Citation Nr: 1134087 Decision Date: 09/12/11 Archive Date: 09/22/11 DOCKET NO. 05-19 977 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in North Little Rock, Arkansas THE ISSUE Entitlement to an evaluation in excess of 20 percent for post operative residuals of recurrent dislocations of the left (minor) shoulder. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD Christopher Maynard, Counsel INTRODUCTION The Veteran had active service from May 1972 to May 1975. This matter initially came before the Board of Veterans' Appeals (Board) on appeal from a May 2004 decision by the RO which granted an increased rating to 20 percent for the Veteran's left shoulder disability; effective from December 11, 2003, the date of receipt of his claim for increase. 38 C.F.R. § 3.400(o)(2). The Board remanded the appeal for additional development in November 2008 and 2010. FINDING OF FACT The Veteran's left shoulder disability is manifested principally by pain and occasional morning stiffness without instability, weakness, neurological impairment or more than mild limitation of motion, (motion to shoulder level was possible), and no demonstrable functional impairment due to pain, incoordination, fatigability, on repetitive use or during flare-ups. CONCLUSION OF LAW The schedular criteria for an evaluation in excess of 20 percent for post operative residuals of recurrent dislocations of the left shoulder have not been met. 38 U.S.C.A. §§ 1155, 5103A, 5107 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.159, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Part 4, including Diagnostic Code 5203 (2010). REASONS AND BASES FOR FINDING AND CONCLUSION Before addressing the merits of the Veteran's claim, the Board is required to ensure that the VA's "duty to notify" and "duty to assist" obligations have been satisfied. See 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159 (2010). Under the Veterans Claims Assistance Act (VCAA), when VA receives a complete or substantially complete application for benefits, it must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide. 38 C.F.R. § 3.159. Such notice must indicate that a disability rating and an effective date for the award of benefits will be assigned if there is a favorable disposition of the claim. Id; 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.159, 3.326; see also Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II). The notification obligation in this case was accomplished by way of letters from the RO to the Veteran dated in February 2005 and January 2011. Although the notification earlier letter did not comply fully with the holding in Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008), concerning an increased rating claim, this matter was addressed in the November 2008 and 2010 Board remands and a letter mailed to the Veteran in January 2011. The claim was readjudicated, and a supplement statement of the case (SSOC) was promulgated in July 2010. Thus, the Board finds that the notification requirements of the VCAA have been satisfied. See Quartuccio v. Principi, 16 Vet. App. 183 (2002); Pelegrini v. Principi, 18 Vet. App. 112 (2004); Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F. 3d 1328 (Fed. Cir. 2006). As to VA's duty to assist, the Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). The Veteran's service treatment records and all VA and private medical records have been obtained and associated with the claims file. Additionally, the Veteran was examined by VA twice during the pendency of this appeal and was afforded an opportunity for a personal hearing, but declined. Further, neither the Veteran nor his representative have made the RO or the Board aware of any additional evidence that needs to be obtained in order to fairly decide this appeal, and have not argued that any error or deficiency in the accomplishment of the duty to notify and duty to assist has prejudiced him in the adjudication of his appeal. See Shinseki v. Sanders, 129 S.Ct.1696 (2009). Based on a review of the claims file, the Board finds that there is no indication in the record that any additional evidence relevant to the issue to be decided herein is available but not yet part of the claims file. See Mayfield v. Nicholson, 499 F.3d 1317 (Fed. Cir. 2007) [hereinafter Mayfield III]. Accordingly, the Board finds that duty to notify and duty to assist have been satisfied and will proceed to the merits of the Veteran's appeal. Increased Ratings - In General In general, when an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, staged ratings are also appropriate in any increased-rating claim in which distinct time periods with different ratable symptoms can be identified. Hart v. Mansfield, 21 Vet. App. 505 (2007). Disability evaluations are determined by the application of a schedule of ratings, which is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C.A. § 1155; 38 C.F.R., Part 4. The percentage ratings in VA's Schedule for Rating Disabilities (Schedule) represent as far as can practicably be determined the average impairment in earning capacity resulting from such disabilities and their residual conditions in civil occupations. 38 C.F.R. § 4.1 (2010). Disability of the musculoskeletal system is primarily the inability, due to damage or infection in the 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 on 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 enervation, or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and a part which becomes painful on use must be regarded as seriously disabled. 38 C.F.R. §§ 4.10, 4.40, 4.45. Factual Background & Analysis Historically, the Veteran's claim for an increased rating for his service-connected left shoulder disability was received in December 2003. Thereafter, the Veteran was examined by VA in March 2004, to determine the extent and severity of his left shoulder disability. On examination, flexion was from zero to 164 degrees actively, and to 166 degrees passively. Adduction was to 68 degrees actively, and to 72 degrees passively. Abduction was to 163 degrees actively, and to 180 degrees passively. Internal rotation was to 82 degrees actively and to 85 degrees passively. External rotation was to 90 degrees actively and passively. Sensation was intact and strength was 4+ to 5+/5+ in the left upper extremity. By rating action in May 2004, the RO assigned an increased rating to 20 percent for the left shoulder disability; effective from December 11, 2003, the date of receipt of his claim for increase. 38 C.F.R. § 3.400(o)(2). The Veteran disagreed with the rating assigned, giving rise to the current appeal. In November 2008, the Board remanded the appeal, in part, for another VA examination to determine if the Veteran had additional neurological disability related to the left shoulder disability. Because the Veteran had moved and not provided VA with a change of address, the RO was unable to contact him to schedule an examination and the claims file was returned to the Board. However, the Board remanded the appeal again in November 2010 and directed the RO to obtain the Veteran's current address through the financial institution where his VA compensation funds were deposited, and to reschedule him for another examination. In February 2011, the Veteran was examined by VA to determine the extent and severity of his left shoulder disability. The examiner indicated that the claims file was reviewed and included a detailed description of the Veteran's complaints, medical and vocational history, and the clinical and diagnostic findings on examination. The Veteran reported chronic pain and occasional morning stiffness and swelling in his left shoulder, but denied any history of steroid injections or use of an assistive device. He reported flare-ups of pain on a daily basis and said that he takes over-the-counter medication. He also reported that he broke some ribs when he slipped and fell on his left side at his apartment in 2007, but said he wasn't exactly sure of the date of the accident. (Additional reports of record showed that such an injury occurred in November 2003). The Veteran complained of numbness and tingling in his left hand since the slip and fall incident, and denied any problems from the surgical scar on the left shoulder. The examiner noted that the Veteran had a VA EMG/NCV study in June 2004, which was essentially within normal limits except for left cubital tunnel syndrome. On examination, there was a well-healed, superficial, 13 by 1 cm., surgical scar extending from the lateral aspect of the left clavicle forward to the crevice of the axillary fossa. The scar was not elevated or depressed, painful or tender to palpation, or adherent to the underlying tissue and did not limit motion of the left shoulder. The scar was faintly visible and blended in with the surrounding tissue. Forward flexion of the left shoulder was from zero to 90 degrees, abduction to 100 degrees, external rotation to 75 degrees, and internal rotation was to 80 degrees. The Veteran complained of pain on repetitive motion, but there was no additional limitation of motion, incoordination, weakness, or fatigability. The examiner reported that the Veteran did not always put forth his best effort during the examination and that while he demonstrated 4+/5 motor strength in the left shoulder with some give way to pain, his strength increased to 5/5 when called on his lack of effort. Sensation was intact and deep tendon reflexes were 2+. X-ray studies showed degenerative changes in the AC joint and glenohumeral joint space narrowing with prominent spurring of the clavicle and possible ossification of the clavicular coracoids ligament. The examiner noted that the Veteran failed to report for a scheduled VA EMG/NCV study in March 2011. Addressing the Veteran's left upper extremity problems, the examiner opined that his left cubital tunnel syndrome was not related to, or aggravated by the service-connected left shoulder disability and was due to the slip and fall injury after service. The examiner explained that the Veteran did not manifest any neurovascular problems in his left upper extremity until after the post service slip and fall injury, and that the Veteran reported that his symptoms began after the post-service injury. The evidentiary record also includes numerous VA treatment notes since 2004. Those records showed treatment for various maladies, including left shoulder problems. Importantly, the Veteran's complaints and the clinical and diagnostic findings were not significantly different from those reported on the VA examinations discussed above, such that the findings in the VA examination reports are considered representative of the Veteran's level of impairment. In this case, the Veteran's is assigned the maximum rating for his left shoulder disability under Diagnostic Code (DC) 5203, for impairment of clavicle or scapula, which provides for a 20 percent evaluation for dislocation of the joint, or for nonunion with loose movement. 38 C.F.R. § 4.71a, DC 5203. See Butts v. Brown, 5 Vet. App. 532, 539 (1993) (holding that the Board's choice of diagnostic code should be upheld so long as it is supported by explanation and evidence). Other potentially applicable code provisions include DC 5200 for ankylosis of the scapulohumeral articulation (where the scapula and humerus move as one piece). Under DC 5200, a 40 percent evaluation is assigned for unfavorable ankylosis of the minor extremity with abduction limited to 25 degrees from the side. Under DC 5201, for limitation of arm motion, a 30 percent evaluation is assigned for the minor extremity when there is limitation of motion of the arm to 25 degrees or less from the side; a 20 percent rating is assigned when limitation of motion is midway between side and shoulder level, and likewise with motion at shoulder level. 38 C.F.R. § 4.71a, DCs 5200, 5201. DC 5202 provides for a 20 percent rating for malunion of the minor humerus with moderate or marked deformity, or when there is infrequent dislocation of the scapulohumeral joint and guarding of all arm movements. A 40 percent evaluation is assigned for fibrous union; a 50 percent evaluation is assigned for nonunion (false flail joint), and a 70 percent evaluation is assigned for a minor extremity when there is impairment of the humerus manifested by loss of head (flail shoulder). In determining whether the Veteran has limitation of motion to shoulder level, it is necessary to consider reports of forward flexion and abduction. See Mariano v. Principi, 17 Vet. App. 305, 314-16 (2003); see also 38 C.F.R. § 4.71, Plate I (2010). Forward flexion is the range of motion from the side of the body out in front) and abduction is the range of motion from the side of the body out to the side. Id. Normal range of shoulder motion is forward extension (flexion) from 0 to 180 degrees; shoulder abduction from 0 to 180 degrees; internal rotation from 0 to 90 degrees; and external rotation from 0 to 90 degrees. Lifting the arm to shoulder level is lifting it to 90 degrees. See 38 C.F.R. § 4.71, Plate I (2010). Applying the appropriate diagnostic codes to the facts of this case, the objective assessment of the Veteran's impairment from his left shoulder disability does not suggest that he has sufficient symptoms so as to a warrant an evaluation in excess of 20 percent under any of the applicable rating codes at anytime during the pendency of this appeal. The Veteran was able to raise his left shoulder to at least shoulder level, and there was no evidence of malunion, nonunion or loose motion of the sternoclavicular joint. Thus, a higher evaluation under DCs 5200, 5201 or 5202 is not warranted. Furthermore, the Veteran is not shown to have any additional neurological impairment in the left upper extremity which is due to or aggravated by the service-connected left shoulder disability. Thus, a higher or separate evaluation for the additional symptomatology is not warranted. The Board must also consider whether a higher disability evaluation is warranted on the basis of functional loss due to pain or due to weakness, fatigability, incoordination, or pain on movement of a joint under 38 C.F.R. §§ 4.40 and 4.45. See also DeLuca v. Brown, 8 Vet. App. 202 (1995). In this regard, the Board has considered the Veteran's contentions of daily painful motion. However, the objective findings from the VA examinations and VA outpatient notes did not show limited motion to a degree warranted for a higher evaluation or any instability or weakness in the left shoulder. Moreover, the VA examiners who evaluated the Veteran during the pendency of this appeal opined that there was no additional limitation of motion or functional impairment due to pain, weakness, incoordination on repetitive movement or with flare-ups. The Board recognizes that the Veteran has left shoulder pain during flare-ups. However, "a finding of functional loss due to pain must be supported by adequate pathology and evidenced by the visible behavior of the claimant. 38 C.F.R. § 4.40." Johnston v. Brown, 10 Vet. App. 80, 85 (1997). Here, there was no objective evidence of any additional functional loss of use due to pain or on repetitive use to the degree necessary for the assignment of an evaluation in excess of 20 percent. As there is no objective evidence of any additional functional loss of use due to pain or on flare-ups, the Board finds that 38 C.F.R. §§ 4.40, 4.45, and 4.59 do not provide a basis for a higher evaluation. Applying all of the appropriate diagnostic codes to the facts of this case, an objective assessment of the Veteran's present impairment of the left shoulder disability does not suggest that he has sufficient symptoms so as to warrant an evaluation in excess of 20 percent at any time during the pendency of this appeal. Hart v. Mansfield, 21 Vet. App. 505 (2007); see also Fenderson v. West, 12 Vet. App. 119 (1999). Additionally, the Board has considered whether the case should be referred to the Director of the VA Compensation and Pension Service for extraschedular consideration under 38 C.F.R. § 3.321(b)(1). In this case, the Board finds that the manifestations of the Veteran's left shoulder disability are consistent with the schedular criteria, and there is no objective evidence that any manifestations related to his service-connected disability are unusual or exceptional. In view of this, referral of this case for extraschedular consideration is not in order. See Thun v. Peake, 22 Vet. App. 111 (2008); Floyd v. Brown, 9 Vet. App. 88, 95 (1996); Bagwell v. Brown, 9 Vet. App. 337 (1996); see also Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993) (noting that the disability rating itself is recognition that industrial capabilities are impaired). Finally, the Board notes that, in Rice v. Shinseki, 22 Vet. App. 447 (2009), the Court held that a claim for a total rating based on individual unemployability (TDIU) is part of an increased rating claim when such claim is expressly raised by the Veteran or reasonably raised by the record. The Court further held that when evidence of unemployability is submitted at the same time that the Veteran is appealing the initial rating assigned for a disability, the claim for TDIU will be considered part and parcel of the claim for benefits for the underlying disability. Id. In this case, the Board finds that a claim for a TDIU was not expressly raised by the Veteran or reasonably raised by the record. While the Veteran reported that he had been unemployed since 2007, he acknowledged at the November 2011 VA examination that he lost his job in due to personal reasons. Furthermore, the evidence showed that the Veteran was gainfully employed without any physical restrictions prior to the slip and fall injury (unrelated to the shoulder) in 2003. Based on the evidence of record, the Board finds that further consideration of a TDIU is not warranted. ORDER An increased rating for post operative residuals of recurrent dislocations of the left shoulder, is denied. ____________________________________________ MICHAEL E. KILCOYNE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs