Citation Nr: 1126595 Decision Date: 07/15/11 Archive Date: 07/21/11 DOCKET NO. 07-38 526 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUE Entitlement to an initial evaluation in excess of 10 percent for tendonosis and tendonitis of the left shoulder, status-post multiple left shoulder surgeries. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD E. Pomeranz, Counsel INTRODUCTION The Veteran had active service from June 1999 to June 2006. This matter comes before the Board of Veterans' Appeals (Board) on appeal of October 2006 and May 2007 rating actions by the Department of Veterans Affairs (VA) Regional Office (RO) located in New York, New York. In the October 2006 rating action, the RO granted service connection for status-post multiple surgeries of the left shoulder and assigned a noncompensable disability rating, effective from June 3, 2006. In the May 2007 rating action, the RO increased the disability rating for the service-connected left shoulder disability to 10 percent, effective from June 3, 2006. The Veteran disagreed with the 10 percent rating assigned to his service-connected left shoulder disability in May 2007. See Fenderson v. West, 12 Vet. App. 119 (1999) (when a veteran appeals the initial rating for a disability, VA must consider the propriety of a "staged" rating based on changes in the degree of severity of it since the effective date of service connection). He perfected a timely appeal on this claim in November 2007. The Veteran currently resides within the jurisdiction of the Houston, Texas VARO. FINDING OF FACT The Veteran's left shoulder (nondominant) disability is manifested by pain and decreased range of motion but such limitation is not to the shoulder level. CONCLUSION OF LAW The criteria for an initial rating in excess of 10 percent for tendonosis and tendonitis of the left shoulder, status-post multiple left shoulder surgeries, have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2010); 38 C.F.R. §§4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5024, 5201, 5203 (2010). REASONS AND BASES FOR FINDING AND CONCLUSION I. Veterans Claims Assistance Act of 2000 (VCAA) The enactment of the VCAA, codified at 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107 (West 2002), significantly changed the law prior to the pendency of this claim. VA has issued final regulations to implement these statutory changes. See 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2010). The VCAA provisions include an enhanced duty to notify a claimant as to the information and evidence necessary to substantiate a claim for VA benefits, and they redefine the obligations of VA with respect to the duty to assist the veteran with the claim. In the instant case, the Board finds that VA fulfilled its duties to the Veteran under the VCAA. Duty to Notify VA has a duty to notify the veteran of any information and evidence needed to substantiate and complete a claim. 38 U.S.C.A. §§ 5102, 5103. The Board concludes that the August 2006 letter sent to the Veteran by the RO adequately apprised him of the information and evidence needed to substantiate the claim. The RO thus complied with VCAA's notification requirements. In order to meet the requirements of 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b), VCAA notice must: (1) inform the claimant about the information and evidence 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. Beverly v. Nicholson, 19 Vet. App. 394, 403 (2005) (outlining VCAA notice requirements). Additionally, during the pendency of this appeal, on March 3, 2006, the Court of Appeals for Veterans' Claims (Court) issued a decision in Dingess v. Nicholson, 19 Vet. App. 473, 484, 486 (2006), which held that the VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim. Those five elements include: (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. The Court held that upon receipt of an application for a service-connection claim, 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) require VA to review the information and the evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating or is necessary to substantiate the elements of the claim as reasonably contemplated by the application. Id. at 486. This notice must also inform the veteran that a disability rating and an effective date for the award of benefits will be assigned if service connection is granted. Id. The Board finds that VA has met these duties with regard to the claim adjudicated on the merits in this decision. There is no issue as to providing an appropriate application form or completeness of the application. Written notice provided in August 2006 fulfills the provisions of 38 U.S.C.A. § 5103(a). That is, the Veteran received notice of the evidence needed to substantiate his claim, the avenues by which he might obtain such evidence, and the allocation of responsibilities between himself and VA in obtaining such evidence. See Beverly, 19 Vet. App. at 394, 403; see also Mayfield v. Nicholson, 19 Vet. App. 103, 109-12 (2005) (Mayfield I) rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006). In addition, the August 2006 letter also informed the Veteran about how VA determines effective dates and disability ratings, as required by Dingess. The Board also recognizes that, according to Pelegrini v. Principi, 18 Vet. App. 112, 119-20 (2004), proper VCAA notice must "precede an initial unfavorable [agency of original jurisdiction (AOJ)] decision on a service-connection claim." VA did provide such notice to the Veteran prior to the October 2006 and May 2007 RO decisions that are the subject of this appeal in its August 2006 letter. With respect to the Dingess requirements, the Veteran was provided with notice of what type of information and evidence was needed to substantiate the claim, as well as the type of evidence necessary to establish a rating or effective date of an award (see letter from RO, dated in August 2006), and such notice was provided prior to the initial decision of the RO. See Dingess, supra. Accordingly, the RO provided proper VCAA notice at the required time. During the pendency of this appeal, the Court issued a decision in Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008), which pertains to a greater degree of specificity with respect to notice of the criteria necessary for an increased rating. This decision, however, was subsequently vacated by the United States Court of Appeals for the Federal Circuit (Federal Circuit). See Vazquez-Flores v. Shinseki, 580 F.3d 1270 (2009). Also, since the claim on appeal is a downstream issue from that of service connection, Vazquez notice was never required. See VAOPGCPREC 8- 2003 (Dec. 22, 2003). The Board finds that the August 2006 letter substantially satisfies the current notification requirements for the claim on appeal. As the Veteran has not indicated any prejudice caused by a content error and no such error is apparent, the Board finds no basis for finding prejudice against the Veteran's appeal of the issue adjudicated in this decision. See Shinseki v. Sanders, 129, S. Ct. 1696 (2009) regarding the rule of prejudicial error. The Veteran has been provided the opportunity to respond to VA correspondence and over the course of the appeal has had multiple opportunities to submit and identify evidence. Furthermore, he has been provided a meaningful opportunity to participate effectively in the processing of his claim by VA. Duty to Assist VA also has a duty to assist the veteran in obtaining evidence necessary to substantiate the claim. 38 U.S.C.A. § 5103A(a) ("The Secretary shall make reasonable efforts to assist a claimant in obtaining evidence necessary to substantiate the . . . claim"). This duty includes assisting the veteran in obtaining records and providing medical examinations or obtaining medical opinions when such are necessary to make a decision on the claim. 38 U.S.C.A. § 5103A(b), (c), (d) (setting forth Secretary's various duties to claimant). VA informed the Veteran of its duty to assist in obtaining records and supportive evidence, and the Veteran in fact did receive VA examinations January 2007 and May 2009, which were thorough in nature and adequate for the purposes of deciding this claim. The Board finds that the medical evidence of record is sufficient to resolve the appeal for a rating in excess of 10 percent for a left shoulder disability. Specifically, the January 2007 and May 2009 VA examinations have provided findings that are adequate for rating the Veteran's left shoulder disability. Thus, VA has no further duty to provide another rating examination for the left shoulder disability. 38 C.F.R. §§ 3.326, 3.327. Based on the foregoing, it is the Board's determination that the VA fulfilled its VCAA duties to notify and to assist the Veteran, and thus, no additional assistance or notification was required. The Veteran has suffered no prejudice that would warrant a remand, and his procedural rights have not been abridged. See Bernard v. Brown, 4 Vet. App. 384 (1993). II. Factual Background In July 2006, the Veteran filed his initial claim of entitlement to service connection for a left shoulder disability. In an October 2006 rating action, the RO granted service connection for status-post multiple surgeries of the left shoulder. At that time, the RO noted that a review of the Veteran's service treatment records showed that he underwent surgery for chronic left shoulder pain. The RO assigned a noncompensable disability rating under Diagnostic Code 5203, effective from June 3, 2006, for the Veteran's service-connected left shoulder disability. In January 2007, the Veteran underwent a VA examination. At that time, the examiner stated that he had reviewed the Veteran's claims file. The examiner indicated that the Veteran had a history of multiple surgeries on his left shoulder. Specifically, the Veteran underwent left shoulder Bankart repair/reconstruction in 1996, arthroscopy surgery in 1998, and Bankart lesion revision/reconstruction in 2003. The Veteran noted that at present, he had chronic pain in his left shoulder. He reported that he had approximately 12 flare-ups per month which lasted one to two days. The Veteran stated that during flare-ups, he was unable to sleep, had difficulty exercising, and would depend on his right side for usual activities. He indicated that he went to physical therapy and used pain medication. The Veteran denied episodes of dislocation or subluxation. The physical examination showed that there was no effusion. In regard to range of motion, flexion was to 160 degrees; abduction was to 130 degrees; external rotation was to 60 degrees; and internal rotation was to 60 degrees. In response to the question of whether there was loss of a bone or part of a bone, the examiner responded "yes" and noted "scapulae, moderate." The examiner reported that there was no inflammatory arthritis or joint ankylosis. There was tenderness and painful movement of the left shoulder. The examiner noted that in March 2005, the Veteran had a magnetic resonance imaging (MRI) of his left shoulder which was interpreted as showing the following: (1) mild supraspinatus tendinosis with no tear, (2) thickening of the axillary pouch, (3) possible partial tear of the subscapularis tendon, (5) mild synovitis, (6) old coracoclavicular ligament injury, and (7) mild impingement. Following the physical examination and a review of the Veteran's MRI, the examiner diagnosed the Veteran with left shoulder tendonosis and tendonitis. The examiner noted that the Veteran's left shoulder disability had significant effects on his occupational activities because it caused decreased mobility, difficulty reaching, and pain. The resulting work problem was increased tardiness and absenteeism. The Veteran's left shoulder disability had mild impact on chores, shopping, exercise, recreation, and traveling, and moderate impact on sports. In a May 2007 rating action, the RO increased the disability rating for the Veteran's service-connected left shoulder disability from noncompensable to 10 percent disabling under Diagnostic Code 5024-5203, effective from June 3, 2006. In the Veteran's notice of disagreement, received in May 2007, he stated that due to his left shoulder disability, he had to change careers. He indicated that he originally wanted to have a career flying in the Air Force but that due to his left shoulder disability, he could no longer fly. Thus, he noted that his career plans were drastically altered. With respect to his post-service career, he reported that he could not pursue certain jobs due to his physical restrictions. In May 2009, the Veteran underwent a VA examination. At that time, the examiner stated that he had reviewed the Veteran's claims file. The examiner indicated that according to the Veteran, he had pain in the posterior shoulder with occasional flare-ups due to increased activities, overhead motion, and use of the upper extremity. The Veteran had mild functional impairment due to the flare-ups. According to the Veteran, he did physical therapy exercises at home and he did not take any medications. He stated that he was right-handed. The Veteran denied any left shoulder giving way, weakness, incoordination, or instability. He stated that he was a business owner and worked in the oil field. According to the Veteran, he had not lost any time from work during the previous 12 months. The physical examination showed that there were no symptoms of arthritis and that there were no recurrent shoulder dislocations. There was crepitus and tenderness of the left shoulder. In regard to range of motion of the left shoulder, flexion was to 150 degrees; abduction was to 130 degrees; internal rotation was to 60 degrees; and external rotation was to 60 degrees. There was objective evidence of pain following repetitive motion but there were no additional limitations after three repetitions of range of motion. There was no joint ankylosis. X-rays of the left shoulder were reported to show no evidence of fracture or dislocation. There were minute erosions in the articular surface of the acromion. Following the physical examination and a review of the x-rays, the examiner diagnosed the Veteran with left shoulder instability, with impingement and tendonitis, status post multiple surgeries with moderate residuals. The examiner noted that the Veteran's left shoulder disability had significant effects on his usual occupation including decreased mobility, problems with lifting and carrying, and difficulty reaching. Due to the Veteran's left shoulder disability, he was assigned different duties. The Veteran's left shoulder disability had mild impact on recreation and traveling; moderate impact on chores; severe impact on exercise; prevented sports; and had no impact on shopping, feeding, bathing, dressing, toileting, and grooming. III. Analysis Disability ratings are determined by the application of VA's Schedule for Rating Disabilities (Rating Schedule) codified in 38 C.F.R. Part 4 (2010), which is based on the average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C.A. § 1155; 38 C.F.R. § Part 4. Pertinent regulations do not require that all cases show all findings specified by the Rating Schedule, but that findings sufficient 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 (2010). Regulations require that where there is a question as to which of two evaluations is to 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. 38 C.F.R. § 4.7 (2010). As the Veteran took issue with the initial rating assigned following the grant of service connection, separate ratings may be assigned for separate periods of time based on the facts found--a practice known as "staged" ratings. See Fenderson, 12 Vet. App. at 126. Thus, the Board must evaluate the relevant evidence since June 3, 2006. In evaluating upper extremity disability, it is often necessary to distinguish the predominant or major upper extremity from the minor upper extremity, as such a distinction may affect the criteria for a particular level of impairment. 38 C.F.R. § 4.69. In this case, the record reveals that the Veteran is right-handed. Degenerative or traumatic arthritis established by X-ray findings will be rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joints or joint involved. When there is arthritis and at least some limitation of motion, but the limitation of motion would be rated noncompensable under a limitation of motion code, a 10 percent rating may be assigned for each affected major joint. 38 C.F.R. § 4.71a, Diagnostic Codes 5003 and 5010. Tenosynovitis is rated based upon limitation of motion of the affected joint, as arthritis, degenerative. 38 C.F.R § 4.71a, Diagnostic Code 5024. Disabilities of the shoulder and arm are rated under Diagnostic Codes 5200 through 5203. Normal ranges of upper extremity motion are defined by VA regulation as follows: forward elevation (flexion) from zero to 180 degrees; abduction from zero to 180 degrees; and internal and external rotation to 90 degrees. Lifting the arm to shoulder level is lifting it to 90 degrees. See 38 C.F.R. § 4.71, Plate I. Diagnostic Code 5201 provides that limitation of motion of the minor arm at shoulder level warrants a 20 percent disability rating. Limitation of motion of the minor arm midway between the side and shoulder level warrants a 20 percent disability rating. Limitation of motion of the minor arm to 25 degrees from the side warrants a maximum 30 percent rating. 38 C.F.R. § 4.71a, Diagnostic Code 5201. The Court has considered the question of functional loss as it relates to the adequacy of assigned disability ratings. See DeLuca v. Brown, 8 Vet. App. 202 (1995). In DeLuca, the Court held that it is not enough for an examiner to state a range of motion. Rather, 38 C.F.R. § 4.40 requires consideration of factors such as lack of normal endurance, function loss due to pain, and pain on use, including pain during flare-ups. The Court also held that 38 C.F.R. § 4.45 required consideration of weakened movement, excess fatigability, and incoordination. Moreover, the Court stated that there must be a full description of the effects of the disability on the veteran's ordinary activity. 38 C.F.R. § 4.10. The Veteran maintains that his current rating is not high enough in light of the disability that his left shoulder problem causes. He indicates that he has chronic pain in his left shoulder with limited range of motion. In this regard, lay statements are considered to be competent evidence when describing symptoms of a disease or disability or an event. Symptoms, however, must be viewed in conjunction with the objective medical evidence of record. Espiritu v. Derwinski, 2 Vet. App. 492 (1992). In this case, there is a preponderance of evidence against the Veteran's claim for an initial rating in excess of 10 percent for service-connected tendonosis and tendonitis of the left shoulder, status-post multiple left shoulder surgeries. In this regard, the Board notes that a higher evaluation under Diagnostic Code 5201 requires limitation of motion of the arm to the shoulder level, to midway between the side and shoulder level, or to 25 degrees from the side. The record contains no evidence of any such limitation of motion. Thus, the Veteran is not entitled to a higher initial rating under Diagnostic Code 5201. The Board has considered 38 C.F.R. §§ 4.40, 4.45, 4.59 and DeLuca. There is, however, a preponderance of evidence against a finding that the Veteran has any additional limitation of motion of the left shoulder or arm due to pain or flare-ups of pain, supported by objective findings, to a degree that would support a rating in excess of 10 percent (i.e., limitation of motion of the arm that more nearly approximates 90 degrees or the arm motion limited to the shoulder level), nor is there medical evidence of fatigability, weakness, or incoordination that results in such additional limitation of motion of the left arm. In this regard, in the Veteran's January 2007 VA examination, although there was painful movement of the left shoulder, nevertheless, flexion was to 160 degrees and abduction was to 130 degrees. In addition, in the May 2009 VA examination, flexion was to 150 degrees and abduction was to 130 degrees. Moreover, although there was pain following repetitive motion, there were no additional limitations after three repetitions of range of motion. Thus, even when pain and other symptoms are accounted for there is no indication of functional limitation of the left arm at shoulder level. See 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca. The Board notes that although x-rays of the Veteran's left shoulder have been negative for degenerative changes, in the January 2007 and May 2009 VA examinations, the Veteran was diagnosed with tendonitis. In this regard, the Veteran has already been assigned a compensable rating under a limitation of motion code, Diagnostic Code 5201. See 38 C.F.R. § 4.71a, Diagnostic Code 5024. In addition, as explained above, the Veteran is not entitled to a higher initial rating under Diagnostic Code 5201. The Board has considered whether other Diagnostic Codes might allow for a higher disability rating. The only other Diagnostic Codes available for rating the shoulder and arm are Diagnostic Codes 5200 through 5203. Any evaluation under Diagnostic Code 5200 requires ankylosis of the scapulohumeral articulation, which was not shown by the evidence of record. A rating under Diagnostic Code 5202 is not warranted because it relates to disabilities of the humerus, which are not shown in the evidence of record. Under Diagnostic Code 5203, the next higher rating, 20 percent, requires either nonunion of the clavicle or scapula with loose movement, or dislocation of the clavicle or scapula. Service connection is not in effect for such bony abnormalities and, in any event, neither of these is shown by the evidence of record. In the May 2009 VA examination, the examiner noted that x- rays of the Veteran's left shoulder showed no evidence of fracture or dislocation. In light of the above, the Board finds that overall, impairment of the left shoulder more nearly approximates the current rating of 10 percent evaluation pursuant to the cited rating criteria. A staged rating in excess of 10 percent is not warranted at any point since the date of the grant of service connection. See Fenderson, 12 Vet. App. at 119. As the preponderance of the evidence is against this claim, the benefit-of-the-doubt doctrine does not apply, and the claim for an initial rating in excess of 10 percent for tendonosis and tendonitis of the left shoulder, status-post multiple left shoulder surgeries, must be denied. 38 U.S.C.A. § 5107(b); Ortiz v. Principi, 274 F.3d 1361, 1364, 1365 (Fed. Cir. 2001) (holding that "the benefit of the doubt rule is inapplicable when the preponderance of the evidence is found to be against the claimant"); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). IV. Extraschedular Rating Under 38 C.F.R § 3.321(b)(1), in exceptional cases where schedular evaluations are found to be inadequate, consideration of an extra-schedular evaluation commensurate with the average earning capacity impairment due exclusively to the service-connected disability or disabilities may be made. The governing norm in an exceptional case is a finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical the application of the regular schedular standards. See 38 C.F.R § 3.321(b)(1) (2010). Here, the rating criteria reasonably describe the Veteran's symptoms and provide 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). As discussed above, the schedular criteria for a higher rating have not been shown. The record does not reflect that the Veteran has required any hospitalizations for his left shoulder disability and the record reflects that the Veteran is employed. There is no indication in the record that the left shoulder disability markedly interferes with his employment or daily activities, beyond what is contemplated in the rating schedule. In this regard, the Board recognizes that due to the Veteran's left shoulder disability, he had to change careers and can no longer work as a pilot. The Board also recognizes that the examiners from the January 2007 and May 2009 VA examinations reported that the Veteran's left shoulder disability had significant effects on his usual occupation including decreased mobility, problems with lifting and carrying, and difficulty reaching. Neither examiner, however, stated that the Veteran's left shoulder disability prevented him from obtaining and/or maintaining employment. Moreover, although the examiner in the January 2007 VA examination noted that the Veteran's work problems included absenteeism, the Board observes that in the May 2009 VA examination, the examiner noted that the Veteran was currently working and that he had not lost any time from work during the last 12 months. In sum, there is no indication in the record that the average industrial impairment from this disability would be in excess of that contemplated by the 10 percent rating; it is not impractical to apply the regular schedular standards. For these reasons, a referral for an extra-schedular rating is not warranted. ORDER Entitlement to an initial evaluation in excess of 10 percent for tendonosis and tendonitis of the left shoulder, status-post multiple left shoulder surgeries, is denied. ____________________________________________ James L. March Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs