest as before but with additional limitation of motion to approximately 55 to 60 degrees between side and shoulder level. 


CONCLUSIONS OF LAW

1.  From October 19, 2011 to July 26, 2016, the criteria for a disability rating in excess of 10 percent for a right shoulder disability have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.321, 4.40, 4.5, 4.71a, Diagnostic Codes 5200, 5201, 5202, 5203 (2016).

2.  From October 19, 2011 to July 26, 2016, the criteria for a disability rating in excess of 10 percent for a left shoulder disability have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.321, 4.40, 4.45, 4.71a, Diagnostic Codes 5200, 5201, 5202, 5203 (2016).

3.  From July 26, 2016, the criteria for a disability rating in excess of 20 percent for a right shoulder disability have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.321, 4.40, 4.45, 4.71a, Diagnostic Codes 5200, 5201, 5202, 5203 (2016).

4.  From July 26, 2016, the criteria for a disability rating in excess of 20 percent for a left shoulder disability have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.321, 4.40, 4.45, 4.71a, Diagnostic Codes 5200, 5201, 5202, 5203 (2016).

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I.  Stegall Considerations

As noted in the Introduction, the case was remanded to the RO in May 2016 and November 2016 for additional development including additional treatment records and examinations that have been obtained.  The Board is satisfied that there has been substantial compliance with its remand orders. See Dyment v. West, 13 Vet. App. 141, 146-67 (1999); Stegall v. West, 11 Vet. App. 268, 271 (1999) (holding that the Board errs as a matter of law when it fails to ensure compliance with its remand orders).

II.  Duties to Notify and Assist

VA has a duty to notify for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2016).
The Veteran has appealed with respect to the propriety of the assigned ratings for DJD of the right and the left shoulders, for which the RO granted service connection in April 2012.  VA's General Counsel has held that no VCAA is required for such downstream issues.  VAOPGCPREC 8-2003, 69 Fed. Reg. 25180 (May 5, 2004).  In addition, the Court held that "the statutory scheme contemplates that once a decision awarding service connection, a disability, and an effective date has been made, § 5103(a) notice has served its purpose, and its application is no longer required because the claim has already been substantiated." Dingess v. Nicholson, 19 Vet. App. 473, 490 (2006).

VA has fulfilled its duty to assist in obtaining identified and available evidence needed to substantiate the Veteran's increased rating claims.  Service treatment records (STRS), VA treatment records, private medical records, and lay statements have been associated with the electronic claims file.

VA's duty to assist includes providing a medical examination or obtaining a medical opinion when necessary to decide a claim. See 38 U.S.C.A. § 5103A(d) (West 2014); 38 C.F.R. § 3,159(c)(4) (2016).  The Veteran was afforded VA examinations in November 2011, July 2016 and March 2017.

The Veteran has objected to the level of medical specialty of the VA examiners as inadequate in his case.  The competency of a VA examiner is presumed, absent a showing of some evidence to the contrary.  Hilbert v. West, 12 Vet. App. 145 (1999).  The Board finds that these examinations are adequate because they were performed by qualified examiners who conducted diagnostic testing, considered the Veteran's history of experiences in service and reported symptoms, and provided diagnoses and assessments.  The examinations were performed to clinically observe and evaluate the Veteran's reported symptoms and demonstrated level of function or dysfunction and do not require specialized training as would be necessary to determine an etiology or treatment regimen in a complex case.  Other than generalized statements, the Veteran has not provided specifics to demonstrate and a specialist was required to perform the clinical observations necessary to apply the rating criteria.  See Barr v. Nicholson, 12 Vet. App. 303, 311 (2007).

As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other ground, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006).

III.  Evidence 

The Veteran served as a diver, diving officer, and a ship first lieutenant in the U.S. Navy.  He retired at the rank of Chief Warrant Officer. His duties included deep sea diving.  The Veteran contends that his service-connected disability ratings for DJD of the right shoulder and the left shoulder are more severe than those contemplated by the current ratings.

The Veteran has submitted multiple documents regarding the rigorous hazards and physical demands of navy diving.  The evidence is noted briefly below.  However, the Veteran has been granted service connection for the bilateral shoulder disabilities arising from this service, and the issues on appeal are the nature, severity, and degree of functional loss during the period of the appeal. 

VA received the Veteran's claim for service connection for DJD of the right shoulder and the left shoulder in October 2011. 

In October 2011, VA received treatment records from the Veteran's private orthopedic and sports medicine provider.  A review of these treatment records reveals that the Veteran sought treatment for bilateral shoulder pain from a year prior to the filing of his claim through September 2011.  The Veteran, according to a provider physician, had a diagnostic history of DJD with rotator cuff anthropathy in his bilateral shoulders.  To alleviate the symptoms, the Veteran received steroid injections every 4 months.  The physician opined that the Veteran had a "reasonable range of motion" and showed no instability; however, he did have tenderness with overhead placement of his shoulders.  Specifically, the physician reported right shoulder forward flexion to approximately 160 degrees and 90 degrees of abduction.  The Veteran was found to be positive for Hawkins Impingement Test on the right shoulder.  Tenderness to palpation, the physician noted, was present over the anterior aspect of the right shoulder.  In addition to the diagnosis mention above, this physician provided impressions of right shoulder rotator cuff syndrome.

In November 2011, the Veteran was afforded a VA examination.  The examiner considered the Veteran's history and lay statements concerning his bilateral shoulders and the injections that he had been receiving.  The examiner reviewed the claims file and conducted a physical examination.  The examiner provided a diagnostic impression of DJD of the right and left shoulders.  The examiner noted that the Veteran reported that he began to experience shoulder problem in the 1990s.  The Veteran characterized his shoulder pain as stabbing and constant, located in the superior aspect of the shoulder and traveling down the lateral aspect of the deltoid.  Aggravating movements, according to the Veteran, included forward flexion, abduction, and posterior motion,  The Veteran also reported that he was taking tramadol for pain because it "took the edge off" of discomfort while performing strenuous activities, like yardwork.  The examiner noted that the Veteran was right-hand dominant.  She also noted that the Veteran reported flare-ups, described in his own words as, "I can function but I have pain that is present 24/7; [and] I can carry out a normal life but it is in continuous pain."

Upon physical examination, the examiner reported that right shoulder flexion was to 110 degrees and objective evidence of right shoulder flexion pain occurred at 90 degrees.  She reported that right should abduction ended at 100 degrees and objective evidence of right shoulder abduction pain began at 90 degrees.  As to the left shoulder, she reported flexion to 120 degrees and objective evidence of pain at 100 degrees.  Left shoulder abduction ended at 100 degrees and objective evidence of pain began at 90 degrees.

The Veteran was able to perform repetitive use testing with 3 repetitions.  Here, right shoulder flexion ended at 100 degrees and abduction ended at 100 degrees.  Left shoulder flexion ended at 110 degrees and abduction ended at 100 degrees.  The examiner opined that the Veteran had additional limitation in range of motion following repetitive-use testing; he also had functional loss and impairment of the shoulder and the arm.  This limitation and loss were discerned through less movement than normal, and pain at the right and the left.  

The Veteran had neither localized tenderness nor pain on palpation of the joints, soft tissue, biceps, or tendon of either shoulder.  There was no guarding.  Muscle strength testing revealed that the Veteran had 5/5 both in right and left shoulder abduction and forward flexion.  There were no indications of ankylosis.  The Veteran was positive for Hawkins Impingement Test on the right, but not the left.  Results for the empty can and external rotation/infraspinatus strength tests were negative.  The examiner was unable to perform a lift-off subscapularis test.  While there was a history of mechanical symptoms on the right, there was no history of recurrent subluxation of the glenohumeral joint.  The Crank apprehension and relocation test was positive on the right.  The Veteran neither had an AC joint condition nor any other impairment of the clavicle or scapula, indicating an absence of malunion, nonunion and dislocation. The examiner further noted an absence of tenderness of the AC joint, and the cross-body abduction test was negative.  The Veteran had never had a shoulder replacement and there were no scars related to his present diagnosis.  Furthermore, there were no findings as to remaining effective function of the extremities

As to diagnostic testing, the examiner reported that imaging studies were performed and findings of degenerative or traumatic arthritis were documented.  Specifically, the Veteran was afforded x-ray imaging of the bilateral shoulders in November 2011, which revealed neither fracture nor dislocation.  The right shoulder showed degenerative changes of both the glenohumeral joint space and the articular surface of the humerus in the AC joint space.  The left shoulder showed mild irregularity of the glenoid fossa of the glenohumeral joint space.  Also, the examiner opined that the AC joint space appeared normal.  Her overall impressions were that of degenerative changes to both shoulders that did not impact the Veteran's ability to work.

In November 2011, the Veteran submitted a letter in which he expounded upon a response he gave to the VA examiner.  He wrote that his shoulders affected his daily life in multiple ways, including daily personal hygiene; daily chores (which often remained undone); anything that requires a circular, vertical, or lateral motion; and swaying shoulders when he walked.

The examiner who conducted the November 2011 examination submitted an addendum opinion in the same month.  She noted that medical literature indicated that professional divers are at an increased risk of developing osteoarthritis which can lead to a later onset of DJD.  In light of the Veteran's x-ray results, she opined that it is least as likely as not that the Veteran's current DJD of the bilateral shoulders was caused by or related to his occupation of navy diver.

A June 2013 a private orthopedic electro-diagnostic medicine evaluation noted that the Veteran had problems with neck pain, bilateral shoulder pain, and opportunity burning pain and dysesthesias.  The evaluator reported that the Veteran had severe pain in his right shoulder and severe rotator cuff weakness upon examination.  Reduced range of motion, according to the evaluation, as well as muscle atrophy and positive impingement tests were present.

In August 2015, the Veteran submitted a letter.  In pertinent part, he critiqued the way in which VA represented his monthly compensation.  He complained that he had not been examined by a medical doctor with requisite knowledge, experience, or training in orthopedics.  He also provided excerpts from a diving manual and its associated appendices which discuss the issue of diving injuries and treatments.  The excerpted text was attributed to the Navy Experimental Diving Unit, Panama City, Florida, and dated September 2011.

In March 2016, the Veteran submitted an email exchange between an Admiral and an associate.  The content of the exchange, in pertinent part, concerned the weight of MK-5 diving suits and occurrence of arthritic changes in the neck and shoulders.

In March 2016, the Veteran's representative submitted a written brief presentation.  In pertinent part, the representative from The American Legion emphasized the coincidence of the Veteran's use of heavy diving equipment while in service and his bilateral shoulder disability.  Moreover, the representative recommended that VA submit the Veteran's examination reports for review by an "orthopedic or appropriate" physician for the purpose of [rendering] an opinion as to the initial severity of the Veteran's DJD.

In June 2016, the Veteran submitted a response to a VA letter, via VA FORM 21-4138.  The Veteran stated that he used an MK-5 Deep-Sea Diving Outfit for 17 years as a U.S. Navy Diver.  He described how the diving gear adhered to different parts of his anatomy.  He also stated that it put a great weight on his shoulders and strain on his musculoskeletal [system].  The Veteran contended that he should receive a 60 percent disability rating for each shoulder, insisting that both of his shoulders need to be replaced.  The Veteran appended a July 2007 VA "Medical Consequences of Diving" internal training memorandum to this response, addressed to all VA Regional Offices and Centers.  The memo's stated purpose "is to provide information on disabilities that may result from diving."  In pertinent part, this internal document describes the possible impacts of saturation diving and bounce diving.  Amongst the many possible maladies attributed to diving are: caisson disease, the bends, spinal cord damage, central nervous system damage, thrombus formation, labyrinthine DCS, visual disturbances, hypovolemic shock, arterial gas emboli, neurological disorders, chronic skin conditions, hearing loss, vertigo, tinnitus, nitrogen narcosis, hearing effects, cognitive effects, alteration of liver enzymes, pulmonary effects, hypothermia, thermal injury, PTSD, and delayed arthritis.

In July 2016, the Veteran was afforded a VA examination with a VA physician.  The examiner considered the Veteran's history and lay statements concerning his bilateral shoulders.  As was the case in 2011, the examiner noted right-hand dominance and that the Veteran reported flare-ups, or, in his own words-"flare-ups with overuse."  The Veteran reported that he could not lift objects over 15 pounds, and could not lift anything above his head.

Upon physical examination, range of movement was abnormal for the right and left shoulders.  For the right, flexion was to 60 degrees; abduction was to 60 degrees; external rotation was to 45 degrees; and internal rotation was to 45 degrees.  Functional loss to the right shoulder was noted as pain with motion-flexion, abduction, external rotation, and internal rotation.  There was pain with weight bearing and objective evidence of localized tenderness or pain on palpation of the joint or associated soft tissue.  The examiner underscored tenderness on palpation at the tip of the shoulder.  There was no evidence of crepitus.
As to the left shoulder, the examiner noted abnormal range of motion.  Flexion was to 65 degrees; abduction was to 65 degrees; external rotation was to 50 degrees; and internal rotation was to 50 degrees.  Functional loss to the left shoulder was noted as pain with motion-flexion, abduction, external rotation, and internal rotation.  There was pain with weight bearing and objective evidence of localized tenderness or pain on palpation of the joint or associated soft tissue.  As the case with the right shoulder, the examiner underscored tenderness on palpation at the tip of the shoulder.  There was no evidence of crepitus.

The Veteran was able to perform repetitive use testing for at least 3 repetitions.  Additional functional loss was noted herein, marked by pain, fatigue, weakness, and lack of endurance.  For the right shoulder, flexion was to 55 degrees; abduction was to 55 degrees; external rotation was to 45 degrees; and internal rotation was to 45 degrees.  The same functional losses were noted for the left shoulder here.  Left flexion was to 60 degrees; abduction was to 60 degrees; external rotation was to 50 degrees; and internal rotation was to 50 degrees.

The Veteran was examined immediately after repetitive use over time.  The right shoulder's functional ability was limited here by pain, fatigue, weakness, and lack of endurance.  Right flexion was to 55 degrees; abduction was to 55 degrees; external rotation was to 40 degrees; and internal rotation was to 40 degrees.  The same functional losses were noted for the left shoulder here.  Left flexion was to 60 degrees; abduction was to 60 degrees, external rotation was to 50 degrees; and internal rotation was to 50 degrees.

The examination was not conducted during a flare-up of the right or left shoulders.  The examiner found no deformity, mal-alignment, drainage, tenderness, edema, redness, heat, spasms, painful motion, abnormal movement, guarding of movement, fatigue, lack of endurance, weakness, atrophy, incoordination, instability, or pertinent abnormal weight bearing, except as noted to the 15 pounds noted earlier.  The examiner stated that the DeLuca and Mitchell factors were embedded in the examination.  No other additional factors, according to the examiner, were present.  Right and left shoulder muscle strength testing was 4/5 for forward flexion and 4/5 for abduction.  The examiner opined that there was no muscle atrophy or ankylosis of either shoulder.  The right and left shoulders were positive for the Hawkins Impingement Test, the empty can test, and the external rotation/infraspinatus strength test.  The examiner was unable to perform a lift-off subscapularis test for either the right or left shoulder.  There was no shoulder instability.  The examiner suspected that there might be a clavicle, scapula, AC joint, or sternoclavicular joint condition.  Specifically, the Veteran's right AC osteoarthritis caused impairment here.  In this vein, the examiner reported tenderness on palpation of the AC joint.  The results of the cross-body adduction test were positive.  The examiner reported neither an impairment of the humerus nor scars.  The Veteran used an assistive customized long stick on a regular basis; however, the examiner noted that this was due to his spine and knee and not his shoulders.  Occupational impacts were indicated due to the Veteran's limited range of motion, inability to lift more than 15 pounds, and inability to lift overhead.

As impressions, the examiner reported that the service-connected right and left shoulder DJD created mild functional limitations.  The current impression was rotator cuff tendonitis, right and left shoulder impingement.  While he noted moderate functional limitation on the right, he noted mild functional limitation on the left.  The examiner opined that this service-connected disability was unchanged since the November 2011 VA examination.  The examiner elaborated by noting that the current diagnosis concerning the right and left rotator cuffs is less likely than not related to the service-connected right shoulder disability.  While DJD, according to the examiner, is a degenerative process involving the boney joint spaces, rotator cuff tendonitis is inflammation of rotator cuff muscles caused by a possible partial or complete rotator cuff tear, and shoulder impingement is a clinical sign commonly caused by rotator cuff injury or labral injury.  In short the right and left rotator cuff conditions were not caused or related to the right and left DJD.

In July 2016, the Veteran submitted two pages from the U.S. Navy Diving Manual and two photographs.  The pages described the assembly of a diving suit and commented specifically about the MK-5 Deep-Sea helium and oxygen mix. The first photograph was of an unidentified man in a diving suit and the second photograph depicted people on the deck of a sea craft.  The Veteran labelled one of the figures as "me."

In March 2017, the Veteran was afforded a VA examination with a VA physician.  The examiner considered the Veteran's history and lay statements concerning his bilateral shoulders and the injections that he had been receiving.  The examiner reviewed the claims file and conducted a physical examination.  The examiner provided initial impressions of right and left DJD as well as right and left glenohumeral joint osteoarthritis.  The examiner provided an extensive narrative account of the Veteran's past examinations and their respective medical findings. 

Upon physical examination, abnormal range of motion in the right shoulder was found.  Flexion was to 60 degrees; abduction was to 55 degrees; external rotation was to 45 degrees; and internal rotation was to 45 degrees.  She indicated that this contributed to functional loss.  The examiner opined that with weight bearing of two medical textbooks presented "slight difficulty" for the Veteran.  However, she did not indicate that he had any pain with weight bearing.  There was objective evidence of localized tenderness or pain, namely mild tenderness along the anterior mid-glenohumeral joint region.  There was no evidence of crepitus.  The Veteran could perform repetitive use testing with at least 3 repetitions and there was no functional loss of use.

The left shoulder range of motion was abnormal.  Flexion was to 60 degrees; abduction was to 55 degrees; external rotation was to 45 degrees; and internal rotation was to 50 degrees.  Range of motion pain, according to the examiner, coincided with flexion, abduction, external rotation, and internal rotation.  The examiner's other findings mirrored those of the right shoulder.

As to repeated use over time, the Veteran was not examined immediately after repetitive use over time.  Pain, weakness, fatigability or incoordination did not significantly limit functional ability for either right or left shoulders.  The examiner indicated that flare-ups were inapplicable.  She also opined that there were no additional factors contributing to either the right or left shoulder disability.  Right and left shoulder muscle strength was 5/5 in forward flexion and 5/5 in abduction, evincing neither reduction in muscle strength nor muscle atrophy.  Ankylosis was absent in both shoulders.

As to the rotator cuff condition, the examiner indicated the Hawkins Impingement Test, empty can test, external rotation/infraspinatus strength test were all positive for the right shoulder.  She could not perform the lift-off subscapularis test.  The left shoulder provided the same results, with the exception of a negative finding as to the external rotation/infraspinatus strength test.

There was no shoulder instability and she suspected no clavicle, scapula, AC joint, or sternoclavicular joint condition.  The examiner opined that there were no remarkable conditions or impairments of the humerus-nonunion, malunion, or deformity.  No scars were mentioned.  Also, the examiner noted that the Veteran did not use an assistive device.

As to diagnostic testing, the examiner reviewed the x-ray imaging from November 2011.  She provided an impression of degenerative changes of both shoulders, reflecting the finding of the November 2011 VA examination.  In terms of Correia findings, passive range of motion, according to the examiner, could not be performed without risk of injury or perceived injury.  Weight bearing findings were made early in the examinations with two medical textbooks.  The examiner concluded by opining that the Veteran had right and left shoulder DJD which presented mild functional limitation. 

IV.  Analysis

As the grant of a staged increased rating of 20 percent is not a full grant of the benefits sought on appeal, and since the Veteran did not withdraw his claim of entitlement for a higher rating, the matter remains before the Board before appellate review. See AB v. Brown, 6 Vet. App. 35, 38 (1993).

Disability evaluations are determined by the application of a schedule of ratings that is based on average impairment of earning capacity. 38 U.S.C.A. § 1155 (West 2014).  Percentage evaluations are determined by comparing the manifestations of a particular disorder with the requirements contained in the VA's Schedule for Rating Disabilities. 38 C.F.R. Part 4 (2016).  The percentage ratings contained in the Rating Schedule represent, as far as can practically be determined, the average impairment in earning capacity resulting from such disease or injury and their residual conditions in civilian occupations. 38 U.S.C.A. § 1155 (West 2014); 
38 C.F.R. § 4.1 (2016).  VA has a duty to acknowledge and consider all regulations which are potentially applicable through the assertions and issues raised in the record, and to explain the reasons and bases for its conclusion. 
See Schafrath v. Derwinski, 1 Vet. App. 589 (1991).

Disability of the musculoskeletal system is primarily the inability, due to damage or infection in parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. 
38 C.F.R. § 4.40 (2016).  Functional loss may be due to pain, supported by adequate pathology and evidenced by the visible behavior in undertaking the motion. Id.; 
see also 38 C.F.R. § 4.59 (discussing facial expressions such as wincing, muscle spasm, crepitation, etc.).  Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. Id.  Excess fatigability and incoordination should be taken into account in addition to more movement than normal, less movement than normal, and weakened movement. 38 C.F.R. § 4.45 (2016).

The intent of the schedule is to recognize painful motion with joint or periarticular pathology as productive of disability.   It is the intention to recognize actually painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. See 38 C.F.R. § 4.59 (2016).  Although the first sentence of 38 C.F.R. § 4.59 refers only to arthritis, the regulation applies to joint conditions other than arthritis. Burton v. Shinseki, 25 Vet. App. 1, 3-5 (2011).

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. DeLuca v. Brown, 
8 Vet. App. 202 (1995).

Although pain may cause functional loss, pain itself does not constitute functional loss.  Rather, pain must affect some aspect of "the normal working movements of the body," such as "excursion, strength, speed, coordination, and endurance," in order to constitute functional loss. Mitchell v. Shinseki, 25 Vet. App. 32, 38-43 (2011) (quoting 38 C.F.R. § 4.40 (2016)).

The final sentence of 38 C.F.R. § 4.59 requires that VA examinations include joint testing for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint. Correia v. McDonald, 28 Vet. App. 158 (2016).

The plain language of § 4.59 indicates that the regulation is not limited to the evaluation of musculoskeletal disabilities under diagnostic codes predicated on range of motion measurements. Southall-Norman v. McDonald, 28 Vet. App. 346, 352 (2016).  The Court held that § 4.59 is applicable to the evaluation of musculoskeletal disabilities involving actually painful, unstable, or malaligned joints or periarticular regions, regardless of whether the diagnostic code under which the disability is being evaluated is predicated on range of motion measurements. Id.

Where 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 will be assigned. 
 38 C.F.R. § 4.7 (2016).

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.  If the limitation of motion of the joint involved is noncompensable, a rating of 10 percent is applicable.  Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. In the absence of limitation of motion, but with x-ray evidence of involvement of two or more major joints or two or more minor joint groups and occasional incapacitating exacerbations, a 20 percent evaluation is assigned. With x-ray evidence of involvement of two or more major joints or two or more minor joint groups, a 10 percent rating is assigned. 38 C.F.R. § 4.71a (2016), Diagnostic Code 5003 (2016).

With any form of arthritis, painful motion is an important factor.  It is the intent of the rating schedule to recognize actually painful, unstable or mal-aligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59 (2016).  A compensable evaluation under Diagnostic Code 5003 and 38 C.F.R. § 4.59 (for painful motion) is in order where arthritis is established by x-ray findings and no compensable limitation of motion of the affected joint is demonstrated. See Lichtenfels v. Derwinski, 1 Vet. App. 484, 488 (1991); see also VAOPCGPREC 9-98 (Aug. 14, 1998).  Where a compensable limitation of motion is demonstrated in the joint, the Lichtenfels rule is not applicable.

The Board first notes that it has considered the lay evidence submitted by the Veteran and his representation concerning the risks inherent to deep-sea diving in a MK-5 Deep-Sea Diving Outfit; however, the Board finds that this evidence does not provide specific medical or diagnostic findings that bear directly upon the Veteran's right and left shoulder function  during the periods under review.  In this light, the Board finds that the Veteran and his representative have not raised any other applicable issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record).

Period from October 19, 2011 to July 26, 2016

Findings from the VA examination reports, discussed above, indicate that the Veteran is right-handed.  Limitation of motion of the dominant arm at the shoulder warrants a 20 percent rating if motion is to the shoulder level, 30 percent if to midway between the side and the shoulder, and a 40 percent rating if to 25 degrees from the side. 38 C.F.R. § 4.71a, Diagnostic Code 5201 (2016).  The normal range of motion of the shoulder is from zero degrees at the side to 180 degrees overhead in both forward elevation and abduction. Normal internal and external rotation is from zero to 90 degrees. 38 C.F.R. § 4.71a, Plate I (2016).

As there is no evidence of malunion, nonunion, loose motion, dislocation, ankylosis of the shoulder, or impairment of the humerus, the Diagnostic Codes pertaining to such impairments are not applicable to either the right or the left shoulder. 38 C.F.R. § 4.71a, Diagnostic Codes 5200, 5202, 5203 (2016).

In September 2011, as stated above, the Veteran's private orthopedic provider noted that right shoulder flexion was to approximately 160 degrees and abduction was to 90 degrees.  He provided no specific findings as to left shoulder range of motion.  Furthermore, as stated above, the November 2011 VA examiner noted that right shoulder flexion was to 100 degrees and abduction was to 100 degrees; left shoulder flexion was to 110 degrees and abduction was to 100 degrees  As such these results do not warrant a compensable rating under 38 C.F.R. § 4.71a, Diagnostic Code 5201 (2016).

In April 2012, the RO granted service connection for DJD of the right and left shoulders and assigned a 10 percent disability rating, effective October 19, 2011, pursuant to 38 C.F.R. § 4.59 (2006).  As discussed above, degenerative arthritis (DJD) established by x-ray findings allows for a compensable rating for an effected joint when limitation of motion is noncompensable. See Lichtenfels, supra; see also VAOPCGPREC 9-98, supra.

For the Veteran to receive a higher disability rating under Diagnostic Code 5003, there must be x-ray evidence of involvement of two or more major joint groups or more minor groups with occasional incapacitating exacerbations.  For the purposes of rating disability for arthritis, the right shoulder is a major joint.  As discussed above, the November 2011 x-ray findings did not meet this criteria.

The Board notes that neither the September 2011 private provider nor the November 2011 VA examiner reported functional loss due to flare-ups of pain, fatigability, incoordination, pain on movement, and weakness or that the Veteran's pain affected some aspect of "the normal working movements of the body." See DeLuca, supra; Mitchell supra.

In sum, the medical evidence of record from this period does not indicate that the Veteran's DJD of either the Veteran's right shoulder or left shoulder involved two major joints or more minor joint groups, with occasional incapacitating exacerbations.  Furthermore, x-ray findings do not show that the Veteran's DJD of either the Veteran's right shoulder or left shoulder involved two major joints or more minor joint groups.

Period from July 26, 2016 

As above, the evidence of record does not indicate that 38 C.F.R. § 4.71a, Diagnostic Codes 5200, 5202, 5203 (2016) applies here.

As stated more fully above, the July 2016 VA examiner noted the right shoulder flexion was to 60 degrees and abduction was to 60 degrees and left shoulder flexion was to 65 degrees and abduction was to 65 degrees.  The March 2017 VA examiner noted that right shoulder flexion was to 60 degrees and abduction was to 55 degrees and left shoulder flexion was to 60 degrees and abduction was to 55 degrees.

In August 2016, the RO assigned a disability rating of 20 percent for the right shoulder and a disability rating of 20 percent for the left shoulder, both effective July 26, 2016.  The RO based these ratings upon limited motion of the right arm and the left arm at shoulder level under 38 C.F.R. § 4.71a, Diagnostic Code 5201 (2016).

For the Veteran to receive a higher disability rating under Diagnostic Code 5201, there must be a limited motion of the right arm and the left arm midway between the side and the shoulder level, respectively. Id.

As to functional loss due to pain, fatigue, weakness, or lack of endurance, the July 2016 and March 2017 VA examiners did note that the Veteran experienced pain with motion of the right and the left shoulders.  Furthermore, they noted that there was additional loss of motion with repetitive motion. 38 C.F.R. §§ 4.40, 4.45 (2016); see also De Luca, supra; Mitchell, supra.  However, even considering some unquantified additional limitation of motion after exertion or during a flare up, for the Veteran to receive a higher disability here, there must be a limitation of motion to 25 degrees, from either the side of the right shoulder or the side of the left shoulder. See 38 C.F.R. § 4.45 (2016).  The Veteran has not reported limitations approaching this level even after exertion or during flare-ups.  The Veteran is retired and has reported some difficulty with certain daily and household activities that require overhead movements or exertions such as yard work and washing windows.  However, he did not report that he was precluded from activities such as daily hygiene, dressing, driving an automobile, shopping, or other activities of daily living.  Although he likely is precluded from professional diving or demanding forms of manual labor, the shoulder dysfunction would not preclude administrative functions such as use of a keyboard or touch screen, answering a telephone, or handling documents.  All examiners also assessed the overall degree of functional limitation as mild. 

To the extent that the examinations did not fully comply with the requirements of 38 C.F.R. § 4.59, the Board assigns probative weight to the explanation noted above  by the 2017 examiner that certain tests were not appropriate in this case.  

In sum, the medical evidence of record from this period does not indicate that either the Veteran's right arm or left arm had limited motion midway between side and shoulder level.  Furthermore the medical evidence of record does not indicate a limitation of motion to 25 degrees from either the side of the right shoulder or the side of the left shoulder.  

Therefore, the Board finds that the preponderance of evidence is against assigning a disability rating in excess of 10 percent for DJD of either the right or the left shoulder from October 19, 2011 to July 26, 2016 and a disability rating in excess of 20 percent from July 26, 2016. See 38 C.F.R. § 4.71(a), Diagnostic Code (2016); see also 38 U.S.C.A. § 5107 (West 2014); Gilbert v. Derwinski, 1 Vet App. 49, 54 (1990) ("[A] veteran need only demonstrate that there is an 'approximate balance of positive and negative evidence' in order to prevail.").

Neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record.  See Doucette v. Shulkin, 28 Vet. App.  366 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record).

As the preponderance of the evidence is against this claim, the "benefit of the doubt" rule is not for application, and the Board must deny the claim.  See 
38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990).



	(CONTINUED ON NEXT PAGE)
ORDER

Entitlement to an initial disability rating in excess of 10 percent for degenerative joint disease (DJD) to include rotator cuff tendonitis and impingement of the right shoulder prior to July 26, 2016 and in excess of 20 percent thereafter is denied.

Entitlement to an initial disability rating in excess of 10 percent for DJD to include rotator cuff tendonitis and impingement of the left shoulder prior to July 26, 2016 and in excess of 20 percent thereafter is denied




____________________________________________
J. W. FRANCIS
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs

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