Citation Nr: 1300874 Decision Date: 01/09/13 Archive Date: 01/16/13 DOCKET NO. 07-03 158A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUES 1. Entitlement to a rating in excess of 10 percent for residuals of a left shoulder acromion fracture. 2. Entitlement to a rating in excess of 40 percent for residuals of an L-1 fracture (with arthritis). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD K. L. Wallin, Counsel INTRODUCTION The appellant is a Veteran who served on active duty from September 1970 to November 1971. These matters are before the Board of Veterans' Appeals (Board) on appeal from a March 2005 rating decision of the Chicago, Illinois, Department of Veterans Affairs (VA) Regional Office (RO) that increased the rating for the Veteran's left shoulder disability from 0 to 10 percent and the rating for the low back disability from 20 to 40 percent, both effective May 21, 2004. Because the increased ratings are not the maximum ratings available for the disabilities (and the Veteran has not expressed satisfaction with the ratings), the claims remain in appellate status. See AB v. Brown, 6 Vet. App. 35 (1993). In September 2010, a Travel Board hearing was held before the undersigned. A transcript of the hearing is associated with the claims file. In February 2011 the Board remanded these matters for further development and readjudication. In February 2011 the Board also referred claims of service connection for cervical spine disability and kidney stones, claimed as secondary to the Veteran's service connected low back disability, to the RO for appropriate action. It does not appear that any action was taken. Hence, they are again referred to the RO. The matter of the rating for residuals of an L-1 fracture (with the associated re-raised claim of entitlement to a total rating based on individual unemployability (TDIU)) is being REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if further action on his part is required. FINDINGS OF FACT 1. The Veteran is shown to be right-hand dominant. 2. Prior to November 3, 2009, limitation of motion at the shoulder level was not shown. 3. From November 3, 2009, it is reasonably shown that the Veteran's residuals of left (minor) shoulder acromion fracture are manifested by limitation of motion at the shoulder level due to pain; limitation of motion to 25 degrees from the side is not shown. CONCLUSION OF LAW The Veteran's residuals of a left shoulder acromion fracture warrant "staged" ratings of 10 percent (but not higher) prior to November 3, 2009 and 20 percent (but no higher) from that date. 38 U.S.C.A. §§ 1155, 5110 (West 2002); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.10, 4.14, 4.40, 4.45, 4.71a, Diagnostic Code (Code) 5201 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION A. Veterans Claims Assistance Act of 2000 (VCAA) The VCAA, in part, describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). The VCAA applies to the instant claim. 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, 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 Veteran was advised of VA's duties to notify and assist in the development of his claim prior to its initial adjudication. A June 2004 letter explained the evidence necessary to substantiate the claim, the evidence VA was responsible for providing, and the evidence he was responsible for providing. A November 2008 letter advised him of the criteria for rating the arm and shoulder, and those pertaining to effective dates of awards. He has received the general-type notice described in Vazquez-Flores, and has had ample opportunity to respond/supplement the record. It is not alleged that notice in this case was less than adequate. The RO arranged for VA examinations in July 2004, November 2009, and May 2011. The examinations are adequate to assess the disability as the examiners expressed familiarity with the history of the disability, and conducted thorough examinations of the Veteran, noting all findings necessary for a proper determination in the matter. See Barr v. Nicholson, 21 Vet. App. 303 (2007) (VA must provide an examination that is adequate for rating purposes). The Veteran's pertinent service treatment records (STRs), postservice VA and private treatment records, statements of the Veteran and his spouse, and records from the Social Security Administration (SSA) have been secured. He has not identified any pertinent evidence that remains outstanding. VA's duty to assist is met. Accordingly, the Board will address the merits of the claim. B. Legal Criteria, Factual Background, and Analysis The Board notes it has reviewed all of the evidence in the Veteran's claims file and Virtual VA record (VA's electronic database storage). The Veteran has waived initial RO consideration of evidence in Virtual VA which might not have been considered by the RO . See Waiver dated in November 2012. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (VA must review the entire record, but does not have to discuss each piece of evidence). Hence, the Board will summarize the relevant evidence as appropriate and the Board's analysis will focus specifically on what the evidence shows, or fails to show, as to the claim. In general, disability evaluations are determined by the application of a schedule of ratings, which is based on the average impairment of earning capacity caused by a given disability. Separate diagnostic codes identify the various disabilities which are rated according to the specific criteria therein. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. Where there is a question as to which of two evaluations shall be applied, the higher rating 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. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 U.S.C.A. § 5107; 38 C.F.R. §§ 3.102, 4.3. In a claim for an increased rating, "staged" ratings may be warranted where the factual findings show distinct time periods when the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). The Veteran's statements describing his symptoms and condition are competent evidence to the extent that he can describe what he experiences. See Espiritu v. Derwinski, 2 Vet. App. 492 (1992). However, these statements must be viewed in conjunction with the objective medical evidence and the pertinent rating criteria. Functional loss, supported by adequate pathology and evidenced by visible behavior of the Veteran undertaking the motion, is recognized as resulting in disability. DeLuca v. Brown, 8 Vet. App. 202 (1995); 38 C.F.R. §§ 4.10, 4.40, 4.45. Disability of the musculoskeletal system is primarily the inability, due to damage or inflammation in parts of the system, to perform normal working movements of the body with normal excursion, strength, speed, coordination and endurance. Functional loss may be due to pain supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion. 38 C.F.R. § 4.40. The factors of disability affecting joints are reduction of normal excursion of movements in different planes, weakened movement, excess fatigability, swelling and pain on movement. 38 C.F.R. § 4.45. Ratings shall be based as far as practicable, upon the average impairments of earning capacity with the additional proviso that the Secretary shall from time to time readjust this schedule of ratings in accordance with experience. To accord justice, therefore, to the exceptional case where the schedular evaluations are found to be inadequate, the Under Secretary for Benefits or the Director, Compensation and Pension Service, upon field station submission, is authorized to approve on the basis of the criteria set forth in this paragraph an extra-schedular evaluation commensurate with the average earning capacity impairment due exclusively to the service-connected disability or disabilities. The governing norm in these exceptional cases is: 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 as to render impractical the application of the regular schedular standards. 38 C.F.R. § 3.321(b)(1). The service-connected left shoulder fracture has been assigned a 10 percent rating under 38 C.F.R. § 4.71a, Code 5203 (for impairment of clavicle or scapula manifested by malunion) 38 C.F.R. § 4.71a (2012). A higher rating under Code 5203 requires nonunion or dislocation (which here is not shown). Consequently, other diagnostic code criteria for rating shoulder disability must be considered for applicability. Such other criteria include Code 5200 (for ankylosis of the scapulohumeral articulation). 38 C.F.R. § 4.71a. As the Veteran's left shoulder is not shown to be ankylosed, those criteria do not apply. Code 5201 provides for rating should disability based on limitation of motion, as follows: 20 percent (major or minor shoulder ) for limitation at the shoulder level; 30 percent (major) or 20 percent (minor) midway for limitation between the side and shoulder level; and 40 percent (major) or 30 percent (minor) for limitation to 25 degrees from the side. 38 C.F.R. § 4.71a. Code 5202 provides for rating other impairment of the humerus. A: 20 percent rating (major or minor shoulder) requires malunion with moderate (or for the minor shoulder marked) deformity. Ratings above 20 percent for the minor shoulder require fibrous union, nonunion, or loss of head, pathology here not shown. 38 C.F.R. § 4.71a Normal range of motion of the shoulders is forward elevation (flexion) to 180 degrees; abduction to 180 degrees, external rotation to 90 degrees and internal rotation to 90 degrees. 38 C.F.R. § 4.71, Plate I. The Veteran sustained a left acromion fracture in service. On June 1998 VA examination it was established that the Veteran was right-handed. A July 1998 rating decision granted the Veteran service connection for residuals of a left acromion fracture, rated 0 percent. The instant claim for increase was received on May 21, 2004. On July 2004 VA examination the Veteran complained of left shoulder pain on use. He reported that he took Morphine for the pain, with only some relief of symptoms. [On July 2004 VA spine examination it was noted that Morphine was prescribed for spine pain.]. He also reported shoulder stiffness. He denied giving way or locking of the shoulder. He indicated that he had flare-ups of pain which lasted about 15 to 20 minutes. The examiner noted the Veteran had a pacemaker in his chest wall. The Veteran informed the examiner that he was told that he should not move his shoulder above his head because of the pacemaker. Physical examination of the shoulder was limited because of the pacemaker. The examiner noted that flexion appeared normal, but abduction was limited to 90 degrees because of the Veteran's pacemaker. Internal and external rotation of the shoulders was not tested because of pacemaker positioning. The examiner indicted there was no evidence of painful motion at that particular time, but movement was limited due to the pacemaker. VA outpatient treatment records dated in 2003, 2006, and 2007 document treatment for left shoulder pain. The Veteran received sub-acromial bursae injections in April 2006 and November 2007. In November 2007, he was able to abduct his shoulder above 90 degrees. On November 3, 2009 VA examination on, the Veteran complained of pain increased by any movement, especially extension, and weather changes. He also reported weakness, stiffness, swelling , and giving way. He experienced flare-ups with lifting, weather, and overuse lasting 2 to 3 hours up to all day, occurring on a daily to weekly basis, and improved by rest, medicine, ice, and heat. He indicated that during a flare-up, range of motion and function of the left shoulder joint was additionally limited by pain, weakness, incoordination, and fatigability. Physical examination showed slight swelling over the left shoulder. There was moderate tenderness to palpation over the anterior and lateral left shoulder. Range of motion studies revealed: abduction to 90 degrees (pain beginning at 50 degrees); forward flexion to 90 degrees; external rotation to 45 degrees; internal rotation to 50 degrees; and extension to 10 degrees. There was no change after repetitive use with passive or active range of motion. The examiner noted the Veteran complained of pain with all range of motion testing. The examiner found that during flare-up or after repetitive use, the effective functional range of motion for the left shoulder was additionally limited to 50 degrees of abduction due to increased pain. At the September 2010 Travel Board hearing, the Veteran testified that his range of left shoulder motion was limited and that he found it difficult to lift his arm above shoulder level. He related that he received shots in the shoulder for relief of pain. On May 2011 VA examination the Veteran complained of left shoulder deformity, giving way, instability, pain, stiffness, weakness, incoordination, dislocation and subluxation, decreased speed of joint motion, and locking episodes. The examiner found no constitutional symptoms of arthritis, including inflammatory arthritis. The Veteran stated that he was ambidextrous. General joint findings were diffuse pain to palpation of the anterior and superior shoulder. There was marked pain with passive and active motion with significant loss and signs of impingement. There was no subluxation. There was mild crepitation, with passive range of motion somewhat limited due to the nature of the Veteran's pain. There was tenderness and pain at rest. There was also pain with range of motion testing. Range of motion studies revealed flexion to 160 degrees, abduction to 120 degrees, internal rotation to 80 degrees, and external rotation to 90 degrees. The examiner was unable to test additional limitations after three repetitions of range of motion because the Veteran was unable to perform the tests due to moderate pain. X-rays showed mild degenerative joint disease at the acromioclavicular joint. 2011 and 2012 VA outpatient treatment records show continued treatment for left shoulder pain. In August and December 2011 pain was noted to be constant. In March 2012 the Veteran reported the shoulder hurt; it was noted that there was good range of motion. On review of the record Board finds initially that the Veteran's service connected left shoulder disability is most appropriately rated under Code 5201 criteria (for limitation of motion of the arm). The record shows that the predominant residual manifestation/function impairment of the left shoulder fracture is limitation of motion due to pain. As was discussed above, pathology required for ratings in excess of those assigned/being assigned under Codes 5200, 5202, 5203 is not shown. Furthermore, to the extent that by virtue of his report to a May 2011 VA examiner that he is ambidextrous, the Veteran seeks to have the left shoulder rated as the major shoulder, the Board finds such report to not be credible. It is contradicted by the clinical notation by a June 1998 VA examiner that the Veteran is right-handed. The Board finds that June 1998 notation to be more probative than his recent assertion as it was made in a clinical setting, with no ulterior motive evident, and not placed in conflict prior to the May 2011 examination. The Veteran's May 2011 report that he is ambidextrous is clearly self-serving/compensation-driven, and is supported by any clinical observation/testing. Accordingly, the Board finds that the Veteran's left shoulder is the minor one (and is to be rated as such). 38 C.F.R. § 4.69. Prior to November 3, 2009, limitation of motion at the shoulder level due to the left shoulder disability was not shown. In that regard, while range of motion studies on July 2004VA examination were noted to be restricted, it was specifically indicated that this was so because of pacemaker (for nonservice-connected cardiac disability) positioning; flexion appeared normal. November 2007 VA outpatient treatment records reveal the Veteran was able to abduct his shoulder above 90 degrees. Consequently, a rating in excess of the 10 percent rating assigned (apparently by analog) under Code 5203 is not warranted prior to November 3, 2009. From November 3, 2009 (the date of a VA examination) it is reasonably shown that the Veteran's residuals of left (minor) shoulder acromion fracture are manifested by limitation of motion at the shoulder level and up to midway between the side and shoulder level due to pain. Even with consideration of the factors of pain and use, motion was limited, but still possible to 50 degrees, after repetitive testing on that examination. Such finding reasonably establishes entitlement to the minimum compensable rating of 20 percent for disability of the minor shoulder under Code 5201. A rating in excess of 20 percent is not warranted for the left shoulder disability because at no time under consideration is left shoulder motion shown to be limited (due to the service-connected disability) to 25 degrees from the side, even with such factors as pain and use considered. Significantly, the November 2009 VA examiner found that effective functional range of left shoulder motion (to include restrictions due to pain) was to 50 degrees from the side.. The Board has considered whether referral for extraschedular consideration is indicated. The evidentiary record does not show any manifestations of, or functional impairment due to residuals of left shoulder acromion fracture that are not encompassed by the schedular criteria. The reported complaints of pain and functional impairment found are fully contemplated by the schedular criteria for the staged ratings assigned. Consequently, those criteria are not inadequate, and referral for extraschedular consideration is not indicated. See Thun v. Peake, 22 Vet. App. 111 (2008). Finally, a TDIU rating was denied by an unappealed May 2009 rating decision. However, such matter was re-raised since by the Veteran's reports on May 2011 VA examination in the context of the two increased rating claims on appeal, and is addressed in the remand below. See Rice v. Shinseki, 22 Vet. App. 447, 452-53 (2009). ORDER A 20 percent rating is granted for residuals of a left shoulder acromion fracture from November 3, 2009, subject to the controlling regulations governing monetary awards; ratings for the disability in excess of 10 percent prior to November 3, 2009 and/or in excess of 20 percent from that date are denied. REMAND The Board finds that further development of the record is necessary to comply with VA's duty to assist the Veteran in the development of facts pertinent to the claim for a rating in excess of 40 percent for residuals of an L-1 fracture. In February 2011 this matter was remanded for an orthopedic examination to determine the current severity of the disability. The examiner was to report the clinical findings in sufficient detail to allow for rating the lumbar spine under all pertinent criteria, and to specifically note whether the lumbar spine was ankylosed, whether there were associated neurological symptoms (and if so their nature and severity), and whether or not the disability had been manifested by incapacitating episodes (and if so their durations and frequency). When VA orders an examination, VA must ensure the examination is adequate and if not, pursue corrective action. The report of the VA spine examination in May 2011 conducted pursuant to the Board's remand is inadequate for rating purposes and an addendum opinion is needed. First, in response to the question of whether the lumbar spine is ankylosed the examiner responded that there were "no signs of ankylosing spondylitis in the lumbar spine." This statement is nonresponsive to the question posed; furthermore, it conflicts with medical evidence dated both prior to and after the examination. Specifically, a June 2004 letter from Dr. R.G.T. shows the Veteran was under rheumatoid care by VA for treatment of ankylosing spondylitis. On VA examination in July 2004, the Veteran was noted to have ankylosing spondylitis. X-rays showed fusion of the sacroiliac joints. In April 2003, Dr. R.G.T. noted the Veteran had ankylosing spondylitis of 20 years duration. VA outpatient treatment records dated between 2003 and 2008 also show such diagnosis. A January 2006 entry notes ankylosing spondylitis with significant structural disease of the vertebral column, progressive spastic paraparesis, bulbar weakness, and overlapping neuropathies likely including a distal diabetic polyneuropathy and polyradiculoneuropathy. December 2011 VA treatment records note the Veteran had ankylosing spondylitis with "bamboo spine", and in July 2011 severe ankylosing spondylitis with almost complete fusion of the spine was diagnosed. Next, the examiner was asked to indicate whether there were any associated neurological symptoms (and if so their nature and severity). The examiner found the Veteran had urinary incontinence, urinary urgency, urinary frequency with, nocturia, erectile dysfunction, numbness, paresthesias, and foot weakness. The examination report poses the question "is etiology of these symptoms unrelated to claimed disability" and in response states "no" (see p. 6 of examination report). The inference from this is that the Veteran has various neurological manifestations of the disability at issue. The RO neither sought clarification nor considered these symptoms in rating the disability at issue. Notably, the Veteran has nonservice- connected disability (diabetes) which also can have neurological manifestations. Furthermore, there is no clear RO determination as to whether the intervertebral disc disease shown and/or any ankylosing spondylitis are part and parcel of, or secondary to the service-connected residuals of an L1 fracture (they are not listed as service-connected). These matters must be resolved as they are critical to the rating of the service-connected disability. Finally, a May 2009 rating decision denied the Veteran a TDIU rating, and he did not appeal that determination. However, on May 2011 VA examination he reported that he was medically retired due to his back, neck, and shoulder disabilities. Under Rice, 22 Vet. App. at 452-53 this report re-raises the matter of entitlement to a TDIU rating in the context of the increased rating claims. Accordingly, the case is REMANDED for the following: 1. The RO should arrange for the record to be forwarded to the examiner on May 11, 2011, VA examination for review and an addendum opinion. [If further examination is necessary to address the questions, such should be arranged; if that examiner is unavailable, the RO should arrange for another orthopedic examination that addresses the questions posed.] Based on review of the record (to include this remand) and any additional examination of the Veteran indicated, the examiner is asked to provide addendum opinions as to the following: a) Please identify (by medical diagnosis) all disability entities of the spine shown. Specifically, does the Veteran have ankylosing spondylitis? If it is found that he does not have ankylosing spondylitis, such finding must be reconciled with the clinical records showing he has been receiving treatment for such disability. b) Please opine as to each spine disability entity diagnosed, to specifically include degenerative disc disease and ankylosing spondylitis, whether such is part and parcel of, or was caused or aggravated by, the Veteran's service-connected residuals of an L 1 fracture? c) Is the Veteran's spine ankylosed? Any negative response must be reconciled with the July 2011 VA treatment record showing a diagnosis of severe ankylosing spondylitis with almost complete fusion of the spine. d) If disc disease is deemed to be part and parcel of (or caused or aggravated by) the service connected L 1 fracture residuals, please opine whether there are any neurological manifestations of such diagnosis (or any other related back pathology), to include urinary incontinence, urgency, frequency, or nocturia; erectile dysfunction; numbness; paresthesias; and foot weakness. Any negative response must be reconciled with the May 2011 VA examination report indicating that such symptoms are not unrelated. The examiner must explain the rationale for all opinions, with citation to factual data and/or medical literature, as indicated. 2. The RO should then review the record and readjudicate the Veteran's claim for increase. The readjudication must include determinations as to whether thoracolumbar disc disease is part and parcel of (or secondary to) the service connected disability at issue; whether there are any separately ratable neurological manifestations; and whether or not any further pathology (such as ankylosing spondylitis) is part and parcel of/secondary due the L 1 fracture residuals. The RO should also develop and adjudicate the re-raised (since the prior denial) claim for a TDIU rating (the Veteran should be advised that such matter will only be before the Board if he perfects an appeal of any negative determination. If the benefit sought remains denied, the RO should issue an appropriate supplement statement of the case and afford the Veteran and his representative the opportunity to respond. The case should then be returned 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 for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ______________________________________________ GEORGE R. SENYK Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs