Citation Nr: 1311088	
Decision Date: 04/03/13    Archive Date: 04/19/13

DOCKET NO.  09-00 051	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Boston, Massachusetts



THE ISSUE

Entitlement to a rating in excess of 10 percent for residuals of a fracture of the right clavicle.



REPRESENTATION

Appellant represented by:	Disabled American Veterans



ATTORNEY FOR THE BOARD

D. M. Casula, Counsel 



INTRODUCTION

The Veteran had active service from October 1952 to October 1954.

This matter comes before the Board of Veterans' Appeals (Board) from a February 2008 rating decision of the above Regional Office (RO) of the Department of Veterans Affairs (VA) which granted an increased, 10 percent, disability rating for the service-connected residuals of fracture of right clavicle.  

In November 2012, the Board remanded this matter to the RO via the Appeals Management Center (AMC), in Washington, D.C., in order to conduct additional evidentiary development, to include obtaining recent treatment records for the Veteran's right shoulder, as well as a VA examination.  A review of the record shows that these actions were accomplished.  Thus, the Board concludes that there was substantial compliance with the November 2012 remand directives.  Stegall v. West, 11 Vet. App. 268 (1998).  [In addition, please note that this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012).  38 U.S.C.A. § 7107(a)(2) (West 2002).]  


FINDING OF FACT

Resolving any doubt in the Veteran's favor, the service-connected residuals of fracture of his right clavicle are manifested by complaints of pain and objective findings of weakened movement, excess fatigability, incoordination, and limitation of motion with pain, that is compatible with limitation of motion of the right arm to shoulder level.  However, motion limited to 25 degrees from the side, ankylosis, and impairment of the humerus beyond osteoarthritis have not been shown.  


CONCLUSION OF LAW

The criteria for a 20 percent rating, but no higher, for the service-connected residuals of fracture of the Veteran's right (non- dominant) shoulder have been met.  38 U.S.C.A. §§ 1155 (West 2002); 38 C.F.R. §§ 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5200-5203 (2012). 


REASONS AND BASES FOR FINDING AND CONCLUSION

The Board has thoroughly reviewed all the evidence in the Veteran's claims folder.  Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the evidence submitted by the Veteran or on his behalf.  See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000).  The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim.  The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein.  See Timberlake v. Gober, 14 Vet. App. 122 (2000).

I. Duty to Notify and Assist

The Veterans Claims Assistance Act of 2000 (VCAA) enhanced VA's duty to notify and assist claimants in substantiating a claim for VA benefits, as codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.159, 3.326(a).  Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his representative of any information, and any medical or lay evidence, that is necessary to substantiate the claim.  38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002).  Proper notice from VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide.  38 C.F.R. § 3.159(b)(1), as amended, 73 Fed. Reg. 23,353 (April 30, 2008).  This notice must be provided prior to an initial decision on a claim by the RO.  Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). 

The VCAA notice requirements apply to all five elements of a service connection claim:  (1) veteran status; (2) existence of disability; (3) connection between service and the disability; (4) degree of disability; and (5) effective date of benefits where a claim is granted.  Dingess v. Nicholson, 19 Vet. App. 473, 484 (2006).

If complete notice is not provided until after the initial adjudication, such a timing error can be cured by subsequent legally adequate VCAA notice, followed by readjudication of the claim, as in a Statement of the Case (SOC) or Supplemental SOC (SSOC).  Moreover, where there is an uncured timing defect in the notice, subsequent action by the RO which provides the claimant a meaningful opportunity to participate in the processing of the claim can prevent any such defect from being prejudicial.  Mayfield v. Nicholson, 499 F.3d 1317, 1323-24 (Fed. Cir. 2007); Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006).

The United States Court of Appeals for the Federal Circuit (Federal Circuit) has held that any error in VCAA notice should be presumed prejudicial, and that VA bears the burden of proving that such an error did not cause harm.  Sanders v. Nicholson, 487 F.3d 881 ( Fed. Cir. 2007).  However, the United States Supreme Court reversed that decision, finding it unlawful in light of 38 U.S.C.A. § 7261(b)(2).  The Supreme Court held that - except for cases in which VA failed to meet the first requirement of 38 C.F.R. § 3.159(b) by not informing the claimant of the information and evidence necessary to substantiate the claim - the burden of proving harmful error rests with the party raising the issue, the Federal Circuit's presumption of prejudicial error imposed an unreasonable evidentiary burden upon VA and encouraged abuse of the judicial process, and determinations on the issue of harmless error should be made on a case-by-case basis.   Shinseki v. Sanders, 129 S. Ct. 1696 (2009). 

In a claim for increase, the VCAA requires generic notice-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).

In this case, the VCAA duty to notify was satisfied by way of a letter sent to the Veteran in September 2007 that fully addressed the notice elements and was sent prior to the initial RO decision in this matter.  The letter informed the Veteran of what evidence was required to substantiate the claim and of his and VA's respective duties for obtaining evidence.  The Board also notes that in the September 2007 letter the Veteran was advised of how disability ratings and effective dates are assigned.  See Dingess v. Nicholson, supra.  Moreover, he has not demonstrated any error in VCAA notice, and therefore the presumption of prejudicial error as to such notice does not arise in this case.  See Sanders v. Nicholson, supra.  Thus, the Board concludes that all required notice has been given to the Veteran.  

The Board also finds VA has satisfied its duty to assist the Veteran in the development of the claim.  The RO has obtained all identified and available service and post-service treatment records for the Veteran.  Further, he underwent VA examinations in December 2007 and January 2013 to assess the severity of his service-connected right shoulder condition.  Each of these VA examinations included a review of the claims folder and an interview with the Veteran to obtain his pertinent medical history.  In addition, examination findings were reported, along with diagnoses and opinions, which were supported in the record.  Thus, the December 2008 and January 2013 VA examination reports are adequate for rating purposes.  See Barr v. Nicholson, 21 Vet. App. 303, 310-11 (2007).  It appears that all obtainable evidence identified by the Veteran relative to his claim has been obtained and associated with the claims folder, and neither he nor his representative has identified any other pertinent evidence, not already of record, which would need to be obtained for a fair disposition of this appeal.  The Board concludes that no further notice or assistance to the Veteran is required to fulfill VA's duty to assist him in the development of the claim.  Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, supra.

The Board concludes that VA has satisfied its duty to assist the Veteran in apprising him as to the evidence needed, and in obtaining evidence pertinent to his claim under the VCAA.  No useful purpose would be served in remanding this matter for yet more development.  Such a remand would result in unnecessarily imposing additional burdens on VA, with no additional benefit flowing to the Veteran.  The United States Court of Appeals for Veterans Claims (Court) has held that such remands are to be avoided.  Sabonis v. Brown, 6 Vet. App. 426, 430 (1994).

II. Factual Background

Received from the Veteran in September 2007 was a statement (VA Form 21-4138) in which he reported having restricted mobility in the right shoulder/arm and sever pain with movement.  He reported that his shoulder (clavicle) problem had restricted his driving on his right side and that he was unable to do heavy outdoor yard work.  He reported that, when the pain became unbearable, he treated these occurrences by stopping and resting and used over the counter medication.

On a VA examination in December 2007, it was noted that the Veteran had a right clavicular fracture in service and that his right shoulder condition had progressively worsened since then.  On the examination, he complained of right shoulder pain, stiffness, and weakness.  He reported that he needed help with putting on and off clothes, that he could not help with housework, and that he did not sleep well because of the pain.  He believed that his shoulder condition had worsened over the years.  He worked full time, for over 15 years, as a maintenance manager of an autobody company, and had not had any absences from work in the past year.  He had stopped playing basketball and golf, doing lawn work, and plowing snow, due to his shoulder pain.  Flare-ups included greater limitation of motion and function due to worsening pain and stiffness, with worsening fatigue and lack of endurance and strength, with repetitive use as well as flare-ups.  He reported that flare-ups happened everyday and aggravating factors included reaching, pushing, pulling, lifting, positioning the arm at the shoulder level, lying on the affected side, putting on and off clothes, and lifting weights.  Alleviating factors included ice, more medicine, and rest.  Physical examination revealed no recurrent shoulder dislocations or ankylosis.  He had painful right shoulder movement, but no crepitation or clicks or snaps.  The examiner noted no pain, weakness, fatigability, incoordination, or lack of endurance was shown on repetitive right shoulder motion testing.  Range of motion testing of the right shoulder revealed flexion was to 180 degrees, with pain beginning at 130 degrees, and adduction was to 180 degrees, with pain beginning at 130 degrees, but no additional loss of motion on repetitive use of the shoulder joint.  The examiner noted that the Veteran had considerable pain with most of the range of motion testing.  The examiner noted that the Veteran could perform the Apley scratch test, with complaints of pain however, and that this pointed to some extent of preserved shoulder function.  The examiner also noted that the Veteran's impingement signs on Hawkins and Neer tests were negative and he did not have any tenderness or deficit of strength.  An x-ray of the right shoulder revealed old trauma and moderate degenerative arthritis involving the glenohumeral joint and calcific tendinitis.  

At the January 2013 VA examination, the examiner indicated the diagnoses were status post fracture right clavicle, glenohumeral osteoarthritis, and calcific tendinitis of the right shoulder.  The Veteran reported he fractured his right clavicle falling off a truck, was placed in a sling for three weeks, and had progressive right shoulder pain and limited range of motion ever since.  It was noted that he was left handed.  He reported having 10 flare-ups a year that kept him out of work.  Range of motion testing revealed right shoulder flexion to 100 degrees, with objective evidence of painful motion at 90 degrees, and right shoulder abduction to 160 degrees, with objective evidence of painful motion at 110 degrees.  After repetitive use testing with three repetitions, he had no additional limitation of motion as his right shoulder flexion was to 100 degrees and abduction was to 160 degrees.  It was noted that he had functional loss and/or functional impairment of the right shoulder and arm, and the contributing factors of disability included less movement than normal, weakened movement, excess fatigability, incoordination and impaired ability to execute skilled movements smoothly, and pain on movement.  He also had localized tenderness/pain on palpation and guarding of the right shoulder.  Muscle strength testing on right shoulder abduction was 4/5 and forward flexion was 4/5.  There was no ankylosis of the glenohumeral articulation (shoulder joint).  It was noted that there was a history of mechanical symptoms (clicking, catching, etc.) in the right shoulder, but there was no history of recurrent dislocation of the glenohumeral (scapulohumeral) joint.  

Further, the examiner indicated "yes" in response to the question of whether the Veteran had an AC joint condition or any other impairment of the clavicle or scapula.  With regard to severity and side effects, the examiner indicated that the Veteran had glenohumeral osteoarthritis and old fracture of the right clavicle.  There were multiple tests performed on the right shoulder, which could possibly show rotator cuff or subscapularis tendinopathy or tear, shoulder instability, and/or acromioclavicular joint pathology.  There was tenderness on palpation of the AC joint.  The examiner commented that the Veteran's shoulder condition did impact his ability to work, because he could not do right arm lifting or do work at or above shoulder level.  The examiner also commented that the humerus was normal except for glenohumeral arthritis with no other abnormalities; the right scapula and scapulohumeral joint were normal; the right clavicle revealed an old mid shaft fracture; a right shoulder x-rays from 2007 revealed calcific tendinitis; with no other functional or anatomical abnormalities involving the right shoulder.  

III. Analysis

Disability ratings are determined by applying the criteria set forth in the VA's Schedule for Rating Disabilities, which is based on the average impairment of earning capacity.  Individual disabilities are assigned separate diagnostic codes.  38 U.S.C.A. § 1155; 38 C.F.R. § 4.1.  Examination reports are to be interpreted in light of the whole recorded history, and each disability must be considered from the point of view of the appellant working or seeking work.  38 C.F.R. § 4.2.  Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating.  Otherwise, the lower rating is to be assigned.  38 C.F.R. § 4.7. 

In general, when an increase in the disability rating is at issue, it is the present level of disability that is of primary concern.  See Francisco v. Brown, 7 Vet. App. 55, 58 (1994).  However, when the current appeal arose from the initially assigned rating, consideration must be given as to whether staged ratings should be assigned to reflect entitlement to a higher rating at any point during the pendency of the claim.  Fenderson v. West, 12 Vet. App. 119 (1999).  Staged ratings are appropriate in any increased rating claim in which distinct time periods with different ratable symptoms can be identified.  Hart v. Mansfield, 21 Vet. App. 505 (2007). 

It should also be noted that when evaluating disabilities of the musculoskeletal system, 38 C.F.R. § 4.40 allows for consideration of functional loss due to pain and weakness causing additional disability beyond that reflected on range of motion measurements.  DeLuca v. Brown, 8 Vet. App. 202 (1995).  Further, 38 C.F.R. § 4.45 provides that consideration also be given to weakened movement, excess fatigability and incoordination. 

Disabilities of the shoulder and arm are rated under 38 C.F.R. § 4.71a, Diagnostic Codes (DCs) 5200 through 5203.  A distinction is made between major (dominant) and minor (non-dominant) musculoskeletal groups for rating purposes.  38 C.F.R. § 4.69.  The record reflects that the Veteran is left-handed; thus, his right shoulder is considered the minor (non-dominant) upper extremity.

The Veteran's service-connected residuals of fracture of the right clavicle have been rated as 10 percent disabling under Diagnostic Code (DC) 5203.  Pursuant to DC 5203, a 10 percent rating is warranted for malunion of the clavicle or scapula, or nonunion of the clavicle or scapula without loose movement.  A 20 percent rating is warranted for dislocation of the clavicle or scapula, or nonunion of the clavicle or scapula with loose movement.  38 C.F.R. § 4.71a, DC 5203.

Pursuant to DC 5201, limitation of the minor arm at the shoulder level warrants a 20 percent rating, limitation of the minor arm to midway between the side and shoulder level warrants a 20 percent rating, and limitation of motion of the minor arm to 25 degrees from the side warrants a 40 percent rating.  38 C.F.R. § 4.71a, DC 5201. 

Normal range of motion of the shoulder is flexion from 0 to 180 degrees, abduction from 0 to 180 degrees, and internal and external rotation from 0 to 90 degrees.  38 C.F.R. § 4.71a, Plate I. 

The criteria for rating degenerative arthritis under DC 5003 directs that degenerative arthritis established by X-ray findings will be rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved.  38 C.F.R. § 4.71a, DC 5003.  When, however, the limitation of motion is noncompensable under the appropriate diagnostic codes, a rating of 10 percent may be applied to each such major joint or group of minor joints affected by limitation of motion.  The limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. 38 C.F.R. § 4.71a, DC 5003.  

As previously noted herein, the Veteran's service-connected right shoulder disability was assigned a 10 percent rating, pursuant to DC 5203, for malunion of the clavicle or scapula, or nonunion of the clavicle or scapula without loose movement.  In order to qualify for an increased rating of 20 percent under DC 5203, the evidence must show nonunion of the clavicle or scapula with loose movement or dislocation of the clavicle or scapula.  A review of the competent evidence of record, however, does not show that the Veteran has any such impairment of the clavicle, to include nonunion or dislocation.  While the record reveals that the Veteran has an old fracture of the right clavicle, for which service connection has been granted, there has been no showing of or even complaint of nonunion or dislocation of the clavicle.  Rather, the competent evidence of record shows that his service-connected right shoulder disability is manifested by pain, as well as objective findings of weakness, excess fatigability, incoordination, and limitation of motion with pain.  

The most recent VA examination in 2013 showed that the Veteran had flexion to 100 degrees, with pain starting at 90 degrees.  Considering additional applicable diagnostic codes, the Board notes that, in order to qualify for an increased rating of 20 percent under DC 5201, right arm motion must be limited to shoulder level.  While the competent medical evidence of record does not show that the Veteran's right shoulder motion (either on flexion or abduction) is limited to shoulder level, the most recent medical evidence (the 2013 VA examination) did show that, on range of motion testing, flexion was limited by pain at 90 degrees.  In addition, the Veteran had slightly decreased strength, weakened movement, incoordination, guarding, and pain on movement.  Thus, giving the Veteran the benefit of the doubt, the Board finds that the flexion of the Veteran's right shoulder elicits pain at 90 degrees and that, together with his pain, weakness, excess fatigability, incoordination, decreased strength, and functional impairment, more nearly approximates right arm motion limited to shoulder level, thereby warranting entitlement to a 20 percent rating under DC 5201.  38 C.F.R. §§ 4.7, 4.40, 4.45.  An even higher rating for pain would not be warranted because there is no additional uncompensated functional loss or limitation of right arm motion that can provide a basis for an even higher rating based on pain.  Deluca v. Brown, supra.

Further, in order to qualify for an even higher rating , the competent evidence would need to show right shoulder/arm motion limited to 25 degrees from the side (DC 5201); ankylosis (DC 5200); or malunion of the humerus with marked deformity, or fibrous union of the humerus (DC 5202); however, the competent evidence of record has failed to show or approximate limitation of arm motion to 25 degrees from the side or ankylosis.  In addition, while there is evidence of both right shoulder arthritis and possible tendonopathy, no study has disclosed fibrous union, nonunion, or loss of the humeral head.  In addition, since arthritis is also rated based on loss of motion of the involved joint, DC 5003, for arthritis, would also not provide any basis for a higher rating.  

Accordingly, the Board concludes that the evidence as a whole, with application of the benefit-of-the-doubt rule, supports an increase to a 20 percent disability rating, but no higher, for the service-connected residuals of fracture of the right clavicle.  38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990).

In reaching this decision, the Board points out that the rating schedule represents as far as practicable, the average impairment of earning capacity.  Ratings will generally be based on average impairment. 38 C.F.R. § 3.321(a),(b).  To afford justice in exceptional situations, an extraschedular rating can be provided.  38 C.F.R. § 3.321(b).  The criterion for such an award is a finding that the case presents an exceptional or unusual disability picture with related factors as marked interference with employment or frequent periods of hospitalization as to render impractical application of regular schedular standards.  38 C.F.R. § 3.321(b).  The Board is precluded by regulation from assigning an extraschedular rating under 38 C.F.R. § 3.321(b)(1) in the first instance; however, the Board is not precluded from raising this question, and in fact is obligated to liberally read all documents and oral testimony of record and identify all potential theories of entitlement to a benefit under the law and regulations.  Floyd v. Brown, 9 Vet. App. 88 (1996).  
Extraschedular consideration involves a three step analysis.  Thun v. Peake, 22 Vet. App. 111 (2008).  First, the Board (or the RO) must determine whether the schedular rating criteria reasonably describe the Veteran's disability level and symptomatology.  Id. at 115.  If the schedular rating criteria do reasonably describe the Veteran's disability level and symptomatology, the assigned schedular evaluation is adequate, referral for extraschedular consideration is not required, and the analysis stops.  Id.  If the Board (or RO) finds that the schedular evaluation does not contemplate the Veteran's level of disability and symptomatology, then either the Board (or RO) must determine whether the Veteran's exceptional disability picture includes other related factors such as marked interference with employment and frequent periods of hospitalization.  Id. at 116.  If this is the case, then the RO or the Board must refer the matter to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for the third step of the analysis, determining whether justice requires assignment of an extraschedular rating.  Id.  

The Veteran's symptoms associated with his service-connected right shoulder disability include pain with certain activities, weakness, and limitation of motion with pain, and impact his ability to do certain activities.  However, such impairment is contemplated and adequately compensated by the applicable rating criteria.  The rating criteria reasonably describe the Veteran's disability and provides for ratings higher than his level of disability as those criteria contemplate limitations to include the inability, due to pain or otherwise to raise his arm past a point 25 degrees from his side.  As his symptomatology and level of disability is contemplated by the schedular criteria, the first prong of Thun is not met and the Board declines to remand the issue on appeal for referral for extraschedular consideration. 

Lastly, the Court has recently held that a request for a total disability rating based on individual unemployability due to service-connected disability (TDIU), whether expressly raised by a claimant or reasonably raised by the record, is an attempt to obtain an appropriate rating for disability or disabilities, and is part of a claim for increased compensation.  There must be cogent evidence of unemployability in the record.  See Rice v. Shinseki, 22 Vet. App. 447 (2009), citing Comer v. Peake, 552 F.3d 1362 (Fed. Cir. 2009).  However, the holding of Rice is inapplicable here because the evidence of record does not illustrate that the Veteran's service-connected right shoulder disability prevents him from obtaining and maintaining gainful employment-nor has the Veteran contended otherwise.  Thus, at this point, there is no cogent evidence of unemployability due solely to this service-connected disability, and the issue of entitlement to a TDIU need not be addressed further.  


ORDER

A 20 percent rating for residuals of a fracture of the right clavicle is granted, subject to the regulations regarding payment of monetary benefits.



____________________________________________
THERESA A. CATINO
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs