Citation Nr: 1010799 Decision Date: 03/22/10 Archive Date: 03/31/10 DOCKET NO. 04-36 017 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Oakland, California THE ISSUE Entitlement to an initial rating in excess of 30 percent for right shoulder subluxation with degenerative joint disease. ATTORNEY FOR THE BOARD Jennifer Margulies, Associate Counsel INTRODUCTION The Veteran had active duty for training from January 29, 1978 to May 7, 1978. He also had additional reservist service in the Army National Guard. This case comes before the Board of Veterans' Appeals (Board) on appeal from a January 2004 rating decision of the Oakland California, Department of Veterans Affairs (VA) Regional Office (RO), which granted service connection for right shoulder subluxation with degenerative joint disease, evaluated as 30 percent disabling. The issue on appeal was originally before the Board in December 2008 when it was remanded for additional evidentiary development. The RO substantially complied with the Board's remand requests and the matter has been returned for appellate review. FINDING OF FACT The service-connected right shoulder subluxation with degenerative joint disease is manifested by pain, flexion to 85 degrees, abduction to 90 degrees, external rotation to 25 degrees and internal rotation to 55 degrees. There is no evidence of ankylosis, instability, swelling, or malunion of the clavicle or scapula with loose movement. CONCLUSION OF LAW The criteria for an initial rating in excess of 30 percent for right shoulder subluxation with degenerative joint disease have not been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.10, 4.40, 4.41, 4.59, 4.71a, Diagnostic Codes 5200-5203 (2009). REASONS AND BASES FOR FINDING AND CONCLUSION I. Pertinent Law and Regulations Disability evaluations are determined by the application of VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4 (2009). 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 the residual conditions in civil occupations. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.1 (2009). 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. 38 C.F.R. § 4.10 (2009). As previously noted, in January 2004, the RO granted service connection for chronic right shoulder subluxation with degenerative joint disease and evaluated it as 30 percent disabling. Because the Veteran appealed the RO's determination at the time of an initial rating, separate ratings can be assigned for separate periods of time based on facts found - a practice known as "staged" ratings. Fenderson v. West, 12 Vet. App. 119 (1999). 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 (2009). When after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability such doubt will be resolved in favor of the claimant. 38 C.F.R. § 4.3 (2009). II. Analysis The Veteran asserts that the rating he received for chronic right shoulder subluxation with degenerative joint disease does not accurately reflect its severity. He asserts that his right shoulder disability should be rated 40 percent disabling, the maximum allowable rating under Diagnostic Code 5201. A review of the record shows that an initial increased rating is not warranted. Under the laws administered by VA, a distinction is made between major (dominant) and minor upper extremities for rating purposes. The disability rating assigned for the Veteran's right shoulder disability involves rating the major extremity. Diagnostic Code 5201 contemplates disabilities of the shoulder and arm and provides a 20 percent evaluation for limitation of motion of the major arm at shoulder level. An evaluation of 30 percent is assigned for limitation of motion of the major arm midway between side and shoulder level. An evaluation of 40 percent is assigned for limitation of motion of the major arm to 25 degrees from the side. The normal range of motion of the shoulder is flexion to 180 degrees, abduction to 180 degrees, external rotation to 90 degrees and internal rotation to 90 degrees. 38 C.F.R. § 4.71, Plate I. The Veteran was afforded a VA examination in June 2003. The examiner did not have the opportunity to review the Veteran's case file. The examiner noted mild atrophy of the right shoulder and noted that there was no soft tissue swelling, redness or warmth near the shoulder. The Veteran had forward flexion of the right shoulder to 85 degrees, extension to 30 degrees, internal rotation to 55 degrees and external rotation to 25 degrees. The examiner noted 20 degrees additional loss of motion due to pain for flexion and abduction with pain throughout. Neurosensory findings were normal and grip was 3/5 on the right, compared with 5/5 on the left. The examiner stated that there is a 50-75 percent loss of functionality of the right shoulder when the shoulder subluxates or dislocates. X-rays revealed moderate degenerative joint disease of the right shoulder. The Veteran stated that his shoulder is inoperable because he is allergic to medications and painkillers. A February 2004 medical report from the University of California Medical Center shows that the Veteran was able to abduct his arm to 30 degrees, internally rotate to the hip and externally rotate it only to 10 degrees. It also shows that the Veteran could forward flex to 60 degrees and extend to 30 degrees. In the assessment section, the examiner suggested that the Veteran was a "voluntary subluxer" and that surgical options were not offered because he felt that the Veteran would not cooperate with rehabilitation. The examiner added that if additional medical treatment was needed, the Veteran should be referred to another facility. A doctor's note in the Veteran's file dated in April 2004 states that he was unable to attend a session, "due to severe upper limb pain." VA treatment reports show continued complaints of pain. The Veteran was afforded a VA examination in February 2005. The examiner had the opportunity to review the Veteran's case file. The Veteran complained of increased pain since his last VA examination and reported his shoulder pain as a sharp stabbing pain as well as dull and aching pain. The Veteran reported that he had difficulty dressing himself and has problems lifting. He reported taking Toradol, Valium and Demerol. The examiner noted mild to moderate atrophy of the biceps and triceps of the right arm. The examiner stated that he could not conduct the entire examination because the Veteran would not allow his shoulder to be palpated due to tenderness. He also refused to engage in range of motion activities saying that he feared he would dislocate his shoulder. He did raise his forearm to 30 degrees. The Veteran added that passive range of motion testing would dislocate his shoulder and "he [would] be on the floor requiring an ambulance to take him to the emergency room." After examination, the examiner noted that physical examination could not be performed accurately due to the Veteran's refusal. An MRI was conducted in May 2005 showing degenerative joint disease at the acromial/clavicle joint and the glenohumeral joint. VA treatment reports dated from 2005 through 2006 show treatment for complaints of pain. The reports also show that the Veteran was a poor historian and that he frequently refused to cooperate during physical evaluations. April 2006 treatment records show chronic right shoulder pain and swelling. The Veteran also reported that his shoulders dislocate or subluxate repeatedly. The examiner reported that the muscles of the rotator cuff showed normal tendons and good size without evidence of atrophy. August 2006 treatment records show evidence of decreased range of motion and reports of pain for the Veteran's shoulder. The Veteran was afforded a VA examination in August 2007. The examiner noted that the Veteran has been unemployed since 1991. The Veteran reported continuous subluxations of the right shoulder and pain on a daily basis. The examiner noted that the MRI of the right shoulder showed mild degenerative joint disease at the glenohumeral joint. The Veteran reported pain on pulling, pushing, vacuuming, lifting, and sleeping. He does not use a sling, but uses a cane for his knee. He takes Toradol and Valium for his pain. On examination, the examiner noted that the Veteran's shoulders are not tender to gentle palpation as the Veteran "appears to be histrionic in amplifying symptoms." The Veteran had forward flexion to 90 degrees, abduction to 90 degrees, external rotation to 45 degrees and internal rotation to 55 degrees. The examiner noted that DeLuca came into play at 20 degrees for flexion, abduction at 15 degrees, external rotation at 15 degrees and hyperextension at 2 degrees. The examiner noted that function was limited by pain, fatigability and lack of endurance without loss of coordination. The Veteran's father submitted a letter stating that the Veteran is extremely disabled from chronic pain. As discussed above, the Board remanded this issue in December 2008 to obtain outstanding records regarding the Veteran's service-connected right shoulder. The Veteran was sent notice regarding submitting additional evidence for his service-connected right shoulder disability. However, the Veteran only submitted a two page medical document informing him that his pains could lead to a frozen shoulder if not properly treated. No evidence was submitted showing a diagnosis of frozen shoulder and the records referenced by the Veteran dated in April 2009, showing treatment for the right shoulder, were not integrated, despite request by VA. A review of the records shows that the Veteran's disability is appropriately rated at 30 percent. The Veteran's range of motion test does not show limitation of motion to 25 degrees at his side. VA examination reports dated in June 2003 and August 2007 show internal rotation to 55 degrees. The Veteran's February 2005 examination report does not provide a limitation of motion measurement because the Veteran was uncooperative. In this regard, the Board points out that the duty to assist is not always a one-way street. If a veteran wishes help, he cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining the putative evidence. Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). The Veteran's refusal to perform tests needed to assess the severity of his disability does not help with the adjudication of his claim and his assertions will not be construed in his favor. See VA examination reports in 2005 and 2007, as well as a 2004 medical report from the University of California Medical Center, wherein the Veteran's uncooperative tendencies are addressed. Further, the Board notes that the August 2007 examiner noted Deluca measurements for the Veteran's range of motion. Nonetheless, even when taking into account, reduced range of motion due to pain, the Veteran's range of motion findings still far exceed the range of motion necessary for the assignment of a rating of 40 percent under Diagnostic Code 5201. The Board has considered whether the Veteran's disability would warrant a higher evaluation under other Diagnostic Codes pertaining to the shoulder. Diagnostic Code 5203 involves malunion or nonunion of the clavicle and scapula. The record does not reflect that the Veteran's shoulder is productive of nonunion of the clavicle and scapula so as to warrant a rating in excess of 30 percent. The Board also points out that there is no evidence of ankylosis of scapulohumeral articulation or impairment of the humerus. As such, Diagnostic Codes 5200 and 5202 are, likewise, not applicable for evaluating the Veteran's service-connected right shoulder disability. As a general matter, in evaluating musculoskeletal disabilities, VA must determine whether the joints in question exhibit weakened movement, excess fatigability, or incoordination, and whether pain could significantly limit functional ability during flare-ups, or when the joints are used repeatedly over a period of time. See DeLuca v. Brown, 8 Vet. App. 202, 204-7 (1995); 38 C.F.R. §§ 4.40, 4.45. Here, however, higher ratings are not warranted even considering the factors involved in DeLuca analysis. The evidence shows that the Veteran's right shoulder disability has additional loss of function due to painful motion, however, the range of motion finding is still well in excess of the range of motion required for a 40 percent rating. The Board acknowledges that the Veteran asserts that he limits his motion to activities below the shoulder level for fear of dislocation. Although the Veteran's pain must be considered in evaluating his service-connected disability, the Rating Schedule does not require a separate rating for pain. See Spurgeon v. Brown, 10 Vet. App. 194 (1997). In this case, even with consideration of the Veteran's complaints of pain and the restrictions it places on his movements, the evidence does not show that his functionality approximates a limitation to 25 degrees from the side so as to warrant a 40 percent rating for the right (major) shoulder. See DeLuca, supra. The VA Ratings Schedule will apply unless there are exceptional or unusual factors, which would render application of the schedule impractical. See Fisher v. Principi, 4 Vet. App. 57, 60 (1993). 38 C.F.R. § 3.321(b)(1) provides that, in exceptional circumstances, where the schedular evaluations are found to be inadequate, the Veteran may be awarded a rating higher than that encompassed by the schedular criteria. 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." As to 38 C.F.R. § 3.321(b)(1), it is noted that the Veteran has not asserted, nor does the evidence suggest, that the regular schedular criteria are inadequate to evaluate his right shoulder impairment. There is no evidence that the Veteran's right shoulder is productive of marked interference with employment, frequent hospitalization, or that the manifestations associated with this disability are unusual or exceptional. Thus, the Board will not consider referral for consideration of an extraschedular rating. See Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). Accordingly, the Board finds that the Veteran's disability picture does not meet or nearly approximate the criteria for a rating in excess of 30 percent for his service-connected right shoulder disability. The Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran's claim, that doctrine is not applicable in the instant appeal. See generally Gilbert v. Derwinski, 1 Vet. App. 49 (1990); Ortiz v. Principi, 274 F. 3d 1361 (Fed. Cir. 2001). III. Duty to Notify and Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2009). Proper notice from VA must inform the claimant of any information and medical or lay evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183 (2002). This notice must be provided prior to an initial unfavorable decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). In addition, the notice requirements of the VCAA apply to all five elements of a service connection claim, including: (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. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Further, this notice must include information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Id. at 486. In this case, the Veteran received notice of the evidence needed to substantiate a service connection claim in July 2007. The Veteran's right shoulder claim arises from his disagreement with the initial evaluation following the grant of service connection. Courts have held that once service connection is granted, the claim is substantiated, additional notice is not required and any defect in the notice is not prejudicial. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). Based on the foregoing, no further development is required with respect to the duty to notify. VA also has a duty to assist the Veteran in the development of the claim. This duty includes assisting him in the procurement of service treatment records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). Significantly, he has not identified, and the record does not otherwise indicate, any additional existing evidence that is necessary for a fair adjudication of the claim that VA has not attempted to obtain. The Board notes that the Veteran's service treatment records, private treatment records and VA treatment records are on file. Furthermore, the Veteran was afforded three VA examinations in connection with his claim. The examinations reviewed the Veteran's subjective complaints and to the extent possible, recorded the Veteran's examination findings. Were findings were not recorded, the reports noted that it was due to the Veteran's refusal to cooperate. The duty to assist has been fulfilled and no additional development is needed. Wood, supra. Hence, no further notice or assistance to the Veteran is required to fulfill VA's duty to assist in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd, 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). ORDER Entitlement to an initial rating in excess of 30 percent for right shoulder subluxation with degenerative joint disease is denied. ____________________________________________ C. CRAWFORD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs