Citation Nr: 1311097 Decision Date: 04/03/13 Archive Date: 04/19/13 DOCKET NO. 06-17 740 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Louisville, Kentucky THE ISSUES 1. Entitlement to an initial evaluation in excess of 10 percent for limited motion of the left shoulder, prior to July 31, 2012. 2. Entitlement to an initial evaluation in excess of 20 percent for limited motion of the left shoulder, from July 31, 2012. 3. Entitlement to an initial evaluation in excess of 20 percent for cervical root nerve pain of the left shoulder. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD James R. Siegel, Counsel INTRODUCTION The Veteran served on active duty from September 1976 to February 1981. This matter comes to the Board of Veterans' Appeals (Board) on appeal from rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO). By rating action dated August 2003, the RO granted the Veteran's claim for service connection for decreased range of motion of the left shoulder, effective August 12, 2002. The Veteran disagreed with the assigned rating. When this case was previously before the Board in July 2009, December 2010 and again in July 2012, it was remanded for additional development of the record and/or to ensure due process. The Board notes that an April 2012 rating decision granted service connection for cervical root nerve pain. In a January 2013 rating action, the RO assigned a 20 percent evaluation for limited motion of the left shoulder, effective July 31, 2012. In AB v Brown, 6 Vet. App. 35 (1993), the United States Court of Appeals for Veterans Claims (Court) held that, where there is no clearly expressed intent to limit the appeal to entitlement to a specific disability rating for the service connected condition, the RO and the Board are required to consider entitlement to all available ratings for that condition. Since the maximum rating for limited motion of the left shoulder has not been assigned, the Board will consider the Veteran's claim for an increased rating. In its July 2012 determination, the Board denied the Veteran's claim for an increased rating for left hand impairment. This decision, accordingly, is limited to the issues determination forth on the preceding page. FINDINGS OF FACT 1. Prior to July 31, 2012, there was no more than slight limitation of motion of the left shoulder with pain. 2. From July 31, 2012, the Veteran's left shoulder disability was manifested by limitation of motion and pain. The Veteran was able to raise his arm to above shoulder level. 3. The Veteran's cervical root nerve pain is manifested by decreased sensation, and is not more than mild. CONCLUSIONS OF LAW 1. The criteria for an initial evaluation in excess of 10 percent for limited motion of the left shoulder have not been met, prior to July 31, 2012. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. § 4.71a, Diagnostic Code 5201 (2012). 2. The criteria for an initial evaluation in excess of 20 percent for limited motion of the left shoulder have not been met, from July 31, 2012. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. § 4.71a, Diagnostic Code 5201 (2012). 3. The criteria for an initial evaluation in excess of 20 percent for cervical nerve root pain have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. § 4.124a, Diagnostic Code 8510 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Notice and assistance VA has duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a). See also Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Dingess v. Nicholson, 19 Vet. App. 473 (2006). In an increased rating claim, VA must notify the Veteran to submit evidence showing (1) a worsening or increase in severity of the disability and (2) the effect that worsening has on the claimant's employment. Vazquez-Flores v. Shinseki, 24 Vet. App. 94 (2010). The duties to notify and assist were met in this case. Notice was provided in February 2003 and February 2011 letters. The record also reflects that VA has made reasonable efforts to obtain relevant records adequately identified by the appellant. Specifically, the information and evidence that have been associated with the claims file include VA medical records, and VA examination reports. VA clinical examinations have been obtained. 38 C.F.R. § 3.159(c) (4). The Board finds that the VA clinical examinations obtained in this case are more than adequate, as they are predicated on a full reading of the medical records in the Veteran's claims file. As appropriate, clinical findings pertinent to the schedular criteria for rating the disabilities at issue were obtained. Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination with respect to the issues on appeal has been met. 38 C.F.R. § 3.159(c) (4). Analysis The Board has reviewed all the evidence in the appellant's claims file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the appellant or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claims and what the evidence in the claims file shows, or fails to show, with respect to each claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. Separate diagnostic codes identify the various disabilities. Disabilities must be reviewed in relation to their history. 38 C.F.R. § 4.1. Other applicable, general policy considerations are: interpreting reports of examination in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability, 38 C.F.R. § 4.2; resolving any reasonable doubt regarding the degree of disability in favor of the claimant, 38 C.F.R. § 4.3; where there is a question as to which of two evaluations apply, assigning a higher of the two where the disability picture more nearly approximates the criteria for the next higher rating, 38 C.F.R. § 4.7; and, evaluating functional impairment on the basis of lack of usefulness, and the effects of the disabilities upon the person's ordinary activity, 38 C.F.R. § 4.10. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where the appellant has expressed dissatisfaction with the assignment of an initial rating following an initial award of service connection for that disability, separate ratings can be assigned for separate periods of time based on the facts found - a practice known as "staged" ratings. Fenderson, 12 Vet. App. 119 (1999); see also Hart v. Mansfield, 21 Vet. App 505 (2007). Arthritis due to trauma, substantiated by X-ray findings, will be rated as degenerative arthritis. 38 C.F.R. § 4.71a, Diagnostic Code 5010. 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. When however, the limitation of motion of the specific joint or joints involved is noncompensable under the appropriate diagnostic codes, a rating of 10 percent is for application for each such major joint or group of minor joints affected by limitation of motion, to be combined, no added under diagnostic code 5003. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. In the absence of limitation of motion, a 20 percent evaluation will be assigned with X-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups, with occasional incapacitating exacerbation. A 10 percent evaluation will be assigned with X-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups. 38 C.F.R. § 4.71a, Diagnostic Code 5003. A 40 percent evaluation may be assigned for limitation of motion of the arm of the major extremity to 25 degrees from side. When motion is limited to midway between the side and shoulder level or at the shoulder level, a 30 percent evaluation may be assigned. When the limitation of motion is to the shoulder level, a 20 percent evaluation is assignable. 38 C.F.R. § 4.71a, Diagnostic Code 5201. Normal range of motion of the shoulder is as follows: forward elevation (flexion) to 180 degrees; abduction to 180 degrees; internal rotation to 90 degrees; and external rotation to 90 degrees. 38 C.F.R. § 4.71a, Plate I. A 70 percent evaluation may be assigned for complete paralysis of the upper radicular group (fifth and sixth cervicals) of the major extremity; all shoulder and elbow movements lost or severely affected, hand and wrist movements not affected. A 50 percent evaluation may be assigned for incomplete paralysis when severe, and a 40 percent evaluation is assignable when moderate. When mild, a 20 percent evaluation may be assigned. 38 C.F.R. § 4.124a, Diagnostic Code 8510. The term "incomplete paralysis" indicates a degree of lost or impaired function substantially less than the type picture for complete paralysis given with each nerve, whether due to varied level of the nerve lesion or to partial regeneration. 38 C.F.R. § 4.124a. When the involvement is wholly sensory, the rating should be for the mild, or at most, the moderate degree. The words "mild," "moderate," and "severe," as used in the various diagnostic codes, are not defined in the Rating Schedule. Rather than applying a mechanical formula, the Board must evaluate all of the evidence to ensure that its decisions are "equitable and just." 38 C.F.R. § 4.6 (2012). In a statement dated June 2002, a VA physician related the Veteran was a regular patient at the clinic, and that his complaints involved the left shoulder and left elbow. On VA examination in March 2003, it was noted the Veteran's complaints were complicated by recent findings of degenerative arthritis in the mid-cervical region, most affecting C5-6. It was stated the pain radiated to the side of the Veteran's elbow. The Veteran asserted it hurt to range the left elbow, and left shoulder. An examination revealed slight atrophy of the left upper extremity compared to the right. Forward flexion of the left shoulder was to 170 degrees; abduction was to 170 degrees; external rotation was to 90 degrees; and internal rotation was to 80 degrees. It was indicated the Veteran complained of pain on motion. Flexion of the elbow was to 130 degrees and extension was to 0 degrees. Grip in the left hand was 23/95 and 34/100 in the right hand. The diagnosis was decrease in range of motion of the left shoulder. It was stated the pain might be related to degenerative disc disease of the cervical spine, and the decreased range of motion might be related to disuse. It was also stated there was no evidence of left elbow pathology on examination. VA outpatient treatment records disclose the Veteran was seen in April 2004 for complaints of left shoulder and left elbow pain. An examination showed some degenerative joint disease changes in these joints. There was no swelling or redness. In September 2004, there was tenderness on motion, but no decrease in the range of motion of the left shoulder or left elbow. Similar findings were recorded in March 2005. The Veteran was afforded a VA examination of the joints in March 2006. He reported left shoulder and elbow pain, as well as stiffness. He denied dislocation or subluxation. Forward flexion of the left shoulder was to 175 degrees; abduction was to 175 degrees; internal rotation was to 85 degrees; and external rotation was to 75 degrees. It was indicated there was pain on all motions, but no additional limitation of motion on repetitive use. Flexion of the left elbow was from 0 to 130 degrees; extension was from 90 to 0 degrees; pronation was from 0 to 80 degrees; and supination was from 0 to 75 degrees. There was pain on some movements, but no additional limitation of motion on repetitive use. The diagnoses were degenerative joint disease of the left shoulder; degenerative disc disease/degenerative joint disease of the cervical spine; and decreased range of motion of the left shoulder. On VA peripheral nerves examination in March 2006, the Veteran reported he had painful paresthesias affecting the left arm in the C5-C6 distribution, consistent with evidence on imagining of degenerative disc disease and degenerative joint disease of the cervical spine and likely radiculitis. An examination demonstrated that the left biceps, triceps and brachioradialis reflexes were all 2+. The pertinent diagnosis was cervical radiculopathy of C5-C6. It was stated the Veteran had decreased strength and pain of the left upper extremity. VA outpatient treatment records dated in 2009 have been associated with the claims folder. Magnetic resonance imaging of the cervical spine in December 2009 revealed generalized disc bulge at C5-C6. An electromyogram revealed electro-diagnostic evidence of residual effects of a previous/chronic left C8-T1 muscle motor unit remodeling, representing previous axonal loss, possibly originating from the root levels. The Veteran was afforded a peripheral nerves examination by the VA in December 2009. The left biceps, triceps and brachioradialis reflexes were 2+ on the left. An electromyogram showed findings moderately suggestive of chronic T1 radiculopathy. There was no electrodiagnostic evidence of polyneuropathy. The diagnosis was that carpal tunnel syndrome was not found. A VA examination of the joints was also conducted in December 2009. The Veteran reported that lifting was intermittently painful with the left shoulder. An examination revealed that flexion of the left shoulder was from 0 to 175 degrees; abduction was from 0 to 180 degrees; and internal and external rotation were from 0 to 90 degrees. There was no objective evidence of pain with active motion. There was evidence of pain following repetitive motion, but no additional limitation of motion after repetitive use. There was mild scapulohumeral dyskinesis with increased scapular protraction with repetitive forward flexion. The diagnosis was cervicobrachial neuralgia of the left shoulder. It was stated no structural pathology was found. The Veteran was also afforded a VA examination of the spine in December 2009. A motor examination was 5/5 for left elbow flexion and extension. There was no indication of abnormal sensation. It was stated the left elbow felt vibration and light touch less than the right, although there was no complete loss of sensation. Reflexes were 2+ at the biceps, triceps and brachioradialis. On VA examination in August 2011, the Veteran asserted his left shoulder pain had been intermittent until about five years ago, at which time it became continuous. He related the pain was typically located in the apex of the left shoulder. He also said he felt an intermittent pop in the shoulder. It was noted there was no recurrent shoulder dislocations. The left shoulder was slightly tender at the area of the infraspinatus. Forward flexion of the left shoulder was from 0 to 150 degrees; abduction was from 0 to 130 degrees; internal rotation was from 0 to 50 degrees; and external rotation was from 0 to 90 degrees. There was objective evidence of pain on motion, as well as pain following repetitive motion. The diagnosis was limited range of motion of the left shoulder. The examiner noted that the December 2009 VA examination included diagnoses of no structural pathology found and cervicobrachial neuralgia. It was stated the diagnosis referred to a pattern of radiating pain associated with a neck condition and not primarily a shoulder condition. The examiner indicated that magnetic resonance imaging of the left shoulder was normal and, therefore, a discrete structural left shoulder condition was not made. The Veteran was examined for his spine in August 2011. He described intermittent numbness affecting the entire left arm. The left biceps, triceps and brachioradialis reflexes were 2+. There was decreased vibration on the left upper extremity at the radial, median and ulnar nerves. Light touch was decreased globally on the arm. A motor examination was 5/5 on elbow flexion and extension. The pertinent diagnosis was left C5 radiculopathy based upon left C8 radiculopathy. It was stated this was not related to degenerative disc disease, and the etiology was unclear. The Veteran was afforded a VA examination of the cervical spine in February 2012. He reported neck pain that radiated to his left shoulder. Muscle strength was normal on left elbow flexion and extension. Reflexes were 2+ at the left biceps, triceps and brachioradialis. A sensory examination was normal in the left shoulder. It was noted he had mild pain in the left upper extremity due to radiculopathy. He also had mild paresthesias in the left upper extremity. The severity of the radiculopathy was described as mild. It was noted there was involvement of the C5-C6 nerve roots. On VA examination in February 2012, the examiner indicated the Veteran had C5 disc disease and left upper back/neck pain. She stated this area received innervation from the upper cervical root. Thus, the pain described as left shoulder pain was as likely as not referred pain from the cervical degenerative disc disease/degenerative joint disease which was irritating the noted sensory fibers. There was no muscle loss or weakness, other than that related to pain. A VA peripheral nerves examination was conducted in February 2012. It was stated the Veteran had intermittent pain in the left upper extremity that was characterized as mild. He had mild paresthesias and numbness of the left upper extremity. Strength was 5/5 on elbow flexion and extension. Reflexes were 2+ at the left biceps, triceps and brachioradialis. Sensation was normal in the shoulder area and the inner/outer forearm. The radial, medial and ulnar nerves were normal in the left upper extremity. The upper radicular group was normal. An electromyogram demonstrated electrodiagnostic evidence of left ulnar neuropathy at the elbow, and left median nerve relative conduction slowing, but there was no evidence of radiculopathy in the cervical spine. The Veteran was afforded a VA examination for his neck in July 2012. He complained of pain in the center of his neck that radiates to the shoulders, and that the radiation of pain involves the same area as his left shoulder related pain. He added the pain occasionally radiates down the left arm to the fingers. Muscle strength was 5/5 on elbow flexion and 4/5 on elbow extension. There was no muscle atrophy. Reflexes were 1+ at the left biceps, triceps and brachioradialis. Sensation to light touch was normal in the left shoulder area, but decreased in the left inner/outer forearm. The Veteran did not have radicular pain or other signs or symptoms due to radiculopathy. The examiner noted the Veteran had an electromyogram in conjunction with the examination. It revealed electrodiagnostic findings of left ulnar neuropathy, and slowing of conduction in the left median nerve, but no evidence of radiculopathy related to the Veteran's neck condition. These findings were not related to the cervical spine condition. The examiner stated the Veteran described pain that radiated to the top of the left shoulder, and this pain was distinct from the shoulder pain. The pain in the top of the left shoulder was related to head movement (and therefore the neck condition), while the pain the shoulder joint area itself was related to the Veteran's left arm movement (and therefore the shoulder condition). The examiner indicated that the pain on the top of the shoulder has been diagnosed in the past as cervicobrachial neuralgia and represented a radiating pattern of pain from the Veteran's neck condition. While not directly related to cervical nerve root compression as such, it was related to the Veteran's service-connected neck disability. The examiner added that the Veteran does not have either complete or incomplete paralysis due to his neck condition. The nerve impairment would be construed as strictly sensory in nature and is in the distribution not the left supraclavicular nerve. The sensory impairment is considered mild in nature. The diagnosis was degenerative disc disease of the cervical spine. The Veteran was also examined by the VA for his left shoulder in July 2012. He reported increasing pain and stiffness, with difficulty working overhead. He said the soreness is located over the top, anterior and posterior shoulder. The aching was described as continuous, and activity increased the pain. He added he has noticed some progressive weakness in the left shoulder. The Veteran did not report flare-ups that impacted the function of the left shoulder. An examination revealed that forward flexion of the left shoulder was to 115 degrees, with objective evidence of pain beginning at 90 degrees; and abduction was to 80 degrees, with objective evidence of pain beginning at 70 degrees. It was noted the Veteran did not have additional limitation of motion following repetitive use testing. The examiner indicated the Veteran had weakened and painful movement and incoordination, but there was no indication of swelling or excess fatigability. There was no guarding. Muscle strength testing was 5/5 on shoulder flexion and abduction. The Veteran did not have ankylosis of the glenohumeral articulation. The empty can test was positive. There was no impairment of the clavicle or scapula. There was no tenderness to palpation of the acromioclavicular joint. The diagnosis was limited range of motion of the left shoulder. The examiner stated the manifestations of the Veteran's left shoulder disability include pain and restricted range of motion. He added the current examination suggested the possibility of suprascapularis tendinitis, but this finding was not reported on previous VA examinations. The record establishes that the Veteran is left-handed. The Veteran will initially consider whether a rating in excess of 10 percent is warranted for limited motion of the left shoulder, prior to July 31, 2012. The Board notes the VA examinations conducted in March 2003, March 2006 and December 2009 demonstrated minimal limitation of motion of the left shoulder. The Board acknowledges that forward flexion and abduction were 150 degrees and 130 degrees, respectively on the August 2011 VA examination. While this was a decrease from the previous VA examinations, inasmuch as the positive findings were essentially limited to pain and minimal limitation of motion, these findings do not support a rating in excess of 10 percent for limited motion of the left shoulder. The Veteran was next examined by the VA on July 31, 2012. It is significant to point out that this examination shows a further reduction in the range of motion of the left shoulder. As noted above, forward flexion was to 115 degrees and abduction was to 80 degrees. It was indicated there was objective evidence of pain on motion, but no additional limitation of motion following repetitive use. Although these findings support a 20 percent evaluation, there is no basis on which a higher rating may be assigned. A 30 percent evaluation requires that motion of the arm be limited to midway between the side and shoulder level. The evidence of record fails to establish sufficient limitation of motion to warrant a 30 percent rating. The Board concedes the Veteran is competent to report symptoms he experiences, such as pain and limitation of motion, and the Board finds him to be credible in this regard. The Veteran is not competent to provide an opinion requiring medical knowledge, or a clinical examination by a medical professional, such as an opinion addressing the severity of those symptoms or whether a service-connected disability satisfies specific rating criteria. As a result, his assertions cannot constitute competent medical evidence that the limited motion in his left shoulder has increased in severity, so as to warrant a rating in excess of 10 percent prior to July 31, 2012, or a rating in excess of 20 percent from that date. As such, the Board concludes that the medical findings on examination are of greater probative value than the Veteran's allegations regarding the severity of his left shoulder disability. The Board finds that the preponderance of the evidence is against the claim for an initial evaluation in excess of 10 percent for his service connected limited motion of the left shoulder prior to July 31, 2012, or a rating in excess of 20 percent from that date. The Board has considered whether factors including functional impairment and pain as addressed under 38 C.F.R. §§ 4.10, 4.40 and 4.45 would warrant a higher rating for the Veteran's left shoulder disability. See Spurgeon v. Brown, 10 Vet. App. 194 (1997); and DeLuca v. Brown, 8, Vet. App. 202 (1995). The Board points out that the record does not show that repetitive motion produced additional limitation in range of motion of the left shoulder. The Board finds that any pain the Veteran experiences is contemplated in the evaluations that have been assigned for limited motion of the left shoulder. The Veteran also asserts a higher evaluation should be assigned for cervical nerve root pain of the left shoulder. The Board notes that reflexes on all VA examinations through 2012 were 2+. While light touch was decreased in the left arm on the August 2011 VA examination, a motor evaluation was normal. It is significant to point out that the examinations in February and July 2012 characterized the pertinent findings as mild. As noted above, in order to assign a higher rating, the evidence must establish there is moderate impairment. The record does not support the Veteran's allegations regarding the severity of cervical root nerve pain. The Board concedes the Veteran is competent to report symptoms he experiences, such as weakness and numbness, and the Board finds him to be credible in this regard. The Veteran is not competent to provide an opinion requiring medical knowledge, or a clinical examination by a medical professional, such as an opinion addressing the severity of those symptoms or whether a service-connected disability satisfies specific rating criteria. As a result, his assertions cannot constitute competent medical evidence that his cervical nerve root pain of the left shoulder has increased in severity, so as to warrant a rating in excess of 20 percent. As such, the Board concludes that the medical findings on examination are of greater probative value than the Veteran's allegations regarding the severity of his left shoulder disability. The Board finds that the preponderance of the evidence is against the claim for an initial evaluation in excess of 20 percent for his service connected cervical nerve root pain of the left shoulder. Finally, the Board has considered whether extraschedular consideration is warranted. The discussion above reflects that the symptoms of the Veteran's left shoulder disabilities, to include pain, limitation of motion and numbness, are contemplated by the applicable rating criteria. The effects of the Veteran's disabilities have been fully considered and are contemplated in the rating schedule; hence, referral for an extraschedular rating is unnecessary at this time. Consideration of whether the Veteran's disability picture exhibits other related factors such as those provided by the regulations as "governing norms" is not required and referral for an extraschedular rating is unnecessary. Thun v. Peake, 22 Vet. App. 111 (2008). Total Rating for Compensation Based on Individual Unemployability (TDIU) TDIU is an element of all appeals of an initial rating. Rice v. Shinseki, 22 Vet. App. 447 (2009). Entitlement to TDIU is raised where a Veteran : (1) submits evidence of a medical disability; (2) makes a claim for the highest rating possible; and (3) submits evidence of unemployability. Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001). The Veteran has not argued, and the record does not otherwise reflect, that his service-connected left shoulder disability has rendered him totally unemployable. Accordingly, consideration of TDIU is not before the Board. Additional considerations In reaching the above conclusions, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine is not applicable in the instant appeal. See 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER An initial evaluation in excess of 10 percent for limited motion of the left shoulder, prior to July 31, 2012, is denied. An initial evaluation in excess of 20 percent for limited motion of the left shoulder, from July 31, 2012, is denied. An initial evaluation in excess of 20 percent for cervical nerve root pain is denied. ____________________________________________ ROBERT E. SULLIVAN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs