Citation Nr: 1120989 Decision Date: 05/31/11 Archive Date: 06/06/11 DOCKET NO. 10 27-026 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to an initial rating higher than 20 percent for a left shoulder disability. ATTORNEY FOR THE BOARD R. Erdheim, Associate Counsel INTRODUCTION The Veteran served on active duty from August 1988 to August 1992. This matter comes before the Board of Veterans' Appeals (Board) from a May 2009 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO) that granted a 10 percent disability rating for a left shoulder disability, effective September 26, 2008. In June 2010, the RO increased the disability rating from 10 to 20 percent disabling, effective September 26, 2008. However, as the higher award does not represent a total grant of benefits sought, the claim for increase remains before the Board. AB v. Brown, 6 Vet. App. 35 (1993). FINDING OF FACT Since September 26, 2008, when service connection became effective, the Veteran's left shoulder disability has been manifested by recurrent dislocations of the shoulder joint with frequent episodes of guarding of all arm movements. Range of motion testing has not been limited to 25 degrees from the side. CONCLUSION OF LAW The criteria for an initial rating higher than 20 percent for a left shoulder disability have not been met. 38 U.S.C.A. § 1155; 38 C.F.R. §§ 3.321, 4.71a, Diagnostic Codes 5201, 5203 (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSION Increased Rating Ratings for service-connected disabilities are determined by comparing the veteran's symptoms with criteria listed in VA's Schedule for Rating Disabilities, which is based, as far as practically can be determined, on average impairment in earning capacity. Separate diagnostic codes identify the various disabilities. 38 C.F.R. Part 4 (2010); 38 U.S.C.A. § 1155 (West 2002). When rating a service-connected disability, the entire history must be borne in mind. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). The Board will consider entitlement to staged ratings to compensate for times since filing the claim when the disability may have been more severe than at other times during the course of the claim on appeal. Fenderson v. West, 12 Vet. App. 119 (1999). Where there is a question as to which of two ratings shall be applied, the higher rating 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 (2010). Disability of the musculoskeletal system is primarily the inability, due to damage or infection in parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination and endurance. It is essential that the examination upon which ratings are based adequately portray the anatomical damage, and the functional loss, with respect to all these elements. 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 it may be due to pain, supported by adequate pathology and evidenced by the visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. A little used part of the musculoskeletal system may be expected to show evidence of disuse, either through atrophy, the condition of the skin, absence of normal callosity or the like. 38 C.F.R. § 4.40 (2010). Evidence of pain, weakened movement, excess fatigability, or incoordination must be considered in determining the level of associated functional loss, taking into account any part of the musculoskeletal system that becomes painful on use. 38 C.F.R. § 4.40 (2010); DeLuca v. Brown, 8 Vet. App. 202 (1995). The provisions regarding the avoidance of pyramiding do not forbid consideration of a higher rating based on greater limitation of motion due to pain on use, including flare ups. 38 C.F.R. § 4.14 (2010). The provisions of 38 C.F.R. § 4.40 and 38 C.F.R. § 4.45 (2010), however, should only be considered in conjunction with the diagnostic codes predicated on limitation of motion. Johnson v. Brown, 9 Vet. App. 7 (1996). The intent of the rating schedule is to recognize painful motion with joint or periarticular pathology as productive of disability. It is the intention to recognize actually painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59 (2010). With respect to the joints, the factors of disability reside in reductions of their normal excursion of movements in different planes. Inquiry will be directed to these considerations: (a) less movement than normal (due to ankylosis, limitation or blocking, adhesions, tendon-tie-up, contracted scars, etc.); (b) more movement than normal (from flail joint, resections, nonunion of fracture, relaxation of ligaments, etc.); (c) weakened movement (due to muscle injury, disease or injury of peripheral nerves, divided or lengthened tendons, etc.); (d) excess fatigability; (e) incoordination, impaired ability to execute skilled movements smoothly; and (f) pain on movement, swelling, deformity or atrophy of disuse. Instability of station, disturbance of locomotion, interference with sitting, standing and weight-bearing are related considerations. For the purpose of rating disability from arthritis, the wrist is considered a major joint. 38 C.F.R. § 4.45 (2010). Arthritis shown by X-ray studies is rated based on limitation of motion of the affected joint. When limitation of motion would be noncompensable under a limitation-of-motion code, but there is at least some limitation of motion, a 10 percent rating may be assigned for each group of minor joints so affected. 38 C.F.R. § 4.71a, Diagnostic Codes 5003, 5010 (2010). Diagnostic Code 5010, for rating traumatic arthritis, directs that the evaluation of arthritis be conducted under Diagnostic Code 5003, which states that degenerative arthritis established by X-ray findings will be 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, Diagnostic Code 5003, 5010 (2010). When, however, the limitation of motion is noncompensable under the appropriate diagnostic codes, a rating of 10 percent may be applied to each such major joint or group of minor joints affected by limitation of motion. The 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 (2010). In the absence of limitation of motion, X-ray evidence of arthritis involving two or more major joints or two or more minor joint groups, will warrant a rating of 10 percent; in the absence of limitation of motion, X-ray evidence of arthritis involving two or more minor joint groups with occasional incapacitating exacerbations will warrant a 20 percent rating. The above ratings are not to be combined with ratings based on limitation of motion. 38 C.F.R. § 4.71a, Diagnostic Code 5003, Note 1 (2010). The words slight, moderate, and severe as used in the various diagnostic codes are not defined in the VA Schedule for Rating Disabilities. Rather than applying a mechanical formula, the Board must evaluate all of the evidence, to the end that its decisions are equitable and just. 38 C.F.R. § 4.6 (2010). The use of terminology such as severe by VA examiners and others, although an element to be considered by the Board, is not dispositive of an issue. All evidence must be evaluated in arriving at a decision regarding an increased rating. 38 C.F.R. §§ 4.2, 4.6(2010). The Veteran's left shoulder disability has been rated as 20 percent disabling under Diagnostic Codes 5201-5202. Hyphenated diagnostic codes are used when a rating under one diagnostic code requires the use of an additional diagnostic code to identify the basis for the evaluation assigned; the additional code is shown after the hyphen. 38 C.F.R. § 4.27 (2010). Diagnostic Code 5201 pertains to limitation of motion of the arm. Diagnostic Code 5202 pertains to other impairment of the humerus. 38 C.F.R. § 4.71a, Diagnostic Codes 5201, 5202 (2010). The rating criteria provide different ratings for the minor arm and the major arm. The Veteran has indicated (in various treatment records and on VA examination) that he is right-handed; therefore, the Board will apply the ratings and criteria for the minor arm. 38 C.F.R. § 4.69 (2010). In considering the applicability of other diagnostic codes, the Veteran has not been shown to have ankylosis of scapulohumeral articulation, nor has it been shown that he suffers from impairment of the humerus, clavicle or scapula, including dislocation or, nonunion of, or malunion of the scapula or clavicle. Accordingly, the criteria pertaining to those disabilities are not applicable. 38 C.F.R. § 4.71a , Diagnostic Codes 5200, 5203 (2010). Under Diagnostic Code 5201, for the major arm, a 20 percent rating is warranted for limitation of arm motion to shoulder level; a 30 percent rating is warranted for limitation of arm motion to midway between the side and shoulder level; and a maximum 40 percent rating is warranted for limitation of arm motion to 25 degrees from the side. For the minor arm, a 20 percent rating is warranted for limitation of arm motion to shoulder level; a 20 percent rating is warranted for limitation of arm motion to midway between the side and shoulder level; and a maximum 30 percent rating is warranted for limitation of arm motion to 25 degrees from the side. 38 C.F.R. § 4.71a , Diagnostic Code 5201 (2010). Normal forward flexion of the shoulder is 0 to 180 degrees; abduction is 0 to 180 degrees; and internal and external rotation are from 0 to 90 degrees. 38 C.F.R. § 4.71a, Plate I (2010). Forward flexion and abduction to 90 degrees amounts to shoulder level. Under Diagnostic Code 5202, a 20 percent rating is warranted for other impairment of the humerus, recurrent dislocation of at scapulohumeral joint, with infrequent episodes of dislocation and guarding of movement only at shoulder level. A 30 percent rating is assigned for recurrent dislocation of at scapulohumeral joint with frequent episodes and guarding of all arm movements. A 50 percent rating is warranted for fibrous union of the humerus. A 60 percent rating is warranted for nonunion (false flail joint) of the humerus. An 80 percent rating is warranted for loss of the head of the humerus (flail shoulder). 38 C.F.R. Part 4, Diagnostic Code 5202 (2010). Diagnostic Code 5202 also contemplates ratings for malunion of the humerus. VA treatment records show that in August 2008, the Veteran reported recurrent shoulder dislocations. He had made several visits to the Emergency Room due to a painful shoulder. Physical examination of the shoulder showed no local tenderness and intact range of motion. In October 2008, the Veteran's spouse submitted a statement that she had witnessed the Veteran's left shoulder dislocate four times in 2007. He dislocated his shoulder due to such activities as lifting an empty baking pan, rolling over in bed, washing dishes, and helping out around the home. On April 2009 VA examination, the Veteran reported having recurrent dislocations, with the most recent dislocation occurring one week previously, for which he had received emergency treatment. He reported that since 1991, he had incurred between 10 and 20 dislocations. He had been able to self-reduce the shoulder except that on two occasions he had had to go to the Emergency Room for closed reductions. He reported intermittent pain that varied from mild to severe. He had weakness and stiffness in the shoulder. There was no swelling, increased heat, giving way, or locking. The dislocations occurred spontaneously with certain types of movements of the shoulder and occurred approximately once per year. The disability interfered with his ability to play sports and lift weights but did not impede his ability to carry out activities of daily living. He was employed as a production line worker and manager. He had lost approximately three weeks of work in the previous year due to his shoulder. Physical examination revealed no atrophy or crepitus. Range of motion testing should forward flexion to 150 degrees, abduction to 150 degrees, external rotation to 80 degrees, and internal rotation to 80 degrees. Range of motion was carried out with no pain. There was tenderness over the anterior aspect of the shoulder. Repetitive motion of the shoulder was not performed due to the recent history of dislocation. An August 2008 X-ray had been interpreted as normal. VA treatment records shows that on April 2009 X-ray examination, no fracture or dislocation of the shoulder was seen. In June 2010, the Veteran submitted a statement that every day he had to watch what he was doing because of the possibility of his shoulder popping out of place. The shoulder joint popped out if he turned a certain way. He could not play sports with his son due to his disability. He was restricted in his ability to help out around the home and at work he could not lift anything over fifteen pounds. He could not operate certain machines due to his shoulder. He was in constant daily pain. In this case, although the Board is sympathetic to the Veteran's claim, a rating higher than 20 percent for a left shoulder disability is not warranted. VA treatment records and VA examination do not show that his disability is manifested by ankylosis, loss of head of the humerus (flail joint), nonunion of the humerus (false flail joint), or fibrous union of the humerus. Further, the evidence does not show that he experiences limitation of motion of the arm to 25 degrees or less from the side. Instead, the evidence shows that on August 2008 physical examination and on April 2009 VA examination, range of motion was to 150 degrees at the worst. Accordingly, as there is no other higher rating available under the rating criteria pertaining to the minor arm, the Board finds that a higher rating is not warranted. 38 C.F.R. § 4.71a, Diagnostic Code 5201, 5202 (2010). The Board has determined that the Veteran is not entitled to a rating higher than 20 percent for a left shoulder disability under the applicable criteria. The Board is required to consider the effect of pain and weakness when rating a service-connected disability on the basis of limitation of motion. 38 C.F.R. §§ 4.40, 4.45 (2010); DeLuca v. Brown, 8 Vet. App. 202 (1995). The Board finds that the effect of pain and weakness on limitation of motion has been considered because although VA examination, treatment records, and statements have shown that the Veteran experiences pain on motion and flare-ups on activity, there is no evidence to suggest that the functional loss is the equivalent to loss of motion to 25 degrees or less on the left side or of ankylosis of the shoulder. In fact, it appears to the Board that the limitation caused by pain was considered in assigning the current 20 percent rating. Although the Board is precluded by regulation from assigning an extraschedular rating under 38 C.F.R. § 3.321(b)(1) in the first instance, the Board is not precluded from considering whether the case should be referred to the Director of VA's Compensation and Pension Service for a rating. The threshold factor for extraschedular consideration is a finding that the evidence presents such an exceptional disability picture that the available schedular ratings for that service-connected disability are inadequate. That is accomplished by comparing the level of severity and symptomatology of the service-connected disability with the established criteria. If the criteria reasonably describe the Veteran's disability level and symptomatology, then the Veteran's disability picture is contemplated by the Rating Schedule, and the assigned schedular evaluation is, therefore, adequate and referral for an extraschedular rating is not required. Thun v. Peake, 22 Vet. App. 111 (2008). Comparing the Veteran's current disability level and symptomatology to the Rating Schedule, the Board finds that the degree of disability is contemplated by the Rating Schedule and the assigned schedule ratings are, therefore, adequate and no referral to an extraschedular rating is required under 38 C.F.R. § 3.321(b)(1). Finally, the Board has considered whether a higher rating might be warranted for any period of time during the pendency of this appeal. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). However, the Board finds that the weight of the credible evidence demonstrates that the Veteran's left shoulder disability has warranted no more than a 20 percent rating since September 26, 2008, the effective date of service connection. Because the preponderance of the evidence is against the claim, the claim must be denied. 38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Duties to Notify and Assist The Veteran's claims arise from his disagreement with the initial evaluations following the grant of service connection. Once service connection is granted the claim is substantiated, additional notice is not required and any defect in the notice is not prejudicial. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). As to the duty to assist, the Board notes that VA has associated the service treatment records and post-service treatment records with the claims folder. In addition, he was afforded a VA examination. Thus, the duty to assist has been met. ORDER Entitlement to an initial rating higher than 20 percent for a left shoulder disability is denied. ____________________________________________ Harvey P. Roberts Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs