Citation Nr: 1000107 Decision Date: 01/04/10 Archive Date: 01/14/10 DOCKET NO. 07-14 313 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Phoenix, Arizona THE ISSUES 1. Entitlement to an initial increased evaluation for kidney stones rated as 0 percent disabling, effective January 13, 2006, and 30 percent, effective May 16, 2008. 2. Entitlement to an initial increased evaluation for a right knee disability rated as 0 percent disabling, effective January 13, 2006, and 10 percent disabling, effective April 10, 2009. 3. Entitlement to an initial increased evaluation for a right shoulder dislocation strain with impingement rated as 20 percent disabling. 4. Entitlement to an initial increased evaluation for right hip cumulative strain rated as 10 percent disabling. 5. Entitlement to an initial increased evaluation for a cervical spine disability rated as 10 percent disabling. 6. Entitlement to an initial increased evaluation for a thoracolumbar spine disability rated as 10 percent disabling. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD S. Richmond, Counsel INTRODUCTION The Veteran had active military service from June 1980 to June 1984, June 1990 to September 1990, May 1992 to September 1992, and August 1996 to January 2006. This matter comes to the Board of Veterans' Appeals (Board) from a July 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Phoenix, Arizona, which granted service connection for right hip cumulative strain assigning a 10 percent evaluation; right shoulder dislocation strain with impingement assigning a 10 percent evaluation; thoracolumbar strain assigning a 10 percent evaluation; cervical spine degenerative joint disease assigning a 10 percent evaluation; right knee cumulative strain assigning a 0 percent evaluation; and kidney stones assigning a 0 percent evaluation. All evaluations are effective January 13, 2006. In April 2007, the RO granted an increased rating of 20 percent for the right shoulder disability, effective January 13, 2006. The Veteran has not indicated that she is satisfied with this rating. Thus, this claim is still before the Board. AB v. Brown, 6 Vet. App. 35 (1993). The RO granted an increased rating of 30 percent for kidney stones in June 2009, effective May 16, 2008, and an increased rating of 10 percent for the right knee disability, effective April 10, 2009. As discussed below, the Veteran has withdrawn these claims. In August 2009, the Veteran testified before the undersigned Veterans Law Judge at a Board hearing at the RO. A transcript of the hearing is of record. Additional evidence was added to the record that the RO has not reviewed. A remand, pursuant to 38 C.F.R. § 20.1304 is not necessary, however, as the evidence is not relevant to the issues on appeal. The Veteran filed service connection claims in 2009 for a right ankle disability, asthma, migraines, hysterectomy, fibromyalgia, irritable bowel syndrome, hearing loss, and hypertension. These claims are referred to the RO. The issues of entitlement to an initial increased rating for the thoracolumbar spine and the cervical spine are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. At the August 2009 Board hearing, prior to the promulgation of a decision, the Veteran submitted testimony withdrawing her increased rating claims for kidney stones and a right knee disability. 2. The right shoulder disability is manifested by abduction most severely limited to 90 degrees and flexion most severely limited to 100 degrees due to pain, history of recurrent dislocations and impingement syndrome, tendonitis, bursitis, x-ray evidence of mild inferior spurring in the glenohumeral joint, and some functional impairment due to pain. 3. The right hip disability is manifested by abduction most severely limited to 25 degrees and flexion most severely limited to 80 degrees due to pain, x-ray evidence of slight spurring which could represent early arthritis, and some functional impairment due to pain. CONCLUSIONS OF LAW 1. Because the appellant has withdrawn her appeal with respect to the increased rating claim for kidney stones, the Board does not have jurisdiction to consider the claim and it is dismissed. 38 U.S.C.A. § 7105 (West 2002 & Supp. 2008); 38 C.F.R. §§ 20.101, 20.202, 20.204 (2009). 2. Because the appellant has withdrawn her appeal with respect to the increased rating claim for a right knee disability, the Board does not have jurisdiction to consider the claim and it is dismissed. 38 U.S.C.A. § 7105 (West 2002 & Supp. 2008); 38 C.F.R. §§ 20.101, 20.202, 20.204 (2009) 3. The criteria for an initial increased rating higher than 20 percent for a right shoulder dislocation strain with impingement are not met. 38 U.S.C.A. §§ 1155, 5107 (West 2002 & Supp. 2008); 38 C.F.R. §§ 3.321, 4.1-4.7, 4.71a, Plate I, Diagnostic Code 5201 (2009). 4. The criteria for an initial increased rating higher than 10 percent for right hip cumulative strain are not met. 38 U.S.C.A. §§ 1155, 5107 (West 2002 & Supp. 2008); 38 C.F.R. §§ 3.321, 4.1-4.7, 4.71a, Plate II, Diagnostic Code 5252 (2009). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Withdrawn issues At the August 2009 hearing, the Veteran withdrew her appeal with respect to the increased rating claims for kidney stones and a right knee disability. A Substantive Appeal may be withdrawn in writing at any time before the Board promulgates a decision. 38 C.F.R. § 20.202. Appeals withdrawn on record at a hearing are an exception to the requirement for a written withdrawal. See 38 C.F.R. § 20.204(b). As the Veteran has withdrawn her appeal with respect to the increased rating claims for kidney stones and a right knee disability, there remain no allegations of errors of fact or law for appellate consideration. Accordingly, the Board does not have jurisdiction and these issues are dismissed. II. Notice and Assistance Upon receipt of a complete or substantially complete application, VA must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide. 38 U.S.C.A. § 5103(a). The notice requirements apply to all five elements of a service connection claim: 1) veteran status; 2) existence of a disability; (3) a connection between the veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability. Dingess v. Nicholson, 19 Vet. App. 473 (2006). The notice must be provided to a claimant before the initial unfavorable adjudication by the RO. Pelegrini v. Principi, 18 Vet. App.112 (2004). The notice requirements may be satisfied if any errors in the timing or content of such notice are not prejudicial to the claimant. Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006). The RO provided the appellant pre-adjudication notice by letters dated in February 2006 and March 2006, regarding the initial service connection claims for the right hip and right shoulder disabilities. The notification substantially complied with the specificity requirements of Dingess v. Nicholson, 19 Vet. App. 473 (2006) identifying the five elements of a service connection claim; and Quartuccio v. Principi, 16 Vet. App. 183 (2002), identifying the evidence necessary to substantiate a claim and the relative duties of VA and the claimant to obtain evidence. After the RO granted service connection for the right hip and right shoulder disabilities in a July 2006 rating decision, the Veteran filed a notice of disagreement with the assigned ratings in October 2006. The RO continued the 10 percent rating for the right hip in an April 2007 statement of the case but granted an increased rating of 20 percent for the right shoulder disability. While the Veteran was not provided a VA letter outlining the evidence necessary to substantiate an initial increased rating claim, the statutory scheme contemplates that once a decision awarding service connection, a disability rating, and an effective date has been made, section 5103(a) notice has served its purpose. Dingess v. Nicholson, 19 Vet. App. at 490 (2006). As the Veteran was granted service connection and assigned an evaluation and effective date, the Secretary had no obligation to provide further notice under the statute. Id. As such, any defect with respect to the content of the notice requirement was non-prejudicial. In any event, the Veteran has neither alleged nor demonstrated any prejudice with regard to the content or timing of the notices. See Shinseki v. Sanders, 129 U.S. 1696 (2009) (reversing prior case law imposing a presumption of prejudice on any notice deficiency, and clarifying that the burden of showing that an error is harmful, or prejudicial, normally falls upon the party attacking the agency's determination); see also Mayfield v. Nicholson, 444 F.3d 1328, 1333-34 (Fed. Cir. 2006). VA has obtained service treatment records, assisted the Veteran in obtaining evidence, afforded the Veteran physical examinations, obtained medical opinions as to the severity of the right hip and shoulder disabilities, and afforded the Veteran the opportunity to give testimony before the Board. All known and available records relevant to the issue on appeal have been obtained and associated with the Veteran's claims file. VA has substantially complied with the notice and assistance requirements and the Veteran is not prejudiced by a decision on the claim at this time. III. Analysis The RO granted service connection for right hip cumulative strain and right shoulder dislocation strain with impingement in July 2006, assigning 10 percent ratings, effective January 13, 2006. The Veteran appealed this action. In April 2007, the RO granted an increased rating of 20 percent for the right shoulder dislocation strain, effective January 13, 2006. The Veteran has not indicated that she is satisfied with this rating. Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities. Where there is a reasonable doubt as to the degree of disability, such doubt shall be resolved in favor of the claimant, and 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. 38 C.F.R. §§ 3.102, 4.3, 4.7. In addition, the Board will consider the potential application of the various other provisions of 38 C.F.R., Parts 3 and 4, whether or not they were raised by the veteran, as well as the entire history of the veteran's disorder in reaching its decision, as required by Schafrath v. Derwinski, 1 Vet. App. 589 (1991). In a claim for a greater original rating after an initial award of service connection, all of the evidence submitted in support of the veteran's claim is to be considered. See Fenderson v. West, 12 Vet. App. 119 (1999); 38 C.F.R. § 4.2. Separate ratings can be assigned for separate periods of time based on the facts found, a practice known as "staged" ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007). Once the evidence is assembled, the Secretary is responsible for determining whether the preponderance of the evidence is against the claim. See Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). If so, the claim is denied; if the evidence is in support of the claim or is in equal balance, the claim is allowed. Id. (a) Right shoulder The Veteran's right shoulder disability is rated under 38 C.F.R. § 4.71a, Diagnostic Code 5201, for limitation of motion of the arm. A 20 percent rating is assigned for limitation of motion at shoulder level on the major or minor side. A 30 percent rating is assigned for limitation of motion to midway between side and shoulder level on the major side; and a 20 percent rating is assigned for limitation of motion to midway between side and shoulder level on the minor side. A 40 percent rating is assigned for limitation of motion of the arm to 25 degrees from side on the major side; and a 30 percent rating is assigned for limitation of motion of the arm to 25 degrees from side on the minor side. The Veteran reported on an April 2009 VA examination that she was right-handed; thus, her right shoulder is considered the major side. Normal range of motion in the shoulder is from 0 to 180 degrees of forward elevation (flexion) and 0 to 180 degrees of shoulder abduction. See 38 C.F.R. § 4.71a, Plate I. A March 2006 VA examination report shows that on physical examination, active range of motion in the right shoulder was flexion to 140 degrees and abduction to 120 degrees. There was impingement at 120 degrees of flexion and abduction. There was pain at the extreme in all ranges of motion. There was an estimate of an additional 20 degrees loss of flexion and abduction due to increased pain and fatigue after repetitive movement. A June 2008 VA orthopedic consult record shows the right shoulder demonstrated full range of motion with painful arc starting at about 90 degrees of abduction. An October 2008 VA physical therapy record shows the Veteran had full active range of motion in flexion and abduction of the shoulder without a painful arc. The assessment was improving right shoulder pain, strength, and function. In April 2009, a VA examination report shows that flexion in the right shoulder was to 180 degrees and painless with repetitions. Abduction was to 110 degrees with pain starting at 110 degrees. There was no impingement. There was no additional loss of range of motion with repetition. The medical evidence shows that the range of motion in the shoulder is most severely limited to 90 degrees of abduction and 100 degrees of flexion with pain. This does not warrant a rating higher than 20 percent under Diagnostic Code 5201. The other diagnostic codes addressing the shoulder that allow for a rating higher than 20 percent do not apply. The medical evidence does not show ankylosis of the scapulohumeral articulation under Diagnostic Code 5200. Ankylosis is defined as "immobility and consolidation of a joint due to disease, injury, or surgical procedure." Dorland's Illustrated Medical Dictionary, 28th edition, p. 86. The medical evidence does not show malunion of the humerus or any present recurrent dislocation at the scapulohumeral joint with frequent episodes of guarding of all arm movements as contemplated under Diagnostic Code 5202. A March 2006 VA examination report shows the Veteran originally injured her right shoulder by dislocating it doing pushups for physical training in 1992. She treated it with a sling and non- steroidal anti-inflammatory drugs. In 1999, she dislocated the right shoulder again while serving in Korea. X-ray examination in March 2006 shows that there was mild inferior spurring off the glenohumeral joint without other significant bony or soft tissue abnormalities. In June 2008, the Veteran reported a history of recurrent right shoulder dislocations. She indicated that the first dislocation happened in 1992 and since then she has had six or seven episodes of the shoulder coming out of the joint, the last time being in 2002. The assessment was impingement syndrome and bicipital right tendonitis. Impression studies of the right shoulder in May 2008 show that osseous structures appeared intact. Alignment and degree of rotation was normal. There were mild degenerative changes of the acromioclavicular joint and glenohumeral joint similar to prior examinations. An August 2008 VA physical therapy record shows an assessment of tendonitis, bursitis, and impingement of the right shoulder. In October 2008, a VA physical therapy record shows the Veteran denied any functional limitations or issues with instability or dislocation over the past four weeks. An April 2009 VA examination notes no instability, giving way, or episodes of dislocation or subluxation in the right shoulder. While the record shows a history of recurrent dislocation, there have been none since 2002, nor are there frequent episodes of guarding of all arm movements. Thus, a rating higher than 20 percent does not apply under Diagnostic Code 5202. A separate neurological rating for the right shoulder also is not warranted. A November 2007 VA treatment record notes the Veteran had symptoms of peripheral neuropathy that were related to her chronic cervical spine degenerative joint disease and right hip and right shoulder injuries. The rationale was that the symptoms were chronologically related to her injuries and waxed and waned with her neck, shoulder, and hip symptoms. However, a separate November 2007 VA treatment record notes that because the Veteran had complaints of peripheral neuropathy in a sock and glove formation, her B12 was checked and found to be deficient. A March 2008 treatment record notes that B12 injections might be beneficial for neuropathy. An August 2008 VA physical therapy record shows the Veteran was neurovascularly intact about the shoulder. In April 2009, a VA examination report shows that there was no impingement or deltoid atrophy, and muscle strength was 5 out of 5. Thus, the medical evidence shows that a rating higher than 20 percent is not warranted for the right shoulder disability. (b) Right hip The Veteran's right hip cumulative strain is rated under 38 C.F.R. § 4.71a, Diagnostic Code 5252 at 10 percent disabling. A 10 percent rating is assigned for flexion in the thigh limited to 45 degrees. A 20 percent rating is assigned for flexion in the thigh limited to 30 degrees. A 30 percent rating is assigned for flexion in the thigh limited to 20 degrees. A 40 percent rating is assigned for flexion in the thigh limited to 10 degrees. Normal range of hip flexion is from 0 to 125 degrees. Normal hip abduction is from 0 to 45 degrees. 38 C.F.R. § 4.71a, Plate II. A March 2006 VA examination report shows the history of the original injury was that the Veteran fell onto the right hip and into a pot hole while running in 1997 as part of physical training. She was treated with a crutch for 12 months. No further incident or injuries were noted. The current subjective complaints were chronic aching. On physical examination, the Veteran had a rocking gait favoring the right hip. Flexion in the hip was limited to 90 degrees out of 125 degrees with pain at the extreme of range of motion. There was estimated an additional loss of range of flexion of 10 degrees due to pain with repetition. Abduction was to 25 out of 45 degrees with pain at the extreme range of motion. An April 2009 VA examination report shows that flexion in the right hip was to 120 degrees and painless with no additional limitation following repetitive range of motion. Abduction was to 40 degrees due to pain with no additional limitation following repetitive range of motion. The medical evidence shows that flexion of the right hip was most severely limited to 80 degrees due to pain. This impairment does not warrant a higher rating under Diagnostic Code 5252. The other diagnostic codes pertaining to the hip that allow for ratings higher than 10 percent do not apply. The medical evidence does not show ankylosis of the right hip joint as addressed under Diagnostic Code 5250. The medical evidence also does not show hip flail joint under Diagnostic Code 5254. The right hip abduction does not warrant a rating higher than 10 percent under Diagnostic Code 5253 for limitation of abduction motion lost beyond 10 degrees. The March 2006 VA examination report shows that right hip abduction was to 25 degrees. The April 2009 VA examination report shows that right hip abduction was to 40 degrees with pain. Additionally, the medical records do not show malunion of the right hip joint as contemplated under Diagnostic Code 5255. X-ray examination in March 2006 showed no fracture or radiopaque foreign body identified, no evidence of arthritis, and no soft tissue abnormality. X-ray examination in April 2009 showed that the hip joint spaces were preserved with slight spurring of the hip joints bilaterally, which was noted could be early arthritis. There was no fracture or dislocation identified. A separate neurological rating does not apply for the right hip. A November 2007 VA treatment record notes that the Veteran had symptoms of peripheral neuropathy, which were likely related to chronic cervical spine degenerative joint disease, and right shoulder and right hip injuries, as the symptoms were related chronologically to her injuries and waxed and waned with her neck, shoulder, and hip. A separate November 2007 treatment record notes, however, that since the Veteran was complaining of sock and glove peripheral neuropathy, her B12 was checked and was deficient. It was noted in March 2008 that B12 injections might be beneficial for neuropathy. The April 2009 VA examination report shows that the Veteran denied a history of numbness, paresthesias, or leg or foot weakness. Thus, a schedular rating higher than 10 percent is not warranted for the right hip based on the medical evidence of record. (c) Summary The level of impairment associated with the right hip and right shoulder disabilities has been relatively stable throughout the appeals period, or at least has never been worse than what is warranted for 10 and 20 percent ratings, respectively. Therefore, the application of staged ratings (i.e., different percentage ratings for different periods of time) is inapplicable. See Hart v. Mansfield, 21 Vet. App. 505 (2007). The application of a higher disability evaluation based on functional loss due to weakness, fatigability, incoordination, or pain on movement of a joint under 38 C.F.R. §§ 4.40, 4.45, and 4.59 also does not apply based on the medical evidence of record. See DeLuca v. Brown, 8 Vet. App. 202 (1995). The Veteran has complaints of pain in the right hip and shoulder including painful motion, but this impairment is contemplated by the 10 and 20 percent ratings assigned, respectively. Thus, the right hip and shoulder disabilities are properly evaluated. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. 38 C.F.R. § 4.1. An extra-schedular evaluation under 38 C.F.R. § 3.321 has been considered. However, the impairment associated with the right shoulder and right hip disabilities is adequately considered by the diagnostic codes applied. The medical evidence shows limitation of motion in the right hip and right shoulder due to pain. Diagnostic Codes 5252 and 5201 specifically consider this type of impairment. Thus, the evidence does not present such an exceptional disability picture that the available schedular evaluations for the service-connected disabilities are inadequate. See Thun v. Peake, 22 Vet. App. 111 (2008). An inferred claim for a total disability rating based on individual unemployability (TDIU) under Rice v. Shinseki, 22 Vet. App. 447 (2009) also has been considered. The Veteran reported in April 2009 that she was an intelligence analyst on a full-time basis and had not lost any time from work during the last 12 months. Therefore, any inferred TDIU claim is inapplicable in this case. The preponderance of the evidence is against the increased rating claims for the right hip and right shoulder disabilities; there is no doubt to be resolved; and increased ratings are not warranted. Gilbert v. Derwinski, 1 Vet. App. at 57-58. ORDER The appeal with respect to the claim for entitlement to an initial increased evaluation for kidney stones rated as 0 percent disabling, effective January 13, 2006, and 30 percent disabling, effective May 16, 2008, is dismissed. The appeal with respect to the claim for entitlement to an initial increased evaluation for a right knee disability rated as 0 percent disabling, effective January 13, 2006, and 10 percent disabling, effective April 10, 2009, is dismissed. Entitlement to an initial increased evaluation for a right shoulder dislocation strain with impingement rated as 20 percent disabling is denied. Entitlement to an initial increased evaluation for right hip cumulative strain rated as 10 percent disabling is denied. REMAND The Veteran seeks higher evaluations for disabilities of the thoracolumbar and cervical spines. She was last evaluated in April 2009. Since that time, the Veteran has reinjured her cervical and thoracolumbar spines. She testified in the August 2009 hearing that she fell in her driveway the day before the hearing. A July 2009 VA treatment record also notes the Veteran was rear-ended in her car and suffered muscle spasms in her back and lateral muscle tenderness on the left side to palpation. As the severity of the thoracolumbar and cervical spine disabilities is shown to have potentially increased since the last VA examination in April 2009, an additional evaluation is warranted to properly determine the present severity of the disabilities on appeal. Accordingly, the case is REMANDED for the following action: 1. Request the Veteran to identify any recent treatment for the cervical and thoracolumbar spine disabilities since July 2009 and then obtain any records identified. 2. Schedule the Veteran for a VA orthopedic examination to determine the present severity of the cervical and thoracolumbar spine disabilities. The examiner should do the following: (a) Conduct range of motion studies in the cervical and thoracolumbar spines including after repetitive movement accounting for any limitations due to pain, weakness, fatigability, or incoordination. (b) State whether the Veteran has ankylosis in the cervical or thoracolumbar spines. (c) Assess whether the Veteran has had any incapacitating episodes due to flare- ups in the thoracolumbar or cervical spines in the past 12 months, and if so, the duration of such episodes. (d) Separately assess any neurological impairment as a result of the thoracolumbar or cervical spine disabilities, and state whether any impairment is analogous to mild, moderate, or severe incomplete paralysis. (e) Assess whether the spine disabilities render the Veteran unemployable. A rationale for all opinions must be provided. The claims file must be reviewed in conjunction with the examination. 3. Thereafter, any additional development deemed necessary should be conducted. If either of the benefits sought on appeal remain denied, issue the Veteran and her representative a supplemental statement of the case and allow a reasonable opportunity to respond. The appellant has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2009). ______________________________________________ RONALD W. SCHOLZ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs