Citation Nr: 0810721 Decision Date: 04/01/08 Archive Date: 04/14/08 DOCKET NO. 04-25 793 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston- Salem, North Carolina THE ISSUE What evaluation is warranted for posttraumatic arthritis of the right shoulder with residuals from May 18, 2000? REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Heather M. Gogola, Associate Counsel INTRODUCTION The veteran served on active duty from June 1974 to April 1975. This matter is before the Board of Veterans' Appeals (Board) on appeal from a September 2002 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. The Board notes that the veteran's original claim was previously remanded to the RO via the Appeals Management Center (AMC) for further development per a Board decision dated January 2006. FINDING OF FACT Since May 18, 2000, the veteran's posttraumatic arthritis of the right shoulder disability has been primarily characterized by mild to moderate limitation of motion of the arm, with passive flexion ranging from 100-110 degrees with pain and passive abduction ranging from 75 to 110 degrees, with pain. Active forward elevation is shown to 70 degrees; active abduction is to 60 degrees; and active external and internal rotation is also limited to 60 degrees. CONCLUSION OF LAW Since May 18, 2000, the criteria for a 20 percent rating for posttraumatic arthritis of the right shoulder have been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.159, 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5019, 5201 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSION In Dingess v. Nicholson, 19 Vet. App. 473 (2006), the U.S. Court of Appeals for Veterans Claims (Court) held that, upon receipt of an application for a service-connection claim, 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b) require VA to review the information and the evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating, or is necessary to substantiate, each of the five elements of the claim, including notice of what is required to establish service connection and that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Here, the veteran is challenging the initial evaluation assigned following the grant of service connection. In Dingess, the Court of Appeals for Veterans Claims held that in cases where service connection has been granted and an initial disability rating and effective date have been assigned, the typical service-connection claim has been more than substantiated, it has been proven, thereby rendering section 5103(a) notice no longer required because the purpose that the notice is intended to serve has been fulfilled. Id. at 490-91. Thus, because the notice that was provided before service connection was granted was legally sufficient, VA's duty to notify in this case has been satisfied. The Court in Vazquez-Flores v. Peake, 22 Vet.App. 37 (2008), spoke only to cases of entitlement to an increased rating. Because there is a distinction between initial rating claims and increased rating claims, Vazquez-Flores is not for application with respect to initial rating claims as notice requirements are met when the underlying claim for service connection is substantiated. Consequently, there is no need to discuss whether VA met the increased duty to notify standard as enunciated in Vazquez-Flores in claims of entitlement to a higher initial rating nor is there a need to remand initial rating claims for remedial notice pursuant to Vazquez-Flores. VA has fulfilled its duty to assist the claimant in obtaining identified and available evidence needed to substantiate a claim, and as warranted by law, affording VA examination. The claimant further had been provided the opportunity to present pertinent evidence and testimony. In sum, there is no evidence of any VA error in notifying or assisting the appellant that reasonably affects the fairness of this adjudication. Analysis A rating decision dated September 2002, granted service connection for residuals of a right shoulder injury with history of an osteochondroma, and assigned a 10 percent evaluation, effective May 18, 2000. The veteran appealed, asserting that his right shoulder disorder warranted a higher rating. A June 2000 VA emergency room report noted complaints of right shoulder pain for the past 10 to 15 years. On examination, there was no tenderness or weakness, and there was normal movement with a little pain. The veteran was afforded a VA examination in August 2002. Upon examination, the veteran was noted to be right handed, and to report complaints of pain in the right shoulder. The examiner noted no complaints of flare-ups, no prior surgeries, no episodes of dislocation or recurrent subluxation, and no evidence of inflammatory arthritis. There was some tenderness in the anterior bursa, anterior elevation was limited to 110 degrees, lateral abduction was limited to 75 degrees, external rotation was to 75 degrees and internal rotation was to 55 degrees. X-rays revealed mild degenerative changes of the acromioclavicular joint. The examiner diagnosed residuals of a right shoulder injury with marked limitation of motion, and osteochondroma of the right scapula laterally, etiology not determined. An April 2003 VA treatment note indicated that the veteran complained of right shoulder pain that was treated with injections during service. X-rays from 8 months before, showed spurs. The veteran noted that he could not move his arm above his head without pain. Physical examination revealed that the appellant was unable to abduct the right shoulder beyond 70 degrees due to pain. Passive movement was possible but it was accompanied by pain. A diagnosis of right shoulder pain and bursitis was provided. The veteran was afforded a second VA examination of the right shoulder in June 2003. The examiner noted continued problems with the right shoulder, including limitation of motion and pain. The veteran reported increased pain radiating form the top of the shoulder down the right arm after doing yard work recently. The veteran reported occasional swelling but no flare-ups in the shoulder. He did state that over the past several years, he has had problems raising his shoulder. The examiner that x-rays taken one year prior did not show evidence of osteochondroma of the right scapula but did reveal some mild degenerative changes in the acromioclavicular joint of the right shoulder. Examination revealed that the veteran guarded his shoulder. The shoulder was slightly tender to the touch over the acromioclavicular joint and the posterior scapula. The veteran had abduction of the right arm to 60 degrees without pain, and to 110 degrees with pain. Internal and external rotation was normal with pain through the terminal 10 degrees of rotation. Adduction was within normal limits. The examiner provided a diagnosis of posttraumatic arthritis of the right shoulder, status post injury to the right shoulder with residuals. The examiner also stated that an incidental finding of right scapular osteochondroma in the past was not seen on recent x- rays. VA treatment records dated May 2003 through March 2005 noted complaints of chronic pain in the right shoulder and a diagnosis of degenerative joint disease treated with physical therapy. A September 2005 VA treatment note indicated complaints of chronic right shoulder pain. A diagnosis of degenerative joint disease was provided, and the veteran was recommended to begin physical therapy. An October 2006 occupational therapy evaluation of the right shoulder revealed complaints of pain with movement in all planes. Examination revealed right shoulder flexion to 60 degrees, abduction to 60 degrees, and external and internal rotation to 30 degrees. A January 2006 occupational therapy evaluation of right shoulder revealed that the veteran complained of pain on flexion and abduction of the right shoulder. Examination revealed right shoulder flexion to 100 degrees, abduction to 100 degrees and external and internal rotation within functional limits. There was tenderness to palpation on the anterior aspect of the right shoulder In February 2006, the veteran was afforded a third VA examination of the right shoulder. The veteran reported constant pain in the right shoulder, with worsening pain when using the right arm. The veteran reported one flare-up in September 2005, with pain reported at 8/10 and lasted a few weeks. There was no evidence of any episode of dislocation or recurrent subluxation, nor was there evidence of inflammatory arthritis. Physical examination revealed passive forward elevation to 110 degrees with pain, and active forward elevation to 70 degrees. Passive abduction was to 110 degrees with pain, and active abduction was to 60 degrees. Active external and internal rotation was to 60 degrees, passive external rotation was to 75 degrees with pain, and passive internal rotation to 80 degrees with pain. The examiner stated that pain was a major restricting factor, but that there was no additional limitation caused by fatigue, weakness or lack of endurance following repetitive use or during flare-ups. There was slight tenderness on the right acromioclavicular joint line. There was no evidence of any swelling, edema, effusion, redness, heat or tenderness, as well as no evidence of weakness or joint instability. There was also no evidence of ankylosis. X-rays reviewed revealed mild degenerative joint disease of the right shoulder at the acromioclavicular joint with mild to moderate functional impairment and decreased range of motion. There was no evidence of any joint dislocation, neurological compromise, as well as no evidence of any osteochondroma of the right scapula. The veteran was afforded a hearing before the undersigned veterans law judge. The veteran testified that he was unable to lift his arm to shoulder level before he began to experience pain. He also testified that he was right-handed but avoided using his right arm whenever possible, including when he was performing various chores. The present appeal involves the veteran's claim that the severity of his service-connected right shoulder disorder warrants a higher disability rating since the grant of service connection. Disability evaluations are determined by the application of the Schedule For Rating Disabilities, which assigns ratings based on the average impairment of earning capacity resulting from a service-connected disability. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. 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 required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the veteran's condition. Schafrath v. Derwinski, 1 Vet.App. 589, 594 (1991). However, where an increase in the level of a service-connected disability is at issue, the primary concern is the present level of disability. Francisco v. Brown, 7 Vet.App. 55 (1994). In cases of functional impairment, evaluations are to be based upon lack of usefulness, and medical examiners must furnish, in addition to etiological, anatomical, pathological, laboratory and prognostic data required for ordinary medical classification, a full description of the effects of the disability upon the person's ordinary activity. 38 C.F.R. § 4.10. The factors of disability regarding joints reside in reductions of their normal excursion of movements in different planes. Inquiry will be directed to these considerations: (a) less movement than normal (due to ankylosis, limitation or blocking, adhesions, tendon-tie-up, contracted scars, etc.); (b) more movement than normal (from flail joint, resections, nonunion of fracture, relaxation of ligaments, etc.); (c) weakened movement (due to muscle injury, disease or injury of peripheral nerves, divided or lengthened tendons, etc.); (d) excess fatigability; (e) incoordination, impaired ability to execute skilled movements smoothly; and (f) pain on movement, swelling, deformity or atrophy of disuse. Instability of station, disturbance of locomotion, and interference with sitting, standing, and weight-bearing are related considerations. 38 C.F.R. § 4.45. The veteran's right shoulder disability is evaluated under 38 C.F.R. § 4.71a, Diagnostic Code 5019 for bursitis. Under 38 C.F.R. § 4.71a, Diagnostic Code 5019, bursitis is to be evaluated as degenerative arthritis. Under 38 C.F.R. § 4.71a, Diagnostic Code 5003, degenerative arthritis established by x-ray findings will be rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. 38 C.F.R. § 4.71a, Diagnostic Code 5003. In this case, a 20 percent rating is not warranted under 38 C.F.R. § 4.71a, Diagnostic Codes 5200, 5202, or 5203. Diagnostic Code 5200 addresses ankylosis of scapulohumeral articulation, which is not present. Similarly, as there is no evidence of dislocation of the scaphyulohumeral join, malunion of the humerus, or dislocation or nonunion of the clavicle r scapula, a higher rating of 20 percent is not warranted under Diagnostic Codes 5202 or 5203. Diagnostic Code 5201 provides for a 20 percent evaluation for limitation of motion of the major arm with limitation of motion at the shoulder level. Limitation of motion to midway between the side and shoulder level warrants a 30 percent evaluation for the major shoulder. 38 C.F.R. § 4.71a, Code 5201. The normal range of shoulder motion is forward elevation (flexion) to 180 degrees; abduction to 180 degrees, external rotation to 90 degrees and internal rotation to 90 degrees. 38 C.F.R. § 4.71, Plate I. A distinction is made between major (dominant) and minor upper extremities for rating purposes. The evidence shows that the veteran's right arm is his major upper extremity. The veteran's right shoulder disorder is primarily characterized by chronic pain. While there is no competent evidence that right shoulder motion is limited to a point midway between the side and shoulder level, in general the evidence is in equipoise as to whether the appellant can lift the right arm to shoulder level. The Board finds the February 2006 findings that active forward elevation was limited to 70 degrees, active abduction being limited to 60 degrees of abduction, and active external and internal rotation being limited to 60 degrees to be consistent with other findings since May 18, 2000, and to warrant the assignment of a 20 percent rating under the doctrine of reasonable doubt. In making this decision the Board finds no evidence of an additional limitation caused by fatigue, weakness, lack of endurance during repetitive use. There is no evidence of flare-ups, joint dislocation, neurological compromise, or osteochondroma of the right scapula. Finally, the record consistently shows no evidence of dislocation, recurrent subluxation, inflammatory arthritis, swelling, effusion, redness, weakness, or joint instability. As the veteran has mild to moderate limitation of motion of the right arm at the shoulder joint, a rating of 20 percent is warranted under 38 C.F.R. § 4.71a, Diagnostic Code 5201. A 30 percent rating is not warranted as there is no medical evidence of a limitation of arm motion midway between the side and shoulder level. The Board is aware of the veteran's complaints of pain in his right shoulder. There is, however, no objective evidence that pain on use of the joint results in limitation of motion to a degree which would support a higher rating. 38 C.F.R. §§ 4.40, 4.45; Deluca v. Brown, 8 Vet. App. 202 (1995). Additionally, the veteran's current evaluations of his right shoulder disability as noted herein address any the Deluca concerns of pain, fatigability, weakness, and incoordination. In the Board's opinion, the evidence supportive of this claim is at least in equipoise with that against the claim. Accordingly, a rating of 20 percent for the veteran's right shoulder disability is warranted. ORDER Since May 18, 2000, a rating of 20 percent for posttraumatic arthritis of the right shoulder with residuals is granted, subject to the regulations applicable to the payment of monetary benefits. ____________________________________________ DEREK R. BROWN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs