Citation Nr: 0811705 Decision Date: 04/09/08 Archive Date: 04/23/08 DOCKET NO. 06-04 212 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Juan, Puerto Rico THE ISSUES 1. Entitlement to a disability rating in excess of 10 percent for left shoulder adhesive capsulitis with bursitis. 2. Entitlement to service connection for a psychiatric disorder, variously diagnosed as adjustment reaction, depression, and anxiety. 3. Entitlement to service connection for a right knee disorder. 4. Entitlement to service connection for a left knee disorder. 5. Entitlement to service connection for headaches. 6. Entitlement to service connection for deep vein thrombosis (DVT) of the lower extremities. 7. Entitlement to service connection for pulmonary embolism. 8. Entitlement to service connection for a blood disorder, claimed as coagulation. REPRESENTATION Appellant represented by: Puerto Rico Public Advocate for Veterans Affairs WITNESS AT HEARING ON APPEAL Dr. J. A. Guarve ATTORNEY FOR THE BOARD D. Havelka, Counsel INTRODUCTION The veteran's active military service extended from October 2003 to July 2004. This matter comes before the Board of Veterans' Appeals (Board) on appeal from September 2005 and April 2006 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in San Juan, Puerto Rico. The issues involving service connection are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. The veteran reports being right handed. 2. The veteran's service-connected adhesive capsulitis with bursitis of the left shoulder is manifested by abduction to 150 degrees and flexion to 150 degrees without pain, complaints of pain and discomfort with lifting heavy objects or working overhead. CONCLUSION OF LAW The criteria for a disability rating in excess of 10 percent rating for adhesive capsulitis with bursitis of the left shoulder have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. § 4.71a, Diagnostic Codes 5019, 5201 ( 2007). REASONS AND BASES FOR FINDINGS AND CONCLUSION Before proceeding with an analysis of the merits, the Board must examine whether the requirements under the Veterans Claims Assistance Act of 2000 (VCAA) have been satisfied. The VCAA describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2007). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b) (2007); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper VCAA notice must inform the claimant of any information and 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 provide any evidence in his possession that pertains to the claim in accordance with 38 C.F.R. § 3.159(b)(1). In Pelegrini v. Principi, 18 Vet. App. 112 (2004), the U.S. Court of Appeals for Veterans Claims (Court) held, in part, that a VCAA notice, as required by 38 U.S.C.A. § 5103(a), must be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim for VA benefits. In the present case, this notice was provided to the veteran in a letter dated August 2004, which was prior to the adjudication of the issue. The Board further observes that during the pendency of this appeal, on March 3, 2006, the United States Court of Appeals for Veterans Claims (Court) issued a decision in the consolidated appeal of Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), which held that the VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim. Those five elements include: 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. Notice with respect to this information was provided to the veteran in a letter dated March 2006. Moreover, the issue being adjudicated below involves the initial disability rating granted upon a grant of service connection. Service connection was granted for a left shoulder disability and a 10 percent disability rating was effective back to the date of separation from active service. 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. Finally, to the extent that VA has failed to fulfill any duty to notify and assist the veteran, the Board finds that error to be harmless. Of course, an error is not harmless when it "reasonably affect(s) the outcome of the case." ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998). In this case, however, as there is no evidence that any failure on the part of VA to further comply with the VCAA reasonably affects the outcome of this case, the Board finds that any such failure is harmless. See also Mayfield v. Nicholson, 19 Vet. App. 103 (2005). The Board has reviewed all of the evidence in the veteran's claims file, which includes, but is not limited to: service medical records; hearing testimony, VA medical treatment records; and VA examination reports. The Board will summarize the relevant evidence where appropriate, and the Board's analysis will focus specifically on what the evidence shows, or fails to show, with respect to the veteran's claim for an increased disability rating for his service-connected left shoulder disorder. Disability evaluations are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Schedule), found in 38 C.F.R. Part 4 (2007). The 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; 38 C.F.R. § 4.1 (2007). In considering the severity of a disability, it is essential to trace the medical history of the veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41 (2007). 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; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Generally, 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 evaluations shall be applied, the higher evaluations will be assigned if the disability more closely approximates the criteria required for that 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). This appeal addresses the initial disability ratings assigned for the veteran's service-connected disability upon the award of service connection; the entire body of evidence is for equal consideration. Consistent with the facts found, the ratings may be higher or lower for segments of the time under review on appeal, i.e., the rating may be "staged." Fenderson v. West, 12 Vet. App. 119 (1999). The veteran's service medical records reveal that he was treated for complaints of left shoulder pain during active service. Ultimately the diagnosis was left shoulder tendonitis. The veteran separated from active service in July 2004. In September 2004, a VA general medical examination of the veteran was conducted. The veteran reported being right handed and having left shoulder pain with lifting. Physical examination of the left shoulder revealed a normal range of motion with no fatigue on repetitive motion. X-ray examination revealed no abnormalities of the left shoulder. In November 2004, a VA joints examination of the veteran was conducted. He reported having anterior left shoulder pain with lifting heavy objects or doing overhead work. Range of motion testing of the left shoulder revealed abduction to 150 degrees and flexion to 150 degrees. The Board notes that the normal range of motion of the shoulder for both flexion and abduction from 0 to 180 degrees. Ninety degrees denotes the half-way point of this range of motion and is at shoulder level. 38 C.F.R. § 4.71, Plate I (2007). No objective evidence of pain on motion was noted. Crepitus of the left shoulder was noted. However, there was no evidence of edema, effusion, swelling, weakness, tenderness or abnormal movement. The diagnosis was left shoulder capsulitis with bursitis. Subsequent VA treatment records do not show treatment for complaints of left shoulder pain. The veteran's service-connected left shoulder disability is presently rated at 10 under Diagnostic Code 5019 for bursitis, which instructs to rate the disability for limitation of motion of the affected part as degenerative arthritis. 38 C.F.R. § 4.71a, Diagnostic Code 5019 (2007). Diagnostic code 5003, degenerative arthritis, requires rating under limitation of motion of the affected joints, if such would result in a compensable disability rating. 38 C.F.R. § 4.71a, Diagnostic Code 5003 (2007). 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 assigned for each such major joint or group of minor joints affected by limitation of motion, to be combined, not added under diagnostic code 5003. 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 (2007). As noted above, the medical evidence of record establishes that the veteran is right handed. Accordingly, the disability rating assigned for his left shoulder disability involves rating the minor extremity. Limitation of motion of the arm (shoulder) is rated under Diagnostic Code 5201. A 20 percent rating contemplates limitation of motion of the minor arm to either shoulder level (90 degrees) or to midway between the side and shoulder level (45 degrees). A 30 percent rating, the highest rating assignable under this Diagnostic Code, contemplates limitation of motion of the minor extremity to 25 degrees from the side. 38 C.F.R. § 4.71a, Diagnostic Code 5201 (2007). The preponderance of the evidence is against the assignment of a disability rating in excess of 10 percent for the veteran's service-connected left shoulder disability. The medical evidence of record clearly shows that his flexion and abduction of the left shoulder are limited to 150 degrees each. This does not even approximate being at shoulder level to meet the criteria for a 20 percent rating. There is no evidence that the veteran's range of motion of the left shoulder is limited to degree that would warrant the assignment of a disability rating in excess of 10 percent. Accordingly, an increased rating must be denied. 38 C.F.R. § 4.71a, Diagnostic Code 5201. The Board has considered the veteran's left shoulder disability under other appropriate Diagnostic Codes. However, there is no evidence of: ankylosis, dislocation, nonunion, malunion, or flail joint of the right shoulder. As such, disability ratings in excess of 10 percent are also not warranted. 38 C.F.R. § 4.71a, Diagnostic Codes 5200, 5202, 5203 (2006). The Board is required to consider the effect of pain and weakness when rating a service-connected musculoskeletal disability. 38 C.F.R. §§ 4.40, 4.45; DeLuca v. Brown, 8 Vet. App. 202 (1995) and Sanchez-Benitez v. West, 13 Vet. App. 282 (1999). The appellant's complaints of discomfort and pain have been considered and have been taken into account in the assignment of the disability rating. The Board has considered the veteran's claim for an increased rating under all appropriate diagnostic codes. In this case, the veteran's reports of pain have been recognized by the assignment of a 10 percent disability rating for his left shoulder disorder. Moreover, although the Board is required to consider the effect of pain when making a rating determination, which has been done in this case, it is important to emphasize that the rating schedule does not provide a separate rating for pain. See Spurgeon v. Brown, 10 Vet. App. 194 (1997). Finally, in reaching this decision the Board considered the doctrine of reasonable doubt, however, as the preponderance of the evidence is against the assignment of a disability rating in excess of 10 percent for the left shoulder, the doctrine is not for application. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER A disability rating in excess of 10 percent for left shoulder adhesive capsulitis with bursitis is denied. REMAND VA has a duty to assist the veteran in the development of the claim. This duty includes assisting the veteran in the procurement of service medical records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2007). In determining whether the duty to assist requires that a VA medical examination be provided or medical opinion obtained with respect to a veteran's claim for benefits, there are four factors for consideration. These four factors are: (1) whether there is competent evidence of a current disability or persistent or recurrent symptoms of a disability; (2) whether there is evidence establishing that an event, injury, or disease occurred in service, or evidence establishing certain diseases manifesting during an applicable presumption period; (3) whether there is an indication that the disability or symptoms may be associated with the veteran's service or with another service-connected disability; and (4) whether there otherwise is sufficient competent medical evidence of record to make a decision on the claim. 38 U.S.C. § 5103A(d) and 38 C.F.R. § 3.159(c)(4). With respect to the third factor above, the U.S. Court of Appeals for Veterans Claims has stated that this element establishes a low threshold and requires only that the evidence "indicates" that there "may" be a nexus between the current disability or symptoms and the veteran's service. The types of evidence that "indicate" that a current disability "may be associated" with military service include, but are not limited to, medical evidence that suggests a nexus but is too equivocal or lacking in specificity to support a decision on the merits, or credible evidence of continuity of symptomatology such as pain or other symptoms capable of lay observation. McLendon v. Nicholson, 20 Vet. App. 79 (2006). In the present case, a hearing was held before a Decision Review Officer (DRO). The veteran did not attend this hearing. Rather, the veteran's representative presented a physician, who had not examined the veteran, or apparently reviewed any of the medical evidence of record. This physician nevertheless offered the opinion that all disabilities which the veteran was claiming service connection for were a result of "Persian Gulf Syndrome." The evidence of record does reveal that the veteran served in Kuwait. This evidence appears to meet the very low threshold established by McLendon to require a VA examinations and medical nexus opinions. Accordingly, such examinations should be conducted. Moreover, the VA Compensation and Pension examinations which were conducted shortly after the veteran's separation from service are inadequate as they do not offer opinions as to etiology or do not account for specific medical evidence of record. The Court has also held that, when the medical evidence is inadequate, VA must supplement the record by seeking an advisory opinion or ordering another medical examination. Colvin v. Derwinski, 1 Vet. App. 171 (1991) and Hatlestad v. Derwinski, 3 Vet. App. 213 (1992). Accordingly, the case is REMANDED for the following action: 1. The veteran should be asked to provide a list containing the names of all health care professionals and/or facilities (private and governmental) where he has received medical treatment for his claimed disabilities since his separation from service in July 2004. Subsequently, and after securing the proper authorizations where necessary, the RO should make arrangements in order to obtain all the records of treatment from all the sources listed by the veteran which are not already on file. 2. Request complete copies of all of the veteran's medical treatment records for treatment at VA medical center San Juan, Puerto Rico for the period from April 2006 to the present. All information obtained should be made part of the file. 3. The veteran should be accorded a joints examination. The report of examination should include a detailed account of all manifestations of right and left knee disorders found to be present. All necessary tests should be conducted and the examiner should review the results of any testing prior to completion of the report. The examiner is requested to indicate the current diagnoses of any knee disorder found to be present. The examiner is requested to offer an opinion, if possible, as the etiology of any current knee disorder. Specifically, is it as least as likely as not that any current knee disorder is related to the veteran's military service or the diagnosis of bilateral patellar tendonitis during service? Of note, a July 2004 VA MRI report indicated right knee joint effusion was present. The claims folder and a copy of this remand must be made available and reviewed by the examiner in conjunction with the examination. The examining physician should provide complete rationale for all conclusions reached. 4. The veteran should be accorded a VA psychiatric examination. The examination report should include a detailed account of all psychiatric pathology found to be present. The examiner is informed that a VA psychiatric examination conducted in September 2004, within months of the veteran's separation from service, diagnosed the veteran with an adjustment reaction but did not indicate what the cause of the reaction was. The examiner is requested to offer an opinion, if possible, as the etiology of any current psychiatric disorder. Specifically, is it as least as likely as not that any current psychiatric disorder is related to the veteran's military service? The report of examination should include a complete rationale for all opinions expressed. All necessary special studies or tests including psychological testing and evaluation are to be accomplished. The examiner should assign a numerical code under the Global Assessment of Functioning Scale (GAF). It is imperative that the physicians include a definition of the numerical code assigned. Thurber v. Brown, 5 Vet. App. 119 (1993). The diagnosis should be in accordance with the American Psychiatric Association: DIAGNOSTIC AND STATISTICAL MANUAL FOR MENTAL DISORDERS (4TH ed. rev., 1994). The entire claims folder and a copy of this remand must be made available to and reviewed by the examiner in conjunction with the examination. 5. The veteran should be accorded the appropriate examination for "Gulf War Syndrome." The report of examination should include a detailed account of all manifestations of the disorder found to be present. All necessary tests should be conducted and the examiner should review the results of any testing prior to completion of the report. The examiner is requested to offer a specific diagnosis, if possible, of the veteran's complaints of headaches, joint pain, pulmonary embolism, and blood disorders and to indicate if any of these disorders are the result of an undiagnosed illness. The claims folder and a copy of this remand must be made available and reviewed by the examiner in conjunction with the examination. The examining physician should provide complete rationale for all conclusions reached. 6. The veteran should be accorded the appropriate examination for deep vein thrombosis / vascular disorders. The report of examination should include a detailed account of all manifestations of the deep vein thrombosis of the lower extremities found to be present. All necessary tests should be conducted and the examiner should review the results of any testing prior to completion of the report. The examiner is requested to offer an opinion, if possible, as the etiology of any current DVT. Specifically, is it as least as likely as not that any current DVT is related to the veteran's military service or the diagnosis of bilateral patellar tendonitis during service? The examiner is also requested to indicate if the veteran's treatment with anticoagulant medications is a standard treatment for DVT or indicates the presence of a separate blood disorder? The claims folder and a copy of this remand must be made available and reviewed by the examiner in conjunction with the examination. The examining physician should provide complete rationale for all conclusions reached. 7. The veteran should be accorded the appropriate examination for pulmonary disorders. The report of examination should include a detailed account of all manifestations of the pulmonary embolism found to be present. All necessary tests should be conducted and the examiner should review the results of any testing prior to completion of the report. The examiner is requested to offer an opinion, if possible, as the etiology of any current pulmonary embolism. Specifically, is it as least as likely as not that any current pulmonary embolism is related to the veteran's military service? The claims folder and a copy of this remand must be made available and reviewed by the examiner in conjunction with the examination. The examining physician should provide complete rationale for all conclusions reached. 8. Following the above, readjudicate the appellant's claims. If any benefit on appeal remains denied, a Supplemental Statement of the Case should be issued and the appellant and his representative should be afforded an opportunity to respond. Thereafter, the case should be returned to the Board for appellate review. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2007). ______________________________________________ S. S. TOTH Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs