Citation Nr: 1304302	
Decision Date: 02/06/13    Archive Date: 02/19/13

DOCKET NO.  09-40 446	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania


THE ISSUE

Entitlement to higher initial ratings for a service-connected right shoulder disability, rated as noncompensable (zero percent disabling) from March 4, 2005 to January 23, 2007, and from August 1, 2007 to September 17, 2010; as 10 percent disabling from September 18, 2010 to February 5, 2012; and as 20 percent disabling as of February 6, 2012.  


REPRESENTATION

Veteran represented by:	New Jersey Department of Military and Veterans' Affairs


ATTORNEY FOR THE BOARD

Michael Wilson, Associate Counsel


INTRODUCTION

The Veteran served on active duty from November 1981 to November 1984, from January 1991 to December 1991, and from May 2004 to March 2005.

This matter comes to the Board of Veterans' Appeals (Board) on appeal from a February 2008 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania, which, in relevant part, granted service connection for residuals of a right shoulder injury and assigned a noncompensable disability rating, effective March 4, 2005.  

The Veteran indicated in his March 2008 substantive appeal, that he would like to be scheduled for a hearing before a Veteran's Law Judge.  In June 2011, he withdrew his hearing request.  See 38 C.F.R. § 20.704(e) (2012).

The RO subsequently granted a temporary total rating for convalescence from January 24 to April 30, 2007.  The award was based on right shoulder surgery performed in January 2007.

In a May 2011 rating decision, the RO increased the rating for the shoulder disability to 10 percent, effective September 18, 2010.  

In November 2011, the Board extended the total temporary rating for convalescence to July 31, 2007.  The Board additionally remanded the appeal of the initial rating for further development.

In a July 2012 rating decision, the RO increased the rating for the right shoulder disability to 20 percent, effective February 6, 2012. 


FINDINGS OF FACT

1.  From March 4, 2005 to January 23, 2007, and from August 1, 2007 to February 5, 2012, the Veteran's right shoulder disability was manifested by noncompensable limitation of motion accompanied by some painful motion without dislocation, nonunion, malunion or fibrous union of the clavicle or humerus.  

2.  For the period beginning February 6, 2012, the Veteran's service-connected right shoulder disability has been manifested by limitation of motion of the arm to shoulder level without dislocation, nonunion, malunion or fibrous union of the clavicle or humerus.  


CONCLUSIONS OF LAW

1.  The criteria for an initial 10 percent disability rating, but not higher, for a service-connected right shoulder disability were met from March 4, 2005 to January 23, 2007, and from August 1, 2007 to February 5, 2012.  38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.321, 4.1, 4.2, 4.3, 4.6, 4.7, 4.10, 4.40, 4.45 4.59, 4.71a, Diagnostic Codes (DC) 5003, 5201 (2012).

2.  The criteria for an initial rating in excess of 20 percent for a service-connected right shoulder disability have been met since February 6, 2012.  38 U.S.C.A. § 1155; 38 C.F.R. §§ 3.321, 4.1, 4.2, 4.3, 4.6, 4.7, 4.10, 4.40, 4.45 4.59, 4.71a, DC 5201 (2012).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I.  Duties to Notify and Assist

The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance.  38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); Pub.L. 112-154, §§ 504(a)(1)-(2), 505(a)-(b) (Aug. 6, 2012) (to be codified at 38 U.S.C.A. §§ 5103(a)-(b), 5103A(b)-(c)); 38 C.F.R §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012).   

Here, the Veteran is challenging the initial evaluations assigned following the grant of service connection.  Courts have held that once service connection is granted, the claim is substantiated, additional notice is not required, and any defect in the notice is not prejudicial.  See Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlop v. Nicholson, 21 Vet. App. 112 (2007).  Therefore, the duty to notify has been met to the extent necessary in this case.

Regarding the duty to assist, the RO has obtained the Veteran's VA and private treatment records and has provided the Veteran with multiple VA examinations.  As discussed below, the examinations taken together provide sufficient information to rate the disabilities.

The RO/AMC substantially complied with the Board's November 2011 remand directives with respect to this claim.  See Dyment v. West, 13 Vet. App. 141, 146-47 (1999); Stegall v. West, 11 Vet. App. 268 (1998).  The Board specifically instructed the RO/AMC to schedule the Veteran for a new and contemporaneous VA examination to assess the current severity of his service-connected disability.  He was afforded an adequate VA orthopedic examination that assessed the severity of his right shoulder disability in February 2012.  This examination did not include specific findings pertaining to impairment of the Veteran's humerus, but diagnostic studies considered in the examination report, including X-ray and MRI reports, did not document any impairment of the humerus.  The examination reports have documented the absence of any reports of dislocation.  Hence, the examination report substantially complied with the remand instructions and was adequate to correctly rate the right shoulder disability.  See 38 C.F.R. § 4.2 (2012); Barr v. Nicholson, 21 Vet. App. 303, 311 (2007).  

Accordingly, the duty to assist has been satisfied and there is no reasonable possibility that any further assistance to the Veteran by VA would be capable of substantiating his claim.  See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994).  Because VA's duties to notify and assist have been met, the appeal is ready for adjudication on the merits.  


II.  Initial Ratings

      A.  Governing Law and Regulations
      
Disability ratings are based on the average impairment of earning capacity resulting from a disability.  38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.1 (2012).  An evaluation of the level of disability present includes consideration of the functional impairment of the Veteran's ability to engage in ordinary activities, including employment.  38 C.F.R. § 4.10 (2012).  Separate diagnostic codes identify the various disabilities.  

Where there is a question as to which of two evaluations shall be applied, the higher evaluations will be assigned if the disability more closely approximates the criteria required for that rating.  38 C.F.R. § 4.7 (2012).  Otherwise, the lower rating will be assigned.  Id.

In view of the number of atypical instances it is not expected, especially with the more fully described grades of disabilities, that all cases will show all the findings specified.  Findings sufficiently characteristic to identify the disease and the disability therefrom, and above all, coordination of rating with impairment of function will, however, be expected in all instances.  38 C.F.R. § 4.21 (2012). 

In considering the severity of a disability, it is essential to trace the medical history of the Veteran.  See 38 C.F.R. §§ 4.1, 4.2, 4.41 (2012).  Consideration of the whole recorded history is necessary so that a rating may accurately reflect the elements of disability present.  See 38 C.F.R. §§ 4.2 (2012); Peyton v. Derwinski, 1 Vet. App. 282 (1991).

In Fenderson v. West, 12 Vet. App 119 (1999), the Court emphasized the distinction between a new claim for an increased evaluation of a service-connected disability and a case, such as this one, where a veteran expresses dissatisfaction with the assignment of an initial disability evaluation where the disability in question has just been recognized as service-connected.  In these cases, VA must assess the level of disability from the date of initial application for service connection and determine whether the level of disability warrants the assignment of different disability ratings at different times over the life of the claim-a practice known as "staged rating."  Id.  

In general, all disabilities, including those arising from a single disease entity, are rated separately, and all disability ratings are then combined in accordance with 38 C.F.R. § 4.25.  However, the evaluation of the same "disability" or the same "manifestations" under various diagnoses is not allowed.  See 38 C.F.R. § 4.14 (2012).

The assignment of a particular diagnostic code is "completely dependent on the facts of a particular case."  See Butts v. Brown, 5 Vet. App. 532, 538 (1993).  One diagnostic code may be more appropriate than another based on such factors as an individual's relevant medical history, and the diagnosis and demonstrated symptomatology.  Any change in a diagnostic code by a VA adjudicator must be specifically explained.  See Pernorio v. Derwinski, 2 Vet. App. 625, 629 (1992).

The Veteran bears the burden of presenting and supporting his claims for benefits.  38 U.S.C.A. § 5107(a) (West 2002).  In its evaluation, the Board considers all information and lay and medical evidence of record.  38 U.S.C.A. § 5107(b) (West 2002).  When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Board gives the benefit of the doubt to the claimant.  Id.

      B.  Analysis

Disabilities of the shoulder are rated under Diagnostic Codes 5200 through 5203.  38 C.F.R. § 4.71a, DCs 5200-5203 (2012).  The diagnostic codes for the shoulder and arm provide different ratings for the minor arm and the major arm impairment, i.e., whether the Veteran is right or left handed.  The medical evidence of record, to include the February 2012 VA examination report, confirms that the Veteran is right hand dominant.  

The Veteran's right shoulder disability has been rated under Diagnostic Code 5201, which provides rating criteria for limitation of arm motion.  Under this diagnostic code, a 20 percent disability rating is assigned for motion of the arm limited at the shoulder level.  A 30 percent disability rating is assigned when motion of the major arm is limited to midway between the side and shoulder level.  The maximum 40 percent disability rating is assigned for the major arm that is limited to 25 degrees from the side.  38 C.F.R. § 4.71a, DC 5201 (2012).

In determining whether the Veteran has limitation of motion to shoulder level, it is necessary to consider reports of forward flexion and abduction.  Mariano v. Principi, 17 Vet. App. 305, 314-16 (2003); see 38 C.F.R. § 4.71, Plate I (2012).  Normal ranges of motion of the shoulder are flexion (forward elevation) from 0 degrees to 180 degrees, abduction from 0 degrees to 180 degrees, external rotation from 0 degrees to 90 degrees, and internal rotation from 0 degrees to 90 degrees.  38 C.F.R. § 4.71, Plate I.

Diagnostic Code 5202 provides the rating criteria for impairment of the humerus.  Under these criteria, a 20 percent rating is warranted for malunion of the humerus of the major arm with moderate deformity, or if there are infrequent episodes of dislocation of the major shoulder and guarding of arm movement at the shoulder level.  A 30 percent disability rating is warranted for malunion of the humerus of the major arm with marked deformity, or if there are frequent episodes of dislocation of the major shoulder and guarding of all arm movements.  Where there is a fibrous union of the humerus in the major extremity, a 50 percent disability rating is contemplated.  Nonunion of the humerus (false flail joint) of the major extremity warrants assignment of a 60 percent disability rating, and a loss of the head of the humerus (flail shoulder) of the major extremity warrants assignment of an 80 percent disability rating.  38 C.F.R. § 4.71a, DC 5202 (2012).

Diagnostic Code 5203 rates impairment of the clavicle or scapula.  Under these criteria, a 10 percent rating is warranted for malunion of the clavicle or scapula, or for non union of the clavicle or scapula without loose movement.  A 20 percent rating is warranted for nonunion of the clavicle or scapula with loose movement, or for dislocation of the clavicle or scapula.  Diagnostic Code 5203 also provides that impairment of either the clavicle or scapula may alternatively be rated based on impairment of function of a contiguous joint.  38 C.F.R. § 4.71a, DC 5203 (2012).

Diagnostic Code 5200 rates ankylosis of scapulohumeral joint.  A 30 percent rating is warranted where there is favorable ankylosis and there is abduction to 60 degrees of the major shoulder.  A 40 percent rating is for application where ankylosis of the major shoulder is intermediate between favorable and unfavorable.  A 50 percent evaluation is warranted where ankylosis of the major shoulder is unfavorable, with abduction limited to 25 degrees from the side.  The note associated with this Diagnostic Code indicates that ankylosis contemplates movement of the scapula and humerus as one piece.  38 C.F.R. § 4.71a, DC 5200 (2012).  

Diagnostic Code 5010 applies to traumatic arthritis and provides that such is evaluated under the criteria for 38 C.F.R. § 4.71a, DC 5003 (2012).  

Diagnostic Code 5003 provides that degenerative arthritis is to be rated on the basis of limitation of motion of the affected joint under the appropriate diagnostic code for the specific joint or joints involved.  When the limitation of motion of the specific joint or joints involved is noncompensable under the appropriate diagnostic code, a rating of 10 percent is for application for each such major joint group or minor joint group affected by limitation of motion.  In the absence of limitation of motion, a 20 percent evaluation is provided where there is X-ray evidence of involvement of two or more major joints, or two of more minor joint groups with occasional incapacitating exacerbations.  A 10 percent evaluation is provided where there is X-ray evidence of involvement of two or more major joints, or two of more minor joint groups without exacerbations.

For disabilities evaluated on the basis of limitation of motion, VA is required to apply the provisions of 38 C.F.R. §§ 4.40, 4.45, pertaining to functional impairment.  The Court has instructed that in applying these regulations VA should obtain examinations in which the examiner determined whether the disability was manifested by weakened movement, excess fatigability, incoordination, or pain.  Such inquiry is not to be limited to muscles or nerves.  These determinations are, if feasible, to be expressed in terms of the degree of additional range-of-motion loss due to any weakened movement, excess fatigability, incoordination, flare-ups, or pain.  DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Mitchell v. Shinseki, 25 Vet. App. 32 (2011); Johnston v. Brown, 10 Vet. App. 80, 84-5 (1997); 38 C.F.R. § 4.59 (2012).

Although § 4.40 does not require a separate rating for pain, it does provide guidance for determining ratings under other diagnostic codes assessing musculoskeletal function.  Painful motion is an important factor of disability, and it is the intention of the Rating Schedule to recognize actually painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint.  See 38 C.F.R. § 4.59 (2012); Burton v. Shinseki, 25 Vet. App. 1 (2011) (holding that 38 C.F.R. 4.59 is not just limited to arthritis).  Functional loss due to pain is rated at the same level as functional loss where motion is impeded.  See Schafrath v. Derwinski, 1 Vet. App. 589, 592 (1991).  

VA's policy is to recognize actually painful motion as warranting at least the minimum compensable rating.  38 C.F.R. § 4.59.  A finding of functional loss due to pain, however, must be supported by adequate pathology and evidenced by the visible behavior of the Veteran.  38 C.F.R. § 4.40 (2012); Johnston v. Brown, 10 Vet. App. 80, 85 (1997).  Although pain may cause a functional loss, pain itself does not constitute functional loss that would warrant a rating above the minimal compensable level.  Mitchell v. Shinseki, 25 Vet. App. 32 (2011).  Pain must affect some aspect of "the normal working movements of the body" such as "excursion, strength, speed, coordination, and endurance," in order to constitute functional loss.  Id. at 38; see 38 C.F.R. § 4.40 (2012).

The Veteran first presented to the VA Medical Center for care in August 2005, when he reported that he experienced pain inside the shoulder from front to back and that this pain was worse with pulling and turning the arm.  He reported that raising his arm caused pain.  On examination, he was noted to have pain with forward rotation and to have 1/2 strength in the right arm compared with 2/2 strength in the left arm.  He was unable to adduct his arm from above his head to the side; at the height of his shoulder, his arm dropped.  

In an October 2005 VA consultation, he reported chronic right shoulder pain since in-service injury.  While he was noted to have a full range of motion, he was found to have a painful arc of motion between about 60 and 120 degrees of abduction.  Passive palpation revealed mild right subacromial tenderness.  Resisted right shoulder abduction and external rotation were painful.  Right rotator cuff muscle strength was 4/5.  The plan was to refer him to physical therapy.  

During a March 2006 VA outpatient consultation, the Veteran's right shoulder was noted to be better since September 2005, as he had been doing physical therapy exercises daily.  

A November 2006 MRI report revealed the following findings: a full thickness, full width tear of the supraspinatus tendon; an extensive undersurface tear of the intraspinatus tendon, which had an interstitial delamination component, and a focal undersurface tear of the subscapularis; biceps tendinosis with slight subluxation of the biceps tendon relative to the groove with an amorphous appearance of the transverse humeral ligament; type III acromion AC joint arthritis; moderate joint effusion extending to the subacromial bursa; and edema and apparent impaction of the greater tuberosity.  

Records from Rothman Institute reveal that the Veteran underwent surgery on his right shoulder in January 2007.  The surgery included open chronic rotator cuff repair, subacromial decompression, distal clavicle excision (Mumford procedure) and biceps tenodesis.  In July 2007, six months following his surgery, he was noted to have a well-healed incision, attached deltoid, and to have shoulder motion to 170 degrees of elevation, 70 degrees of external rotation to neutral, and internal rotation to T7.  

An August 2007 VA rehabilitative medicine note indicated that the Veteran had a full range of motion of the shoulder in forward flexion and abduction.  His range of motion was mildly restricted with internal rotation.  Right supraspinatus strength was 4/5, and infraspinatus and subscapularis strength was 4+/5.  No tenderness was noted on palpation.  He was noted to have recovered nearly his full range of motion, but to have mild weakness of the right supraspinatus.   

The Veteran was afforded a VA examination of his right shoulder in January 2008.  He reported that he had gone back to work as a mechanic but had difficulty with overhead work and could not do push-ups.  The examiner noted that right should motion was clearly limited and that the Veteran could not to do anything strenuous with the right shoulder, such as make throwing motions or scratch with his right hand between his shoulder blades from above or below.  He did not experience flare-ups or any worsening of right shoulder pain.  

Right shoulder pain was noted to increase only on provocation which he avoided.  Range of motion testing revealed a forward elevation to 150 degrees, abduction to 120 degrees, internal rotation to 60 degrees and external rotation to 70 degrees.  These ranges of motion were noted to be painless, and the Veteran reported experiencing discomfort beyond these ranges and indicated that he would have lingering pain should he do so.  He was capable of three slow repetitions of each range of motion without any additional loss of range of motion.  The range of motion was not additionally limited by pain, fatigue, weakness, or lack of endurance.  The examiner noted that he did not have any history of proneness to dislocation.  

The Veteran was afforded another VA right shoulder examination in September 2010.  The examiner noted that from 2007 to 2010 the Veteran experienced daily pain with muscle weakness and reduced range of motion of the right shoulder.  He did not; however, experience muscle or joint stiffness or swelling.  He treated his right shoulder with non-steroidal anti-inflammatory drugs (NSAIDs) and heat to reduce the pain.  

On examination, the Veteran was noted to have forward flexion and abduction to 100 degrees, internal rotation to 90 degrees, and external rotation to 90 degrees.  He was noted to have mild pain at the end of his ranges of motion.  There was no further limitation after three repetitions and no additional loss of range of motion due to pain, fatigue, weakness, or lack of endurance during flare-ups.  

The examination report noted that X-rays taken in 2010 revealed no acute fracture or dislocation.  The distal end of the clavicle was surgically absent with surgical hardware lateral aspect to humeral head.  Focal degenerative joint disease (DJD) was also noted.  The right shoulder disability was not noted to interfere with the Veteran's activities of daily living.  He was noted to be gainfully employed as a truck driver.

On examination of surgical scars, he was noted to have a scar from his open shoulder surgery anterior to the shoulder extending in a superior direction, and to have an arthroscopy scar over posterior upper back area.  The first scar was noted to measure one-half inch by one-eighth of an inch; the second was one-and-a-half inches by one-eighth of an inch.  

The scars were noted to be superficial without underlying soft tissue damage.  No palpation tenderness or adherence to underlying tissues was noted.  No irregularity, shininess, or scaliness, ulcer or skin breakdown was noted.  There was no palpable elevation or depression, inflammation, edema or keloid.  The scar color was noted to be like surrounding skin color.  The total percentage of skin involved was 0.125 percent.

Following the Board's November 2011 remand, the Veteran was afforded a VA right shoulder examination in February 2012.  The examiner noted that the Veteran's diagnoses consisted of a shoulder strain and DJD.  The Veteran reported daily pain with muscle weakness and reduced range of motion of the right shoulder.  He reported flare-ups of right shoulder disability with increased muscle stiffness and pain.  

On testing right shoulder flexion and abduction was limited to 90 degrees with pain beginning at 70 degrees.  After three repetitions, there was no change in his limitation of flexion or abduction.  He did not have any functional loss and/or functional impairment of the shoulder or arm.  He was noted to not have tenderness or pain on palpation of the joints, soft tissue, or biceps tendon, and he did not have guarding of the shoulder.  

There was normal muscle strength on shoulder abduction and flexion.  He did not have ankylosis of the glenohumeral articulation.  Hawkins' impingement testing was negative; but he was unable to perform empty-can testing, external rotation/infraspinatus strength testing, or lift-off subscapularis testing.  There was no history of mechanical symptoms involving the shoulder.  There was additionally no history of recurrent dislocation (subluxation) of the glenohumeral (scapulohumeral) joint.  Crank apprehension and relocation testing was negative.  

The Veteran was specifically found to not have any AC joint condition or any other impairment of the clavicle or scapula.  Tenderness was noted, however, on palpation of the AC joint.  He was unable to perform cross-body adduction testing.  The examiner noted the Veteran's surgical history with resection of the end of the clavicle and repair of tendons, but noted that he did not have any residual signs or symptoms due to shoulder surgery.

The examination report additionally referenced X-rays of the right shoulder taken in 2010.  The report noted no acute fracture or dislocation.  The distal end of his clavicle was surgically absent with surgical hardware lateral aspect to the humeral head.  A 2012 X-ray showed DJD and a widened AC joint related to his operation.  

The examiner noted that the Veteran's surgical scars were located on his right upper extremity.  Four scars were identified, measuring 9.0 centimeters (cm), 0.5 cm, 0.5 cm, and 0.5 cm, respectively.  No non-linear scars were noted.  His scars were not painful or unstable.

Finally, the examiner noted that the Veteran's shoulder disability did not impact his ability to work.  

Analysis

The Veteran was noted to have arthritis in his shoulder as early as in November 2006, indicative of likely earlier involvement.  This was confirmed by X-ray study.  Prior to February 6, 2012, examinations consistently showed that the Veteran could raise his arm to well above shoulder level, but was generally limited to less than 180 degrees.  While his limitation of right arm motion was always less than specified for a compensable rating, there was almost always pain.  Hence the right shoulder disability met the criteria for a minimal 10 percent rating during the period from the effective date of service connection to February 5, 2012.  38 C.F.R. § 4.59, 4.71a, DC 5003 (2012)

Although he was noted to have painful motion from 60 degrees to 120 degrees in the October 2005 VA outpatient consultation note, he was still able to raise his arm to well beyond shoulder level.  This finding would therefore not support a rating in excess of 10 percent.  ; Mitchell, supra.  

Examination reports prior to February 5, 2012 did not otherwise find additional limitation of motion due to functional factors that would approximate the criteria for a rating in excess of 10 percent.  38 C.F.R. §§ 4.40, 4.45.


The February 6, 2012, VA examination report shows the Veteran was noted to have pain beginning at 70 degrees of flexion and rotation, but that motion was still possible to 90 degrees, or shoulder level.  The range of motion would not meet the criteria for a rating in excess of 20 percent; because there was no reported additional functional impairment associated with the pain.  Mitchell.  Although the Veteran reported flare-ups, the examiner found no additional limitation of motion due to functional factors.

The Veteran is not entitled to a higher disability rating under the other criteria for rating disabilities of the arm or shoulder at any time during the appeal period.  In this regard, he has specifically been found to not have ankylosis of the scapulohumeral articulation, he has specifically been found to not have any impairment of the clavicle or scapula, and he has not been found to have any impairment of the humerus.  While the distal end of his clavicle has been resected, this has not been found to result in malunion, nonunion or dislocation of the clavicle.  Additionally, while VA examination reports have not specifically indicated that he does not have malunion, fibrous union, or nonunion of his humerus, or loss of the head of the humerus, thorough MRI and X-ray reports of record have discussed no involvement of disability with the Veteran's humerus, only that he has hardware installed on the clavicle lateral to the humerus, pursuant to his January 2007 surgery.  Additionally he has specifically been noted to not have any dislocation of the scapulohumeral joint.  Thus, a higher rating is not warranted under any of the other criteria for rating disabilities of the arm or shoulder.

As for any additional rating as of February 6, 2012 for degenerative arthritis of the shoulder, under DC 5003, the Board finds that to grant such an additional rating would violate the law against pyramiding, which specifically states that the evaluation of the same manifestations under various diagnoses is to be avoided.  See 38 C.F.R. § 4.14 (2012).  Here, the arthritis code directs that the disability be rated based on the particular limitation of motion codes.  If the disability does not warrant a rating under those codes, only then is a rating solely for arthritis appropriate.  Such a rating has been applied for the period prior to February 6, 2012.  As of that date, however, his limitation of motion has been found to be compensable at a 20 percent rating.  

The Board has finally considered separate ratings for scars.  The Veteran has not however, been noted to have nonlinear scars, or unstable or painful scars to warrant a compensable disability rating under the criteria for rating disabilities of the skin in effect as of October 23, 2008.  See 38 C.F.R. § 4.118, DCs 7801-7802, 7804 (2012).  Similarly, he has not been shown to have deep scars, scars that cause limitation of motion or limitation of function, or scars that cover an area greater than 144 square inches as would be specifically required to warrant a compensable rating under the criteria for rating disabilities of the skin in effect prior to October 23, 2008.  See 38 C.F.R. § 4.118, DCs 7801-7804 (2008)

Accordingly, applying the benefit of the doubt doctrine, all doubt is resolved in favor of the Veteran, and a 10 percent disability rating, but not higher, is granted under Diagnostic Codes 5003 and 5201 for the period prior to September 18, 2010.  The preponderance of the evidence; however, is against a rating in excess of 10 percent for the period between September 18, 2010 and February 5, 2012; or in excess of 20 percent thereafter.  See Ortiz v. Principi, 274 F. 3d. 1361, 1365 (Fed. Cir. 2001).

C.  Extraschedular Consideration and TDIU

The rating schedule represents as far as is practicable, the average impairment of earning capacity.  Ratings will generally be based on average impairment.  See 38 C.F.R. § 3.321(a), (b) (2012).  In exceptional cases an extraschedular rating may be provided.  38 C.F.R. § 3.321 (2012).  

The Court has set out a three-part test, based on the language of 38 C.F.R. § 3.321(b)(1), for determining whether a Veteran is entitled to an extraschedular rating: (1) the established schedular criteria must be inadequate to describe the severity and symptoms of the claimant's disability; (2) the case must present other indicia of an exceptional or unusual disability picture, such as marked interference with employment or frequent periods of hospitalization; and (3) the award of an extraschedular disability rating must be in the interest of justice.  Thun v. Peake, 22 Vet. App. 111 (2008), aff'd, Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009).  

The symptoms associated with the Veteran's service-connected right shoulder disability (i.e., reduced range of motion, degenerative joint disease, and painful motion) are contemplated by the rating criteria set forth above, and reasonably describe this service-connected disability.  The applied rating criteria are, therefore, adequate to evaluate the Veteran's right shoulder disability and referral for consideration of an extraschedular rating is not warranted in this case.

In Rice v. Shinseki, 22 Vet. App. 447 (2009), the Court held that a claim for a total rating based on individual unemployability (TDIU) due to service-connected disability is part of an initial rating claim when such claim is expressly raised by the Veteran or reasonably raised by the record.  In the instant case, the Veteran had initiated an appeal with respect to the denial of a TDIU claim in the May 2007 rating decision; however, in his March 2008 VA Form 9, he elected not to perfect his appeal of that claim.  Moreover, his most recent September 2010 and February 2012 VA examination reports reflect that he is employed and here is no contention or evidence that his employment is marginal.  Thus, a TDIU claim is not raised by the Veteran or the record and further consideration is not warranted.


ORDER

Entitlement to an initial 10 percent rating, for the Veteran's right shoulder disability is granted for the periods from March 4, 2005 to January 23, 2007, and from August 1, 2007 to and February 5, 2012.

An initial rating in excess of 10 percent for the Veteran's right shoulder disability prior to February 6, 2012, is denied.

Entitlement to an initial rating in excess of 20 percent for the Veteran's right shoulder disability for the period beginning February 6, 2012, is denied.  



____________________________________________
Mark D. Hindin
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs