Citation Nr: 0810969 Decision Date: 04/03/08 Archive Date: 04/14/08 DOCKET NO. 05-04 166 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to an initial evaluation in excess of 10 percent for left shoulder strain. REPRESENTATION Appellant represented by: Texas Veterans Commission ATTORNEY FOR THE BOARD Ann-Monique Clark, Associate Counsel INTRODUCTION The veteran had active service from November 1999 until November 2003. This matter comes before the Board of Veterans' Appeals (BVA or Board) from a rating decision of the Department of Veterans Affairs (VA), Regional Office (RO) in Waco, Texas. In his substantive appeal, the veteran had requested a hearing before a Veterans Law Judge sitting at the RO. Such a hearing was scheduled for February 2008, but the evidence of record indicates that he failed to report. As such, his hearing request is considered withdrawn. See 38 C.F.R. § 20.702(d). FINDINGS OF FACT Throughout the rating period on appeal, the veteran's left shoulder strain has been productive of complaints of pain; objectively, there is no showing of loose movement or dislocation of the clavicle or scapula. CONCLUSION OF LAW The criteria for entitlement to an initial evaluation in excess of 10 percent for left shoulder strain have not been met. 38 U.S.C.A. §§ 1155, 5103A, 5107(b) (West 2002); 38 C.F.R. § 3.102, 3.159, 4.1, 4.2, 4.3, 4.6, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code (DC) 5299-5203 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSION Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. 38 C.F.R. § 4.1 (2007). Separate diagnostic codes identify the various disabilities. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. Part 4 (2007). However, the Board has been directed to consider only those factors contained wholly in the rating criteria. See Massey v. Brown, 7 Vet. App. 204, 208 (1994); but see Mauerhan v. Principi, 16 Vet. App. 436 (2002) (finding it appropriate to consider factors outside the specific rating criteria in determining level of occupational and social impairment). Where there is a question as to which of two separate evaluations shall be applied, the higher evaluation will be assigned if the disability more closely approximates the criteria required for that particular rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2007). When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability, such doubt will be resolved in favor of the veteran. 38 C.F.R. § 4.3 (2007). The Board has reviewed all of the evidence in the veteran's claims folder. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence of record. Indeed, the Federal Circuit has held that the Board must review the entire record, but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Therefore, the Board will summarize the relevant evidence where appropriate, and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, as to the claim. At the outset, the Board notes that the veteran's current appeal stems from an initial rating assignment. As such, the claim requires consideration of the entire time period involved, and contemplates staged ratings where warranted. See Fenderson v. West, 12 Vet. App. 119 (1999). Throughout the rating period on appeal, a 10 percent evaluation is in effect for the veteran's left shoulder disability. The veteran contends that his symptoms are of such severity as to warrant an increased rating. The veteran's left shoulder disability has been rated pursuant to DC 5203, which provides a 10 percent evaluation where the evidence demonstrates malunion the clavicle or scapula, or nonunion without loss movement. In order to be assigned the next-higher 20 percent rating, the evidence must show: * Nonunion of the clavicle or scapula with loose movement or dislocation. The Board has reviewed the evidence of record during the period in question and finds that the evidence does not support an award of the next-higher 20 percent rating under DC 5203. Indeed, a VA examination on September 2004 showed a left shoulder strain with widening of AC joint space. A VA examination in March of 2005 contained the diagnoses of a left shoulder strain. Neither examination, nor any other evidence of record, demonstrated findings consistent with the criteria for a 20 percent rating under DC 5203. The Board has also considered whether any alternate Diagnostic Codes could serve as a basis for an increased rating here. One such relevant Code section is 5201, which concerns limitation of arm motion. Under that Diagnostic Code, a 20 percent rating applies where the evidence shows limitation of arm motion at shoulder level, or midway between the side and shoulder level in the case of the major upper extremity. Upon VA examination in September 2004, the veteran had motion of the left shoulder to 180 degrees of flexion, 50 degrees of extension, 90 degrees of internal and external rotation, and 180 degrees of abduction. Results from the March 2005 VA examination showed 160 degrees of flexion, 90 degrees of internal rotation, 80 degrees of external rotation, and 160 degrees of abduction. The above findings do not meet the criteria for a 20 percent rating under Diagnostic Code 5201. However, the Board must also consider additional functional limitation due to factors such as pain, weakness, fatigability, and incoordination when evaluating musculoskeletal disabilities. See 38 C.F.R. §§ 4.40 and 4.45 and DeLuca v. Brown, 8 Vet. App. 202, 206-07 (1995). In this regard, at the VA examination in September 2004, the veteran complained of daily left shoulder pain. This was repeated in the veteran's notice of disagreement, when he stated that his shoulder was in constant pain. In an outpatient VA record of November 2004 the veteran once again reported persistent left shoulder pain. At his March 2005 VA examination, he additionally reported pain in his shoulder upon repetitive use, pushing, pulling and lifting heavy articles. He also reported that he was unable to reach above his head. The veteran is competent to provide testimony as to observable symptoms that he has experienced. Layno v. Brown, 6 Vet. App. 465 (1994). Moreover, the veteran's reports of left shoulder pain are consistent with the evidence of record and are found to be credible. However, despite the complaints and findings of pain as noted above, the evidence does not establish additional functional impairment such as to enable a finding that the veteran's disability picture most nearly approximates the next-higher 20 percent evaluation under DC 5201. Indeed, while left shoulder pain is shown, the competent evidence simply fails to demonstrate that such pain resulted in additional functional limitation. Again, the veteran had 160 degrees of shoulder abduction upon most recent examination in March 2005. His disability would need to be comparable to limitation to midway between side and shoulder level (90 degrees) to achieve a higher evaluation. See 38 C.F.R. § 4.71a, Plate I (2007). The Board has also considered whether any other Diagnostic Codes could serve as a basis for an increased rating. As the evidence above does not show any impairment of the veteran's humerus, DC 5202 is not applicable. There are no other relevant Diagnostic Codes for consideration. In conclusion, there is no basis for an evaluation in excess of 10 percent for left shoulder strain for any portion of the rating period on appeal. As the preponderance of the evidence is against the claim, the benefit of the doubt rule is not applicable. See 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990). Additionally, the evidence does not reflect that the disability at issue caused marked interference with employment (i.e., beyond that already contemplated in the assigned evaluation), or necessitated any frequent periods of hospitalization, such that application of the regular schedular standards is rendered impracticable. Hence, assignment of an extra-schedular evaluation under 38 C.F.R. § 3.321 (2007) is not warranted. Finally, as provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2007). Proper notice from VA must inform the claimant of any information and medical or lay evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; (3) that the claimant is expected to provide; and (4) must ask the claimant to provide any evidence in her or his possession that pertains to the claim in accordance with 38 C.F.R. § 3.159(b)(1). Quartuccio v. Principi, 16 Vet. App. 183 (2002). This notice must be provided prior to an initial unfavorable decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). In addition, the notice requirements of the VCAA apply to all five elements of a service-connection claim, including: (1) veteran status; (2) existence of a disability; (3) a connection between the veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Further, this notice must include information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Id. at 486. VCAA notice errors are presumed prejudicial unless VA shows that the error did not affect the essential fairness of the adjudication. To overcome the burden of prejudicial error, VA must show (1) that any defect was cured by actual knowledge on the part of the claimant; (2) that a reasonable person could be expected to understand from the notice what was needed; or, (3) that a benefit could not have been awarded as a matter of law. See Sanders v. Nicholson, 487 F.3d 881 (Fed. Cir. 2007). The veteran's claim for entitlement to an initial evaluation in excess of 10 percent for left shoulder strain arises from his disagreement with the initial evaluation following the grant of service connection. Courts have held that once service connection is granted the claim is substantiated, additional notice is not required and any defect in the notice is not prejudicial. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). Therefore, no further notice is needed under VCAA. As to VA's duty to assist, VA has associated with the claims folder the veteran's VA treatment records, and in September 2004 and March 2005, he was afforded formal VA examinations. The Board finds that no additional assistance is required to fulfill VA's duty to assist. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd, 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001). ORDER Entitlement to an initial evaluation in excess of 10 percent for left shoulder strain is denied. ____________________________________________ ERIC S. LEBOFF Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs