Citation Nr: 1312306 Decision Date: 04/15/13 Archive Date: 05/02/13 DOCKET NO. 09-47 289 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Indianapolis, Indiana THE ISSUES 1. Entitlement to a compensable rating for overuse syndrome, left shoulder. 2. Entitlement to service connection for right shoulder disability. 3. Entitlement to service connection for low back disability. ATTORNEY FOR THE BOARD J. Chapman, Associate Counsel INTRODUCTION The Veteran served on active duty from March 2002 to May 2007. These matters come before the Board of Veterans' Appeals (Board) on appeal from a January 2009 rating decision by a Regional Office (RO) of the Department of Veterans Affairs (VA). A notice of disagreement was received in March 2009, a statement of the case was issued in October 2009, and a substantive appeal was received in December 2009. The issues of entitlement to service connection for right shoulder disability and for low back disability are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDING OF FACT The Veteran's service-connected left shoulder disability is manifested by minimal limitation of motion with no objective evidence of pain. CONCLUSION OF LAW The criteria for a compensable rating for left shoulder disability have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. § 4.71a, Diagnostic Code 5024 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Veterans Claims Assistance Act of 2000 (VCAA) Upon receipt of a complete or substantially complete application, VA must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide. 38 U.S.C.A. § 5103(a). The notice requirements apply to all five elements of a service connection claim: 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). The record shows that in an August 2008 VCAA letter, the appellant was informed of the information and evidence necessary to warrant entitlement to the benefits sought on appeal. The appellant was also advised of the types of evidence VA would assist him in obtaining as well as his own responsibilities with regard to identifying relevant evidence. See Quartuccio v. Principi, 16 Vet. App. 183 (2002); Charles v. Principi, 16 Vet. App. 370 (2002). The United States Court of Appeals for Veterans Claims' decision in Pelegrini v. Principi, 18 Vet. App. 112 (2004) held, in part, that a VCAA notice as required by 38 U.S.C. § 5103(a), must be provided to a claimant before the initial unfavorable agency of original jurisdiction decision on a claim for VA benefits. In this case, the RO provided VCAA notice to the Veteran in August 2008, prior to the January 2009 rating decision. Accordingly, the requirements the Court set out in Pelegrini have been satisfied. The Board also stresses that since the issue of entitlement to a higher initial rating is a downstream issue from that of service connection (for which a VCAA letter was duly sent in August 2008), another VCAA notice is not required. VAOPGCPREC 8-2003 (Dec. 22, 2003). It appears that the United States Court of Appeals for Veterans Claims has also determined that the statutory scheme does not require another VCAA notice letter in a case such as this where the Veteran was furnished proper VCAA notice with regard to the claim of service connection itself. See Dingess v. Nicholson, 19 Vet. App. 473, 491 (2006). In sum, the Veteran has received all essential notice, has had a meaningful opportunity to participate in the development of his claim, and is not prejudiced by any technical notice deficiency along the way. See Conway v. Principi, 353 F.3d 1369 (Fed. Cir. 2004). In any event, the Veteran has not demonstrated any prejudice with regard to the content of the notice. See Shinseki v. Sanders, 129 S. Ct. 1696 (2009) (Reversing prior case law imposing a presumption of prejudice on any notice deficiency, and clarifying that the burden of showing that an error is harmful, or prejudicial, normally falls upon the party attacking the agency's determination). See also Mayfield v. Nicholson, 444 F.3d 1328, 1333-34 (Fed. Cir. 2006). VA also has a duty to assist a claimant under the VCAA. VA has obtained service treatment records; assisted the Veteran in obtaining evidence and examined the Veteran in January 2009, November 2010, and January 2013. All known and available records relevant to the issues on appeal have been obtained and associated with the Veteran's claims file; and the Veteran has not contended otherwise. VA has fully complied with the notice and assistance requirements and the Veteran is not prejudiced by a decision on the left shoulder rating issue at this time. Additionally, the Board notes that it has reviewed all the evidence in the Veteran's claims file and in Virtual VA (VA's electronic data storage system). Although the Board has an obligation to provide adequate reasons and bases supporting its decision, there is no requirement that the Board discuss every piece of evidence in the record. Rather, the Board's analysis will focus specifically on the evidence pertinent to the claim, and what it shows, or fails to show, with respect to the claim. See Gonzalez v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Increased Rating The Veteran contends that the severity of his service-connected left shoulder disability warrants a higher disability rating. This disability is currently rated as 0 percent disabling. Disability evaluations are determined by the application of a schedule of ratings which is based on the average impairment of earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R., Part 4. Separate diagnostic codes identify the various disabilities. 38 C.F.R. § 4.1 requires that each disability be viewed in relation to its history and that there be emphasis upon the limitation of activity imposed by the disabling condition. 38 C.F.R. § 4.2 requires that medical reports be interpreted in light of the whole recorded history, and that each disability must be considered from the point of view of the Veteran working or seeking work. 38 C.F.R. § 4.7 provides that, 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. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a claim, VA shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107. In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the Veteran's condition. Schafrath v. Derwinski, 1 Vet.App. 589, 594 (1991). Where, as here, 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). The Board acknowledges that a claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. Hart v. Mansfield, 21 Vet. App. 505 (2007). The analysis in the following decision is therefore undertaken with consideration of the possibility that different ratings may be warranted for different time periods. It should 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. The Veteran's left shoulder has been rated by analogy as tenosynovitis, evaluated under Diagnostic Code (DC) 5024. The regulations direct that tenosynovitis will be rated on limitation of motion of the affected parts, as degenerative arthritis. 38 C.F.R. § 4.71a, DC 5024. Degenerative arthritis established by X-ray findings will be rated on the basis of limitation of motion under the appropriated diagnostic codes for the specific joint or joints involved. When the limitation of motion of the specific joint or joints involved is noncompensable under the appropriate diagnostic codes, an evaluation of 10 percent is applied for each major joint or group of minor joints affected by limitation of motion. These 10 percent evaluations are combined, not added, under DC 5003. 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. The movement of the shoulder and arm joint is covered in the regulations by DCs 5200 to 5203. Normal range of motion for 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. § 4.71, Plate I. A 20 percent evaluation is warranted for limitation of motion of the major or minor arm when motion is possible to the shoulder level or when to midway between the side and shoulder level on the minor side. A 30 percent evaluation is warranted for limitation of motion to midway between the side and shoulder level on the minor side. A 30 percent evaluation for the minor upper extremity and 40 percent for the major upper extremity requires that motion be limited to 25 degrees from the side. 38 C.F.R. § 4.71a, DC 5201. DC 5200 provides ratings ranging from 20 percent to 50 percent for favorable or unfavorable ankylosis. 38 C.F.R. § 4.71a, DC 5200. DC 5202 provides ratings ranging from 20 percent to 80 percent for impairment of the humerus. 38 C.F.R. § 4.71a, DC 5203. DC 5203 provides ratings ranging from 10 percent to 20 percent for impairment of the clavicle or scapula. 38 C.F.R. § 4.71a, DC 5203. Factual Background The present appeal involves the Veteran's claim that the severity of his service-connected left shoulder disability warrants a higher initial disability rating. Historically, service connection was granted in January 2009, with an assigned 0 percent disability rating under DC 5024, effective August 20, 2008. In August 2008, March 2009, and December 2009 statements, the Veteran has claimed that his left shoulder started as a minor ache during service and primarily hurt when doing push-ups and other exercises that put pressure on the joint. The Veteran claimed that the pain became much work in approximately June 2006 and continued after he left service. He stated that he continues to have pain when lifting anything over 10 pounds and experiences sharp pains when moving his shoulder in certain directions. A September 2007 VA treatment record noted occasional pain in the left shoulder with pain at 0/10 in his shoulder at this visit. The Veteran stated that the shoulder only bothers him when he lifts [weights]. He stated that his shoulder feels "loose" and that the pain doesn't travel to other areas. He stated that he has been to physical therapy in the past, but doesn't see the need to exercise if his shoulder isn't bothering him. The Veteran reported no limitation with activities of daily living. Left shoulder X-rays were normal. The Veteran was instructed to perform daily exercises to improve left shoulder stability and to decrease pain. The Veteran was afforded a VA examination in January 2009. The examiner noted a review of the claims file and the Veteran's history, including that the Veteran has pain in the shoulder when doing push-ups and weightlifting. The examiner noted no history of swelling, no radiation of pain, and no history of numbness or tingling. The Veteran reported that the pain is felt in the center of the shoulder. Examination of the upper extremities revealed normal motor power, sensation intact to touch, and no warmth, effusion, or tenderness in the shoulders. Range of motion of the left shoulder included abduction to 170 degrees, forward flexion to 170 degrees, external rotation in abduction to 85 degrees, internal rotation in abduction to 80 degrees, and extension to 70 degrees. Range of motion was not additionally limited by pain, fatigue, weakness, or lack of endurance. There was no crepitus with shoulder motion. The examiner did note marked bilateral scapular winging with forward pushing pressure. Radiographs of the shoulders revealed normal anatomic alignment with no fracture or dislocation. The examiner's impression was left shoulder overuse syndrome associated with bilateral chronic scapular winging. On November 2010 VA examination (primarily to evaluate the right shoulder), range of motion studies of the left shoulder revealed left flexion to 170 degrees, left abduction to 180 degrees, left internal rotation to 60 degrees and left external rotation to 90 degrees. There was no objective evidence of pain with active motion. The Veteran was again afforded a VA examination in January 2013. The examiner provided a diagnosis of overuse syndrome of the left shoulder since 2005. The Veteran reported that he is no longer working out and stated that he does not experience flare-ups and that his pain and symptoms directly correlate to exercise. Left shoulder range of motion studies revealed flexion to 180 degrees, abduction to 180 degrees, adduction to 25 degrees, external rotation to 90 degrees, and internal rotation to 90 degrees. There was no objective evidence of painful motion. There was also no limitation of range of motion after repetitive-use testing. Further, the examiner noted no functional loss of the shoulder and arm. Muscle strength was normal and there was no ankylosis of the shoulder joint. The Hawkins' Impingement test, empty-can test, external rotation/infraspinatus strength test and lift-off subscapularis test were negative. A history of mechanical symptoms for the left side was noted; however, there was no history of recurrent dislocation. Apprehension and relocation tests were negative. The Veteran had no AC joint condition or other impairment of the clavicle or scapula. There was no tenderness on palpation of the AC joint. A cross-body adduction test was also negative. The examiner noted that the Veteran's shoulder disability does not affect his ability to work. Regarding pain, the examiner stated that it is not likely that pain, although symptomatically present during exercise, would physically limit the Veteran's range of motion. Analysis Looking first to the rating criteria for the shoulder under 38 C.F.R. § 4.71a, the Board notes that there has been no evidence of impairment of the clavicle or scapula, impairment of the humerus or ankylosis. Thus, DCs 5200, 5202, and 5203 are not for present consideration. Under DC 5201 regarding arm limitation of motion, an evaluation in excess of 0 percent (20 percent) would require limitation of motion of the arm at shoulder level, which is 90 degrees. See 38 C.F.R. § 4.71a, Plate I. The January 2009 VA examination report shows flexion to 170 degrees and abduction to 170 degrees. The November 2010 VA examination report reveals flexion to 170 degrees and abduction to 180 degrees, and the January 2013 VA examination report shows flexion to 180 degrees and abduction to 180 degrees. These test results show that the Veteran is able to move the shoulder to above shoulder level. Still, in January 2009 and November 2010, the motion is less than normal. Id. If rated analogous to degenerative arthritis, this otherwise noncompensable limitation warrants a 10 percent rating when objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. Here, there is no basis for a rating in excess of 0 percent. The Board has considered functional loss due to pain, see DeLuca v. Brown, 8 Vet. App. 202 (1995), but notes that there is no evidence of any functional loss, nor is there evidence of swelling or muscle spasm. The Veteran himself admitted that he only experiences pain when working out or doing heavy lifting. Further, the Veteran stated that he does not experience flare-ups. The Board acknowledges the Veteran's statements regarding his left shoulder pain since service; however, the totality of the evidence does not approximate the criteria for a rating in excess of 0 percent. There is no limitation of motion to approximately shoulder level and there is no objective evidence of painful motion, swelling, or muscle spasm. Thus, the preponderance of the evidence is against a finding for an increased initial rating for the Veteran's left shoulder disability. In making this determination, the Board has considered the provisions of 38 U.S.C.A. § 5107(b) and 38 C.F.R. § 4.3, but there is not such a state of approximate balance of the positive evidence with the negative evidence to otherwise warrant a favorable decision. Should the Veteran's disability increase in severity in the future, he may always advance a claim for an increased rating. Extraschedular Consideration The potential application of various provisions of Title 38 of the Code of Federal Regulations has also been considered, but the record does not present such "an exceptional or unusual disability picture as to render impractical the application of the regular rating schedule standards." 38 C.F.R. § 3.321(b)(1); Bagwell v. Brown, 9 Vet. App. 337, 338-39 (1996). In this case, there are no exceptional or unusual factors with regard to the Veteran's disability on appeal. The threshold factor for extraschedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. See Fisher v. Principi, 4 Vet. App. 57, 60 (1993) ("[R]ating schedule will apply unless there are 'exceptional or unusual' factors which render application of the schedule impractical."). Here, the rating criteria reasonably describe his disability level and symptomatology and provides for more severe symptoms than shown by the evidence during the period in question; thus, his disability picture is contemplated by the rating schedule, and the assigned schedular evaluation is, therefore, adequate. See Thun v. Peake, 22 Vet. App. 111, 115 (2008). Hence, referral for extraschedular consideration is not warranted. Further, there is no evidence to indicate that the Veteran is unable to maintain full time employment. Thus, the issue of entitlement to total disability based upon individual unemployability (TDIU) is not for present consideration. See Rice v. Shinseki, 22 Vet. App. 447 (2009). ORDER Entitlement to a compensable rating for left shoulder disability is not warranted. To this extent, the appeal is denied. REMAND With regard to the issue of service connection for right shoulder disability, the Veteran contends that this disability is secondary to the service-connected left shoulder disability. He argues that right shoulder problems developed due to compensating for the left shoulder. Although the RO requested an opinion on secondary service connection, it appears from the report of the December 2012 VA examination report that the RO requested the examiner to furnish an opinion as to whether the left shoulder disability was due to or aggravated by the right shoulder disability. As such, another opinion is necessary. With regard to the low back issue, the RO has denied basically on a finding of no current disability. This determination was made in reliance on the VA examiner's report that there was a history of back problems, but no current pathology. The Veteran subsequently stated that his low back symptoms are not necessarily always present, but that he still suffers regular flare-ups. Under the circumstances, the Board believes additional examination is necessary to clarify whether or not the Veteran's suffers from chronic low back disability. In view of the need to return the low back issue to the RO for another examination, the Board believes that it is also appropriate to afford the Veteran clear VCAA notice related to secondary service connection. Accordingly, the case is REMANDED for the following actions: 1. The RO should furnish the Veteran with proper VCAA regarding the secondary service connection theory he is advancing in connection with the right shoulder issue. 2. The Veteran should be scheduled for appropriate VA examination(s) for the right shoulder and low back disabilities. It is imperative that the claims file be made available to and be reviewed by the examiner(s). All examination findings should be clearly reported. With regard to the right shoulder, the examiner should offer responses to the following: a) Is it at least as likely as not (a 50% or higher degree of probability) that right shoulder disability is proximately due to or caused by the service-connected left shoulder disability? b) Is it at least as likely as not (a 50% or higher degree of probability) that right shoulder disability has been aggravated by the service-connected left shoulder disability? With regard to the low back claim, is a medical diagnosis of chronic low back disability warranted? If so, is it at least as likely as not (a 50% or higher degree of probability) that the current chronic low back disability is causally related to the Veteran's service, to specifically include low back complaints noted during service? The examiner(s) should offer clear explanations for the opinions. 3. After completion of the above, the RO should review the expanded record and readjudicate the right shoulder and low back claims. The Veteran should be furnished an appropriate supplemental statement of the case and afforded an opportunity to respond. Thereafter, the case should be returned to the Board for appellate review. The appellant has the right to submit additional evidence and argument on the matter 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 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). ____________________________________________ ALAN S. PEEVY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs