Citation Nr: 1308090 Decision Date: 03/11/13 Archive Date: 03/20/13 DOCKET NO. 07-22 121 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUES 1. Entitlement to a rating in excess of 10 percent for a right shoulder disability. 2. Entitlement to an increase in the ratings for left hip trochanteric bursitis (left hip disability), currently assigned "staged" ratings of 0 percent prior to August 19, 2008, and 10 percent from that date. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL Appellant and his wife ATTORNEY FOR THE BOARD J. Chapman, Associate Counsel INTRODUCTION The appellant is a Veteran who served on active duty from August 1972 to August 1977 and from August 1981 to August 2006. These matters are before the Board of Veterans' Appeals (Board) on appeal from September 2006 and October 2008 rating decisions by the Roanoke, Virginia Department of Veterans Affairs (VA) Regional Office (RO) which (respectively) granted service connection for the left hip disability, rated 0 percent, and continued a 10 percent rating for right shoulder disability. An interim (July 2009) rating decision increased the rating for the left hip disability to 10 percent effective August 19, 2008. As that is less than the maximum schedular rating available for such disability, and the Veteran has not expressed satisfaction with the rating, the appeal continues. AB v. Brown, 6 Vet. App. 35 (1993). In May 2010, a Travel Board hearing was held before the undersigned. A transcript of that hearing is associated with the claims file. In July 2010 and in May 2012 these matters were remanded for additional development. FINDINGS OF FACT 1. At no time during the appeal period is the Veteran's service connected right shoulder disability (post-operative rotator cuff tendonitis) shown to have been manifested by nonunion, dislocation of the clavicle or scapula, or limitation of arm motion at the shoulder level. 2. Prior to August 19, 2008, the Veteran's service-connected left hip disability (trochanteric bursitis) is not shown to have been manifested by limitation of extension to five degrees, limitation of flexion to 45 degrees, limitation of adduction to cannot cross the legs, or limitation of rotation to cannot toe-out more than 15 degrees. 3. From August 19, 2008, the left hip disability is not shown to be manifested by limitation of flexion to 30 degrees, limitation of abduction to motion lost beyond 10 degrees, or limitation of adduction. CONCLUSIONS OF LAW 1. A rating in excess of 10 percent is not warranted for the Veteran's service-connected right shoulder disability. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.3, 4.40, 4.45, 4.71a; Diagnostic Codes (Codes) 5201, 5202, 5203 (2012). 2. A compensable rating for left trochanteric bursitis was not warranted prior to August 19, 2008, and a rating in excess of 10 percent for such disability is not warranted from that date. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.3, 4.40, 4.45, 4.71a, Code 5251, 5252, 5253 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS 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 these claims. As the September 2006 rating decision on appeal granted service connection for left trochanteric bursitis and assigned a disability rating and effective date for the award, statutory notice as to that disability had served its purpose, and its application was no longer required. See Dingess/Hartman v. Nicholson, 19 Vet. App. 472 (2006), aff'd Hartman v. Nicholson, 483 F. 3d 1311 (Fed. Cir. 2007). Subsequent letters and the statement of the case (SOC) properly provided notice on the downstream matter of entitlement to an increased initial rating and the SOC (and supplemental SOCs (SSOCs)) readjudicated the matter after the veteran had opportunity to respond. Regarding the right shoulder disability, 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 the claim. Specifically, May 2008, July 2008, October 2008, and September 2009 letters provided notice of what was needed to substantiate an increased rating claim and explained the evidence VA was responsible for providing and the evidence he was responsible for providing. December 2011 and November 2012 SSOCs readjudicated the matter after the appellant and his representative responded and further development was completed. See Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006) The Veteran's service treatment records (STRs) are associated with the claims file, and pertinent postservice treatment records have been secured. The RO arranged for VA examinations in June 2006, August 2008, and July 2012. The examinations are adequate as the examiner expressed familiarity with the history of the disabilities, and conducted thorough examinations of the Veteran, noting all findings necessary for proper adjudication of the claims. See Barr v. Nicholson, 21 Vet. App. 303 (2007) (VA must provide an examination that is adequate for rating purposes). The Veteran has not identified any pertinent evidence that remains outstanding. VA's duty to assist is met. Legal Criteria, Factual Background, and Analysis 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. With a claim for an increased initial rating, separate "staged" ratings may be assigned based on facts found. Fenderson v. West, 12 Vet. App. 119 (1999). 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 basis of disability evaluation is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. 38 C.F.R. § 4.10. With respect to joints, in particular, the factors of disability reside in reductions of normal excursion of movements in different planes. Inquiry will be directed to more or less than normal movement, weakened movement, excess fatigability, incoordination, pain on movement, swelling, deformity or atrophy of disuse. 38 C.F.R. § 4.45. In determining the degree of limitation of motion, the provisions of 38 C.F.R. §§4.10, 4.40 and 4.45 are for consideration. See DeLuca v. Brown, 8 Vet. App. 202 (1995). 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 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, including regarding degree of disability, is to be resolved in favor of the Veteran. 38 U.S.C.A. § 5107; 38 C.F.R. §§ 3.102, 4.3. The Board has reviewed all evidence in the claims file, and in "Virtual VA" (VA's electronic data storage system), with an emphasis on the evidence relevant to these appeals. 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). Accordingly, the Board will summarize the relevant evidence as appropriate and the Board's analysis will focus on what the evidence shows, or fails to show, as to the claims. A March 2006 STR notes that the Veteran had left hip pain over the past six months after Achilles tendon surgery. On April 2006 examination on behalf of the service department, the Veteran complained of shoulder pain, particularly when doing overhead lifting. He also reported hip pain when he sits for long periods of time or walks long distances. The examiner noted bilateral shoulder pain and left hip pain; it was also noted the Veteran was qualified for diving and jumping. On private examination on behalf of the service department and VA prior to discharge from active duty in June 2006, examination of the joints revealed no erythema, edema, or heat changes, and no appreciable leg length discrepancy. Shoulder range of motion studies revealed full range of motion, with 10 degree limitations due to pain on flexion and abduction. The examiner noted there was no further limitation due to fatigue, weakness, lack of endurance, or incoordination, or on repetitive motion. The diagnosis was status post right shoulder injury with surgical intervention and postoperative scar. Examination of the hips revealed tenderness to palpation of the left trochanteric bursal region. Range of motion studies for the hip joints were normal, and no limitations due to pain, fatigue, weakness, lack of endurance, or incoordination or on repetitive motion were found. The examiner also noted there was no ankylosing or pain, bilaterally. Trochanteric bursitis was diagnosed. On August 2008 VA examination, the Veteran reported functional impairments of aching, weakness, stiffness and fatigability, and less than full range of motion in his right shoulder. He reported pain in the shoulder occurring once daily, lasting several hours each time. He stated that the pain had existed for five to six years, and was localized and throbbing, rated 4 (on a scale of 10). He reported he was able to function with medication. The examiner noted that there was no swelling, heat, redness, giving way, lack of endurance, locking or dislocation. Physical examination of the right shoulder joint revealed that joint function was limited by pain, fatigue, and weakness after repetitive use by 10 degrees with flexion to 170 degrees and abduction to 170 degrees; however, the joint is not additionally limited by lack of endurance or incoordination on repetitive motion. Regarding the left hip, the examiner noted that the Veteran had trochanteric bursitis,. The Veteran reported weakness, stiffness, and swelling; he indicated that pain was localized and aching in nature, rated 6 (on a scale of 10). He stated that pain could be elicited by physical activity and that he can function with medication. The examiner noted that the Veteran did not have heat, redness, giving way, lack of endurance, locking, fatigability or dislocation. Physical examination of the hip revealed weakness, with no sign of edema, effusion, tenderness, redness, heat or guarding of movement. There was no subluxation. Ranges of motion were limited, with pain on flexion to 115 degrees, extension to 25 degrees, adduction to 15 degrees, abduction to 40 degrees, external rotation to 50 degrees, and internal rotation to 30 degrees. The examiner noted that range of motion was limited an additional 5 degrees by pain after repetitive use, but that joint function was not additionally limited by fatigue, weakness, lack of endurance, or incoordination. X-rays showed status post remote resection of the lateral end of the right clavicle. X-rays of the left hip were normal. The diagnoses were right shoulder rotator cuff tendonitis, status-post surgery and left trochanteric bursitis. A July 2007 lay statement by the Veteran indicates he found it very painful to cross his left leg over his right leg, and could not sit for extended periods without his left hip aching. He stated that a senior neurologist at a navy hospital diagnosed arthritis in the left hip, which the physician considered to be a direct result of over compensating for right calf weakness. In June 2008 the Veteran requested reconsideration of his claims, stating that his left hip was getting worse and that he could no longer sit for extended periods before it started to ache, and that his right shoulder ached from surgery. Lay statements by the Veteran received in October 2008 and December 2009 state that his right shoulder pain was getting worse. A December 2010 VA treatment record notes that the Veteran was seen that August r for an orthopedic consultation, at which time X-rays showed probable right shoulder post operative changes. Chronic right shoulder pain was diagnosed. On May 2011 orthopedic consult it was noted that the Veteran was being seen for evaluation of his right shoulder due to continued pain since injury and surgery in 1987. He reported he no longer was able to lift heavy items, and that he has cramps and has to stop and wait if trying to do so. He reported no constant pain, but stated that he gets tired and aches when using his right arm. The physician noted that the Veteran is employed with computer work, which is not affected by his shoulder condition. On physical evaluation, there was some deformity of the distal clavicle, with range of motion normal on elevation to 90 degrees (active and passive) and 90 degrees anterior rotation. Posterior rotation was limited to 20 degrees, with the Veteran unable to get his arm behind his back. The diagnosis was postop status, dislocation of right acromioclavicular joint. The examiner noted that the unstable AC joint was likely causing pain and difficulty lifting with the right arm. On July 2012 VA examination, the examiner noted that the Veteran is left hand dominant and injured his right shoulder in a fall in 1992, at which time he sustained a high grade acromio-clavicular separation which was treated with a Weaver-Dunn procedure. The examiner noted that the Veteran has done very well until the last five years when he has noted pain and cramping in the right shoulder and chest area with strenuous activities. The Veteran reported no neurological symptoms, and stated that he did not feel his symptoms were sufficient to consider further surgery. Examination of the shoulder showed a well-healed surgical incision. Both shoulders were level, with shoulder rotation measured at 90 degrees, abduction and elbow flexed to 90 degrees, both shoulders had external rotation to 90 degrees actively and passively, and right shoulder internal rotation was limited to 70 degrees by pain both actively and passively. Bilateral shoulder forward flexion was to 170 degrees actively and passively, and bilateral shoulder abduction was to 170 degrees actively and passively. The examiner noted no crepitus with any motion and stated that the only limitation noted by verbal and physical expression of pain was with internal rotation. Strength was normal and repetitive testing of range of motion did not result in pain, fatigue, weakness, lack of endurance, or incoordination. As for the left hip, the Veteran attributed his symptoms to increased stress on the hip due to weakness and abnormal gait resulting from surgery on his right leg for an Achilles tendon injury. He reported lateral and posterior left hip pain with prolonged standing and walking, stating that his pain is aggravated by crossing his legs and sitting for prolonged periods. He described the pain as moderately severe, and burning and aching in character. He did not report any neurological symptoms and stated that he does not take narcotic medication. Examination of the left hip demonstrated a slightly antalgic gait with definite atrophy of the right lower leg. Leg lengths were equal. There was no swelling over the lateral hip area and there was mild diffuse tenderness over the greater trochanter area. Both hips had symmetrical range of motion actively and passively, with 120 degrees of flexion, 20 degrees of extension, 25 degrees of adduction, 45 degrees of abduction; external rotation in flexion to 45 degrees and in extension to 60 degrees. The examiner noted that repetitive testing did not result in pain, fatigue, weakness, lack of endurance, or incoordination. The examiner reviewed 2010 X-rays of the shoulder and hip, and noted that the left hip and pelvis were normal for the Veteran's age, and the right shoulder showed the distal clavicle resection and satisfactory alignment of the remaining acromio-clavicular joint, as well as no glenohumeral degenerative changes. Right shoulder disability The Veteran's right shoulder disability is rated under Code 5203 for impairment of the clavicle. Under this Code, a 10 percent rating is warranted for nonunion of the clavicle without loose movement. A 20 percent rating is warranted for nonunion of the clavicle with loose movement or dislocation of the clavicle. 38 C.F.R. § 4.71a. Shoulder disability may also be rated under Code 5201 (for limitation of arm motion). 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 (90 degrees flexion and abduction constitutes shoulder level). 38 C.F.R. § 4.71, Plate I. The Board will consider all criteria that would provide for a rating in excess of 10 percent. Notably, Codes 5200 and 5202 require pathology and symptoms not shown in this case (ankylosis or humerus impairment), and rating under such Codes would be inappropriate. As mentioned above, the Veteran had a Weaver-Dunn surgery on his right shoulder in January 1992. Based on evidence of painful motion, a 10 percent rating was assigned. 38 C.F.R. § 4.59. To warrant the next higher (20 percent) rating for disability under Code 5203, the Veteran must show nonunion of the clavicle with loose movement or dislocation of the clavicle. Such is not shown by the record. On VA examination in July 2012, the examiner noted painful motion in the right shoulder, but no other significant findings. In addition, the VA examiner reviewed the radiological examination of the shoulder from 2010, noting that the right shoulder x-rays showed the distal clavicle resection and satisfactory alignment of the remaining acromio-clavicular joint and no glenohumeral degenerative changes (i.e., no nonunion). The Board notes that findings from VA examinations in June 2006 and August 2008 are in accord with the July 2012 examiner's findings, in that there was pain on motion, but that the right shoulder joint was not additionally limited by fatigue, weakness, lack of endurance, or incoordination on repetitive motion. A May 2011 VA treatment record notes a diagnosis of postop status, dislocation of the acromioclavicular joint of the right shoulder; it does not reflect current dislocation. An increased rating under Code 5201 (based on limitation of motion) is also not warranted. The next higher (20 percent) rating is warranted when there is limitation of arm motion at shoulder level or impairment approximating such level of severity (See 38 C.F.R. § 4.7). As is noted above, 90 degrees constitutes shoulder level and the restrictions found (on July 2012, August 2008, and June 2006 examinations) fall far short of the limitations required for a 20 percent rating. In short, the evidence of record does not show nor does the Veteran allege that he has, or at any time during the appeal period has had, limitation of arm motion at the shoulder level. While painful motion is shown, such is accounted by the 10 percent rating currently assigned. See Deluca, 8 Vet. App. at 202. Accordingly, a rating in excess of 10 percent under Code 5201 is not warranted. Left hip disability The Veteran's left hip disability is rated under Code 5253 (for limitations of abduction, adduction, or rotation). The Veteran seeks a compensable rating prior to August 19, 2008 and a rating in excess of 10 percent since. Under Code 5253, a 10 percent rating is warranted for limitation of adduction of the thigh (cannot cross legs) or limitation of rotation of the leg (cannot toe-out). A higher (20 percent) rating is warranted for limitation of abduction of the thigh, with motion lost beyond 10 degrees. The Veteran's hip may also be rated under Codes 5251 for limitation of extension of the thigh or Code 5252 for limitation of flexion of the thigh. Under Code 5251, a 10 percent rating is warranted if extension is limited to 5 degrees. Under Code 5252, a 10 percent rating is warranted if flexion is limited to 45 degrees and a 20 percent rating is warranted if flexion is limited to 30 degrees. At the outset, the Board notes that Codes 5250, 5254, and 5255 require pathology and symptoms not shown in this case (ankylosis, flail join, or femur impairment), and rating under such codes would be inappropriate. Considering the rating assigned prior to August 19, 2008, on service separation examination the veteran was found to have normal hip motion and normal hip X-rays. A VA examination in June 2006 revealed similar normal findings. The Board acknowledges a July 2007 statement by the Veteran indicating that he found it painful to cross his left leg over his right leg (which approximates the criteria for a compensable rating); however, this statement does not reflect limitation of adduction with inability to cross legs (rather, it endorses a subjective complaint of pain with such motion). Therefore, while the Board finds the statement not incredible, it is not persuasive that an increased rating was warranted in light of the overall record (particularly the June 2006 examination which found no limitation in adduction, and no limitation in any ranges of motion). Weighing the above information, the level of impairment shown prior to August 19, 2008 does not more closely approximate the criteria for a compensable rating under Code 5253. Additionally, at no time was flexion limited to 45 degrees or extension limited to 5 degrees. Thus, a compensable rating under Codes 5251 and 5252 also was not warranted prior to August 19, 2008. On August 19, 2008, VA examination, limitation of adduction was noted. Based on such, the RO increased the rating to 10 percent from that date. On May 2012 VA physical examination revealed normal adduction, with only slight limitations in flexion, and internal and external rotation; and no additional limitation due to pain or on repetition. See Deluca, 8 Vet. App. at 202. Such findings clearly do not reflect increased manifestations/impairment due to the disability. Accordingly, a rating in excess of 10 percent under Codes 5253, 5251, and 5252 for the period from August 19, 2008 is not warranted. The Board has also considered whether referral for extraschedular consideration is warranted. There is no objective evidence of symptoms of and/or impairment due to the right shoulder and left hip disabilities that are not encompassed by the schedular rating assigned. Therefore, the schedular criteria are not inadequate, and referral for extraschedular consideration is not warranted. 38 C.F.R. § 3.321(b); Thun v. Peake, 22 Vet. App. 111 (2008). Finally, as the Veteran is employed and has not alleged unemployability due to either of these disabilities, the matter of entitlement to a total rating based on individual unemployability is not raised by the record. See Rice v. Shinseki, 22 Vet. App. 447 (2009). Notably, on May 2011 orthopedic consultation it was specifically noted that the Veteran's shoulder condition does not impact on his ability to work. ORDER A rating in excess of 10 percent for a right shoulder disability is denied. Ratings for the Veteran's service-connected left hip disability in excess of 0 percent prior to August 19, 2008 and/or in excess of 10 percent from that date are denied. ____________________________________________ GEORGE R. SENYK Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs