SHOULDER IMPAIRMENT OF

BRADLEY W. HENNINGS · 2018 · Case ID: 1812855

MIXED

Summary

The veteran, who served from April 2011 to June 2012, appeals the denial of an increased disability rating for his right shoulder condition. The appeal concerns two periods: prior to December 30, 2015, and after October 1, 2013. The Board reviewed medical evidence from July 2012 through May 2016, including VA examinations and the veteran's testimony. For the period prior to December 30, 2015, the Board found the evidence did not support a rating higher than 20 percent for the right shoulder, citing limitations in range of motion and pain that did not meet the criteria for higher evaluations under Diagnostic Code 5201. For the period after December 30, 2015, the Board granted a 30 percent rating for the right shoulder, acknowledging increased limitation and pain, but again found the evidence insufficient for a higher rating under DC 5201. Additionally, from December 30, 2015, the Board granted a separate 20 percent rating for clavicle dislocation, citing recurrent dislocation and tenderness. The Board considered functional loss due to pain, fatigability, and weakness but concluded these were encompassed within the granted ratings and did not meet the criteria for higher evaluations based on limited motion.

Rationale

Evidence did not meet criteria for rating higher than 20% prior to 12/30/2015.; Evidence did not meet criteria for rating higher than 30% after 12/30/2015.; Functional loss due to pain, fatigability, weakness not sufficient for higher rating.

Special Benefit

NO SPECIAL BENEFIT

Diagnostic Code

5201

Docket No.

15-42 396

Full Decision Text

Citation Nr: 1812855
Decision Date: 03/05/18 Archive Date: 03/13/18

DOCKET NO. 15-42 396 ) DATE
)
)

On appeal from the
Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina

THE ISSUE

Entitlement to an initial rating in excess of 10 percent prior to October 31, 2012, and in excess of 10 percent after October 1, 2013, for a right shoulder disability.

REPRESENTATION

Appellant represented by: Disabled American Veterans

WITNESSES AT HEARING ON APPEAL

Appellant and his wife

ATTORNEY FOR THE BOARD

C. Kass, Associate Counsel

INTRODUCTION

The Veteran served on active duty from April 2011 to June 2012.

This matter comes before the Board of Veterans' Appeals (Board) from a November 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee. Subsequently, the appeal was transferred to the Winston-Salem, North Carolina RO.

The Veteran testified before the undersigned Veterans Law Judge in August 2016. A transcript of the hearing has been associated with the record.

FINDINGS OF FACT

1. Prior to December 30, 2015, the Veteran's right shoulder disability manifested with limitation to shoulder level.

2. From December 30, 2015, the Veteran's right shoulder disability manifested with limitation midway between side and shoulder level.

3. Resolving all doubt in his favor, the Veteran's clavicle disability has manifested with dislocation since December 30, 2015.

CONCLUSIONS OF LAW

1. Prior to December 30, 2015, the criteria for a rating in excess of 20 percent for the Veteran's right shoulder disability are not met. 38 U.S.C. §§ 1155, 5107 (West 2012); 38 C.F.R. §§ 3.102, 3.400, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, DC 5201 (2017).

2. From December 30, 2015, the criteria for a rating in excess of 30 percent for the Veteran's right shoulder disability are not met. 38 U.S.C. §§ 1155, 5107 (West 2012); 38 C.F.R. §§ 3.102, 3.400, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, DC 5201 (2017).

3. From December 30, 2015, the criteria are met for a separate 20 percent rating, but no higher, for clavicle dislocation under DC 5203. 38 U.S.C. §§ 1155, 5107 (West 2012); 38 C.F.R. §§ 3.102, 3.400, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, DC 5203 (2017).

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Increased Rating - right shoulder disability

Disability ratings are assigned in accordance with VA's Schedule for Rating Disabilities and are intended to represent the average impairment of earning capacity resulting from disability. See 38 U.S.C. § 1155 (West 2012); 38 C.F.R. §§3.321 (a), 4.1 (2017). Separate diagnostic codes (DCs) identify the various disabilities. See generally 38 C.F.R. Part 4 (2017). If two disability evaluations are potentially applicable, 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. Reasonable doubt regarding the degree of disability will be resolved in favor of the claimant. 38 C.F.R. § 4.3.

Consistent with the facts found, the rating may be higher or lower for periods of the time under review on appeal, that is, the rating may be "staged." See Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007).

The Veteran
picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Reasonable doubt regarding the degree of disability will be resolved in favor of the claimant. 38 C.F.R. § 4.3.

The Veteran' right shoulder disability is rated under 5201-5019. He received a temporary total rating from October 31, 2012 to September 30, 2013.

Under 5019, symptoms are rated based on limitation of motion of the affected parts.

Under DC 5201, limitation of motion to shoulder level warrants a 20 percent rating, a limitation midway between side and shoulder level warrants a 30 percent rating for the dominant arm and a 20 percent rating for the non-dominant arm, and a limitation of motion to 25 degrees in the warrants a 40 percent rating for the dominant arm and a 30 percent rating for the non-dominant arm. 38 C.F.R. § 4.71a, DC 5201.

Under DC 5203, malunion or impairment of function of the clavicle warrants a 10 percent rating, nonunion without loose movement warrants a 10 percent rating, nonunion with loose movement warrants a 20 percent rating, and dislocation warrants a 20 percent rating. 38 C.F.R. § 4.71a, DC 5203.

In July 2012, the Veteran had shoulder joint stiffness, tenderness on palpation, shoulder did not have a full range of motion. There was no swelling, spasm, or instability. His right clavicle was tender on the medial and lateral aspect.

In August 2012, the Veteran had sharp and stabbing from the clavicular head to the glenohumeral space anteriorly. The pain worsened when he lifted his arm above his head. He had a positive Hawkins's test, Neer's test, and Empty Can test.

In September 2012, the Veteran had a rotator cuff tear that was later repaired. He had a cross arm impingement sign. His abduction was 180 degrees, with pain at 90 degrees. His forward flexion was to 180 degrees, bilateral external rotation to 45 degrees. There was a negative Speed's test, and Hawkins's Impingement test.

In March 2014, the Veteran continued to have excruciating pain in the shoulder vertically with certain motions.

In April 2014, a VA examination showed his right flexion was to 120 degrees, abduction to 150 degrees, internal rotation to 90 degrees, and external rotation to 90 degrees. There was evidence of pain on all range of motion measurements that caused functional loss in the form of less movement than normal and pain on movement. There was localized tenderness. There was no impairment of the clavicle or scapula. The Veteran also had weakness, fatigability, and incoordination. The examiner found there was additional limitation during flare-ups and repeated use.

In May 2015, the Veteran had right posterior peri-scapular pain, which was mostly along the superior medial border of the scapula.

In December 2015, a shoulder disability questionnaire showed his right flexion was to 104 degrees, abduction to 53 degrees, external rotation to 10 degrees, and internal rotation to 60 degrees. He could not perform repetitive use testing because he experienced extreme pain and discomfort. His range of motion testing was painful on active and passive motion. He had functional loss that resulted in less movement, weakened movement, excess fatigability, pain on movement, swelling, deformity, and instability. He had reduced muscle strength due to his disability. The Veteran had a rotator cuff condition with a positive Hawkins's Impingement, Empty Can, External Rotation, and Lift-off Subscapularis test. He had recurrent dislocation with guarding of all arm movement. The Veteran also had a clavicle dislocation. He had a positive cross-body adduction test. There was tenderness on palpation of the ac joint. The examiner noted that the Veteran had persistent pain and crepitus, loss of range of motion, cervical lordosis, disk space narrowing, nerve imp
resulted in less movement, weakened movement, excess fatigability, pain on movement, swelling, deformity, and instability. He had reduced muscle strength due to his disability. The Veteran had a rotator cuff condition with a positive Hawkins's Impingement, Empty Can, External Rotation, and Lift-off Subscapularis test. He had recurrent dislocation with guarding of all arm movement. The Veteran also had a clavicle dislocation. He had a positive cross-body adduction test. There was tenderness on palpation of the ac joint. The examiner noted that the Veteran had persistent pain and crepitus, loss of range of motion, cervical lordosis, disk space narrowing, nerve impingement, tingling and loss of sensation starting at C-spine radiating though right upper extremity.

In May 2016, a range of motion examination showed his right flexion was to 117 degrees, extension to 56 degrees, external rotation to 80 degrees, and internal rotation to 40 degrees.

In addition to the above, the Veteran reported sharp, stabbing, and radiating pain. His shoulder cracked and popped when lifted above shoulder level in April 2014. He also reported flare-ups. In December 2015, the Veteran stated that he had chronic pain and difficulty lifting heavy objections, especially overhead.

Based on these findings and the Veteran's reported limited motion, the Board finds that a 20 percent rating, but no higher, under DC 5201 is appropriate prior to December 30, 2015. The Veteran showed stiffness and limited movement overhead. The evidence does not show that his motion was limited to midway between side and shoulder, which is required for a higher rating. Accordingly, the evidence does not support a higher rating since his right shoulder movement limited to 25 degrees was not demonstrated.

From December 30, 2015, the Board also finds that 30 percent rating, but no higher, under DC 5201 is appropriate. The Veteran had increased limitation in motion. In addition, he could not perform repetitive use testing because he experienced extreme pain and discomfort. The evidence does not show that his motion was limited to 25 degrees, which is required for a higher rating. Accordingly, the evidence does not support a higher rating since his right shoulder movement limited to 25 degrees was not demonstrated.

From December 30, 2015, the Board also finds that a separate 20 percent rating is appropriate for the Veteran's clavicle dislocation. The evidence shows the Veteran had recurrent dislocation.

The Board considered whether functional loss due to flare-ups of pain, fatigability, incoordination, pain on movement, and weakness warranted an even higher separate rating. DeLuca v. Brown, 8 Vet. App. 202 (1995). The record shows he was having difficulty performing overhead work or holding his children very long, along with other functional loss due to painful motion and stiffness. However, there is no evidence to suggest that his functional loss ever resulted in a limitation of motion to 25 degrees, or in a close approximation of this level of loss, which is required for the next higher rating based on limited motion. 38 C.F.R. §§ 4.40, 4.71a, DC 5203; Johnston v. Brown, 10 Vet. App. 80, 85 (1997). Moreover, any functional loss as listed is encompassed within his separate ratings under DCs 5201 and 5203.

ORDER

Prior to December 30, 2015, a rating in excess of 20 percent for the Veteran's right shoulder disability is denied.

From December 30, 2015, a rating in excess of 30 percent for the Veteran's right shoulder disability is denied.

A separate 20 percent rating for clavicle dislocation under DC 5203, from December 30, 2015, is granted.

____________________________________________
BRADLEY W. HENNINGS
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs

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