Citation Nr: 1642679 Decision Date: 11/07/16 Archive Date: 11/18/16 DOCKET NO. 13-34 579 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Portland, Oregon THE ISSUES 1. Entitlement to a disability rating in excess of 10 percent for left shoulder rotator cuff tendonitis/bursitis. 2. Entitlement to a disability rating in excess of 10 percent for right shoulder rotator cuff tendonitis/bursitis. REPRESENTATION Appellant represented by: Oregon Department of Veterans' Affairs WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD M. Pryce, Associate Counsel INTRODUCTION The Veteran served on active duty from April 2006 to June 2007. This matter comes before the Board of Veterans' Appeals (Board0 on appeal from a July 2012 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Portland, Oregon. In March 2016, the Veteran testified before the undersigned Veteran's Law Judge in a live hearing held at the RO. A transcript of that hearing has been prepared and is associated with the Veteran's electronic claims file. FINDINGS OF FACT 1. The Veteran's left shoulder bursitis/tendonitis has resulted in limitation of flexion to 100 degrees with pain at 80 degrees and limitation of abduction to 95 degrees with pain at 70 degrees. 2. The Veteran's right shoulder bursitis/tendonitis has resulted in limitation of flexion to 95 degrees with pain at 80 degrees and limitation of abduction to 89 degrees with pain at 70 degrees. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 20 percent rating, but no higher, for left shoulder bursitis/tendonitis have been met. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 3.321, 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, diagnostic Codes 5109, 5201 (2015). 2. The criteria for a 20 percent rating, but no higher, for right shoulder bursitis/tendonitis have been met. 38 U.S.C.A. §§ 1155, 5107; 38 C.F.R. §§ 3.321, 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, diagnostic Codes 5109, 5201. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Notice and Assistance VA has a duty to notify and assist claimants in substantiating claims for VA benefits. See e.g. 38 U.S.C.A. §§ 5103, 5103A (West 2014) and 38 C.F.R. § 3.159 (2015). Here, the duty to notify was satisfied by way of a letter sent in June 2012. VA also has a duty to assist a claimant in the development of a claim. This duty includes assisting the claimant in the procurement relevant treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Board finds that all necessary development has been accomplished and all available evidence pertaining to the matter decided herein has been obtained. The RO has obtained the Veteran's VA treatment records, VA examination reports, Private examination reports, hearing testimony, and statements from the Veteran and his representative. Neither the Veteran nor his representative has notified VA of any outstanding evidence, and the Board is aware of none. Hence, the Board is satisfied that the duty-to-assist was met. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c). II. Increased Ratings Disability ratings are determined by the application of a schedule of ratings, which is based on the average impairment of earning capacity. 38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. § 4.1 (2015). The Veteran's entire history is reviewed when making disability evaluations. See generally, Schafrath v. Derwinski, 1 Vet. App. 589 (1991); 38 C.F.R. § 4.1. Where, as in the case of the Veteran's back, right knee, and left knee disabilities, "entitlement to compensation has already been established and an increase in the assigned evaluation is at issue, it is the present level of disability that is of primary concern." Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Although the recorded history of a particular disability should be reviewed in order to make an accurate assessment under the applicable criteria, the regulations do not give past medical reports precedence over current findings. Id. For increased rating claims, staged ratings are appropriate when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2008). Further, "[w]here 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 required for that rating. Otherwise, the lower rating will be assigned." 38 C.F.R. § 4.7 (2015). The following analysis is therefore undertaken with consideration that different (staged ratings may be warranted for different time periods during the period of appellate review, beginning within one year of the Veteran's May 2012 claim for an increase. The Veteran is presently service connected for bilateral shoulder rotator cuff tendonitis/bursitis, rated as 10 percent disabling on each side. Under Diagnostic Code (DC) 5019, Bursitis is rated on limitation of motion of the affected part, as degenerative arthritis. 38 C.F.R. § 4.71a, Diagnostic Code 5019 (2015). The applicable criteria for rating shoulder disabilities provides for a 20 percent rating for both the dominant and non-dominant arm based on limitation of motion at the shoulder level. A 30 percent rating is assigned to the dominant shoulder and a 20 percent rating is assigned to the non-dominant shoulder when motion is limited to midway between the side and shoulder level. A 40 percent rating is assigned to the dominant shoulder and a 30 percent rating is assigned to the non-dominant shoulder when motion is limited to 25 degrees from the side. 38 C.F.R. § 4.71a, Diagnostic Code 5201 (2015). In this matter, the Board takes note that the Veteran's right arm is his dominant arm. When evaluating joint disabilities rated on the basis of limitation of motion, VA must consider granting a higher rating in cases in which functional loss due to pain, weakness, excess fatigability, or incoordination is demonstrated, and those factors are not contemplated by the relevant rating criteria. See 38 C.F.R. §§ 4.40, 4.45, 4.59 (2015); Deluca v. Brown, 8 Vet. App. 202 (1995). Possible manifestations of functional loss include decreased or abnormal excursion, strength, speed coordination, or endurance, as well as more or less movement than is normal, weakened movement, excess fatigability, and pain on movement, as well as swelling, deformity, and atrophy, that affect stability, standing, and weight-bearing. See Mitchell v. Shinseki, 25 Vet. App. 32, 33, 43 (2011). Such considerations are intended to recognize actually painful joints, and therefore, any functional loss due to painful motion is to be assigned at least the minimum compensable rating for that particular joint. 38 C.F.R. § 4.59. Other diagnostic criteria pertaining to the shoulder includes ankylosis of the scapula and humerus (DC 5200); impairment of the humerus (DC 5202); and impairment of the clavicle or scapula, including malunion, nonunion or dislocation (DC 5203). Because the Veteran's bilateral shoulder bursitis does not involve any such pathologies, the Board will not consider those criteria in assessing the present case. The Veteran filed a claim for an increased evaluation of his bilateral shoulder bursitis in May 2012. In July 2012, he was afforded a VA examination in connection with his claim. Flexion was limited to 160 degrees bilaterally, with evidence of painful motion at 120 degrees bilaterally. Abduction was limited to 160 degrees bilaterally, with evidence of painful motion at 120 degrees bilaterally. No additional limitation of motion was noted on repetitive testing. Localized tenderness was noted bilaterally. No guarding was noted. Muscle strength was 5/5. No ankylosis was found. The disorder was not found to impact his ability to work, although the examiner stated that he had difficulty at work due to problems lifting any weight away from his body or over his head. (See VBMS, VA Examination, 7/13/2012). In September 2015, the Veteran was afforded a new VA examination in connection with his claim. He reported pain with all overhead activity. Flare-ups resulted in ache that turned sharp with overhead activity or putting on coats or shirts. Objectively, right shoulder flexion and abduction was limited to 150 degrees. There was evidence of pain with weight bearing. Pain was noted to cause functional loss, although any additional degree of loss was not given. Left shoulder flexion and abduction was limited to 160 degrees. There was evidence of pain with weight bearing. Pain was noted to cause functional loss, although any additional degree of loss was not given. Repetitive use testing was not conducted. The examination was not conducted during a flare up, but the examiner opined that pain would additionally limit range of motion. Specifically, during flares, it was estimated that right shoulder flexion and abduction was to 140 degrees and left shoulder flexion and abudiction was to 150 degrees, a loss of 10 degrees on each side. Muscle strength was 5/5. No ankylosis was found. Functional impact on employment included issues with lifting overhead. In support of his claim, the Veteran submitted a private medical report dated March 7, 2016. That report documented dull, aching and sharp pain in the shoulders which worsens with reaching, lifting and carrying. Pain was noted to improve with rest. The Veteran was not able to carry 40 lbs. for longer than 30 seconds without increased symptoms. On the right, active flexion was limited to 95 degrees (passive movement to 100 degrees) with evidence of pain at 80 degrees; active abduction was limited to 89 degrees (passive movement to 115 degrees) with pain noted at 70 degrees. On the left, active flexion was limited to 100 degrees (passive movement to 110 degrees) with evidence of pain at 80 degrees; active abduction was limited to 95 degrees (passive movement to 110 degrees) with pain noted at 70 degrees. Hawkins-Kennedy test was positive on both sides. Painful arc test was positive on both sides between 60 and 120 degrees. Neer's test was positive on both sides. The Veteran could not reach overhead without increase in symptoms. In light of the above evidence, the Board finds that the Veteran's right and left shoulder bursitis/tendonitis should each be rated as 20 percent disabling from May 18, 2012, the date of his claim for increase. In reaching this conclusion, the Board notes that the March 2016 examination found the Veteran's right shoulder abduction to be limited to 89 degrees, which is less than 90 degrees, which is "shoulder level." There was also evidence of pain limiting abduction to 70 degrees and flexion to 80 degrees on the right. On the left, although the Veteran's range of motion was between 95 and 100 degrees, the Veteran was also found to have pain limiting abduction to 70 degrees and flexion to 80 degrees. As such, affording all benefit of the doubt in favor of the Veteran, the evidence suggests that the Veteran's range of motion of both the right and left shoulder has been limited to shoulder level, which is compensated by the rating criteria with a 20 percent rating. The Board has considered whether a higher rating is appropriate, but finds that it is not. There is no evidence limitation of range of motion beyond 70 degrees abduction and 80 degrees flexion. There is no evidence that motion is limited to halfway between the shoulder and side, or less. As such, the maximum rating afforded by the Diagnostic Code is 20 percent for the right and the left. 38 C.F.R. § 4.71a, Diagnostic Code 5201. In reaching this conclusion, the Board does acknowledge that the Veteran's July 2012 and September 2015 examinations showed range of motion beyond the shoulder level, and therefore, staged ratings should be considered. However, the Board finds that such staged ratings cannot be supported by the evidence of record. The Veteran testified that during the July 2012 examination he was not actually physically examined, but rather the examiner questioned him and estimated his range of motion based on his verbal answers. (See, e.g., VBMS, Notice of Disagreement, 10/5/2015; VA 9 Appeal to Board of Appeals, 12/5/2013). The Board finds this testimony persuasive, particularly in light of an April 2010 examination which found abduction limited to 135 degrees on the right and 130 degrees on the left; findings are significantly less in terms of range of motion than the findings of the July 2012 examination report. (See VBMS, VA Examination, 4/6/2010). As such, the Board finds that that examination report is inadequate for rating purposes, and will not rely upon it in evaluating the severity of the Veteran's disability. Likewise, the Board also finds the September 2015 examination report inadequate for several reasons. First, it noted evidence of pain on motion which resulted in limitation of motion, but failed to provide any degree to which motion was additionally limited. See 38 C.F.R. §§ 4.40, 4.45, 4.59; Deluca v. Brown, 8 Vet. App. 202 (1995). Further, on July 5, 2016, the Court of Appeals for Veteran's Claims (Court) issued a precedential decision in the matter of Correia v. McDonald which involved determining the proper interpretation of the final sentence of 38 C.F.R. § 4.59 (2015), which reads, "[t]he joints involved should be tested for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with the range of the opposite undamaged joint." The Court found the final sentence of § 4.59 to be ambiguous because the regulation, considered as a whole, is meant to guide adjudicators in determining the proper level of disability of joints, and if the range of motion testing listed in the last sentence is not required, it is unclear how an adjudicator could adequately rate a claimant's joint disability and account for painful motion. Compelled by § 4.59's place in the regulatory scheme (it preceded the disability rating schedule), the Court held that the final sentence of § 4.59 creates a requirement that certain range of motion testing be conducted whenever possible in cases of joint disabilities. Correia v. McDonald, 28 Vet. App. 158 (2016). Specifically, the Court stated that "to be adequate, a VA examination of the joints must, wherever possible, include the results of the range of motion testing described in the final sentence of § 4.59." Id. at 169-170. VA has interpreted the Court's holding to imply that all range of motion testing must include active motion and passive motion. In this case, the September 2015 examination report failed to include passive motion testing results. As such, the Board must also find that examination report inadequate to rely upon in evaluating the Veteran's claims. Finally, in exceptional cases an extraschedular rating may be provided. 38 C.F.R. § 3.321. The Court of Appeals for Veterans Claims (Court) has set out a three-part test, based on the language of 38 C.F.R. § 3.321(b)(1), for determining whether a Veteran is entitled to an extraschedular rating: (1) the established schedular criteria must be inadequate to describe the severity and symptoms of the claimant's disability; (2) the case must present other indicia of an exceptional or unusual disability picture, such as marked interference with employment or frequent periods of hospitalization; and (3) the award of an extraschedular disability rating must be in the interest of justice. All three criteria must be met for referral for an extraschedular rating. Thun v. Peake, 22 Vet. App. 111 (2008), aff'd, Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). In the present matter, the Board finds that the Veteran's disability, to include pain on motion limiting the use of the Veteran's right and left arms to shoulder level, is adequately described by the established schedular criteria. Further, although there is some evidence of interference with employment to the degree of having difficulty lifting and carrying weight over 40 lbs., there is no evidence that the Veteran has missed word due to his disability, nor is there any evidence of frequent periods of hospitalization. Therefore, referral for extraschedular consideration is not warranted. Also considered by the Board is whether the collective effect of his other service connected disability warrants referral for extraschedular consideration. See Johnson v. Shinseki, 762 F.3d 1362 (Fed. Cir. 2014). The Veteran is presently service connected for peripheral vascular disease of the left and right lower extremity, diabetes mellitus, type II, and chloracne. There is no indication in the evidence of record that any of these conditions cause a collective effect on his service-connected warts. See Yancy v. McDonald, 27 Vet. App. 484, 495 (2016) (holding that the Board is required to address whether referral for extraschedular consideration is warranted for a veteran's disabilities on a collective basis only when that issue is argued by the claimant or reasonably raised by the record through evidence of the collective impact of the claimant's service-connected disabilities). For these reasons, the Board declines to remand this case for referral to the Director, Compensation Service, for extraschedular consideration. In sum, the Board finds that the Veteran's service-connected right and left shoulder bursitis/tendonitis has resulted in limitation of motion to the shoulder level, bilaterally. As such, a 20 percent rating should be assigned for each shoulder. In reaching this conclusion, the Board has considered all evidence of record; however, because the preponderance of the evidence is against the claim for a higher rating, the "benefit-of-the-doubt" rule does not apply. 38 U.S.C.A. § 5107(b) (West 2014); Gilbert v. Derwinski, 1 Vet. App. 49, 50 (1995); 38 C.F.R. § 4.3 (2015) ORDER Entitlement to a 20 percent rating for service connected left shoulder rotator cuff tendonitis/bursitis is granted, effective May 18, 2012. Entitlement to a 20 percent rating for service connected right shoulder rotator cuff tendonitis/bursitis is granted, effective May 18, 2012. ____________________________________________ ERIC S. LEBOFF Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs