Citation Nr: 1314064 Decision Date: 04/29/13 Archive Date: 05/15/13 DOCKET NO. 10-30 818 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUES 1. Entitlement to an initial evaluation greater than 10 percent for left upper extremity radial nerve involvement, as secondary to the cervical spine, status post anterior fusion. 2. Entitlement to an initial evaluation greater than 10 percent for right upper extremity radial nerve involvement, as secondary to the cervical spine, status post anterior fusion. 3. Entitlement to an evaluation greater than 10 percent for left shoulder, status post arthroplasty. REPRESENTATION Appellant represented by: Attorney James R. Linehan WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Scott Shoreman, Counsel INTRODUCTION The Veteran had active service from February 1974 to October 1974 and from November 1981 to June 1990. This matter comes before the Board of Veterans' Appeals (Board) from a September 2009 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma. The Veteran testified before the undersigned Veterans Law Judge at a videoconference hearing in November 2012. A transcript is of record. The issues of entitlement to increased evaluations for left and right upper extremity radial nerve involvement as secondary to the cervical spine, status post anterior fusion, are addressed in the REMAND portion of the decision below and are REMANDED to the Department of Veterans Affairs Regional Office. FINDINGS OF FACT The Veteran's left shoulder, status post arthroplasty, is not characterized by nonunion of the clavicle or scapula with loose movement or limitation of motion of the arm to shoulder level. CONCLUSION OF LAW The criteria for the assignment of an evaluation in excess of 10 percent for left shoulder, status post arthroplasty have not been met. 38 U.S.C.A. §§ 1155, 5103A (West 2002); 38 C.F.R. §§ 3.321(b)(1), 4.1, 4.7, 4.10, 4.14, 4.21, 4.40, 4.45, 4.71a, Diagnostic Code 5203 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duty to Notify and Assist Under the Veterans Claims Assistance Act (VCAA), when VA receives a complete or substantially complete application for benefits, it 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 C.F.R. § 3.159 (2012); see also Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Such notice must advise that a disability rating and an effective date for the award of benefits will be assigned if there is a favorable disposition of the claim. Id.; 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.159, 3.326; see also Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II). Prior to initial adjudication of the Veteran's claim, a letter dated in June 2009 fully satisfied the duty to notify provisions of VCAA. 38 U.S.C.A. § 5103; 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). With respect to the duty to assist in this case, the Veteran's service treatment records, VA treatment records, and private treatment records have been obtained and associated with the claims file. The Veteran was also provided with two examinations, the reports of which have been associated with the claims file, in conjunction with his claim. The examiners provided well-reasoned rationales for their opinions. See Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). The Veteran and his attorney have not made the RO or the Board aware of any additional pertinent evidence that needs to be obtained in order to fairly decide the issues addressed in this decision, and have not argued that any error or deficiency in the accomplishment of the duty to notify and duty to assist has prejudiced him in the adjudication of these issues. As there is no indication that there are additional records that need to be obtained that would assist in the adjudication of the claim, the duty to assist has been fulfilled. The Veteran has been afforded a hearing before a VLJ in which he presented oral argument in support of his claim. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the United States Court of Appeals for Veterans Claims (Court) held that 38 C.F.R. § 3.103(c)(2) requires that the VLJ who chairs a hearing fulfill two duties to comply with the above the regulation. These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. Here, during the hearing, the VLJ did not note the bases of the prior determination or the elements that were lacking to substantiate the claim. The VLJ asked specific questions, however, directed at identifying whether the Veteran had symptoms meeting the schedular criteria for a higher rating. The VLJ did not specifically seek to identify any pertinent evidence not currently associated with the claim. This was not necessary, however, because the Veteran volunteered his treatment history and his symptoms since service. Accordingly, the Veteran is not shown to be prejudiced on this basis. Finally, neither the Veteran nor his attorney have asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2), nor has he identified any prejudice in the conduct of the Board hearing. By contrast, the hearing focused on the elements necessary to substantiate the claim, and the Veteran, through his testimony, demonstrated that he had actual knowledge of the elements necessary to substantiate his claim. II. Increased Rating Disability ratings are determined by applying a schedule of ratings that is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R., Part 4 (2012). Each disability must be viewed in relation to its history and the limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. § 4.1 (2012). 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 (2012). 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 (2012). 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, consideration also 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). Hart v. Mansfield, 21 Vet. App. 505 (2007). The Veteran's service-connected left shoulder, status post arthroplasty, is currently rated at 10 percent under the provisions of 38 C.F.R. § 4.71a, Diagnostic Code 5203. Normal ranges of motion of the shoulder are flexion (forward elevation) from 0 degrees to 180 degrees, abduction from 0 degrees to 180 degrees, external rotation from 0 degrees to 90 degrees, and internal rotation from 0 degrees to 90 degrees. 38 C.F.R. § 4.71, Plate I (2012). Diagnostic Code 5200 provides that ankylosis of the scapulohumeral articulation is to be rated as follows: favorable ankylosis, with abduction to 60 degrees, can reach mouth and head, 30 percent for the major shoulder and 20 percent for the minor shoulder; intermediate ankylosis, between favorable and unfavorable, 40 percent for the major shoulder and 30 percent for the minor shoulder; unfavorable ankylosis, abduction limited to 25 degrees from side, 50 percent for the major shoulder and 40 percent for the minor shoulder. A Note provides that the scapula and humerus move as one piece. 38 C.F.R. § 4.71a. Diagnostic Code 5201 provides that limitation of motion of the arm at the shoulder level is rated 20 percent for the major shoulder and 20 percent for the minor shoulder; limitation of motion of the arm midway between the side and shoulder level is rated as 30 percent for the major shoulder and 20 percent for the minor shoulder; limitation of motion of the arm to 25 degrees from the side is rated as 40 percent for the major shoulder and 30 percent for the minor shoulder. 38 C.F.R. § 4.71a. Diagnostic Code 5202 provides ratings for other impairment of the humerus. Malunion of the humerus with moderate deformity is rated as 20 percent for the major shoulder and 20 percent for the minor shoulder; malunion of the humerus with marked deformity is rated as 30 percent for the major shoulder and 20 percent for the minor shoulder. Recurrent dislocations of the humerus at the scapulohumeral joint, with infrequent episodes, and guarding of movement only at the shoulder level, are rated as 20 percent for the major shoulder and 20 percent for the minor shoulder; recurrent dislocations of the humerus at the scapulohumeral joint, with frequent episodes and guarding of all arm movements, are rated as 30 percent for the major shoulder and 20 percent for the minor shoulder. Fibrous union of the humerus is rated as 50 percent for the major shoulder and 40 percent for the minor shoulder. Nonunion of humerus (false flail joint) is rated as 60 percent for the major shoulder and 50 percent for the minor shoulder. Loss of head of the humerus (flail shoulder) is rated as 80 percent for the major shoulder and 70 percent for the minor shoulder. 38 C.F.R. § 4.71a. Diagnostic Code 5203 provides ratings for other impairment of the clavicle or scapula. Malunion of the clavicle or scapula is rated as 10 percent for the major shoulder and 10 percent for the minor shoulder. Nonunion of the clavicle or scapula without loose movement is rated as 10 percent for the major shoulder and 10 percent for the minor shoulder; nonunion of the clavicle or scapula with loose movement is rated as 20 percent for the major shoulder and 20 percent for the minor shoulder. Dislocation of the clavicle or scapula with loose movement is rated as 20 percent for the major shoulder and 20 percent for the minor shoulder. Diagnostic Code 5203 provides an alternative rating based on impairment of function of the contiguous joint. 38 C.F.R. § 4.71a. When evaluating joint disabilities rated on the basis of limitation of motion, VA must consider granting a higher rating in cases in which functional loss due to pain, weakness, excess fatigability, or incoordination is demonstrated, and those factors are not contemplated in the relevant rating criteria. See 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202 (1995). Recently, the Court clarified that although pain may be a cause or manifestation of functional loss, limitation of motion due to pain is not necessarily rated at the same level as functional loss where motion is impeded. See Mitchell v. Shinseki, 25 Vet. App. 32 (2011); cf. Powell v. West, 13 Vet. App. 31, 34 (1999); Hicks v. Brown, 8 Vet. App. 417, 421 (1995); Schafrath v. Derwinski, 1 Vet. App. 589, 592 (1991). Instead, the Mitchell Court explained that pursuant to 38 C.F.R. §§ 4.40 and 4.45, the possible manifestations of functional loss include decreased or abnormal excursion, strength, speed, coordination, or endurance, as well as less or more movement than is normal, weakened movement, excess fatigability, and pain on movement (as well as swelling, deformity, and atrophy) that affects stability, standing, and weight-bearing. See 38 C.F.R. §§ 4.40, 4.45. Thus, functional loss caused by pain must be rated at the same level as if the functional loss were caused by any of the other factors cited above. In evaluating the severity of a joint disability, VA must determine the overall functional impairment due to these factors. The provisions of 38 C.F.R. § 4.59, which relate to painful motion, are not limited to arthritis and must be considered when raised by the claimant or when reasonably raised by the record. Burton v. Shinseki, 25 Vet. App. 1 (2011). The Veteran had an examination arranged through VA QTC Services in July 2009 at which he reported weakness, stiffness, swelling, giving way, lack of endurance, tenderness, pain and muscle cramps, and tingling in the fingers. He did not experience heat, redness, locking, fatigability, deformity, drainage, effusion, subluxation, and dislocation. The Veteran rated the severity as 9 out of 10, and flare-ups were precipitated by physical activity and occurred spontaneously. During flare-ups the Veteran could not move his left shoulder or lift his arm, and he reported being limited in overhead activities due to his left shoulder. The examiner noted that the Veteran is right hand dominant since that is the hand used to write and eat. On examination the left shoulder was tender and showed no signs of edema, instability, abnormal movement, effusion, weakness, redness, heat, deformity, guarding of movement, malalignment, drainage, or subluxation. Range of motion of the left shoulder was flexion to 180 degrees, abduction to 180 degrees, external rotation to 90 degrees, and internal rotation to 90 degrees. There was no loss of motion on repetitive movement. The examiner noted that the left shoulder joint function was not additionally limited by pain, fatigue, weakness, lack of endurance, or incoordination after repetitive use. Left shoulder x-rays showed distal clavicle resection with widening of the acromioclavicular (AC) joint. The examiner felt that the residuals of the status post arthroplasty of the left shoulder were pain and a scar. A private physician examined the Veteran and reviewed the record in February 2011. The left shoulder had tenderness to palpation in the anterior shoulder girdle. There was weakness against resistance in all major muscle groups, and range of motion was restricted in all planes, especially on flexion, abduction, and internal rotation. Crepitation was palpable throughout passive and active range of motion and there was atrophy in the anterior shoulder musculature. Supraspinatus press test and impingement sign were positive. Range of motion of the left shoulder was flexion to 125 degrees, extension to 25 degrees, abduction to 110 degrees, adduction to 20 degrees, internal rotation to 25 degrees, and external rotation to 80 degrees. The examiner noted that the symptoms occurred on a daily basis and caused significant impairment of daily activities. The Veteran underwent another VA examination in January 2012. He said that the left shoulder still bothered him and would lock up on an off and on basis during the night. Several steroid injections had not helped much because of tightness in the joint. Range of motion was flexion to 160 degrees with objective evidence of painful motion at 150 degrees and abduction to 150 degrees with objective evidence of painful motion at 140 degrees. On repetitive motion testing flexion was to 160 degrees and abduction was to 150 degrees. Internal rotation was to 70 degrees without pain and external rotation was to 85 degrees without pain. The examiner noted no additional limitation in range of motion of the shoulder and arm following repetitive use testing and no functional loss and/or functional impairment of the shoulder and arm. Furthermore, there was no localized tenderness or pain on palpation of the joints, soft tissue, or biceps, and no guarding of either shoulder. There was full muscle strength in the left shoulder and no ankylosis. Tests for rotator cuff conditions were negative. X-rays of the left shoulder showed resection of the lateral and of the left clavicle and were otherwise negative. The Veteran testified at the November 2012 hearing that he had problems lifting and carrying with the left arm. He could lift a gallon of milk but it hurt to do so. It was difficult for him to reach over head with the left arm and he could not repeatedly reach with either arm. Based on the foregoing, the Board does not find that the Veteran meets the criteria for a rating of 20 percent for the left shoulder, status post arthroplasty. Under Diagnostic Code 5203, there must be nonunion of the clavicle or scapula with loose movement for a 20 percent evaluation. The record does not show nonunion of the clavicle or scapula, including from the examination results and x-rays. Therefore, an increased evaluation of 20 percent is not available under Diagnostic Code 5203. An increased evaluation is not available under Diagnostic Codes 5200 and 5202 because there is not ankylosis of the left shoulder or impairment of the left humerus. See 38 C.F.R. § 4.71a. Finally, an increased evaluation of 20 percent is not available under Diagnostic Code 5201 because the motion of the left arm is not limited to shoulder level. At the July 2009 examination, range of motion of the left shoulder was flexion to 180 degrees, abduction to 180 degrees, external rotation to 90 degrees, and internal rotation to 90 degrees. This represents a full range of motion. See 38 C.F.R. § 4.71, Plate I. At the February 2011 private examination, range of motion of the left shoulder was flexion to 125 degrees, abduction to 110 degrees, internal rotation to 25 degrees, and external rotation to 80 degrees. Furthermore, at the January 2012 VA examination, range of motion was flexion to 160 degrees, abduction to 150 degrees, internal rotation to 70 degrees, and external rotation to 85 degrees. None of these ranges of motion indicate that limitation of motion of the left arm was limited to shoulder level. Therefore, the Veteran does not qualify for an evaluation in excess of 10 percent for left shoulder, status post arthroplasty. See 38 C.F.R. § 4.71a, Diagnostic Code 5201. The Veteran does not qualify for an evaluation in excess of 10 percent for his left shoulder based on 38 C.F.R. §§ 4.40, 4.45 and DeLuca. At the July 2009 examination, the examiner noted that the left shoulder joint function was not additionally limited by pain, fatigue, weakness, lack of endurance, or incoordination after repetitive use. The February 2011 examiner noted that the symptoms occurred on a daily basis and caused significant impairment of daily activities. However, the examination report did not note additional limitations on repetitive testing. The examination report does not indicate that the Veteran had limitation beyond his credible reports from the hearing of having difficulty reaching overhead. The January 2012 examiner found no additional limitation in range of motion of the shoulder and arm following repetitive use testing and no functional loss and/or functional impairment of the shoulder and arm. Therefore, the Veteran does not qualify for an evaluation in excess of 10 percent for his left shoulder, status post arthroplasty, based on functional loss due to pain, weakness, excess fatigability, or incoordination. See 38 C.F.R. §§ 4.40, 4.45 and DeLuca, supra. In exceptional cases an extraschedular rating may be provided. 38 C.F.R. § 3.321. The Court has set out a three-part test, based on the language of 38 C.F.R. § 3.321(b)(1), for determining whether a Veteran is entitled to an extraschedular rating: (1) the established schedular criteria must be inadequate to describe the severity and symptoms of the claimant's disability; (2) the case must present other indicia of an exceptional or unusual disability picture, such as marked interference with employment or frequent periods of hospitalization; and (3) the award of an extraschedular disability rating must be in the interest of justice. Thun v. Peake, 22 Vet. App. 111 (2008), aff'd, Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). The Board finds that the rating criteria contemplate the Veteran's left shoulder disability. While it is productive of pain and functional impairment, these manifestations are contemplated in the rating criteria. The rating criteria are therefore adequate to evaluate the Veteran's left shoulder, status post arthroplasty, and referral for consideration of extraschedular rating is not warranted. In light of the holding in Hart, supra, the Board has considered whether the Veteran is entitled to "staged" ratings for his service-connected left shoulder, status post arthroplasty, as the Court indicated can be done in this type of case. Based upon the record, it is concluded that at no time during the claims period has the disability on appeal been more disabling than as currently rated under the present decision of the Board. Finally, the Board need not determine whether a total disability rating based on individual unemployability (TDIU) is warranted. In Rice v. Shinseki, 22 Vet. App. 447 (2009), the Court held that a request for (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. In order to remand such a claim, however, there must be cogent evidence of unemployability in the record. See Rice, 22 Vet. App. at 447, citing Comer v. Peake, 552 F.3d 1362 (Fed. Cir. 2009). In the instant case, the holding of Rice is inapplicable since the Veteran's testimony from the November 2012 hearing shows that he was employed for a water maintenance department in a job that required heavy physical labor. While the record shows that there may be some interference with this job due to service-connected disabilities, there is no cogent evidence of unemployability, and further consideration of a TDIU is not warranted. The preponderance of the evidence is against the claim. There is no doubt to be resolved, and a compensable rating for left shoulder, status post arthroplasty, is not warranted. See 38 C.F.R. § 5107(b); Gilbert, 1 Vet. App. at 54-56. ORDER An evaluation in excess of 10 percent for left shoulder, status post arthroplasty, is denied. REMAND The Veteran is seeking evaluations in excess of 10 percent for bilateral upper extremity radial nerve involvement, as secondary to the cervical spine, status post anterior fusion. The record in this regard includes an electro-diagnostic study from May 2009 private treatment that was interpreted as revealing left chronic multilevel radiculopathy. Likewise, the report from a February 2011 private examination of the Veteran revealed right and left radial nerve involvement, middle radicular group. However, the physician who conducted a January 2012 VA examination of the Veteran concluded the Veteran had no signs or symptoms of radiculopathy, nor did he have a peripheral nerve condition. (The VA examiner noted only slight decreased sensation in the left hand and fingers.) Certainly to a lay person, these private findings and the VA examiner's findings appear to be inconsistent. This inconsistency should be explained or reconciled in some manner before a final decision is entered. Accordingly, the case is REMANDED for the following action: 1. The file should be returned to the VA physician who conducted the January 2012 examination of the Veteran, or to another qualified person. After reviewing the relevant history, the reviewer should reconcile/explain what appears to be an inconsistency between the January 2012 VA examination report that found no radiculopathy or peripheral nerve condition, and the 2009/2011 private examination reports that found left chronic multilevel radiculopathy/right and left radial nerve involvement, middle radicular group. The pertinent clinical findings and reasons that form the basis for the requested explanation should be clearly set forth in the report. If nerve involvement is present, the particular radicular group (upper, middle, lower) and/or nerve involvement (e.g. radial, median ulnar) as identified in the Schedule for Rating Disabilities, should be indicated. If it is necessary to re-examine the Veteran to provide the requested explanation, that should be arranged. 2. Readjudicate the Veteran's claim under the appropriate diagnostic code as the case may be. If the benefits sought on appeal are not granted in full, the RO should issue the Veteran and his attorney a supplemental statement of the case and provide him an opportunity to respond. 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 of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims 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). ______________________________________________ MICHAEL E. KILCOYNE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs