Citation Nr: 1007303 Decision Date: 02/26/10 Archive Date: 03/05/10 DOCKET NO. 07-10 066 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri THE ISSUES 1. Entitlement to an initial increased rating for residuals of post-operative left shoulder rotator cuff tear, currently evaluated as 10 percent disabling. 2. Entitlement to service connection for a right shoulder disability. WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Mary C. Suffoletta, Counsel INTRODUCTION The Veteran served on active duty from September 1978 to September 1981, and from January 2003 to December 2003. These matters initially came to the Board of Veterans' Appeals (Board) on appeal from a September 2005 decision of the RO that, in pertinent part, granted service connection for residuals of post-operative left shoulder rotator cuff tear evaluated as 0 percent (noncompensable) disabling effective December 2003; and denied service connection for residuals of post-operative right shoulder rotator cuff tear. The Veteran timely appealed. In September 2008, the Veteran testified during a hearing before the undersigned at the RO. In July 2009, the Board remanded the case for additional development. In June 2003, the RO increased the disability evaluation for residuals of post-operative left shoulder rotator cuff tear to 10 percent, effective December 18, 2003. Because higher evaluations are available for residuals of post-operative left shoulder rotator cuff tear, and the Veteran is presumed to seek the maximum available benefit for a disability, the claim remains on appeal. See AB v. Brown, 6 Vet. App. 35, 38 (1993). FINDINGS OF FACT 1. For the period from December 18, 2003, to October 16, 2009, the Veteran's service-connected residuals of post- operative left shoulder rotator cuff tear have been manifested by pain and full range of motion in abduction and forward flexion of the left (minor) arm, and X-ray evidence of a small ossicle in the left acromioclavicular joint; arm motion limited to shoulder level and ankylosis have not been demonstrated. 2. For the period from October 17, 2009, the Veteran's service-connected residuals of post-operative left shoulder rotator cuff tear have been manifested by constant pain and functional loss of the left (minor) arm which more nearly approximates limited arm motion to shoulder level; arm motion limited to midway between side and shoulder level and ankylosis have not been demonstrated. 3. For the period from October 17, 2009, the post-operative scarring of the left shoulder has been tender and painful on examination. 4. A chronic right shoulder disability did not have its onset or increase in severity during active service or due to service-connected left shoulder disability. CONCLUSIONS OF LAW 1. The criteria for an initial disability evaluation in excess of 10 percent for residuals of post-operative left shoulder rotator cuff tear, for the period from December 18, 2003, to October 16, 2009, have not been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5201 (2009). 2. The criteria for a 20 percent disability evaluation for residuals of post-operative left shoulder rotator cuff tear, for the period from October 17, 2009, have been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5201 (2009). 3. The criteria for a separate 10 percent disability evaluation for post-operative tender and painful scarring of the left shoulder, for the period from October 17, 2009, have been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.7, 4.20; 4.118, Diagnostic Code 7804 (2009). 4. A chronic right shoulder disability was not incurred or aggravated during active duty and is not proximately due to or the result of service-connected left shoulder disability. 38 U.S.C.A. §§ 101, 1110, 1131, 5107 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.6, 3.102, 3.159, 3.303, 3.306, 3.310 (2009). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist 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. 2009); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2009). VA should notify the Veteran of: (1) the evidence that is needed to substantiate the claim(s); (2) the evidence, if any, to be obtained by VA; and (3) the evidence, if any, to be provided by the claimant. Pelegrini v. Principi, 18 Vet. App. 112 (2004); see also Notice and Assistance Requirements and Technical Correction, 73 Fed. Reg. 23,353 (Apr. 30, 2008) (codified at 38 C.F.R. Part 3). Through June 2005 and March 2006 letters, the RO or VA's Appeals Management Center (AMC) notified the Veteran of elements of service connection, the evidence needed to establish each element, and evidence of increased disability. These documents served to provide notice of the information and evidence needed to substantiate the claims. VA's letters notified the Veteran of what evidence he was responsible for obtaining, and what evidence VA would undertake to obtain. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). VA informed him that it would make reasonable efforts to help him get evidence necessary to support his claims, particularly, medical records, if he gave VA enough information about such records so that VA could request them from the person or agency that had them. In the March 2006 letter, the RO specifically notified the Veteran of the process by which initial disability ratings and effective dates are established. Dingess v. Nicholson, 19 Vet. App. 473 (2006). In this case, the Veteran has also appealed for a higher initial disability rating assigned following the grant of service connection for residuals of post-operative left shoulder rotator cuff tear. Hence, the Board has characterized the issue in accordance with the decision in Fenderson v. West, 12 Vet. App. 119, 126 (1999) (appeals from original awards are not to be construed as claims for increased ratings), which requires consideration of the evidence since the effective date of the grant of service connection. As Fenderson held that a claim for an initial disability rating is distinct from a claim for increased rating, the requirements of Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008), are not applicable to the present claim. Defects as to the timeliness of the statutory and regulatory notice are rendered moot because each the Veteran's claims on appeal has been fully developed and re-adjudicated by an agency of original jurisdiction after notice was provided. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). There is no indication that any additional action is needed to comply with the duty to assist the Veteran. The RO or AMC has obtained copies of the service treatment records and outpatient treatment records, and has arranged for VA examinations in connection with the claims on appeal, reports of which are of record. The Veteran has not identified, and the record does not otherwise indicate, any existing pertinent evidence that has not been obtained. Given these facts, it appears that all available records have been obtained. There is no further assistance that would be reasonably likely to assist the Veteran in substantiating the claims. 38 U.S.C.A. § 5103A(a)(2). II. Higher Initial Disability Evaluation Disability evaluations are determined by comparing a Veteran's present symptomatology with criteria set forth in VA's Schedule for Rating Disabilities, which is based on average impairment in earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. When a question arises as to which of two ratings apply under a particular diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating. 38 C.F.R. § 4.7. In view of the number of atypical instances 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, and above all, coordination of rating with impairment of function will, however, be expected in all instances. 38 C.F.R. § 4.21 (2009). After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 4.3 (2009). Where the question for consideration is propriety of the initial evaluation assigned, evaluation of the medical evidence since the grant of service connection and consideration of the appropriateness of "staged rating" is required. Fenderson, 12 Vet. App. at 126. For disabilities evaluated on the basis of limitation of motion, VA is required to apply the provisions of 38 C.F.R. §§ 4.40, 4.45 (2009), pertaining to functional impairment. The Court has instructed that in applying these regulations VA should obtain examinations in which the examiner determined whether the disability was manifested by weakened movement, excess fatigability, incoordination, or pain. Such inquiry is not to be limited to muscles or nerves. These determinations are, if feasible, to be expressed in terms of the degree of additional range-of-motion loss due to any weakened movement, excess fatigability, incoordination, or pain. DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Johnston v. Brown, 10 Vet. App. 80, 84-5 (1997); 38 C.F.R. § 4.59 (2009). 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. When, however, the limitation of motion of the specific joint or joints involved is noncompensable under the appropriate diagnostic codes, a 10 percent evaluation is assignable each such major joint or group of minor joints affected by limitation of motion, to be combined, not added, under Diagnostic Code 5003. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. 38 C.F.R. § 4.71a, Diagnostic Code 5003. Service connection has been established for residuals of post-operative left shoulder rotator cuff tear, effective December 18, 2003. The RO assigned a 10 percent disability rating under 38 C.F.R. § 4.71a, Diagnostic Codes 5201-5019, pertaining to limitation of motion of the affected part. A hyphenated diagnostic code reflects a rating by analogy (see 38 C.F.R. §§ 4.20 and 4.27). A distinction is made between major (dominant) and minor musculoskeletal groups for rating purposes. In the instant case, the Veteran is right-handed; hence, his left shoulder is considered his minor upper extremity. Bursitis will be rated as degenerative arthritis, on the basis of limitation of motion of affected part. 38 C.F.R. § 4.71a, Diagnostic Code 5019. Under Diagnostic Code 5201, a 20 percent evaluation is warranted for motion of the minor arm limited to shoulder level, or limited to midway between the side and shoulder level. A maximum 30 percent rating is assignable for the minor upper extremity, when motion is limited to within 25 degrees from the side. 38 C.F.R. § 4.71a, Diagnostic Code 5201. The standard ranges of motion for shoulder abduction and forward elevation (flexion) are 180 degrees. 38 C.F.R. § 4.71, Plate I. Records show an impression of left rotator cuff tear with acromioclavicular joint arthrosis in March 2003. In July 2003, the Veteran underwent a left open rotator cuff repair. The report of an April 2005 VA examination includes a diagnosis of status-post surgery of bilateral shoulders for rotator cuff tears. Range of motion of the left shoulder was to 180 degrees on forward flexion, to 180 degrees on abduction, to 90 degrees on external rotation, and to 90 degrees on internal rotation. Range of motion testing was not changed by repetition or pain. An X-ray revealed a 3-by- 5 millimeter ossicle in the left acromioclavicular joint. During an October 17, 2009 VA examination, the Veteran reported that he tried to avoid heavy lifting at home. He reportedly lost no time from work in the past 12 months due to a shoulder disability. He reported constant left shoulder pain. Examination of the Veteran's left shoulder revealed a well-healed but tender surgical scar over the acromioclavicular joint. Range of motion was from 0 degrees to 100 degrees with pain at the end of motion on abduction, from 0 degrees to 100 degrees with pain at the end of motion on flexion, from 0 degrees to 75 degrees with pain on external rotation, and from 0 degrees to 90 degrees on internal rotation. There were no changes following repetitions. Neurological evaluation of the upper extremities revealed that deep tendon reflexes were 2+ overall; peripheral sensation and strength were normal. The examiner opined that the Veteran's left shoulder was a little worse than indicated on previous examination. For the period from December 18, 2003, to October 16, 2009 For the applicable period, the evidence does not show that the Veteran's motion of the left arm is limited to shoulder level during any examination. 38 C.F.R. § 4.71a, Diagnostic Code 5201 (2009). In addition, there is no evidence of ankylosis of the left shoulder or arm to warrant a higher initial disability rating under 38 C.F.R. § 4.71a, Diagnostic Code 5200. The Veteran's left shoulder demonstrated full range of motion in abduction and forward flexion. However, the Board is mindful that a higher evaluation can be considered based on functional loss due to pain on use or due to flare-ups under 38 C.F.R. §§ 4.40, 4.45, and 4.59. See Johnson v. Brown, 9 Vet. App. 7 (1996); DeLuca v. Brown, 8 Vet. App. 202, 206 (1995). Here, during the applicable period, no examiner found any additional functional impairment due to repetitive use, fatigue, etc. The overall evidence does not demonstrate any additional limitation of motion and functional impairment of the Veteran's left shoulder and arm at any time. Moreover, the Veteran did not report any flare-ups due to pain, and X-rays revealed a small ossicle in the left acromioclavicular joint. Thus, even with consideration of functional factors, the Board finds that the Veteran's residuals of post-operative left shoulder rotator cuff tear do not meet or approximate the criteria for an initial disability evaluation in excess of 10 percent under Diagnostic Code 5201 for the period from December 18, 2003, to October 16, 2009. For the Period from October 17, 2009 Here, the evidence shows that the Veteran's motion of the left arm has been limited by pain to approximately 100 degrees in both abduction and forward flexion, which is slightly higher than shoulder level. During the applicable period, the Veteran also has reported constant pain in the left shoulder. Resolving all doubt in the Veteran's favor, these symptoms approximate the criteria for a 20 percent disability rating under 38 C.F.R. § 4.71a, Diagnostic Code 5201, on the basis of functional impairment. The disability has been symptomatic and results in some dysfunction at shoulder level. Accordingly, staged rating, pursuant to Fenderson, supra, is applicable. Pain may provide a basis for a compensable disability rating. Smallwood v. Brown, 10 Vet. App. 93, 98 (1997). The Board has carefully considered the Veteran's statements to the effect that he has functional impairment in his left shoulder and arm from pain that interferes with his ability to lift heavy objects. 38 C.F.R. §§ 4.10, 4.40, 4.41, 4.44, 4.45, 4.59. In this case, the evidence does not show that the Veteran's motion of the left arm is limited to 25 degrees from his side during any examination. 38 C.F.R. § 4.71a, Diagnostic Code 5201 (2009). Again, there is no evidence of ankylosis of the left shoulder or arm. The Veteran can still move his left shoulder and arm, although limited with pain. Even with consideration of functional factors, the Board finds that the Veteran's residuals of post-operative left shoulder rotator cuff tear do not meet or approximate the criteria for a disability evaluation in excess of 20 percent under Diagnostic Code 5201, for the period from October 17, 2009. In addition, the Board finds that the criteria for a separate 10 percent disability rating for residuals of post-operative left shoulder rotator cuff tear, based on a tender and painful scar is warranted. 38 C.F.R. § 4.118, Diagnostic Code 7804. This is not prohibited by 38 C.F.R. § 4.14 (2009) (the evaluation of the same disability under various diagnoses is to be avoided). See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994) (the Court found that a separate evaluation could be assigned for symptomatic, residual scarring without violating the pyramid rule). Extraschedular Consideration There is no showing that the Veteran's service-connected residuals of post-operative left shoulder rotator cuff tear have resulted in so exceptional or unusual a disability picture as to warrant the assignment of any higher evaluation on an extra-schedular basis. See 38 C.F.R. § 3.321(b)(1). In this regard, the Board notes that the Veteran's disability has not been shown to markedly interfere with employment (i.e., beyond that contemplated in the assigned ratings), to warrant frequent periods of hospitalization, or to otherwise render impractical the application of the regular schedular standards. The Veteran has not reported any lost time from work, or other economic impact from the disability. There is no evidence of recent hospitalizations. In the absence of evidence of any of the factors outlined above, the criteria for referral for consideration of an extraschedular rating have not been met. See Bagwell v. Brown, 9 Vet. App. 337, 338-9 (1996); Floyd v. Brown, 9 Vet. App. 88, 96 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). III. Service Connection The Veteran does not claim, and the record does not show, that residuals of post-operative right shoulder rotator cuff tear were present during active duty or is otherwise related to active service. The Veteran contends that his residuals of post-operative right shoulder rotator cuff tear are the result of aggravation of pre-existing injuries or disabilities in service. Applicable law provides that service connection may be granted for disability resulting from personal injury suffered or disease contracted during active military, naval, or air service, or for aggravation of a pre-existing injury suffered, or disease contracted, during such service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. §§ 3.303, 3.304 (2009). The term "active military, naval, or air service" includes active duty, and "any period of active duty for training during which the individual concerned was disabled or died from a disease or injury incurred or aggravated in line of duty, and any period of inactive duty training during which the individual concerned was disabled or died from an injury incurred or aggravated in line of duty or from an acute myocardial infarction, a cardiac arrest, or a cerebrovascular accident which occurred during such training." 38 U.S.C.A. § 101(24) (West 2002 & Supp. 2009); 38 C.F.R. § 3.6(a) (2009). Service connection requires competent evidence showing: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004), citing Hansen v. Principi, 16 Vet. App. 110, 111 (2002); see also Caluza v. Brown, 7 Vet. App. 498 (1995). Disability which is proximately due to or the result of a service-connected disease or injury shall be service- connected. See 38 C.F.R. § 3.310 (2009). The Board notes that, following the Veteran's initial period of active service, the Veteran injured his right shoulder while doing a lot of repetitive heavy lifting at work in July 2002. He underwent surgical repair in August 2002. Records show that the Veteran was restricted from heavy lifting for a few months. He was released to full duty in October 2002. In January 2003, the Veteran was ordered to report for active duty. In September 2005, the Veteran testified that he put additional stress on his right shoulder during his second period of active duty, which contributed to his current disability. He contends that his right shoulder was still in the healing process when he reported for active duty. The Veteran is competent to testify on factual matters of which he has first-hand knowledge. Washington v. Nicholson, 19 Vet. App. 362 (2005). A pre-existing injury or disease will be considered to have been aggravated by active service where there is an increase in disability during such service, unless there is a specific finding that the increase in disability was due to the natural progress of the disease. 38 U.S.C.A. § 1153 (West 2002); 38 C.F.R. § 3.306(a) (2008). The underlying disorder, as opposed to the symptoms, must be shown to have worsened in order to find aggravation. See Hunt v. Derwinski, 1 Vet. App. 292 (1991). Aggravation may not be conceded where the disability underwent no increase in severity during service on the basis of all the evidence of record pertaining to the manifestations of the disability prior to, during, and subsequent to service. 38 C.F.R. § 3.306(b); see also VAOPGCPREC 3-03 (July 16, 2003). Service treatment records contain neither complaints nor manifestations of a right shoulder disability. During an April 2005 VA examination, the Veteran reported bilateral shoulder aching daily and that he wore no shoulder brace. He reported that his shoulders hurt worse when working because of the lifting he must do. The diagnosis was status-post surgery of bilateral shoulders for rotator cuff tears. Following the Board's July 2009 remand, the Veteran underwent a VA examination in October 2009 for purposes of determining whether a worsening of his pre-existing right shoulder disability occurred during his second period of active duty. The VA examiner reviewed the claims file, and noted the Veteran's right shoulder injury while working in July 2002. The VA examiner also had noted that the Veteran underwent surgical repair of the right rotator cuff in August 2002. The VA examiner found no references to the Veteran's right shoulder in treatment records during his activation in 2003. Hence, the VA examiner opined that any current right shoulder problems could not be attributed to events which occurred during the Veteran's second period of active duty. The examiner also opined that the Veteran's right shoulder problems were not in any way related to the service-connected residuals of post-operative left shoulder rotator cuff tear; and that the Veteran did not need to compensate for the left shoulder condition in any way that would affect the right shoulder. In essence, the VA examiner concluded that the Veteran's residuals of post-operative right shoulder rotator cuff tear did not owe its etiology to service; and that there was no permanent worsening of the Veteran's residuals of post- operative right shoulder rotator cuff tear in service or due to his service-connected left shoulder disability. When assessing the probative value of a medical opinion, the access to claims files and the thoroughness and detail of the opinion must be considered. The opinion is considered probative if it is definitive and supported by detailed rationale. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000). A medical opinion that contains only data and conclusions is not entitled to any weight. Further, a review of the claims file cannot compensate for lack of the reasoned analysis required in a medical opinion, which is where most of the probative value of a medical opinion comes from. "It is the factually accurate, fully articulated, sound reasoning for the conclusion, not the mere fact that the claims file was reviewed, that contributes probative value to a medical opinion." See Nieves- Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). The October 2009 examiner reviewed the entire claims file and cited to specific evidence in the claims folder to support his opinions. The VA examiner specifically noted that medical records revealed no complaints of right shoulder problems during the Veteran's second period of active duty. The VA opinion in October 2009 is factually accurate, fully articulated, and contains sound reasoning. There is no opinion to the contrary. In this case, the Veteran's residuals of post-operative right shoulder rotator cuff tear have been associated with a work- related injury in July 2002. This evidence is consistent with the medical evidence of record and the October 2009 VA examiner's opinion. Accordingly, the Board finds the October 2009 VA opinion to be probative on the question of the onset or aggravation of the Veteran's right shoulder disability. To the extent that the Veteran is competent to associate a worsening of right shoulder symptoms to service and/or his left shoulder, his assessments are less probative than the medical opinion concerning the etiology of pertinent disability. While the Veteran is competent to offer statements of first-hand knowledge that right shoulder symptoms increased in severity during service or due to his left shoulder disability, as a lay person he is not competent to render a probative opinion as to whether his underlying disorder, as opposed to symptoms, had worsened during active duty or due to service-connected disability. See Bostain v. West, 11 Vet. App. 124, 127 (1998), citing Espiritu v. Derwinski, 2 Vet. App. 492 (1992). See also Routen v. Brown, 10 Vet. App. 183, 186 (1997) ("a layperson is generally not capable of opining on matters requiring medical knowledge"). Because the weight of the evidence is against a finding that the Veteran's residuals of post-operative right shoulder rotator cuff tear had their onset or permanently worsened during active duty, service connection is denied. (CONTINUED ON NEXT PAGE) ORDER An initial disability evaluation in excess of 10 percent, for the period from December 18, 2003, through October 16, 2009, for residuals of post-operative left shoulder rotator cuff tear is denied. A 20 percent disability rating for residuals of post- operative left shoulder rotator cuff tear, for the period from October 17, 2009, is allowed, subject to the pertinent legal authority governing the payment of monetary awards. A separate 10 percent rating for a tender scar of the left shoulder, for the period from October 17, 2009, is allowed, subject to the pertinent legal authority governing the payment of monetary awards. Service connection for right shoulder disability is denied. ____________________________________________ THOMAS J. DANNAHER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs