Citation Nr: 1018288 Decision Date: 05/17/10 Archive Date: 06/04/10 DOCKET NO. 07-18 247 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUE Entitlement to a disability rating in excess of 20 percent for post-operative residuals of a left shoulder injury with arthritis. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD K. Gielow, Associate Counsel INTRODUCTION The Veteran served on active duty from March 1984 to March 1986. This matter comes before the Board of Veterans' Appeals (Board) from a rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio. The Veteran testified before the undersigned Acting Veterans Law Judge in May 2009. A transcript of the hearing is of record. This case was remanded by the Board in June 2009 for further development and is now ready for disposition. As noted in the Board's previous remand of June 2009, the issue of entitlement to service connection for a left shoulder scar has been raised by the record but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). In addition, in a December 2009 statement, the Veteran also reasonably raised a new claim for entitlement to service connection for a right shoulder disorder as secondary to his service-connected left shoulder disorder, which also has not yet been adjudicated by the AOJ. Therefore, the Board does not have jurisdiction these matters, and the issues are referred to the AOJ for appropriate action. FINDING OF FACT For the entire time on appeal, the Veteran's left shoulder disability was productive of limited range of motion of the arm which more nearly approximates limitation of motion to 25 degrees from the side. CONCLUSION OF LAW The criteria for a rating of 30 percent for post-operative residuals of a left shoulder injury with arthritis have been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.6, 4.7, 4.10, 4.14, 4.69, 4.71a, Diagnostic Code 5201, 5202 (2009). REASONS AND BASES FOR FINDING AND CONCLUSION VA's Duty to Notify and Assist VA has specified duties to notify a claimant as to the information and evidence necessary to substantiate a claim for VA benefits. The Board has considered whether further development and notice under the Veterans Claims Assistance Act of 2000 (VCAA) or other law should be undertaken. 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. 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. Here, the VCAA duty to notify was satisfied by way of a letter sent to the Veteran in August 2006 that informed him of what evidence was required to substantiate the claim and of his and VA's respective duties for obtaining evidence. With respect to the Dingess requirements, in August 2006, the RO also provided the Veteran with notice of what type of information and evidence was needed to establish a disability rating, as well as notice of the type of evidence necessary to establish an effective date. Additionally, in July 2008, the Veteran was advised of the diagnostic criteria used to rate his disability and the types of evidence considered in conjunction therewith, such as the statements from employers as to job performance, lost time, or other information regarding how his disability affected his ability to work. With these letters, the RO effectively satisfied the notice requirements with respect to the issue on appeal, which was subsequently readjuciated in a November 2009 supplemental statement of the case. Under these circumstances, the Board finds that adequate notice was provided to the Veteran prior to the transfer and certification of his case to the Board. See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006) (the issuance of a fully compliant VCAA notification followed by readjudication of the claim, such as an statement of the case or supplemental statement of the case, is sufficient to cure a timing defect). As to VA's duty to assist, 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). First, the RO obtained Social Security Administration disability records. In addition, the Veteran submitted statements on his behalf, and, in May 2009, he was provided an opportunity to set forth his contentions during the hearing before the undersigned Acting Veterans Law Judge. Moreover, specific VA medical examinations relevant to the issue on appeal were obtained in September 2006, December 2008, and September 2009. Although the December 2008 VA examination did not expressly identify at what point during range of motion testing the Veteran experienced pain, the Board finds the two other VA examinations are wholly adequate for rating purposes. Specifically, the examiners interviewed the Veteran and conducted a physical examination, using range of motion testing describing the onset of pain, and considered functional impairment. Importantly, there is no indication that the Veteran's past medical history or any relevant fact was misstated. In addition, the Board is also satisfied there was substantial compliance with the June 2009 remand directives for requesting the Veteran identify and obtain private treatment records and for conducting a new VA examination with regard to the shoulder. See Stegall v. West, 11 Vet. App. 268 (1998); Dyment v. West, 13 Vet. App. 141, 146-47 (1999). With regard to the private treatment records, the RO sent a letter to the Veteran in August 2009 asking for him to identify medical treatment records and also to complete and return a VA Form 21-4142, Authorization and Consent to Release Information, so that records from his private physician, Dr. L., could be obtained. However, the authorization form was not returned, and the Board reminds the Veteran that the duty to assist is not a one-way street. Wood v. Derwinski, 1 Vet. App. 190 (1991). Given the efforts taken by the RO to provide the Veteran with an opportunity to identity and obtain additional medical records, as well as the fact that a new VA examination of the shoulder was conducted in September 2009, the Board finds that the Board's June 2009 remand directives were substantially complied with and, thus, there is no Stegall violation in this case. Of significance, neither the Veteran nor his representative has identified, and the record does not otherwise indicate, any additional existing evidence that is necessary for a fair adjudication of the claim that has not been obtained. Therefore, the Board finds that the available records and medical evidence have been obtained in order to make an adequate determination as to this claim. Accordingly, the Board finds that no useful purpose would be served in remanding this matter for yet more development and that such a remand would result in unnecessarily imposing additional burdens on VA, with no additional benefit flowing to the Veteran. The Court has held that such remands are to be avoided. Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). For these reasons, no further notice or assistance 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). Increased Rating Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. 38 C.F.R. § 4.1 (2009). Separate diagnostic codes identify the various disabilities. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. Part 4 (2009). However, the Board has been directed to consider only those factors contained wholly in the rating criteria. See Massey v. Brown, 7 Vet. App. 204, 208 (1994); but see Mauerhan v. Principi, 16 Vet. App. 436 (2002) (finding it appropriate to consider factors outside the specific rating criteria in determining level of occupational and social impairment). Where there is a question as to which of two separate evaluations shall be applied, the higher evaluation will be assigned if the disability more closely approximates the criteria required for that particular 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 Veteran. 38 C.F.R. § 4.3 (2009). In addition, the Board acknowledges that in evaluating musculoskeletal disabilities, consideration must be given to additional functional limitation due to factors such as pain, weakness, fatigability, and incoordination. See 38 C.F.R. §§ 4.40 and 4.45; DeLuca v. Brown, 8 Vet. App. 202, 206-07 (1995). The Court has held that diagnostic codes predicated on limitation of motion do not prohibit consideration of a higher rating based on functional loss due to pain on use or due to flare-ups under 38 C.F.R. §§ 4.40, 4.45, and 4.59. See Johnson v. Brown, 9 Vet. App. 7 (1996); DeLuca v. Brown, 8 Vet. App. 202, 206 (1995). VA regulations require that a finding of dysfunction due to pain must be supported by, among other things, adequate pathology. 38 C.F.R. § 4.40 ("functional loss due to pain is to be rated at the same level as the functional loss when flexion is impeded"); see Schafrath v. Derwinski, 1 Vet. App. 589, 592 (1993). As is the case here, where entitlement to compensation has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Nevertheless, where the evidence contains factual findings that show a change in the severity of symptoms during the course of the rating period on appeal, assignment of staged ratings would be permissible. Hart v. Mansfield, 21 Vet. App. 505 (2007). In this case, the Veteran's right shoulder disability is rated as 20 percent disabling under Diagnostic Code 5299-5201 for limitation of motion of the arm. Significantly, the provisions of 38 C.F.R. § 4.71a expressly provide for the application of different rating criteria depending upon whether a Veteran's minor (non-dominant) or major (dominant) side is being evaluated. See 38 C.F.R. § 4.69 (2009). Because the Veteran in this case is right-hand dominant (see Hearing Transcript (T.) at p. 3), his left shoulder disability affects his minor, non-dominant side. Accordingly, under 38 C.F.R. § 4.71a, Diagnostic Code 5201, for a minor (non-dominant) joint, the evidence must demonstrate motion of the arm limited to 25 degrees from the side in order to warrant the highest rating of 30 percent. Normal ranges of motion of the shoulder are flexion (forward elevation) from 0 degrees to 180 degrees, abduction from 0 degrees to 180 degrees, external rotation from 0 degrees to 90 degrees, and internal rotation from 0 degrees to 90 degrees. 38 C.F.R. § 4.71, Plate I. Here, the Board finds that the criteria for a 30 percent rating, the maximum rating authorized under Diagnostic Code 5201 for limitation of motion of a minor joint, has been met. The Board finds it significant that during the September 2006 VA examination, the Veteran was unable to perform forward flexion of the arm. In fact, it was noted that "[a]s soon as he started the range of motion movement [of flexion], he felt pain." While a private examination conducted in April 2007 suggested a greater range of motion (pain on abduction was noted at 50 degrees), another VA examination conducted in December 2008 indicated the presence of pain throughout the Veteran's range of motion testing, without specifically identifying when pain began or ended. Significantly, in order to better determine the point at which point pain set in, the Veteran underwent another examination in September 2009 pursuant to the Board's June 2009 remand instructions. Significantly, the VA examiner expressly indicated that the Veteran was only able to perform abduction from 0 to 20 degrees without pain and forward flexion to 30 degrees without pain. Beyond these points, painful motion was noted. Accordingly, his limitation of motion is considered impeded 20 degrees of abduction and at 30 degrees of flexion. 38 C.F.R. § 4.40 ("functional loss due to pain is to be rated at the same level as the functional loss when flexion is impeded"); see Schafrath v. Derwinski, 1 Vet. App. 589, 592 (1993). Accordingly, as the Veteran's left shoulder disability is manifested by painful motion of the arm that limits motion to 25 degrees or less from the side, the Board finds that the evidence demonstrates limitation of motion that more nearly approximates a 30 percent evaluation under the provisions of Diagnostic Code 5201. As alluded to above, the Board notes that 30 percent is the maximum rating authorized under this provision for the minor, non-dominant, arm. 38 C.F.R. § 4.71a. Indeed, the Court as held that if a claimant is already receiving the maximum disability rating available based on symptomatology that includes limitation of motion, it is not necessary to consider whether 38 C.F.R. §§ 4.40 and 4.45 are applicable. Johnston v. Brown, 10 Vet. App. 80 (1997). Thus, the Board need not discuss whether a rating in excess of 30 percent is warranted under this provision. Notwithstanding the above, the Board has also considered other potentially applicable Diagnostic Codes that may provide a basis for separate evaluations for the left shoulder. With regard to Diagnostic Code 5200, because ankylosis of the scapulohumeral articulation has not been shown, this provision is not for application. With regard to Diagnostic Code 5202, the medical evidence is without complaints of or treatment for an impairment of the humerus resulting in malunion, recurrent dislocation, fibrous union, nonunion, or loss of head of the humerus. In fact, the September 2006 VA examination noted that there was no instability present in the shoulder, and March 2007 MRI findings, which indicated impressions of mild widening of the acromioclavicular joint with fragmentation, minimal subacromial subdeltoid bursitis, and no evidence of a rotator cuff tear, did not mention whether there was any involvement of the humerus. Additionally, a private April 2007 medical evaluation noted that the MRI was "essentially normal with no evidence of cuff pathology or significant labral pathology," and more recent X-rays reviewed in conjunction with the September 2009 VA examination expressly noted that the "glenohumeral joint is normal" and that there was "[n]l fracture, erosion, or subluxation." As such, a compensable rating under this provision is not warranted. 38 C.F.R. § 4.71a, Diagnostic Code 5202. Finally, as the Veteran is currently rated at 30 percent for limitation of motion of the arm, Diagnostic Code 5203 is not for application in this case. See 38 C.F.R. § 4.71a, Diagnostic Code 5203 (indicating that a rating under 5203 may be provided "or" the impairment of the clavicle or scapula should be rated based on impairment of function of the contiguous joint). In conclusion, throughout the appeal period, the Board finds that the Veteran's left shoulder disability, as it is evaluated for symptoms associated with limited motion under Diagnostic Code 5201, more nearly approximate the criteria required for a higher, 30 percent rating under this provision. As such, the appeal is granted. Next, in Rice v. Shinseki, 22 Vet. App. 447 (2009), the Court of Appeals for Veterans Claims (Court) held that a claim for a total rating based on individual unemployability (TDIU) is part of an increased rating claim when such claim is expressly raised by the Veteran or reasonably raised by the record. The Court further held that when evidence of unemployability is submitted at the same time that the Veteran is appealing the initial rating assigned for a disability, the claim for TDIU will be considered part and parcel of the claim for benefits for the underlying disability. Id. However, in this case, the evidence indicates that the Veteran worked as a barber in 2007 (see occupational history described in the April 2007 private examination) and that he is currently attending school full time for a degree in business management, as indicated in the most recent September 2009 VA examination. Significantly, the September 2009 VA examination also indicated that, although the Veteran was in receipt of disability benefits, "[h]e has no restriction with employment." Accordingly, as TDIU has not been reasonably raised by the evidence of record or expressly by the Veteran himself, the Board finds that the provisions of 38 C.F.R. § 4.16 are not for application in this case. Extraschedular Consideration The Board has also considered whether the Veteran is entitled to a referral for an extraschedular rating, which is a component of a claim for an increased rating under Bagwell v. Brown, 9 Vet. App. 337, 339 (1996). Although the Board may not assign an extraschedular rating in the first instance, it must specifically adjudicate whether to refer a case for extraschedular evaluation when the issue either is raised by the claimant or is reasonably raised by the evidence of record. Barringer v. Peake, 22 Vet. App. 242 (2008). Under the provisions of 38 C.F.R. § 3.321(b)(1) (2009), the Under Secretary for Benefits or the Director, Compensation and Pension Service, is authorized to approve an extraschedular evaluation if the case "presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical the application of the regular schedular standards." Id. Therefore, there must be a comparison between the level of severity and symptomatology of the claimant's service- connected disability with the established criteria found in the rating schedule for that disability. Thun v. Peake, 22 Vet. App. 111 (2008). In this case, for the applicable time periods on appeal, the evidence does not demonstrate frequent periods of hospitalization related to the Veteran's left shoulder disorder. Further, the record weighs against a finding of occupational impairment or average industrial impairment that is in excess of that contemplated by the assigned rating. In evaluating his occupational impairment, the Board again notes that the September 2009 VA examination indicated that he was attending classes full-time and that he did not have any restrictions with employment. Moreover, the rating criteria reasonably describe the Veteran's disability level and symptomatology and provide for higher ratings for additional or more severe symptoms than currently shown by the evidence. Thus, his disability picture is contemplated by the rating schedules, and the assigned schedular evaluation is, therefore, adequate. Consequently, referral to the Under Secretary for Benefits or the Director, Compensation and Pension Service for consideration of an extraschedular evaluation for his disabilities under 38 C.F.R. § 3.321 is not warranted. ORDER A 30 percent for post-operative residuals of a left shoulder injury with arthritis is granted, subject to governing criteria applicable to the payment of monetary benefits. ____________________________________________ MICHAEL A. HERMAN Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs