Citation Nr: 18160327
Decision Date: 12/26/18	Archive Date: 12/26/18

DOCKET NO. 08-07 567
DATE:	December 26, 2018
ORDER
Entitlement to an initial rating of 20 percent, but no higher, for left rotator cuff tear status post Mumford acromioplasty with osteoarthritis prior to April 10, 2013, is granted.    
Entitlement to a rating in excess of 20 percent for left rotator cuff tear status post Mumford acromioplasty with osteoarthritis beginning April 10, 2013, is denied.  
FINDING OF FACT
Throughout the period on appeal, the Veteran’s left shoulder rotator cuff tear status post Mumford acromioplasty with osteoarthritis disability (nondominant arm) has been characterized by motion limited at shoulder level and pain on motion.   
CONCLUSIONS OF LAW
1. The criteria for a disability rating of 20 percent, but no higher, for the Veteran’s left shoulder rotator cuff tear status post Mumford acromioplasty with osteoarthritis disability prior to April 10, 2013, have been met. 38 U.S.C. § 1155 (2012); 38 C.F.R §§ 4.40, 4.45, 4.71a, Diagnostic Codes 5200-5203 (2018).
2. The criteria for a rating in excess of 20 percent for the Veteran’s left shoulder rotator cuff tear status post Mumford acromioplasty with osteoarthritis disability beginning April 10, 2013, have not been met. 38 U.S.C. § 1155 (2012); 38 C.F.R §§ 4.40, 4.45, 4.71a, Diagnostic Codes 5200-5203 (2018).
REASONS AND BASES FOR FINDING AND CONCLUSIONS
The Veteran had active duty service from January 1955 to January 1959.    
This case comes before the Board of Veterans’ Appeals (Board) on appeal from an August 2010 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO).  
The Veteran and his spouse testified at a Board hearing before the undersigned Veterans Law Judge in October 2016; a transcript of that hearing is associated with the claims file.  
This case was previously before the Board in March 2017 and January 2018, at which times the issue currently on appeal was remanded for additional development.  The case has now been returned to the Board for further appellate action.  
During the pendency of the appeal, the Agency of Original Jurisdiction (AOJ) awarded the Veteran a 10 percent rating for his left shoulder disability, effective July 17, 2004, in the February 2013 statement of the case.  Additionally, in an April 2014 rating decision, the AOJ increased the Veteran’s left shoulder disability to 20 percent disabling, effective April 10, 2013.  The Board has therefore recharacterized that issue on appeal in order to reflect those awards of benefits.  
 
Increased Rating Claim
Left Shoulder
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).
Disabilities of the shoulder and arm are rated under 38 C.F.R. § 4.71a, Diagnostic Codes 5200 through 5203 and include ratings based on limitation of motion. For rating purposes, a distinction is made between major (dominant) and minor musculoskeletal groups.  Handedness for the purpose of a dominant rating will be determined by the evidence of record, or by testing on VA examination. Only one hand shall be considered dominant.  The injured hand, or the most severely injured hand, of an ambidextrous individual will be considered the dominant hand for rating purposes. See 38 C.F.R. § 4.69.  Here, as the evidence shows that the Veteran is right-hand dominant; his left shoulder is his minor shoulder for rating purposes.
Under Diagnostic Code 5200, which pertains to ankylosis of the scapulohumeral articulation, a 20 percent rating is warranted for favorable ankylosis with abduction to 60 degrees, a 30 percent rating is warranted for ankylosis which is intermediate between favorable and unfavorable, and a 40 percent rating is warranted where there is unfavorable ankylosis with abduction limited to 25 degrees from the side.
Under Diagnostic Code 5201, minor shoulder limitation of motion of the arm to shoulder level or to midway between side and shoulder level warrants a 20 percent rating. Limitation of motion of the arm to 25 degrees or less from the side warrants a 30 percent rating. See 38 C.F.R. § 4.71a, Plate I.  In assessing the severity of limitation of shoulder motion, it is necessary to consider both forward flexion and abduction. See Mariano v. Principi, 17 Vet. App. 305, 317-18 (2003).  However, the plain language of 38 C.F.R. § 4.71a confirms that a veteran is only entitled to a single disability rating under Diagnostic Code 5201 for each arm that suffers from limited motion of the shoulder joint. Yonek v. Shinseki, 722 F.3d 1355, 1358 (Fed. Cir. 2013). 
Diagnostic Code 5201 does not provide separate ratings for limitation of motion in the flexion and abduction planes, but rather is addressed generically to “limitation of motion of” the arm.  The plain meaning, therefore, is that any “limitation of motion of” a single arm at the shoulder joint constitutes a single disability, regardless of the number of planes in which the arm’s motion is limited. Yonek, 772 F.3d at 1359.  Additionally, under Plate I of 38 C.F.R. § 4.71a, normal range of motion of the shoulder is forward elevation (flexion) and abduction to 180 degrees, and internal and external rotation to 90 degrees.
Diagnostic Code 5202 provides ratings for other impairment of the humerus. Recurrent dislocations of the humerus at the scapulohumeral joint are rated as 20 percent for the minor shoulder.  Fibrous union of the humerus is rated as 40 percent for the minor shoulder.  Nonunion of humerus (false flail joint) is rated as 50 percent for the minor shoulder.  Loss of head of the humerus (flail shoulder) is rated as 70 percent for the minor shoulder. 
Under DC 5203 for impairment of the clavicle or scapula, a 10 percent rating is assigned for malunion or for nonunion without loose movement.  When there is nonunion with loose movement, a 20 percent rating is assigned. A 20 percent rating is also assigned when there is dislocation of the clavicle or scapula.
The Veteran asserts that he is entitled to higher ratings for his left rotator cuff tear status post Mumford acromioplasty with osteoarthritis disability, as his symptoms are more severe than those contemplated by the currently assigned ratings.  
In an April 2004 private treatment note, the Veteran’s therapist reported that the Veteran had received 3 cortisone injection in his left shoulder in the prior 4-month period.  On active range of motion testing, the Veteran demonstrated left shoulder elevation to 170 degrees; abduction to 165 degrees; and external rotation to 60 degrees.  On passive range of motion testing, the Veteran demonstrated elevation to 175 degrees; abduction to 175 degrees; internal rotation to 50 degrees; and external rotation to 60 degrees.  There was no evidence of tenderness to palpation.  The therapist reported that the Veteran’s left shoulder was productive of decreased endurance, weakness and pain on motion.  
In a January 2006 private treatment note, the Veteran reported that he experienced difficulty putting his hand behind his back, discomfort lifting and pulling, as well as sleep impairment from left shoulder pain.  On range of motion testing, the Veteran demonstrated left shoulder flexion to 162 degrees; abduction to 160 degrees; and external rotation to 80 degrees.  
A December 2009 private treatment note reveals that the Veteran experienced left shoulder weakness and crepitus.   On range of motion testing, the Veteran demonstrated left shoulder flexion to 145 degrees; abduction to 145 degrees; and internal rotation to 50 degrees.  
At a September 2011 VA examination, the Veteran reported that his left shoulder was productive of pain, weakness, stiffness, and lack of endurance.  He reported that his left shoulder was not productive of swelling, heat, redness, giving way, locking, fatigability, deformity, tenderness, drainage, effusion, subluxation or dislocation.  The Veteran indicated that he experienced flare-ups approximately 4 times per day, which lasted for approximately an hour.  He indicated that flare-ups were often precipitated by physical activity and alleviated by rest and/or cortisone injections.  The Veteran reported that flare-ups were productive of weakness, stiffness, pain and limitation of motion.  The examiner reported that the Veteran received cortisone injections twice per year in addition to physical therapy.  The Veteran also reported that he used heat, ice, and massages to treat his left shoulder.  On examination, there was evidence of tenderness, but no evidence of edema, instability, abnormal movement, effusion, weakness, redness, heat, deformity, guarding of movement, malalignment, drainage, subluxation, or ankylosis.  On range of motion testing, the Veteran demonstrated flexion to 120 degrees; abduction to 160 degrees; external rotation to 90 degrees; and internal rotation to 90 degrees.  The examiner reported that joint function was not additionally limited by pain, fatigue, weakness, lack of endurance or incoordination following repetitive use.  With regard to functional impact, the Veteran reported decreased ability lifting his arm above his head and difficulty sleeping on his left side.
September 2011 and November 2011 private treatment notes reveal left shoulder range of motion testing results.  In September 2011, the Veteran demonstrated left shoulder elevation to 125 degrees; abduction to 110 degrees; and external rotation to 50 degrees.  In November 2011, the Veteran demonstrated left shoulder flexion to 130 degrees; abduction to 105 degrees; internal rotation to 48 degrees; and external rotation to 60 degrees.  The treating clinician also noted that there was evidence of crepitus.  
At an August 2013 VA examination, the Veteran reported that his left shoulder was productive of constant pain in all physical positions of motion during flare-ups.  On range of motion testing, the Veteran demonstrated left shoulder flexion to 110 degrees, with evidence of painful motion at 90 degrees; abduction to 90 degrees, with evidence of painful motion at 65 degrees; internal rotation to 80 degrees, with painful motion at 60 degrees; and external rotation at 80 degrees, with evidence of pain at 60 degrees.  The examiner reported that the Veteran did not experience additional functional loss after repetitive-use testing.  The examiner also reported that there were no contributing factors of weakness, fatigability, incoordination, or pain during flare-ups or repeated use over time that could additionally limit the Veteran’s functional ability of the shoulder joint.  With regard to function loss, the examiner reported that the Veteran experienced more movement than normal, excess fatigability, incoordination, and pain on movement.  There was evidence of guarding, as well as localized tenderness and pain on palpation of the joint.  Muscle strength testing was normal and there was no evidence of ankylosis.  There was evidence of crepitus, but no evidence of recurrent dislocation.  There was no evidence of an AC joint condition or any other impairment of the clavicle or scapula, and cross-body adduction testing was negative.  With regard to functional impact, the examiner reported that the Veteran’s left shoulder disability impacted his ability to work in that the Veteran was restricted in performing frequent pushing and pulling, as well as overhead reaching.  
At a March 2017 VA examination, the Veteran reported that he experienced difficulty reaching, pulling, and performing strenuous activities for prolonged periods of time.  On range of motion testing, the Veteran demonstrated left shoulder flexion to 100 degrees; abduction to 90 degrees; internal rotation to 55 degrees; and external rotation to 50 degrees.  The Veteran experienced pain on flexion, external rotation and abduction, as well as with passive range of motion testing, weight bearing and non-weight bearing.  There was evidence of crepitus, but no evidence of localized tenderness or pain on palpation of the joint.  The examiner reported that pain and weakness significantly limited the Veteran’s functional ability with repeated use over a period of time.  Range of motion estimates for flare-ups were the same as usual range of motion.  The examiner reported that the Veteran experienced less movement than normal and weakened movement as a result of his left shoulder disability.  The Veteran had reduced muscle strength but there was no evidence of muscle atrophy or ankylosis.  There was no evidence of left shoulder instability or dislocation.  There was no evidence of nonunion, loss of head, or fibrous union of the humerus.  The Veteran did not use any devices for assistance with locomotion.  With regard to functional impairment, the examiner reported that the Veteran experienced difficulties pulling, lifting or carrying heavy objects, and that he was unable to perform strenuous activities for prolonged periods of time.  
During an August 2017 VA examination, the Veteran complained of left shoulder pain with prolonged overhead activities and heavy lifting.  On range of motion testing, the Veteran demonstrated flexion to 90 degrees; abduction to 50 degrees; internal rotation to 70 degrees; and external rotation to 20 degrees.  There was evidence of crepitus, as well as moderate pain and tenderness on palpation to the left shoulder AC joint and rotator cuff.  Following repetitive-use testing, the Veteran demonstrated left shoulder flexion to 90 degrees; abduction to 50 degrees; internal rotation to 70 degrees; and external rotation to 20 degrees.  The examiner reported that pain and lack of endurance significantly limited the Veteran’s functional ability with repeated use over time.  The examiner also reported that pain and lack of endurance limited the Veteran’s functional ability during flare-ups.   The Veteran demonstrated the same range of motion during flare-ups as was demonstrated after repetitive-use testing.  There was no evidence of ankylosis.  There was no evidence of marked deformity, atrophy, dislocation, instability, labral pathology, flail shoulder, nonunion, or fibrous union of the humerus.  The Veteran reported that he did not use any assistive devices for locomotion.  
The Board notes that, throughout the period on appeal, the record is replete with treatment notes indicating that the Veteran experienced shoulder pain, and received numerous cortisone injections to assist with the pain.  Notably, various records indicate that the Veteran experienced increased pain when he lifted his arms above his head.  
Upon review of the record, the Board finds that the Veteran is entitled to a rating of 20 percent, but no higher, for his left shoulder rotator cuff tear status post Mumford acromioplasty with osteoarthritis disability throughout the entire period on appeal.  In this regard, the evidence demonstrates that the Veteran consistently reported that he had difficulty raising his arms above his shoulders without pain, which he indicated had been consistent during the period on appeal.  The Board notes that the Veteran is competent to report symptoms such as his ability to raise his arms and accords his statements significant probative weight. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007).  The Board acknowledges that the range of motion testing of record prior to April 10, 2013 does not show abduction to 90 degrees or less; however, the evidence prior to that time does not account for the Veteran’s range of motion during flare-ups and, as noted above, the Veteran has described additional limitations of motion during flare-ups commensurate with those contemplated by a 20 percent disability rating.  
The Board finds that a rating in excess of 20 percent is not warranted, as the evidence does not indicate, and the Veteran does not contend, that his left arm movement was functionally limited to midway between side and shoulder level (45 degrees).  The Board has also considered the Veteran’s reports of pain; however, the Veteran’s reported symptoms are not sufficient to support the assignment of higher rating under Diagnostic Code 5201.  The Veteran has stated that he has pain, but has not indicated that his range of motion was limited to midway between side and shoulder level as a result of that pain. 
All potentially applicable Diagnostic Codes have been considered. See Schafrath v. Derwinski, 1 Vet. App. 589, 593 (1991).   To that end, the Board finds that Diagnostic Codes 5200, 5202, and 5203 are inapplicable. There is no evidence of ankylosis of the Veteran’s left shoulder as required under Diagnostic Code 5200.  Diagnostic Code 5202 is inapplicable, as there is no evidence of true recurrent dislocation of the humerus at the scapulohumeral joint. Indeed, VA examinations during the period on appeal note no history or objective evidence of dislocation.  Moreover, there is no evidence showing fibrous union of the humerus, or nonunion or loss of head of the humerus.  Further, Diagnostic Code 5203 would not provide a higher rating, as there is no evidence that the Veteran experienced dislocation, nonunion, or malunion of the clavicle or scapula.  Thus, the Board finds that a higher rating is not warranted for the Veteran’s left rotator cuff tear status post Mumford acromioplasty with osteoarthritis disability under any other applicable Diagnostic Codes.  
(Continued on the next page)
 
In light of the above, the Board finds the preponderance of the evidence is against a rating in excess of 20 percent for the Veteran’s left rotator cuff tear status post Mumford acromioplasty with osteoarthritis.  See 38 C.F.R. § 4.71a, Diagnostic Codes 5200-5203.  38 U.S.C. § 5107 (b) (2012); Gilbert v. Derwinski, 1 Vet. App. 49 (1990).
 
M. HYLAND
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	C. O’Donnell, Associate Counsel 

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