Citation Nr: 0812304 Decision Date: 04/14/08 Archive Date: 05/01/08 DOCKET NO. 07-12 432 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to an increased rating for lumbar strain, currently rated as 10 percent disabling. 2. Entitlement to an increased rating for bursitis of the left shoulder, currently rated as 10 percent disabling. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL Appellant and his spouse ATTORNEY FOR THE BOARD Daniel Markey, Associate Counsel INTRODUCTION The veteran served on active duty from January 1974 to January 1994. This appeal to the Board of Veterans' Appeals (Board) is from a May 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. The issue of entitlement to an increased rating for a nasal disability was also addressed in Statement of the Case, but the veteran thereafter limited his appeal to the issues listed on the title page of this decision. In a February 2007 rating decision, the rating for the veteran's left shoulder bursitis was increased to 10 percent. This did not satisfy the veteran's appeal. In December 2007, the veteran testified at a hearing at the RO before the undersigned Veterans Law Judge. A transcript of the hearing is of record. After the hearing, the veteran submitted additional evidence in support of his appeal along with a waiver of his right to have the evidence initially considered by the RO. The issue of entitlement to an increased rating for lumbar strain is addressed in the remand that follows the order section of this decision. FINDING OF FACT The veteran's left shoulder disability is manifested by limitation of left arm motion at the shoulder level. CONCLUSION OF LAW The criteria are met for a disability rating of 20 percent, but not higher, for bursitis of the left shoulder disability have been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.7, 4.71a, Diagnostic Code 5019, 5201 (2007). REASONS AND BASES FOR FINDING AND CONCLUSION The Veterans Claims Assistance Act of 2000 The Veterans Claims Assistance Act of 2000 (VCAA), codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2007), and the pertinent implementing regulation, codified at 38 C.F.R. § 3.159 (2007), provide that VA will assist a claimant in obtaining evidence necessary to substantiate a claim but is not required to provide assistance to a claimant if there is no reasonable possibility that such assistance would aid in substantiating the claim. They also require VA to notify the claimant and the claimant's representative, if any, of any information, and any medical or lay evidence, not previously provided to the Secretary that is necessary to substantiate the claim. As part of the notice, VA is to specifically inform the claimant and the claimant's representative, if any, of which portion, if any, of the evidence is to be provided by the claimant and which part, if any, VA will attempt to obtain on behalf of the claimant. In addition, VA must also request that the veteran provide any evidence in the claimant's possession that pertains to the claim. The Board also notes that the United States Court of Appeals for Veterans Claims (Court) has held that the plain language of 38 U.S.C.A. § 5103(a) (West 2002), requires that notice to a claimant pursuant to the VCAA be provided "at the time" that, or "immediately after," VA receives a complete or substantially complete application for VA-administered benefits. Pelegrini v. Principi, 18 Vet. App. 112, 119 (2004). The Court further held that VA failed to demonstrate that, "lack of such a pre-AOJ-decision notice was not prejudicial to the appellant, see 38 U.S.C. § 7261(b)(2) (as amended by the Veterans Benefits Act of 2002, Pub. L. No. 107-330, § 401, 116 Stat. 2820, 2832) (providing that "[i]n making the determinations under [section 7261(a)], the Court shall . . . take due account of the rule of prejudicial error")." Id. at 121. The timing requirement enunciated in Pelegrini applies equally to the initial-disability-rating and effective-date elements of a service-connection claim. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006); aff'd sub nom. Hartman v. Nicholson, No. 2006-7303 (Fed. Cir. Apr. 5, 2007). The Court has recently provided guidance with respect to the notice that is necessary in increased rating claims. See Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008). Adequate VCAA notice in an increased rating claim must inform the claimant that he must provide, or ask the Secretary to obtain, medical or lay evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on the claimant's employment and daily life; and that, if an increase in disability is found, a disability rating will be determined by applying relevant Diagnostic Codes. If the claimant is rated under a Diagnostic Code that contains criteria necessary for entitlement to a higher disability rating that would not be satisfied by the claimant demonstrating a noticeable worsening or increase in severity of the disability, the notice letter must provide at least general notice of that requirement. The notice letter must also provide examples of the types of medical and lay evidence that the claimant may submit (or ask the Secretary to obtain) that are relevant to establishing entitlement to increased compensation. In this case, letters mailed to the veteran in January and May 2006 informed him that he must provide, or ask the Secretary to obtain, medical or lay evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on the his employment and daily life. They also informed him to submit any pertinent evidence in his possession and provided appropriate notice with respect to the effective-date element of the claim. They also included information on how VA determines the disability rating by use of the rating schedule, and provided examples of the types of medical and lay evidence that the claimant may submit (or ask the Secretary to obtain), to include treatment records, Social Security determinations, statements from employers concerning the impact of the disability on the veteran's employment, and statements from persons concerning their observations of how the disability has affected the veteran. They also informed the veteran of the assistance that VA would provide to obtain evidence on his behalf. This is not a case in which a noticeable worsening or increase in severity of the disability would not establish the veteran's entitlement to an increased rating. In any event, the veteran was provided the specific criteria for rating the disability in the Statement of the Case. Also, in September 2007 correspondence from the veteran's representative and in December 2007 hearing testimony from the veteran and his spouse, contentions regarding the affect of the veteran's disability on his ability to work and function in daily living have been clearly articulated. Although the veteran was not provided adequate notice until after the initial adjudication of the claim, the Board finds that there is no prejudice to the veteran in proceeding with the issuance of a final decision. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993). In this regard, the Board notes that following the provision of the required notice and the completion of all indicated development, the RO readjudicated the claim. There is no indication or reason to believe that the RO's ultimate decision on this claim would have been different had complete VCAA notice been provided at an earlier time. The Board also notes that the veteran has been afforded an appropriate VA examination and service medical records and pertinent VA and private medical records have been obtained. Neither the veteran nor his representative has identified any outstanding evidence, to include medical records, that could be obtained to substantiate the claim. The Board is also unaware of any such outstanding evidence. In this regard, the Board notes that during his December 2007 hearing, the veteran testified that he would be submitting additional medical evidence. The record was held open for the length of time requested by the veteran, but no additional evidence was received. In sum, the Board is satisfied that any procedural errors in the RO's development and consideration of this claim were insignificant and non prejudicial to the veteran. Accordingly, the Board will address the merits of the claim. General Legal Criteria Disability evaluations are determined by the application of the VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4 (2007). The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.321(a), 4.1 (2007). 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 (2007). The Court has held that evaluation of a service-connected disability involving a joint rated on limitation of motion requires adequate consideration of functional loss due to pain under 38 C.F.R. § 4.40 (2007) and functional loss due to weakness, fatigability, incoordination or pain on movement of a joint under 38 C.F.R. § 4.45 (2006). See, in general, DeLuca v. Brown, 8 Vet. App. 202 (1995). The provisions of 38 C.F.R. § 4.40 state that the disability of the musculoskeletal system is primarily the inability, due to damage or infection in parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. According to this regulation, it is essential that the examination on which ratings are based adequately portrays the anatomical damage, and the functional loss, with respect to these elements. In addition, the regulations state that the functional loss may be due to pain, supported by adequate pathology and evidenced by the visible behavior of the veteran undertaking the motion. Weakness is as important as limitation of motion, and a part which becomes painful on use must be regarded as seriously disabled. 38 C.F.R. § 4.40 (2007). The provisions of 38 C.F.R. § 4.45 state that when evaluating the joints, inquiry will be directed as to whether there is less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement. The intent of the schedule is to recognize painful motion with joint or periarticular pathology as productive of disability. It is the intention to recognize actually painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59 (2007). The evaluation of the same disability under various diagnoses is to be avoided. 38 C.F.R. § 4.14 (2007). However, § 4.14 does not preclude the assignment of separate evaluations for separate and distinct symptomatology where none of the symptomatology justifying an evaluation under one diagnostic code is duplicative of or overlapping with the symptomatology justifying an evaluation under another diagnostic code. Esteban v. Brown, 6 Vet. App. 259, 262 (1994). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary. The Secretary 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; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. Analysis In accordance with 38 C.F.R. §§ 4.1, 4.2, 4.41, 4.42 (2007) and Schafrath v. Derwinski, 1 Vet. App. 589 (1991), the Board has reviewed all evidence of record pertaining to the history of the veteran's left shoulder disability. The Board has found nothing in the historical record which would lead to the conclusion that the current evidence of record is not adequate for rating purposes. Moreover, the Board is of the opinion that this case presents no evidentiary considerations which would warrant an exposition of remote clinical histories and findings pertaining to this disability. In this regard the Board notes that where entitlement to compensation has already been established and an increase in the disability is at issue, the present level of disability is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). The veteran is currently assigned a 10 percent disability rating for his left shoulder disability under 38 C.F.R. § 4.71a, Diagnostic Code 5019, which provides that bursitis will be rated on limitation of motion of affected parts, as degenerative arthritis. The record reflects that the veteran is right handed. A 20 percent rating is warranted for limitation of the motion of the minor arm at the shoulder level or midway between the side and shoulder level. A 30 percent rating is authorized for limitation of motion of the minor arm to 25 degrees from the side. 38 C.F.R. § 4.71a, Diagnostic Code 5201. VA outpatient records from February 2005 document a physical therapy consultation relating to the veteran's spine and shoulder complaints. At that time, range of motion testing of his left shoulder disclosed that flexion was to 135 degrees, abduction was to 140 degrees, external rotation was to 80 degrees, and internal rotation was to 45 degrees. The veteran's shoulder flexion strength was sufficient for motion through the available ranges. The veteran was uncomfortable at end points so the examiner did not apply resistance. The veteran was able to sustain 120 degrees of shoulder flexion with his trunk reclined, so that his upper extremities were plumb, for 2 minutes. Private records through September 2005 note that the veteran was given cortisone injections in his shoulder. The evaluating physician noted that some of the veteran's symptoms were referable to a nonservice-connected cervical spine disability. Numerous radiological studies identified no cartilage, bone or ligament problems. His rotator cuff was intact. The veteran was diagnosed with tendonitis and bursitis, based in part on a magnetic resonance imaging study that showed a distal supraspinatus tear extending through a majority of the superior surface of the tendon near the insertion and likely extended to the inferior surface. The study was otherwise negative. At the veteran's May 2006 VA examination, he was found to have left shoulder forward flexion from 0 to 135 degrees, with pain involved 86 degrees to the maximum and on return through 85 degrees. Passive flexion produced pain throughout this range of motion. Shoulder abduction was performed from 0 to 140 degrees, with pain present in ranges in excess of 90 degrees. Passive abduction was from 0 to 160 degrees with pain throughout. External rotation was from 0 to 80 degrees with pain produced at extremes. Internal rotation was from 0 to 45 degrees, again with pain at extremes. He had guarding of movement and wincing, side weakness, but no fatigue, lack of endurance or incoordination. He had no edema, effusion, instability, redness, heat, or abnormal movements. There was no ankylosis of the joint, arthritis, or arm length discrepancy. The examiner again noted additional limitation of function related to pain. Based on such findings, to include the functional impairment due to pain and weakness, the Board concludes that the criteria for a 20 percent rating for the left shoulder disability are met. The disability clearly does not warrant a rating in excess of 20 percent under Diagnostic Code 5201. In this regard, the Board notes that even if motion of the arm were limited to halfway between the shoulder and side, it would still only justify a 20 percent rating. None of the evidence shows limitation of motion in excess of that contemplated by a 20 percent rating. The Board has considered the veteran's statements and the lay evidence submitted in support of the appeal. The veteran reported in his December 2007 hearing that he had constant pain in his shoulder, with throbbing, cracking, popping, and grinding. He specifically noted difficulty moving his arm at the shoulder level. The veteran informed the May 2006 examiner that he has a constant pain in the shoulder. He described mild weakness and stiffness, with increased symptoms over the prior year. The veteran reported severe flare ups at times, alleviated by massage and medication. He stated that the flare ups produce total impairment during individual episodes. He said he cannot raise his hands above the level of his chest and cannot perform pushing activities, as required by his occupation. To some extent, the lay statements of record are supported by the medical evidence. The Board has considered these statements in awarding the veteran this increased rating. The Board has considered whether there is any other schedular basis for assigning a rating in excess of 20 percent but has found none. Consideration has also been given to assigning staged ratings; however, at no time during the period in question has the disability warranted a schedular rating in excess of 20 percent. See Hart v. Mansfield, 21 Vet. App. 505 (2007); Fenderson v. West, 12 Vet. App. 119 (1999). In addition, the Board has considered whether this case should be referred to the Director of the Compensation and Pension Service for extra-schedular consideration. The record reflects that the veteran has not required frequent hospitalizations for the disability and that the manifestations of the disability are those contemplated by the schedular criteria. Although it is clear that the disability has impacted the veteran at work because of the nature of the veteran's employment, there is no indication in the record that the average industrial impairment from the disability would be in excess of that contemplated by the 20 percent rating granted herein. Accordingly, the Board has concluded that referral of this case for extra-schedular consideration is not in order. ORDER Entitlement to a 20 percent rating, but not higher, for a left shoulder disability is granted, subject to the criteria governing the payment of monetary benefits. REMAND The veteran was most recently afforded a VA examination to determine the current degree of severity of his service- connected low back disability in May 2006. At that time, there was little evidence of functional impairment. At the hearing before the undersigned, the veteran described symptoms and functional impairment related to his low back disability that are much more severe than what is evidenced by the May 2006 VA examination report. Moreover, VA outpatient records show that the veteran was noted to have sciatic type pain in January 2007, something that was not found on the May 2006 examination. In light of these circumstances, the Board has concluded that further development of the record is warranted before the Board decides the veteran's low back claim. Accordingly, this case is REMANDED to the RO or the Appeals Management Center (AMC), in Washington, D.C., for the following actions: 1. The RO or the AMC should send the veteran a letter requesting him to provide any pertinent evidence in his possession and any outstanding medical records pertaining to treatment or evaluation of his low back disability during the period of this claim or the identifying information and any necessary authorization to enable VA to obtain such records on his behalf. 2. Then, the RO or the AMC should undertake appropriate development to obtain any pertinent evidence identified but not provided by the appellant. If it is unsuccessful in obtaining any pertinent evidence identified by the appellant, it should so inform the appellant and his representative and request them to provide the outstanding evidence. 3. Then, the veteran should be afforded a VA examination by a physician with appropriate expertise to determine the current degree of severity of his service-connected low back disability. The claims folder, to include a copy of this Remand, must be made available to and reviewed by the examiner. Any indicated studies, including an X-ray study and range of motion testing in degrees, should be performed. In reporting the results of range of motion testing, the examiner should specifically identify any excursion of motion accompanied by pain. The physician should be requested to identify any objective evidence of pain and to assess the extent of any pain. Tests of joint motion against varying resistance should be performed. The extent of any incoordination, weakened movement and excess fatigability on use should be described. To the extent possible the functional impairment due to incoordination, weakened movement and excess fatigability should be assessed in terms of additional degrees of limitation of motion. If this is not feasible, the examiner should so state. The examiner should also express an opinion concerning whether there would be additional limits on functional ability on repeated use or during flare-ups (if the veteran describes flare-ups), and, if feasible, express this in terms of additional degrees of limitation of motion on repeated use or during flare- ups. If this is not feasible, the examiner should so state. If muscle spasm or guarding is present, the examiner should state whether it is severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis or abnormal kyphosis. If the veteran is found to have degenerative disc disease, the examiner should provide an opinion as to whether there is a 50 percent or better probability that it is etiologically related to the veteran's active service or was caused or permanently worsened by his lumbar strain. The examiner should specifically identify any evidence of neuropathy, to include reflex changes, characteristic pain, and muscle spasm. Any functional impairment of the lower extremities due to the disc disease should be identified, and the examiner should assess the frequency and duration of any episodes of intervertebral disc syndrome disability, and in particular should assess the frequency and duration of any episodes of acute signs and symptoms of intervertebral disc syndrome that require bed rest prescribed by a physician and treatment by a physician. To the extent possible, the examiner should distinguish the manifestations of the service-connected low back disability from any non service-connected disorder. The examiner should also provide an opinion concerning the impact of the veteran's service-connected low back disability on his ability to work. The rationale for all opinions expressed should also be provided. 4. The RO or the AMC should also undertake any other development it determines to be warranted. 5. If appropriate, the RO or the AMC should adjudicate the issue of entitlement to service connection for degenerative disc disease of the lumbosacral spine, and inform the veteran of his appellate rights with respect to this decision. 6. Then, the RO or the AMC should readjudicate the appellant's claim for an increased rating for low back disability based on a de novo review of the record. If the benefit sought on appeal is not granted to the appellant's satisfaction, a Supplemental Statement of the Case should be issued, and the appellant and his representative should be afforded the requisite opportunity to respond before the claims folder is returned to the Board for further appellate action. By this remand the Board intimates no opinion as to any final outcome warranted. No action is required of the appellant until he is otherwise notified but he has the right to submit additional evidence and argument on the matter the Board has remanded. See 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. 2006). _________________________________________________ Shane A. Durkin Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs