Citation Nr: 1301849 Decision Date: 01/16/13 Archive Date: 01/23/13 DOCKET NO. 05-18 591 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Diego, California THE ISSUES 1. Entitlement to an increased evaluation for bilateral hearing loss, currently evaluated as noncompensable prior to April 4, 2007, and as 10 percent disabling from April 4, 2007. 2. Entitlement to an increased evaluation for acromioclavicular separation, right shoulder, post-Mumford procedure, currently evaluated as 20 percent disabling. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD J. Davitian, Counsel INTRODUCTION The Veteran served on active duty from July 1964 to December 1968. This case is before the Board of Veterans' Appeals (BVA or Board) on appeal from a May 2004 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in San Diego, California. The rating decision continued a noncompensable evaluation for bilateral high frequency hearing loss, and continued a 10 percent disability rating for acromioclavicular separation, right shoulder. In a July 2007 decision, a Decision Review Officer (DRO) assigned a 10 percent disability rating for bilateral high frequency hearing loss, effective April 4, 2007. In the same decision, the DRO also assigned a 20 percent disability rating for acromioclavicular separation, right shoulder, effective September 19, 2003; a 100 percent disability rating effective March 27, 2007; and a 20 percent disability rating effective May 1, 2007. In a March 2010 statement of the case (SOC), and in supplemental statements of the case (SSOCs) dated in January 2010, June 2011 and April 2012, the RO addressed the issue of entitlement to an earlier effective date for the assignment of the 10 percent rating for the bilateral hearing loss disability. However, because the Veteran's appeal originated from the May 2004 rating decision that denied a compensable evaluation, he is actually appealing the original denial of an increased evaluation. Thus, the claim actually involves the propriety of the disability rating assigned during the entire appeal period. See Hart v. Mansfield, 21 Vet. App. 505 (2007) (finding staged ratings appropriate also in cases where the appeal was not as to the initial rating assigned after service connection is established). The Veteran's rating was increased during the course of the appeal; however, the claim for a higher rating for bilateral hearing loss remains before the Board because the staged ratings assigned for the periods remain less that the maximum available benefit awardable for each period. See AB v. Brown, 6 Vet. App. 35 (1993). Thus, the issue on appeal does not include the question of entitlement to an earlier effective date for the rating assigned subsequent to the rating action on appeal. The claim is as noted on the title page. The issue of entitlement to an increased evaluation for bilateral hearing loss is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. The competent medical, and competent and credible lay, evidence of record does not show that the Veteran's acromioclavicular separation, right shoulder, post-Mumford procedure, resulted in limitation of motion of the major arm to midway between side and shoulder level, prior to February 14, 2012. 2. The competent medical, and competent and credible lay, evidence of record shows that the Veteran's acromioclavicular separation, right shoulder, post-Mumford procedure, has resulted in limitation of motion of the major arm to midway between side and shoulder level, from February 14, 2012; it does not show that the Veteran's acromioclavicular separation, right shoulder, post-Mumford procedure, has resulted in limitation of the major arm to 25 degrees from the side. CONCLUSIONS OF LAW 1. The criteria for an evaluation in excess of 20 percent for acromioclavicular separation, right shoulder, post-Mumford procedure, prior to February 14, 2012, have not been met. 38 U.S.C.A. §§ 1155, 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2009); 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5201 and 5203 (2012). 2. The criteria for a 30 percent evaluation, but not higher, for acromioclavicular separation, right shoulder, post-Mumford procedure, from February 14, 2012, have been met. 38 U.S.C.A. §§ 1155, 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2009); 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5201 and 5203 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Notice and Assistance VA has duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a). See also Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Dingess v. Nicholson, 19 Vet. App. 473 (2006). In an increased rating claim, VA must notify the Veteran to submit evidence showing (1) a worsening or increase in severity of the disability and (2) the effect that worsening has on the claimant's employment. Vazquez-Flores v. Shinseki, 24 Vet. App. 94 (2010). Notice was provided in correspondence date in November 2003 and June 2006. The claim was subsequently readjudicated, most recently in an April 2012 SSOC. Mayfield, 444 F.3d at 1333. With regard to the duty to assist, the claim's file contains the Veteran's service treatment records, VA medical records, and the transcript of an October 2012 hearing before the undersigned Veterans Law Judge. The Board has carefully reviewed the record and concludes that there has been no identification of further available evidence not already of record. Despite the following remand of the Veteran's bilateral hearing loss claim in order to obtain additional VA treatment records, the Board finds that the current record is adequate to adjudicate the Veteran's right shoulder claim. During the hearing, the Veteran testified that his most recent VA treatment for the right shoulder occurred 6 or 8 months earlier, at which time he declined a cortisone shot as they did not last long. A March 2012 VA treatment record in the Veteran's Virtual VA eFolder reflects that the Veteran did not want to resume further physical therapy or injections for his right shoulder. Thus, it appears that a record of the most recent VA treatment, as identified by the Veteran during the hearing, is before the Board. VA examinations with respect to the Veteran's right shoulder were conducted in December 2003, July 2006, June 2007, November 2009 and February 2012. Although none of the VA examination reports state that the examiner reviewed the Veteran's claims file or medical records, the evaluations were to assess the current levels of the disability. The examiners considered the Veteran's medical history, including his lay reports of his symptomatology; described the Veteran's disability in sufficient detail; and fully described the functional effects caused by the Veteran's shoulder disability. Stefl v. Nicholson, 21 Vet. App. 120 (2007). Thus, there is adequate medical evidence of record to make a determination in this case, and additional development by way of another examination would be redundant and unnecessary. See 38 C.F.R. §§ 3.326 and 3.327 and Green v. Derwinski, 1 Vet. App. 121 (1991). 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 his claim. Legal Analysis With respect to the Veteran's claim, the Board has reviewed all of the evidence in the claims file, with an emphasis on the evidence relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence of record. Indeed, the Court of Appeals for the Federal Circuit (Federal Circuit) has held that the Board must review the entire record, but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Therefore, the Board will summarize the relevant evidence where appropriate, and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, as to the claim. Disability evaluations are determined by comparing a veteran's present symptoms with criteria set forth in the VA's Schedule for Rating Disabilities (Rating Schedule), which is based on average impairment in earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. Where an increase in an existing disability rating based upon established entitlement to compensation is at issue, the present level of disability is the primary concern. Francisco v. Brown, 7 Vet. App. 55 (1994). However, staged ratings are appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). When a question arises as to which of two ratings applies under a particular code, the higher rating is assigned if the disability more closely approximates the criteria for the higher rating. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the veteran. 38 U.S.C.A. § 5107; 38 C.F.R. §§ 3.102, 4.3. When evaluating joint disabilities rated on the basis of limitation of motion, VA may consider granting a higher rating in cases in which functional loss due to pain, weakness, excess fatigability, or incoordination is demonstrated, and those factors are not contemplated in the relevant rating criteria. See 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202 (1995). The Veteran's right (major) shoulder is evaluated under Diagnostic Code 5203-5201 for impairment of the clavicle or scapula, and limitation of motion of the arm, respectively. Diagnostic Code 5203 does not provide an evaluation in excess of 20 percent. Diagnostic Code 5201 provides a 30 percent evaluation for limitation of motion of the major arm to midway between side and shoulder level. A 40 percent evaluation is warranted for limitation of the major arm to 25 degrees from the side. The normal range of motion of the shoulder 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 (2012). In determining whether the Veteran has limitation of motion to shoulder level, it is necessary to consider forward flexion and abduction. See Mariano v. Principi, 17 Vet. App. 305, 314-16 (2003). The Veteran submitted a claim for increased rating in September 2003. VA treatment records dated during the appeal period reflect complaints of right shoulder pain. Treatment included physical therapy, surgery in 2007, a TENS unit and medication. The report of the December 2003 VA examination sets forth the relevant history, the Veteran's subjective complaints, and examination results. The Veteran complained of significant pain with overhead activities, and pain at night that kept him awake. He did not complain of any instability or incoordination, but did have easy fatigability and weakness with overhead activities. On physical examination, the Veteran had range of motion of 180 degrees of forward elevation, 170 degrees of abduction, and positive pain with the shoulder abducted at 90 degrees over the AC joint. The report of the July 2006 VA examination sets forth the relevant history, the Veteran's subjective complaints, and examination results. The Veteran complained of significant pain with overhead activities, and pain at night that kept him awake if he rolled over on the right shoulder. He complained of pain with abduction over the AC joint with popping and catching. He denied any incoordination, weakness or fatigability related to the shoulder. On physical examination, the Veteran had forward flexion and abduction of 170 degrees. The examiner commented that the right shoulder joint had no additional flares, no further loss in range of motion, and no further loss in functional capacity beyond that expected for age and gender by pain, fatigue, weakness or lack of endurance after repetitive use. The report of the June 2007 VA examination sets forth the relevant history, the Veteran's subjective complaints, and examination results. The report notes that the Veteran underwent VA shoulder surgery in March 2007 and had noticed a reduction in grinding sensation. He still had pain with elevating the arm and carrying weights with the right arm. He had no slings or support devices recently. He was unable to sleep on the right shoulder without being awakened. On physical examination, the Veteran had 120 degrees of abduction and flexion. There was some crepitus and discomfort, particularly with abduction and flexion, and he was limited by pain. There was no evidence of weakness, fatigue, lack of endurance, or incoordination on repeat testing. The examiner summarized that there was no additional limitation due to flare-ups, but the Veteran was limited in ability to raise his right arm overhead and perform any weight-bearing activities in that position. He was also somewhat limited in ability to carry weight with axial traction on the arm and shoulder. The report of the November 2009 VA examination provides that the Veteran's claims file was not available. It sets forth the relevant history, including that the Veteran underwent VA right shoulder surgery in 2007. It also sets forth the Veteran's subjective complaints and examination results. The Veteran had received some steroid injections with some help but his right shoulder continued to keep him awake at night. He took Naproxen and sulindac (sic) for the 2/10 pain in the anterior shoulder around the acromion. He had some difficulty carrying groceries which caused the pain to flare to 9/10, and he had pain with opening doors and raising his arms. On physical examination, the Veteran had 160 degrees of abduction and flexion, with pain after 90 degrees. He had normal strength, coordination and endurance, with no fatigability noted on repeated tests. The cross arm adduction test was positive in the right shoulder, and he had pain with the Jobe empty can test, although strength was normal. The examiner commented that the Veteran was limited in carrying more than 10 to 20 pounds, which increased his pain level, and had some difficulty with routine activities such as raising his arm or lifting overhead. There was no additional impairment due to flare-ups, however. The report of the February 14, 2012, VA examination provides that the Veteran's claims file was not available. It sets forth the relevant history, the Veteran's subjective complaints, and examination results. The Veteran continued to have 8/10 pain and difficulty carrying grocery bags. He had been treated with injections and physical therapy and took Tylenol as needed for pain. On physical examination, the Veteran had right shoulder flexion to 90 degrees, with objective evidence of painful motion beginning at 45 degrees. The Veteran had right shoulder abduction to 90 degrees, with objective evidence of painful motion beginning at 45 degrees. The Veteran was able to perform repetitive-use testing with 3 repetitions with flexion and abduction ending at 90 degrees. The Veteran had no additional limitation in range of motion of the shoulder and arm following repetitive-use testing. He did have functional loss and/or functional impairment of the shoulder and arm. He had less movement than normal, weakened movement, excess fatigability and pain on movement. The Veteran had residual signs and/or symptoms due to arthroscopic or other shoulder surgery, described as right side pain and reduced motion. During the October 2012 hearing, the Veteran testified that he had pain and strain just raising his right arm, that began with the motion. He also had pain without motion if he could not rest his right arm on something. The pain averaged 5 or 6/10, and increased to near 10/10 if he did an activity like painting. He took pain medication 3 or 4 times a week, but sometimes did not do so that he would not mask the pain and hurt himself even more. The right shoulder disability made him very careful as to what he did, and prevented sports. Based on a thorough review of the record, the Board finds that the preponderance of the evidence is against an evaluation in excess of 20 percent, prior to February 14, 2012. The foregoing evidence simply does not show that the Veteran's right shoulder disability resulted in limitation of motion of the right arm to midway between side and shoulder level, prior to February 14, 2012. Diagnostic Code 5201. The Board is aware of the Veteran's complaints of pain, made during the examinations prior to February 14, 2012. Lay statements are considered to be competent evidence when describing the features or symptoms of an injury or illness. See Falzone v. Brown, 8 Vet. App. 398, 405 (1995). In this case, however, the Board finds that the effects of pain, prior to February 14, 2012, reasonably shown by the record to be due to the Veteran's service-connected right disability are contemplated in the currently assigned 20 percent evaluation. The relevant VA examinations simply do not show that pain, due to the service-connected right shoulder disability, caused functional loss comparable to limitation of the arm to midway between the side and shoulder level. Diagnostic Code 5201. Moreover, in July 2006 the Veteran denied any incoordination, weakness or fatigability related to the shoulder. The right shoulder joint had no additional flares, no further loss in range of motion and no further loss in functional capacity beyond that expected for age and gender by pain, fatigue, weakness or lack of endurance after repetitive use. In June 2007, the Veteran was limited by pain but there was no evidence of weakness, fatigue, lack of endurance, or incoordination on repeat testing. There was no additional limitation due to flare-ups. In November 2009, the Veteran had no fatigability noted on repeated tests and there was additional impairment due to flare-ups. 38 C.F.R. §§ 4.40, 4.45; DeLuca, supra. Based on a thorough review of the record, the Board finds that the evidence supports a 30 percent evaluation, but not higher, from February 14, 2012, when considering the effect of pain. Deluca, supra. The findings in the February 14, 2012, VA examination report demonstrate limitation of motion of the arm to midway between the side and shoulder level. In this regard, the Board finds it significant that there was objective evidence of painful motion beginning at 45 degrees of flexion and abduction, and that following repetitive-use testing the Veteran had less movement than normal, weakened movement, excess fatigability and pain on movement. Thus, a 30 percent evaluation is warranted, effective February 14, 2012. 38 C.F.R. §§ 4.40, 4.45; DeLuca, supra. The Board has considered entitlement to a 40 percent evaluation, effective February 14, 2012. However, the Board finds that the effects of pain reasonably shown by the record to be due to the Veteran's service-connected right shoulder disability are contemplated in the 30 percent evaluation being assigned by this decision. The foregoing evidence simply does not show that pain, due to the service-connected right shoulder disability, has caused functional loss comparable to limitation of motion of the right arm to 25 degrees from the side. Diagnostic Code 5201; 38 C.F.R. §§ 4.40, 4.45; DeLuca, supra. Additionally, the record contains no indication that the rating criteria are inadequate to rate the Veteran's disability. The discussion above reflects that the symptoms of the Veteran's right shoulder disability are contemplated by the applicable rating criteria. The competent medical evidence of record shows that the right shoulder disability is primarily manifested by limitation of motion due to pain. Many of the applicable diagnostic codes used to rate the Veteran's disability provide for ratings based on limitation of motion and instability, and the effects of pain and functional impairment have been taken into account and are considered in applying the relevant criteria in the rating schedule. See 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca, 8 Vet. App. 202. Therefore, the Veteran's disability picture is contemplated by the rating schedule, the assigned evaluation is therefore adequate, and no referral for extraschedular consideration is required. See Thun v. Peake, 22 Vet. App. 111 (2008). The Board is cognizant of the ruling of the Court in Rice v. Shinseki, 22 Vet. App. 447 (2009). In Rice, the Court held that a claim for a TDIU, either expressly raised by the Veteran or reasonably raised by the record, involves an attempt to obtain an appropriate rating for a disability and is part of the claim for an increased rating. In this case, the Veteran has not argued, and the record does not otherwise reflect, that his right shoulder disability renders him totally unemployable. In fact, during the October 2012 hearing the Veteran testified that he retired due to health reasons unrelated to his service-connected right shoulder. In August 2012 correspondence, the RO informed the Veteran that he had been granted a 100 percent evaluation for service-connected ischemic heart disease, effective September 2011, and asked if he wanted to continue a claim for a TDIU and paragraph 30 benefits. The letter informed the Veteran that if VA did not hear from him within 30 days from the date of the letter, VA would assume he did not intend to pursue the claim. The claims file does not contain a response from the Veteran. He also failed to raise the issue during the hearing. Accordingly, the Board concludes that a claim for TDIU has not been raised. In sum, the preponderance of the evidence demonstrates that the Veteran is not entitled to an evaluation in excess of 20 percent for acromioclavicular separation, right shoulder, post-Mumford procedure, prior to February 14, 2012. The evidence supports a 30 percent evaluation for acromioclavicular separation, right shoulder, post-Mumford procedure, from February 14, 2012. The preponderance of the evidence demonstrates that the Veteran is not entitled to an evaluation in excess of 30 percent for acromioclavicular separation, right shoulder, post-Mumford procedure, from February 14, 2012. Thus, the benefit of the doubt doctrine is not for application. See generally Gilbert v. Derwinski, 1 Vet. App. 49 (1990); Ortiz v. Principi, 274 F. 3d 1361 (Fed. Cir. 2001). ORDER An evaluation in excess of 20 percent for acromioclavicular separation, right shoulder, post-Mumford procedure, prior to February 14, 2012, is denied. A 30 percent evaluation, but not higher, for acromioclavicular separation, right shoulder, post-Mumford procedure, from February 14, 2012, is granted, subject to the rules and regulations governing the award of monetary benefits. REMAND A preliminary review of the record indicates that the Veteran's hearing loss claim requires additional development. During the October 2012 hearing, the Veteran specifically stated that this disability had increased in severity since his most recent VA Compensation and Pension examination. The Veteran's most recent VA examination was conducted more than five years ago. When a veteran claims that a disability is worse than when originally rated, and the available evidence is too old to adequately evaluate the current state of the condition, VA must provide a new examination. See Olsen v. Principi, 3 Vet. App. 480, 482 (1992), citing Proscelle v. Derwinski, 2 Vet. App. 629, 632 (1992). Therefore, the Board finds that the Veteran's service-connected bilateral hearing loss warrants another VA examination to address its current severity. Also during the hearing, the Veteran stated that he had undergone a VA outpatient audiogram the previous month. The most recent VA treatment record before the Board is dated in March 2012; thus, the record does not include the September 2012 VA outpatient audiogram. VA treatment records are deemed to be constructively of record in proceedings before the Board. Bell v. Derwinski, 2 Vet. App. 611, 613 (1992). Accordingly, the case is REMANDED for the following action: 1. Obtain and associate with the claims file all VA treatment records that have not been associated with the claims file, to include all treatment records dated on and after March 1, 2012. 2. Schedule the Veteran for an examination by an appropriate VA examiner to determine the nature and current level of severity of the Veteran's service-connected bilateral hearing loss. The claims file must be made available to the examiner. The examination should comply with AMIE protocols for the appropriate examination. A complete rationale for all opinions expressed must be provided. 3. Then, readjudicate the Veteran's claim. If the benefit sought on appeal remains denied, the Veteran and his representative should be provided an SSOC and afforded an opportunity to respond. The case should be returned to the Board for appellate review. The appellant 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. 2012). ______________________________________________ M. E. LARKIN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs