Citation Nr: 1017380 Decision Date: 05/11/10 Archive Date: 05/26/10 DOCKET NO. 08-37 080 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas THE ISSUES 1. Entitlement to restoration of a 40 percent rating for a right shoulder disability, currently rated 20 percent. 2. Entitlement to restoration of a 10 percent rating for residuals of fracture of the right little finger, currently rated noncompensable. 3. Entitlement to an increased rating for a right shoulder disability, currently evaluated as 20 percent disabling. 4. Entitlement to an increased, compensable, rating for residuals of fracture of the right little finger. ATTORNEY FOR THE BOARD C. L. Wasser, Counsel INTRODUCTION The Veteran served on active duty from June 1979 to March 1992. This case comes to the Board of Veterans' Appeals (Board) on appeal from a January 2008 decision by the RO in Waco, Texas that reduced the rating for a service-connected right shoulder disability from 40 percent to 20 percent, and reduced the rating for service-connected residuals of a fracture of the right little finger from 10 percent to 0 percent, both effective May 1, 2008. A claim for restoration of a disability rating is completely separate from a claim for entitlement to an increased disability rating. A restoration claim involves a determination as to whether a reduction in disability rating initiated by the RO was appropriate, whereas an increased rating claim is initiated by the Veteran and concerns his or her disagreement with the disability rating assigned to a service-connected disability. These claims require application of distinctive procedural requirements, burdens of proof and law and regulations. The Board, in this decision, is deciding the restoration claim and remanding the increased rating claim. If the record shows the existence of an unadjudicated claim, raised along with an adjudicated claim, and the RO's decision acts (favorably or unfavorably) on one of the claims but fails to specifically address the other claim, the second claim is deemed denied, and the appeal period begins to run. See Deshotel v. Nicholson, 457 F.3d 1258 (Fed. Cir. 2006). In this case, the Veteran filed a claim for an increased rating for his right shoulder and right little finger disabilities in July 2007. By way of a November 2007 rating decision, the RO, rather than adjudicating the Veteran's increased rating claim, proposed to reduce his ratings. As the November 2007 rating decision did not address the Veteran's claims for increase, it is deemed to be a denial of those claims. The issues of entitlement to increased ratings for right shoulder disability and residuals of fracture of the right little finger are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. The Veteran's service-connected right shoulder disability was rated 40 percent disabling from November 1, 2004; the RO reduced the rating to 20 percent effective May 1, 2008. 2. Since the time of the 40 percent rating, there has been improvement in the right shoulder disability. The right shoulder disability is now manifested by no more than limitation of motion of the arm to shoulder level. 3. The Veteran's service-connected residuals of fracture of the right little finger was rated 10 percent disabling from December 21, 2005; the RO reduced the rating to 0 percent effective May 1, 2008. 4. Since the time of the 10 percent rating, the residuals of a fracture of the right little finger are manifested by no more than mild limitation of motion, without ankylosis. CONCLUSIONS OF LAW 1. The rating for a right shoulder disability was properly reduced from 40 percent to 20 percent, and the criteria for restoration of a 20 percent rating have not been met. 38 U.S.C.A. §§ 1155, 5112 (West 2002); 38 C.F.R. §§ 3.105(e), 4.71a, Diagnostic Codes 5201, 5202, 5203 (2009). 2. The rating for residuals of a fracture of the right little finger was properly reduced from 10 percent to 0 percent, and the criteria for restoration of a 10 percent rating have not been met. 38 U.S.C.A. §§ 1155, 5112 (West 2002); 38 C.F.R. §§ 3.105(e), 4.71a, Diagnostic Codes 5227, 5230 (2009). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Notice and Assistance As this case involves a rating reduction rather than a rating increase, there are specific notice requirements, found in 38 C.F.R. § 3.105(e)-(i), which are applicable to reductions in ratings. 38 C.F.R. § 3.105(e) sets forth procedural requirements for reductions in disability compensation ratings. When a reduction is anticipated, the beneficiary must be notified of the proposed reduction, with notice of the reasons for the proposed reduction. Further, the beneficiary must be allowed a period of at least 60 days to submit additional evidence to show that the rating should not be reduced. After the allotted period, if no additional evidence has been submitted, final rating action will be taken and the rating will be reduced or discontinued effective the last day of the month in which a 60-day period from the date of notice to the beneficiary of the final rating expires. 38 C.F.R. § 3.105(e). When the procedures of 38 C.F.R. § 3.105(e) are applicable, VA must comply with those provisions rather than the notice and duty provisions codified in part at 38 U.S.C.A. §§ 5103, 5103A, and implemented at 38 C.F.R. § 3.159. See, e.g., Kitchens v. Brown, 7 Vet. App. 320, 325 (1995); Brown v. Brown, 5 Vet. App. 513 (1993). As discussed below, the RO complied with the procedures required under 38 C.F.R. § 3.105(e) for reducing the Veteran's disability ratings by notifying him of his rights and giving him an opportunity and time to respond. Analysis The Board has reviewed all the evidence in the Veteran's claims file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Veteran or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claims and what the evidence in the claims file shows, or fails to show, with respect to the claims. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). In July 2007, the Veteran filed claims for increased ratings for his service-connected right shoulder disability and residuals of a fracture of the right little finger. A VA examination of both disabilities was performed in October 2007. In a November 2007 rating decision, the RO proposed to reduce the rating for the service-connected right shoulder disability from 40 percent to 20 percent, and to reduce the rating for the service-connected residuals of a fracture of the right little finger from 10 percent to 0 percent. The Veteran was notified of the proposed reductions by a letter dated in November 2007. In a January 2008 decision, the RO reduced the rating for a service-connected right shoulder disability from 40 percent to 20 percent, and reduced the rating for service-connected residuals of a fracture of the right little finger from 10 percent to 0 percent, both effective May 1, 2008. In reducing the Veteran's rating for the service-connected right shoulder disability and residuals of a fracture of the right little finger, the RO complied with 38 C.F.R. § 3.105(e), as to giving him an opportunity to submit additional evidence, and as to the effective date for reduction. The RO advised the Veteran of the proposed rating reduction or discontinuance and afforded him 60 days in which to present additional evidence showing that compensation should be continued at the present evaluation level. Thereafter, the RO took final rating action and the awards were reduced as set forth in the proposal. Thus, the reductions were procedurally proper. Another regulation, 38 C.F.R. § 3.344 (stabilization of disability evaluations) sets conditions on when a rating reduction may be taken. The Board notes that the 40 percent evaluation for the Veteran's right shoulder disability was in effect from November 1, 2004 to May 1, 2008, a period of less than five years, and the 10 percent rating for the Veteran's residuals of a fracture of the right little finger was in effect from December 21, 2005 to May 1, 2008, a period of less than five years. Thus, the provisions of 38 C.F.R. § 3.344 (a) and (b) do not apply to either reduction; reexamination disclosing improvement will warrant a rating reduction. See 38 C.F.R. § 3.344(c). Nevertheless, several general regulations are applicable to all rating reduction cases, without regard for how long a particular rating has been in effect. Certain regulations "impose a clear requirement that VA rating reductions, as with all VA rating decisions, be based upon a review of the entire history of the veteran's disability." Brown, 5 Vet. App. at 413 (referring to 38 C.F.R. §§ 4.1, 4.2, 4.13). A rating reduction requires an inquiry as to "whether the evidence reflects an actual change in the disability and whether the examination reports reflecting such change are based upon thorough examinations." Brown, 5 Vet. App. at 421. Thus, in any rating-reduction case, not only must it be determined that an improvement in a disability has actually occurred, but also that such improvement reflects an improvement under the ordinary conditions of life and work. A. Residuals of Right Shoulder Injury with Bursitis The RO has rated the Veteran's service-connected right shoulder disability under Diagnostic Codes 5003-5201. Degenerative or traumatic arthritis established by X-ray findings will be rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joints or joint involved. When there is arthritis and at least some limitation of motion, but the limitation of motion would be rated noncompensable under a limitation of motion code, a 10 percent rating may be assigned for each affected major joint. 38 C.F.R. § 4.71a, Diagnostic Codes 5003 and 5010. Normal range of motion of a shoulder is from 0 to 180 degrees. See 38 C.F.R. § 4.71, Plate I. A 20 percent evaluation is warranted for limitation of motion of the major arm when motion is possible to the shoulder level. A 30 percent evaluation is warranted for limitation of motion of the major arm when motion is limited to midway between the side and shoulder. A 40 percent evaluation for limitation of motion of the major arm requires that motion be limited to 25 degrees from the side. 38 C.F.R. § 4.71a, Diagnostic Code 5201. Under Diagnostic Code 5203, the maximum evaluation that may be assigned for impairment of the clavicle or scapula is 20 percent. In rating musculoskeletal disabilities, it is appropriate to consider additional limitation of function due to factors such as pain, weakness, incoordination and fatigability of the joint. See 38 C.F.R. §§ 4.40 and 4.45 and DeLuca v. Brown, 8 Vet. App. 202 (1995). In a December 2004 examination, the examiner noted that the Veteran was right-handed. Range of motion of the right shoulder was as follows: forward elevation from 0 to 95 degrees with pain starting at 80 degrees and ending at 55 degrees. Abduction was 0 to 85 degrees with pain starting at 75 degrees and ending at 50 degrees. External rotation was from 0 to 50 degrees, and internal rotation was from 0 to 60 degrees. The diagnosis was right shoulder acromioclavicular joint arthropathy with moderate outlet impingement, clinically and radiographically unchanged since December 2003. In a March 2006 VA examination of the hand, the examiner noted that the Veteran was left-handed. On VA examination in October 2007, the examiner indicated that the Veteran was right-handed. Range of motion of the right shoulder was as follows: forward flexion from 0 to 130 degrees, abduction from 0 to 120 degrees, external rotation from 0 to 65 degrees, and internal rotation from 0 to 75 degrees. After repetitive use, range of motion was unchanged. The examiner noted that a magnetic resonance imaging (MRI) scan of the right shoulder showed acromioclavicular arthropathy including inferior osteophytes which might contribute to some impingement type symptoms. The rotator cuff appeared intact. An X-ray study showed mild degenerative change of the acromioclavicular joint, with no change since 2004. The diagnosis was right shoulder degenerative arthritis with acromioclavicular arthropathy. A February 2008 private magnetic resonance imaging (MRI) scan of the right shoulder showed a stable-appearing MRI, with arthropathy and hypertrophy of the acromioclavicular joint. There was evidence of fraying involving the bursal surface of the supraspinatus tendon, and involving the superior glenoid labrum. The preponderance of the evidence shows that the Veteran's right hand is his dominant (major) hand. Upon review of the evidence, at worst, the Veteran demonstrated active forward flexion to 130 degrees and abduction limited to 120 degrees in the right shoulder on VA examination. Thus, motion is not limited to midway between the side and shoulder level (45 degrees), as required for a higher 30 percent rating. There is also no support in the record that any additional functional loss due to such factors as pain and weakness produces that level of impairment. DeLuca, supra. Therefore, the currently assigned 20 percent rating (major extremity) under Diagnostic Code 5201 is appropriate. The Veteran is not entitled to the next higher rating of 30 percent. The Board also considered other potentially applicable diagnostic codes. As noted above, Diagnostic Code 5203 does not assign ratings in excess of 20 percent. As for Diagnostic Code 5202, as X-ray studies did not demonstrate that the Veteran's disability was productive of recurrent dislocation of the scapulohumeral joint or fibrous union, nonunion, or loss of head of the humerus a rating in excess of 20 percent is not warranted under this diagnostic code. Accordingly, the Board concludes that the currently assigned schedular rating of 20 percent is appropriate for the service connected right shoulder disability. The evidence demonstrates there has been improvement in the Veteran's right shoulder disability, and the condition is now no more than 20 percent disabling under Code 5201. See Brown, 5 Vet. App. at 420-421 (citing 38 C.F.R. §§ 4.1, 4.2, 4.10 and 4.13); 38 C.F.R. 3.344(c). Therefore, the Board finds that the preponderance of the evidence is against the claim for restoration of a 40 percent rating for a right shoulder disability, and the appeal must therefore be denied. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). B. Residuals of Fracture of the Right Little Finger Any limitation of motion of the ring or little finger is considered noncompensably disabling. 38 C.F.R. § 4.71a, Diagnostic Code 5230. Ankylosis of the right or little finger is also considered noncompensably disabling. 38 C.F.R. § 4.71a, Diagnostic Code 5227. "Ankylosis" is immobility and consolidation of a joint due to disease, injury, or surgical procedure. See Dorland's Illustrated Medical Dictionary 86 (28th ed., 1994). The Note under Diagnostic Code 5227 provides that consideration should be made as to whether evaluation as amputation is warranted and whether an additional evaluation is warranted for resulting limitation of motion of other digits or interference with overall function of the hand. In a December 2004 examination, the examiner noted that the Veteran was right-handed. At a March 2006 VA examination, the Veteran complained of pain in the right little finger once per week for the past three years. He said the pain was located only in that finger, and lasted one to two hours. On examination, there was no ankylosis involving the right hand or right little finger. There was small stiffness of the finger at the proximal interphalangeal and distal interphalangeal joint, but no limitation of motion. There was mild pain on motion of the little finger. There was decreased grip strength (by 5%) in the right hand when compared to the left. The examiner indicated that he was left-handed. All the fingers and thumb of the right hand could reach the transverse fold of the palm of the hand without any difficulty. There was no edema in the right hand and right little finger. There were no contractures or deformity of the right hand and right little finger. Functional impairment of the right little finger due to pain was mild. Motor strength in the right little finger was 4/5. An X-ray study showed mild degenerative disease of the right little finger. The diagnosis was traumatic tendinitis involving the right little finger, with recurrent pain involving the right little finger, also associated with mild degenerative disease involving the right little finger, by X-ray study. In an April 2006 rating decision, the RO increased the rating for the service-connected residuals of a fracture of the right little finger to 10 percent based on functional impairment due to pain, under Diagnostic Code 5227. On VA examination in October 2007, the examiner indicated that the Veteran was right-handed. There was no evidence of swelling or laxity of the right little finger. The tips of the fingers were able to reach the transverse palmar crease without a gap. Palmar flexion at the interphalangeal joint of the right little finger was from 0 to 70 degrees. At the proximal interphalangeal joint, palmar flexion was from 0 to 110 degrees. There was no evidence of loss of motion during repetitive use due to pain, fatigue, weakness or lack of endurance. An X-ray study showed slight flexion deformity of the fifth distal interphalangeal joint which could be related to prior trauma. The diagnosis was right little finger distal interphalangeal joint, mild degenerative joint disease with mild flexion deformity. The examiner estimated that he had no additional functional limitation of motion of the right little finger during flare-up and repetitive use due to pain, fatigue, weakness or lack of endurance. Upon consideration of this and other evidence of record, the Board notes that a compensable rating is not permitted under 38 C.F.R. § 4.71a, Diagnostic Code 5227 or Diagnostic Code 5230, relating to limitation or ankylosis of the ring finger. The evidence clearly demonstrates that the Veteran does not have ankylosis of the right little finger, and shows that there is no interference with the overall function of the hand as a result of the residuals of a fracture of the right little finger. Moreover, even if ankylosis were shown, a noncompensable rating would be assigned. As for consideration of the amputation criteria, the evidence shows fairly good range of motion, and the disability is not akin to amputation. Thus, evaluation of the little finger as amputation is not warranted and no "additional evaluation" is warranted pursuant to the Note under Diagnostic Code 5227. Consideration has also been given to whether a compensable rating is warranted for the Veteran's residuals of a fracture of the right little finger on the basis of functional impairment and pain. 38 C.F.R. §§ 4.10, 4.40, 4.45, 4.59; DeLuca, supra. The Board acknowledges the Veteran's complaints of pain in the finger. The October 2007 VA examination, however, reported no loss in range of motion due to pain, fatigue, weakness or lack of endurance with repetition. While the Veteran describes limited grip of the right hand, he does not contend, nor does the medical evidence show that he has lost the use of the right hand or lost all effective functioning of the hand. Thus, the disability does not approximate disabilities based on amputation of the finger or hand, or loss of use of the hand. See, e.g., 38 C.F.R. §§ 4.63, 4.71a, Diagnostic Codes 5125, 5156. The October 2007 VA examiner commented that there was no evidence of loss of motion due to pain, fatigue, weakness or lack of endurance. There was clear improvement in the objectively determined range of motion findings, thereby reflecting that the disability had actually improved; and thereby reflecting an improvement in the Veteran's ability to function under ordinary conditions of life and work. See Brown, 5 Vet. App. at 420-421 (citing 38 C.F.R. §§ 4.1, 4.2, 4.10 and 4.13); 38 C.F.R. 3.344(c). As the preponderance of the evidence is against the claim for restoration of a 10 percent rating for residuals of a fracture of the right little finger, the benefit-of-the-doubt rule is inapplicable, and the claim must be denied. 38 U.S.C.A. § 5107(b); Gilbert, 1 Vet. App at 49. ORDER Restoration of a 40 percent rating for right shoulder disability is denied. Restoration of a 10 percent rating for residuals of a fracture of the right little finger is denied. REMAND As explained in the Introduction, although the November 2007 rating decision proposed a reduction of the disability ratings for the Veteran's right shoulder and right little finger disabilities and failed to specifically address his claims for increased ratings, the latter claims are deemed denied. See Deshotel, 457 F.3d at 1258. Following the issuance of the November 2007 rating decision, the Veteran submitted a Substantive Appeal in November 2008 in which he asserted that his right shoulder and right little finger disabilities warrant increased ratings. This statement can be reasonably construed as not only an expression of the Veteran's disagreement with the proposed rating reductions, but also as his notice of disagreement (NOD) with the denial of the increased rating claims. A statement of the case (SOC) addressing the increased rating claims has not yet been issued to the Veteran. As the Veteran has initiated an appeal by filing a timely NOD, the claims must be remanded to allow the RO to provide the Veteran with an SOC on these issues. Manlincon v. West, 12 Vet. App. 238 (1999). The issue will be returned to the Board after issuance of the SOC only if perfected by the filing of a timely substantive appeal. Accordingly, the case is REMANDED for the following action: Provide the Veteran with an SOC as to the issues of entitlement to increased ratings for his right shoulder and right little finger disabilities. The Veteran should be informed that he must file a timely and adequate substantive appeal in order to perfect an appeal of this issue to the Board. See 38 C.F.R. §§ 20.200, 20.202, and 20.302(b). If a timely substantive appeal is not filed, the claim should not be certified to the Board. The appellant has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2009). ______________________________________________ M. E. LARKIN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs