Citation Nr: 1036583 Decision Date: 09/27/10 Archive Date: 09/30/10 DOCKET NO. 02-08 051 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUE Entitlement to an initial evaluation in excess of 20 percent for right (major) shoulder impingement. REPRESENTATION Appellant represented by: Virginia Department of Veterans Services WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD N. J. Nardone, Associate Counsel INTRODUCTION The Veteran served on active duty from March 1996 to March 2000. This matter comes to the Board of Veterans' Appeals (Board) on appeal from an August 2001 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) that, in pertinent part, granted service connection for right shoulder impingement with an evaluation of 20 percent effective March 27, 2000. This appeal was previously before the Board and the Board remanded the claim in April 2005 and June 2008 for additional development. The case has been returned to the Board for further appellate consideration. In February 2005, a Video Conference hearing before the undersigned Veterans Law Judge was held at the RO. A transcript of that hearing is of record. FINDINGS OF FACT 1. The Veteran is right handed. 2. The Veteran's right arm motion is not limited to midway between the side and shoulder level. CONCLUSION OF LAW The criteria for an initial evaluation in excess of 20 percent for right (major) shoulder impingement have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. § 4.71a, Diagnostic Codes 5201, 5203 (2009). REASONS AND BASES FOR FINDINGS AND CONCLUSION Veterans Claims Assistance Act The Veterans Claims Assistance Act (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002 & Supp. 2008)) redefined VA's duty to assist the appellant in the development of a claim. VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2009). The notice requirements of the VCAA require VA to notify the Veteran of what information or evidence is necessary to substantiate the claim; what subset of the necessary information or evidence, if any, the claimant is to provide; and what subset of the necessary information or evidence, if any, the VA will attempt to obtain. 38 C.F.R. § 3.159(b) (2009). The requirements apply to all five elements of a service connection claim: veteran status, existence of a disability, a connection between the Veteran's service and the disability, degree of disability, and effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). VCAA notice must be provided to a claimant before the initial unfavorable decision on a claim for VA benefits by the agency of original jurisdiction (in this case, the RO). Id; see also Pelegrini v. Principi, 18 Vet. App. 112 (2004). However, insufficiency in the timing or content of VCAA notice is harmless if the errors are not prejudicial to the claimant. Conway v. Principi, 353 F.3d 1369, 1374 (Fed. Cir. 2004) (VCAA notice errors are reviewed under a prejudicial error rule). This appeal arises from the initial award of service connection for the right shoulder condition. In May 2005 and January 2006 letters, the RO provided notice to the Veteran regarding what information and evidence is needed to substantiate his claim for a higher rating, as well as what information and evidence must be submitted by the Veteran and what information and evidence will be obtained by VA. A July 2008 letter also advised the Veteran of how the VA determines a disability rating and assigns an effective date, and the type of evidence which impacts such. The case was last readjudicated in July 2010. In any event, the appeal regarding the claim for a higher initial rating stems from the original award of service connection for right shoulder impingement. In Dingess, the United States Court of Appeals for Veterans Claims (Court) held that in cases in which service connection has been granted and an initial disability rating and effective date have been assigned, the typical service connection claim has been more than substantiated, it has been proven, thereby rendering section 5103(a) notice no longer required because the purpose that the notice is intended to serve has been fulfilled. Dingess, 19 Vet. App. at 490-91; see also 38 C.F.R. § 3.159(b) (2009). The record also reflects that VA has made reasonable efforts to obtain relevant records adequately identified by the appellant. Specifically, the information and evidence that have been associated with the claims file include the service treatment records, the reports of VA examinations, VA treatment records, private treatment records, and statements and testimony provided by the Veteran. As discussed above, the appellant was notified and aware of the evidence needed to substantiate this claim, the avenues through which he might obtain such evidence, and the allocation of responsibilities between himself and VA in obtaining such evidence. The Veteran has been an active participant in the claims process by reporting for VA examinations, testifying during a Video Conference hearing before the undersigned Veterans Law Judge, responding to notices, and submitting evidence and argument. Thus, the Veteran has been provided with a meaningful opportunity to participate in the claims process and has done so. Any error in the sequence of events or content of the notice is not shown to have affected the essential fairness of the adjudication or to cause injury to the claimant. Therefore, any such error is harmless and does not prohibit consideration of this matter on the merits. See Conway, supra; Dingess, supra; see also ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998). Analysis The Board has reviewed all the evidence in the appellant'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 appellant 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) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. Separate diagnostic codes identify the various disabilities. Disabilities must be reviewed in relation to their history. 38 C.F.R. § 4.1. Other applicable, general policy considerations are: interpreting reports of examination in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability, 38 C.F.R. § 4.2; resolving any reasonable doubt regarding the degree of disability in favor of the claimant, 38 C.F.R. § 4.3; where there is a question as to which of two evaluations apply, assigning the higher of the two where the disability picture more nearly approximates the criteria for the next higher rating, 38 C.F.R. § 4.7; and, evaluating functional impairment on the basis of lack of usefulness, and the effects of the disabilities upon the person's ordinary activity, 38 C.F.R. § 4.10. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where the appellant has expressed dissatisfaction with the assignment of an initial rating following an initial award of service connection for that disability, separate ratings can be assigned for separate periods of time based on the facts found - a practice known as "staged" ratings. Fenderson v. West, 12 Vet. App. 119 (1999). Disability of the musculoskeletal system is primarily the inability, due to damage or inflammation in parts of the system, to perform normal working movements of the body with normal excursion, strength, speed, coordination and endurance. The functional loss may be due to absence of part or all of the necessary bones, joints and muscles, or associated structures, or to deformity, adhesions, defective innervation, or other pathology, or may be due to pain, supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and a part which becomes painful on use must be regarded as disabled. See DeLuca v. Brown, 8 Vet. App. 202 (1995); 38 C.F.R. § 4.40 (2009); see also 38 C.F.R. §§ 4.45, 4.59 (2009). The Veteran contends that he is entitled to an increased rating for his right shoulder impingement. Such disability has been rated as 20 percent disabling under 38 C.F.R. § 4.71a, Diagnostic Code 5203. He asserts that the symptoms of his right shoulder impingement are more severe than currently rated. In evaluating disabilities of the upper extremities, the VA rating schedule provides different ratings depending on whether the extremity is the major or the minor extremity for the individual. Handedness for the purpose of a dominant rating will be determined by the evidence of record, or by testing on VA examination. Only one hand shall be considered dominant. 38 C.F.R. § 4.69. The July 2000 and September 2005 VA examiners reported that the Veteran's dominant hand is the right hand. Therefore, the Veteran's service-connected right shoulder impingement involves his major upper extremity. A 20 percent rating is assignable for dislocation of the clavicle or scapula of the major or minor extremity. A 20 percent rating may also be assigned for nonunion of the clavicle or scapula with loose movement. 38 C.F.R. § 4.71a, Diagnostic Code 5203. A 40 percent evaluation may be assigned for limitation of motion of the arm of the major extremity to 25 degrees from the side. When the motion is to midway between the side and shoulder level, a 30 percent evaluation may be assigned. When the limitation of motion is at the shoulder level, a 20 percent evaluation is assignable. 38 C.F.R. § 4.71a, Diagnostic Code 5201. Turning to the evidence, the service treatment records reveal that during active service, the Veteran was seen on numerous occasions for treatment of his right shoulder disability. He reported that he experienced right shoulder pain and he complained that his right shoulder would "pop" in and out of place. The objective clinical findings contained in the service treatment records failed to document limitation of motion of the arm to midway between the side and shoulder level at any time during active service. His treatment included physical therapy. In July 2000, the Veteran underwent a VA general medical examination. The Veteran reported that his right shoulder was in no certain situation, as he might reach for something and it would feel like the shoulder would slip out and it would cause pain. It had given out when he did a push up. He went to sick call and they X-rayed him two or three times, but he had never had surgery. He said that he had never received any cortisone shots and was only given Motrin. Upon physical examination, the Veteran reported that he was right hand dominant. He had a normal posture and gait. Strength of the upper extremity was noted to be normal. Warmth, hair growth, pulses, and reflexes were normal. Examination of the shoulder revealed no fixed deformity. There was a small scar anterior on the right shoulder, of which the Veteran did not know the origin. It was non-tender to palpation. There were also "stretch" marks at the axilla of the right arm. Range of motion measurements of the right shoulder were provided. Forward flexion was from 0 to 110 degrees with initial complaints of pain anteriorly, and range of motion went to 170 degrees with pain. When returning the shoulder to neutral it caught at 100 degrees and the Veteran rested it for a brief second and then was able to return to neutral. Abduction was from 0 to 180 degrees with no pain. Internal and external rotation was from 0 to 90 degrees with no pain. Range of motion did not change when passive or after exercise. The examiner indicated that X-rays of the shoulder were normal. The diagnoses included right shoulder impingement. VA treatment records show that in August 2002, the Veteran complained of pain in the right shoulder. Upon physical examination, the right shoulder had full range of motion. In February 2005, he was again seen for shoulder pain, which he reported was a continuous mild ache but increased if he held his arms over his head. Objective clinical findings indicated that the shoulders had full range of motion except for some problems with extension and external rotation. There was no crepitus. The Veteran was provided a VA joints examination in September 2005, during which the claims file was reviewed. He reported that in 1996 during active service, he started having popping in the right shoulder. He was given medication. He stated that with certain movements the shoulder would "hang up" and he had to force the movement which caused a lot of pain. He said that he had continued to have this problem, which occurred several times daily. The Veteran reported that the course of the right shoulder impingement since onset was stable and he denied any current treatments. He said that previous treatments included medication and exercises which did not help much so he had quit. He just worked through the pain, although he reported that he would need to stop for a while. The Veteran denied a history of hospitalization or surgery, trauma to the joints, or neoplasm. He reported that his dominant hand was the right hand. With regards to joint symptoms, the Veteran denied any deformity, giving way, instability, stiffness, episodes of dislocation or subluxation, effusion, flare-ups of joint disease, or inflammation. He endorsed pain and weakness of the right shoulder and reported locking episodes that occurred daily or more often. The Veteran reported that the condition affected motion of the shoulder. Upon physical examination, the examiner provided range of motion measurements for the right shoulder. For flexion (forward elevation), active motion against gravity was 0 to 110 degrees, with pain at 80 degrees, passive range of motion was from 0 to 115 degrees, with pain at 80 degrees, and range of motion against strong resistance was from 0 to 110 degrees, with pain at 80 degrees. For abduction, active motion against gravity was 0 to 90 degrees, with pain at 70 degrees, passive range of motion was from 0 to 95 degrees, with pain at 70 degrees, and range of motion against strong resistance was from 0 to 95 degrees, with pain at 70 degrees. For external rotation, active motion against gravity, passive range of motion, and range of motion against strong resistance were all 0 to 85 degrees, with pain at 80 degrees. For internal rotation, active motion against gravity, passive range of motion, and range of motion against strong resistance were all 0 to 80 degrees, with pain at 80 degrees. There was no additional limitation of motion on repetitive use on any of the motions. The examiner stated that there was no loss of a bone or part of a bone, recurrent shoulder dislocations, inflammatory arthritis, or joint ankylosis. The examiner noted crepitus, painful movement, and guarding of movement in the right shoulder. Additionally, the examiner found that the right shoulder catches or locks up with moving the arm around and up. The Veteran had to maneuver it to get it to pop loose. The impression of bilateral shoulder X-rays was of no acute bone injury and degenerative changes of the right shoulder. The diagnoses included right shoulder arthritis and impingement. The examiner stated that there were no significant effects on the Veteran's occupational activities and no effects on daily activities were noted. The examiner related that the Veteran was working as an electrician for a railroad and he had previously worked for 1 1/2 years for the fire department. He had to avoid certain movements with his arm. In January 2006, an addendum opinion was provided by the September 2005 VA co-signing physician. The physician indicated that he had reviewed the claims file. The physician stated that during the September 2005 VA examination, there was no decrease in the range of motion or joint function additionally limited by pain, fatigue, weakness or lack of endurance following repetitive use. There was also no evidence of any incoordination. There was no swelling, no deformity, no atrophy, or disuse. There was no evidence of pain on pressure or manipulation and there was no evidence of any problems with flare-ups. In December 2006, the Veteran reported to VA treatment providers that he had a continuous mild ache in the right shoulder that increased if he held his arms over his head. Objectively, there was no tenderness observed. In January 2008, the Veteran reported having right shoulder pain and decreased strength that had worsened in recent years. Upon physical examination, the Veteran had full range of motion of the right shoulder with flexion and abduction, but there was limited internal rotation. There was no acromioclavicular joint pain. There was moderate pain with crossed abduction. There was pain with resistance of shoulder flexion, abduction, and internal rotation. There were no visual deformities. After reviewing the results of X-rays of the right shoulder, magnetic resonance imaging (MRI) of the right shoulder was recommended. Private treatment records indicate that the Veteran underwent an MRI of the right shoulder in February 2008. After reviewing the MRI results, the Veteran's private physician noted that he was found to have some degenerative changes with a posterior labral tear and some degenerative changes of the posterior inferior glenoid. The Veteran agreed to proceed with a right shoulder arthroscopy with meniscal allograft. Physical examination of the right shoulder revealed that there was no swelling, atrophy, or joint deformity. The Veteran had full active range of motion of the right shoulder with slight reduced range of motion secondary to pain. There was no tenderness to palpation over the acromioclavicular joint. There were signs of impingement, and Hawkins sign was positive. A VA primary care note from December 2008 indicates that the Veteran had decided to postpone the right shoulder arthroscopic surgery, although he reported that the symptoms had continued to get worse. A July 2009 private treatment record shows that the Veteran obtained an orthopedic evaluation of his right shoulder. Examination of his shoulder showed full overhead elevation and abduction. The Veteran had good rotator cuff strength. In the past he had experienced impingement symptoms, but the Veteran stated that his shoulder had "calmed down" over the prior several weeks. The Veteran wanted to know how to address his right shoulder disability long-term. The examining physician stated that it should be noted that during the examination, the Veteran's occasional symptoms of mechanical issues and impingement had resolved. After reviewing the Veteran's outside medical records and X-rays taken that day, the examiner's impression was that the Veteran does not have a shoulder that is going to require a joint arthroplasty. At that time, the Veteran was asymptomatic. He had experienced occasional mechanical issues which had calmed down. The examiner advised that the Veteran return to full and unrestricted activities. In light of the evidence of record and applicable law, the Board finds that the Veteran's right shoulder impingement does not warrant an initial evaluation in excess of 20 percent. The Veteran is receiving the maximum evaluation available under Diagnostic Code 5203 and the objective findings of record do not reflect limitation of motion of the right arm to midway between the side and shoulder level to establish entitlement to a higher rating. 38 C.F.R. § 4.71a, Diagnostic Codes 5203, 5201 (2009). In this regard, the record establishes that the Veteran is able to reach at least to shoulder level. The July 2000 and September 2005 VA examinations in addition to the July 2009 examination by the Veteran's private physician demonstrated that the Veteran was able to reach to shoulder level or above. Thus, the 20 percent rating presently assigned already takes into account any painful motion. Further, the medical evidence of record does not demonstrate additional limitation of motion in response to repetitive motion that would support an increased evaluation. See DeLuca, supra; 38 C.F.R. § 4.40; see also 38 C.F.R. §§ 4.45, 4.59 (2009). The Board has considered whether other Diagnostic Codes would afford a higher evaluation. However, the Veteran does not have impairment of the humerus, nor has ankylosis of the scapulohumeral articulation been shown. Thus, 38 C.F.R. § 4.71a, Diagnostic Codes 5202 and 5200 (2009) are not applicable. The Board finds, accordingly, that the objective medical findings of record are of greater probative value than the Veteran's statements regarding the severity of his right shoulder impingement. The Board concludes, therefore, that the preponderance of the evidence is against the claim for a higher initial rating for right shoulder impingement. As a final matter, the Board has also considered whether the Veteran's disability presents an exceptional or unusual disability picture as to render impractical the application of the regular schedular standards such that referral to the appropriate officials for consideration of extra-schedular ratings is warranted. See 38 C.F.R. § 3.321(b)(1) (2009); Bagwell v. Brown, 9 Vet. App. 337, 338-39 (1996). 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 that service-connected disability are inadequate. See Fisher v. Principi, 4 Vet. App. 57, 60 (1993) ("[R]ating schedule will apply unless there are 'exceptional or unusual' factors which render application of the schedule impractical."). Here, the rating criteria reasonably describe the Veteran's disability level and symptomatology and provides for additional or more severe symptoms than currently shown by the evidence; thus, his disability picture is contemplated by the rating schedule, and the assigned schedular evaluation is, therefore, adequate. See Thun v. Peake, 22 Vet. App. 111, 115 (2008). Consequently, referral for extraschedular consideration is not warranted. In reaching the conclusions above the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the appellant's claim, that doctrine is not applicable in the instant appeal. See 38 U.S.C.A. § 5107(b); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990). ORDER An initial evaluation in excess of 20 percent for right (major) shoulder impingement is denied. ____________________________________________ K. A. BANFIELD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs