Citation Nr: 1018977 Decision Date: 05/24/10 Archive Date: 06/04/10 DOCKET NO. 07-23 659 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Portland, Oregon THE ISSUES 1. Entitlement to an evaluation in excess of 10 percent prior to May 28, 2008, for residuals of a left shoulder injury. 2. Entitlement to an evaluation in excess of 20 percent since May 28, 2008, for residuals of a left shoulder injury. 3. Entitlement to an evaluation in excess of 10 percent prior to May 28, 2008, for a dorsal strain with degenerative changes. 2. Entitlement to an evaluation in excess of 20 percent since May 28, 2008, for a dorsal strain with degenerative changes. REPRESENTATION Appellant represented by: Oregon Department of Veterans' Affairs WITNESSES AT HEARING ON APPEAL Appellant and wife ATTORNEY FOR THE BOARD A. P. Simpson, Counsel INTRODUCTION The Veteran served on active duty from May 1993 to July 1998. This case comes before the Board of Veterans' Appeals (Board) on appeal from a January 2006 rating decision of the Portland, Oregon, Department of Veterans Affairs (VA) Regional Office (RO), which granted a 10 percent evaluation for residuals of left shoulder injury, and continued the 10 percent evaluation for a dorsal strain with degenerative changes. In a November 2008 rating decision, the RO granted both disabilities a 20 percent evaluation, effective May 28, 2008. The Veteran has stated he wants evaluations in excess of 20 percent. Thus, the appeal continues. The issues of whether new and material evidence has been submitted to reopen the claim for service connection for a psychiatric disorder, to include secondary to service- connected disabilities; and entitlement to a total rating for compensation based upon individual unemployability due to service-connected disabilities have been raised by the record, see VA Form 21-4138, Statement in Support of Claim, received March 2010, but have not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over these issues, and they are referred to the AOJ for appropriate action. The issues of entitlement to an evaluation in excess of 20 percent as of May 28, 2008, for residuals of a left shoulder injury; and entitlement to an evaluation in excess of 20 percent as of May 28, 2008, for a dorsal strain with degenerative changes 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. Prior to May 28, 2008, residuals of a left shoulder injury were not manifested by a limitation of motion to shoulder level, by malunion of the humerus with moderate deformity, or by independently corroborated infrequent episodes of recurrent dislocation of the scapulohumeral joint with guarding of movement only at shoulder level. 2. Prior to May 28, 2008, a dorsal strain with degenerative changes was not manifested by forward thoracolumbar flexion less than 61 degrees; by a combined range of thoracolumbar motion less than 121 degrees; or by muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. CONCLUSIONS OF LAW 1. The criteria for an evaluation in excess of 10 percent for residuals of a left shoulder injury prior to May 28, 2008, have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.159, 3.321(b), 4.1, 4.3, 4.7, 4.10, 4.14, 4.40, 4.45, 4.71a, Diagnostic Code 5201 (2009). 2. The criteria for an evaluation in excess of 10 percent for a dorsal strain with degenerative change prior to May 28, 2008, have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.159, 3.321(b), 4.1, 4.3, 4.7, 4.10, 4.14, 4.40, 4.45, 4.71a, Diagnostic Code 5237. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Veterans Claims Assistance Act (VCAA) The requirements of 38 U.S.C.A. § 5103 and 5103A have been met. There is no issue as to providing an appropriate application form or completeness of the application. In an August 2005 letter, VA notified the Veteran of the information and evidence needed to substantiate and complete a claim, to include notice of what part of that evidence is to be provided by the claimant, and notice of what part VA will attempt to obtain. In a June 2008 letter, he was provided notice of the specific rating criteria for evaluating the shoulder and spine, and how effective dates and disability evaluations are determined. The claim was readjudicated in November 2008. Thus, any timing error was cured and rendered nonprejudicial. 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 in a statement of the case or supplemental statement of the case, is sufficient to cure a timing defect). VA has fulfilled its duty to assist the Veteran in obtaining identified and available evidence needed to substantiate the claims, such as VA treatment records, and, as warranted by law, affording VA examinations. The Veteran was provided with a hearing before the Board in February 2010. A transcript of that hearing is in the claims file. At the hearing, the Veteran stated he would attempt to obtain private medical records pertaining to treatment for his service-connected disabilities. He was given 30 days to submit that evidence, which the Veteran submitted in March 2010. He included a waiver of initial consideration of that evidence by the agency of original jurisdiction. Thus, the Board may review this evidence in the first instance. See 38 C.F.R. § 20.1304(c) (2009). The Veteran was provided the opportunity to meaningfully participate in the adjudication of his claims and did in fact participate. Washington v. Nicholson, 21 Vet. App. 191 (2007). Hence, there is no error or issue that precludes the Board from addressing the merits of this appeal. II. Analysis At the February 2010 hearing, the Veteran complained that his back and left shoulder had not been examined properly. He argued that the examiner did not understand the specific location of the Veteran's service-connected dorsal disability. The Veteran testified he was unable to work in jobs that required him to stand for long periods of time. He also asserted that he could not work in a job that would require his arms to be raised. The Veteran described being unable to sleep because of his shoulder and back pain. The Board has reviewed all the evidence in the Veteran's claims files, which includes his written contentions, service treatment records, VA medical records, and private medical records. 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 claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Disability evaluations are determined by comparing the manifestations of a particular disability with the criteria set forth in the Diagnostic Code's of the Schedule for Rating Disabilities. 38 U.S.C.A. § 1155, 38 C.F.R. Part 4 (2009). The percentage ratings represent, as far as can practicably be determined, the average impairment in earning capacity (in civilian occupations) resulting from service-connected disability. 38 C.F.R. § 4.1. 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. In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the Veteran's disabilities. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). Where an increase in the level of a service-connected disability is at issue, the primary concern is the present level of disability. Francisco v. Brown, 7 Vet. App. 55 (1994). However, a veteran may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. Hart v. Mansfield, 21 Vet. App. 505 (2007). Therefore, the following analysis is undertaken with consideration of the possibility that different ratings may be warranted for different time periods. The RO has staged the Veteran's disability evaluations with both the left shoulder and dorsal spine disabilities. Nevertheless, within the period of the 10 percent evaluation, the Board has considered whether different ratings are warranted prior to May 28, 2008. Ratings shall be based as far as practicable, upon the average impairments of earning capacity with the additional proviso that the Secretary shall from time to time readjust this schedule of ratings in accordance with experience. To accord justice, therefore, to the exceptional case where the schedular evaluations are found to be inadequate, the Under Secretary for Benefits or the Director, Compensation and Pension Service, upon field station submission, is authorized to approve on the basis of the criteria set forth in 38 C.F.R. § 3.321 (2009) an extra-schedular evaluation commensurate with the average earning capacity impairment due exclusively to the service-connected disability or disabilities. The governing norm in these exceptional cases is 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 as to render impractical the application of the regular schedular standards. 38 C.F.R. § 3.321(b)(1). When evaluating loss in range of motion, consideration is given to the degree of functional loss caused by pain. DeLuca v. Brown, 8 Vet. App. 202 (1995) (evaluation of musculoskeletal disorders rated on the basis of limitation of motion requires consideration of functional losses due to pain). In DeLuca, the Court explained that, when the pertinent diagnostic criteria provide for a rating on the basis of loss of range of motion, determinations regarding functional losses are to be "'portray[ed]' (38 C.F.R. § 4.40) in terms of the degree of additional range-of-motion loss due to pain on use or during flare-ups." Id. at 206. Left shoulder Service connection for residuals of a left shoulder injury was granted in an April 1999 rating decision and assigned a noncompensable evaluation. The Veteran filed his current claim for increase in June 2005. In the January 2006 rating decision on appeal, the RO granted a 10 percent evaluation, effective June 16, 2005. The disability evaluation was increased in a November 2008 rating decision to 20 percent, effective May 28, 2008, but the time period after May 28, 2008, is not being considered in the decision portion of this case. The Veteran's disability has been evaluated under Diagnostic Code 5020-5202. The Veteran is left-hand dominant. Thus, only the evaluations pertaining to the dominant arm have been laid out. Under Diagnostic Code 5020, it provides that synovitis should be rated as degenerative arthritis. 38 C.F.R. § 4.71, Diagnostic Code 5020. Under Diagnostic Code 5003, degenerative arthritis established by x-ray findings is rated on the basis of limitation of motion under the appropriate diagnostic codes for the joint involved. When however, the limitation of motion of the specific joint or joints involved is noncompensable under the appropriate diagnostic codes, a rating of 10 percent is for application for each such major joint affected by limitation of motion, to be combined, not added under diagnostic code 5003. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. 38 C.F.R. § 4.71a, Diagnostic Code 5003. A 20 percent evaluation will be assigned where there is x-ray evidence of involvement of two or more major joints and there are occasional incapacitating exacerbations. Id. For the purpose of rating a disability from arthritis (by analogy), the shoulder is a major joint. 38 C.F.R. § 4.45(f) (2009). Normal flexion and abduction of the shoulder is from 0 to 180 degrees. 38 C.F.R. § 4.71, Plate I (2009). For limitation of motion of the major arm to shoulder level (90 degrees), a 20 percent rating is warranted. For motion of the major arm limited to midway between the side (approximately 45 degrees), a 30 percent rating is warranted. 38 C.F.R. § 4.71, Diagnostic Code 5201. For background purposes, the service treatment records show that the Veteran sustained a sprain to his left shoulder in July 1994 from a fall. The following month, it was described as "resolving well." The Board has thoroughly reviewed the evidence of record and finds that the preponderance of the evidence is against entitlement to an evaluation in excess of 10 percent for residuals of a left shoulder injury prior to May 28, 2008. The reasons follow. An evaluation in excess of 10 percent is not available under Diagnostic Codes 5003, 5020, as a 20 percent evaluation requires that two major joints be involved. The right shoulder is considered one major joint. See 38 C.F.R. § 4.45(f). The evidence prior to May 2008 establishes that the Veteran's abduction of the left upper extremity was demonstrated to a point higher than shoulder level. See 38 C.F.R. § 4.71a, Diagnostic Code 5201. For example, in the November 2005 VA examination report, the examiner stated the Veteran was able to abduct his left arm to 140 degrees. The examiner later added that the Veteran's flexion would be reduced by 25 degrees with flare-ups and by 30 degrees based on the Veteran's subjective pain. This still places the Veteran's limitation of motion to greater than shoulder level or 90 degrees. The Board acknowledges the Veteran's complaints of significant pain and his complaints pertaining to the examiner who conducted the November 2005 examination. However, the Board finds that the November 2005 VA examiner was thorough in his clinical findings. The examiner reported the Veteran's ranges of motion pertaining to his left shoulder. He described the pain the Veteran experienced during the examination, including when range of motion testing occurred. He also described the Veteran's pain as it was reported to him (the examiner). There is nothing in the examination report that would lead the Board to think that the examiner ignored the Veteran's complaints or failed to provide relevant clinical findings to properly evaluate the disability. The Board has considered the criteria under Diagnostic Codes 5200 and 5202. The evidence, however, shows that the left shoulder is not ankylosed, as the Veteran is able to move the joint in all planes of motion. See 38 C.F.R. § 4.71a, Diagnostic Code 5200. The Veteran does not have a flail shoulder, there is no evidence of a nonunion or fibrous union of the humerus, and there is no evidence of a recurrent dislocation of the humerus at the scapulohumeral joint or malunion of the humerus, which would warrant an increased rating under those Diagnostic Codes. See 38 C.F.R. § 4.71a, Diagnostic Code 5202. The Veteran reported to the examiner that his acromioclavicular joint was separated in service; however, there is no evidence in the service treatment records that the Veteran's left shoulder had any sort of separation injury. Rather, there is evidence of a sprain only. To the extent that the Veteran alleges his acromioclavicular joint was separated, the Board rejects that assertion as untrue. X-rays taken of his left shoulder in 2005 revealed no recent fracture, dislocation, or other joint abnormality. Thus, a higher evaluation under Diagnostic Code 5202 would not be available. An increased evaluation may be based on either actual limitation of motion or the functional equivalent of limitation of motion due to less or more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement. DeLuca, discussing 38 C.F.R. §§ 4.40, 4.45. Here, the evidence preponderates against finding that the Veteran has the functional equivalent of limitation of abduction to shoulder level. Again, the examiner noted that during a flare-up, the Veteran's left shoulder motion would be reduced by 25 degrees. With abduction going to 140 degrees, this would still be above 90 degrees (115 degrees). The examiner also stated that the Veteran's subjective pain would reduce his motion by 30 degrees. This also is above 90 degrees. Such clinical findings are indicative of no more than mild weakness. The rating criteria fully describe and provide for the symptomatology and severity of the Veteran's left shoulder. Thus, his left shoulder disability, by definition, is not exceptional, and it does not warrant an extraschedular rating. See Thun v. Peake, 22 Vet. App. 111 (2008). The fact that his level of severity, as determined by objective clinical examination, falls short of that which would warrant a 20 percent evaluation does not render his disability picture as exceptional. The Board is aware that the Veteran has alleged he had to stop working because of shoulder pain. Such is contemplated by the 10 percent evaluation. The records show that the Veteran had stopped working 2001 because he was laid off. See October 2001 and December 2001 VA outpatient treatment reports. He reported in December 2001 that he was working as an advertising executive. See December 2001 VA outpatient treatment report. In May 2002, he reported doing more work in construction and had more pain as a result. Thus, there is nothing in the record to distinguish this case from the cases of numerous other veterans who are subject to the schedular rating criteria for the same disability. The currently assigned schedular rating for the left shoulder addresses, as far as can practicably be determined, the average impairment of earning capacity due to his service- connected disability. See 38 C.F.R. § 4.1. The Board, therefore, finds that the criteria for submission for consideration of an extraschedular rating pursuant to 38 C.F.R. § 3.321(b)(1) are not met. For the reasons described above, the Veteran's left shoulder disability has not met the criteria for a rating in excess of the current 10 percent rating. In view of the denial of entitlement to an increased evaluation for the period prior to May 28, 2008, the Board finds no basis upon which to predicate assignment of "staged" ratings pursuant to Hart during this time period. Back Service connection for dorsal strain with degenerative changes was granted in an April 1999 rating decision and assigned a 10 percent evaluation. The Veteran filed his current claim for increase in June 2005, and the RO continued the 10 percent evaluation in the January 2006 rating decision on appeal. The disability evaluation was increased in a November 2008 rating decision to 20 percent, effective May 28, 2008, but the time period after May 28, 2008, is not being considered in the decision portion of this case. The Veteran's dorsal strain is evaluated under Diagnostic Code 5237. The dorsal (or thoracic) and lumbar spine are evaluated under the same criteria. A general rating formula evaluates diseases and injuries of the spine. These criteria are controlling regardless of whether there are symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by residuals of injury or disease. In this respect, a 20 percent evaluation is warranted for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees or the combined range of motion of the thoracolumbar spine not greater than 120 degrees. A 20 percent evaluation is also warranted when there is muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. Note (1): VA will evaluate any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, separately, under an appropriate diagnostic code. Id. Note (2): (See also Plate V.) For VA compensation purposes, normal forward flexion of the thoracolumbar spine is zero to 90 degrees, extension is zero to 30 degrees, left and right lateral flexion are zero to 30 degrees, and left and right lateral rotation are zero to 30 degrees. The normal combined range of motion of the thoracolumbar spine is 240 degrees. The normal ranges of motion for each component of spinal motion provided in this note are the maximum that can be used for calculation of the combined range of motion. After having carefully reviewed the evidence of record, the Board finds that the preponderance of the evidence is against the claim of entitlement to an evaluation in excess of 10 percent for dorsal strain with degenerative changes prior to May 28, 2008. In order to warrant a rating in excess of 10 percent, the evidence must show that the Veteran's dorsal spine is productive of limitation of forward flexion of the thoracolumbar spine between 30 and 60 degrees or a combined evaluation of 120 degrees or less. At the time of the November 2005 VA examination, thoracolumbar flexion was to 95 degrees. The examiner stated that such would be reduced by 30 degrees if based upon the Veteran's subjective pain. That would make flexion to 65 degrees. The examiner also stated that flexion would be reduced by 25 degrees during a flare-up, which would make flexion to 70 degrees. His combined range of motion was 225 degrees. During a flare-up, his combined range of motion would be 200 degrees (25 degrees less of flexion). Neither the loss of forward thoracolumbar flexion or a loss of combined range of motion meet the criteria needed for a 20 percent evaluation under Diagnostic Code 5237. Additionally, there is no competent evidence that the Veteran has muscle spasm or guarding that has resulted in an abnormal gait or abnormal spinal contour. There is evidence of muscle spasm in the dorsal spine, but it has not resulted in an abnormal gait or abnormal spinal contour. For example, the November 2005 VA examiner stated the Veteran had mild muscle spasm but that the alignment of the spine was "very good." The examiner indicated the Veteran was limping due to the right ankle (a service-connected disability). Thus, the Veteran does not meet the criteria to warrant a 20 percent evaluation based upon this criteria. The Veteran has been diagnosed with degenerative disc disease; however, there is no competent evidence of any objective neurological pathology associated with his service connected dorsal spine strain. In the November 2005 examination report, the examiner stated that reflexes were normal at the knees and ankles. Extensor muscles and sensation were normal at lower legs and feet. Calf circumference was equal. The Veteran has not reported neurological symptoms associated with this disability. The Board has considered evaluating the Veteran's disability under Diagnostic Code 5243, which is based upon the number of incapacitating episodes over a one-year period. See 38 C.F.R. § 4.71a, Diagnostic Code 5243 (2009). However, there is no evidence that he has incapacitating episodes which require physician prescribed bed rest. See Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, Note (2) which requires that bed rest be prescribed by a physician. The Veteran specifically informed the VA examiner at the November 2005 VA examination that while he used bed rest a day or two a month, it was not prescribed by a physician. Thus, consideration of the criteria under Diagnostic Code 5243 is not warranted. In considering DeLuca factors, the evidence of record establishes that the Veteran has pain, fatigability, incoordination, and other such symptoms that are contemplated by the 10 percent evaluation. See November 2005 VA examination report. It bears repeating that under the regulation the general rating criteria are controlling regardless of whether there are symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by residuals of injury or disease. 38 C.F.R. § 4.71a. The symptoms presented by the Veteran's low back pain are fully contemplated by the rating schedule. In fact, the Veteran's flexion and combined range of motion fall squarely into the 10 percent evaluation. There is no evidence his disability picture is exceptional when compared to other veterans with the same or similar disability. There is no evidence throughout the appeal that the Veteran's low back pain necessitated frequent hospitalization, or has caused a marked interference with employment. The Veteran has claimed that he cannot work due to his back disability, but the Board finds that such allegation is not credible. The examiner in the November 2005 VA examination report noted that much of the Veteran's orthopedic complaints were subjective. While the Veteran and his wife have alleged that the examiner did not properly examine the Veteran, the Board cannot agree with such statement based upon the detailed and relevant clinical findings reported by that examiner. Thus, the Board finds no evidence warranting a referral of this claim for extraschedular consideration. Thun. As such, entitlement to an evaluation in excess of 10 percent for dorsal strain with degenerative changes prior to May 28, 2008, is denied. In view of the denial of entitlement to an increased evaluation for the period prior to May 28, 2008, the Board finds no basis upon which to predicate assignment of "staged" ratings pursuant to Hart during this time period. With respect to both claims the Board considered the doctrine of reasonable doubt, however, as the preponderance of the evidence is against the claims, the doctrine is not for application. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Entitlement to an evaluation in excess of 10 percent prior to May 28, 2008, for residuals of a left shoulder injury is denied. Entitlement to an evaluation in excess of 10 percent prior to May 28, 2008, for a dorsal strain with degenerative changes is denied. REMAND Given the appellant's testimony, the Board finds that more recent examinations are warranted for the service-connected disabilities in order to evaluate their nature and extent since May 2008. Accordingly, the case is REMANDED for the following action: 1. The Veteran should be contacted and requested to identify all health care providers who have treated his left shoulder and dorsal spine since 2008. After receiving any necessary authorizations to secure records pertaining to such care, the RO should secure the same. 2. Thereafter, the Veteran should be afforded VA joint and spine examinations by a physician who has not examined the Veteran previously. The claims folder is to be made available for the examiner to review. All indicated studies must be performed, and the examination report must be in accordance with the latest AMIE worksheets for rating joint and spine disabilities. The examiner is to append a copy of his/her Curriculum Vitae to the examination report. 3. The Veteran is to be notified that it is his responsibility to report for the examination and to cooperate in the development of the claim. The consequences for failure to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. §§ 3.158, 3.655 (2009). In the event that the Veteran does not report for the aforementioned examinations, documentation should be obtained which shows that notice scheduling the examinations was sent to the last known address. It should also be indicated whether any notice that was sent was returned as undeliverable. 4. After the development requested is completed, the RO/AMC should review the examination report to ensure that it is in complete compliance with the directives of this REMAND. If the report is deficient in any manner (e.g., the examiner does not answer a question or does not append their Curriculum Vitae to the examination report), the RO must implement corrective procedures at once. 5. Thereafter, the RO/AMC should readjudicate the claims of entitlement to evaluations in excess of 20 percent as of May 28, 2008, for residuals of a left shoulder injury, and a dorsal strain with degenerative changes. If any benefit sought is denied, the Veteran and his representative must be furnished with a supplemental statement of the case and afforded an opportunity to respond before the file is returned to the Board for further appellate consideration. 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). _________________________________________ DEREK R. BROWN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs