Citation Nr: 1129178 Decision Date: 08/08/11 Archive Date: 08/16/11 DOCKET NO. 07-13 265 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Los Angeles, California THE ISSUES 1. Entitlement to an initial compensable evaluation for service-connected limitation of motion of the left shoulder prior to April 3, 2010. 2. Entitlement to an initial evaluation higher than 20 percent for service-connected limitation of motion of the left shoulder from April 3, 2010, forward. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL The Veteran and two friends ATTORNEY FOR THE BOARD C. Ferguson, Counsel INTRODUCTION The Veteran had active service from April 1962 to July 1965. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2005 rating decision by the above Department of Veterans Affairs (VA) Regional Office (RO). This case was previously remanded by the Board in June 2010 for further evidentiary development and is now ready for disposition. While the issue of entitlement to service connection for an acquired psychiatric disorder, claimed as depression, was also remanded by the Board in June 2010, service connection for generalized anxiety disorder was granted, with a disability evaluation of 70 percent effective March 29, 2004, in an April 2011 rating decision. Because that issue has been fully resolved in favor of the Veteran, it is no longer on appeal. Also, in the April 2011 rating decision, the RO granted an increased evaluation of 20 percent (from 0 percent) for the Veteran's left shoulder disability effective from April 3, 2010, the date of the most recent QTC examination. However, because the increase did not constitute a full grant of the benefits sought and the Veteran has not withdrawn his appeal, the increased rating issue remains in appellate status. AB v. Brown, 6 Vet. App. 35, 39 (1993). Consequently, the issue involving an increased rating for the Veteran's left shoulder disability will now be considered, as reflected on the first page of the present decision. In January 2010, the Veteran presented hearing testimony before the undersigned Veterans Law Judge at a Travel Board hearing held at the RO. The transcript of the hearing is associated with the claims file. FINDINGS OF FACT 1. For the portion of the claim/appeal period prior to April 3, 2010, a preponderance of the evidence weighs against a finding that the manifestations of the Veteran's left shoulder disability more closely approximate limitation of motion of the minor arm to shoulder level or midway between shoulder level and the side. 2. For the portion of the claim/appeal period from April 3, 2010, forward, a preponderance of the evidence weighs against a finding that the manifestations of the Veteran's left shoulder disability more closely approximate limitation of motion of the minor arm to 25 degrees from the side. CONCLUSIONS OF LAW 1. The criteria for a compensable disability rating for the Veteran's limitation of motion of the left shoulder have not been met or approximated for the portion of the claim/appeal period prior to April 3, 2010. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.321(b), 4.1, 4.2, 4.3, 4.7, 4.71a, Diagnostic Code (DC) 5201 (2010). 2. The criteria for a disability rating higher than 20 percent for the Veteran's limitation of motion of the left shoulder have not been met or approximated for the portion of the claim/appeal period from April 3, 2010, forward. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.321(b), 4.1, 4.2, 4.3, 4.7, 4.71a, DC 5201 (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duty to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) enhanced VA's duty to notify and assist claimants in substantiating their claims for VA benefits. 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, 3.326(a) (2010). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his representative of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper notice from VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 C.F.R. § 3.159(b)(1). This notice must be provided prior to an initial unfavorable decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). In addition, the holding in Dingess v. Nicholson, 19 Vet. App. 473 (2006) requires more extensive notice in claims for compensation, e.g., as to potential downstream issues such as disability rating and effective date. If complete notice is not provided until after the initial adjudication, such a timing error can be cured by subsequent legally adequate VCAA notice, followed by readjudication of the claim, as in a SOC or Supplemental SOC (SSOC). Moreover, where there is an uncured timing defect in the notice, subsequent action by the RO which provides the claimant a meaningful opportunity to participate in the processing of the claim can prevent any such defect from being prejudicial. Mayfield v. Nicholson, 499 F.3d 1317, 1323-24 (Fed. Cir. 2007); Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). In a claim for increase, the VCAA requirement is generic notice, that is, the type of evidence needed to substantiate the claim, namely, evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on employment and earning capacity, as well as general notice regarding how disability ratings and effective dates are assigned. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009). The U.S. Supreme Court has held that an error in VCAA notice should not be presumed prejudicial, and that the burden of showing harmful error rests with the party raising the issue, to be determined on a case-by-case basis. Shinseki v. Sanders, 129 S. Ct. 1696 (2009). In this case, neither the Veteran nor his representative has alleged any prejudicial or harmful error in VCAA notice and, as discussed herein, none has been shown. In the present case, the Veteran is challenging the initial ratings assigned for his service-connected left shoulder disability following the award of service connection. The U.S. Court of Appeals for Veterans Claims, quoting from the legislative history of the VCAA, has held that, in cases where service connection has been granted and an initial disability rating and effective date have been assigned, the typical service-connection claim has been more than substantiated - it has been proven, thereby rendering notice under 38 U.S.C.A. § 5103(a) no longer required because the purpose which the notice is intended to serve has been fulfilled. Dingess v. Nicholson, supra, at 491. Moreover, under 38 C.F.R. § 3.159(b)(3)(i), there was no duty to provide the Veteran with VCAA notice upon receipt of a NOD (i.e., expressing disagreement with the initial rating assigned). Notwithstanding the above, the Board notes that the Veteran was advised, in the September 2004 letter sent in connection with his request to reopen the previously denied claim of service connection for a left shoulder disability, of what the evidence must show to establish entitlement to an increased rating. Regarding the element of effective date, the RO also advised the Veteran to send the requested information and evidence within one year of the date of the letter so that, in the event the claim were granted, he would not lose money because he would not be able to receive benefits back to the date he filed his claim. The Veteran was again sent notice of how VA determines the disability rating, and advised regarding the types of evidence needed to assign such a rating, in a June 2008 letter. He was also provided with the diagnostic criteria pertinent to his initial rating claim in the letter, although such provision is no longer required. The Board also observes that the Veteran has been provided with ample opportunity to submit evidence and argument in support of his claim and to participate effectively in the processing of his claim during the course of this appeal. As stated above, neither the Veteran nor his representative has alleged any prejudice with respect to the notice, or lack thereof, received for his initial rating claim during the course of this appeal. Furthermore, the Veteran has been provided with a copy of the above rating decisions, the February 2007 SOC, and the April 2011 SSOC, which include discussion of the facts of the claim, pertinent laws and regulations, notification of the bases for the decision, and a summary of the evidence considered to reach the decision. Thus, in consideration of the foregoing, the Board finds that the RO effectively satisfied the notice requirements with respect to the issues on appeal prior to the initial denial of the claim, and there is no outstanding duty to inform the Veteran that any additional information or evidence is needed. Quartuccio, supra, at 187. To fulfill its statutory duty to assist, the RO afforded the Veteran with medical examinations in January 2005 and April 2011 in connection with his claims. The examination reports have been reviewed and cumulatively include all relevant findings necessary to evaluate the Veteran's initial rating claims. Although it appears that the examiners did not have access to the claims folder, the absence of such review does not render the examination reports inadequate because the examiners noted findings pertinent to the evaluation of the Veteran's disability based on their objective examination of the Veteran. Also, treatment records adequately identified as relevant to the Veteran's claim have been obtained, to the extent possible, and are associated with the claims folder. Moreover, the Veteran and/or his representative have/have submitted several written statements in connection with his claim and during the course of his appeal. The Veteran has also presented hearing testimony before the undersigned Judge in connection with his appeal. For these reasons, the Board finds that there is sufficient evidence of record to evaluate the Veteran's claim, and a remand for another medical examination is not needed. See Soyini v. Derwinski, 1 Vet. App. 540 (1991) (holding that a remand is inappropriate where there is no possibility of any benefit flowing to the veteran). Neither the Veteran nor his representative has made the RO or the Board aware of any other evidence relevant to his appeal that needs to be obtained. Based on the foregoing, the Board finds that all relevant facts have been properly and sufficiently developed in this appeal and no further development is required to comply with the duty to assist the Veteran in developing the facts pertinent to the claims adjudicated herein. The Board further finds that there has been compliance with our prior remand because the Appeals Management Center (AMC) considered the April 2010 QTC medical examination report and issued an April 2011 SSOC reflecting the same. Stegall v. West, 11 Vet. App. 268 (1998); D"Aries v. Peake, 22 Vet. App. 97 (2008). In view of the foregoing, the Board will proceed with appellate review. II. Pertinent Law, Facts, and Analysis The Board has thoroughly reviewed all the evidence in the Veteran's claims folder. Although we have an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence submitted by the Veteran or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (Board must review entire record, but does not have to discuss each item of evidence). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim. The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the veteran). Disability evaluations are determined by the application of the VA Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. In determining the disability evaluation, VA has a duty to acknowledge and consider all regulations that are potentially applicable through the assertions and issues raised in the record, and to explain the reasons and bases for its conclusions. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Governing regulations include 38 C.F.R. §§ 4.1 and 4.2, which require the evaluation of the complete medical history of the veteran's condition. 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 for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Any reasonable doubt regarding a degree of disability will be resolved in favor of the Veteran. 38 C.F.R. § 4.3. 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; 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. In a claim for a higher original rating after an initial award of service connection, all of the evidence submitted in support of the Veteran's claims is to be considered. An appeal from the initial assignment of a disability rating, such as this case, requires consideration of the entire time period involved, and contemplates staged ratings where warranted. Fenderson v. West, 12 Vet. App. 119 (1999). A. Disability Evaluation prior to April 3, 2010 For the portion of the claim/appeal period prior to April 3, 2010, the Veteran seeks an initial compensable disability evaluation for his left shoulder disability. For that time interval, he has been assigned a 0 percent disability evaluation for limitation of motion of the left shoulder under Diagnostic Code 5201 (limitation of motion of the minor shoulder). Because the Veteran is right-hand dominant, his left arm is properly considered as the non-dominant (or minor) extremity. Under 38 C.F.R. § 4.71a, Diagnostic Code 5201, for the minor arm (i.e., the left arm of a right-handed person), a 20 percent evaluation is provided for limitation of motion of the arm at shoulder level, or for limitation of motion midway between the side and shoulder level; and a 30 percent evaluation is assigned for limitation of motion to 25 degrees from the side. Full range of motion of the shoulder is 0 to 180 degrees of abduction and forward elevation (flexion) and 0 to 90 degrees of internal and external rotation. 38 C.F.R. § 4.71, Plate I. The above schedular criteria do not specifically outline any criteria for a noncompensable (0 percent) rating. By regulation, a zero percent evaluation is assigned when the requirements for a compensable evaluation are not met, as provided at 38 C.F.R. § 4.31. In order for the Veteran to receive the next higher disability rating of 20 percent under DC 5201, the evidence must show that his left shoulder demonstrates a limitation of motion at shoulder level, or midway between the side and shoulder level. Review of the evidentiary record, however, does not demonstrate such a disability picture, for reasons explained below. Although the January 2005 QTC examiner noted that the Veteran had mild limitation of his left shoulder associated with his left gynecomastia scar, the Veteran only showed limitation of both flexion and abduction to 170 degrees (out of 180 degrees). Exterior and interior rotation were normal at 90 degrees. There was pain at 170 degrees flexion and abduction, but there was no fatigue, weakness, lack of endurance or incoordination of the left shoulder. Thus, even with consideration of Deluca factors, the Veteran showed only a loss of 10 degrees on both flexion and abduction and was able to flex and abduct his left arm well above shoulder level. The limitation of motion of the Veteran's left shoulder demonstrated by the Veteran was not to the degree required for a compensable evaluation under DC 5201. Review of the Veteran's treatment records and his lay statements relevant to this portion of the claim/appeal period also discloses no evidence to support the assignment of an increased evaluation. For example, the Board notes that the Veteran wrote in a letter dated in November 2004 that he "[did] not have full mobility of [his] left arm and shoulder", and the examination report lends support to his assertion. However, the Veteran's statement does not show that his left shoulder motion is limited to the extent required for a 20 percent (i.e., or compensable) rating under DC 5201. He did not allege, and was not shown to have demonstrated, limitation of left arm motion to shoulder level or midway between his side and shoulder level during this portion of the claim/appeal period. Therefore, although the Veteran has some limitation of left arm and shoulder motion, the Board finds that he is not entitled to a compensable schedular evaluation under DC 5201 for his left shoulder disability on this basis because he does not have limitation to the degree required for such an evaluation at any time relevant to the claim/appeal period. For this reason, the preponderance of the evidence weighs against the assignment of a higher initial rating for limitation of left shoulder motion. Further, no staged rating is warranted by the evidence. B. Disability Evaluation on and after April 3, 2010 For the portion of the claim/appeal period from April 3, 2010, forward, the Veteran seeks an initial disability evaluation higher than 20 percent for his left shoulder disability. He is also rated under DC 5201 for this portion of the claim/appeal period. In order for the Veteran to receive the next higher disability rating of 30 percent under DC 5201, the evidence must show that his left shoulder demonstrates a limitation of motion to 25 degrees from the side. Review of the evidentiary record, however, does not demonstrate such a disability picture, as explained below. At the April 2010 QTC examination, the Veteran complained of weakness, stiffness, swelling, giving-way, lack of endurance, locking, fatigability, tenderness, and pain associated with his left shoulder disability. He denied experiencing heat, redness, deformity, drainage, effusion, subluxation and dislocation. He reported experiencing flare-ups as often as once per day and each time lasting for 24 hours. He reported the severity level as 10/10. He told the examiner that the flare-ups were precipitated by physical activity and stress and alleviated by rest and pain medication. He reported difficulty raising his left arm during flare-ups. He also stated that he had never been hospitalized nor had surgery for his condition and, in the past 12 months, it had not resulted in any incapacitation. The Veteran further stated that pushing, pulling, and lifting with his left arm was difficult. On physical examination, the Veteran's left shoulder demonstrated tenderness but showed no signs of edema, instability, abnormal movement, effusion, weakness, redness, heat, deformity, guarding of movement, malalignment and drainage. The examiner also noted that there was no subluxation or ankylosis. Range of motion of the left shoulder was 90 degrees on flexion (with pain at 90 degrees), 90 degrees on abduction (with pain at 90 degrees), and 90 degrees on both internal and external rotation (without pain). No additional limitation was shown after repetitive range of motion. Upon consideration of the foregoing, the Board notes that, while the Veteran clearly demonstrates some limitation of motion of his left arm and shoulder, it is not so severe as to warrant an increased evaluation. The range-of-motion findings at the April 2010 examination show that his left shoulder motion is limited only to shoulder level, even with consideration of repetitive motion and Deluca factors. Although the Veteran reported difficulty raising his left arm, he did not indicate that such difficulty resulted in a limitation to 25 degrees from the side. Thus, the limitation of motion of the Veteran's left shoulder as shown at this examination is not to the degree required for a 30 percent evaluation under DC 5201. Review of the treatment records, as well as lay statements from the Veteran, relevant to this portion of the claim/appeal period also provide no evidence to support the assignment of an increased evaluation under DC 5201. He has not alleged, and is not shown to have demonstrated on examination, left arm motion limited to 25 degrees. For example, although a January 2011 VA chiropractic note shows that the Veteran presented for treatment with complaints of left shoulder pain that radiates to the axilla and around the pectoral major and he objectively demonstrated tenderness on palpation to the thoracic paravertebral spine, there is no indication that he demonstrated limitation of left arm motion to 25 degrees. Therefore, although the Veteran has limitation of left arm and shoulder motion, he is not entitled to a 30 percent schedular evaluation under DC 5201 for his left shoulder disability on this basis, because he does not have limitation to the degree required for such an evaluation at any time relevant to the claim/appeal period. For this reason, the preponderance of the evidence weighs against the assignment of a higher initial rating for limitation of left shoulder motion for this portion of the claim/appeal period. Further, no staged rating is warranted. C. Other considerations Consideration has been given to the potential application of the various provisions of 38 C.F.R. Parts 3 and 4, as required by Schafrath v. Derwinski, 1 Vet. App. 589 (1991). However, after careful review of the available diagnostic codes and the evidence of record, the Board finds there are no other codes that provide a basis to assign a higher schedular evaluation than. The Veteran has not alleged, and there is no evidentiary indication, that he has any impairment of the clavicle or scapula or humerus or demonstrates ankylosis of the scapulohumeral articulation. The evidence only suggests limitation of motion of the left shoulder. Thus, there is no functional impairment not already contemplated in the currently assigned schedular criteria. The Board has also considered whether the initial rating claim above warrants referral for consideration of an extraschedular rating under 38 C.F.R. § 3.321. 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, it must be determined whether the disability picture is such that the schedular criteria are inadequate, i.e., whether there are manifestations or impairment that are not encompassed by the schedular criteria. If those criteria are not inadequate, the analysis does not need to proceed any further. However, after comparing the manifestations and reported impairment of function of the Veteran's left shoulder disability to the ratings and schedular criteria now assigned, the Board does not find any symptoms or functional impairment that are not already encompassed by the currently assigned schedular ratings. There is no unusual or exceptional disability picture shown. Therefore, the schedular criteria are not inadequate, and referral for consideration of extraschedular ratings is not necessary. Thun, supra. ORDER Entitlement to an initial compensable evaluation for service-connected limitation of motion of the left shoulder prior to April 3, 2010, is denied. Entitlement to an initial evaluation higher than 20 percent for service-connected limitation of motion of the left shoulder from April 3, 2010, forward, is denied. ____________________________ ANDREW J. MULLEN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs