Citation Nr: 0814293 Decision Date: 04/30/08 Archive Date: 05/08/08 DOCKET NO. 06-17 860 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Providence, Rhode Island THE ISSUE Entitlement to an increased evaluation for status post fracture, right clavicle (dominant), currently evaluated as 30 percent disabling. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL Appellant and appellant's spouse ATTORNEY FOR THE BOARD Nadine W. Benjamin, Counsel INTRODUCTION The veteran (appellant) served on active duty from July 1971 to July 1974. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a January 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Providence, Rhode Island. In May 2007, the veteran testified at a hearing before the undersigned Veterans Law Judge. A transcript of the hearing is of record. In August 2007, the Board remanded the claim to the RO for additional development. The case has been returned to the Board and is ready for further review. FINDINGS OF FACT 1. Prior to October 18, 2007, the veteran's right shoulder disorder was manifested by complaints of pain and crepitus; the veteran had flexion to 80 degrees and abduction to 70 degrees. Internal rotation was to 40 degrees and external rotation was to 30 degrees. 2. From October 18, 2007, the veteran's right shoulder disorder was manifested by complaints of pain with forward flexion to 10 degrees, with adduction and abduction to 30 degrees. Internal and external rotation to 10 degrees. CONCLUSION OF LAW From October 18, 2007, the criteria for an increased evaluation for status post fracture, right clavicle (dominant), to 40 percent have been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.40, 4.45, 4.71a, Diagnostic Code 5201 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist 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). 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). For an increased-compensation claim, § 5103(a) requires, at a minimum, that VA notify the claimant that, to substantiate a claim, the medical or lay evidence must show a worsening or increase in severity of the disability, and the effect that such worsening or increase has on the claimant's employment and daily life. Vazquez-Flores v. Peake, 22 Vet. App. 37 (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 demonstrating a noticeable worsening or increase in severity of the disability and the effect that worsening has on employment and daily life (such as a specific measurement or test result), VA must provide at least general notice of that requirement. VA 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. Id. In this case, a letter satisfying the notice requirements under 38 C.F.R. § 3.159(b)(1) was sent to the veteran in November 2005, prior to the initial RO decision that is the subject of this appeal. The letter informed him of what evidence was required to substantiate the claim and of his and VA's respective duties for obtaining evidence. He was also asked to submit evidence and/or information in his possession to the RO. The Board acknowledges that the VCAA letter sent to the veteran in November 2005 does not meet the requirements of Vazquez-Flores and is not sufficient as to content and timing, creating a presumption of prejudice. Nonetheless, such presumption has been overcome for the reasons discussed below. In March 2006, the RO sent the veteran a letter describing what evidence was necessary with respect to the rating criteria and the effective date of a rating. That letter explained that ratings from 0 percent to 100 percent could be assigned and that evidence of the nature and symptoms of the condition, severity and duration of the symptoms, and impact of the condition and symptoms on employment would be considered in evaluating a disability. The letter also described the types of medical and lay evidence that the veteran may submit. A flaw in the letter that was not subsequently cured is that the RO/AMC did not specifically advise the veteran that he should present evidence of how the service-connected disability impacted his daily life. But at the October 2007 C&P examination, the veteran was asked whether there were any effects on his routine daily activities, and he reported them. Thus, the veteran was not prejudiced by that lack of notice because he was able to present the relevant evidence at the examination. And the veteran either submitted or identified much medical evidence of the symptoms that he believed would warrant an increased rating. It also appears that the veteran has actual notice of the relevant diagnostic code, as it was provided in the May 2006 statement of the case, which the veteran indicated he reviewed when he checked the box on his VA Form 9. He also demonstrated actual knowledge of what was needed to support his claim as reflected in his statements and hearing testimony. Specifically, the veteran testified before the undersigned in May 2007 concerning right shoulder pain and limitation of motion, including lifting his shoulder to 80 degrees, and the loss of range of motion. He discussed instability and weakness. The claim was readjudicated in a December 2007 supplemental statement of the case. Based on the above, the notice deficiencies do not affect the essential fairness of the adjudication. Since the veteran had a meaningful opportunity to participate in the adjudication process, he was not prejudiced by the harmless error or by the delay in receiving all required notice. See Overton v. Nicholson, 20 Vet. App. 427, 439-444 (2006) (failure to provide timely notice is harmless if the claimant had a meaningful opportunity to participate in the processing of the claim). Therefore, the presumption of prejudice is rebutted. For this reason, no further development is required regarding the duty to notify. Next, VA has a duty to assist the veteran in the development of the claim. This duty includes assisting him in the procurement of service medical records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). The RO has obtained VA outpatient treatment records and private treatment records. While the veteran has indicated that he was receiving disability from SSA, (see, his July 2005 claim) a remand to obtain these records is not necessary since he has also indicated that this was for his cardiac disability. And he was provided an opportunity to set forth his contentions during the hearing before the undersigned Veterans Law Judge. In addition, he was afforded VA medical examinations in August 2005 and October 2007. Significantly, neither the veteran nor his representative has identified, and the record does not otherwise indicate, any additional existing evidence that is necessary for a fair adjudication of the claim that has not been obtained. Hence, no further notice or assistance to the veteran is required to fulfill VA's duty to assist in the development of the claim. 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); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). Increased Evaluation Disability evaluations are determined by the application of a schedule of ratings, which is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 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 for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Disability of the musculoskeletal system is primarily the inability, due to damage or inflammation in parts of the system, to perform normal working movements of the body with normal excursion, strength, speed, coordination and endurance. Functional loss may be due to pain supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion. 38 C.F.R. § 4.40. The factors of disability affecting joints are reduction of normal excursion of movements in different planes, weakened movement, excess fatigability, swelling and pain on movement. 38 C.F.R. § 4.45. Functional loss, supported by adequate pathology and evidenced by visible behavior of the veteran undertaking the motion, is recognized as resulting in disability. See DeLuca v. Brown, 8 Vet. App. 202 (1995); 38 C.F.R. §§ 4.10, 4.40, 4.45. The Board will consider whether separate ratings may be assigned for separate periods of time based on facts found, a practice known as "staged ratings." Hart v. Mansfield, 21 Vet. App. 505 (2007). The veteran's right shoulder disability has been evaluated as 30 percent disabling under 38 C.F.R. § 4.71a, Diagnostic Code 5201. Limitation of motion to midway between the side and shoulder level warrants a 30 percent evaluation for the major shoulder, and a 20 percent evaluation for the minor shoulder. Limitation of motion to 25 degrees from the side warrants a 40 percent evaluation for the major shoulder, and 30 percent for the minor shoulder. 38 C.F.R. § 4.71a, Code 5201. The normal range of motion of the shoulder 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. The Board further notes that, under the laws administered by VA, a distinction is made between major (dominant) and minor upper extremities for rating purposes. In the present matter, the veteran's right shoulder is the major upper extremity. (See, VA examination report of October 2007). In July 2005, the veteran requested an increased evaluation for his service-connected right shoulder disability. VA outpatient treatment records dated from 2004 to 2006 show treatment for complaints of right shoulder pain. A March 2005 CT scan showed no focal abnormalities and normal AC joints. The clavicle was intact and the humeral heads and scapula were noted to appear normal. May 2005 X-rays showed no fracture or dislocation with normal joint alignment. A July 2005 MRI showed tendonopathy of the supraspinatus and suprascapularis tendon and acromioclavicular degenerative change with resultant impression on myotendinous junction. The VA treatment records showed abduction of the right shoulder to 90 degrees in December 2004 and March 2005. In July 2005, abduction was limited to 40 degrees due to pain. In May 2006, right shoulder abduction was to 70 degrees. Forward flexion was to 90 degrees in December 2004 and to 100 degrees in March 2005. In July 2005, forward flexion was to 10 degrees. In May 2006, forward flexion was to 90 degrees. On VA examination in August 2005, the veteran's right shoulder disorder was manifested by complaints of pain and crepitus. The veteran had flexion to 80 degrees and abduction to 70 degrees. Internal rotation was to 40 degrees and external rotation was to 30 degrees. The examiner noted that an MRI in July 2005 showed degenerative changes of the acromioclavicular joint. As motion of the right arm was not shown to be limited to 25 degrees from the side, an increased evaluation under DC 5201 is not warranted based upon the foregoing evidence. See 38 C.F.R. § 4.71a, Diagnostic Code 5201. At worst, abduction was limited to 40 degrees in July 2005. While there was also a finding of forward flexion limited to 10 degrees in July 2005, this was an isolated finding, as forward flexion was significantly improved to 80 and 90 degrees on examinations in August 2005 and May 2006, respectively. A higher evaluation of 40 percent is warranted under Diagnostic Code 5200 if there is evidence of ankylosis intermediate between favorable and unfavorable scapulohumeral articulation. 38 C.F.R. 4.71a (2007). A 50 percent evaluation is warranted if there is evidence of fibrous union of the humerus under Diagnostic Code 5202. Id. A 60 percent evaluation is warranted for nonunion of the humerus (false flail joint). An 80 percent evaluation is warranted for loss of head of the humerus (flail shoulder) under Diagnostic Code 5202. Id. Diagnostic Codes 5200 and 5202, however, are not applicable for evaluating the veteran's service-connected right shoulder disability because there is no evidence of any ankylosis of scapulohumeral articulation or impairment of the humerus. (See, November 2004 CT scant showing humeral heads and scapula normal). Additional VA outpatient treatment records dated in 2006 and 2007 show treatment for various medical complaints unrelated to the right shoulder disorder. On VA examination on October 18, 2007, the veteran's right shoulder disability is shown to be manifested by complaints of pain with forward flexion to 10 degrees, with adduction and abduction to 30 degrees. Internal and external rotation were to 10 degrees. The examiner noted that there was no deformity with the clavicle well healed. The examiner found frozen right shoulder. In determining whether the veteran has limitation to 25 degrees from the side, level, it is necessary to consider reports of forward flexion and abduction. See Mariano v. Principi, 17 Vet. App. 305, 314-16 (2003); (noting that criteria under Diagnostic Code 5201 do not explicitly refer to any specific type of range of motion measurement, such as abduction, as is referred to under Diagnostic Code 5200, and remanding for VA to decide whether limitation of motion for purposes of establishing a certain rating requires limitation in all planes or limitation in any one plane). See also 38 C.F.R. § 4.71, Plate I (2007). The United States Court of Appeals for Veterans Claims (Court) left open the question of whether the ratings in DC 5201 required limitation in all planes or limitation in any one plane but the Court noted that it would be very difficult to satisfy DC 5201 if limitation were required in all planes. So, here, the Board concludes that for rating under DC 5201 the limitation of motion may be in any one plane of motion, e.g., abduction or forward elevation (flexion). The veteran is shown on VA examination in October 2007 to have flexion of the right arm limited to 10 degrees. Therefore, a 40 percent rating for his right shoulder disorder is warranted as of October 18, 2007, under DC 5201 based on limitation of motion. As discussed above, the results of examination prior to that date do not support an evaluation higher than the previously assigned 30 percent. Therefore, the veteran is entitled to an increased evaluation from the date of the October 2007 examination. The 40 percent rating is the maximum assignable under DC 5201. The record does not show that a rating beyond 40 percent is warranted under any other potentially applicable code. There is no showing of ankylosis or impairment of the humerus. As noted above, the October 2007 examiner stated that there was no deformity and that the clavicle was well healed. See, DCs 5200, 5202. The Board has also considered the impact of functional loss, weakened movement, excess fatigability, incoordination and pain. DeLuca, 8 Vet. App. at 206-07. Because the veteran is receiving the maximum disability rating available based on symptomatology that includes limitation of motion from October 2007, it is not necessary to consider 38 C.F.R. §§ 4.40 and 4.45. Johnston v. Brown, 10 Vet. App. 80, 85 (1997). The Board has considered whether there is any additional functional loss not contemplated in the 30 percent evaluation assigned prior to October 18, 2007. See 38 C.F.R. §§ 4.40, 4.45, 4.59 (2007); see also DeLuca v. Brown, 8 Vet. App. 202, 206 (1995). Factors involved in evaluating and rating disabilities of the joints include: weakness; fatigability; lack of coordination; restricted or excess movement of the joint; or, pain on movement. 38 C.F.R. § 4.45 (2007). The objective medical evidence of record, prior to October 2007 while showing complaints of right shoulder pain does not show evidence of incoordination, fatigue, or endurance or strength problems not sufficiently compensated by the evaluations assigned. Right shoulder strength was consistently described as 4/5. Even with pain, the veteran had forward flexion to 40 degrees in July 2005. And in August 2005, with repetitive stress testing with a 5 pound weight, he had right shoulder abduction to 30 degrees. Under Spurgeon v. Brown, 10 Vet. App. 194 (1997), the Board is not required to assign a separate rating merely for pain. The Board finds that there is no additional functional loss not contemplated in the 30 percent rating assigned prior to October 17, 2007, and that an increased evaluation on this basis is not warranted. The Board also considered evaluating the right shoulder disorder under the diagnostic codes for degenerative joint disease. Traumatic arthritis is evaluated under 38 C.F.R. § 4.71a, Diagnostic Code 5003 (2007), for degenerative arthritis. 38 C.F.R. § 4.71a, Diagnostic Code 5010 (2007). 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. 38 C.F.R. § 4.71a, Diagnostic Codes 5003. But limitation of motion does not provide for a rating in excess of 20 percent. Additionally, awarding a separate evaluation under for traumatic arthritis would constitute prohibited pyramiding. 38 C.F.R. § 4.14 (2007); see also Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994). The benefit of the doubt is resolved in the veteran's favor to the extent indicated. Thus, an increased evaluation to 40 percent is warranted from October 18, 2007. ORDER A 40 percent rating for status post fracture, right clavicle (dominant), is granted, effective from October 18, 2007, subject to the controlling regulations governing the payment of monetary benefits. ____________________________________________ P.M. DILORENZO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs