Citation Nr: 1128097 Decision Date: 07/27/11 Archive Date: 08/02/11 DOCKET NO. 04-32 440 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Des Moines, Iowa THE ISSUE Entitlement to a disability rating in excess of 20 percent for left shoulder impingement syndrome with degenerative joint disease (DJD) of the acromioclavicular (A/C) joint, status post acromioplasty. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD Michael Holincheck, Counsel INTRODUCTION The Veteran served on active duty from July 1966 to July 1968. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2007 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Des Moines, Iowa. The Veteran's case was previously before the Board in March 2010. At that time the issue on appeal, as well as the issue of entitlement to service connection for tinnitus, were remanded. The Veteran was granted service connection for tinnitus by way of a rating decision dated in March 2011. Notice of the rating action was provided that same month. Although the one-year period to submit a notice of disagreement with the rating action has not yet expired, there is no indication in the claims folder that the Veteran has expressed any disagreement with the March 2011 action that granted service connection. See Grantham v. Brown, 114 F.3d 1156, 1158-59 (Fed. Cir. 1997) (notice of disagreement (NOD) regarding disability compensation level separate from prior NOD regarding issue of service connection). Consequently, the Board does not have jurisdiction at this time to address any downstream element associated with the now service-connected tinnitus disability. FINDING OF FACT The Veteran's left shoulder impingement syndrome with DJD of the A/C joint, status post acromioplasty, is manifested by pain, stiffness, weakness on motion, limitation of motion, and by x-ray evidence of arthritis. There is no evidence of disability equating to limitation of movement of the arm to 25 degrees to the side, impairment of the humerus or ankylosis of the scapulohumeral articulation at any time during the pendency of the appeal. CONCLUSION OF LAW A rating in excess of 20 percent for left shoulder impingement syndrome with DJD of the A/C joint, status post acromioplasty, is not warranted. 38 U.S.C.A. §§ 1155, 5107 (2002); 38 C.F.R. §§ 4.1, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5003, 5010, 5200, 5201, 5202 (2010). REASONS AND BASES FOR FINDING AND CONCLUSION I. Background The Veteran submitted a claim for benefits, under 38 U.S.C.A. § 1151, related to a fall that was received on July 18, 2005. In his claim, the Veteran said he suffered a fall in 2003 and injured his shoulder. He said he had had surgery and therapy for his shoulder. VA treatment records, for the period from August 2003 to August 2004, show that the Veteran was seen for a number of complaints in August 2003. He related that he had hurt his left shoulder in a VA bus accident. He complained of pain in the shoulder. An entry from January 2004 noted that the Veteran said he was injured when he was riding a VA bus in June 2003. He said the bus stopped short and he fell on his left shoulder between the seats. He said he had experienced pain in the left shoulder since that time. A physical therapy consultation from July 2004 noted that the findings were pain that was 9/10, sleep limited by pain, pain with overhead motion of the shoulder, pain with activities of daily living, and decreased shoulder strength and active range of motion. An orthopedic evaluation from August 2004 noted that he had had a rotator cuff repair of the right shoulder in the past. The Veteran said his symptoms were similar to those he experienced with his right shoulder. The entry also noted that an arthrogram was negative for evidence of a rotator cuff tear in the left shoulder. As noted, the Veteran submitted his claim for benefits in July 2005. Additional VA records were obtained. X-rays of the left shoulder were done in July 2003. The report said the joint spaces were preserved and the bony structures were intact. The final impression was normal left shoulder. The Veteran was seen on several occasions for evaluation of his complaints of pain and for therapy. An orthopedic clinic note from March 2005 shows that the Veteran had a full range of motion of his left shoulder and good strength but had pain with "RSS" and external rotation strength testing. There was also tenderness over the A/C joint, but there was good neurovascular status. An x-ray was said to show DJD of the A/C joint. The assessment was impingement and A/C joint DJD. The plan was for the Veteran to have a distal clavicle excision and subacromial decompression (SAD). The Veteran underwent left arthroscopic surgery involving a distal clavicle resection (DCR) and SAD in March 2005. A post-surgical orthopedic evaluation from April 2005 noted that the Veteran was doing well with minimal pain. He was not taking any medication and was working on his range of motion (ROM). VA records for the period from November 2002 to September 2006 were associated with the claims folder in September 2006. An orthopedic clinic note from April 2005 noted that the Veteran was doing well following his left shoulder surgery. He had forward flexion to 160 degrees, abduction to 90 degrees and external rotation to 40 degrees. He was also seen at that time in regard to right knee injury. The records show the Veteran received treatment for a number of unrelated conditions and complaints but no further treatment regarding his left shoulder. The records also included multiple laboratory test results as well as reports for various studies, including x-rays. A post-operative x-ray of the left shoulder in March 2005 was interpreted to show a resection of 1.5-centimeters of the distal clavicle. The shoulder appearance was otherwise unremarkable. A May 2005 x-ray of the left shoulder noted the same surgical resection. The report also said there was heterotopic ossification of the left distal clavicle. The Veteran was afforded a VA examination in February 2007. The history of his injury of the left shoulder was noted. The examiner cited to several VA outpatient records that documented the Veteran's complaints of pain prior to his surgery in March 2005. The Veteran said that his pain improved after the surgery and that his range of motion and strength had stayed about the same. The Veteran reported he was right handed. The examiner said there was no evidence of giving way, instability, stiffness, weakness, effusion, inflammation, or flare-ups of joint disease. She did say the Veteran reported having pain. The ROM measurements showed active motion of the left shoulder of forward elevation (flexion) to 130 degrees. Pain was said to begin at 115 degrees and end at 130 degrees. Passive range of motion was to 145 degrees. The examiner said there was some loss of ROM on repetitive testing to 120 degrees. The Veteran had active abduction to 105 degrees. He experienced pain at 95 degrees that ended at 105 degrees. He had passive ROM to 110 degrees. The Veteran had a loss of motion with repetitive testing to 95 degrees. As with forward flexion, the major factor responsible for the additional limitation was said to be weakness. An x-ray of the left shoulder was said to show slight DJD changes in the shoulder joint and postoperative changes in the A/C joint. There was no significant change from x-rays done in May 2005. The examiner provided a diagnosis of left shoulder impingement syndrome with DJD of the A/C joint, status post acromioplasty. She noted that the Veteran was not employed. The left shoulder diagnosis was said to have a moderate effect on chores and recreation, a mild effect on exercise, and no effect on shopping, traveling, feeding, bathing, dressing, toileting, or grooming. The examiner provided an addendum to her report in March 2007. The examiner said the Veteran had a pre-existing left shoulder condition that was aggravated as a result of his fall on a VA bus. In March 2007, the AOJ granted the Veteran's claim for benefits for his left shoulder under 38 U.S.C.A. § 1151. The Veteran was given a 20 percent disability rating for a shoulder disability of the minor arm. The effective date for the grant of benefits, and the disability rating, was the date of claim - July 18, 2005. The Veteran submitted his NOD with the 20 percent rating in April 2007. He said the 20 percent rating did not seem that much for the suffering he goes through. He felt he deserved a 30 percent rating or more. The Veteran was issued a statement of the case (SOC) in regard to his left shoulder disability in February 2008. He submitted a written statement in response in February 2009. The AOJ accepted the statement as the Veteran's substantive appeal. In the statement the Veteran said he believed his left shoulder disability should be rated as 30 or 35 percent disabling as it bothered him "24-7." The Veteran had appealed a prior Board decision from September 2007 that had denied service connection for tinnitus. The Veteran had appealed the decision to the United States Court of Appeals for Veterans Claims (Court). The vacated the Board's decision and returned the case for further development in April 2009. Concurrent with the action by the Court, the Veteran's left shoulder disability was before the Board in March 2010. As noted in the Introduction, the Board remanded both issues for further development at that time. Associated with the claims folder are VA treatment records for the period from May 2006 to November 2009. The records document treatment provided to the Veteran for a number of health issues; however, there are no entries related to complaints or problems involving the left shoulder. The Veteran was prescribed pain medication for continued right knee pain but made no mention of "24-7" problems with his left shoulder. An entry from July 2008 noted that the Veteran said he had fallen on his back on some ice in February 2008. He had no complaints relative to his left shoulder as of the July 2008 entry. The Veteran was afforded a VA examination in June 2010. The examiner noted she had conducted a review of the claims folder. She referenced the 2003 entries relating to the Veteran's complaint of left shoulder pain in 2003, his injury in 2003 and subsequent surgery in March 2005. She noted several additional entries as well as the prior VA examination from 2007. The examiner said the remaining VA records contained no further notes regarding the left shoulder. She also cited to the entry from July 2008 that noted the Veteran's prior fall on the ice. The Veteran said his left shoulder hurt when he raised his arm or when sleeping on his left side. He said his shoulder would freeze up. He said the anterior and superior aspect of the shoulder hurt. He said the pain would last for the duration of the activity that was causing the pain. He said the pain was not excruciating, but that it "just hurts." He gave the pain level as 7-8/10 and he would get relief by returning his arm to his side or by adjusting how he was sleeping. He felt his ROM was limited by 40-50 percent. The Veteran said he retired when he was 62 due to his eyesight. The Veteran reported that he did housecleaning, dishes and laundry. He said he had trouble with dressing when reaching backwards. He also said it was sometimes hard to get in and out of the tub while pushing himself. He was not taking any medication for his left shoulder. The examiner noted the Veteran was right hand dominant. The examiner said there was no deformity, giving way, instability, incoordination, subluxation, locking, or effusion of the left shoulder. There was evidence of pain, weakness, decreased speed of joint motion and tenderness. There were no flare-ups. The examiner said that she repeatedly asked the Veteran if there was anything that he wanted to add about his left shoulder. She said the main issue was pain with movement and certain activities, such as when he sleeps on his left side. The Veteran had flexion to 127 degrees and abduction to 110 degrees. The examiner said there was objective evidence of pain with active motion. She also said there was objective evidence of pain with repetitive testing but no additional limitations after three repetitive ROM tests. An x-ray of the left shoulder was said to show a widening of the A/C joint with osteophyte formation compatible with postsurgical resection changes to the distal clavicle. The subacromial space was preserved and the glenohumeral joint appeared within normal limits. The examiner provided a diagnosis of status post clavicle resection with mild degenerative changes. She said there was a moderate effect on chores, and a mild effect on recreation and dressing. However, the Veteran's left shoulder disability had no effect on shopping, exercise, sports, feeding, bathing, toileting, grooming, or driving. II. Analysis Disability ratings are determined by the application of a schedule of ratings, 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 (2010). 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. 38 C.F.R. § 4.7 (2010). The Veteran's claim for a higher evaluation for left shoulder impingement syndrome with DJD of the A/C joint, status post acromioplasty, is an original claim that was placed in appellate status by a NOD expressing disagreement with an initial rating award. As such, separate ratings can be assigned for separate periods of time based on the facts found--a practice known as "staged" ratings. Fenderson v. West, 12 Vet. App. 119 (1999). The Veteran's left shoulder disability, involving his minor arm, has been rated as 20 percent disabling from July 18, 2005, the date of his claim for benefits under 38 U.S.C.A. § 1151. The disability was rated based on Diagnostic Code 5010, traumatic arthritis, and Diagnostic Code 5201, limitation of motion of the arm. See 38 C.F.R. § 4.71a (2010). The Schedule for Rating Disabilities directs that disabilities involving traumatic arthritis are to be evaluated as degenerative arthritis under Diagnostic Code 5003. Diagnostic Code 5003 provides 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. Id. Under Diagnostic Code 5201, a 20 percent disability rating is the minimal schedular rating. It is warranted, for the minor arm, where the motion is limited to the shoulder level. A 20 percent rating is also assigned where the motion is limited to midway between the side and shoulder level. Finally, a 30 percent rating is for consideration where the limitation of motion is limited to 25 degrees from the side. 38 C.F.R. § 4.71A. The Board notes that ranges of motion for the shoulder are provided in 38 C.F.R. § 4.71, Plate I (2010). Normal flexion and abduction is from 0 to 180 degrees. The two VA examinations of record clearly demonstrate that the Veteran has forward flexion and abduction to at least to shoulder level. Even with consideration of any decrease in range of motion from pain on repetitive testing. The objective evidence of record does not establish the Veteran's range of motion being limited to 25 degrees from his side at any time during the pendency of the appeal. In fact, the Veteran does not contend such a limitation. Rather his complaint relates to having pain with raising his arm over his head or laying on it, mostly while sleeping. Nevertheless, there has been no indication that the pain causes disability tantamount to that which occurs when motion is limited to 25 degrees from the side. The VA examiner commented on additional limitation due to pain and nevertheless found that his motion was to at least the shoulder level. The Board has also considered the Veteran for a higher evaluation under Diagnostic Code 5200 for disabilities involving ankylosis of the scapulohumeral articulation. However, there is no evidence of ankylosis in the left shoulder joint to warrant consideration of a disability evaluation under Diagnostic Code 5200. Likewise the Board has considered the Veteran's claim for a higher evaluation under Diagnostic Code 5202 involving impairments of the humerus. Under Diagnostic Code 5202 a 40 percent evaluation is applicable for the minor arm where there is fibrous union of the humerus of the minor arm. A 50 percent evaluation is warranted where there is a nonunion or false flail joint. Finally, a 70 percent evaluation is for consideration where there is loss of head of the humerus (flail joint). 38 C.F.R. § 4.71a. A review of the evidence of record does not reveal an impairment of the humerus joint, and clearly not one where there is a fibrous union, nonunion or false flail joint, or loss of head of the humerus. Thus an increased evaluation is not warranted under Diagnostic Code 5202. When an evaluation of a disability is based on limitation of motion, the Board must also consider, in conjunction with the otherwise applicable diagnostic code, any additional functional loss the Veteran may have sustained by virtue of other factors as described in 38 C.F.R. §§ 4.40 and 4.45, 4.59 (2010). DeLuca v. Brown, 8 Vet. App. 202, 206 (1995). Such factors include more or less movement than normal, weakened movement, excess fatigability, incoordination, pain on movement, swelling, and deformity or atrophy of disuse. In regard to the Veteran's left shoulder the VA treatment records do not provide evidence of increased disability by way of the additional factors. The treatment records demonstrate little to no treatment for the left shoulder subsequent to the surgery of March 2005. The records document significant treatment for other medical conditions but do not record even complaints relating to the left shoulder. At the time of the February 2007 VA examination, the Veteran had a demonstrated loss of motion after repetitive testing. His active flexion went from 130 degrees to 115 degrees. His active abduction was reduced from 105 degrees to 95 degrees. Both measurements still at, or above, shoulder level. The examiner said the main factor for the decrease in motion was weakness. The July 2010 VA examination report, while noting pain, weakness, stiffness and tenderness, did not report a change in range of motion with repetitive testing. The Veteran did have objective evidence of pain on testing. However, his reported flexion and abduction were as good, if not better, than that at the time of the examination in 2007. The Board is aware of the Veteran's subjective complaints of how much his left shoulder bothers him--his "24-7" problems. However, a level of impairment warranting a higher rating is not demonstrated by the objective evidence from the examinations and the complete lack of any mention of a problem in the considerable number of VA treatment records. The objective evidence regarding pain, weakness, stiffness and tenderness as well as the Veteran's subjective complaints of pain are contemplated in his current rating. The range of motion is not such as to warrant the next higher rating. There is no basis to grant a higher rating based on DeLuca or 38 C.F.R. §§ 4.40, 4.45, 4.59. Upon review of all of the evidence of record, the Board finds that the evidence does not support a rating in excess of 20 percent at any time during the pendency of the appeal. The Veteran's claim for a higher initial rating is denied. The Board has considered the doctrine of reasonable doubt, but finds that the record does not provide an approximate balance of negative and positive evidence on the merits. The Board is unable to identify a reasonable basis for granting a higher rating. Gilbert v. Derwinski, 1 Vet. App. 49, 57-58 (1990); 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 3.102 (2010). The Board has also considered whether the Veteran's left shoulder disability is so exceptional as to require consideration of an extraschedular rating. In Thun v. Peake, the Court held that determining whether a claimant is entitled to an extraschedular rating is a three-step inquiry. 22 Vet. App. 111, 115 (2008), aff'd, 572 F.3d 1366 (Fed. Cir. 2009). The first step is to determine whether the "evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that . . . disability are inadequate." Id. If the adjudicator determines that this is so, the second step of the inquiry requires the adjudicator to "determine whether the claimant's exceptional disability picture exhibits other related factors," such as marked interference with employment or frequent periods of hospitalization. Id. at 116. Finally, if the first two steps of the inquiry have been satisfied, the third step requires the adjudicator to refer the claim to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for a determination of whether an extraschedular rating is warranted. Id. In this case, the schedular criteria are adequate to address the Veteran's level of disability for his left shoulder disability. He has mild DJD following his resection of March 2005. His left arm motion is at least to his shoulder level, even with consideration of limitations from repetitive testing. His 20 percent disability rating is recognition of the impairment of his disability. Indeed, even if his disability equated to motion limited to midway between his side and shoulder, he would still warrant only a 20 percent rating. The rating criteria are adequate to evaluate this Veteran's left shoulder disability. The Veterans Claims Assistance Act of 2000 (VCAA), codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp 2011)), and the pertinent implementing regulation, codified at 38 C.F.R. § 3.159 (2010), provides that VA will assist a claimant in obtaining evidence necessary to substantiate a claim. They also require VA to notify the claimant and the claimant's representative, if any, of any information, and any medical or lay evidence, not previously provided to the Secretary that is necessary to substantiate the claim. As part of the notice, VA is to specifically inform the claimant and the claimant's representative, if any, of which portion, if any, of the evidence is to be provided by the claimant and which part, if any, VA will attempt to obtain on behalf of the claimant. (The Board notes that 38 C.F.R. § 3.159 was revised, effective May 30, 2008. See 73 Fed. Reg. 23353-56 (Apr. 30, 2008). The amendments apply to applications for benefits pending before VA on, or filed after, May 30, 2008. The amendments, among other things, removed the notice provision requiring VA to request the veteran to provide any evidence in the veteran's possession that pertains to the claim. See 38 C.F.R. § 3.159(b)(1).) The Court issued a decision in March 2006 in the case of Dingess v. Nicholson, 19 Vet. App. 473 (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 claim. Those five elements include, among other things, degree of disability and effective date of the disability. The Veteran was provided such notice in March 2006. VA's General Counsel has held that VCAA notice is not required for downstream issues. VAOPGCPREC 8-2003. In addition, the Board notes that the Court held that "the statutory scheme contemplates that once a decision awarding service connection, a disability rating, and an effective date has been made, § 5103(a) notice has served its purpose, and its application is no longer required because the claim has already been substantiated." Dingess, 19 Vet. App. at 490. In this case, the Veteran's claim for benefits under 38 U.S.C.A. § 1151 for a left shoulder disability was granted and an effective date and disability rating was assigned in the rating decision on appeal. As such, no additional notice is required because the purpose that the notice is intended to serve has been fulfilled. See Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). The Board also finds that VA has adequately fulfilled its obligation to assist the Veteran in obtaining the evidence necessary to substantiate his claim. All available evidence pertaining to the Veteran's claim has been obtained. The evidence includes his claims folder, which includes VA examination reports, private records (unrelated to the issue on appeal), and VA treatment records as well as statements from the Veteran. The Veteran identified no additional source of evidence in his current claim. He elected to not have a hearing in his case. As noted, the Veteran was afforded VA examinations. The examinations were adequate upon which to base a determination as they fully address the rating criteria as well as the impact of the left shoulder disability on the Veteran's daily life. His employment is not at issue as he is retired prior to his claim, has not alleged that his left shoulder disability impacts his ability to work or gain employment, and a claim for unemployability is not raised by the record. See 38 C.F.R. § 3.326 (2010), Barr v. Nicholson, 21 Vet. App. 303, 311 (affirming that a medical opinion is adequate if it provides sufficient detail so that the Board can perform a fully informed evaluation of the claim); Rice v. Shinseki, 22 Vet. App. 447, 452-53 (2009). The Board finds that VA has complied, to the extent required, with the duty-to-assist requirements found at 38 U.S.C.A. § 5103A and 38 C.F.R. § 3.159(c)-(e). ORDER Entitlement to a disability rating in excess of 20 percent for left shoulder impingement syndrome with DJD of the acromioclavicular A/C joint, status post acromioplasty, is denied. _________________________________ MARK F. HALSEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs