Citation Nr: 1012192 Decision Date: 04/01/10 Archive Date: 04/14/10 DOCKET NO. 07-06 130 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Fort Harrison, Montana THE ISSUE Entitlement to an increased evaluation for traumatic arthritis of the right shoulder, status post arthroscopic subacromial decompression, currently evaluated as 10 percent disabling. [The issues of whether an overpayment in the calculated amount of $1,033.67, created by the finally adjudicated action to retroactively remove the Veteran's child S. as a dependant schoolchild on the Veteran's award, effective May 2003, is valid, and if so, if waiver is warranted, and whether an additional overpayment in the calculated amount of $435.00, consequent to a change in the status of the Veteran's dependents (removal of the Veteran's child S. as a dependent schoolchild effective January 2003 instead of May 2003), was validly created, are the subject of a separate opinion.] ATTORNEY FOR THE BOARD J. M. Macierowski, Counsel INTRODUCTION The Veteran served on active duty from January 1964 to January 1966. This matter comes before the Board of Veterans' Appeals (Board) on appeal from the Department of Veterans Affairs (VA) Regional Office in Fort Harrison, Montana (RO). FINDINGS OF FACT 1. Prior to April 2, 2008, the Veteran's traumatic arthritis of the right shoulder was manifested by objective x-ray evidence of degenerative arthritis, but not by right shoulder abduction of 90 degrees or less. 2. On and after April 2, 2008, the Veteran's traumatic arthritis of the right shoulder was manifested by objective x-ray evidence of degenerative arthritis, and by evidence of limited flexion and limited abduction of the right shoulder to 90 degrees, due to functional loss. CONCLUSIONS OF LAW 1. The criteria for an increased evaluation for traumatic arthritis of the right shoulder, prior to April 2, 2008, have not been met. 38 U.S.C.A. §§ 1155, 5103A, 5107 (West 2002 & Supp. 2009); 38 C.F.R. § 4.71a, Diagnostic Code 5010 (2009). 2. The criteria for an evaluation of 20 percent for traumatic arthritis of the right shoulder, but no greater, on an after April 2, 2008, have been met. 38 U.S.C.A. §§ 1155, 5103A, 5107 (West 2002 & Supp. 2009); 38 C.F.R. §§ 4.40, 4.45, 4.71a, Diagnostic Codes 5010, 5201 (2009); DeLuca v. Brown, 8 Vet. App. 202, 206 (1995). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS At the outset, all the evidence in the Veteran's claims file has been thoroughly reviewed. Although an obligation to provide sufficient reasons and bases in support of an appellate decision exists, there is no need to discuss, in detail, all of the evidence submitted by the Veteran or on his or her behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (holding that the entire record must be reviewed, but each piece of evidence does not have to be discussed). The analysis in this decision focuses on the most salient and relevant evidence, and on what the evidence shows or fails to show with respect to the appeal. The Veteran must not assume that pieces of evidence, not explicitly discussed herein, have been overlooked. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (noting that the law requires only that reasons for rejecting evidence favorable to the claimant be addressed). In this case, the Veteran asserts that his right shoulder disorder is more severe than contemplated by the currently assigned 10 percent evaluation. Specifically, he argues that he experiences functional loss and pian that interferes with certain activities, to include driving a car, carrying groceries, and recreational sports such as hunting and fishing. Increased Evaluation Claim Disability ratings are determined by the application of the VA's Schedule for Rating Disabilities (Schedule), which is based on the average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4 (2009). Pertinent regulations do not require that all cases show all findings specified by the Schedule, but that findings sufficient to identify the disease and the resulting disability and above all, coordination of the rating with impairment of function will be expected in all cases. 38 C.F.R. § 4.21 (2009). Although the evaluation of a service-connected disability requires a review of a veteran's medical history with regard to that disorder, the primary concern in a claim for an increased evaluation for service-connected disability is the present level of disability. VA is directed to review the recorded history of a disability in order to make a more accurate evaluation; however, the regulations do not give past medical reports precedence over current findings. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Additionally, VA has a duty to consider the possibility of assigning staged ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007). The Veteran's traumatic arthritis of the right shoulder is evaluated under the provisions of 38 C.F.R. § 4.71a, Diagnostic Code 5010. 38 C.F.R. § 4.71a, Diagnostic Code 5010 (2009). Diagnostic Code 5010 contemplates traumatic arthritis, and directs that such a disability, as substantiated by x-ray findings, be rated as degenerative arthritis under Diagnostic Code 5003. 38 C.F.R. § 4.71, Diagnostic Code 5010. 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. 38 C.F.R. § 4.71a, Diagnostic Code 5003. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm or satisfactory evidence of painful motion. When the limitation of motion of the specific joint or joints involved is noncompensable under the appropriate diagnostic codes, an evaluation of 10 percent is applied for each major joint or group of minor joints affected by limitation of motion. The normal range of motion of the shoulder is from 0 degrees of flexion (forward elevation) to 180 degrees of flexion, from 0 degrees of abduction to 180 degrees of abduction, from 0 degrees of external rotation to 90 degrees of external rotation, and from 0 degrees of internal rotation to 90 degrees of internal rotation. 38 C.F.R. § 4.71, Plate I (2009). Moreover, the April 2008, and July 2009 VA examination reports reflect that the Veteran is right- handed; therefore, his service-connected right shoulder disorder affects his major (dominant) arm. To that end, Diagnostic Code 5200 provides for a 30 percent evaluation when there is favorable anklyosis of scapulohumeral articulation of the major arm, with abduction of the dominant shoulder limited to 60 degrees (can reach mouth and head); a 40 percent evaluation when scapulohumeral articulation of the dominant shoulder is intermediate between favorable and unfavorable; and the maximum 50 percent evaluation when there is unfavorable anklyosis of the scapulohumeral articulation of the major arm, with abduction limited to 25 degrees from side. 38 C.F.R. § 4.71a, Diagnostic Code 5200. Moreover, Diagnostic Code 5201 provides for a 20 percent evaluation when the range of motion of the major arm is limited to shoulder level; a 30 percent evaluation when limited to midway between the side and shoulder level; and the maximum 40 percent evaluation when limited to 25 degrees from the side. 38 C.F.R. § 4.71a, Diagnostic Code 5201. X-ray evidence of arthritis of the right shoulder is documented in the April 2002, April 2008, and July 2009 VA examination reports, thus meriting the currently assigned 10 percent evaluation. However, Diagnostic Code 5200 requires anklyosis of the scapulohumeral articulation of the major arm; ankylosis is defined as "immobility and consolidation of a joint due to disease, injury, or surgical procedure." DORLAND'S ILLUSTRATED MEDICAL DICTIONARY 93 (30th ed. 2003). To that end, there is no indication that the Veteran's right shoulder is ankylosed. The April 2002, October 2003, April 2008, and July 2009 VA examination reports all reflect some limited motion of the right shoulder, but no anklyosis. Thus, an evaluation greater than 10 percent is not warranted for limitation of motion under Diagnostic Code 5200. Moreover, range of motion testing showed flexion and abduction to 180 degrees at the April 2002 VA examination; flexion to 160 degrees immediately prior to the March 2003 surgery; flexion and abduction to 180 degrees at the October 2003 VA examination; flexion to 170 and abduction to 160 degrees at the May 2006 VA examination; flexion to 140 degrees and abduction to 120 degrees at the April 2008 VA examination, and flexion and abduction to 180 degrees at the July 2009 VA examination. As the next highest evaluation requires abduction of the shoulder to be 90 degrees or less, an evaluation greater than 10 percent under Diagnostic Code 5200, or Diagnostic Code 5201 on the basis of the overall ranges of motion, is not warranted. However, the probative and persuasive evidence of record supports a 20 percent evaluation under Diagnostic Code 5201, when considering the impact of functional loss, on and after April 2, 2008, such that staged ratings are warranted. See DeLuca v. Brown, 8 Vet. App. 202, 206 (1995); 38 C.F.R. §§ 4.40, 4.45 (2009); see also Hart, 21 Vet. App. at 510. When the impact of pain on the range of motion was considered, the April 2008 VA examination noted that abduction was only to 90 degrees, or shoulder level, and the July 2009 VA examination noted that flexion was only to 90 degrees, or shoulder level. It is also noted that in 2009 the Veteran had decreased muscle strength and speed. When resolving doubt in the Veteran's favor, this satisfies the rating criteria for the assignment of a 20 percent evaluation for the major arm on and after April 2, 2008, the date of the VA examination. 38 C.F.R. § 4.71a, Diagnostic Code 5201. However, the Veteran is not entitled to an evaluation in excess of 10 percent prior to April 2008, or in excess of 20 percent on and after April 2, 2008, based on these provisions because the range of motion was not additionally limited by pain such that those evaluations were warranted, and no objectively documented functional impairment due to fatigability, incoordination, lack of endurance, instability, or weakness, beyond that already contemplated within a 10 percent evaluation prior to April 2, 2008, or a 20 percent evaluation on and after April 2, 2008, was shown. 38 C.F.R. §§ 4.40, 4.45; see also DeLuca, 8 Vet. App. at 206. Consideration has been given to whether an increased evaluation is for application based on other diagnostic codes pertaining to the shoulder and arm. See Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). However, as impairment of the clavicle or scapula, or other impairment of the humerus, is not shown, Diagnostic Codes 5202 and 5203 are not for application. 38 C.F.R. § 4.71a, Diagnostic Codes 5202, 5203 (2009). Additionally, the October 2003, May 2006, and April 2008 VA examination reports also noted the presence of a residual scar from the Veteran's March 2003 shoulder surgery. On this basis, entitlement to a separate evaluation for that scar has been considered. Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994). However, the right shoulder scar was noted in each of these examination reports to be "well-healed," and was not unstable, painful, or manifested by any of the other qualifying characteristics such that a separate evaluation for that scar is warranted. See 38 C.F.R. § 4.118, Diagnostic Codes 7800, 7801, 7802, 7803, 7804, 7805 (2009). Generally, evaluating a disability using either the corresponding or analogous diagnostic codes contained in the rating schedule is sufficient. See 38 C.F.R. §§ 4.20, 4.27 (2009). However, because the ratings are averages, it follows that an assigned rating may not completely account for each individual veteran's circumstance, but nevertheless would still be adequate to address the average impairment in earning capacity caused by disability. However, in exceptional cases where the rating is inadequate, it may be appropriate to assign an extraschedular rating. 38 C.F.R. § 3.321(b) (2009). The threshold factor for extraschedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for the service-connected disabilities in question are inadequate. Thun v. Peake, 22 Vet. App. 111, 115 (2008); see also Fisher v. Principi, 4 Vet. App. 57, 60 (1993). Therefore, initially, there must be a comparison between the level of severity and symptomatology of the Veteran's service-connected disability with the established criteria found in the rating schedule. Thun, 22 Vet. App. at 115. If the criteria under the rating schedule reasonably describe the Veteran's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule, and the assigned schedular evaluations are adequate, and no referral is required. See VAOGCPREC 06-96, 61 Fed. Reg. 66749 (1996) (when service-connected disability affects employment "in ways not contemplated by the rating schedule[,]" § 3.321(b) (1) is applicable). The Board finds that the Veteran's disability picture is not so unusual or exceptional in nature as to render the assigned evaluation inadequate. The Veteran's disability is evaluated under 38 C.F.R. § 4.71a, Diagnostic Codes 5010, 5200, and 5201, the criteria of which is found by the Board to specifically contemplate the level of his disability and symptomatology. Manifestations of the Veteran's service- connected right shoulder disorder include pain, limited range of motion, and subjective weakness. When comparing this disability picture with the symptoms contemplated by the rating schedule, the Board finds that the Veteran's symptoms are more than adequately contemplated by the ratings for his service-connected right shoulder disorder. Ratings in excess of those currently assigned are provided for certain manifestations of a right shoulder disorder, but the probative and persuasive evidence reflects that those manifestations are not present in this case. Moreover, there is no evidence showing that the Veteran's service- connected right shoulder disorder has caused marked interference with employment beyond that contemplated by the schedule for rating disabilities, necessitated frequent periods of hospitalization, or otherwise renders impractical the application of the regular schedular standards utilized to evaluate the severity of his disability. Indeed, the probative and persuasive evidence of record reflects that the Veteran has not worked since 2001, but that is primarily due to his lumbar spine and headache disorders; he indicated during the July 2009 VA examination that his right shoulder disorder did not interfere with his previous type of employment. The currently assigned ratings for the Veteran's right shoulder disorder more than reasonably describe his disability level and symptomatology. Therefore, the currently assigned schedular evaluations are adequate, and the Board finds that the Veteran's disability picture cannot be characterized as an exceptional case so as to render the schedular evaluations inadequate. The threshold determination for a referral for extraschedular consideration has not been met, and consequently, the Board concludes that the Veteran is not entitled to referral for an extraschedular rating. See VAOGCPREC 06-96, 61 Fed. Reg. 66749 (1996); see also 38 C.F.R. § 4.71a; Thun, 22 Vet. App. at 115. Because the criteria required for an evaluation greater than 10 percent are not met with respect to the Veteran's traumatic arthritis of the right shoulder prior to April 2, 2008, or greater than 20 percent on and after April 2, 2008, the preponderance of the evidence is against the assignment of evaluations greater than those found warranted by this decision. As such, the benefit of the doubt doctrine is inapplicable, and the claim must be denied. See 38 C.F.R. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). VA's Duties to Notify and to Assist After review of the claims file, the Board finds that VA has met all statutory and regulatory notice and duty to assist provisions in this case. See 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 (2009). An April 2006 letter satisfied the duty to notify provisions. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b) (1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). Although this letter was dated subsequent to the initial adjudication for an increase in the evaluation of the Veteran's traumatic arthritis of the right shoulder, the Veteran's claim was again adjudicated in a September 2006 rating decision. Moreover, after issuance of the January 2007 statement of the case, the Veteran had more than two and one-half years in which to submit evidence pertinent to his claim prior to the readjudication of his claim in the September 2009 supplemental statement of the case. See Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006) (the issuance of a fully compliant notification followed by readjudication of the claim, such as an SOC or SSOC, is sufficient to cure a timing defect). Moreover, the Veteran was notified of regulations pertinent to the establishment of an effective date and of the disability rating in the April 2006 letter. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The Veteran's service treatment records, VA medical treatment records, and identified private medical records have been obtained, to include the private treatment records generated in conjunction with his March 2003 right shoulder surgery. 38 U.S.C.A. § 5103A, 38 C.F.R. § 3.159. The Veteran has not indicated, and the record does not contain evidence, that he is in receipt of disability benefits from the Social Security Administration (SSA); therefore, the RO's failure to request and obtain any relevant SSA records was not in error. 38 C.F.R. § 3.159 (c) (2). VA examinations were conducted in April 2002, October 2003, May 2006, April 2008, and September 2009; the Veteran has not argued, and the record does not reflect, that any these examinations were inadequate for rating purposes. 38 C.F.R. § 3.159(c) (4); Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). There is no indication in the record that any additional evidence, relevant to the issue decided herein, is available and not part of the claims file. See Pelegrini v. Principi, 18 Vet. App. 112 (2004). As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of the case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 20 Vet. App. 537 (2006); see also Dingess/Hartman, 19 Vet. App. at 486; Shinseki v. Sanders/Simmons, 556 U.S. ____ (2009); 129 S. Ct. 1696, 2009 WL 1045952, U.S., April 21, 2009 (No. 07-1209). ORDER An increased evaluation for traumatic arthritis of the right shoulder, prior to April 2, 2008, is denied. An evaluation of 20 percent due to functional loss, but no greater, for traumatic arthritis of the right shoulder, on and after April 2, 2008, is granted, subject to the applicable regulations concerning the payment of monetary benefits. ____________________________________________ C. CRAWFORD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs