Citation Nr: 1122242 Decision Date: 06/08/11 Archive Date: 06/20/11 DOCKET NO. 05-31 250 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Juan, the Commonwealth of Puerto Rico THE ISSUES 1. Entitlement to an initial disability rating greater than 20 percent for the service-connected left shoulder impingement syndrome with degenerative acromioclavicular joint disease. 2. Entitlement to an initial compensable disability rating for the service-connected postoperative residuals of a right inguinal herniorraphy. REPRESENTATION Appellant represented by: Vietnam Veterans of America WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Douglas E. Massey, Counsel INTRODUCTION The Veteran had periods of active duty from August 1980 to May 1989, January 1991 to June 1991, and February 2003 to May 2004. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2005 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in San Juan, the Commonwealth of Puerto Rico. In that decision, the RO, among other things, granted service connection for left shoulder impingement syndrome with degenerative acromioclavicular joint disease and assigned an initial 20 percent rating; and, granted service connection for postoperative residuals of a right inguinal herniorraphy, and assigned an initial noncompensable (zero percent) rating, both effective retroactively from May 17, 2004. The Veteran appealed the initial ratings assigned for those service-connected disabilities. The Veteran also appealed the RO's decision to deny service connection for external hemorrhoids and residuals of asbestos exposure, as well as the assignment of an initial 40 percent rating for a low back disability involving degenerative disc disease, lumbosacral strain, and myositis. In an April 2009 decision, these matters were resolved and are therefore no longer on appeal or before the Board at this time. In April 2009, the Board also remanded the case and requested additional evidentiary development concerning the claims for increased ratings for the service-connected left shoulder disability and postoperative residuals of a right inguinal herniorraphy. That development was accomplished and the case readjudicated by the Appeals Management Center (AMC) in a June 2010 supplemental statement of the case (SSOC). The case is therefore ready for appellate review by the Board. FINDINGS OF FACT 1. The Veteran is right hand dominant. 2. The Veteran's left (minor) shoulder demonstrated 70 degrees of abduction when examined in January 2005 and 180 degrees of abduction when examined in April 2010, with pain on use but no significant loss of motion after three repetitions. 3. Following surgery for a right inguinal hernia in April 2003, the Veteran has not had any recurrence of a hernia. 4. The Veteran has a well-healed scar from his right hernia repair, which measures .01 cm by 8.0 cm, is not painful, and causes no functional loss. CONCLUSIONS OF LAW 1. The criteria are not met for an initial rating greater than 20 percent for left shoulder impingement syndrome with degenerative acromioclavicular joint disease. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.1-4.14, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5003, 5010, 5201 (2010). 2. The criteria are not met for an initial compensable rating greater than 20 percent for postoperative residuals of a right inguinal herniorraphy. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.1-4.14, 4.118 Diagnostic Codes 7801 to 7805 (prior to and since October 23, 2008). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. The Duties to Notify and Assist As provided by 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2010), VA has duties to notify and assist a claimant in substantiating a claim for VA benefits. 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. See 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 notice requirements apply to all elements of a service-connection claim, including the downstream disability rating and effective date elements. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), aff'd sub nom. Hartman v. Nicholson, 483 F.3d 1311 (2007). Duty to assist letters were provided to the Veteran prior to the initial grants of service connection in this case; and, since both claims concern the Veteran's downstream issue of disagreement with the initial ratings assigned following the grants of service connection for a left shoulder disability and residuals of a right inguinal herniorraphy, VA is not obligated to provide additional duty-to-assist notice concerning this "downstream" issue of these claims. Instead, the provisions of 38 U.S.C.A. § 7105(d) require VA to provide a statement of the case (SOC) if this disagreement is not resolved. The RO issued an SOC in September 2005 addressing this downstream issue for both claims, which included citation to the applicable statutes and regulations and a discussion of the reasons and bases for not assigning a higher initial rating for these disabilities. As such, no further notice is required. See Goodwin v. Peake, 22 Vet. App. 128 (2008). In any event, although not required, a March 2010 letter from the AMC to the Veteran notified the Veteran of what evidence was required to substantiate his claims for higher initial ratings, and apprised him of his and VA's respective responsibilities in obtaining this supporting evidence. See Quartuccio v. Principi, 16 Vet. App. 183 (2002); Dingess v. Nicholson, 19 Vet. App. 473 (2006); Vazquez-Flores v. Peake, 22 Vet. App. 37, 43 (2008). Thus, the duty to notify has been satisfied. As the pleading party, the Veteran, not VA, has the evidentiary burden of proof of showing there is a notice error in either timing or content and, moreover, that it is unduly prejudicial, meaning outcome determinative of his claims. See Shinseki v. Sanders, 129 S. Ct. 1626 (2009). Neither he nor his representative has made any such pleading or allegation. VA also fulfilled its duty to assist the Veteran by obtaining all relevant evidence in support of the claims. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The RO obtained all records that the Veteran and his representative identified as potentially relevant. On remand, the Veteran was asked to furnish the names and addresses of all health care providers who have treated his service-connected left shoulder disability and residuals of the right inguinal herniorraphy. The Veteran has not replied to this request. Also as a result of the April 2009 remand, the Veteran was afforded several VA examinations in April 2010 to assess the nature and severity of his left shoulder disability and residuals of the right inguinal herniorraphy. The findings from those examinations appear adequate to rate these disabilities. See Caffrey v. Brown, 6 Vet. App. 377 (1994). In light of the development undertaken in this case, VA has substantially complied with its prior remand directives. See Stegall v. West, 11 Vet. App. 268 (1998) (holding that a remand by the Board imposes upon the Secretary of VA a concomitant duty to ensure compliance with the terms of the remand); Dyment v. West, 13 Vet. App. 141, 146- 47 (1999). Accordingly, no further development is needed to meet the requirements of 38 U.S.C.A. § 5103A and 38 C.F.R. § 3.159. II. Entitlement to an Initial Disability Rating Greater Than 20 Percent for the Service-Connected Left Shoulder Impingement Syndrome with Degenerative Acromioclavicular Joint Disease In the February 2005 rating decision, the RO granted service connection for left shoulder impingement syndrome with degenerative acromioclavicular joint disease after finding that the Veteran had sustained a left shoulder injury while on active duty training. The RO assigned an initial 20 percent disability rating, effective from May 17, 2004. The Veteran appealed the initial rating assigned, asserting that a rating in excess of 20 percent is warranted for the service-connected left shoulder disability. Since this claim arises from the Veteran's disagreement with the initial 20 percent rating assigned following the granting of service connection, separate ratings may be assigned for separate periods of time based on the facts found, a practice known as "staging," with equal consideration for the entire body of evidence. Fenderson v. West, 12 Vet. App. 119, 125-26 (1999) (holding that, when a Veteran timely appeals an initial rating, VA must consider whether the rating should be "staged" to compensate him for times since the effective date of the award when the disability may have been more severe than at other times during the course of the appeal). Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities (Rating Schedule). Ratings are based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. See 38 U.S.C.A. § 1155; 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. See 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in the Veteran's favor. 38 C.F.R. § 4.3. The Veteran's service-connected left shoulder disability is rated pursuant to 38 C.F.R. § 4.71a, Diagnostic Codes 5010-5201. Diagnostic Code 5010 provides that traumatic arthritis, substantiated by X- ray findings, is to be evaluated under Diagnostic Code 5003 for degenerative arthritis, which in turn provides that such disability will be rated on the basis of limitation of motion under the appropriate Diagnostic Codes for the specific joint or joints involved. See 38 C.F.R. § 4.71a, Diagnostic Code 5003. Limitation of the arm is rated under 38 C.F.R. § 4.71a, Diagnostic Code 5201. The record shows that the Veteran is right hand dominant, which means that his service-connected left shoulder disability involves his minor arm. Under Diagnostic Code 5201, a 20 percent rating is assigned when motion of either arm (major or minor) is limited to the shoulder level, which is essentially 90 degrees of abduction, or where the minor arm is limited to midway between the side and shoulder level, which is essentially 45 degrees of abduction. A maximum 30 percent rating is assigned when the minor arm is limited to 25 degrees from the side. See 38 C.F.R. § 4.71a, Diagnostic Code 5201. When an evaluation of a disability is based upon limitation of motion, the Board must also consider, in conjunction with the otherwise applicable Diagnostic Code, any additional functional loss the Veteran may have by virtue of other factors as described in 38 C.F.R. §§ 4.40, 4.45, and 4.59. See DeLuca v. Brown, 8 Vet. App. 202, 206 (1995). These factors include more or less movement than normal, weakened movement, excess fatigability, incoordination, pain on movement, swelling, and deformity or atrophy from disuse. A finding of functional loss due to pain must be supported by adequate pathology and evidenced by the visible behavior of the Veteran. 38 C.F.R. § 4.40; Johnston v. Brown, 10 Vet. App. 80, 85 (1997). Applying these criteria to the facts of this case, there is no basis to assign an initial rating greater than 20 percent for the Veteran's service-connected left shoulder disability. The only relevant evidence for consideration in which range-of-motion testing was performed involves two VA examinations, both of which show that his left arm demonstrated flexion of greater than 25 degrees from the side. When examined in January 2005, his left arm demonstrated 70 degrees of abduction (with pain at 50 degrees), 80 degrees of flexion (with pain at 60 degrees), and zero degrees of internal and external rotation. And when examined in April 2010, his left arm demonstrated 180 degrees of abduction and flexion, and 90 degrees of internal and external rotation. All of these motions included pain. After repetitive use, motion was slightly reduced, to 175 degrees of flexion, 174 degrees of abduction and 85 degrees of internal and external rotation. Since these findings clearly show abduction greater than 25 degrees from the side, there is no basis to assign a disability rating greater than 20 percent under Diagnostic Code 5201. Additionally, there is no other basis for assigning a disability rating greater than 20 percent since the initial grant of service connection. In particular, a disability rating greater than 20 percent is not warranted under Diagnostic Code 5200, which pertains to ankylosis. Ankylosis is stiffening or fixation of the joint as the result of a disease process, with fibrous or bony union across the joint. See Dinsay v. Brown, 9 Vet. App. 79, 81 (1996) citing Dorland's Illustrated Medical Dictionary at 86 (27th ed. 1988). At no time, however, has the Veteran's left arm or shoulder been described as ankylosed. In fact, the VA examiner in April 2010 made a specific finding that ankylosis is not present. And lastly, a rating greater than 20 percent is not warranted based on functional loss due to pain, weakness, premature/excess fatigability, or incoordination because it has not been shown that any of these factors result in additional disability, such as additional limitation of motion which has not already been factored into the range of motion limitations currently noted. See 38 C.F.R. §§ 4.40, 4.45 and 4.59; see also DeLuca, 8 Vet. App. at 204-08. The January 2005 VA examination report notes that pain began at 50 degrees of abduction and 60 degrees of flexion, with only a slight decrease in strength of 4/5. Thus, the Veteran still had pain-free motion of greater than 25 degrees of abduction. Moreover, the April 2010 VA examination report notes that three repetitions produced pain but no significant loss of motion, with abduction of 174 degrees, flexion of 175 degrees, and internal and external rotation of 85 degrees. These findings represent only a slight loss of full motion after three repetitive movements. See 38 C.F.R. § 4.71, Plate I (defining normal motion as 0 to 180 degrees of forward elevation, 0 to 180 degrees of abduction, and 0 to 90 degrees of internal and external rotation). In light of these findings, a disability rating greater than 20 percent is not warranted under 38 C.F.R. §§ 4.40, 4.45, 4.59 and DeLuca. The Veteran does report that he experiences frequent flare-ups of left shoulder pain of moderate severity which occur every two to three weeks and last for hours. These flare-ups, while moderate in severity, do not rise to a level that produces an overall disability picture meeting the criteria necessary to warrant the assignment of the next higher, 30 percent rating. There is no indication that the Veteran's motion is additionally limited beyond that noted above, even with consideration of the added pain during flare-ups. Moreover, additional objective evidence of record includes a magnetic resonance imaging (MRI) study from January 2005 revealing mild acromioclavicular joint degenerative changes, but no evidence of a rotator cuff tear. The objective medical evidence outweighs the Veteran's statements in support of his claim, including the testimony he gave during an April 2006 hearing that his left shoulder is manifested by severe limitation of motion. See Smith v. Derwinski, 1 Vet. App. 235, 237 (1991) (determining the credibility of evidence is a function for the Board); Hayes v. Brown, 5 Vet. App. 60, 69-70 (1993), citing Wood v. Derwinski, 1 Vet. App. 190, 192- 193 (1992) (VA decision makers have the responsibility to assess the credibility of evidence and determine the degree of weight to give the evidence). The objective clinical findings show that this disability does not meet the criteria for a rating greater than 20 percent, even with consideration of the Veteran's complaints of pain. The examination report from April 2010 supports this notion further by revealing that the Veteran's usual daily activities are only mildly affected by the left shoulder disability. These activities include chores, shopping, recreation, traveling bathing dressing and toileting. The Veteran's reported moderate difficulty with exercise and sports is reflective of the overall disability picture which is represented by the 20 percent rating currently assigned. In conclusion, the preponderance of the evidence is against the claim for an initial rating greater than 20 percent for the Veteran's service-connected left shoulder disability. Therefore, the doctrine of reasonable doubt is not for application, and the appeal of this claim must be denied. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 4.3; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). III. Entitlement to an Initial Compensable Disability Rating for the Service-Connected Postoperative Residuals of a Right Inguinal Herniorraphy The Veteran was seen in service for a suspected right inguinal hernia and underwent a herniorraphy in April 2003. The February 2005 rating decision therefore granted service connection for postoperative residuals of a right inguinal herniorraphy, and assigned an initial noncompensable rating from May 17, 2004. The Veteran asserts that a compensable rating is warranted since the initial grant of service connection. Fenderson v. West, 12 Vet. App. at 125-26. An inguinal hernia is usually rated under 38 C.F.R. § 4.114, Diagnostic Code 7338. This code provision provides that a noncompensable rating is warranted when the hernia is small, reducible, or without true hernia protrusion, or when the hernia is not operated upon but is remediable. A 10 percent rating is warranted when the hernia is postoperatively recurrent, readily reducible, and well supported by a truss or belt. A 30 percent rating is warranted when the hernia is small, postoperatively recurrent, or unoperated irremediable, not well supported by a truss, or not readily reducible. 38 C.F.R. § 4.114, Diagnostic Code 7338 (2010). In this case, however, a higher rating is not assignable at any time during the appeal period pursuant to Diagnostic Code 7338 because the Veteran's hernia has not been present since his surgical repair in April 2003. In this regard, VA examinations in January 2005 and April 2010 indicated that a hernia is not present and that the only residual is a surgical scar from the herniorraphy. As such, the disability was properly rated under 38 C.F.R. § 4.118, for the residual scar following the right inguinal herniorraphy. Under the provisions of 38 C.F.R. § 4.118, scars are rated based on varying manifestations. As of October 23, 2008, revised provisions for evaluating scars were enacted. This new regulation, however, indicates that the revised provisions are applicable only to claims received on or after October 23, 2008, or unless the Veteran specifically requests a review under the new regulation. And since the Veteran's claim was filed in 2004, and the Veteran has not specifically requested review under the new regulations, these revisions do not apply to the present case. 73 Fed. Reg. 54708 (Sept. 23. 2008). Rather, the Veteran's claim will be considered solely under the criteria effective as of the date of receipt of the claim. A compensable disability rating is warranted for a scar that is not on the head, face or neck, that is deep or that causes limited motion in an area or areas exceeding 6 square inches (39 square centimeters) (Diagnostic Code 7801); for a superficial scar that does not cause limited motion but which covers an area of 144 square inches (929 sq. cm.) or greater (Diagnostic Code 7802); for an unstable, superficial scar (Diagnostic Code 7803); for a superficial scar that is painful on examination (Diagnostic Code 7804); or for a scar that causes limitation of function of the affected part (Diagnostic Code 7805). 38 C.F.R. § 4.118, Diagnostic Codes 7801, 7802, 7803, 7804, 7805 (prior to October 23, 2008). Applying the above criteria to the facts of this case, there is no basis to assign a compensable disability rating for the Veteran's scar caused by the herniorraphy. The only relevant evidence concerning this scar comes from two VA examination reports dated in January 2005 and April 2010, neither of which show findings consistent with a compensable rating. The January 2005 VA examination report does not appear adequate for rating purposes, as it simply notes that the surgical scar is well healed. However, the April 2010 VA examination report is adequate for rating purposes. This report notes that the scar at issue measures only 8.0 cm x .01 cm, is not tender to palpation, is not adherent to the underlying tissue, has no ulceration or breakdown of the skin, and causes no loss of function or limitation of motion. Thus, since the Veteran's scar is less than 39 square cm., is not painful on examination, and does not cause limitation of function, there is no basis to assign a compensable rating since the initial grant of service connection. See 38 C.F.R. § 4.118, Diagnostic Codes 7801, 7802, 7803, 7804, 7805. The Veteran testified at his April 2006 hearing that the scar is painful and produced a burning sensation. But since a VA examiner has described the Veteran's scar as non-tender, with no objective findings on examination, greater probative value is placed on the examiner's assessment in April 2010 than the Veteran's own statements in support of his claim. See Smith, 1 Vet. App. at 237 (determining the credibility of evidence is a function for the Board); Hayes, 5 Vet. App. at 69-70, citing Wood, 1 Vet. App. at 192- 193 (VA decision makers have the responsibility to assess the credibility of evidence and determine the degree of weight to give the evidence). To some extent, the Veteran's statements at his hearing are inconsistent with his statements at the examination in April 2010, as it is reasonable to presume that the examiner in 2010 would not have described the Veteran's scar as non-tender if the Veteran had reported that it was, in fact, tender. The examiner specifically noted that the scar was not painful and was not inflamed. There was no edema on examination and the examiner specifically indicated that there were no disabling effects. Given the inconsistent reports by the Veteran, the objective findings on examination carry greater weight. Thus, the preponderance of the evidence is against a compensable rating for the Veteran's service-connected postoperative residuals of a right inguinal herniorraphy. Accordingly, the doctrine of reasonable doubt is not for application, and the appeal of this claim must be denied. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 4.3; Gilbert, 1 Vet. App. 49. IV. Consideration of an Extra-Schedular Evaluation The circumstances of this case are not so exceptional or unusual as to render impractical the application of the regular schedular standards and warrant referral of this case to the Director of Compensation and Pension Service or the Under Secretary for Benefits for consideration of an extra-schedular evaluation. 38 C.F.R. § 3.321(b)(1). The rating criteria for the Veteran's left shoulder disability and residual scar for his hernia repair reasonably describe and contemplate the extent and severity of these disabilities, including his specific symptoms. See Thun v. Peake, 22 Vet. App. 111 (2008). The Veteran has not been hospitalized for evaluation or treatment of these disabilities since filing his claim, and the April 2010 VA examination reports note that the Veteran has not missed any days of work during the past year as a result of his service-connected disabilities. There is therefore no obligation to refer these claims for extra-schedular consideration. See Bagwell v. Brown, 9 Vet. App. 337, 339 (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 of entitlement to an initial disability rating greater than 20 percent for the service-connected left shoulder impingement syndrome with degenerative acromioclavicular joint disease is denied. The claim of entitlement to an initial compensable disability rating for the service-connected postoperative residuals of a right inguinal herniorraphy is denied. ____________________________________________ L. B. CRYAN Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs