Citation Nr: 1128969 Decision Date: 08/05/11 Archive Date: 08/11/11 DOCKET NO. 06-34 351 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Lincoln, Nebraska THE ISSUE Entitlement to an initial evaluation in excess of 20 percent for right shoulder strain. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Christopher Murray, Associate Counsel INTRODUCTION The Veteran had active military service from September 1999 to February 2000 and from January 2004 to April 2005. This case comes before the Board of Veterans' Appeals (Board) on appeal of a September 2005 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Lincoln, Nebraska. The Veteran testified before a VA Decision Review Officer (DRO) at an April 2007 hearing conducted at the RO. A transcript of the hearing is of record. This case was brought before the Board in November 2010, at which time the claim was remanded to allow the Agency of Original Jurisdiction (AOJ) to further assist the Veteran in the development of his claim, to include providing the Veteran with a VA examination. The requested development having been completed, the case is once again before the Board for appellate consideration of the issue on appeal. FINDING OF FACT The Veteran's service-connected right shoulder strain is manifested by no more than subjective complaints of weakness, stiffness and painful motion and objective evidence of motion limited to no less than 80 degrees. There is no evidence of ankylosis or recurrent dislocation of the scapulohumeral joint. CONCLUSION OF LAW The criteria for an initial evaluation in excess of 20 percent for right shoulder strain have not been met. 38 C.F.R. § 1155 (West 2002); 38 C.F.R. § 4.71a, Diagnostic Codes 5201 and 5203 (2010). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Notify and Assist Under the Veterans Claims Assistance Act (VCAA), when VA receives a complete or substantially complete application for benefits, it must (1) notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, (2) which information and evidence VA will obtain, (3) and which information and evidence the claimant is expected to provide. 38 U.S.C.A. § 5103(a) (West 2002). See also Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II). In the instant case, the Veteran received notification prior to the initial unfavorable agency decision in September 2005. The RO's June 2005 and September 2006 notice letters advised the Veteran what information and evidence was needed to substantiate the claim decided herein and what information and evidence must be submitted by him, namely, any additional evidence and argument concerning the claimed condition and enough information for the RO to request records from the sources identified by the veteran. He was specifically told that it was his responsibility to support the claim with appropriate evidence. Finally the letters advised him what information and evidence would be obtained by VA, namely, records like medical records, employment records, and records from other Federal agencies. The duty to notify the veteran was satisfied under the circumstances of this case. 38 U.S.C.A. § 5103. During the pendency of this appeal, on March 3, 2006, the Court issued a decision in Dingess v. Nicholson, 19 Vet. App. 473, 484 (2006), which held that the VCAA notice must include notice that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. The September 2006 VCAA letter provided such notice. In light of the above, the Board finds that all notices required by VCAA and implementing regulations were furnished to the veteran and that no useful purpose would be served by delaying appellate review to send out additional VCAA notice letters. VA must also make reasonable efforts to assist the appellant in obtaining evidence necessary to substantiate the claim for the benefit sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claims. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159 (2010). Service treatment records have been associated with the claims file. Post-service VA treatment records and reports have also been obtained. The Veteran has not identified any additional records that should be obtained prior to a Board decision. Therefore, VA's duty to assist the Veteran in obtaining records has been satisfied. The Veteran was afforded VA examinations in June 2005, August 2006 and December 2010. See 38 U.S.C.A. § 5103A(d); see also 38 C.F.R. § 3.159 (c)(4) (2010); Wells v. Principi, 327 F. 3d 1339, 1341 (Fed. Cir. 2002). These examinations are adequate for the purposes of rating the Veteran's service-connected right shoulder disability, as they involved a review of the Veteran's pertinent medical history and physical examination and provide a description of the symptomatology associated with the Veteran's service-connected right shoulder disability. See generally Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). Finally, as noted above, the instant claim was previously remanded by the Board in November 2010 for additional development. Specifically, the Board determined that the Veteran should be provided a VA examination to determine the severity of his service-connected disability. As noted above, the Veteran was provided a VA examination in December 2010, which the Board has found to be adequate. As such, there has been substantial compliance with the November 2010 remand, and adjudication of the instant issue may proceed. See Stegall v. West, 11 Vet. App. 268, 271 (1998). In light of the foregoing, the Board is satisfied that all relevant facts have been adequately developed to the extent possible; no further assistance to the appellant in developing the facts pertinent to the issue on appeal is required to comply with the duty to assist. 38 U.S.C.A. §§ 5103 and 5103A; 38 C.F.R. § 3.159. Analysis Disability evaluations are determined by comparing a Veteran's present symptomatology with criteria set forth in the VA's Schedule for Rating Disabilities (Rating Schedule), which is based on average impairment in earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. When a question arises as to which of two ratings apply under a particular diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3. The Veteran's entire history is reviewed when making disability evaluations. See generally, 38 C.F.R. 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). In Fenderson v. West, 12 Vet. App. 119 (1999), the Court held that evidence to be considered in the appeal of an initial assignment of a disability rating was not limited to that reflecting the then current severity of the disorder. In Fenderson, the Court also discussed the concept of the "staging" of ratings, finding that in cases where an initially assigned disability evaluation has been disagreed with, it was possible for a veteran to be awarded separate percentage evaluations for separate periods based on the facts found during the appeal period. Fenderson at 126-28; see also Hart v. Mansfield, 21 Vet. App. 505 (2007). 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 innervation, 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 that becomes painful on use must be regarded as seriously disabled. 38 C.F.R. §§ 4.40, 4.45, see also DeLuca v. Brown, 8 Vet. App. 202, 206-07 (1995). Painful, unstable, or malaligned joints, due to healed injury, are entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59. The factors involved in evaluating, and rating, disabilities of the joints include weakness; fatigability; incoordination; restricted or excess movement of the joint, or pain on movement. 38 C.F.R. § 4.45. The Veteran's service-connected right shoulder strain has been assigned an initial disability evaluation of 20 percent pursuant to Diagnostic Code 5201. Under this Diagnostic Code, a 20 percent evaluation is warranted where motion of the arm is limited to shoulder level (90 degrees). Motion limited to midway between side and shoulder level (45 degrees) warrants a 30 percent evaluation. Finally, a maximum 40 percent evaluation is warranted where motion is limited to 25 degrees from the side. 38 C.F.R. § 4.71a, Diagnostic Code 5201 (2010). After reviewing the evidence of record, the Board finds that an initial evaluation in excess of 20 percent is not warranted for the Veteran's right shoulder disability at any point during the appeal period. In this regard, the Board observes the Veteran's right shoulder disability is manifested throughout the appeal period by subjective complaints of painful motion, weakness and stiffness with objective evidence of limitation of motion. However, there is no evidence of abduction or forward flexion of the right arm limited to midway between side and shoulder level (45 degrees) or less. The Veteran was provided a VA examination in June 2005. According to the examination report, the Veteran complained of frequent pain with movement or pressure on the right shoulder, with subjective feelings of weakness and stiffness. There was no swelling, heat or subluxation on examination. He exhibited full internal and external rotation to 90 degrees with minimal pain at the very end point, abduction limited by pain to 160 degrees and forward elevation (flexion) limited by pain to 140 degrees. The examination report notes that following repetitive motion testing, the Veteran experience a mild increase in pain, particularly with abduction and forward elevation, but noted no additional functional limitation of motion beyond that described above. See DeLuca, supra. A second VA examination was provded in August 2006. At this examination, the Veteran complained of pain, stiffness and weakness of the right shoulder. There was no history of dislocation or subluxation noted. The Veteran exhibited full flexion and abduction to 180 degrees and full internal and external rotation to 90 degrees, with mild pain throughout. Repeated range of motion testing resulted in no additional limitation of motion. See DeLuca, supra. Finally, the Veteran was provided a third VA examination in December 2010. At this examination, the Veteran reported pain, achiness and snapping of the right shoulder without a history of dislocation or subluxation. He reported persistent pain with weekly flare-ups, but noted that he rarely uses any pain medications. On examination, the Veteran exhibited forward elevation limited by pain to 85 degrees, abduction limited by pain to 80 degrees, external rotation limited by pain to 80 degrees and internal rotation limited by pain to 85 degrees of motion. While there was some additional pain noted upon repetitive testing, there was no additional weakness, excess fatigability, incoorindation, lack of endurance or loss of motion. See DeLuca, supra. Under the above circumstances, the Board finds no evidence to warrant an initial evaluation in excess of 20 percent at any point during the appeal period for the Veteran's right shoulder disability. In this regard there is no evidence the Veteran's right arm is limited to 45 degrees of motion (midway between side and shoulder level) or less. Additionally, the medical evidence does not show that the Veteran has excess fatigue, weakness, incoordination or any other symptom or sign that results in such additional functional impairment. 38 C.F.R. §§ 4.40 and 4.45 (2010); DeLuca, 8 Vet. App. at 202 (1995). As a final note, the Board has considered other potentially applicable diagnostic criteria that may result in a higher evaluation. However, the Board finds that a higher evaluation is not warranted under any alternate Diagnostic Code at any point in the appeal period. In this regard, there is no evidence of ankylosis of the scapulohumeral articulation, recurrent dislocation of the scapulohumeral joint or other impairment of the humerus. As such, a higher evaluation under Diagnostic Codes 5200 or 5202 is not warranted. The Board acknowledges the Veteran's contentions that his right shoulder disability warrants an initial evaluation in excess of 20 percent. However, in determining the actual degree of disability, an objective examination is more probative of the degree of the Veteran's impairment. Furthermore, the opinions and observations of the Veteran alone cannot meet the burden imposed by the rating criteria under 38 C.F.R. § 4.71a with respect to determining the severity of his service-connected right shoulder strain. See Moray v. Brown, 2 Vet. App. 211, 214 (1993); see also Espiritu v. Derwinski, 2 Vet. App. 492 (1992); 38 C.F.R. § 3.159(a)(1) and (2) (2010). As such, for the reasons discussed above, the Board finds that a preponderance of the evidence is against the assignment of an initial evaluation in excess of 20 percent for the Veteran's right shoulder disability, and the benefit-of-the-doubt rule does not apply. Therefore, the Veteran's claim must be denied. 38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). Additional Considerations The Board also has considered whether the Veteran is entitled to a greater level of compensation on an extra-schedular basis. Ordinarily, the VA Schedule will apply unless there are exceptional or unusual factors which would render application of the schedule impractical. See Fisher v. Principi, 4 Vet. App. 57, 60 (1993). According to the regulation, an extraschedular disability rating is warranted based upon 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 that would render impractical the application of the regular schedular standards. See 38 C.F.R. § 3.321(b)(1) (2010). An exceptional case is said to include such factors as marked interference with employment or frequent periods of hospitalization as to render impracticable the application of the regular schedular standards. See Fanning v. Brown, 4 Vet. App. 225, 229 (1993). Under Thun v. Peake, 22 Vet App 111 (2008), there is a three-step inquiry for determining whether a Veteran is entitled to an extraschedular rating. First, the Board must first determine whether the evidence presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Second, if the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, the Board must determine whether the claimant's disability picture exhibits other related factors such as those provided by the regulation as "governing norms." Third, if the rating schedule is inadequate to evaluate a Veteran's disability picture and that picture has attendant thereto related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether, to accord justice, the Veteran's disability picture requires the assignment of an extraschedular rating. With respect to the first prong of Thun, the evidence in this case does not show such an exceptional disability picture that the available schedular evaluation for the service-connected disabilities is inadequate. A comparison between the level of severity and symptomatology of the Veteran's disability on appeal with the established criteria found in the rating schedule for this disability shows that the rating criteria reasonably describes the Veteran's disability level and symptomatology. In this regard, the record indicates the Veteran is absent from his employment an average one to two days a year due to his right shoulder disability, and there is no record of hospitalization due to his service-connected disability. As the first prong of Thun has not been satisfied, the Board therefore has determined that referral of this case for extra-schedular consideration pursuant to 38 C.F.R. 3.321(b)(1) is not warranted. The Court has also held that a request for a total disability rating due to individual employability resulting from service-connected disability (TDIU), whether expressly raised by a veteran or reasonably raised by the record, is not a separate claim for benefits, but is rather part of the adjudication of a claim for increased compensation. Rice v. Shinseki, 22 Vet. App. 447 (2009). Thus, when entitlement to TDIU is raised during the appeal of a rating for a disability, it is part of the claim for benefits for the underlying disability. Id at 454. In this case, the record is negative for evidence that the Veteran is unemployable. He is not in receipt of Social Security disability benefits, and has continued to work as a corrections officer throughout the claims period. There is no medical evidence that the Veteran's right shoulder disability has markedly interfered with employment, and the Veteran has not stated that he is unable to perform his duties due to his service-connected right shoulder strain. Therefore, remand or referral of a claim for TDIU is not necessary as there is no evidence of unemployability due to the service-connected disability. ORDER An initial evaluation in excess of 20 percent for right shoulder strain is denied. ____________________________________________ MILO H. HAWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs