Citation Nr: 1306181 Decision Date: 02/22/13 Archive Date: 02/27/13 DOCKET NO. 10-36 547 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Newark, New Jersey THE ISSUES 1. Entitlement to an initial rating higher than 10 percent for cervical strain. 2. Entitlement to an initial compensable rating for right shoulder strain. 3. Entitlement to service connection for bilateral hearing loss disability. REPRESENTATION Appellant represented by: National Association of County Veterans Service Officers ATTORNEY FOR THE BOARD M. Mac, Counsel INTRODUCTION The Veteran served on active duty, to include the period from September 1988 to September 2009. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Newark, New Jersey. A notice of disagreement was received in November 2009. The Veteran and his representative received a statement of the case in July 2010, and a timely substantive appeal was received in August 2010. It is noted that the Veteran in his substantive appeal requested a hearing before a member of the Board. However, the Veteran's representative withdrew this hearing request in correspondence dated in July 2011. In a rating decision dated in May 2008, the RO denied service connection for bilateral hearing loss disability. In June 2008, the Veteran submitted a notice of disagreement with that determination. A statement of the case has not been issued and the Board is required to remand, rather than refer, this issue. See Manlicon v. West, 12 Vet. App. 238 (1999). The Board notes that the RO in a rating decision in August 2010 granted service connection for lumbago and folliculitis. In September 2010 the Veteran filed a notice of disagreement with the initial ratings that were assigned. A statement of the case was issued in May 2011, however the Veteran did not file a timely appeal and issues of initial higher ratings for lumbago and folliculitis are not in appellate status. The issue of entitlement to service connection for bilateral hearing loss disability 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.Cervical strain has been manifested by pain and painful motion; flexion was limited to 45 degrees with pain and the combined range of motion of the cervical spine was 220 degrees; there have been no muscle spasms or guarding, no incapacitating episodes, no ankylosis, and no separately ratable neurologic manifestations. 2. Right shoulder strain is manifested by limitation of active forward flexion to 150 degrees with mild pain and abduction to 90 degrees with mild pain, but not malunion, nonunion or dislocation of the clavicle or scapula. CONCLUSIONS OF LAW 1.The criteria for an initial rating higher than 10 percent for the service-connected cervical strain have not been met. 38 U.S.C.A. §§ 1155, 5107(b) (West 2002); 38 C.F.R. §§ 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5237 (2012). 2. The criteria for an initial rating of 20 percent, but not higher, for the service-connected right shoulder strain have been met. 38 U.S.C.A. §§ 1155, 5107(b) (West 2002); §§ 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5201, 5203 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veterans Claims Assistance Act of 2000 (VCAA) The VCAA, codified in part at 38 U.S.C.A. §§ 5103, 5103A, and implemented in part at 38 C.F.R § 3.159, amended VA's duties to notify and to assist a claimant in developing information and evidence necessary to substantiate a claim. Duty to Notify Under 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b), when VA receives a complete or substantially complete application for benefits, it will notify the claimant of the following: (1) any information and medical or lay evidence that is necessary to substantiate the claim, (2) what portion of the information and evidence VA will obtain, and (3) what portion of the information and evidence the claimant is 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 employment. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009) (interpreting 38 U.S.C.A. § 5103(a) as requiring generic claim-specific notice and rejecting veteran-specific notice as to effect on daily life and as to the assigned or a cross-referenced Diagnostic Code under which the disability is rated). 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). The RO provided pre-adjudication VCAA notice by letter, dated in December 2007. Where, as here, service connection has been granted and initial ratings have been assigned, the claims of service connection have been more than substantiated, the claims have 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 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 applicable in the claim for an initial higher rating. Dingess, 19 Vet. App. 473; Dunlap v. Nicholson, 21 Vet. App. 112, 116-117 (2007); Goodwin v. Peake, 22 Vet. App. 128, 136 (2008). Duty to Assist VA has fulfilled its duty to assist in obtaining identified and available evidence needed to substantiate the claims. Service treatment records, VA treatment records, and the Veteran's lay statements have been associated with the record. While the Veteran was on active duty, he was afforded a VA examination in March 2009, which was the basis of his grant of service connection for cervical strain and right shoulder strain At the time of the examination, the claims folder was unavailable for the examiner to review, however this omission is not prejudicial to the Veteran as the examination is being considered to determine the contemporaneous level of severity of the cervical spine disability and right shoulder disability. Therefore the March 2009 VA examination is adequate for rating purposes. The lay and medical evidence does not show a material change in the Veteran's service-connected cervical strain and right shoulder strain since the last examination and a reexamination of the disabilities is not warranted. 38 C.F.R. § 3.327(a) . As the Veteran has not identified any additional evidence pertinent to the claims and as there are no additional records to obtain, the Board concludes that no further assistance to the Veteran in developing the facts pertinent to the claims is required to comply with the duty to assist. Legal Criteria 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". Fenderson v. West, 12 Vet. App. 119, 126-27 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Here the disabilities have not significantly changed and uniform evaluations are warranted. Rating factors for a disability of the musculoskeletal system include functional loss due to pain supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion, weakness, excess fatigability, incoordination, pain on movement, swelling, or atrophy. 38 C.F.R. §§ 4.40, 4.45; DeLuca v. Brown, 8 Vet. App. 202 (1995). In evaluating musculoskeletal disabilities, the VA must determine whether pain could significantly limit functional ability during flare-ups, or when the joints are used repeatedly over a period of time. See DeLuca 8 Vet. App. at 206. Under 38 C.F.R. § 4.59, painful motion is a factor to be considered with any form of arthritis; however 38 C.F.R. § 4.59 is not limited to disabilities involving arthritis. See Burton v. Shinseki, 25 Vet. App. 1 (2011). The Court also has recently held, that "pain itself does not rise to the level of functional loss as contemplated by VA regulations applicable to the musculoskeletal system." Mitchell v. Shinseki, 25 Vet. App. 32, 38 (2011). Rather, pain, may result in functional loss, but only if it limits the ability "to perform the normal working movements of the body with normal excursion, strength, speed, coordination [, or] endurance." Id., quoting 38 C.F.R. § 4.40. The RO in a rating decision in June 2009, granted service connection for cervical strain with a 10 percent evaluation effective December 3, 2007, and service connection for right shoulder strain with a noncompensable rating effective December 3, 2007. However in a letter in April 2011, the RO informed the Veteran that his compensation for VA benefits must stop for the period from January 1, 2008 to September 30, 2009, as he was on active duty and was receiving VA benefits. The RO explained to the Veteran that federal law prohibits the payment of VA benefits to veterans during periods of active duty. Where, as in the instant case, the appeal arises from the original assignment of a disability evaluation following an award of service connection, the severity of the disability at issue is to be considered during the entire period from the initial assignment of the disability rating to the present time. See Fenderson v. West, 12 Vet. App. 119 (1999). Cervical Strain The Veteran's service-connected cervical strain has been rated under Diagnostic Code 5237. Disabilities of the spine are rated under either the General Formula for Diseases and Injuries of the Spine (General Formula) or the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, whichever method results in the higher rating. Under the General Rating Formula (for Diagnostic Codes 5235 to 5243 unless 5243 is evaluated under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes): a 20 percent disability rating is assigned for forward flexion of the cervical spine greater than 15 degrees but not greater than 30 degrees; or, the combined range of motion of the cervical spine not greater than 170 degrees; or, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. A 30 percent disability rating is assigned for forward flexion of the cervical spine 15 degrees or less; or, favorable ankylosis of the entire cervical spine. A 40 percent disability rating is assigned for unfavorable ankylosis of the entire cervical spine. A 50 percent disability rating is assigned for unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent disability rating is assigned for unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a. Note (1): Objective neurological abnormalities, including, but not limited to, bowel or bladder impairment, are evaluated separately, under an appropriate diagnostic code. When rated based on incapacitating episodes, a 20 percent rating is warranted when there are incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months; a 40 percent rating is warranted when there are incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months; and a 60 percent rating is warranted when there are incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. An "incapacitating episode" is a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician. 38 C.F.R. § 4.71a, Diagnostic Code 5243. 38 C.F.R. § 4.71a, Diagnostic Code 5235-5243. The normal findings for range of motion of the lumbar spine are flexion to 45 degrees, extension to 45 degrees, lateral flexion, right and left, to 45 degrees, and rotation, right and left, to 80 degrees. 38 C.F.R. § 4.71a, Plate V. Evidence The Veteran contends that he is entitled to a higher rating than 10 percent for his service-connected cervical strain. Service treatment records on multiple occasions show the Veteran was treated for his cervical spine. To summarize, in May 2008 the Veteran had tenderness and parasthesia down his arms bilaterally but the neurological examination was normal. X-ray and MRI that same month were normal. An open MRI of the cervical spine in July 2008 was normal. In August 2008 he did not have full range of motion and had pain on motion. The diagnosis was cervical radiculitis. On VA examination in April 2008, while the Veteran was on active duty, the Veteran complained of neck pain after injuring himself during training in Iraq while he was lifting weights in the gym. The examiner noted that the Veteran did not report additional limitations following repetitive use or during flare-ups. He did not report incapacitating episodes during the past twelve months. On VA examination in March 2009, while the Veteran was still on active duty, he reported that he injured his neck in February 2005 in Iraq, when a wooden block hit his head. He stated that two years later he started to have neck pain, which was intermittent, and on average 6 out of 10 in pain intensity. He reported no radiating pain in the bilateral extremities. He complained of intermittent tingling and numbness in the left hand. The Veteran denied incontinence of bowel or bladder. The Veteran did not report additional limitations following repetitive use or during flare-ups. He did not report an incapacitating episode during the past 12 months. Physical examination showed no gross deformity. Flexion was 0 to 45 degrees associated with mild pain at the end of range of motion, extension was 0 to 25 degrees associated with mild pain at the end of range of motion, lateral bending was 0 to 35 degrees bilaterally associated with mild pain at the end of range of motion, and rotation was 0 to 40 degrees bilaterally associated with mild pain at the end of range of motion. Following 3 repetitive ranges of motion, the pain and range of motion remained the same. There was no evidence of fatigue, weakness or lack of endurance. Neurologic examination showed muscle strength was 4/5 in all 4 extremities. Sensation was grossly intact to light touch. Deep tendon relaxes were 2 +. Hoffman's sign was negative and gait was normal. The impression was cervical strain. The examiner stated that x-ray of the cervical spine did not show acute fracture or subluxation. The claims folder includes VA progress notes from 2007 to 2010 for treatment of other disabilities, during which time the Veteran did not complain of any problems with his cervical spine. Analysis The current evaluation contemplated periarticular pathology productive of painful motion. It is also consistent with forward flexion of the cervical spine to 30 degrees. The Board finds that the evidence during the appeal period does not more nearly approximate the criteria for an initial rating in excess of 10 percent for the cervical strain. During the appeal period, flexion was limited to 45 degrees, with mild pain and the combined range of motion was 220 degrees. The March 2009 VA examiner stated that following 3 repetitive ranges of motion, the pain and range of motion remained the same and that there was no evidence of fatigue, weakness or lack of endurance. There were no reported additional limitations during flare-ups. These findings do not more nearly approximate or equate to the functional equivalent of forward flexion greater than 15 degrees but not greater than 30 degrees or a combined range of motion not greater than 170 degrees, to include consideration of any additional functional loss due to pain, pain on movement, swelling, atrophy, fatigue, weakness, incoordination, to include during flare-ups and with repeated use. 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202 (1995). There was also no evidence of muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour. There was no evidence of ankylosis. There also is no evidence, neither lay or medical, of incapacitating episodes, that is, bed rest prescribed by a physician and treatment by a physician, having a total duration of at least 2 weeks but less than 4 weeks during a 12 month period. Therefore, the Veteran does not meet the criteria for the next higher rating of 20 percent under Diagnostic Code 5243 for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes. While the Veteran complained of parasthesia down his arms in May 2008, the neurological examination was normal. On VA examination in March 2009, he reported no radiating pain in the bilateral upper extremities and the neurological examination was normal. Therefore, a separate rating is not warranted for any associated neurologic abnormalities. The Board does find his complaints credible and notes reference to radiculitis. However, the objective manifestations do not rise to the level of even mild neuropathy. See 38 C.F.R. § 4.120, 4.123, 4.124, and 4.124a. The Board has also considered the Veteran's lay statements that describe his neck pain and discomfort. The Veteran is certainly competent to describe his observations and the Board finds these statements are credible. In this case, however, the Board finds the objective medical findings by skilled professionals are more persuasive which, as indicated above, do not support an initial rating higher than 10 percent for cervical strain. Furthermore, the symptoms described, such as pain and discomfort, are contemplated in the 10 percent rating. In essence, the lay evidence, while accepted as credible, does not provide a basis for a higher evaluation. As the criteria for an initial rating higher than 10 percent for cervical strain have not been demonstrated during the appeal period, the preponderance of the evidence is against the claim, and the benefit-of-the-doubt standard of proof does not apply. 38 U.S.C.A. § 5107(b). Right Shoulder The Veteran's service-connected right shoulder is rated by analogy under Diagnostic Codes 5299-5203. Under Diagnostic Code 5203, for impairment of the clavicle or scapula, the highest rating available is 20 percent for dislocation of the major or minor extremity, or for nonunion with loose movement of the major or minor extremity. Nonunion without loose movement or malunion of the major or minor extremity is rated 10 percent disabling. Otherwise the Code instructs to rate on impairment of function of a contiguous joint. Other applicable criteria include Diagnostic Code 5201. Under Diagnostic Code 5201, the criterion for a 20 percent rating is limitation of the major and minor arm either at shoulder level or midway between side and shoulder level for the minor arm. The criterion for a 30 percent rating is limitation of the major arm midway between the side and shoulder level. The criterion for a 30 percent rating is limitation of motion of the minor arm to 25 degrees from the side. The criterion for a 40 percent rating is limitation of motion of the major arm to 25 degrees from the side. Normal range of motion of the shoulder is zero degrees to 180 degrees of flexion and abduction. Plate I. Evidence The Veteran contends that he is entitled to an initial compensable rating for his service-connected right shoulder strain. Service treatment records show that the Veteran was treated for his shoulder on several occasions. The records, to include an entry in February 2006, show the Veteran was treated for right shoulder pain. In August 2006 he was treated for a shoulder sprain. In February 2007 the Veteran was treated for tendonitis of the shoulder and tendonitis rotator cuff. X-ray of the right shoulder in August 2006 was normal. On VA examination in April 2008, while the Veteran was on active duty, he complained of shoulder pain after injuring himself during training in Iraq while he was lifting weights in the gym. On VA examination in March 2009, while the Veteran was still on active duty, he complained of intermittent right shoulder pain for 10 years. The pain intensity was 6 out of 10 and the pain was aggravated by pushups. The examiner noted that the Veteran did not report additional limitations following repetitive use or during flare-ups. Physical examination showed mild tenderness to palpation over the superior aspect of the acromioclavicular joint. Active forward flexion was 0 to 150 degrees associated with mild pain at the end of range of motion, active abduction was 0 to 90 degrees with mild pain at the end of range of motion. Following 3 repetitive ranges of motion the pain and range of motion remained the same. There was no evidence of fatigue, weakness or lack of endurance. There was negative impingement sign and good rotator cuff strength. The impression was right shoulder strain. The examiner stated that x-ray of the right shoulder did not show acute fracture or dislocation. The claims folder includes VA progress notes from 2007 to 2010 for treatment of other disabilities, during which time the Veteran did not complain of any problems with his right shoulder. Analysis In this case, the Board finds that an initial rating of 20 percent, but not higher, is warranted during the appeal period for the Veteran's right shoulder strain. During active duty service the Veteran complained of right shoulder pain. On VA examination in March 2009, active abduction was 0 to 90 degrees with mild pain at then end of range of motion. Therefore the evidence approximates the criterion for a rating of 20 percent based on limitation of motion of the right arm to shoulder level under Diagnostic 5201. The Board, however, finds that an initial rating in excess of 20 percent for right shoulder strain is not warranted during the appeal period, to include consideration of any additional functional loss due to pain, pain on movement, swelling, atrophy, fatigue, weakness, incoordination, to include during flare-ups and with repeated use. 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202 (1995). The evidence does not show that limitation of the arm was limited midway between the side and shoulder level or 25 degrees from the side. In addition to the evidence discussed above, the findings pertaining to limitation of motion show that on VA examination in March 2009 forward flexion was 0 to 150 degrees with associated mild pain at the end of range of motion. The March 2009 VA examiner stated that following 3 repetitive ranges of motion, the pain and range of motion remained the same and that there was no evidence of fatigue, weakness or lack of endurance. There were no reported additional limitations during flare-ups. In essence, the credible evidence establishes that he retains function use (motion) far greater than midway to the side, even with consideration of pain at the end point. The Board has also considered the Veteran's lay statements that describe his right shoulder pain and discomfort. The Veteran is certainly competent to describe his observations and the Board finds these statements are credible. In this case, however, the Board finds the objective medical findings by skilled professionals are more persuasive which, as indicated above, do not support an initial rating higher than 20 percent for right shoulder strain. We also note that the Veteran has not asserted that he is limited to midway from the side or less. The evidence does not show malunion, nonunion or dislocation of the clavicle or scapula and therefore the Veteran is not entitled to an initial compensable rating under Diagnostic Code 5203. As the evidence does not show ankylosis of the scapulohumeral articulation or impairment of the humerus, Diagnostic Codes 5200 for ankylosis of the scapulohumeral articulation and Diagnostic Code 5202 for impairment of the humerus are not applicable. After resolving any benefit of the doubt in favor of the Veteran under 38 U.S.C.A. § 5107(b), the Board finds that an initial rating of 20 percent, but not higher, for the entire appeal period is warranted for right shoulder strain. Extraschedular Consideration On VA examination in March 2009, the examiner sated that the Veteran was doing office work with no difficulty and was independent in the activities of daily living. While the Board does not have authority to grant an extraschedular rating in the first instance, the Board does have the authority to decide whether the claim should be referred to the VA Director of the Compensation and Pension Service for consideration of an extraschedular rating. 38 C.F.R. § 3.321(b)(1). The governing norm for an extraschedular rating is a finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or necessitated frequent periods of hospitalization so as to render the regular schedular standards impractical. 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. There must be a comparison between 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 disability picture is contemplated by the Rating Schedule, and the assigned schedular evaluation is, therefore, adequate, and no referral is required. Thun v. Peake, 22 Vet. App. 111 (2008). Here, the rating criteria reasonably describe the Veteran's disability levels and symptomatology pertaining to his service-connected cervical strain and right shoulder strain. The Board finds that the Veteran's cervical strain and right shoulder strain is manifested by pain and limitation of motion and the rating criteria contemplate these impairments. For these reasons, the disability picture is contemplated by the Rating Schedule, and the assigned schedular ratings are, therefore, adequate. Consequently, referral for extraschedular consideration is not required under 38 C.F.R. § 3.321(b)(1). ORDER An initial rating higher than 10 percent for cervical strain is denied. An initial rating of 20 percent for right shoulder strain is granted, subject to the legal authority governing the payment of compensation benefits. REMAND In a rating decision dated in May 2008, the RO denied service connection for bilateral hearing loss disability. In June 2008, the Veteran submitted a notice of disagreement with that determination. A statement of the case has not been issued. Under these circumstances, a statement of the case must be issued. See Manlicon v. West, 12 Vet. App. 238 (1999). Accordingly, the case is REMANDED for the following action: The RO should take all indicated action in order to issue a statement of the case for the issue of entitlement to service connection for bilateral hearing loss. If the Veteran perfects an appeal, the claim should be certified to the Board and after any necessary development has been completed. The appellant has the right to submit additional evidence and argument on the matter or matters 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). ______________________________________________ H. N. SCHWARTZ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs