Citation Nr: 1037726 Decision Date: 10/06/10 Archive Date: 10/15/10 DOCKET NO. 06-35 144 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to a rating higher than 20 percent for residuals of injury to left shoulder ("left shoulder disability"). REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD Biswajit Chatterjee, Associate Counsel INTRODUCTION The Veteran served on active duty in the military from July 1976 to October 1980. This appeal to the Board of Veterans' Appeals (Board) is from a December 2005 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida, which denied the Veteran's claim for an increased rating beyond 10 percent for his service-connected left shoulder disability. And in a February 2008 rating decision and supplemental statement of the case (SSOC), the RO increased the rating for the Veteran's left shoulder disability from 10 to 20 percent, retroactively effective from August 17, 2005, the date of the claim for the increased rating. The Veteran has since continued to appeal, requesting an even higher rating. See AB v. Brown, 6 Vet. App. 35, 39 (1993) (A Veteran is presumed to be seeking the highest possible rating, unless he expressly indicates otherwise). FINDINGS OF FACT 1. The Veteran is right hand dominant, making his left extremity his minor extremity. 2. X-ray evidence reflects that the Veteran has severe degenerative joint disease (DJD), which manifests in painful motion. On range of motion testing, at the worst, the Veteran has demonstrated left arm abduction limited to 80 degrees with pain. His left arm motion has never approached limitation to 25 degrees for unfavorable abduction from his side. 3. Although the Veteran presents competent and credible evidence of recurrent left shoulder dislocation, there is no competent and credible evidence that the left shoulder manifests in other impairment of the humerus, including fibrous union, nonunion, or loss of head. CONCLUSION OF LAW The criteria are not met for a disability rating higher than 20 percent for the Veteran's left shoulder disability. 38 U.S.C.A. §§ 1155, 5107 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.321, 4.1- 4.7, 4.71a, Diagnostic Codes 5003, 5010, 5200- 5203 (2009). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. The Duties to Notify and Assist As provided by the Veterans Claims Assistance Act (VCAA), VA has duties to notify and assist claimants in substantiating claims for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2009). 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 obtain and assist the claimant in obtaining; and (3) that the claimant is expected to provide. 38 C.F.R. § 3.159(b)(1); see also Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002); Charles v. Principi, 16 Vet. App. 370, 373- 74 (2002). These VCAA notice requirements apply to all five elements of a service-connection claim: (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. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), aff'd sub nom. Hartman v. Nicholson, 483 F.3d 1311 (2007). Further, this notice must include information that a downstream disability rating and an effective date for the award of benefits will be assigned if service connection is granted. Id., at 486. Ideally, VCAA notice should be provided prior to an initial unfavorable decision on a claim by the RO. Pelegrini v. Principi, 18 Vet. App. 112 (2004) (Pelegrini II). If, however, for whatever reason it was not, or the notice provided was inadequate, this timing error can be effectively "cured" by providing any necessary VCAA notice and then going back and readjudicating the claim - such as in a statement of the case (SOC) or supplemental SOC (SSOC), such that the intended purpose of the notice is not frustrated and the Veteran is given an opportunity to participate effectively in the adjudication of the claim. See Mayfield v. Nicholson, 499 F.3d 1317, 1323 (Fed. Cir. 2007) (Mayfield IV); Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). In this case, a letter satisfying the notice requirements under 38 C.F.R. § 3.159(b)(1) was sent to the Veteran in September 2005. This letter informed him of the evidence required to substantiate his claim, and of his and VA's respective responsibilities in obtaining supporting evidence. Note also that the March 2006 letter complied with Dingess by discussing the downstream disability rating and effective date elements of the claim. And of equal or even greater significance, after providing that additional Dingess notice, the RO went back and readjudicated the Veteran's claim in the February 2008 SSOC - including considering the additional evidence received in response to that additional notice. See again, Mayfield IV and Prickett, supra. So the timing defect in the notice has been rectified. It follows that a prejudicial error analysis by way of Sanders v. Nicholson, 487 F.3d 881 (Fed. Cir. 2007) is simply not warranted here. VA also fulfilled its duty to assist the Veteran by obtaining all relevant evidence in support of his claim that is obtainable, and therefore appellate review may proceed without prejudicing him. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159; see also Bernard v. Brown, 4 Vet. App. 384 (1993). The Veteran submitted personal and lay statements, and private orthopedic treatment records. The RO arranged for a VA compensation examination to assess the severity of his left shoulder disability. The record is inadequate and the need for a more contemporaneous examination occurs only when the evidence indicates the current rating may be incorrect. 38 C.F.R. § 3.327(a) (2009). Here, the VA compensation examination of the Veteran's service-connected disability was in September 2005, so relatively recently. The Board acknowledges that the orthopedic treatment evaluation by Dr. B.W. showed a worsened symptomatology, but the RO already recognized and adequately compensated the Veteran for this in the February 2008 rating decision, by assigning the increased rating of 20 percent. Importantly, the Veteran has not submitted any competent and credible evidence since that last examination that indicates the Veteran warrants any rating event higher than his present 20 percent assignment under pertinent rating criteria. Consequently, another examination to evaluate the severity of the Veteran's left shoulder disability is not warranted because there is sufficient evidence, already of record, to fairly decide this claim insofar as assessing the severity of the condition. See Caffrey v. Brown, 6 Vet. App. 377 (1994); Olsen v. Principi, 3 Vet. App. 480, 482 (1992); Proscelle v. Derwinski, 2 Vet. App. 629, 632 (1992); and Allday v. Brown, 7 Vet. App. 517, 526 (1995). Therefore, the Board finds that VA has complied with the duty-to-assist requirements. II. Analysis As brief history, the Veteran has long established service connection for a left shoulder disability. An April 1981 rating decision granted service connection for residuals of a left shoulder injury, initially assigned at a 10 percent disabling level, effective from October 16, 1980. This appeared to be based on an in-service medical history, documented in his service treatment records, of several left shoulder dislocations. More recently, in August 2005, the Veteran claimed that his left shoulder disability had become very severe, warranting a higher rating. Then, in February 2008, as mentioned, the RO increased his left shoulder disability rating from 10 to 20 percent, effective from August 17, 2005, the date of the increased rating claim. The Veteran continues to appeal for a higher rating beyond 20 percent. See AB v. Brown, 6 Vet. App. at 39. The Veteran's current 20 percent rating has been assigned under 38 C.F.R. § 4.71a, DC 5201, for limitation of motion of the arm. See Butts v. Brown, 5 Vet. App. 532, 539 (1993) (holding that the Board's choice of Diagnostic Code should be upheld so long as it is supported by explanation and evidence). See also Pernorio v. Derwinski, 2 Vet. App. 625, 629 (1992) (indicating that any change in DC must be specifically explained). The Board agrees with this rating assignment, but will consider the potential applicability of related provisions under §4.71a, especially 5003 (degenerative arthritis), DC 5010 (traumatic arthritis), DC 5200 (ankylosis), DC 5202 (other impairment of humerus) and DC 5303 (impairment of clavicle or scapula). See id. Where, as here, entitlement to compensation already has been established, and an increase in the disability rating is at issue, the present level of disability is the primary concern. Although a rating specialist is directed to review the recorded history of a disability to make a more accurate evaluation, the regulations do not give past medical reports precedence over current findings. See Francisco v. Brown, 7 Vet. App. 55 (1994). But the Court also has explained that, in determining the present level of disability, it may be necessary to "stage" the rating if the factual findings show distinct time periods where the service-connected disability has exhibited symptoms that would warrant different ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007). The relevant temporal focus for adjudicating an increased-rating claim is on the evidence concerning the state of the disability from one year before the claim was filed until VA makes a final decision on the claim. See 38 U.S.C.A. § 5110(b)(2); 38 C.F.R. § 3.400(o)(2). So, here, the time period in question is from August 2004 (one year prior to the August 2005 increased rating claim) to the present. Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities (Rating Schedule), which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.1. If there is a question as to which evaluation to apply to the Veteran's disability, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. When reasonable doubt arises as to the degree of disability, this doubt will be resolved in the Veteran's favor. 38 C.F.R. § 4.3. Pertinent regulations do not require that all cases show all findings specified by the Rating Schedule, but that findings sufficiently characteristic to identify the disease and the resulting disability and, above all, coordination of rating with impairment of function will be expected in all cases. 38 C.F.R. § 4.21. Therefore, the Board has considered the potential application of various other provisions of the regulations governing VA benefits, irrespective of whether the Veteran raised them, as well as the entire history of his disability in reaching its decision. Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). The movement of the shoulder and arm joint is covered in the regulations by 38 C.F.R. § 4.71a, Diagnostic Codes 5200-5203. Normal ranges of motion of the shoulder are flexion (forward elevation) from 0 to 180 degrees, abduction from 0 to 180 degrees, and both internal and external rotation from 0 to 90 degrees. 38 C.F.R. § 4.71, Plate I. Ratings for functional impairment of the upper extremities depend on which extremity is the major extremity, i.e., the one predominantly used by the individual. Only one extremity is considered to be major and a person is presumed to be right- handed unless there is evidence of left-handedness. 38 C.F.R. § 4.69. Here, the Veteran reported to the September 2005 VA examiner that his right hand is his dominant hand. Thus, the rating for the left shoulder is on the basis that the left upper extremity is the minor extremity. Conversely, the right upper extremity is the major extremity. Diagnostic Code 5200 provides that ankylosis of the scapulohumeral articulation is to be rated as follows for the minor shoulder (as here): A 20 percent rating is warranted for favorable ankylosis, with abduction to 60 degrees, which can reach mouth and head. A 30 percent rating is warranted for intermediate ankylosis, between favorable and unfavorable. A 40 percent rating is available for unfavorable ankylosis, abduction limited to 25 degrees from side. A Note to DC 5200 provides that the scapula and humerus move as one piece. 38 C.F.R. § 4.71a, DC 5200. At the outset, the Board finds that there is simply no evidence of any ankylosis of the left shoulder, either favorable or unfavorable, which ultimately makes DC 5200 inapplicable. See Butts, 5 Vet. App. 532. For example, the mere fact that he continues to have range of motion in his left shoulder, albeit not normal range of motion (as will be discussed), in turn means that, by definition, his left shoulder joint is not ankylosed. Ankylosis is the immobility and consolidation of a joint due to disease, injury or surgical procedure. See, e.g., Dinsay v. Brown, 9 Vet. App. 79, 81 (1996) and Lewis v. Derwinski, 3 Vet. App. 259 (1992) [citing Saunders Encyclopedia and Dictionary of Medicine, Nursing, and Allied Health at 68 (4th ed. 1987)]. And DC 5203, for impairment of the clavicle or scapula, provides only a maximum rating of 20 percent. Thus, DC 5203 cannot possibly establish a higher rating for the Veteran's left shoulder disability. The most pertinent rating criteria that appear applicable here are those for limitation of the arm. Diagnostic Code 5201 provides that limitation of motion of the arm is rated as follows for the minor extremity (as here): A 20 percent rating is warranted for limitation of motion at the shoulder level or for limitation of motion of the arm midway between the side and shoulder level. A 30 percent rating is warranted for limitation of motion of the arm to 25 degrees from the side. 38 C.F.R. § 4.71a, DC 5201. Moreover, the DCs for arthritis are also pertinent, since established by the evidence of record and resulting limitation of motion of the left shoulder joint. DC 5010 provides that traumatic arthritis is to be evaluated under DC 5003 (degenerative arthritis-hypertrophic or osteoarthritis). 38 C.F.R. § 4.71a (2009). Under DC 5003, degenerative arthritis established by x-ray findings is rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved. 38 C.F.R. § 4.71a (2009). In that regard, limitation of motion of the arm is evaluated under Diagnostic Code 5201. Indeed, the Veteran's left shoulder disability has been characterized by severe DJD, or arthritis, following a history of apparently traumatic dislocations during service. And this diagnosis was provided by the September 2005 VA examiner's X-ray testing, so application of DC 5010 or 5003 in turn refer back to evaluation under DC 5201. So, then, based on the criteria outlined in Diagnostic Code 5201, the Veteran fails to demonstrate he is entitled to any disability rating higher than 20 percent for limitation of left arm motion. At the September 2005 VA examination, the Veteran's his flexion was from 0 to 110 degrees and abduction was from 0 to 100 degrees, even considering pain on motion. Subsequently, at a private orthopedic evaluation by Dr. B.W. in September 2006, the Veteran's abduction and flexion were only limited to 80 degrees, with pain. This level of limitation of minor arm movement correlates most closely with a 20 percent disability rating. A rating in excess of 20 percent is not warranted under DC 5201, as there is no evidence the Veteran has arm motion that remotely approaches limitation to 25 degrees from his side. As such, the preponderance of the evidence is against entitlement to a rating in excess of 20 percent for limitation of left arm motion under DC 5201. Again, the Board acknowledges that left arm arthritis and painful motion were noted in the September 2005 VA examination report. Nonetheless, range of motion testing by that examiner, or B.W. in September 2006, did not demonstrate additional loss of motion or functional loss that was greater than that contemplated in the 20 percent evaluation assigned. See 38 C.F.R. § 4.40; Deluca v. Brown 8 Vet. App. 202 (1995). What is more, the assignment of a separate rating under Diagnostic Code 5003, based on limitation of left arm motion related to arthritis, would conflict with the prohibition of pyramiding, under 38 C.F.R. § 4.14. Ultimately, the Board finds that all pain and limitation of arm motion present is contemplated in the 20 percent rating currently assigned. Turning to Diagnostic Code 5202, this provision provides ratings for other impairment of the humerus, for the minor extremity (as here) as follows: A 20 percent rating is warranted for malunion with either marked or moderate deformity. A 20 percent rating is also warranted for recurrent dislocation of the humerus, at the scapulohumeral joint either with frequent episodes and guarding of all arm movements; or with infrequent episodes and guarding of movement only at shoulder level. A 40 percent rating is warranted fibrous union of the humerus. A 50 percent rating is warranted for non-union of humerus (false flail joint). A 70 percent rating is warranted for loss of head of the humerus (flail shoulder). 38 C.F.R. § 4.71a, DC 5202. Concerning DC 5202, the Board finds the Veteran's and wife's consistent lay statements of frequent dislocations of his left shoulder to be credible, especially in light of his in-service history of dislocations. And the Veteran is certainly competent to assert his difficulties driving due to painful episodes of locking of his left shoulder and stiffness, due to the purported dislocations. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); Barr v. Nicholson, 21 Vet. App. 303, 310 (2007); and 38 C.F.R. § 3.159(a)(2). Regardless, even conceding the Veteran's history of recurrent dislocations, this fails to provide any means for an even higher rating than 20 percent, under DC 5202 or any other DCs for rating shoulder disabilities. 38 C.F.R. § 4.71a. Moreover, the Board finds that DC 5202 is also otherwise inappropriate, because there is no evidence or allegation that supports its application for establishing a higher rating than 20 percent. See Butts v. Brown, 5 Vet. App. 532 (1993) (choice of diagnostic code should be upheld if supported by explanation and evidence). In that regard, there is no competent evidence or opinion on record that supports a finding of fibrous union, non- union, or loss of the head of the humerus under Diagnostic Code 5202. There is certainly no indication of fibrous union, non- union, or loss of the head of the humerus by the September 2005 VA examiner or the September 2006 private orthopedic examination by Dr. B.W. There is no basis to "stage" his rating under Hart because his left shoulder disability has never been more than 20 percent disabling at any time since August 2004 (one year prior to filing his current claim). And since, for these reasons and bases discussed, the preponderance of the evidence is against his claim, the benefit-of-the-doubt doctrine is inapplicable. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 4.3; Gilbert v. Derwinski, 1 Vet. App. 49 (1991). Extra-Schedular Consideration There is no evidence of exceptional or unusual circumstances to warrant referring this case for extra-schedular consideration. 38 C.F.R. § 3.321(b)(1) (2009). See also Thun v. Peake, 22 Vet. App. 111 (2008). The Board finds no evidence that the Veteran's left shoulder disability has markedly interfered with his ability to work, meaning above and beyond that contemplated by his 20 percent schedular rating. The Board acknowledges his complaints that his left shoulder becomes painful and partially dislocates on many occasions, producing difficulty in his job duties of delivering and handling mail for the U.S. Postal Service. However, the Board finds that his current 20 percent rating appears adequate to compensate for this level of partial occupational impairment. See 38 C.F.R. § 4.1, indicating that, generally, the degrees of disability specified in the Rating Schedule 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. See, too, Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993) (reiterating that the disability rating, itself, is recognition that industrial capabilities are impaired). Furthermore, there is no evidence of any other exceptional or unusual circumstances, such as frequent hospitalizations, to suggest the Veteran is not adequately compensated for his disability by the regular rating schedule. His evaluation and treatment has been primarily on an outpatient basis, not as an inpatient. See Bagwell v. Brown, 9 Vet. App. 237, 238-9 (1996); Floyd v. Brown, 9 Vet. App. 88, 96 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995); and VAOPGCPREC 6-96 (August 16, 1996). ORDER The claim for a rating higher than 20 percent a left shoulder disability is denied. ____________________________________________ Michael J. Skaltsounis Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs