Citation Nr: 1313697 Decision Date: 04/24/13 Archive Date: 05/03/13 DOCKET NO. 03-21 911 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Juan, the Commonwealth of Puerto Rico THE ISSUE 1. Entitlement to an initial rating in excess of 10 percent for radiculopathy of the right lower extremity. 2. Entitlement to a compensable rating for a right shoulder disability prior to August 20, 2005. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD A. Cryan, Counsel INTRODUCTION The Veteran served on active duty from October 1989 to August 1990, with subsequent service in the Army reserves. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2002 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in San Juan, Puerto Rico. The Board remanded the Veteran's claim in May 2004 and August 2008. In April 2012, the Board awarded a 20 percent disability rating for the Veteran's right shoulder disability effective August 20, 2005. Thereafter, the Veteran filed an appeal to the United States Court of Appeals for Veterans Claims. In a September 2012 Court Order, pursuant to a Joint Motion for Partial Remand, the Veteran's claim for entitlement to an initial compensable rating for a right shoulder disability prior to August 20, 2005, was remanded to the Board for additional development. FINDINGS OF FACT 1. In May 2012, prior to the promulgation of a decision, the Board received notification from the appellant that a withdrawal of the appeal on the issue of entitlement to an initial rating in excess of 10 percent for radiculopathy of the right lower extremity was requested. 2. The medical evidence does not show that the Veteran's service-connected right shoulder disability was manifested by limitation of motion of the arm midway between side and shoulder level at any time prior to August 20, 2005. CONCLUSIONS OF LAW 1. The criteria for withdrawal of an appeal on the issue of entitlement to an initial rating in excess of 10 percent for radiculopathy of the right lower extremity by the Veteran have been met. 38 U.S.C.A. § 7105(b)(2), (d)(5)(West 2002); 38 C.F.R. § 20.204 (2012). 2. The criteria for an initial compensable rating for a right shoulder disability prior to August 20, 2005, have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.321(b)(1), 4.7, 4.40, 4.45, 4.71a, Diagnostic Codes 5299-5201 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duty to Notify and Assist Upon receipt of a substantially complete application, VA must notify the claimant and any representative of any information, medical evidence, or lay evidence not previously provided to VA that is necessary to substantiate the claim. The notice must: (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; and (3) inform the claimant about the information and evidence the claimant is expected to provide. 38 U.S.C.A. §§ 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. § 3.159 (2012); Pelegrini v. Principi, 18 Vet. App. 112 (2004). If VA does not provide adequate notice of any of element necessary to substantiate the claim, or there is any deficiency in the timing of the notice, the burden is on the claimant to show that prejudice resulted from a notice error, rather than on VA to rebut presumed prejudice. Shinseki v. Sanders, 129 S.Ct. 1696 (2009). The Board finds that any defect with regard to the timing or content of the notice to the appellant is harmless because of the thorough and informative notices provided throughout the adjudication and because the appellant had a meaningful opportunity to participate effectively in the processing of the claim with an adjudication of the claim by the RO subsequent to receipt of the required notice. The record does not show prejudice to the appellant, and the Board finds that any defect in the timing or content of the notices has not affected the fairness of the adjudication. Mayfield v. Nicholson, 19 Vet. App. 103 (2005); Dingess v. Nicholson, 19 Vet. App. 473 (2006). Specifically, the Veteran was notified in letters dated January 2002, October 2003, June 2004, and July 2005. The Veteran has neither alleged nor demonstrated any prejudice with regard to the content or timing of the notice provided. Shinseki v. Sanders, 129 S. Ct. 1696 (2009) (burden of showing that an error is harmful or prejudicial falls upon the party attacking the agency determination); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). Thus, VA has satisfied its duty to notify the appellant and had satisfied that duty prior to the adjudication in the June 2010 supplemental statement of the case. Overton v. Nicholson, 20 Vet. App. 427 (2006) (Veteran afforded a meaningful opportunity to participate effectively in adjudication of claim, and therefore notice error was harmless). The Board also finds that the duty to assist requirements have been fulfilled. All relevant, identified, and available evidence has been obtained, and VA has notified the appellant of any evidence that could not be obtained. The appellant has not referred to any additional, unobtained, relevant, available evidence. VA has obtained examinations with respect to the claim. Thus, the Board finds that VA has satisfied the duty to assist provisions of law. No further notice or assistance to the Veteran is required to fulfill VA's duty to assist him in development. Smith v. Gober, 14 Vet. App. 227 (2000); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Withdrawal of Appeal The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C.A. § 7105 (West 2002). An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 20.204 (2012). Withdrawal may be made by the appellant or the authorized representative. 38 C.F.R. § 20.204 (2012). The Veteran has withdrawn the appeal on the issue of entitlement to an initial rating in excess of 10 percent for radiculopathy of the right lower extremity and there remain no allegations of errors of fact or law for appellate consideration. Accordingly, the Board does not have jurisdiction to review the appeal and it is dismissed. Increased Rating The Veteran claims that he is entitled to a compensable rating for a service-connected right shoulder disability prior to August 20, 2005. Disability ratings are determined by the application of a schedule of ratings, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.1 (2012). Where entitlement to compensation has already been established and an increase in the assigned rating is at issue, it is the present level of disability that is of primary concern. Although the recorded history of a particular disability should be reviewed in order to make an accurate assessment under the applicable criteria, the regulations do not give past medical reports precedence over current findings. Francisco v. Brown, 7. Vet. App. 55 (1994). However, staged ratings are appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2012). The rating of the same disability under various diagnoses is to be avoided. 38 C.F.R. § 4.14 (2012). Disability of the musculoskeletal system is primarily the inability, due to damage or infection in parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination and endurance. It is essential that the examination upon which ratings are based adequately portray the anatomical damage, and the functional loss, with respect to all these elements. The functional loss may be due to absence of part, or all, of the necessary bones, joints and muscles, or associated structures, or to deformity, adhesions, defective innervation, or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by the visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. A little used part of the musculoskeletal system may be expected to show evidence of disuse, either through atrophy, the condition of the skin, absence of normal callosity or the like. 38 C.F.R. § 4.40 (2012). Evidence of pain, weakened movement, excess fatigability, or incoordination must be considered in determining the level of associated functional loss, taking into account any part of the musculoskeletal system that becomes painful on use. 38 C.F.R. § 4.40 (2012); DeLuca v. Brown, 8 Vet. App. 202 (1995). The provisions regarding the avoidance of pyramiding do not forbid consideration of a higher rating based on greater limitation of motion due to pain on use, including flare ups. 38 C.F.R. § 4.14 (2012). However, the provisions of 38 C.F.R. § 4.40 and 38 C.F.R. § 4.45 should only be considered in conjunction with the diagnostic codes predicated on limitation of motion. Johnson v. Brown, 9 Vet. App. 7 (1996). The intent of the rating schedule is to recognize painful motion with joint or periarticular pathology as productive of disability. It is the intention to recognize actually painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59 (2012). With respect to the joints, the factors of disability reside in reductions of their normal excursion of movements in different planes. Inquiry will be directed to these considerations: (a) less movement than normal (due to ankylosis, limitation or blocking, adhesions, tendon-tie-up, contracted scars, etc.); (b) more movement than normal (from flail joint, resections, nonunion of fracture, relaxation of ligaments, etc.); (c) weakened movement (due to muscle injury, disease or injury of peripheral nerves, divided or lengthened tendons, etc.); (d) excess fatigability; (e) incoordination, impaired ability to execute skilled movements smoothly; and (f) pain on movement, swelling, deformity or atrophy of disuse. Instability of station, disturbance of locomotion, interference with sitting, standing and weight-bearing are related considerations. 38 C.F.R. § 4.45 (2012). The shoulder is a major joint. 38 C.F.R. § 4.45 (2012). The Veteran's right shoulder disability is rated 0 percent prior to August 20, 2005, pursuant to 38 C.F.R. § 4.71a, Diagnostic Codes 5299-5201. Hyphenated diagnostic codes are used when a rating under one diagnostic code requires use of an additional diagnostic code to identify the specific basis for the evaluation assigned. Unlisted disabilities requiring rating by analogy will be coded by the numbers of the most closely related body part and 99. 38 C.F.R. § 4.27 (2012). The hyphenated diagnostic code in this case indicates that an unlisted musculoskeletal disability, under Diagnostic Code 5299, was the service-connected disability, and limitation of motion of the arm, under Diagnostic Code 5201, was a residual condition. As an initial matter, the Board notes that the medical evidence of record shows that the Veteran is right-handed. Therefore, for rating purposes, his right shoulder is considered his major or dominant extremity. 38 C.F.R. § 4.69 (2012). Diagnostic Code 5201 pertains to limitation of motion of the arm and provides that a 20 percent rating is warranted for limitation of motion of the dominant or non-dominant arm at shoulder level. A 30 percent rating is warranted for limitation of motion of the dominant arm midway between side and shoulder level. A 40 percent rating is appropriate for limitation of motion of the dominant arm to 25 degrees from the side. 38 C.F.R. § 4.71a, Diagnostic Code 5201 (2012). Normal forward elevation of a shoulder (flexion) and normal abduction is to 180 degrees. Normal internal and external rotation is to 90 degrees. 38 C.F.R. § 4.71, Plate 1 (2012). The Board notes that voluminous medical evidence is associated with the claims file. The Board will discuss only that evidence which is pertinent to the issue on appeal. A February 2002 VA joints examination shows that the Veteran reported almost continuous right shoulder pain described as tight pain on his right scapula. Range of motion testing of the right shoulder was to 180 degrees of abduction, 180 degrees of flexion, 90 degrees of internal rotation, 90 degrees of external rotation, and 30 degrees of extension. Manual muscle test of the right upper extremity was 5/5. The examiner indicated that there was no shoulder instability. X-rays of the right shoulder revealed no fracture of dislocation. A soft tissue mass density of the right axillary region was noted to correlate with a clinical history of possible hematoma. The Veteran was assessed with a right shoulder contusion. VA outpatient treatment reports include July 2002 X-rays of the right shoulder and no fracture or dislocations were identified. The Veteran was noted to have had a fall from a scaffold with trauma to his right side. A soft tissue mass density on the right axillary region was noted to represent a possible hematoma. A March 2003 occupational therapy initial assessment indicates that range of motion of the right upper extremity was within normal limits and functional strength of the right upper extremity was noted to be diminished at 4/5. A physical therapy assessment dated on the same day in March 2003 shows that range of motion of the right upper extremity was within full limits and muscle strength in the right upper extremity was 5/5. Records from the Social Security Administration (SSA) indicate that the Veteran is in receipt of SSA disability benefits for herniated nucleus pulposus of the cervical spine, degenerative disc disease of the lumbar spine with radiculopathy, bilateral carpal tunnel syndrome, sural nerve neuropathy, and major depression. The Veteran's right shoulder disability was not referenced in a February 2006 SSA decision. However, the medical records associated with the SSA decision include a Range of Motion Chart signed by S. Mendez, M.D., which was associated with an examination conducted in April 2003. The report indicated that the Veteran had right shoulder range of motion to 100 degrees of flexion, limited by pain; 100 degrees of abduction, limited by pain; 40 degrees of internal rotation; 90 degrees of external rotation; and 30 degrees of adduction. At a November 2003 VA joints examination, the Veteran reported right shoulder locking when reaching overhead with cramps and knotting at the intrascapular muscles and posterior shoulder pain. The Veteran reported flare-ups of right shoulder pain associated with performing activities above his head. Physical examination revealed no dislocation or recurrent subluxation. The Veteran was noted to be right-handed. Range of motion testing of the right shoulder revealed abduction to 145 degrees with pain, flexion to 160 degrees with pain, and internal and external rotation to 80 degrees. The examiner indicated that there was no additional functional impairment due to pain, fatigue, weakness, or lack of endurance following repetitive use on physical examination. Manual muscle strength was reported to be 5/5. There was tenderness to palpation at the intrascapular paravertebral muscles of the right shoulder with no instability and no guarding. The examiner assessed the Veteran with right shoulder contusion residuals. The Board finds that the Veteran's right shoulder disability does not warrant a compensable rating prior to August 20, 2005. The objective medical evidence of record including VA treatment reports, private treatment reports, and VA examinations shows that the Veteran at times had some limitation of motion of his right shoulder, with pain. However, there is no evidence to indicate that there was limitation of motion of the arm to shoulder level at any time during the relevant time period at issue. Accordingly, the Veteran is not entitled to a compensable rating for a right shoulder disability prior to August 20, 2005. The Board has also considered other diagnostic codes for possible application. However, the evidence of record does not indicate ankylosis or impairment of the scapula, humerus, or clavicle. 38 C.F.R. § 4.71a, Diagnostic Codes 5200, 5202, 5203 (2012). Thus, the Veteran is not entitled to an initial compensable rating under any other diagnostic codes. Furthemore, the evidence does not show X-ray evidence of arthritis such that a compensable rating could be awarded. 38 C.F.R. § 4.71a, Diagnostic Code 5003 (2012). The evidence of record shows reports of pain on use. However, there was no evidence of fatigue, weakness, lack of endurance, instability, or incoordination on examinations. While some of the evidence suggests that the Veteran's shoulder range of motion was additionally limited by pain, the specific degree of limitation did not equate to a compensable rating at those times. Moreover, the November 2003 VA examiner specifically indicated that there was no evidence of any additional loss of motion on repetition. Those findings do not suggest that any functional impairment caused by more or less movement than normal, weakened movement, excess fatigability, incoordination, pain on movement, swelling, deformity or atrophy of disuse equated to what is necessary for the award of a compensable rating. 38 C.F.R. §§ 4.40, 4.45, 4.59 (2012); Deluca v. Brown, 8 Vet. App. 202 (1995). The Board has considered whether referral for consideration of an extraschedular rating is warranted. The threshold factor for extraschedular consideration is a finding that the evidence presents such an exceptional disability picture that the available schedular ratings for the service-connected disability are inadequate. Thun v. Peake, 22 Vet. App. 111 (2008); Fisher v. Principi, 4 Vet. App. 57 (1993); 38 C.F.R. § 3.321(b)(1) (2012). Factors for consideration in determining whether referral for an extraschedular rating is necessary include marked interference with employment or frequent periods of hospitalization that indicate that application of the regular schedular standards would be impracticable. Thun v. Peake, 22 Vet. App. 111 (2008); 38 C.F.R. § 3.321(b)(1) (2012). The Board finds that referral is not warranted in this case. The evidence of record does not show that the Veteran's service-connected right shoulder disability markedly interfered with employment, beyond that contemplated in the assigned rating, or warranted frequent periods of hospitalization. While the Veteran was noted to be in receipt of SSA disability benefits, the records from the SSA do not show that the right shoulder disability was considered a severe impairment. None of the examiners of record concluded that the Veteran's disability markedly interfered with his ability to maintain employment at any time during the relevant appeal period. Moreover, the service-connected right shoulder disability did not required frequent periods of hospitalization. Consequently, the Board finds that the evidence does not show that the criteria for referral are met because marked interference with employment and frequent hospitalizations are not shown and the schedular rating criteria are not shown to be inadequate. The schedular rating criteria provide for higher ratings for more severe symptomatology, which is not shown. 38 C.F.R. § 3.321(b)(1) (2012); Bagwell v. Brown, 9 Vet. App. 337 (1996); Floyd v. Brown, 9 Vet. App. 88 (1996); Shipwash v. Brown, 8 Vet. App. 218 (1995). Accordingly, the Board finds that the preponderance of the evidence is against the assignement of a compensable rating for a right shoulder disability prior to August 20, 2005, and the claim is denied. 38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER The appeal with regard to the issue of entitlement to an initial rating in excess of 10 percent for radiculopathy of the right lower extremity is dismissed. Entitlement to a compensable rating for a right shoulder disability prior to August 20, 2005, is denied. ____________________________________________ HARVEY P. ROBERTS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs