Citation Nr: 1018034 Decision Date: 05/14/10 Archive Date: 05/26/10 DOCKET NO. 08-23 281 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania THE ISSUES 1. Entitlement to an initial rating for the service- connected right shoulder strain status post resection distal clavicle in excess of 10 percent prior to March 11, 2009 and in excess of 20 percent thereafter. 2. Entitlement to an increased rating in excess of 10 percent for residuals arthroscopic surgery to the right knee prior to March 11, 2009 and in excess of 30 thereafter. 3. Entitlement to a total disability rating based upon individual unemployability (TDIU) by reason of service- connected disability. REPRESENTATION Appellant represented by: The American Legion WITNESSES AT HEARING ON APPEAL The Veteran and his spouse ATTORNEY FOR THE BOARD S. Finn, Associate Counsel INTRODUCTION The Veteran served on active duty from November 1990 to September 1991 and also had service with the Reserve. This matter comes before the Board of Veterans' Appeals (Board) on appeal from various rating decisions of the RO. By way of a February 2008 rating decision, the RO granted service connection for a right shoulder strain and assigned a noncompensable evaluation, effective on July 13, 2007. The RO continued to deny a compensable rating for the service- connected residuals of arthroscopic surgery of the right knee. In a July 2008 rating decision, the RO increased the rating for the service-connected residuals of arthroscopic surgery of the right knee to 10 percent, effective on July 13, 2007; and increased the rating for the service-connected right shoulder strain status post resection distal clavicle to 10 percent, effective on July 13, 2007. In a May 2009 rating decision, the RO increased the rating for the service-connected residuals of arthroscopic surgery of the right knee to 30 percent, effective on March 11, 2009; and increased the rating for the service-connected right shoulder strain status post resection distal clavicle to 20 percent, effective on March 11, 2009. In October 2009, the Veteran testified at a hearing held at the RO before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the claims file. The Veteran asserts that he is unable to work due to his service-connected disabilities, as indicated on page 6 of the hearing transcript. The Court has held that a TDIU rating is encompassed in a claim for increased rating or the appeal of an initial rating. Rice v. Shinseki, 22 Vet. App. 447 (2009). The issues of an increased rating for the service-connected right knee disability and a total rating based on individual unemployability by reason of service-connected disability are addressed in the REMAND portion of this document and are being remanded to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDING OF FACT For the period of this appeal, the service-connected right shoulder disability picture is shown to be productive of a functional loss due to pain and weakness that more nearly approximate that of limitation of motion of the Veteran's major upper extremity to midway between the side and shoulder level. CONCLUSION OF LAW The criteria for the assignment of an initial rating of 30 percent, but not higher for the service-connected right shoulder disability are met. 38 U.S.C.A. §§ 1151, 5103, 5103A, 5107 (West 2002 & Supp. 2009); 38 C.F.R. §§ 4.7, 4.71a including Diagnostic Code 5201 (2009). REASONS AND BASES FOR FINDING AND CONCLUSION In November 2000, the Veterans Claims Assistance Act of 2000 (VCAA) was signed into law. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, and 5107 (West 2002). To implement the provisions of the law, VA promulgated regulations codified at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2009). VCAA and its implementing regulations require that upon the submission of a substantially complete application for benefits VA must notify a claimant of the information and evidence needed to substantiate a claim, as well as the duty to notify the claimant what evidence will be obtained by whom. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). In addition, the regulations define the obligation of VA with respect to its duty to assist a claimant in obtaining evidence. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c). To the extent that the action taken hereinbelow is favorable to the Veteran as to the identified claim for increase, a detailed discussion of VCAA is not required at this time. Here, the Veteran is shown to have undergone surgery on his right shoulder in 2006. While the Veteran acknowledged that this produced some initial improvement in his pain level, the evidence establishes that he is experiencing a significant loss of function with respect to the right shoulder due to pain. In fact, the recent VA examinations clearly show that the movement of the Veteran's major arm is impaired at the level at and above the shoulder due to the pain. Moreover, the VA examination in January 2008 noted that the Veteran had difficulty in lifting more than five pounds due to pain in performing activities of daily life and in connection with his occupation as a police officer. This was confirmed by the subsequent VA examination performed in March 2009. These added findings suggest that the Veteran is experiencing a greater degree of functional loss due impaired strength and pain in that arm beyond that reflected by the currently assigned 20 percent rating. On this record, he is not shown to have pain-free movement or mobility of the right arm that is possible fully to shoulder level. By extending the benefit of the doubt to the Veteran, the next higher step of compensation under the applicable rating criteria may be assigned under the provisions of 38 C.F.R.§ 4.7. A greater level of disability cannot be found to be suggested or approximated by this record. In reviewing the record for the entire period of this appeal, the Board finds that the service-connected right shoulder strain, status post resection distal clavicle currently is manifested by a functional loss due to pain that more closely resembles one of motion of the Veteran's major arm limited to midway between the side and shoulder level. Accordingly, on this record, an initial rating of 30 percent, but not higher for the service-connected right shoulder disability is warranted. ORDER An initial, increased rating of 30 percent, but no more for the service-connected right shoulder strain, status post resection of the distal clavicle is granted, subject to the regulations controlling disbursement of VA monetary benefits. REMAND The Court has held that a TDIU rating is encompassed in a claim for increased rating or the appeal of an initial rating. Rice v. Shinseki, 22 Vet. App. 447 (2009). Therefore, the claims for higher initial ratings for the service-connected right shoulder strain status post resection distal clavicle and the residuals arthroscopic surgery to the right knee may be determined to include that of a TDIU rating. A TDIU may be assigned where the schedular rating is less than total, when it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of a single service-connected disability ratable at 60 percent or more, or as a result of two or more disabilities, provided at least one disability is ratable at 40 percent or more and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.34l, 4.16(a) (2009). Here, the service-connected disabilities include posttraumatic stress disorder (50 percent disabling), residuals arthroscopic surgery to the right knee (30 percent disabling), and right shoulder strain status post resection distal clavicle (now 30 percent disabling). These meet the schedular requirements for consideration of a TDIU rating. After gathering information to clarify if the Veteran is claiming entitlement to a TDIU rating, VA should attempt to obtain any additional evidence for which the Veteran provides sufficient information, and, if needed, authorization, following the current procedures prescribed in 38 C.F.R. § 3.159. Moreover, the Veteran should be afforded another VA examination in order ascertain the current severity of the service-connected residuals arthroscopic surgery to the right knee. Additionally, the RO should attempt to obtain any previously unobtained clinical records referable to treatment of the Veteran's service-connected disabilities. Accordingly, these remaining matters are REMANDED to the RO for the following action: 1. The RO should take appropriate steps to send the Veteran and his representative, a letter requesting that the Veteran provide information, and, if necessary, authorization, to enable VA to obtain any additional evidence pertinent to a claim for increased compensation, to include a TDIU rating. In particular, the RO should specifically request that the Veteran complete and submit a VA Form 21-8940, Veteran's Application for Increased Compensation Based on Unemployability, so that VA will have information concerning his past employment. Then, if indicated, the RO should explain the type of evidence that is the Veteran's ultimate responsibility to submit to substantiate any claim for a TDIU rating and what VA will do. If appropriate, any updated Social Security records should be obtained for review. The letter should clearly explain to the Veteran that he has a full one-year period to respond (although VA may decide the claim within the one-year period). 2. After securing any necessary release forms, with full address information, all records of medical treatment which are not currently associated with the Veteran's claims file should be requested (i.e., Rothman Institute/Jefferson Hospital). All records obtained pursuant to this request must be included in the Veteran's claims file. If the search for such records has negative results, documentation to that effect should be included in the claims file. 3. Then, the RO should schedule the Veteran for a VA examination in order to ascertain the current severity of the service-connected residuals arthroscopic surgery to the right knee. The claims folder should be made available to the examiner for review. Any indicated testing also should be performed. The examiner should elicit from the Veteran and record a complete clinical history, to include timely information about his employment status. Detailed clinical findings should be recorded in order facilitate the rating of the service-connected disability in terms of the applicable criteria. 5. Following completion of all indicated development, the RO should readjudicate the claim for increased compensation, to include any based on a TDIU rating, in light of all the evidence of record. If any benefits sought on appeal remain denied, the RO should issue to the Veteran and his representative should be provided with a Supplemental Statement of the Case (SSOC) and afforded a reasonable opportunity to respond thereto. Thereafter, if indicated, the case should be returned to the Board for the purpose of appellate disposition. The Veteran has the right to submit additional evidence and argument on the matter or 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). ______________________________________________ STEPHEN L. WILKINS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs