Citation Nr: 1112416 Decision Date: 03/29/11 Archive Date: 04/07/11 DOCKET NO. 10-48 663 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Denver, Colorado THE ISSUES 1. Entitlement to an initial disability rating in excess of 50 percent for posttraumatic stress disorder (PTSD). 2. Entitlement to an initial disability rating in excess of 10 percent for left shoulder degenerative joint disease, status post left acromioclavicular fracture (non-dominant). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD P. Childers, Counsel INTRODUCTION Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2010). 38 U.S.C.A. § 7107(a)(2) (West 2002). The Veteran served on active duty from March 1950 to May 1968; from May 1971 to May 1973; and from May 1975 to November 1976. This matter is before the Board of Veterans' Appeals (Board) on appeal of a February 2010 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO), which granted service connection for PTSD with an evaluation of 50 percent effective August 10, 2009; and which granted service connection for left shoulder degenerative joint disease, status post left acromioclavicular fracture with an evaluation of 10 percent effective August 10, 2009. In February 2011, the Veteran testified by videoconference from Denver, Colorado, before the undersigned sitting in Washington, D.C. A transcript of the hearing is in the claims file. The issue of an initial disability rating in excess of 50 percent for PTSD is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC) in Washington, D.C. FINDINGS OF FACT 1. Prior to June 3, 2010, the Veteran's left (non-dominant) shoulder degenerative joint disease, status post left acromioclavicular fracture was manifested by range of motion to at least shoulder level; no recurrent dislocation of the scapulohumeral joint; and no tenderness or instability of the stenoclavicular or acromioclavicular joint. 2. Since June 3, 2010, the Veteran's left (non-dominant) shoulder degenerative joint disease, status post left acromioclavicular fracture has been productive of limitation of motion midway between the side and shoulder level. CONCLUSIONS OF LAW 1. The criteria for an initial disability rating higher than 10 percent prior to June 3, 2010, for left shoulder degenerative joint disease, status post left acromioclavicular fracture (non-dominant), have not been met. 38 U.S.C.A. §§ 1155, 5107(b) (West 2002 & Supp. 2009); 38 C.F.R. §§ 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5003, 5010, 5200-5203 (2010). 2. The criteria for a disability rating of 20 percent beginning June 3, 2010, for left shoulder degenerative joint disease, status post left acromioclavicular fracture (non-dominant), have been met. 38 U.S.C.A. §§ 1155, 5107(b) (West 2002 & Supp. 2009); 38 C.F.R. §§ 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5003, 5010, 5200-5203 (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Veterans Claims Assistance Act of 2000 (VCAA) The VCAA amended VA's duties to notify and to assist a claimant in developing information and evidence necessary to substantiate a claim. 38 U.S.C.A. §§ 5103(a), 5103A; 38 C.F.R. § 3.159. Duty to Notify Under 38 U.S.C.A. § 5103(a), VA 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. Also, the VCAA notice requirements apply to all five elements of a service connection claim. The five elements are: (1) Veteran status; (2) existence of a disability; (3) a connection between the Veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. Dingess v. Nicholson, 19 Vet. App. 473 (2006). In a claim for increase, the VCAA notice requirements are 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 the claimant's employment and daily life. The VCAA notice must be provided to a claimant before the initial unfavorable adjudication by the RO. Pelegrini v. Principi, 18 Vet. App. 112 (2004). In this case the claim for an increased rating stems from the rating assigned during the initial grant of service connection. Where, as here, service connection has been granted and the initial rating has been assigned, the claim of service connection has been more than substantiated and the claim has been proven, thereby rendering 38 U.S.C.A. §5103(a) notice no longer required because the purpose that the notice was intended to serve has been fulfilled. Once the claim of service connection has been substantiated, the filing of a notice of disagreement with the RO's decision rating the disabilities does not trigger a need for additional 38 U.S.C.A. § 5103(a) notice. Therefore, further VCAA notice under 38 U.S.C.A. § 5103(a) and § 3.159(b)(1) is no longer necessary in claims for higher initial ratings. Dingess, 19 Vet. App. 473; Dunlap v. Nicholson, 21 Vet. App. 112, 116-117 (2007); Goodwin v. Peake, 22 Vet. App. 128 (2008). Duty to Assist Under 38 U.S.C.A. § 5103A, VA must make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate a claim. Service treatment records (STRs) and VA treatment records have been obtained and are in the claims file. In addition, the Veteran testified before the undersigned Acting Veterans Law Judge regarding his symptoms. He has also been afforded multiple C&P examinations. The Board has reviewed the examination reports and finds that they provide the types of findings required to accurately evaluate the left shoulder disability. The reports of these examinations are accordingly adequate for rating the disability. In this regard the Board notes that with regard to increased rating claims, the duty to assist includes, when appropriate, the duty to conduct a thorough and contemporaneous examination of the Veteran. Green v. Derwinski, 1 Vet. App. 121 (1991). In addition, where the evidence of record does not reflect the current state of the Veteran's disability, a VA examination must be conducted. Schafrath v. Derwinski, 1 Vet. App. 589 (1991); 38 C.F.R. § 3.327(a). The RO provided the Veteran appropriate VA examinations in 2009 and 2010. These examinations are adequate because they are based on thorough examinations, a description of the Veteran's pertinent medical history; consideration of the Veteran's subjective complaints; and review of the claims file. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007); Stefl v. Nicholson, 21 Vet. App. 120, 124-25 (2007) (holding an examination is considered adequate when it is based on consideration of the appellant's prior medical history and examinations and also describes the disability in sufficient detail so that the Board's evaluation of the disability will be a fully informed one). As there is no indication of the existence of additional evidence to substantiate the claim, the Board concludes that no further assistance to the Veteran in developing the facts pertinent to the claim is required to comply with the duty to assist. Factual Background In August 2009, the Veteran filed a claim for service connection for left clavicle fracture residuals. On VA examination in December 2009, the Veteran reported that he had noticed that cold weather caused intermittent aching in his left shoulder. He also complained of progressive reduction in the ability to lift his left arm above a horizontal plane, but denied any loss of grip, shoulder locking, instability, swelling, flares, or tingling sensations in the arm. He further averred that his activities of daily living were not impacted, and said that he slept fine, with no night time pain and without any aids. Physical examination found a palpable bony deformity with a distal step off of 1 centimeter that was mildly tender to palpation, and crepitus, but there was no swelling, instability, effusion, or tenderness; no axillary or supraclavicular adenopathy; and no instability of the stenoclavicular or acromioclavicular joint. There was no atrophy, and deep tendon reflexes and grip strength were intact. Active and passive range of motion was 100 forward flexion; extension to 20 degrees; abduction to 120; adduction to 50 degrees; and internal and external rotation to 80 degrees. X-rays showed moderate degenerative changes at the glenohumeral and acromioclavicular joints and an old, healed mid clavicle fracture healed with one shaft width inferior displacement of the distal fragment relative to the proximal, which the radiologist noted was probable foreshortening related to a bayonet apposition. Diagnosis was degenerative joint disease of the left shoulder, including the acromioclavicular and glenohumeral joints. The examiner added that there was no loss of coordination or change in active or passive range of motion after three repeated tests due to painful motion or lack of endurance due to fatigue or weakness. In February 2010 the Veteran was granted service connection for left shoulder degenerative joint disease, status post left acromioclavicular fracture (non-dominant) under the provisions of Diagnostic Code 5010 and assigned a 10 percent rating. In June 2010 the Veteran was accorded another shoulder examination by VA, which was done by a private physician. During the examination he complained of left shoulder pain, stiffness, weakness, and giving way in his non-dominant left shoulder. He confirmed that he is right hand dominant. Physical examination found forward flexion to 30 degrees; abduction to 50 degrees; external rotation to 50 degrees; and internal rotation to 80 degrees. The physician noted that there was pain, fatigue, weakness, lack of endurance, but no instability, after range of motion of the left shoulder. Diagnosis was rotator cuff tear with adhesive capsulitis status post fracture, severe acromioclavicular joint arthritis with residual scar. The physician added that the Veteran "is limited in the use of left arm and, therefore, cannot perform many daily tasks and activities." During his February 2011 Board hearing the Veteran testified that he has difficulty lifting the left arm and is unable to lift it beyond a certain point without pain. Rating Principles A disability rating is determined by the application of VA's 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. Separate diagnostic codes identify the various disabilities. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. 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). 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. The Board will consider whether separate ratings may be assigned for separate periods of time based on facts found, a practice known as "staged ratings," whether it is an initial rating case or not. Fenderson v. West, 12 Vet. App. 119, 126-27 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). It is the defined and consistently applied policy of the Department of Veterans Affairs to administer the law under a broad interpretation, consistent, however, with the facts shown in every case. When after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability such doubt will be resolved in favor of the claimant. 38 C.F.R. § 4.3. Rating Criteria The Veteran's left shoulder disability has been rated under Diagnostic Code 5010 throughout the appeal period. Diagnostic Code 5010 provides for evaluation as degenerative arthritis under Diagnostic Code 5003. See 38 C.F.R. § 4.71a. Under Diagnostic Code 5003, for degenerative arthritis established by x-ray findings, a Veteran is rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved. A 10 percent rating is appropriate upon x-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups, and a 20 percent rating is appropriate upon x-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups, with occasional incapacitating exacerbations. 38 C.F.R. § 4.71a, Diagnostic Code 5003. However, when limitation of motion of the specific joint or joints involved is noncompensable under the appropriate diagnostic codes, a rating of 10 percent is for application for each major joint or groups of minor joints affected by limitation of motion, to be combined, not added under Diagnostic Code 5003. Limitation of motion must be objective confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. For the purpose of rating disability from arthritis, the shoulder is considered a major joint. 38 C.F.R. § 4.45(f). A compensable evaluation under Diagnostic Codes 5003 and 38 C.F.R. § 4.59 (for painful motion) is warranted where arthritis is established by x- ray findings and no actual limitation of motion of the affected joints is demonstrated. Lichtenfels v. Derwinski, 1 Vet. App. 484, 488 (1991). Rating factors for a disability of the musculoskeletal system included functional loss due to pain supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion, weakened movement, excess fatigability, swelling and pain on movement. 38 C.F.R. §§ 4.40, 4.45; DeLuca v. Brown, 8 Vet. App. 202 (1995). Also with any form of arthritis, painful motion is factor to be considered. 38 C.F.R. § 4.59. The rating schedule also provides for a higher evaluation of 20 percent for limitation of motion of the non-dominant arm at shoulder level ( Diagnostic Code 5201); recurrent dislocation of the scapulohumeral joint (Diagnostic Code 5202); or dislocation or nonunion of the clavicle or scapula with loose movement (Diagnostic Code 5203). A 20 percent evaluation is warranted for limitation of motion of the non-dominant arm midway between the side and shoulder level, and a 30 percent evaluation is assigned for limitation of the non-dominant arm motion to 25 degrees from the side. 38 C.F.R. § 4.71a, Diagnostic Code 5201. Full range of motion of the shoulder is zero to 180 degrees on abduction and forward elevation (flexion), and zero to 90 degrees on internal and external rotation. Shoulder level is 90 degrees. 38 C.F.R. § 4.71, Plate I. Analysis The evidence does not support a rating greater than 10 percent under Diagnostic Code 5010 at any time during the appeal period, since the Veteran's left shoulder disability does not involve 2 or more major joints or 2 or more minor joint groups. However, the Board has considered whether a higher rating is warranted under other schedular provisions. On examination in December 2009 the Veteran had range of motion of the left shoulder to at least shoulder level; there was no recurrent dislocation of the scapulohumeral joint; and there was no tenderness or evidence of instability of the stenoclavicular or acromioclavicular joint; so the criteria for the next higher rating of 20 percent were not met. 38 C.F.R. § 4.71a, Diagnostic Codes 5201-5203. However, on examination in June 2010, the Veteran was unable to flex or abduct the left shoulder to 90 degrees secondary to pain, fatigue, weakness, and lack of endurance. In fact, flexion was reduced to 30 degrees, less than midway between the shoulder and side, and abduction was only to 50 degrees, slightly greater than midway between the shoulder and side. Therefore, and according the Veteran every reasonable doubt, the Board finds that the Veteran's non-dominant left arm disability picture more nearly approximates the criteria for a 20 percent rating under the limitation of motion provisions of Diagnostic Code 5201 beginning June 3, 2010. 38 C.F.R. §§ 4.3, 4.7; see also Fenderson (providing for the assignment of a staged rating). The evidence does not, however, meet the criteria for a rating higher than 20 percent. Although left shoulder motion is limited, a rating of 30 percent is not warranted since motion is not limited to 25 degrees. 38 C.F.R. § 4.71a, Diagnostic Code 5201. A higher rating under Diagnostic Code 5200 is not warranted because the shoulder is not ankylosed. There is also no malunion or nonunion of the humerus, so evaluation as malunion or nonunion of the humerus under Diagnostic Code 5202 is not warranted. 38 C.F.R. § 4.71a. An increase pursuant to Deluca prior to June 2010 is also not warranted since the 10 percent rating was the highest possible rating under the assigned rating criteria Diagnostic Code 5010 (see VAOPGCPREC 36-97, citing Johnston v. Brown, 10 Vet. App. 80 (1997) (remand for consideration of functional loss of range of motion of a wrist due to pain inappropriate where rating currently assigned for limitation of motion was maximum available under the applied diagnostic code)); and since the increase to 20 percent in June 2010 specifically includes consideration of functional impairment due to pain and other factors, so an additional rating pursuant to Deluca beginning June 2010 is not warranted. See 38 C.F.R. §§ 4.40 and 4.45. Extraschedular Consideration Although the Board is precluded by regulation from assigning an extraschedular rating under 38 C.F.R. § 3.321(b)(1) in the first instance, the Board is not precluded from considering whether the case should be referred to the Director of VA's Compensation and Pension Service for such a rating. The threshold factor for extraschedular consideration is a finding that the evidence presents such an exceptional disability picture that the available schedular rating for the service-connected disability is inadequate. This is accomplished by comparing the level of severity and symptomatology of the service-connected disability with the established criteria. If the criteria reasonably describe the Veteran's disability level and symptomatology, then the Veteran's disability picture is contemplated by the Rating Schedule, and the assigned schedular evaluation is, therefore, adequate, and referral for an extraschedular rating is not required. Thun v. Peake, 22 Vet. App. 111 (2008). In this case, comparing the Veteran's disability level and symptomatology of his left shoulder disability to the Rating Schedule, the degree of disability is contemplated by the Rating Schedule. In this regard, the primary manifestation of the shoulder disability is limitation of motion, including as affected by pain. This is the manifestation specifically contemplated by the applicable diagnostic codes. The assigned schedular rating is, therefore, adequate, so referral for an extraschedular rating is required under 38 C.F.R. § 3.321(b)(1) is not warranted. ORDER Entitlement to an initial disability rating greater than 10 percent prior to June 3, 2010, for left shoulder degenerative joint disease, status post left acromioclavicular fracture (non-dominant), is denied. Entitlement to an initial disability rating of 20 percent beginning June 3, 2010, for left shoulder degenerative joint disease, status post left acromioclavicular fracture (non-dominant), is granted, subject to the laws and regulations governing the award of monetary benefits. REMAND The Veteran also seeks an initial rating higher than 50 percent for his service-connected PTSD, which was granted effective August 10, 2009. VA treatment records dated in November 2009 note that the Veteran was receiving outpatient mental health treatment through Kaiser; but these records, though previously requested, have not been obtained; ostensibly because a properly executed authorization was not sent to Kaiser. In December 2009 and May 2010 the Veteran was accorded PTSD examinations by VA. During both examinations he reported having intrusive recollections and restless, fitful sleep several times per week. He also complained of forgetfulness, which the 2010 provider described as mild. GAFs during the 2009 and 2010 examinations were 54 and 61, respectively. During his February 2011 the Veteran testified that his PTSD symptoms have worsened since his June 2010 examination. He testified that he was having increased forgetfulness and difficulty sleeping. He testified that he had become lost a couple of times while driving because he forgot where he was going, and added that a friend was now driving him about. His representative added that the Veteran's intrusive thoughts had become more vivid and frequent. As there is putative evidence of a worsening in symptomatology, remand for a new examination is warranted. 38 C.F.R. § 3.327. On remand a new request should be sent to Kaiser for the Veteran's mental health treatment records. 38 C.F.R. § 3.159(c)(1). Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2010). Expedited handling is requested.) 1. Obtain the necessary authorization from the Veteran and request mental health treatment records from Kaiser. If no records are found, the claims file must be documented accordingly. 2. Afford the Veteran a VA examination to determine the level of occupational and social impairment due to posttraumatic stress disorder. 3. After the development requested is completed, adjudicate the claim for increase. If the decision remains adverse to the Veteran, then provide him and his representative a supplemental statement of the case and return the case to the Board. The Veteran has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims 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). ______________________________________________ Thomas H. O'Shay Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs