Citation Nr: 0814425	
Decision Date: 05/01/08    Archive Date: 05/12/08

DOCKET NO.  00-16 848	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Roanoke, 
Virginia


THE ISSUES

1.  Entitlement to a disability rating higher than 20 percent 
for a right shoulder disability, from August 31, 1999, to 
December 22, 2006, and higher than 30 percent from December 
22, 2006, to the present.

2.  Entitlement to an increased disability rating for a right 
shoulder disability on an extra-schedular basis.


REPRESENTATION

Appellant represented by:	Virginia Department of 
Veterans Services


ATTORNEY FOR THE BOARD

B. Adams, Associate Counsel




INTRODUCTION

The veteran served on active duty from October 1990 to 
October 1991.

This case comes before the Board of Veterans' Appeals (Board) 
on appeal from a July 1999 rating decision of the Department 
of Veterans Affairs (VA) Regional Office (RO) in Roanoke, 
Virginia.

The Board remanded this case for additional evidentiary 
development in April 2006.  In a March 2007 rating decision, 
the RO granted an increased disability rating of 30 percent 
for the veteran's right shoulder disability, effective 
December 22, 2006.  This action did not satisfy the veteran's 
appeal.

Also in a March 2007 rating decision, the RO granted a 
separate disability rating of 10 percent for a surgical scar 
on the veteran's right shoulder, effective December 22, 2006.  
The veteran does not appear to be seeking appellate review 
with respect to the rating assigned for the surgical scar.

The issue of entitlement to an increased disability rating 
for a right shoulder disability on an extra-schedular basis 
is addressed in the REMAND that follows the order section of 
this decision.


FINDINGS OF FACT

1.  Prior to May 17, 2004, the veteran's right shoulder 
disability was manifested by limitation of motion of the arm 
that most nearly approximated movement limited at shoulder 
level.   

2.  Since May 17, 2004, the veteran's right shoulder 
disability has been manifested by limitation of motion of the 
arm that most nearly approximates limitation to midway 
between the side and shoulder level.




CONCLUSIONS OF LAW

1.  The criteria for a disability rating higher than 20 
percent for a right shoulder disability prior to May 17, 
2004, have not been met.  38 U.S.C.A. § 1155 (West 2002); 
38 C.F.R. §§ 4.7, 4.71a, Diagnostic Code 5201 (2007).

2.  The criteria for a disability rating of 30 percent, but 
not higher, for a right shoulder disability on and after May 
17, 2004, have been met.  38 U.S.C.A. § 1155 (West 2002); 
38 C.F.R. §§ 4.7, 4.71a, Diagnostic Code 5201 (2007).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

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.  However, the Court also stated that the failure 
to provide such notice in connection with adjudications prior 
to the enactment of the VCAA was not error and that in such 
cases, the claimant is entitled to "VCAA-content complying 
notice and proper subsequent VA process."  Id. at 120.

The timing requirement enunciated in Pelegrini applies 
equally to the initial-disability-rating and effective-date 
elements of a service-connection claim.  Dingess v. 
Nicholson, 19 Vet. App. 473 (2006).

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, an April 2006 letter informed the veteran 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 veteran's employment and daily life.  The letter 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.  It also requested him to submit any pertinent 
evidence in his possession; informed him of the assistance 
that VA would provide to obtain evidence on his behalf; and 
provided appropriate notice with respect to the effective-
date element of the claim.

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 Supplemental Statement of the 
Case.  

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).  As explained below, the Board has 
determined that an increased disability rating is warranted 
effective May 17, 2004.  The evidence and information 
required to establish entitlement to increased disability 
rating and the effective date for the increase are 
essentially the same.  Consequently, no additional notice is 
required.  

The Board notes that service medical records and pertinent VA 
and private medical records have been obtained.  In addition, 
the veteran has been afforded appropriate VA examinations.  
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 sum, the Board is satisfied that any procedural errors in 
the originating agency's development and consideration of the 
claim were insignificant and non-prejudicial to the veteran.

Accordingly, the Board will address the merits of the claim.  

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).

It is not expected, especially with the more fully described 
grades of disabilities, that all cases will show all the 
findings specified; findings sufficiently characteristic to 
identify the disease and the disability therefrom are 
sufficient.  Above all, a coordination of rating with 
impairment of function will be expected in all cases.  38 
C.F.R. § 4.21 (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 (2007).  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 (West 2002); 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 service-connected 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's right shoulder disability was evaluated as 20 
percent disabling prior to December 22, 2006, and as 30 
percent disabling thereafter under 38 C.F.R. § 4.71a, 
Diagnostic Code 5201.  That code provides that a 20 percent 
disability rating is warranted for limitation of the major or 
minor arm at the shoulder level.  A 30 percent disability 
rating is warranted for limitation of motion of the major arm 
midway between the side and shoulder level.  The maximum 
schedular disability rating of 40 percent is warranted for 
limitation of motion of the major arm to 25 degrees from the 
side.  The record reflects that the veteran is right-handed; 
therefore, his right shoulder corresponds to the major arm.

After carefully reviewing the medical evidence of record, the 
Board finds that a disability rating of 20 percent, and no 
higher, is warranted prior to May 17, 2004.  At a June 1999 
VA examination, flexion was measured to 90 degrees and 
abduction to 80 degrees.  Flexion was noted to be slightly 
decreased to 80 degrees in a February 2000 VA outpatient 
treatment record.  At a June 2001 VA examination, flexion 
increased to 125 degrees and abduction increased to 160 
degrees.  Flexion was measured to 125 degrees and abduction 
to 85 degrees at a December 2002 VA examination.  The ranges 
of motion reflected by this evidence are most consistent with 
limitation of motion of the arm to the shoulder level.

The Board acknowledges that in May 1999 the veteran was able 
to achieve only 44 degrees of flexion and 51 degrees of 
abduction.  This range of motion most nearly approximates 
motion of the arm limited to midway between the side and 
shoulder level.  The Board notes, however, that the veteran 
underwent shoulder surgery in April 1999 and that he was in 
receipt of a temporary total disability rating pursuant to 
38 C.F.R. § 4.30 (2007) from April 1999 to August 1999.  
Since range of motion in the veteran's right shoulder 
increased to shoulder level by June 1999 and remained at or 
beyond shoulder level during the period in question, a 
disability rating higher than 20 percent is not warranted.

The Board finds that a 30 percent disability rating is 
warranted effective May 17, 2004.  On that date, a VA 
outpatient treatment record shows that flexion was measured 
to 90 degrees but abduction was limited to 60 degrees.  On VA 
examination in December 2006, flexion again was measured to 
90 degrees but abduction had decreased to 45 degrees.  These 
records reflect limitation of motion of the arm that most 
nearly approximates movement limited to midway between the 
side and shoulder level.  There is no evidence, however, of 
limitation of motion of the arm that more nearly approximates 
limitation to 25 degrees from the side.  Accordingly, a 
disability rating of 30 percent, and no higher, is warranted 
effective May 17, 2004.

The Board has considered whether there is any other schedular 
basis to assign a higher disability rating during the period 
in question.  In this regard, the Board notes that a December 
2002 VA examination report indicates that the veteran's right 
shoulder disability includes a pattern of acromioclavicular 
joint separation.  However, a disability rating higher than 
20 percent is not available under Diagnostic Code 5203, the 
code applicable to dislocation of the clavicle.  Moreover, 
although Diagnostic Codes 5200 and 5202 provide for 
disability ratings higher than 20 percent, they are not 
applicable here because there is no evidence of ankylosis of 
the scapulohumeral articulation; malunion of the humerus; 
recurrent dislocation at the scapulohumeral joint; or fibrous 
union of the humerus.

ORDER

The Board having determined that the veteran's right should 
disability warrants a 20 percent rating prior to May 17, 
2004, and a 30 percent rating on and after that date, the 
appeal is granted to this extent and subject to the criteria 
applicable to the payment of monetary benefits.


REMAND

A December 2002 VA examination report notes that the veteran 
last worked in construction in 2002 and that he stopped 
working because his right shoulder disability prevented him 
from performing his duties.  The VA examiner opined that the 
veteran was permanently disabled from occupations that 
required the use of his right upper extremity for lifting and 
other heavy work.  The examiner suggested that the veteran 
could perform an occupation that involved only sedentary 
duties.

The report of a December 2006 VA examination indicates that 
the veteran is currently unemployed and is unable to work as 
an electrician because of the symptomatology associated with 
his right shoulder disability.  The examiner opined that he 
is permanently disabled from any occupation that requires the 
use of his right upper extremity.

Based on this evidence, the Board concludes that the 
veteran's right shoulder disability is so exceptional and 
unusual as to render impractical the application of the 
regular schedular criteria.  The Board, therefore, finds that 
this case should be referred to the Under Secretary for 
Benefits or to the Director of the Compensation and Pension 
Service for extra-schedular consideration under 38 C.F.R. 
§ 3.321(b) (2007). 

Accordingly, this case is REMANDED to the RO or the Appeals 
Management Center (AMC), in Washington, D.C., for the 
following actions:

1.  After completing any development 
deemed appropriate, the RO or the AMC 
should refer the case to the Under 
Secretary for Benefits or the Director, 
Compensation and Pension Service, for 
consideration of whether an extra-
schedular evaluation is warranted pursuant 
to 38 C.F.R. § 3.321(b) for the veteran's 
service-connected right shoulder 
disability.

2.  Then, the RO or the AMC should 
readjudicate the issue on appeal based on 
a de novo review of the record.  If the 
benefit sought on appeal is not granted to 
the veteran's satisfaction, the veteran 
and his representative should be furnished 
a supplemental statement of the case and 
provided an appropriate opportunity to 
respond.

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 case 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).


____________________________________________
Shane A. Durkin
Veterans Law Judge, Board of Veterans' Appeals


 Department of Veterans Affairs