Citation Nr: 1103647 Decision Date: 01/28/11 Archive Date: 02/08/11 DOCKET NO. 04-06 570 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUES 1. Entitlement to an increased rating for a right shoulder disability, currently evaluated as 20 percent disabling. 2. Entitlement to service connection for a neck disability. 3. Entitlement to service connection for an upper back disability. REPRESENTATION Appellant represented by: Virginia A. Girard-Brady, Attorney at Law ATTORNEY FOR THE BOARD R. Kessel, Counsel INTRODUCTION The Veteran had active duty for training from November 1968 to April 1969. This matter comes before the Board of Veterans' Appeals (Board) on appeal from July 2008 and October 2009 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma. The case was most recently before the Board in February 2009. At that time, the Board granted a 20 percent rating (increased from 10 percent) for the Veteran's service-connected right shoulder disability prior to February 9, 2004. An evaluation in excess of 20 percent was denied. The Board also remanded the two service connection claims to the agency of original jurisdiction (AOJ) for additional development. Shortly after the February 2009 Board decision, the Veteran filed another claim for an increase for his right shoulder disability. By the October 2009 rating decision, the RO continued the 20 percent rating. The Veteran appealed the decision and the Board has added the issue to those previously appealed. The Board notes that the RO implemented the award of a 20 percent rating prior to February 9, 2004, by a March 2009 rating action. The effective date for the 20 percent rating was set at December 31, 2002. In June 2009, the Veteran's representative filed a notice of disagreement with the effective date. A statement of the case regarding the issue was furnished to the Veteran and his representative in January 2010. A subsequently filed substantive appeal and brief from the representative pertained only to the current rating for the right shoulder disability and to the two service connection claims. There was no indication that the Veteran wished to perfect an appeal of the effective date issue. Thus, the Board will not address that issue. (The decision below addresses the rating issue pertaining to the right shoulder. The two service connection claims are addressed in the remand that follows the Board's decision.) FINDING OF FACT The Veteran's service-connected right shoulder disability is manifested by pain and weakness tantamount to limitation of motion of the arm to midway between the side and shoulder level. CONCLUSION OF LAW The criteria for a 30 percent rating for service-connected right shoulder disability have been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.159, 3.321, 4.3, 4.7, 4.40, 4.45, 4.71a, Diagnostic Code 5201 (2010). REASONS AND BASES FOR FINDING AND CONCLUSION I. Duties to Notify and Assist The Board notes the enactment of the Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (2000), in November 2000. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, and 5107 (West 2002 & Supp. 2010). To implement the provisions of the law, VA promulgated regulations codified at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2010). The VCAA and its implementing regulations include, upon the submission of a substantially complete application for benefits, an enhanced duty on the part of VA to notify a claimant of the information and evidence needed to substantiate a claim, as well as the duty to notify the claimant of what evidence will be obtained by whom. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). In addition, they define the obligation of VA with respect to its duty to assist a claimant in obtaining evidence. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c). The Board finds that all notification action needed to make a decision as to the claim for an increase in regards to the right shoulder disability has been accomplished. Through a June 2009 notice letter, the RO notified the Veteran and his representative of the information and evidence needed to substantiate the Veteran's claim for an increased rating. The Veteran was told that the evidence must show that his service-connected disability had increased in severity. The letter provided the Veteran with the general criteria for assigning disability ratings and effective dates. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), aff'd, Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007). The Board also finds that the June 2009 notice letter satisfies the statutory and regulatory requirement that VA notify a claimant which evidence, if any, will be obtained by the claimant and which evidence, if any, will be retrieved by VA. See Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002) (addressing the duties imposed by 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b)). In that letter, the RO notified the Veteran that VA was responsible for obtaining relevant records from any Federal agency and that VA would make reasonable efforts to obtain relevant records not held by a Federal agency, such as from a state, private treatment provider, or an employer. Additionally, the notice letter asked the Veteran to submit medical evidence, opinions, statements, and treatment records regarding his disability. Consequently, a remand of the rating issue for further notification of how to substantiate the claim is not necessary. There is no indication that any additional action is needed to comply with the duty to assist in connection with the rating issue on appeal. The Veteran's service treatment records have been obtained and associated with the claims file, as have treatment records from the VA Medical Center (VAMC) in Muskogee, Oklahoma, and its associated outpatient clinics. Recent private treatment records were obtained from Ramsey Chiropractic. The Veteran's representative requested that VA obtain the Veteran's medical records from the Social Security Administration (SSA). The RO requested the records and, in August 2009, SSA responded that there were no medical records because the Veteran had not filed for SSA disability benefits. In October 2009, the Veteran confirmed that he had not applied for SSA disability and that there are no related records. Thus, a remand for further attempts to obtain SSA records is not necessary. Additionally, in July 2009, the Veteran was provided a VA examination in connection with his claim, the report of which is of record. The report contains sufficient evidence by which to evaluate the Veteran's right shoulder disability in the context of the rating criteria, including with respect to the effect of pain and weakness on motion. Thus, VA has properly assisted the Veteran in obtaining any relevant evidence. II. Analysis The Veteran asserts that his service-connected right shoulder disability is more disabling than what is reflected by the 20 percent rating. He states that the motion of his right arm is additionally limited by weakness beyond any measured motion. Disability evaluations are determined by comparing a veteran's symptoms with criteria set forth in VA's Schedule for Rating Disabilities, which are based on average impairment in earning capacity. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. Part 4 (2010). When a question arises as to which of two ratings apply under a particular diagnostic code, the higher of the two evaluations is assigned if the disability more closely approximates the criteria for the higher rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2010). After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the veteran. 38 C.F.R. § 4.3 (2010). The veteran's entire history is reviewed when making disability evaluations. See generally 38 C.F.R. § 4.1 (2010); Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where entitlement to compensation has already been established, VA must address the evidence concerning the state of the disability from the time period one year before the claim for an increase was filed until VA makes a final decision on the claim. The United States Court of Appeals for Veterans Claims (Court) has held that consideration of the appropriateness of a staged rating is required. See Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007). In regards to shoulder impairment, a disability may be evaluated under Diagnostic Code 5201 for limitation of motion of the arm. That diagnostic code provides for a 20 percent rating for limitation of motion of the major arm (dominant side) when motion is limited to shoulder level. Limitation of motion to midway between the side and shoulder level warrants a 30 percent rating for the major arm. Limitation of motion to 25 degrees from the side warrants a 40 percent evaluation for the major arm. 38 C.F.R. § 4.71a (Diagnostic Code 5201) (2010). (The Veteran's right arm is his dominant side.) Additionally, when evaluating musculoskeletal disabilities, VA must consider granting a higher rating in cases in which the veteran experiences functional loss due to limited or excess movement, pain, weakness, excess fatigability, or incoordination (to include during flare-ups or with repeated use), and those factors are not contemplated in the relevant rating criteria. See 38 C.F.R. §§ 4.40, 4.45 (2010); DeLuca v. Brown, 8 Vet. App. 202, 204-7 (1995). The provisions of 38 C.F.R. § 4.40 and 38 C.F.R. § 4.45 are to be considered in conjunction with the diagnostic codes predicated on limitation of motion. Johnson v. Brown, 9 Vet. App. 7 (1996). A review of the evidence associated with the file since the February 2009 Board decision reveals that the Veteran has received regular treatment from chiropractor H.W.R. Treatment records dated in 2009 show some treatment for chronic right shoulder pain and weakness. However, the records do not contain enough information to be useful in evaluating the right shoulder disability beyond supporting the existence of the symptoms identified by the Veteran. A July 2009 VA spine examination report noted some of the Veteran's symptoms with respect to the right shoulder. However, the examination was primarily conducted to address the Veteran's claimed spine disabilities and it does not provide sufficient evidence for evaluating the right shoulder disability. In July 2009, the Veteran underwent a separation VA examination of the right shoulder that was conducted by Dr. D.E.C. The Veteran reported symptoms of weakness, stiffness, giving way, lack of endurance, fatigability, and flare-ups on activity. He denied experiencing swelling, heat, redness, locking, deformity, tenderness, drainage, effusion, subluxation, pain, or dislocation. X-rays of the right shoulder were unremarkable except for a possible humeral bone cyst. Dr. D.E.C. expressly stated that the cyst was not related to the service-connected disability. Physical examination revealed that the Veteran was right handed and that he had weakness and tenderness in the right shoulder. Dr. D.E.C. found no edema, instability, abnormal movement, effusion, redness, heat, deformity, guarding, malalignment, or drainage. Range of motion of the right shoulder included flexion and abduction to 90 degrees. Pain was evident at 50 degrees of flexion and 60 degrees of abduction. On repetitive motion, the Veteran could flex to 90 degrees and abduct to 60 degrees. Although Dr. D.E.C. indicated that there was no additional degree of limitation of motion, he also stated that joint function was additionally limited by pain, fatigue, weakness, lack of endurance, and that weakness was the major functional impairment. Dr. D.E.C. diagnosed the Veteran with a right shoulder condition secondary to a rotator cuff injury. Dr. D.E.C. noted that the Veteran's daily activity was affected by limited overhead activities and that there was no effect on the Veteran's usual occupation as a retired machinist. According to the objective range of motion testing alone that was recorded by Dr. D.E.C., the Veteran's right shoulder disability has resulted in limitation of motion warranting a 20 percent rating (90 degrees). However, when taking into account the Veteran's pain and weakness associated with the disability, his right arm is limited to 50 degrees of flexion and 60 degrees of abduction. Additionally, the Veteran was able to only abduct to 60 degrees on repetitive motion. These measurements are reflective of limitation worse than what is set forth for a 20 percent rating, but not as disabling as that set forth for a 30 percent rating (45 degrees). Nonetheless, given the Veteran's seemingly credible statements concerning the effects of related weakness in the right shoulder and given that the measurements that take into account pain and weakness more closely approximate the criteria for a 30 percent rating compared to the criteria for a 20 percent rating, the Board finds that the Veteran's service- connected right shoulder disability equates to limitation of motion of the arm to midway between the side and shoulder level with consideration of pain and weakness. See 38 C.F.R. §§ 4.40, 4.45, 4.71a (Diagnostic Code 5201); DeLuca, 8 Vet. App. at 204-7. Therefore, the Board concludes that a 30 percent rating is warranted. This is so for the entire rating period. Although a 30 percent rating is warranted, an even higher rating is not warranted. The Veteran indicates that his right arm is limited to 25 degrees from the side by weakness and that a 40 percent rating may be warranted. The Board finds the July 2009 examination results that included objective measurements performed by a physician and that took into account the effects of pain and weakness to be probative of the limitation of motion of the Veteran's right arm. The Veteran was able to move his arm beyond the 25-degree point (and even the 45-degree point). Therefore, the Board concludes that a rating in excess of 30 percent is not warranted at any point during the rating period on appeal. The above determination is based upon consideration of applicable rating provisions. It should also be pointed out that there is no showing that the Veteran's right shoulder disability has reflected so exceptional or unusual a disability picture as to warrant the assignment of any higher evaluation on an extra- schedular basis. See 38 C.F.R. § 3.321(b)(1) (2010). The symptoms of his disability have been accurately reflected by the schedular criteria. Without sufficient evidence reflecting that the Veteran's disability picture is not contemplated by the rating schedule, referral for a determination of whether the Veteran's disability picture requires the assignment of an extra- schedular rating is not warranted. See Thun v. Peake, 22 Vet. App. 111, 115-16 (2008). For the foregoing reasons, the Board finds that the Veteran is entitled to an evaluation in excess of 20 percent for a right shoulder disability-30 percent, but no higher. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against a rating in excess of 30 percent, that doctrine is not applicable. See 38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 3.102, 4.3; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). ORDER A 30 percent rating for a right shoulder disability is granted, subject to the laws and regulations governing the payment of monetary awards. REMAND In February 2009, the Board remanded the claims of service connection for a neck disability and an upper back disability to the AOJ for additional development. Among other things, the Veteran was to be scheduled for a VA examination of his cervical and thoracic spine. An examiner was asked to provide an opinion as to whether the Veteran has a neck and/or upper back disability that was made chronically worse by his service-connected right shoulder disability. See 38 C.F.R. § 3.310(b) (2010). The examiner was to comment on whether any of the evidence of record constitutes a baseline of the level of severity of the Veteran's current neck and upper back disabilities. The examiner was to provide an opinion as to how much the neck and upper back disability has worsened in severity as a result of the natural progress of those disabilities, if at all, from the time of the baseline to the current level of severity. As noted previously, a VA examination of the spine was conducted in July 2009. In brief, the examiner found that the Veteran had degenerative changes of the cervical and thoracic spine that were not likely due to the service-connected right shoulder disability. The examiner noted that the Veteran's service treatment records included a March 1969 entry that documented a weak right serratus muscle while on active duty, and a separation examination with no positive findings pertaining to the right shoulder or any spine condition. The examiner stated that the current degenerative changes of the cervical and thoracic spine were age related due to the wear and tear process. The Board finds that the July 2009 VA examination report does not answer the questions set forth in the Board's February 2009 remand instructions. The examiner appeared to rely on evidence from the Veteran's period of military service in determining whether there was any direct causation between the Veteran's right shoulder disability and the claimed cervical spine and thoracic spine disabilities. The events of service are essentially irrelevant to the Veteran's claims as neither he or his representative have claimed that service connection is warranted on a direct basis to military service. The Veteran's representative confirmed that the Veteran is contending that service connection is warranted solely on a secondary basis as recently as April 2010. Additionally, in the body of the February 2009 remand, the Board detailed in length the Veteran's medical history and stated that his service-connected right shoulder disability appears to predate any degenerative arthritis of the cervical spine and thoracic spine. The July 2009 VA examiner did appear to attribute the Veteran's cervical and thoracic spine problems to the wear and tear of aging. A June 2008 VA examination report already included a similar opinion. Although this type of opinion addresses secondary service connection based on direct causation, the July 2009 examination report was devoid of any discussion in regards to aggravation. The question of whether the Veteran has a neck and/or upper back disability that was made chronically worse by his service-connected right shoulder disability was the central focus of the February 2009 remand and the salient issue that must be addressed. The Court has held that a remand by the Board confers on a veteran, as a matter of law, a right to compliance with the remand instructions, and imposes upon VA a concomitant duty to ensure compliance with the terms of the remand. Stegall v. West, 11 Vet. App. 268, 271 (1998). The Court has indicated, additionally, that if the Board proceeds with final disposition of an appeal, and the remand orders have not been complied with, the Board itself errs in failing to ensure compliance. Id. The Board finds that the February 2009 remand instructions were not complied with and that the two service connection claims must be remanded so that the development set forth in that remand may be completed. Accordingly, these issues are REMANDED for the following actions: 1. Schedule the Veteran for a VA examination of the spine. (Advise the Veteran that failure to appear for an examination as requested, and without good cause, could adversely affect his appeal. See 38 C.F.R. § 3.655 (2010).) The entire claims file, to include a complete copy of this remand and the February 2009 remand, should be made available to, and reviewed by, the designated examiner. All appropriate tests and studies should be performed and all clinical findings should be reported in detail. The examiner should determine the current diagnoses of all neck and upper back disabilities and confirm whether the Veteran has degenerative arthritis of the cervical or thoracic spine. If a current neck or upper back disability is found, the examiner should provide an opinion, based on a thorough review of the evidence of record, as to the medical probabilities that the Veteran has a neck and/or upper back disability that was caused or made chronically worse by his service- connected right shoulder disability. (If the examiner does not find that to be the case, he or she should, to the extent possible, reconcile the opinion with that of H.W.R.'s opinions of August 2005 and August 2007.) If the examiner finds that the right shoulder disability has an effect on a neck and/or upper back disability, the examiner should comment on when the onset of "aggravation" took place and whether the claims file contains sufficient medical evidence created before the onset of aggravation to establish a baseline of the level of severity of any such neck and/or upper back disability. If a baseline is established, the examiner should comment on how much the neck and/or upper back disability has worsened in severity as a result of the natural progress of those disabilities, if at all, from the time of the baseline to the current level of severity. The examiner must provide the complete rationale for the conclusion reached- to include, as appropriate, citation to specific evidence of record and/or medical authority. An opinion should be issued for each identified neck and upper back disability. 2. After the requested examination has been completed, the report should be reviewed to ensure that it is in complete compliance with the directives of this remand. If the report is deficient in any manner, it should be returned to the examiner. 3. After undertaking any other development deemed appropriate, re-adjudicate the service connection claims on appeal. If any benefit sought is not granted, furnish the Veteran and his representative with a supplemental statement of the case (SSOC) and afford them an opportunity to respond before the record is returned to the Board for further review. Secondary service connection on the basis of aggravation as set forth in 38 C.F.R. § 3.310(b) should be clearly addressed in the SSOC. By this remand, the Board intimates no opinion as to any final outcome warranted. No action is required of the Veteran until he is notified by VA. The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This case must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or by the Court for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2010). ________________________________ MARK F. HALSEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs