Citation Nr: 1038455 Decision Date: 10/13/10 Archive Date: 10/22/10 DOCKET NO. 06-14 061A ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri THE ISSUES 1. Entitlement to service connection for disability of the right shoulder. 2. Entitlement to an increased disability rating for degenerative joint disease of the left shoulder with dislocations, currently rated as 20 percent disabling. 3. Entitlement to a total disability rating based upon individual unemployability due to service-connected disability. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Heather J. Harter, Counsel INTRODUCTION The Veteran served on active duty from January 1969 to August 1970. This matter comes before the Board of Veterans' Appeals (Board) from a May 2005 RO decision. The Board remanded the appeal to the VA's Appeals Management Center (AMC) in May 2009 for additional evidentiary and procedural development. Such development having been accomplished in part, the case is once again before the Board for further appellate review. The issue of entitlement to an increased schedular disability rating for degenerative joint disease of the left shoulder with dislocations is not yet ready for appellate review. Additionally, the issue of entitlement to a total disability rating based upon individual unemployability due to service- connected disability has been raised by the evidence of record and is addressed in the REMAND portion of the decision below. Both issues are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDING OF FACT An informed medical opinion demonstrates that at least some portion of the Veteran's currently-shown right shoulder disability was proximately caused by his service-connected left shoulder disability. CONCLUSION OF LAW Service connection for degenerative joint disease with impingement and instability of the right shoulder as aggravated by his service-connected left shoulder disability is warranted. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.310 (2010). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran contends that service connection is warranted for his right shoulder disability on the basis that his service-connected left shoulder impairment has forced him to over-use his right shoulder, thereby injuring the right shoulder and/or aggravating a right shoulder disability. Duties to notify and assist When an application for benefits is received, VA has certain notice and assistance requirements under the law. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). First, proper notice must be provided to a claimant before the initial VA decision on a claim for benefits and must: (1) inform the claimant about the information and evidence not of record necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; and (3) inform the claimant about the information and evidence the claimant is expected to provide. Review of the claims file shows that the Veteran was informed of these elements with regard to his claims in a letter of December 2004, prior to the initial adjudication of the claims. The VA is also required to inform the Veteran of how the VA assigns disability ratings and effective dates. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). A letter to this effect was provided in March 2006 shortly after the promulgation of Dingess/Hartman. VA medical records, service treatment records, and VA examination reports have been obtained and reviewed in support of the Veteran's claims. The Veteran declined the opportunity to present sworn testimony in support of his claims during a hearing on appeal. The Veteran and his representative have presented written statements in support of his claims. As noted above, the evidentiary development requested on remand has been fully accomplished with regard to the service connection claim decided herein. All relevant records and contentions have been carefully reviewed. The Board therefore concludes that the VA's duties to notify and assist have been met with regard to the matter decided herein. Standard of review Once the evidence has been assembled, it is the Board's responsibility to evaluate the record. 38 U.S.C.A. § 7104(a). When there is an approximate balance of evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the Court stated that "a veteran need only demonstrate that there is an 'approximate balance of positive and negative evidence' in order to prevail." To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. Service connection Generally, service connection may be granted for any disability resulting from injury suffered or disease contracted in line of duty, or for aggravation in service of a pre-existing injury or disease. 38 U.S.C.A. §§ 1110, 1131. Service connection may be established by demonstrating that the disability was first manifested during service and has continued since service to the present time or by showing that a disability which pre-existed service was aggravated during service. Service connection may be granted for any disease diagnosed after discharge from service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303. Disability which is proximately due to or the result of a service-connected disease or injury also shall be service connected. When service connection is thus established for a secondary condition, the secondary condition shall be considered a part of the original condition. 38 C.F.R. § 3.310. The United States Court of Veterans Appeals (Court) has held that pursuant to 38 U.S.C.A. § 1110 and 38 C.F.R. § 3.310, when aggravation of a veteran's non-service-connected condition is proximately due to or the result of a service-connected condition, the veteran shall be compensated for the degree of disability over and above the degree of disability existing prior to the aggravation. Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). The Board remanded this case in part to obtain medical information as to the relationship, if any, between the disabilities in each shoulder. The Veteran underwent a VA examination in October 2009. The examiner was able to review the Veteran's claims file and his VA medical records, in addition to performing a clinical examination of the Veteran's shoulders. The examiner summarized the Veteran's right shoulder symptomatology as involving pain with flexion, abduction, and external rotation of the right arm located at the right shoulder and deltoid area. Upon examination, there was no incoordination or deformity of the shoulder, however, there was instability, pain, stiffness, weakness, giving way, decreased speed of joint motion, daily episodes of dislocation or subluxation, and tenderness. The examiner also observed a positive impingement sign, bony joint enlargement, crepitus, and guarding of movement. The Veteran reported that his shoulder impairment caused him to be laid off from his telephone company job as a lineman, which he had held for many years. The examiner rendered a diagnosis of degenerative joint disease with impingement and instability of the right shoulder due to or the result of the Veteran's service- connected left shoulder degenerative joint disease and instability. The examiner provided the following explanation as to the relationship between the two shoulder disabilities: His [service-connected] limitation of left shoulder motion and strength due to instability and impairment required him to perform his tasks as a linemen with only his dominant right arm. He kept his left arm at waist level. Climbing poles requires significant upper body strength with the arms elevated in flexion and abduction above shoulder level, while using internal and external rotation to climb. From an ergonomics standpoint, this is a two-handed process within the heavy labor classification. He had to compensate for inability to elevate the left arm by concentrating the entire effort into using only the right arm. Such repetitive forces (at times equivalent to doing one-armed pull-ups) over a period of time would translate into the significant repetitive stress of the shoulder joint. This condition is not cited in the literature as part of an evidence-based format because the number of people employed in this field and the number of people with his condition are too small to allow a realistic statistical evaluation. However, the vectors of the forces required for this job are described in ergonomics literature relating to their association with shoulder injury patterns. And, using a single arm to perform the heavy labor designed for a two-hand operation would amplify this effect. Over the past 30 years while practicing and teaching occupational medicine I have seen such problems in heavy industry where compensation has affected the opposite limb, and where people were incapable of performing jobs designed for two-handed applications with their single usable limb. It would be reasonable to state that the present pain, limitation of motion, and instability of the right shoulder was most likely the result of the limitation of function of the [service-connected] left shoulder. This informed medical opinion squarely supports the Veteran's claim that his right shoulder disability was proximately caused by his left shoulder disability in that he had to compensate for his left shoulder impairment by over-stressing his right shoulder. Because the law and regulations require that disability which is proximately due to or the result of a service-connected disease or injury also shall be service connected, and the medical evidence demonstrates the Veteran's right shoulder disability was proximately caused by his service- connected left shoulder disability, the Board holds that service connection for the Veteran's currently-shown right shoulder disability as proximately caused by his left shoulder disability is warranted. However, we note as well, that prior to taking the job as a lineman, to which the examiner attributes the Veteran's right shoulder pathology, the Veteran worked in maintenance. The report of a March 2005 VA examination shows that he had worked in maintenance for the previous sixteen years, and that the Veteran had right shoulder arthritis at that time, prior to becoming a lineman. As instructed by Allen, when aggravation of a veteran's non-service-connected condition is proximately due to or the result of a service-connected condition, the veteran shall be compensated for the degree of disability over and above the degree of disability existing prior to the aggravation. Therefore, when implementing this grant of service connection and assigning a disability rating for the Veteran's right shoulder impairment, the RO will have to review the record carefully to ascertain the condition of the Veteran's right shoulder at the time when he began work as a lineman so as to identify the degree of disability which existed prior to the aggravation. ORDER Service connection is granted for that portion of the degenerative joint disease with instability of the right shoulder which was caused by aggravation due to his service-connected left shoulder disability, subject to the laws and regulations governing the award of monetary benefits. REMAND Historically, the evidence of record shows that the Veteran had a history of left shoulder bursitis prior to service. However, the left shoulder problem was deemed to have been aggravated during service, to include one instance of the shoulder dislocating during service. Service connection for degenerative joint disease with a history of dislocation was granted on the basis of aggravation during service, in 1999. A 10 percent disability rating was assigned, representing arthritis with malunion or nonunion of the clavicle and scapula under the provisions of Diagnostic Codes 5010-5203. The Veteran appealed this disability rating to the Board, which in a February 2001 decision awarded a 20 percent rating based upon limitation of left shoulder motion under the provisions of Diagnostic Code 5010-5201. In October 2002, the Veteran again claimed that his left shoulder problems continued to worsen. Since that time, he has reported increasing pain in the shoulder, for which he takes prescription pain killers. He has undergone multiple steroid injections in the shoulder during the eight years this claim has been pending. Recent VA treatment records reflect that he has developed some adhesive capsulitis in the shoulder, which was being treated conservatively in light of his history of shoulder dislocations. [Adhesive capsulitis is a condition which generally improves and often resolves over the passage of time. We note that the Veteran was so informed during a March 2009 orthopedic visit.] Increased disability rating Unfortunately, the Board finds that another remand is required before the Veteran's claim for an increased disability rating for his left shoulder may be adjudicated. When the case was previously before the Board, we determined that a remand was required to provide the Veteran with another VA examination to identify his current level of symptomatology because the examination report of record at that time was stale, in light of the Veteran's allegations that his left shoulder symptoms had worsened. The Board's remand instructions in this regard included two separate paragraphs in which the information required was described. Unfortunately, not all of the information requested by the Board was included. Additionally, we note that in light of the recent evidence regarding the Veteran's development of adhesive capsulitis in the shoulder, medical information as to whether the adhesive capsulitis is part of his service-connected disability is required, as well as information as to whether the capsulitis has resolved or to what extent it has resolved by this point. Where the record before the Board is inadequate to render a fully informed decision, a remand to the RO is required in order to fulfill its statutory duty to assist the veteran to develop the facts pertinent to the claim. Furthermore, the RO is required to fully complete the development ordered by the Board. Stegall v. West, 11 Vet. App. 268 (1998); Ascherl v. Brown, 4 Vet. App. 371, 377 (1993). As it appears that the veteran receives regular VA medical treatment for his left shoulder impairment, his VA medical records should be updated for the claims file, as well. Any VA medical records are deemed to be constructively of record in proceedings before the Board and should be obtained prior to further review of the claims file. Bell v. Derwinski, 2 Vet. App. 611 (1992). It does not appear that he is currently receiving private medical care for his left shoulder. However, if he has sought private medical treatment subsequent to the 2003 statement from his private physician, he is hereby informed that he should work with the AMC or the RO so that records reflecting such treatment may be obtained for inclusion in his claims file As a procedural matter, we observe that although the Veteran was provided with the substance of the laws and regulations governing the award of extra-schedular disability ratings when the schedular criteria are insufficient to reflect the full level of impairment resulting from a service-connected disability in the April 2006 Statement of the Case, no analysis as to whether an extra-schedular disability rating may be applicable to the Veteran's left shoulder disability has been done at any point in this case. Given the facts of this case, such consideration is indicated and should be accomplished when the matter is next reviewed. 38 C.F.R. § 3.321. Total disability rating based upon unemployability due to service-connected disability The Veteran reported during March 2005 VA examination that he had worked in maintenance for the previous sixteen years. More recent VA treatment records reflect that he was working for the telephone company, as a lineman, which involved climbing telephone poles on a regular and frequent basis. An April 2007 VA neurological consultation report shows that the Veteran was working as a lineman at that time, and that the physician advised him to modify his job to prevent worsening of his (service- connected) shoulder and (nonservice-connected) back problems. The Veteran reported that he was unable to modify his job duties, but that he would be able to retire within two years. Later VA medical records reflect that the Veteran lost his job due to difficulty driving and difficulty climbing the poles. The Veteran currently asserts that in addition to having lost his job, he is greatly limited in the work he can do around his farm and that he cannot hunt anymore due to his shoulder disabilities. The 2009 medical opinion, quoted above, amply demonstrates the stress on the Veteran's shoulders involved in climbing the telephone poles and the permanent damage which was incurred thereby. Where the claimant or the record has raised the question of whether the Veteran is unemployable due to the disability for which an increased rating is sought, then part and parcel to that claim for an increased rating is whether a total rating based on individual unemployability as a result of that disability is warranted. Rice v. Shinseki, 22 Vet. App. 447 (2009). Because the Veteran has reported that he lost his job on account of his shoulder disabilities, the claim for a total disability rating based upon unemployability due to service-connected disabilities is properly before the Board and must be adjudicated. It has been added to the title page of this decision to reflect the Board's jurisdiction over it. Review of this matter should include both schedular and extraschedular consideration. Accordingly, the case is REMANDED for the following action: 1. The RO should obtain all records of VA medical treatment afforded to the Veteran by the VA in Kansas City and Columbia, and any other related facilities, since July 2010 for inclusion in the file. 2. The veteran should be afforded a VA orthopedic examination to determine the current extent of the impairment resulting from his service-connected left shoulder disorder. The claims folder, including all records received pursuant to the above request, must be made available to the examiner for review before the examination. All tests and studies deemed helpful by the examiner should be performed in conjunction with the examination. The examiner is requested to record all pertinent medical complaints, symptoms, and clinical findings; including the results of range of motion testing; whether there is weakened movement, excess fatigability, or incoordination attributable to the service connected disorder; and the effects of pain upon left shoulder functioning. A complete rationale for all opinions must be provided. The examiner should also render an opinion as to whether the Veteran's left shoulder disability limits his ability to work, or affects his ability to obtain and maintain substantially gainful employment. The complete rationale for this opinion should also be provided. 3. The RO should accomplish all notification and evidentiary development pertaining to the Veteran's implied claim for a total disability rating based upon unemployability due to service-connected disabilities. 4. After the development requested above has been completed, the RO should again review the record, adjudicating the increased rating claim and the intertwined claim for a total disability rating based upon unemployability due to service- connected disabilities. Explicit schedular and extraschedular consideration should be given to both claims. If either benefit sought on appeal remains denied, the Veteran and his representative should be furnished a supplemental statement of the case and given the opportunity to respond. The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or by the Court for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2009). ______________________________________________ K. PARAKKAL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs