Citation Nr: 1123677 Decision Date: 06/22/11 Archive Date: 06/28/11 DOCKET NO. 10-11 518 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Reno, Nevada THE ISSUES 1. Entitlement to an initial rating in excess of 20 percent for arthritic gout of the bilateral feet. 2. Entitlement to an initial rating in excess of 10 percent for a status-post right shoulder dislocation, status-post surgical repair, referred to as a right shoulder disability. REPRESENTATION Veteran represented by: Nevada Office of Veterans' Services ATTORNEY FOR THE BOARD A. Barner, Law Clerk INTRODUCTION The Veteran served on active duty from June 1967 to June 1971, and from July 1971 to September 1988. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Reno, Nevada. FINDINGS OF FACT 1. The Veteran's arthritic gout of the bilateral feet was productive of a definite impairment of health objectively supported by incapacitating exacerbations occurring three times a year, to include pain, stiffness and fatigability. 2. The Veteran's right (major) shoulder disability was manifested by limited motion with pain, instability, tenderness on palpation, crepitus, muscle spasm, and X-ray findings of osteoarthritis. CONCLUSIONS OF LAW 1. The criteria for an initial rating of 40 percent for arthritic gout of the bilateral feet, but no higher, have been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.3, 4.7, 4.40, 4.45, 4.71a, Diagnostic Codes 5002, 5017 (2010). 2. The criteria for an initial rating in excess of 10 percent for a right shoulder disability have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5003, 5010, 5201, 5203 (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veterans Claims Assistance Act of 2000 (VCAA) enhanced VA's duty to notify and assist claimants in substantiating a claim for VA benefits, as codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.102, 3.159, 3.326(a) (2010). For the reasons to be discussed below, the Board finds that VA has satisfied its duties to the appellant under the VCAA. A VCAA notice consistent with 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) must (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; and (3) inform the claimant about the information and evidence the claimant is expected to provide. See Quartuccio v. Principi, 16 Vet. App. 183 (2002). VCAA notice requirements apply to all five elements of a service connection claim (1) veteran status; (2) existence of disability; (3) connection between service and the disability; (4) degree of disability; and (5) effective date of benefits where a claim is granted. Dingess v. Nicholson, 19 Vet. App. 473, 484 (2006). VA has made all reasonable efforts to assist the Veteran in the development of his claims, has notified him of the information and evidence necessary to substantiate the claims, and has fully disclosed VA's duties to assist him. In August 2008 and February 2009 letters, the Veteran was notified of the information and evidence needed to substantiate and complete the claims on appeal. Additionally, the letters provided him with the general criteria for the assignment of an effective date and initial rating. Id. Furthermore, as a claim for an increased initial rating is a downstream issue from that of service connection, the appellant bears the burden of demonstrating prejudice resulting from defective VCAA notice. See Goodwin v. Peake, 22 Vet. App. 128 (2008) (holding that "where a claim has been substantiated after the enactment of the VCAA, the appellant bears the burden of demonstrating any prejudice from defective VCAA notice with respect to the downstream issues"). The Board notes that, in the present case, initial notice was issued prior to the June 2009 adverse determination on appeal; thus, no timing issue exists with regard to the notice provided the claimant. See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). The Board further finds that VA has complied with the duty to assist by aiding the appellant in obtaining evidence. It appears that all known and available records relevant to the issue on appeal have been obtained and are associated with the Veteran's claims files. The RO has obtained the Veteran's service treatment records, and Federal Hospital treatment records and private treatment records are also associated with the claims folder. An inquiry for social security records revealed that payments were collected in 2008 and 2009; however, the corresponding social security disability payment code was blank. As such, the payments appear to be age-related, and are not pertinent to the claim. See Baker v. West, 11 Vet. App. 163, 169 (1998); Murincsak v. Derwinski, 2 Vet. App. 363, 370-72 (1992). The Veteran has also been afforded VA medical examinations in June 2009 and June 2010. Although the claims folder was not made available to the June 2010 examiner, the Board notes that the history contained in the examination report was accurate. Further, the examiner had access to the Veteran's computerized medical records and indicated that they were reviewed, and the results are similar to a VA examination in June 2009 where the claims folder was reviewed. As such, the Board finds that the VA examination reports contain sufficiently specific clinical findings and informed discussion of the pertinent history and clinical features of the disabilities on appeal and are adequate for purposes of this appeal. The Board is not aware, and the Veteran has not suggested the existence of, any additional pertinent evidence not yet received. Based on the foregoing, the Board finds that the Veteran has not been prejudiced by any failure of VA in its duties to notify and assist him, and that any such violations could be no more than harmless error. See Conway v. Principi, 353 F.3d 1369 (Fed. Cir. 2004). In any event, the Veteran has neither alleged nor demonstrated any prejudice with regard to the content or timing of VA's notices or other development. See Shinseki v. Sanders, 129 U.S. 1696 (2009) (reversing prior case law imposing a presumption of prejudice on any notice deficiency, and clarifying that the burden of showing that an error is harmful, or prejudicial, normally falls upon the party attacking the agency's determination). Thus, adjudication of his claims at this time is warranted. Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R., Part 4. The rating schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.1 (2010). 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. 38 C.F.R. § 4.7 (2010). In considering the severity of a disability, it is essential to trace the medical history of a veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41 (2010). Consideration of the whole-recorded history is necessary so that a rating may accurately reflect the elements of disability present. 38 C.F.R. § 4.2 (2009); Peyton v. Derwinski, 1 Vet. App. 282 (1991). Although the regulations require review of the recorded history of a disability by the adjudicator to ensure a more accurate evaluation, the regulations do not give past medical reports precedence over the current medical findings. Where an increase in the disability rating is at issue, the present level of a veteran's disability is the primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Where a claimant appeals the initial rating assigned for a disability, as in the instant case, evidence contemporaneous with the claim and with the initial rating decision granting service connection would be most probative of the degree of disability existing at the time that the initial rating was assigned and should be the evidence "used to decide whether an original rating on appeal was erroneous." Fenderson v. West, 12 Vet. App. 119, 126 (1999). If later evidence indicates that the degree of disability increased or decreased following the assignment of the initial rating, "staged" ratings may be assigned for separate periods of time based on facts found. Id. Staged ratings are also appropriate 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). Disability of the musculoskeletal system is primarily the inability, due to damage or infection in the parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. It is essential that the examination on which ratings are based adequately portray the anatomical damage and the functional loss with respect to all of these elements. 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). The functional loss may be due to absence of part, or all, of the necessary bones, joints and muscles, or associated innervation, or other pathology and evidenced by visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. 38 C.F.R. § 4.40 (2010). Pain on movement, swelling, deformity or atrophy of disuse as well as instability of station, disturbance of locomotion, interference with sitting, standing and weight bearing are relevant considerations for determination of joint disabilities. 38 C.F.R. § 4.45 (2010). Painful, unstable, or malaligned joints, due to healed injury, are entitled to at least the minimal compensable rating for the joint. 38 C.F.R. § 4.59 (2010). The evaluation of the same disability under various diagnoses is to be avoided. Disability from injuries to the muscles, nerves, and joints of an extremity may overlap to a great extent, so that special rules are included in the appropriate bodily system for their evaluation. Both the use of manifestations not resulting from service-connected disease or injury in establishing the service-connected evaluation, and the evaluation of the same manifestation under different diagnoses are to be avoided. 38 C.F.R. § 4.14 (2010). The U.S. Court of Appeals for Veterans Claims (Court) has emphasized that a claimant may not be compensated twice for the same symptomatology as such a result would overcompensate the claimant for the actual impairment of his earning capacity. Brady v. Brown, 4 Vet. App. 203 (1993). Notwithstanding the provisions of 38 C.F.R. § 4.14, VA is required to provide separate evaluations for separate manifestations of the same disability which are not duplicative or overlapping. See Esteban v. Brown, 6 Vet. App. 259, 261 (1994), 38 C.F.R. § 4.25 (2010). The standard of proof to be applied in decisions on claims for VA benefits is set forth in 38 U.S.C.A. § 5107(b). Under that provision, VA shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107(b) (West 2002); see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Arthritic Gout, Bilateral Feet Under 38 C.F.R. § 4.71a, gout is rated under Diagnostic Code 5002, for rheumatoid arthritis as an active process. 38 C.F.R. § 4.71a, Diagnostic Code 5017. Under Diagnostic Code 5002, a 20 percent rating is warranted where there are one or two exacerbations a year in a well-established diagnosis. A 40 percent rating is assigned for symptom combinations productive of definite impairment of health objectively supported by examination findings or incapacitating exacerbations occurring three or more times per year. A 60 percent rating is assigned for signs and symptoms that are less than 100 percent, but that include weight loss and anemia productive of severe impairment of health or severely incapacitating exacerbations occurring four or more times a year or a lesser number over prolonged periods. A 100 percent rating is assigned for gout with constitutional manifestations associated with active joint involvement, totally incapacitating. For chronic residuals, such as limitation of motion or ankylosis, favorable or unfavorable, a rating is to be assigned under the appropriate diagnostic codes for the specific joints involved. Where, however, the limitation of motion of the specific joint or joints involved is noncompensable under the codes a rating of 10 percent is for application for each such major joint or group of minor joints affected by limitation of motion, to be combined, not added under Diagnostic Code 5002. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. The ratings for the active process will not be combined with the residual ratings for limitation of motion or ankylosis, and the higher evaluation will be assigned. 38 C.F.R. § 4.71a. As background, service treatment records show that the Veteran was treated for gout in his left great toe beginning in July 1988. More recent treatment records from November 2004 show that the Veteran had painful gout that was treated with Bextra and Probenecid. In December 2004 dietary measures to control the Veteran's gout were discussed. March 2007 problem list included gout chronic (tophaceous). A September 2008 note from Kantor Nephrology Consultants indicated that the Veteran had severe gouty arthritis that continued to flare-up on Colchicine therapy alone, and examination revealed tenderness of the feet. There was, however, no pedal edema. The Veteran was advised to begin Allopurinol therapy with reduced Colchicine therapy, and to continue a low-purine, low-salt, low-protein diet. A November 2008 letter from Kantor Nephrology Consultants noted that the Veteran was seen initially for recurrent gouty arthritis in June 2008, and that he had been on non-steroidal anti-inflammatory therapy since the 1980s, which was continued because of the recurrent severe gouty arthritis. Since then, the Veteran stopped the nonsteroidal anti-inflammatory therapy, and his gouty arthritis markedly decreased in frequency and severity while on Allopurinol and Colchicine therapies. In February 2009, March 2009 and January 2010 further notations were made regarding the Veteran's marked improvement of his recurrent gouty arthritis on Colchicine and Allopurinol therapies. The Veteran was afforded a VA examination for his arthritic gout in June 2009. A review of his medical history revealed that in the 1980s he had pain in his left big toe with swelling, and subsequently experienced flare-ups of the same symptoms every two months, such that he was diagnosed with gout in 1988, and treated with good results on Naproxen. He had since then experienced recurrent gout in different joints every two months, mainly affecting his left big toe, left and right feet. In June 2008 when the Veteran was diagnosed with chronic kidney disease, he was taken off of Naproxen, and placed on Allopurinol and Colchicine therapies as needed. The Veteran reported the gout was progressively worse since its onset; however, he also indicated that the gout responded well to treatment. The Veteran reportedly did not use assistive devices or aids; however, there were limitations of walking and standing when his gout flared-up. Specifically, during flare-ups, he indicated that he had difficulty standing for more than a few minutes, and was unable to walk more than a few yards. Regarding his feet, the Veteran reported no foot-related hospitalization or surgery, trauma to the feet, or foot related neoplasm. Pain, swelling, heat, redness, stiffness, fatigability, weakness, lack of endurance, and other symptoms were not identified for the feet. There was not a skin or vascular foot abnormality, or evidence of malunion or nonunion of the tarsal or metatarsal bones, or atrophy of the foot. There were flare-ups of foot joint disease occurring several times a year, but less than monthly, and lasting one to two weeks. Certain food precipitates and diet alleviated flare-ups. Flare-ups limited the Veteran's motion by requiring him to rest, elevate and ice his feet due to severe pain and swelling. On physical examination of the feet, there was no evidence of painful motion, swelling, instability, weakness, or abnormal weight bearing. There was evidence of tenderness of the left foot, particularly over the first metatarsophalangeal joint. At that time, the Veteran's weight loss was less than 10 percent compared to the baseline, and he weighed 210 pounds. X-ray images of the feet showed normal bony mineralization and development bilaterally with advanced arthritic/degenerative changes involving the first, second, and third left tarsometatarsal joints. Some central erosive changes were suspected at the base of the left first metatarsal. Mild cortical irregularity affected the head of the left narrowing of the right first metatarsophalangeal joint. There were no signs of acute fractures or dislocations. Bilateral plantar calcaneal spurring was noted at the second metatarsal joint. There were periarticular calcifications lateral to the right fifth metatarsal head and suggestion of a subtle erosion of the head of the left fifth metatarsal distally. The impression was of advanced arthritic/degenerative changes involving the left first, second, and third tarsometatarsal joints. There was slight cortical irregularity of the head of the left second metatarsal possibly consistent with gouty arthropathy, with degenerative changes of the right first metatarsophalangeal joint and left interphalangeal joint. There were bilateral plantar calcaneal spurs, and periarticular calcifications lateral to the right fifth metatarsal head, and small erosion of the head of the left fifth metatarsal. Arthritic gout had significant effects on the Veteran's usual occupation as a heavy equipment operator, impacting his occupational activities with decreased mobility due to pain. His usual daily activities were also moderately affected. The Veteran reported that he had lost eight weeks from work in the previous twelve month period due to arthritis. The Veteran wrote to explain that his feet are required to operate equipment. In March 2010 the Veteran contended that the bones in his left foot were so deformed that he no longer had an arch. He wrote that when his gout flared up he could not walk, and that he had to retire because he could not work with his feet in this condition. He asserted that due to his disabilities he had difficulty functioning. In June 2010 the Veteran was afforded another VA examination. At that time the diagnosis was of chronic arthritic changes of gout to both feet, worse on the left side. The Veteran reported that he was unemployed but not retired, attributing this to his inability to work with heavy equipment due in part to his gout. The examiner reviewed the Veteran's history, to include his diagnosis of gout in the 1980s and early treatment with Naproxen, as compared to the Veteran's current treatment of Allopurinol and Colchicine, with Naproxen for pain. The Veteran's gout was stable since onset and treated with medication. The Veteran reported pain in the soles of his feet, with the left side worse, and in his toes. He reported that there was no history of foot related hospitalization or surgery, trauma to the feet, or foot related neoplasm. Swelling, heat, redness, weakness, lack of endurance, and other symptoms were not identified by the Veteran for the left foot. Pain and stiffness while standing and walking, and fatigability, were reported by the Veteran for the left foot. He reported pain on the sole of the left foot and toes, stiffness of the toes, and fatigability of the left foot and toes. Regarding the right foot, the Veteran reported the same, with the addition of stiffness to the foot as well as to the toes, and with the specification that fatigability was while standing and while walking. The Veteran reported there were no flare-ups of foot joint disease at the examination. In relation to flare-ups, he indicated that he was unable to stand for more than a few minutes, able to walk only a quarter of a mile, and that he did not need assistive devices. On examination of the feet, there was no evidence of painful motion, swelling, tenderness, instability, weakness, or abnormal weight bearing. There was, however, evidence of gouty nodules on the medial and lateral side of the left foot which were not then painful. For the right foot, there was no evidence of painful motion, swelling, tenderness, instability, weakness, other, or abnormal weight bearing. There was no evidence of skin or vascular foot abnormality, or malunion or nonunion of the tarsal or metatarsal bones, or muscle atrophy for either foot. The Veteran's gait showed that he walked slowly without any evidence of stress. The examiner reviewed the Veteran's June 2009 X-rays of the feet. The examiner diagnosed the Veteran as having bilateral gouty arthritis of the feet, more severe on the left. The Veteran was not then employed, and had not been for less than a year at that point. The examiner noted that the Veteran should not perform heavy duty work, although he should be able to do sedentary work, and there were no problems with daily activities. After considering the totality of the record, the Board finds the evidence supports a 40 percent disability rating and no higher for the Veteran's gout. The Board has also considered whether a rating in excess of 40 percent may be warranted for the Veteran's gout, including as measured by limitation of motion of the parts affected, to include the effect of pain and weakness. 38 C.F.R. §§ 4.40, 4.45; DeLuca v. Brown, 8 Vet. App. 202 (1995). The Board notes the Veteran's reports of pain, fatigability and stiffness of the feet. The Board observes that a Note under Diagnostic Code 5002 is to the effect that the ratings for the active process will not be combined with the residual ratings for limitation of motion or ankylosis and that the higher rating will be assigned. Significantly, the June 2009 VA examination report demonstrates that the Veteran's gout causes incapacitating exacerbations occurring several times per year. During these flare-ups, which last approximately one to two weeks, the Veteran has indicated difficulty walking more than a quarter of a mile or standing for more than a few minutes. The Veteran has claimed limitation of function of the feet related to gout in the form of pain, stiffness and fatigability to the soles of the feet and the toes. The Veteran has indicated the need to rest, elevate and ice his feet during flare-ups. He uses medication and a controlled-diet to alleviate the painful symptoms of his gout. Considering the Veteran's symptoms in the light of the applicable rating criteria, the Board finds that the Veteran is most appropriately rated under the criteria for gout. The Board notes that in light of the June 2009 examination and the Veteran's reported symptomatology, the Veteran has impairment of health objectively supported by incapacitating episodes occurring 3 or more times a year. Thus, in an effort to properly rate this Veteran, the Board resolves all reasonable doubt in the Veteran's favor and finds that he is entitled to a 40 percent rating for his gout. Overall, the preponderance of the evidence is against a rating of 60 percent for gout where there is no evidence of weight loss and anemia productive of severe impairment of health or severely incapacitating exacerbations occurring 4 or more times a year or a lesser number if over prolonged periods. Although the Veteran has several incapacitating episodes a year, they do not appear to arise to the level of severely incapacitating where they are managed with rest, ice, and Naproxen as needed for pain, but do not require surgery or hospitalization. In addition, although the Veteran has some weight loss, it is less than 10 percent from his baseline weight, and the record does not suggest that he is anemic. As such, the Board finds that no higher rating than 40 percent is warranted for the Veteran's gout. Overall, the evidence is at least in balance as to whether an initial disability rating of 40 percent is warranted for the Veteran's gout. Additionally, the Board has considered whether to issue staged ratings pursuant to Fenderson, and finds that under the circumstances, staged ratings are not appropriate. See Fenderson v. West, 12 Vet. App. 119 (1999). Shoulder Disability The criteria for rating disabilities of the shoulder are found at 38 C.F.R. § 4.71a, Diagnostic Codes 5200 to 5203 (2010). These diagnostic codes distinguish between the major (dominant) extremity and the minor (non-dominant) extremity. See 38 C.F.R. § 4.69 (2010). Because the record on appeal establishes that the appellant is right handed, the criteria for rating disabilities of the major extremity are for application. As set forth above, the RO has rated the Veteran's right (major) shoulder disability as 10 percent disabling based on limitation of motion due to pain. See 38 C.F.R. §§ 4.59, 4.71a, Diagnostic Codes 5010-5203. Diagnostic Code 5010 provides that arthritis due to trauma, substantiated by X-ray findings, will be rated based on limitation of motion under the appropriate diagnostic codes for the specific joint involved. 38 C.F.R. § 4.71a, Diagnostic Code 5010. When the limitation of motion of the specific joint or joints involved is noncompensable under the appropriate Diagnostic Codes, a rating of 10 percent is for application for each such major joint or group of minor joints affected by limitation of motion. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. Diagnostic Code 5203 pertains to impairment of the clavicle or scapula with dislocation; nonunion with or without loose movement; or malunion. A 10 percent rating is assigned for malunion of the clavicle or scapula or nonunion of the clavicle or scapula without loose movement. A 20 percent rating is assigned where there is nonunion with loose movement or where there is dislocation of the clavicle or scapula. In the alternative, the disability may be rated on impairment of function of a contiguous joint. 38 C.F.R. § 4.71a, Diagnostic Code 5203 (2010). Limitation of the arm is rated under Diagnostic Code 5201. Under that provision, a 20 percent rating is assigned where motion of either arm is limited to the shoulder level. A 30 percent rating requires that motion of the major arm be limited to midway between the side and shoulder level, and a maximum 40 percent rating requires limitation of motion of the major arm to 25 degrees from the side. See 38 C.F.R. § 4.71a, Diagnostic Code 5201. In determining whether a veteran has limitation of motion to shoulder level, it is necessary to consider reports of both forward flexion and abduction. See Mariano v. Principi, 17 Vet. App. 305, 314-16 (2003). In every instance where the minimum schedular evaluation requires residuals and the schedule does not provide for a zero percent evaluation, a zero percent evaluation will be assigned when the required symptomatology is not shown. 38 C.F.R. § 4.31 (2010). Normal shoulder motion is defined as zero to 180 degrees of forward elevation (flexion), 0 to 180 degrees from the side of the body out to the side (abduction), and zero to 90 degrees of internal and external rotation. See 38 C.F.R. § 4.71, Plate I. To review the Veteran's medical history, service treatment records show that the Veteran had several right shoulder dislocations beginning in 1975, typically from playing sports, and underwent a Bristow procedure by August 1978 to treat the chronic recurrent dislocations. At that time the shoulder joint appeared normal with no evidence of post-surgical change. In September 1979 the Veteran had to have a pin removed from his shoulder because it had loosened and created a palpable clicking sensation of the anterior portion of the joint with flexion-extension motion. The Veteran was variously treated with Tylenol 3 for persistent pain, a sling for his shoulder, convalescent leave from his squadron, and temporary removal from contact sports. Radiographic imaging of the right shoulder in May 1983 revealed no evidence of fracture, dislocation or destructive process, and the joint spaces and relationships were well maintained, such that the impression was of a well-maintained normal shoulder. Treatment records from the 1980s reveal that the Veteran was variously assessed as having right shoulder bursitis, shoulder strain, shoulder dislocation and spontaneous relocation. Post-service medical records show that in November 2008 the Veteran was seen at the Mike O'Connaghan Federal Hospital complaining of right shoulder pain. Radiological report revealed osseous demineralization was present, as was mild acromioclavicular joint degeneration, subtle lucencies in the superolateral humeral head likely representing resorption cyst, and a rounded lucency about the inferior glenoid that may have represented artifact from trabecular pattern versus subchondral cyst or interosseous ganglion. Otherwise, periarticular soft tissues appeared within normal limits, and there was satisfactory anatomic alignment of the shoulder girdle, and no fracture, lytic or blastic lesions were apparent. The Veteran had experienced increased shoulder pain over the previous several years, and denied any recent trauma, tingling or numbness of his arms. He had experienced one episode of muscle spasms where he had right shoulder pain that radiated to his neck. There was increased crepitus to the right shoulder joint during full range of motion, as well as decreased range of motion to the right shoulder joint secondary to pain, and decreased strength of the right upper extremity secondary to right shoulder pain. There was pain and tenderness on palpation to the right acromioclavicular joint; however, there was no noted effusion, excess mobility or laxity. The Veteran was referred to physical therapy consult and counseled to take Extra Strength Tylenol as needed for the pain. March 2009 medical records show that the Veteran had abnormal motion with pain elicited on motion, a Neer impingement test, and a Hawkins-Kennedy impingement test. There was instability; however, there was no swelling, no erythema, no warmth, no misalignment and no tenderness on palpation. The Veteran was referred to orthopedics for joint instability of the shoulder region and shoulder impingement. At a follow-up orthopedics consult the Veteran explained that he experienced increased pain with overhead activities and sleeping. His right upper extremity was neurovascularly intact without lesions, and shoulder musculature was symmetric with no winging of the scapula, and range of motion was nearly symmetric bilaterally. The shoulder was tender to palpation around the acromioclavicular joint. There was a negative supraspinatous, drop arm, subscapularis lift off, speeds, Yergason's, Neer's, modified O'Brien's, Jobe's relocation, sulcus or Spurling's; however, there was a positive Hawkin's and cross-arm. There was normal posterior and anterior translation of the glenohumeral joint. X-ray revealed a Type II acromion, acromioclavicular and glenohumeral degenerative joint disease. Provisional diagnosis was of shoulder impingement and degenerative joint disease, and the assessment was tendonitis rotator cuff and osteoarthritis localized primary shoulder. The Veteran was injected with Marcaine, Lidocaine, and Kenalog, and received full relief of his symptoms status-post injection. VA examination of the right shoulder was afforded in June 2009. At that time the Veteran complained that he experienced daily moderate pain of the right shoulder that was worse with activities. Having discussed his history regarding his 1975 dislocation of his shoulder, and subsequent dislocation and Bristol procedure repair, the Veteran described a progressively worse course since onset. The Veteran reported that he took Tylenol and had a fair response, and no side effects. As determined by the Veteran's report, his right hand was dominant. There was no right shoulder joint deformity, giving way, instability, incoordination, decreased speed, episodes of dislocation of subluxation, locking episodes, or effusions. There was, however, pain, stiffness, weakness, and tenderness. There were no flare-ups, and the disability did not affect the range of motion. There were not constitutional symptoms of arthritis. There were, however, incapacitating episodes of arthritis, occurring more than 4 times per year, and lasting approximately 1 to 2 weeks. On examination, it was noted that there were recurrent shoulder dislocations, and guarding movement at the shoulder level. Inflammatory arthritis was present; however, there were no extra-articular manifestations. The problem was in an active status. In summary, the right shoulder showed crepitus, tenderness, and pain at rest. Range of motion testing revealed pain with active motion. Flexion was 0 to 135 degrees, abduction was 0 to 140 degrees, internal rotation was 0 to 80 degrees, and external rotation was 0 to 70 degrees. There was objective evidence of pain following repetitive motion; however, there were no additional limitations after three repetitions of range of motion testing. X-ray images were obtained for internal and external rotation views of the right shoulder, and revealed that the acromioclavicular and glenohumeral joint relationships were normal. In addition, bony development and mineralization were within normal limits. Regional soft tissues were unremarkable. The impression was of an unremarkable plain film finding for the right shoulder. The diagnosis was status-post right shoulder dislocations, status-post surgical repair with residual pain and limited range of motions. There were significant effects on the Veteran's usual occupation. Such activities as lifting, carrying, and reaching presented difficulties, and there was decreased strength in the upper extremity as well as pain. The Veteran was employed fulltime as a heavy equipment operator. His shoulder disability affected his work in the form of increased absenteeism. In addition, the right shoulder disability affected the Veteran's usual daily activities, and even prevented his participation in sports. His disability severely affected his ability to perform chores and exercise, moderately affected his shopping, recreation, traveling, and driving activities, and mildly affected his bathing, dressing, and toileting habits. Then, in August 2009 the Veteran was seen in the orthopedics clinic of the Federal Hospital for his right shoulder. On examination, the right upper extremity was neurovascularly intact without lesions. The shoulder musculature was symmetric with no winging of the scapula. Range of motion was nearly symmetric bilaterally. The shoulder, however, was tender to palpation about the acromioclavicular joint. Supraspinatus, drop arm, subscapularis lift off, speeds, Yergason's, Neer's, modified O'Brien's, Jobe's relocation, sulcus or Spurling's tests were negative. There was normal anterior and posterior translation of the glenohumeral joint. There was positive Hawkin's test and cross-arm test with the latter being most positive. X-ray revealed Type II acromion, acromioclavicular and glenohumeral degenerative joint disease. The Veteran was diagnosed as having shoulder impingement and acromioclavicular degenerative joint disease. The Veteran opted for an injection of Triamcinolone Acetonide for tendonitis of the rotator cuff of the right shoulder and osteoarthritis that was localized and primary in the right shoulder. In August 2009, the Veteran contended that he was entitled to at least 70 percent for his right shoulder disability. He emphasized that he is a heavy equipment operator by trade. He stated that pain injections were necessary for him to function, and without them, he experienced severe pain such that he could not work. In March 2010 the Veteran filed his Substantive Appeal asserting that his right shoulder disability should be assigned a rating greater than 10 percent. He contended that at the time of his VA examination, he had cortisone shots in his right shoulder that helped him attain the resulting range of motion. He explained that he was still being treated with these shots, and that without them, his range of motion was considerably lessened. Federal Hospital medical records show that in August 2009 and January 2010 the Veteran was seen for his right shoulder because he experienced increased pain with overhead activities and sleeping, and in spite of several months of relief from a subacromial injection he was experiencing a return of his symptoms. At that time his right upper extremity was neurovascularly intact without lesions, and shoulder musculature was symmetric with no winging of the scapula, and range of motion was nearly symmetric bilaterally. The shoulder was tender to palpation around the acromioclavicular joint. There was a negative supraspinatus, drop arm, subscapularis lift off, speeds, Yergason's, Neer's, modified O'Brien's, Jobe's relocation, sulcus or Spurling's; however, there was a positive Hawkin's. The August 2009 test results revealed that cross-arm was most positive, and the January 2010 results showed cross-arm was negative. There was normal posterior and anterior translation of the glenohumeral joint. X-ray revealed a type II acromion, acromioclavicular and glenohumeral degenerative joint disease. Diagnosis was of shoulder impingement. The Veteran, assessed as having tendonitis, rotator cuff, right shoulder in both August 2009 and January 2010, and osteoarthritis localized and primary of the right shoulder in August 2009-opted for injections for treatment. A note from January 2010 also refers to the Veteran as being on Lortab therapy for right shoulder pain and severe arthritis. In March 2010 the Veteran was taking Hydrocodone for his shoulder pain. In April 2010 the Veteran was seen in the orthopedics clinic and diagnosed as having shoulder impingement and synovitis of the acromioclavicular joint of the shoulder. At that time, examination showed that he had good musculature of the bilateral shoulders, symmetric range of motion bilaterally, a negative Neer extending O'Brien's, and good rotator cuff strength. He had acromioclavicular joint tenderness, pain with cross body motion, and a positive Hawkins test. The assessment was of shoulder impingement and acromioclavicular joint arthrosis of the right shoulder. He received arthrocentesis injection of the acromioclavicular joint, corticosteroids injection of the intraarticular subacromial bursa, and an injection of Triamcinolone Acetonide. Following the injections the Veteran had nearly 100 percent relief of his pain and the anesthetic phase; however, he was still instructed to limit his activities for several days. Chronic problems of localized primary osteoarthritis of the shoulder, rotator cuff tendonitis, and shoulder impingement were listed on the Veteran's medical problem list as recently as May 2010. The Veteran was afforded another VA examination of his right shoulder in June 2010. A review of his history showed that he had dislocated his right shoulder for which he had surgery and subsequent removal of the pin. He continued to experience aching and pain, and was on Loratab as required. At that time the Veteran was not retired, yet he was unemployed because he reported that he could not do the heavy equipment work required of him due in part to his right shoulder. He was diagnosed as having a right shoulder disorder and status-post surgery for recurrent right shoulder dislocation. He had decreased range of motion. The effects on his usual occupation were that he was assigned different duties, and there was decreased mobility and pain which affected his occupational activities. In addition, his usual daily activities were affected in that he could not perform heavy work; however, the examiner noted that he could still perform sedentary work. The Veteran indicated that his right side was dominant. The right shoulder joint did not evidence deformity, giving way, instability, incoordination, or other symptoms. The right shoulder joint, however, was productive of pain, stiffness, weakness, ,and decreased speed of joint motion. There were no episodes of dislocation or subluxation, locking, effusions, flare-ups of joint disease, symptoms of inflammation, or affects on the motion of the joint. There were not constitutional symptoms of arthritis. There was mild tenderness of the right shoulder. Per range of motion testing, there was objective evidence of pain with active motion on the right side, flexion and abduction were 0 to 145 degrees, and internal and external rotation were 0 to 85 degrees. There was objective evidence of pain following repetitive motion; however, there were no additional limitations after three repetitions of range of motion. There was no joint ankylosis. Significant physical findings were of slight tenderness on the posterior aspect of the right shoulder, pain on active motion, and decreased range of motion of the right shoulder. There was no apparent additional functional impairment following repetitive use of the shoulder joint. The June 2009 X-rays were reviewed. Applying the facts in this case to the criteria set forth above, the Board finds that a higher initial rating for the Veteran's right shoulder disability is not warranted. The Veteran's right shoulder is noncompensable according to the rating criteria for limited motion, where his arm is not limited to motion at the shoulder level. There is, however, X-ray evidence of osteoarthritis of the shoulder joints, and there is evidence of limitation of motion with pain, instability, and an episode of muscle spasm. As such, the evidence supports the 10 percent rating currently assigned for arthritis of the right shoulder. Thus, the criteria for an initial rating in excess of 10 percent have not been met. The Board has also considered the objective evidence of limited motion of the shoulder, and the Veteran's reports that his right shoulder causes him pain and spasms. The Board finds, however, that the Veteran does not exhibit limitation of motion to the extent required for a compensable rating under Diagnostic Code 5201, and as such he is most appropriately rated as having a right shoulder disability that is 10 percent disabling according to Diagnostic Code 5010. Consideration has also been given to assigning staged ratings; however, at no time during the period on appeal has the right shoulder disability warranted more than a 10 percent rating. See Hart v. Mansfield, 21 Vet. App. 505 (2007); Fenderson v. West, 12 Vet. App. 119 (1999). Extraschedular Consideration In accordance with Thun v. Peake, 22 Vet. App. 111 (2008), there is a sequential three-step analysis to determine whether a case should be referred for extraschedular consideration. Step one, is to determine whether the schedular rating adequately contemplates a claimant's disability picture. If the criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the Rating Schedule, and the assigned schedular evaluation is, therefore, adequate, then no referral to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for consideration of an extraschedular rating is required. If the schedular criteria do not contemplate the claimant's level of disability and symptomatology and the schedular criteria are therefore found to be inadequate, then step two is to determine whether the claimant's disability picture is exceptional with such related factors such as marked interference with employment or frequent periods of hospitalization as to render impractical the application of the regular schedular criteria. If the disability picture meets the second step, then the third step is to refer the case to the Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether an extraschedular rating is warranted. Regarding the first step of Thun, the Board finds that the rating criteria reasonably describe the Veteran's disabilities and symptomatology. In other words, the Veteran, has described symptomatology regarding gout that includes pain, swelling, incapacitating episodes, fatigability, and stiffness. He has also described symptoms including crepitus to the shoulder joint, tenderness and pain, stiffness, weakness and limited motion of his right shoulder, such that he was administered injections for relief. The Board is cognizant of the Veteran's contention that the shoulder disability affects his ability to perform heavy work. The Veteran, however, does not experience symptomatology not already contemplated by the Rating Schedule. As the rating criteria reasonably describe the disability and symptomatology, the threshold factor for extraschedular consideration under step one of Thun has not been met, and the Board need not reach the second step of the Thun analysis, that is, whether the disability picture is exceptional. As the disability picture is contemplated by the Rating Schedule, the assigned schedular rating is, therefore, adequate. Consequently, referral for extraschedular consideration is not required under 38 C.F.R. § 3.321(b)(1). (CONTINUED ON NEXT PAGE) ORDER A 40 percent rating for service-connected arthritic gout of the bilateral feet, but no higher, is granted, subject to the laws and regulations governing the award of monetary benefits. A rating in excess of 10 percent for a service-connected right shoulder disability is denied. ____________________________________________ James L. March Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs