Citation Nr: 0812824 Decision Date: 04/17/08 Archive Date: 05/01/08 DOCKET NO. 04-41 453 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in No. Little Rock, Arkansas THE ISSUES Entitlement to an initial rating in excess of 10 percent for degenerative joint disease (DJD) of the right shoulder. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD C. Eckart, Counsel INTRODUCTION The veteran served on active duty from January 1982 to May 2003 and had 6 years, 7 months and 12 days of prior active service. This case comes before the Board of Veterans' Appeals (Board) from a rating decision of March 2004 from the Regional Office (RO) of the Department of Veterans Affairs (VA), in North Little Rock, Arkansas. The veteran testified before the undersigned Veterans Law Judge in May 2006. At this hearing, he appears to have raised a claim for entitlement to service connection for a cervical spine disability. This issue is referred to the RO for appropriate action. In a September 2006 decision, the Board disposed of a number of issues on appeal and remanded issues of entitlement to service connection for a right ankle sprain, a right knee condition and entitlement to a higher initial rating for the right shoulder disability for further development. While the remand was pending, the RO in an October 2006 rating granted service connection for the right ankle sprain and right knee condition, thereby removing these issues from appellate status. See Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997). The remaining issue of entitlement to a higher initial rating for a right shoulder disability is returned to the Board for further consideration. FINDINGS OF FACT The veteran's right shoulder disability affecting his major arm, is manifested by subjective complaints of pain, objective evidence of tenderness over the acromioclavicular (AC) and arthritis shown on X-ray with no evidence of joint separation deformity or limited motion to shoulder level, nor is there instability, deformity or recurrent dislocations shown. CONCLUSION OF LAW The criteria for an initial rating in excess of 10 percent for DJD of the right shoulder have not been met. 38 U.S.C.A. §§ 1155, 5102, 5103, 5103A 5107 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.159, 3.321, 4.1, 4.2, 4.7, 4.10, 4.40, 4.41, 4.45, 4.71a, Diagnostic Codes 5003, 5201, 5202, 5203 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duty to notify and assist The VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2007); 38 C.F.R. § 3.159 (2007). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper notice from VA 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 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). This notice must be provided prior to an initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ). Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). In the present case, the veteran's claim on appeal was received in May 2003. Prior to granting service connection in March 2004, a duty to assist letter was sent in August 2003 that addressed the service-connection claim. 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 and effective date assigned following the grant of service connection. In Dingess, the Court 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. After granting service connection for the issues in this case, the VA's duty to notify was further satisfied subsequent to the initial AOJ decision by way of a letter(s) sent to the appellant in April 2005 addressing entitlement to an increased initial rating for the right shoulder disorder. These letters provided initial notice of the provisions of the duty to assist as pertaining to entitlement to service connection and for an increased rating, which included notice of the requirements to prevail on these types of claims, of his and VA's respective duties, and he was asked to provide information in his possession relevant to the claims. The duty to assist letters specifically notified the veteran that VA would obtain all relevant evidence in the custody of a federal department or agency. He was advised that it was his responsibility to either send medical treatment records from his private physician regarding treatment, or to provide a properly executed release so that VA could request the records for him. The veteran was also asked to advise VA if there were any other information or evidence he considered relevant to this claim so that VA could help by getting that evidence. For an increased-compensation claim, section § 5103(a) requires, at a minimum, that the Secretary notify the claimant that, to substantiate a claim, the claimant 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. Vazquez-Flores v. Peake, No. 05-0355, (U.S. Vet. App. January 30, 2008). Further, if the Diagnostic Code under which the claimant is rated 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 and the effect that worsening has on the claimant's employment and daily life (such as a specific measurement or test result), the Secretary must provide at least general notice of that requirement to the claimant. Additionally, the claimant must be notified that, should an increase in disability be found, a disability rating will be determined by applying relevant Diagnostic Codes, which typically provide for a range in severity of a particular disability from noncompensable to as much as 100 percent (depending on the disability involved), based on the nature of the symptoms of the condition for which disability compensation is being sought, their severity and duration, and their impact upon employment and daily life. As with proper notice for an initial disability rating and consistent with the statutory and regulatory history, the notice 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-e.g., competent lay statements describing symptoms, medical and hospitalization records, medical statements, employer statements, job application rejections, and any other evidence showing an increase in the disability or exceptional circumstances relating to the disability. Vazquez-Flores, slip op. at 5-6. In this case, the veteran was sent a letter in April 2006 that provided the above described notice to the veteran that he needed to present evidence showing his conditions had worsened, to include discussion of the applicability of relevant Diagnostic Codes ranging from noncompensable to 100, as well as describing the specific examples of lay and medical evidence as set forth in Vasquez-Flores-- e.g., competent lay statements describing symptoms, information regarding any medical and hospitalization records the veteran had not recently told the VA about, employer statements, and any other evidence showing an increase in the disability or exceptional circumstances relating to the disability. Additionally this notice also apprised him of how the VA determines the effective date for entitlement to benefits. See Dingess, supra, which held that the 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, including the degree of disability and the effective date of an award. Even if the notices were deemed inadequately sufficient as to content and timing in light of Vasquez-Flores, supra, the veteran is not shown to be prejudiced in this matter. He was provided detailed information regarding the criteria for an increased rating for the right shoulder disorder by the statement of the case sent in November 2004, which discussed at length the level of disability needed for a higher initial rating, to include the amount of motion loss needed for such a rating. Likewise,+ the most recent supplemental statement of the case issued in December 2007 provided the pertinent rating criteria and discussed how the current medical findings failed to meet a higher rating absent evidence of a greater level of functional impairment or limitation of motion. The veteran in his substantive appeal dated in November 2004 discussed in detail functional limitations such as limitation of motion, and severe pain affecting the shoulder. He further discussed his shoulder problems in his May 2006 hearing. Based on the above, any potential notice deficiencies do not affect the essential fairness of the adjudication. For this reason, no further development is required regarding the duty to notify. VA must also make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate the claim for the benefit sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c), (d). Service medical records were previously obtained and associated with the claims folder. Furthermore, VA and private medical records were obtained and associated with the claims folder. The veteran also provided testimony at a video conference hearing held before the Board. Assistance shall also include providing a medical examination or obtaining a medical opinion when such an examination or opinion is necessary to make a decision on the claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The VA examination conducted in December 2006 provided current assessments of the veteran's condition based not only on examination of the veteran, but also on review of the records. In summary, the duties imposed by 38 U.S.C.A. §§ 5103 and 5103A have been considered and satisfied. Through notices of the RO, the claimant has been notified and made aware of the evidence needed to substantiate his claim for higher disability ratings, the avenues through which he might obtain such evidence, and the allocation of responsibilities between himself and VA in obtaining such evidence. There is no additional notice that should be provided, nor is there any indication that there is additional existing evidence to obtain or development required to create any additional evidence to be considered in connection with the claims decided on appeal. Consequently, any error in the sequence of events or content of the notice is not shown to prejudice the claimant or to have any effect on the appeal. Any such error is deemed harmless and does not preclude appellate consideration of the matter being decided, at this juncture. See Mayfield v. Nicholson, 20 Vet. App. 537, 543 (2006) (rejecting the argument that the Board lacks authority to consider harmless error). See also ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998). II. Increased Rating Disability evaluations are determined by the application of a schedule of ratings that is based on the average impairment of earning capacity. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R., Part 4 (2007). Separate diagnostic codes identify the various disabilities. 38 C.F.R. § 4.1 (2007) requires that each disability be viewed in relation to its history and that there be emphasis upon the limitation of activity imposed by the disabling condition. 38 C.F.R. § 4.2 (2007) requires that medical reports be interpreted in light of the whole recorded history, and that each disability must be considered from the point of view of the veteran working or seeking work. 38 C.F.R. § 4.7 (2007) provides that, where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. Because the present appeal arises from an initial rating decision, which established service connection for a left shoulder disability and an assigned an initial disability rating, it is not the present level of disability which is of primary importance, but rather the entire period is to be considered to ensure that consideration is given to the possibility of staged ratings; that is, separate ratings for separate periods of time based on the facts found. See Fenderson v. West, 12 Vet. App. 119 (1999). An evaluation of the level of disability present also includes consideration of the functional impairment of the veteran's ability to engage in ordinary activities, including employment. 38 C.F.R. § 4.10 (2007). With respect to disabilities involving the musculoskeletal system, the Court has emphasized that when assigning a disability rating, it is necessary to consider functional loss due to flare-ups, fatigability, incoordination, and pain on movement. See DeLuca v. Brown, 8 Vet. App. 202, 206-7 (1995); see generally VAOPGCPREC 36-97. The rating for an orthopedic disorder should reflect functional limitation which is due to pain, supported by adequate pathology, and evidenced by the visible behavior of the claimant undertaking the motion. Weakness is also as important as limitation of motion, and a part, which becomes painful on use, must be regarded as seriously disabled. A little used part of the musculoskeletal system may be expected to show evidence of disuse, either through atrophy, the condition of the skin, absence of normal callosity, or the like. 38 C.F.R. § 4.40 (2007). The factors of disability reside in reductions of their normal excursion of movements in different planes. Instability of station, disturbance of locomotion, and interference with sitting, standing, and weight bearing are related considerations. 38 C.F.R. § 4.45 (2007). It is the intention of the VA Schedule for Rating Disabilities (Rating Schedule) to recognize actually painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimal compensable rating for the joint. 38 C.F.R. § 4.59 (2007). When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 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, after consideration of all of the evidence and material of record in an appropriate case before VA, there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107 (West 2002); Alemany v. Brown, 9 Vet. App. 518, 519 (1996); 38 C.F.R. §§ 3.102, 4.3 (2007). The veteran's right shoulder disability is currently evaluated under Diagnostic Codes 5003, 5201 for arthritis and limitation of motion. The Board will also consider other applicable Codes. Degenerative arthritis established by x-ray findings will be evaluated on the basis of limitation of motion of the specific joint or joints involved. Diagnostic Code 5003. Diagnostic Code 5003 notes that in the absence of limitation of motion, rate as below: 20 percent with x-ray evidence of involvement of two or more major joints or two or more minor joint groups, with occasional incapacitating exacerbations; and 10 percent with x-ray evidence of involvement of two or more major joints or two or more minor joint groups. Note (1) under the Diagnostic Code 5003 reflects that the 20 percent and 10 percent ratings based on x-ray findings, above, will not be combined with ratings based on limitation of motion. Under Diagnostic Code 5201, limitation of motion of the major or minor arm at shoulder level warrants a 20 percent evaluation. Limitation of motion of the major arm midway between the side and the shoulder warrants a 30 percent evaluation. A 40 percent evaluation requires limitation of the major arm to 25 degrees from the side. 38 C.F.R. § 4.71a, Diagnostic Code 5201 (2007). Other pertinent Diagnostic Codes in evaluating the veteran's claim are as follows. Under 38 C.F.R. § 4.71a, Diagnostic Code 5202, (impairment of the humerus), a 20 percent evaluation is warranted for recurrent dislocations at the scapulohumeral joint of the major or minor arm, with infrequent episodes and guarding of movement only at the shoulder level; or for malunion of the humerus with moderate deformity. A 30 percent rating is warranted for recurrent dislocations at the scapulohumeral joint of the major arm, with frequent episodes and guarding of the arm movements of the arm; or for malunion of the humerus with marked deformity of the minor arm. A 50 percent evaluation is warranted for a fibrous union of the humerus of the major. Nonunion of the humerus warrants a 60 percent evaluation for the major arm. A loss of the humerus head warrants a 80 percent evaluation for the major arm. Under 38 U.S.C.A. § 4.71a, Diagnostic Code 5203, a 10 percent evaluation is warranted for nonunion of the clavicle or scapula, without loose movement or malunion of the clavicle or scapula. A 20 percent evaluation is warranted for dislocation of the clavicle or scapula or nonunion of the clavicle or scapula, with loose movement. These evaluations are the same for either the major or minor arm. The service medical records included treatment for right shoulder complaints throughout, including more recently, a February 2001 record noting a 3 year history of right shoulder pain diagnosed with impingement syndrome in the past, and with continued pain especially during pushups and with examination showing full range of motion, but with positive findings for impingement sign and some weakness. He was diagnosed with a right shoulder impingement in July 2001. He was noted to have right shoulder pain with overhead motions and reaching behind his back, in records from March and April 2002. A November 2002 comprehensive physical examination noted a slight reduction of full extension and the report of medical history noted a history of painful right shoulder diagnosed as chronic impingement syndrome, with a history of rotator cuff tendonitis. Service connection for a left shoulder disorder was granted in a March 2004 rating decision that assigned an initial 10 percent rating. The veteran appealed the rating assigned for this decision. An October 2003 VA examination included a review of the veteran's overall medical history and a pertinent history of the veteran stating that he is right handed and having had problems with his right shoulder for several years. He discussed his thoughts on it being caused by push-ups as well as conducting a band in service. He reported pain in his shoulder with any physical activity. It was reduced to some degree by rest, although not completely free of pain. He never had any surgical procedures or steroid injections of the shoulder. There was no history of dislocation or any acute trauma. Physical examination included examination of the right shoulder with the range of motion similar to the left. The muscle development of the right shoulder was normal, and he had forward elevation of the arms and abduction from 0 to 180 degrees. He had internal and external rotation of the arms from 0 to 90 degrees. The rest of the examination addressed other medical problems. The diagnosis was right shoulder impingement with DJD not found but it would be further evaluated by X-ray. The cause of the veteran's pain was not apparent to the examiner. The October 2003 X-ray of the shoulder showed slight irregularity and arthritic changes at the (acromioclavicular) AC joint noted. The glenohumeral joint appeared well preserved. The acromiohumeral joint space appeared also relatively unremarkable. The impression was possible mild degenerative changes at the AC joint as described. Results of neurological testing from December 2003 revealed evidence of right C7 radiculopathy, but no evidence of right median, ulnar or radial neuropathy. A November 2003 VA examination addressed complaints of right cubital tunnel and right tarsal tunnel syndrome but also included some discussion of his right shoulder problems. He was noted to have developed pain in his neck and shoulder while in the service where he was an orchestra conductor. His neck and shoulder pain progressed to where he could no longer conduct for over an hour. Physical examination however did not address shoulder complaints, but instead focused on neurological complaints. The impression included severe neck and shoulder pain and there was a question of superimposed cervical radiculopathy although the examiner doubted this. He was believed to probably have some primary cervical pathology. It was suggested that at some point he should have a magnetic resonance imaging (MRI) of the shoulder done. VA treatment records from 2005 addressed ankle complaints with no reference to right shoulder problems. A private medical examination from May 2005 addressed multiple medical complaints including arthritis affecting his right shoulder. On objective examination he had limitation of motion of the right shoulder, although the actual ranges in degrees was not recorded. No other findings regarding the right shoulder were reported, and the diagnosis was degenerative arthritis involving the right shoulder. The veteran testified at his hearing in May 2006 that his right shoulder disorder causes constant pain and indicated that he can lift up to 20 pounds but after that point he is unable to lift past his waist. He confirmed being right handed. The report of a December 2006 VA examination included examination of his right shoulder. He reported the shoulder having been initially injured in 1978 while lifting equipment and reinjuring it during service. Since then he has had pain anteriorly and laterally and had to guard it because of increased discomfort with use. Physical examination revealed he was able to lift his right shoulder equal to the left repeatedly 6-7 times without any loss of motion. He did complain of pain on elevation of his right shoulder. Specific examination of the right shoulder showed 180 degrees of forward flexion and abduction equal to the left side. His internal rotation was 80 degrees and external rotation was 45 degrees on the right. He was tender over the right AC joint and he had no signs of instability. He did have positive impingement. X-rays were reviewed and the right shoulder showed degenerative change in the AC joint and otherwise normal glenohumeral articulation. The diagnosis was right shoulder early DJD with positive impingement. The examiner commented that he does not have loose shoulder movement, instability or dislocation. He did have painful motion but no functional limitation with repeat testing as noted above. He did not demonstrate a loss of motion due to pain, weakened movement, excess fatigability or incoordination. Regarding his functional impairment this was from painful motion on elevation of the left shoulder. He did not demonstrate loss of motion there. He did not use assistive devices and the condition did not affect his usual occupation or daily activities except with repeated overhead use of his right shoulder. Again it was noted that he did have painful motion of the right shoulder but no additional limitation on repetitive use. He also did not have flareups or instability. Based on a review of the evidence, the Board finds that a rating in excess of 10 percent disabling from initial entitlement is not warranted. There is no evidence of any dislocations, much less recurrent dislocations at the scapulohumeral joint of the major or minor arm, with infrequent episodes and guarding of movement only at the shoulder level. Nor is there limitation of motion at shoulder level. Nor is there evidence of malunion of the humerus with moderate deformity. There is also no evidence of occasional incapacitating exacerbations of the arthritis of two or more major joints or groups of minor joints. Finally there is no evidence of dislocation of the clavicle or scapula or nonunion of the clavicle or scapula, with loose movement. In general the evidence shows the right shoulder disorder to be manifested by X-ray findings of arthritis, but no malunion or other deformity shown, and with range of motion generally full and the shoulder itself shown to be stable with no dislocations. There is also no basis to increase the initial rating based on functional limitation as there is no evidence of such limitations shown on recurrent testing. In conclusion, an initial disability rating in excess of 10 percent for the veteran's right shoulder arthritis is not warranted. In reaching this determination, the Board has considered whether, under Fenderson, a higher rating might be warranted for any period of time during the pendency of this appeal. Fenderson, 12 Vet. App. 119. But there is no evidence that the veteran's service-connected right shoulder disability has been persistently more severe than the extent of disability contemplated under the assigned rating at any time during the period of this initial evaluation. In addition, there is no competent evidence that the veteran's service-connected disability has resulted in frequent hospitalizations. The Board is therefore not required to remand this matter to the RO for the procedural actions outlined in 38 C.F.R. § 3.321(b)(1) (2007). See Bagwell v. Brown, 9 Vet. App. 337 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). As a preponderance of the evidence is against the award of an initial rating in excess of 10 percent service-connected DJD of the right shoulder, the benefit of the doubt doctrine is not applicable in the instant appeal. 38 U.S.C.A. § 5107(b) (West 2002); Gilbert, supra. ORDER An initial rating in excess of 10 percent for right shoulder DJD is denied. ____________________________________________ A. BRYANT Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs