SHOULDER IMPAIRMENT OF

J. N. MOATS · 2023 · Case ID: 23020444

MIXED

Summary

The veteran, who served from October 1983 to January 1987, appeals the denial of an increased disability rating for his left shoulder condition, which has been service-connected since October 2003. The veteran sought a rating higher than the 20 percent assigned by the VA, specifically for the period from November 2005 to February 2022, and again from April 2023 onwards. The Board reviewed extensive evidence, including lay statements from the veteran, VA treatment records, private physician letters, and multiple VA compensation examination reports dating from 2008 to 2021. While the veteran reported ongoing pain, limited motion, and recurrent dislocations, and underwent multiple surgeries culminating in a shoulder replacement in February 2022, the Board found that the medical evidence did not consistently meet the criteria for a higher rating. Specifically, the evidence did not support ankylosis, motion limited to 25 degrees from the side, or impairment involving malunion of the humerus as required by the relevant diagnostic codes. The Board found the veteran competent to describe his symptoms but considered the medical evidence more probative for determining the internal nature and severity of the shoulder disability. The Board denied the increased rating for the period prior to February 2022, finding the evidence weighed against the claim and the benefit-of-the-doubt doctrine inapplicable. The claim for an increased rating from April 2023 and the claim for TDIU were remanded for further development and readjudication.

Rationale

Medical evidence did not consistently meet criteria for higher rating.; Ankylosis findings were isolated and not supported by other evidence.; Motion limitations did not approximate criteria for ratings above 20 percent.

Special Benefit

TDIU

Docket No.

09-41 791

Full Decision Text

Citation Nr: 23020444
Decision Date: 04/04/23 Archive Date: 04/04/23

DOCKET NO. 09-41 791
DATE: April 4, 2023

ORDER

Entitlement to a disability rating higher than 20 percent prior to February 16, 2022, for status post left shoulder total arthroplasty with ostearthritis (previously rated as left shoulder dislocation status post-surgical repair with osteoarthritis) is denied.

REMANDED

Entitlement to a disability rating higher than 20 percent from April 1, 2023, for status post left shoulder total arthroplasty with ostearthritis (previously rated as left shoulder dislocation status post-surgical repair with osteoarthritis is remanded.

Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities is remanded.

FINDING OF FACT

Prior to February 16, 2022, the Veteran had not undergone left shoulder replacement surgery, and the disability did not involve the functional equivalent of intermediate ankylosis between favorable and unfavorable, did not otherwise limit motion to 25 degrees or less from the side, and did not involve nonunion, fibrous union, malunion, or loss of head of the humerus.

CONCLUSION OF LAW

Prior to February 16, 2022, the criteria for a disability rating higher than 20 percent for left shoulder disability were not met. 38 U.S.C. § 1155; 38 C.F.R. § 4.71a, Diagnostic Codes 5200 to 5203.

REASONS AND BASES FOR FINDING AND CONCLUSION

The Veteran served on active duty from October 1983 to January 1987.

This matter came before the Board of Veterans' Appeals (Board) on appeal of a rating decision by a U.S. Department of Veterans Affairs (VA) Regional Office (RO).

In October 2012, the Veteran testified ata a Board video conference hearing before the undersigned Acting Veterans Law Judge. A transcript of the proceeding has been associated with the claims file.

In July 2014, October 2018, and November 2020, the Board remanded this matter for additional development. The case is again before the Board for appellate review.

Claim for Increased Rating

The Veteran seeks entitlement to a higher rating for left shoulder disability.

The disability has been service connected since October 2003. On November 3, 2006, the Veteran submitted a claim for entitlement to an increased rating for the disorder. In the January 2008 rating decision on appeal, the RO assigned a 20 percent rating effective the date of claim.

Later in the appeal period, in an August 2022 rating decision, the RO assigned a temporary total rating between February 2022 and April 2023 for convalescence from shoulder replacement surgery. See 38 C.F.R. §§ 4.30, 4.71a, Diagnostic Code 5051.

The issues of entitlement to an initial rating higher than 20 percent for right shoulder rotator cuff impingement; entitlement to an initial rating higher than 30 percent for left hand radicular nerve impairment; and entitlement to a compensable initial rating for left anterior shoulder surgical scar were previously remanded by the Board in October 2022. As the Veteran testified with respect to these issues before another Veterans Law Judge, these matters will be addressed in a separate Board decision, if necessary.

Here, the initial question before the Board is whether a rating higher than 20 percent was warranted at any time between November 3, 2005, which is one year prior to the date of claim, to February 16, 2022, the date of assignment of a temporary total rating; and from April 1, 2023, which is when the temporary total rating ceased.

Law and regulations

Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes (DCs). 38 U.S.C. § 1155; 38 C.F.R. § 4.1.

Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7.

"Staged" ratings are appropriate for any rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. See Hart v. Mansfield,
Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes (DCs). 38 U.S.C. § 1155; 38 C.F.R. § 4.1.

"Staged" ratings are appropriate for any rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007); Fenderson v. West, 12 Vet. App. 119 (1999).

Except as otherwise provided, the effective date of an evaluation and award of compensation based on an increased rating claim will be the date of receipt of the claim or the date entitlement arose, whichever is the later. 38 U.S.C. § 5110; 38 C.F.R. § 3.400.

An exception to this rule exists under 38 C.F.R. § 3.400 (o)(2). Thereunder, VA may assign an effective date for increased rating up to one year prior to the date of claim where medical evidence indicates an increase in disability during that time period.

During the appeal period since November 2005, the RO has rated left shoulder disability under Diagnostic Codes (DCs) 5051, 5202-5203, 5003, and 5201-5010. 38 C.F.R. § 4.71a. Further, evidence indicates that the Veteran may have had left shoulder ankylosis, which is rated under DC 5200. Inasmuch as the disorder has been rated at least 10 percent disabling since then, the Board will address whether higher ratings are warranted. The evidence of record shows that the left shoulder is the minor or nondominant arm.

Arthritis is rated under DCs 5003 and 5010. A 10 percent rating is warranted for limitation of motion that is considered noncompensable under DCs pertaining to the joint being evaluated. Inasmuch as a compensable rating has applied during the appeal period, these DCs cannot lead to a higher rating.

Under DC 5051, compensable ratings of 20, 30, 50, 60, and 100 percent are authorized for shoulder replacement (prosthesis). For the minor extremity, ratings of 20, 50, and 100 percent are authorized. A 20 percent rating is the minimum rating that should be assigned. A 50 percent rating is warranted with evidence of chronic residuals consisting of severe, painful motion or weakness in the affected extremity. A 50 percent rating may also be warranted with evidence of intermediate degrees of residual weakness, pain or limitation of motion, which should be rated by analogy to DCs 5200 through 5203. A 100 percent rating applies for one year following implantation of the prosthesis.

Under DC 5200, a 20 percent rating is warranted for favorable ankylosis limiting abduction to 60 degrees but enabling the reaching of the mouth and head. A 30 percent rating is warranted for the minor extremity for intermediate between favorable and unfavorable ankylosis, and a 40 percent rating for unfavorable abduction limited to 25 degrees from the side.

Limitation of motion is rated under DC 5201. Twenty percent ratings are warranted for motion to shoulder level or to midway between the side and shoulder level while a maximum 30 percent rating is warranted for motion limited to 25 degrees from the side.

Impairment of the humerus is rated under DC 5202. Twenty percent ratings are authorized for infrequent episodes and guarding of movement only at shoulder level (flexion and/or abduction at 90 degrees) and for frequent episodes and guarding of all arm movements. A 40 percent rating is warranted for fibrous union, a 50 percent rating for nonunion, and a 70 percent rating for the loss of head of the joint.

Impairment of the clavicle or scapula is rated under DC 5203. Thereunder, dislocation and/or nonunion with loose movement are rated as 20 percent disabling.

During the pendency of the 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).
and for frequent episodes and guarding of all arm movements. A 40 percent rating is warranted for fibrous union, a 50 percent rating for nonunion, and a 70 percent rating for the loss of head of the joint.

Impairment of the clavicle or scapula is rated under DC 5203. Thereunder, dislocation and/or nonunion with loose movement are rated as 20 percent disabling.

During the pendency of the 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 select diagnostic codes "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 amended criteria, Diagnostic Code 5201 provides that a minimum 20 percent evaluation is warranted for either arm when its motion is limited to the shoulder level. A 30 percent evaluation is warranted for the major arm and a 20 percent rating for the minor arm when its motion is limited to midway between side and shoulder level (flexion and/or abduction limited to 45 degrees). A 30 percent evaluation is warranted for the minor arm when flexion and/or abduction is limited to 25 degrees from the side. A 40 percent evaluation, the maximum available, is warranted for the major arm when flexion and/or abduction is limited to 25 degrees from the side. 38 C.F.R. § 4.71a.

When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the benefit of the doubt will be granted to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 4.3. To deny a claim on the merits, the evidence must clearly weigh against the claim. Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021).

Evidence and analysis

The relevant evidence in this matter consists of lay assertions from the Veteran, VA treatment records, September 2009 and September 2012 letters from a private physician, and VA compensation examination reports dated in January 2008, April 2011, July 2015, and January 2021.

This evidence indicates that an increased rating is unwarranted here, either in the year prior to the date of claim or since the claim.

The record contains no evidence dated between November 2005 and November 2006 indicating that the criteria for a rating higher than 10 percent was approximated under DCs 5200-03. In fact, the record contains no medical evidence dated during this period. See 38 C.F.R. § 3.400 (o)(2).

Since the date of claim, moreover, the evidence does not indicate that a rating higher than 20 percent has been warranted. Indeed, none of the evidence dated between November 2006 and February 2022 indicates shoulder replacement surgery, the functional equivalent of ankylosis between favorable or unfavorable, motion otherwise limited to 25 degrees from the side, or malunion or loss of head involving the humerus.

The VA treatment records repeatedly note the Veteran's complaints of shoulder pain and limited motion. However, the records do not provide specific information regarding the degree of limitation on flexion and abduction, do not indicate such motion limited to 25 degrees from the side, do not indicate the functional equivalent of an ankylosed joint, and do not indicate in the glenohumeral joint either nonunion, fibrous union, malunion, or a loss of head.

The September 2009 and September 2012 private letters describe left shoulder disability as well. The September 2009 letter notes significant pain and stiffness with limited motion and weakness. The September 2012 letter notes that the left shoulder was doing poorly with severely limited range of motion of 90 degrees flexion and abduction. Further, the physician indicated that his testing indicated that the Veteran's symptoms were due to rotator cuff dysfunction. Nevertheless, the letter does not indicate the functional equivalent of ankylosis, motion limited to 25 percent from the side, or impairment related to malunion of the humerus.

The January 2008 VA report notes that the Veteran underwent shoulder surgery during service and in 2001 to resolve recurrent dislocation. The report notes a motorcycle accident in 2003 which aggravated the disability. The report notes the Veteran's complaints that he continues to experience continuing recurrent dislocations and weakness and pain during sleeping. On examination, the examiner noted pain-free flex
of motion of 90 degrees flexion and abduction. Further, the physician indicated that his testing indicated that the Veteran's symptoms were due to rotator cuff dysfunction. Nevertheless, the letter does not indicate the functional equivalent of ankylosis, motion limited to 25 percent from the side, or impairment related to malunion of the humerus.

The January 2008 VA report notes that the Veteran underwent shoulder surgery during service and in 2001 to resolve recurrent dislocation. The report notes a motorcycle accident in 2003 which aggravated the disability. The report notes the Veteran's complaints that he continues to experience continuing recurrent dislocations and weakness and pain during sleeping. On examination, the examiner noted pain-free flexion and abduction over 100 degrees during active and passive motion and following three repetitions. The examiner indicated no additional impairments such as flare ups or muscle atrophy. The examiner noted a normal x-ray of the left shoulder but indicated a history of recurrent dislocations.

The April 2011 VA report indicates an additional surgical effort to stabilize the left shoulder in 1999. The Veteran indicated that painful motion was his main problem and that arthritis caused pain. The examiner found no evidence of atrophy, found intact sensory and motor systems, and found pain-free abduction and flexion to 115 degrees during active and passive motion and following three repetitions. The report notes evidence of glenohumeral joint osteoarthritis. The examiner noted no additional impairment such as flare ups. Nevertheless, the examiner found recurrent dislocations in the conclusion of the report.

Radiology evidence dated in January and February 2014 indicated advanced degenerative osteoarthritis at the glenohumeral joint, moderate degenerative osteoarthritis at the acromioclavicular joint with mild impingement, a loose body overlying the scapula, tendinopathy, tenosynovitis, and bursitis.

The July 2015 VA report diagnosed the Veteran with glenohumeral joint dislocation and degenerative arthritis. The Veteran reported experiencing flare ups of daily pain which limited range of motion in the left shoulder. On range of motion testing, the examiner noted 100 degrees flexion and abduction after three repetitions without pain. The examiner noted no localized pain and no pain while weightbearing. The examiner did not comment on loss of range of motion during flare ups or after repeated use over time. The examiner noted full muscle strength without evidence of atrophy. But the examiner did find evidence of favorable ankylosis in abduction up to 60 degrees and found that the Veteran could nevertheless reach his mouth and his head. The examiner noted frequent recurrent dislocation or subluxation of the glenohumeral or scapulohumeral joint. But the examiner noted no loss of head, nonunion, malunion, or fibrous union involving the joint. In concluding the report, the examiner stated that no additional impairment significantly limited functional ability during flare-ups or after repeated use over time.

Most recently, the January 2021 VA report noted active and passive flexion and abduction of 0 to 90 degrees after three repetitions with painful motion between 45- and 90-degrees flexion and abduction. The examiner indicated testing done while weightbearing and stated that no pain was noted while not weightbearing. The examiner indicated similar impairment during flare ups. The examiner noted an inability to reach overhead. The Veteran reported baseline pain of constant 8 out of 10 with twice-weekly flare ups of 10 of 10. He described limitations after repeated use over time such as while reaching for objects using his left arm, carrying grocery bags using his left arm, or reaching overhead using his left arm. The examiner further indicated that testing revealed a rotator cuff injury as well. But the examiner found no evidence of atrophy or of ankylosis. The examiner found no additional humeral problems such as nonunion, malunion, fibrous union, or loss of head. And the examiner found no additional impairments either during flare ups or following repetitive use over time. The report also noted a January 2021 x-ray report which noted a progression in left shoulder osteoarthritis with periarticular calcifications, loose bodies, bursitis, and tendinitis.

In sum, the evidence demonstrates that the Veteran has experienced significant disability in his left shoulder. He has experienced painful and limited motion since discharge from service. He has undergone three to four surgeries for the disability. Further, in February 2022 the disabling symptoms led the Veteran to undergo shoulder replacement surgery. Nevertheless, an increased rating is unwarranted because none of the criteria for a higher rating under DCs 5200-03 is approximated
additional impairments either during flare ups or following repetitive use over time. The report also noted a January 2021 x-ray report which noted a progression in left shoulder osteoarthritis with periarticular calcifications, loose bodies, bursitis, and tendinitis.

Although there is an isolated reference to ankylosis in the July 2015 report. The diagnosis is not supported by other VA reports, the private letters, or by VA treatment records dated between 2010 and 2022. Nonetheless, even if the Veteran has ankylosis, or even disability tantamount to such, the evidence has not indicated unfavorable ankylosis or even intermediate ankylosis. Rather, the sole reference to ankylosis describes it as favorable and not preventing the Veteran from abducting to beyond 60 degrees and preventing him from reaching his mouth and head. Thus, a rating higher than 20 percent would be unwarranted under DC 5200.

Similarly, a rating higher than 20 percent would be unwarranted under DC 5201 because none of the evidence indicates limited motion of 25 degrees or less from the side. Rather the evidence consistently showed pain-free flexion and abduction to 90 degrees or more. The most recent report in January 2021 indicates painful motion at 45 to 90 degrees. Regardless, this finding does not approximate the criteria for a rating higher than 20 percent under this DC.

A rating higher than 20 percent is unwarranted under DC 5202 as well. The evidence clearly shows impairment involving the glenohumeral joint. Indeed, the 2014 MRI indicated severe arthritis in this joint. Nevertheless, the evidence has repeatedly shown that the Veteran has not experienced fibrous union, nonunion, or loss of head of the humerus. Thus, a rating higher than 20 percent would be unwarranted under this DC as well.

Lastly, a higher rating under DC 5203 would be unwarranted because the maximum rating thereunder is 20 percent.

The Board has considered the Veteran's lay assertions regarding the severity of his disability. He is competent to describe observable symptomatology. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). However, he is not competent to determine issues such as the nature and severity of his shoulder disability. The internal nature of a shoulder disability, such as whether there is ankylosis or malunion of the glenohumeral joint, is a complex medical matter. See Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007). The development of an internal shoulder disability is a pathology beyond his capacity for observation. On this more complex question, the Board finds the medical evidence dated over the 17-year appeal period more probative than the Veteran's claims. See Smith v. Derwinski, 1 Vet. App. 235 (1991). The competent medical evidence offering detailed specific specialized determinations pertinent to the rating criteria are the most probative evidence with regard to evaluating the pertinent symptoms for the disability on appeal; the medical evidence also largely contemplates the Veteran's descriptions of symptoms. The lay testimony has been considered together with the probative medical evidence clinically evaluating the severity of the pertinent disability symptoms.

The Board has considered whether staged ratings are appropriate for the Veteran's left shoulder disability prior to February 2022; however, as discussed above, the Board finds that his symptomatology has been stable during this period. Therefore, assigning staged ratings for such disability is not warranted. See Hart, cited above.

Based on the foregoing, the Board finds that the evidence persuasively weighs against an increased rating for the Veteran's left shoulder disability prior to February 2022. As such, with respect to this issue, the benefit-of-the-doubt doctrine does not apply, and the claim must be denied. 38 U.S.C. § 5107; 38 C.F.R. § 4.3.

REASONS FOR REMAND

A remand is necessary for the issue regarding the appropriate disability rating for left shoulder disability beginning on April 1, 2023, when the temporary total rating expired. The record is unclear regarding the current severity of disability and whether the criteria for higher ratings under DC 5051 will be met at that time. Accordingly, the RO should undertake any necessary further development and readjudicate this issue based on the evidence of record in April 2023.

The TDIU claim must be remanded because it is intertwined with this issue as well as with issues currently pending before the RO regarding service-connected right shoulder disability and residuals.

The matters are REMANDED for the following action:

1. After undertaking any further necessary development deemed necessary, readjudicate the issue of the appropriate disability rating for left shoulder disability from April 1, 2023.

2. Readjudicate the claim of entitlement to a TDIU once the Board's remand directives regarding left and right shoulder disability and residuals have been resolved.

3. Then return the case to the Board if in order.

J. N. MOATS

Acting Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board Christopher McEntee

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.

Analyze in VA Law Explorer