Citation Nr: 1010695 Decision Date: 03/22/10 Archive Date: 03/31/10 DOCKET NO. 07-27 481 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Paul, Minnesota THE ISSUE Entitlement to an increased rating for service-connected postoperative residuals of a left shoulder dislocation, currently evaluated as 20 percent disabling. (A temporary total convalescence rating has been assigned, pursuant to 38 C.F.R. § 4.30, effective from April 30, 2009 through May 31, 2009.) REPRESENTATION Veteran represented by: William J. Marshall, Attorney at Law ATTORNEY FOR THE BOARD M. Donohue, Associate Counsel INTRODUCTION The Veteran served on active duty in the United States Army from January 1971 to January 1973. This matter comes before the Board of Veterans' Appeals (Board) on appeal of a May 2007 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Paul, Minnesota. FINDING OF FACT The Veteran's left shoulder disability is manifested by complaints of pain, weakness and limited motion. Objective clinical findings include limited range of forward flexion to 80 degrees and abduction to 69 degrees. CONCLUSION OF LAW The criteria for an evaluation in excess of 20 percent for the Veteran's service-connected left shoulder disability have not been met. 38 U.S.C.A. §§ 1155, 5107(b) (West 2002); 38 C.F.R. §§ 4.71, 4.71a, Diagnostic Code 5201 (2009). REASONS AND BASES FOR FINDING AND CONCLUSION In the interest of clarity, the Board will first discuss certain preliminary matters. The Board will then render a decision. The Veterans Claims Assistance Act of 2000 (VCAA) The Board has given consideration to the VCAA. The VCAA includes an enhanced duty on the part of VA to notify a claimant as to the information and evidence necessary to substantiate claims for VA benefits. The VCAA also redefines the obligations of VA with respect to its statutory duty to assist claimants in the development of their claims. See 38 U.S.C.A. §§ 5103, 5103A (West 2002). The VCAA alters the legal landscape in three distinct ways: standard of review, notice and duty to assist. The Board will now address these concepts within the context of the circumstances presented in this case. Standard of review After the evidence has been assembled, it is the Board's responsibility to evaluate the entire record. See 38 U.S.C.A. § 7104(a) (West 2002). When there is an approximate balance of evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. See 38 U.S.C.A. § 5107 (West 2002); 38 C.F.R. § 3.102 (2009). In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the United States Court of Appeals for Veterans Claims (the Court) stated that "a veteran need only demonstrate that there is an 'approximate balance of positive and negative evidence' in order to prevail." To deny a claim on its merits, the preponderance of the evidence must be against the claim. See Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. Notice Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b) (2009); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). In March 2006, the United States Court of Appeals for Veterans Claims (Court) issued its decision in the consolidated appeal of Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The Court in Dingess held that the VCAA notice requirements of 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a "service connection" claim. As previously defined by the courts, those five elements include: (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. Upon receipt of an application for "service connection," therefore, VA is required to review the information and the evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating or is necessary to substantiate the elements of the claim as reasonably contemplated by the application. This includes notice that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. In the present case, VA issued VCAA notice letters to the Veteran dated in February 2007, May 2008, and November 2008. These letters informed the Veteran of what evidence was required to substantiate his increased rating claim and of his and VA's respective duties for obtaining evidence. The February 2007 and November 2008 letters also informed the Veteran as to the law pertaining to the assignment of a disability rating and effective date as the Court required in Dingess. In addition, the Court has held that an increased compensation claim "is a new and separate claim for which section 5103(a) preadjudicatory notice is required." Vazquez-Flores v. Peake, 22 Vet. App. 37, 42 (2008), vacated on other grounds sub. nom. Vazquez-Flores v. Shineski, 540 F.3d 1270 (Fed. Cir. 2009). The Court has held that a notice letter must inform the Veteran (1) that, to substantiate a claim, the Veteran must provide, or ask VA to obtain, medical or lay evidence demonstrating a worsening or increase in severity and the effect that worsening has on the claimant's employment; (2) if the veteran 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 and the effect of that worsening has on the claimant's employment (such as a specific measurement or test result), the notice letter must provide at least general notice of that requirement; (3) that if an increase in disability is found, a disability rating will be determined by applying relevant Diagnostic Codes, which typically provide for a range in severity of a particular disability from 0% to as much as 100% (depending on the disability involved), based on the nature of the symptoms of the condition for which disability compensation is being sought, their severity and duration, and their impact upon employment; and (4) of examples of the types of medical and lay evidence that the claimant may submit (or ask VA to obtain) that are relevant to establishing entitlement to increased compensation - e.g., competent lay statements describing symptoms, medical and hospitalization records, medical statements, employer statements, job application rejections, and any other evidence showing an increase in the disability or exceptional circumstances relating to the disability. Recently, in reviewing the Court's Vazquez-Flores decision, the Federal Circuit found that such notice need not be "veteran specific," nor need it inform the claimant of alternative diagnostic codes that might be applicable to his or her claim or that he or she should submit evidence showing that the disability had an impact on his or her "daily life." Vazquez-Flores, 540 F.3d 1270, 1277 (Fed. Cir. 2009). The Veteran was provided with notice that complied with Court's decision in Vazquez-Flores v. Peake in the above- mentioned May 2008 letter from the RO. The Board recognizes that this letter, along with the above-mentioned November 2008 notice letter, was mailed to the Veteran after initial adjudication of the claim by the RO. See Pelegrini v. Principi, 17 Vet. App. 412 (2004). However, any defect with respect to the timing of the VCAA notice did not prejudice the Veteran. After the notice was provided, the claim was readjudicated in the May 2008 and in multiple subsequent statement of the cases and the Veteran was provided with an opportunity to respond. In short, the record indicates that the Veteran received appropriate notice pursuant to the VCAA. Duty to assist In general, the VCAA provides that VA shall make reasonable efforts to assist a claimant in obtaining evidence necessary to substantiate a claim for VA benefits, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. The law provides that the assistance provided by VA shall include providing a medical examination or obtaining a medical opinion when such an examination or opinion is necessary to make a decision on the claim. An examination is deemed "necessary" if the record does not contain sufficient medical evidence for VA to make a decision on the claim. See 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2009). The Board finds that reasonable efforts have been made to assist the Veteran in obtaining evidence necessary to substantiate his claim, and that there is no reasonable possibility that further assistance would aid in substantiating it. In particular, the VA has obtained the Veteran's service treatment records, VA outpatient medical records, private medical records, and provided him with three VA examinations. As the Board will discuss in detail in its analysis below, the Veteran was provided with VA examinations in March 2007, February 2008, and March 2009. The reports of these examinations reflect that the examiners recorded the Veteran's current complaints, conducted appropriate physical examinations and rendered appropriate diagnoses and opinions consistent with the remainder of the evidence of record, and pertinent to the rating criteria. See Barr v. Nicholson, 21 Vet. App. 303 (2007); Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). While the record does not reflect that the March 2009 examiner reviewed the Veteran's claims folder, the Veteran is not prejudiced thereby as the examiner considered medical history as reported by the Veteran which is consistent with that contained in the claims folder. The Board therefore concludes that the examinations are adequate for rating purposes. See 38 C.F.R. § 4.2 (2009). The Board notes that the Veteran underwent left shoulder surgery in April 2009. As noted on the title page, a temporary total disability rating has been assigned pursuant to 38 C.F.R. § 4.30 from April 30, 2009 through May 31, 2009. The record indicates that Veteran was not provided with a VA examination following his surgery. However, his post-surgery physical therapy records are of record and VA outpatient treatment records from December 2009 indicate that there has been no improvement in the Veteran's disability following surgery. Accordingly, the Board finds that the evidence of record adequately addresses the Veteran's left shoulder disability and a remand for an additional examination would be of no use to the Veteran. The Board additionally observes that all appropriate due process concerns have been satisfied. See 38 C.F.R. § 3.103 (2009). The Veteran has been accorded the opportunity to present evidence and argument in support of his claim. He has declined to exercise his option of a personal hearing. Accordingly, the Board will proceed to a decision. Relevant law and regulations Disability ratings - in general Disability ratings are assigned in accordance with the VA's Schedule for Rating Disabilities and are intended to represent the average impairment of earning capacity resulting from disability. See 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.321(a), 4.1 (2009). Separate diagnostic codes identify the various disabilities. See 38 C.F.R. Part 4. The Court recently held that "staged" ratings are appropriate for an increased rating claim when the factual findings show distinct time periods where the service- connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet App 505 (2007). Rating musculoskeletal disabilities The 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 and functional loss due to weakness, fatigability, incoordination or pain on movement of a joint under 38 C.F.R. § 4.45. See DeLuca v. Brown, 8 Vet. App. 202 (1995). The basis of disability evaluations is the ability of the body as a whole to function under the ordinary conditions of daily life, including employment. See 38 C.F.R. § 4.10 (2009). Disability of the musculoskeletal system is primarily the inability to perform the normal working movements of the body with normal excursion, strength, speed, coordination and endurance. See 38 C.F.R. § 4.40 (2009). Consideration is to be given to whether there is less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, pain on movement, swelling, deformity, atrophy of disuse, instability of station, or interference with standing, sitting, or weight bearing. See 38 C.F.R. § 4.45 (2009). 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. See 38 C.F.R. § 4.59 (2009). Specific rating criteria The evidence in this case reflects that the Veteran's left arm is his non-dominant (minor) extremity. See 38 C.F.R. § 4.69 (2009) [a distinction is made between major (dominant) and minor musculoskeletal groups for rating purposes, and only one extremity is to be considered major]. Under Diagnostic Code 5201 [arm, limitation of motion of] limitation of motion to shoulder level in the minor extremity warrants a 20 percent evaluation. Limitation of motion to midway between the side and shoulder level warrants a 20 percent evaluation in the minor extremity. Limitation of motion to 25 degrees from the side warrants a 30 percent evaluation for the minor extremity. See 38 C.F.R. § 4.71a, Diagnostic Code 5201 (2009). Normal forward elevation (flexion) and abduction of the shoulder is from 0 degrees to 180 degrees; full range of internal and external rotation is from 0 to 90 degrees. See 38 C.F.R. § 4.71, Plate I (2009). Analysis Assignment of diagnostic code The assignment of a particular diagnostic code is "completely dependent on the facts of a particular case." Butts v. Brown, 5 Vet. App. 532, 538 (1993). One diagnostic code may be more appropriate than another based on such factors as an individual's relevant medical history, the diagnosis and demonstrated symptomatology. Any change in a diagnostic code by a VA adjudicator must be specifically explained. See Pernorio v. Derwinski, 2 Vet. App. 625, 629 (1992). In this case, the Board has considered whether another rating code is "more appropriate" than the one used by the RO, Diagnostic Code 7305. See Tedeschi v. Brown, 7 Vet. App. 411, 414 (1995). The Veteran's service-connected left shoulder disability is currently rated under 38 C.F.R. 4.71a, Diagnostic Codes 5303- 5201 [Muscle Group III - limitation of motion of arm]. See 38 C.F.R. § 4.27 (2009) [hyphenated diagnostic codes are used when a rating under one diagnostic code requires use of an additional diagnostic code to identify the basis for the evaluation assigned; the additional code is shown after the hyphen]. The record does not indicate that the Veteran has suffered a muscle group injury. The Veteran's service treatment records indicate that he was involved in a motor vehicle accident in July 1971, several days later he dislocated his shoulder while lifting a heavy object. See, e.g., a January 1972 in- service discharge summary. He then suffered from frequent shoulder dislocations and was diagnosed with recurrent subluxation of the left shoulder. There is no evidence that the Veteran's left shoulder disability resulted from a through and through or deep penetrating wound resulting in debridement, prolonged infection, or sloughing of soft parts, and intermuscular scarring. There is also no evidence of the loss of deep fascia, muscle substance, or normal firm resistance of muscles compared with the sound side, and impairment of strength and endurance in comparison to the sound side. Nor does the Veteran's disability approximate this description. See 38 C.F.R. §§ 4.7; 4.56 (2009). Accordingly, rating the Veteran under Diagnostic Code 5303 is not appropriate. The Board notes that the Veteran left shoulder disability has been assigned a 20 percent disability rating. Therefore applying Diagnostic Code 5203 [clavicle or scapula, impairment of] is not in the Veteran's best interest as this code provides a maximum rating of 20 percent. Ankylosis of the shoulder has not been demonstrated by medical evidence and Diagnostic Code 5200 [scapulohumeral articulation, ankylosis of] is therefore inappropriate. The Board has considered Diagnostic Code 5202 based on the Veteran's recurrent dislocation with frequent episodes of guarding. However, in order to warrant an increased disability rating under this Diagnostic Code, the evidence would have to show a loss of the humeral head, nonunion of the humeral joint (false flail joint) or fibrous union. These conditions have not been identified and the Veteran has not alleged that such conditions exist. The record indicates that the Veteran's left shoulder symptomatology centers around his limitation of motion and complaints of joint pain and weakness. Accordingly, the Board will continue to rate the Veteran under Diagnostic Code 5201. Analysis The currently assigned 20 percent rating contemplates limitation of motion midway between the side and shoulder level (45 degrees). In order for a higher disability to be assigned, limitation of motion of the left arm to 25 degrees from the side must be demonstrated. In this case, the competent evidence of record does not show that such limitation of motion is approximated. The evidence of record contains multiple range of motion findings for the Veteran's left shoulder. At its most severe, the Veteran's left shoulder abduction was limited to 69 degrees. See an October 2009 private physical therapy treatment record. An August 2008 VA treatment record records the Veteran's flexion as limited to 80 degrees. While the Board notes that the Veteran has been described as having 59 degrees of abduction and 75 degrees of flexion in May 2009, such measurements were recorded during the Veteran's temporary total disability rating. Moreover, such range of motion findings would not warrant an increased disability rating as they do not describe motion limited to 25 degrees from the side. Moreover, the Board also notes that while the Veteran was observed to have 25 degrees of external rotation at the side in April 2007, such range of motion finding describes shoulder rotation and does not describe the Veteran's ability to raise his arm from his side. Because the competent evidence of record shows left arm motion is to a level which is greater than 45 degrees (midway between the side and shoulder level), and that shoulder motion is manifestly not limited to 25 degrees from the side, a 30 percent or more disability rating is not warranted under Diagnostic Code 5201. DeLuca consideration The Court, in DeLuca v. Brown, 8 Vet. App. 202 (1995), held that VA's review of a service-connected musculoskeletal disability must include an assessment of the functional impairment caused by that disability. See 38 C.F.R. §§ 4.40, 4.45 (2009). The Board has therefore taken into consideration the provisions of 38 C.F.R. §§ 4.40 and 4.45. The Veteran has complained of shoulder pain and weakness. However, there is no evidence that such symptomatology warrants the assignment of an increased disability rating. The March 2007 VA examiner noted that the flexion of the Veteran's left shoulder was limited to 150 degrees with pain beginning at 130. Abduction was measured as limited to 150 degrees with pain beginning at 130 degrees. The examiner specifically stated that there was no additional loss of motion following repetitive use. The February 2008 VA examiner observed that the Veteran demonstrated forward flexion which was limited to 90 degrees due to pain. Abduction was measured as limited by pain at 95 degrees. Although "significant weakness" in shoulder abduction was noted, the VA examiner stated that repetitive motion did not cause a loss in the Veteran's left shoulder range of motion. During the March 2009 VA examination, the Veteran demonstrated 170 degrees of flexion and abduction. Pain was observed between 80 - 170 degrees during abduction and 90 - 170 degrees for flexion. The examiner specifically stated that there was no "additional functional limitations of this joint; including no additional loss of range of motion during flare-ups, or secondary to repetitive use of the joint, painful motion, weakness and excessive fatigability, lack of endurance or incoordination." The Board observes that the Veteran was documented as having 100 degrees of forward flexion in a March 2007 VA outpatient treatment record and that his arm would start to fall with time. This treatment record does not indicate to what extent this demonstrated a functional impairment. As noted immediately above, repetitive testing conducted during three VA examinations did not reveal any additional functional impairment in the Veteran's left arm. As noted in the Board's analysis above, the Veteran's left shoulder range of motion was limited to 69 degrees of abduction in October 2009 and 80 degrees of flexion in August 2008. The Board observes that the August 2008 VA treatment report documents that the Veteran was limited to 70 degrees of abduction and 80 degrees of flexion due to pain. Accordingly, even when taking limitation of motion due to pain into account, a 20 percent disability rating is still warranted. Thus, the clinical record does not indicate that there exists additional disability so as to warrant the assignment of a higher rating. Absent additional loss of motion or similar functional loss, an increased rating is not warranted under DeLuca. Hart consideration In Hart v. Mansfield, 21 Vet. App. 505 (2007), the Court held that staged ratings are appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibited symptoms that would warrant different ratings. In reaching its conclusion, the Court observed that when a claim for an increased rating is granted, the effective date assigned may be up to one year prior to the date that the application for increase was received if it is factually ascertainable that an increase in disability had occurred within that time frame. See 38 U.S.C.A. § 5110 (West 2002); see also 38 C.F.R. § 3.400 (2009). Accordingly, the relevant focus for adjudicating an increased rating claim is on the evidence concerning the state of the disability from the time period one year before the claim was filed until VA makes a final decision on the claim. In this case the veteran filed his increased rating claim in March 2004. The question to be answered by the Board, then, is whether any different rating should be assigned for any period from March 2003 to the present. After a careful review of the record the Board can find no evidence to support a finding that the Veteran's left shoulder disability was more or less severe during the appeal period. While cognizant that the Veteran has undergone shoulder surgery during the appeal period, for which a temporary total rating was assigned, the evidence for the entire period is otherwise roughly consistent and does not identify any limitation of shoulder motion or other pathology which would allow for the assignment of a disability rating in excess of 20 percent. The Veteran has pointed to none. Accordingly, the currently assigned 20 percent disability rating is appropriate from March 2003 to the present, with the exception of the period of assignment of a temporary total rating. Extraschedular considerations Under Floyd v. Brown, 9 Vet. App. 88, 95 (1996), the Board cannot make a determination as to an extraschedular evaluation in the first instance. See also VAOPGCPREC 6-96. The RO included 38 C.F.R. § 3.321(b)(1) in the July 2007 Statement of the Case (SOC) and appears to have considered the regulation in the Veteran's case. Accordingly, the Board will address the possibility of the assignment of an extraschedular rating for the increased disability rating at issue. According to the regulation, an extraschedular disability rating is warranted upon a finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization that would render impractical the application of the regular schedular standards. See 38 C.F.R. § 3.321(b)(1) (2009). An exceptional case is said to include such factors as marked interference with employment or frequent periods of hospitalization as to render impracticable the application of the regular schedular standards. See Fanning v. Brown, 4 Vet. App. 225, 229 (1993). Under Thun v. Peake, 22 Vet. App, 111 (2008), there is a three-step inquiry for determining whether a veteran is entitled to an extraschedular rating. First, the Board must determine whether the evidence presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Second, if the schedular evaluation does not contemplate the level of disability and symptomatology and is found to be inadequate, the Board must then determine whether the claimant's disability picture exhibits other related factors such as those provided by the regulation as "governing norms." Third, if the rating schedule is inadequate to evaluate a veteran's disability picture and that picture has attendant thereto related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether, to accord justice, the Veteran's disability picture requires the assignment of an extraschedular rating. With respect to the initial inquiry posed by Thun, the Board has been unable to identify an exceptional or unusual disability picture with respect to the Veteran's service- connected left shoulder disability. The medical evidence fails to demonstrate symptomatology of such an extent that application of the ratings schedule would not be appropriate. In fact, as discussed in detail above, the symptomatology of the Veteran's disability is specifically contemplated under the appropriate ratings criteria. Accordingly, the Board finds that the Veteran's disability picture has been contemplated by the ratings schedule. Since the available schedular evaluation adequately contemplates the Veteran's level of disability and symptomatology, the second and third questions posed by Thun become moot. Nevertheless, the Board will briefly note that the evidence in this case does not demonstrate any of the factors provided in the "governing norms" such as frequent hospitalization or marked interference with employment. See 38 C.F.R. § 3.321(b)(1). In this case, there is no indication that the Veteran has required frequent hospitalizations for his left should disability. With respect to employment, the evidence of record indicates that the Veteran works in a labor intensive occupation. See an August 2008 VA treatment note. While the Veteran has stated that his shoulder disability causes him difficulty working overhead, there is no indication that this disability has caused him to miss work or creates any unusual employment impairment. See Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993) [noting that the disability rating itself is recognition that industrial capabilities are impaired]. In addition, there is no evidence in the medical records of an exceptional or unusual clinical picture, or of any other reason why an extraschedular rating should be assigned. The Board therefore has determined that referral of the case for extra-schedular consideration pursuant to 38 C.F.R. 3.321(b)(1) is not warranted. ORDER Entitlement to a disability rating in excess of 20 percent for a left shoulder disability is denied. ____________________________________________ U. R. POWELL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs