Citation Nr: 1315007 Decision Date: 05/07/13 Archive Date: 05/15/13 DOCKET NO. 08-26 706 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to an increased evaluation in excess of 10 percent for right shoulder degenerative arthritis with tenosynovitis (previously rated as residuals of a right shoulder injury, subluxation of the humerus at the glenoidal joint, Putti-Platt surgery). REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Jason A. Lyons, Counsel INTRODUCTION The Veteran served on active duty from November 1965 to October 1969. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. The Veteran testified during an April 2010 Travel Board hearing before a Veterans Law Judge (VLJ) of the Board. Relevant to this proceeding, 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) (2012) requires that the VLJ who chairs a hearing fulfill two duties to comply with the above 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, at the outset of the hearing the VLJ explained the issue. In addition, the VLJ sought to identify any pertinent evidence not currently associated with the claims folder that might have been overlooked or was outstanding that might substantiate the claim. The VLJ also left the record open for 60 days to allow the Veteran to submit additional evidence. Moreover, neither the Veteran nor his representative has asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2), or otherwise identified any prejudice in the conduct of the hearing. By contrast, the hearing focused on the elements necessary to substantiate the claim. As such, the Board finds that, consistent with Bryant, the VLJ complied with the duties set forth in 38 C.F.R. § 3.103(c)(2) and that the Board can adjudicate the claim based on the current record. Thereafter, the VLJ who conducted this hearing retired from the Board. Consequently, in March 2013 the Board sent correspondence to the Veteran offering him the opportunity for a new hearing, before the VLJ who would ultimately decide this case. The Veteran declined the option of a new hearing, and requested adjudication of his appeal on the merits. This case was then remanded in September 2010, primarily for a VA Compensation and Pension examination to assess the severity of a right shoulder disorder. The appeal has since been returned to the Board. The issue of entitlement to entitlement to an increased evaluation in excess of 20 percent for right shoulder degenerative arthritis with tenosynovitis is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDING OF FACT Since September 7, 2007, the Veteran's right shoulder disorder has been manifested approximately by limitation of motion to shoulder level, when factoring in the effect of functional loss due to pain on use. CONCLUSION OF LAW Resolving reasonable doubt in the Veteran's favor, the criteria are met to establish a 20 percent evaluation for right shoulder degenerative arthritis with tenosynovitis, from September 7, 2007. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107(b) (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.321(b)(1), 4.1, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71; 4.71a, Diagnostic Code 5201 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION The Veterans Claims Assistance Act, codified at 38 U.S.C.A. §§ 5100, 5102, 5103A, 5107, 5126 (West 2002 & Supp. 2012), prescribes several requirements as to VA's duty to notify and assist a claimant with the evidentiary development of a pending claim for compensation or other benefits. Implementing regulations were created, codified at 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326 (2012). VCAA notice consistent with 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) must inform the claimant of any information and evidence (1) that is necessary to substantiate the claim; (2) that the claimant is expected to provide; and (3) that VA will seek to provide on the claimant's behalf. See also Pelegrini v. Principi, 18 Vet. App. 112, 120-121 (2004) ("Pelegrini II"). A regulatory amendment effective for claims pending as of or filed after May 30, 2008 removed the requirement that VA specifically request the claimant to provide any evidence in his or her possession that pertains to the claim. 73 Fed. Reg. 23,353-56 (Apr. 30, 2008), later codified at 38 CFR 3.159(b)(1) (2012). As the Board herein grants entitlement to a rating of 20 percent for the Veteran's right shoulder disorder and remanded the issue of entitlement to a rating in excess of 20 percent, any defect in VA's duty to notify and assist is nonprejudicial. Disability evaluations are determined by the application of a schedule of ratings which is based, as far as can practically be determined, on the average impairment of earning capacity. 38 U.S.C.A. § 1155 (West 2002 & Supp. 2012); 38 C.F.R. § 4.1 (2012). Each service-connected disability is rated on the basis of specific criteria identified by Diagnostic Codes. 38 C.F.R. § 4.27. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability more closely approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. The degrees of disability specified are considered adequate to compensate for a loss of working time proportionate to the severity of the disability. 38 C.F.R. § 4.1. In order to evaluate the level of disability and any changes in severity, it is necessary to consider the complete medical history of the Veteran's disability. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). Where an increase in the level of a service-connected disability is at issue, the primary concern is the present level of disability. Francisco v. Brown, 7 Vet. App. 55 (1994). Nevertheless, 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). When evaluating a musculoskeletal disability based upon a range of motion, consideration is given to the degree of any additional limitation upon motion due to functional loss. DeLuca v. Brown, 8 Vet. App. 202, 204-07 (1995). This includes the analysis of additional functional impairment above and beyond the limitation of motion objectively demonstrated involving such factors as painful motion, weakness, incoordination, and fatigability, etc., particularly during times when these symptoms "flare up," such as during prolonged use, and assuming these factors are not already contemplated in the governing rating criteria. Id. See also 38 C.F.R. §§ 4.40, 4.45 and 4.59. In this regard, manifestation of pain alone does not equate with functional loss under 38 C.F.R. §§ 4.40 and 4.45 but may cause functional loss if affecting some aspect of the normal working movements of the body such as excursion, strength, speed, coordination, and endurance. Mitchell v. Shinseki, 25 Vet. App. 32 (2011). The Veteran's service-connected right shoulder disorder has been evaluated at the 10 percent level under the provisions of 38 C.F.R. § 4.71a, Diagnostic Code 5010 pertaining to traumatic arthritis. Diagnostic Code 5010 is in turn rated at Diagnostic Code 5003 on the basis of degenerative arthritis, which provides for a 10 percent evaluation for evidence of degenerative arthritis associated with noncompensable limitation of motion. Considering other applicable rating criteria, 38 C.F.R. § 4.71a, Diagnostic Code 5201 provides that limitation of motion of the arm at shoulder level warrants a 20 percent rating. Limitation of motion of the arm from midway between the side and shoulder level warrants a 30 percent rating for a major extremity, and 20 percent rating for a minor extremity. Limitation of motion to 25 degrees from the side warrants a 40 percent rating for a major extremity, and 30 percent rating for a minor extremity. Both measurements of forward flexion and abduction are relevant to determine range of motion in the affected shoulder, for purpose of applying Diagnostic Code 5201. See Mariano v. Principi, 17 Vet. App. 305, 314-16 (2003) (noting that the criteria under Diagnostic Code 5201 does not explicitly refer to any specific type of range of motion measurement, such as abduction, and remanding for VA to decide whether limitation of motion for purposes of establishing a certain rating requires limitation in all planes or limitation in any one plane). Normal range of motion for the shoulder is defined as from 0 degrees of extension to 180 degrees of forward flexion; abduction from 0 to 180 degrees, and external and internal rotation from 0 to 90 degrees. See 38 C.F.R. § 4.71a, Plate I. The remaining applicable rating criteria includes Diagnostic Code 5202, for other impairment of the humerus, under which a 20 percent rating is warranted for impairment of the minor extremity caused by malunion resulting in moderate or marked deformity, or for recurrent dislocation of the scapulohumeral joint with up to frequent episodes and guarding of all arm movements. The next higher 40 percent rating is warranted for fibrous union of the humerus. A 50 percent rating applies to nonunion of the humerus (false flail joint). A 70 percent rating applies to loss of head of the humerus (flail shoulder). Diagnostic Code 5203 further provides that a malunion of the clavicle or scapula warrants a 10 percent rating. A nonunion of the clavicle or scapula, without loose movement, warrants a 10 percent rating, or with loose movement, warrants a 20 percent rating. A dislocation of the clavicle or scapula warrants a 20 percent rating. The criteria does not change based upon whether the major or minor clavicle or scapula is affected. The evidence reflects a July 2007 private medical evaluation at an orthopedic clinic indicating the Veteran's ongoing right shoulder pain, worsened when he raised his arm up or moved the arm in certain directions. There was no new trauma to the shoulder. The pain did not radiate out from the shoulder joint area alone. On physical examination, there was no visible atrophy. Range of motion in forward flexion was good, but there was pain experienced in the last 30 degrees of this plane of motion. Abduction was painful after 90 degrees, and the next 30 degrees past that. Against resistance he had good rotator cuff strength in forward flexion and abduction. There was some crepitus from external to internal rotation felt in the right shoulder. The impression was probable capsule tightness secondary to previous surgery; possible degenerative glenohumeral arthritis changes secondary to this; and impingement with degenerative osteophytes. The Veteran underwent VA Compensation and Pension examination in October 2007, during which he reported in the last 12 months constant pain and little relief with daily over-the-counter medications. The right hand was the dominant upper extremity. Objectively, there was no indication of recurrent shoulder dislocations. There was no inflammatory arthritis. There was point tenderness over the acromio-clavicular joint, with a well-healed surgical scar in the post right shoulder, and guarding of movement. Range of motion consisted of right shoulder flexion to 160 degrees, abduction to 155 degrees, internal rotation to 90 degrees, and external rotation to 50 degrees [the examination report initially indicates external rotation to "05" degrees, but this appears to be a misprint]. There was objective evidence of pain following repetitive motion. There was no additional limitation after three repetitions of range of motion. An x-ray of the right shoulder showed that the osseous structures were located, articular surfaces preserved and trabecular pattern revealed a well-seated and intact orthopedic screw placed through the region of the greater tuberosity. It was further noted that at that time the Veteran was employed fulltime as a customer service representative. Time lost from work during the previous 12-month period was less than one week, and attributed to right shoulder pain flare-ups. The diagnosis given was right shoulder degenerative arthritis, and tenosynovitis. Records of VA outpatient treatment show a January 2008 pain clinic initial assessment report in which the Veteran reported a constant 3-4 out of 10 level of pain in his right shoulder, but reported over the last three years it had become worse. He described the constant nature of the pain as a dull and aching sensation, with exacerbation due to sudden movement of his shoulder and arm with sharp shooting pain. Sudden movements and sleeping on his right side aggravated the pain. It was observed that the Veteran had pain with extension, flexion, and abduction at the right shoulder joint. The assessment was right shoulder tendonopathy; labrum tear; and osteoarthritic changes. A February 2008 clinical record also reflects an ongoing history of right shoulder pain. There was measured a full active and passive range of motion in all planes of motion. There was 5/5 muscle strength in all upper extremity muscles tested. The Veteran continued to undergo a relevant course of treatment. Thereafter, on an August 2008 consult, he was able to raise the shoulder but had pain when he tried to go overhead. The MRI findings showed some tendinitis and tendonopathy of the infraspinatus and supraspinatus tendons. It was explained that what was giving him the pain was that the muscles were inflamed and did not get enough space to move in the shoulder. It was felt that with exercises he could build those muscles again and then definitely have less pain in the shoulder and better tone in the muscles. A September 2008 record from the same orthopedic clinic as previously denoted that on recent examination, the physician was now able to appreciate definite instability to the shoulder, and could feel the humeral head sublux anteriorly and then pop back into place. There was a mildly positive sulcus sign but a definite apprehension sign and some pain with the impingement. It was believed that the Veteran had chronic instability which had probably gone on for years. There was also chondromalacia seen on the MRI which was consistent with long-standing instability. The September 2008 clinical record from another private medical facility denotes continued right upper extremity joint pain. An x-ray study of this shoulder revealed no acute processes, fractures, or dislocations. There was a single screw in the humeral head between the greater and lesser tuberosity, retained hardware, postoperative changes. Osseus and soft tissue structures were within normal limits. There was age appropriate amount of acromioclavicular joint arthritis and no acromial spur. Examination revealed active forward flexion to 110 degrees, passive flexion to 120 degrees, and controlled arm descent without scapulothoracic substitution. There was also external rotation 30 degrees. The impression was right dislocation arthroprathy. A November 2008 VA physical therapy record denotes right shoulder range of motion of flexion to 110 actively, and to 130 passively. Then on a February 2009 VA consult, the Veteran reported chronic right shoulder pain, weakness and decreased motion. A physical therapy assessment was done, which included notation of active range of motion in the right shoulder of flexion to 130 degrees, and abduction to 110 degrees, with internal rotation 60 degrees, and external rotation 70 degrees. On further evaluation in May 2009 by an occupational therapist, there was present forward flexion to 115 degrees, and abduction to 102 degrees. On a January 2010 VA orthopedic consult, it was felt that the Veteran's symptoms were due to subacromial impingement due to hypertrophic bursal tissue versus a partial tearing of the rotator cuff/tendinopathy. On examining the right shoulder, the Veteran had full range of motion. There was crepitation over the subacromial space. Upon VA re-examination of October 2010, the Veteran continued with chronic shoulder pain, with limitation lifting and picking up objects with overhead activities. He had received multiple shoulder injections with only mild relief of symptoms. He had been advised to undergo surgery, but the Veteran did not want this option. There was reported giving way, instability, pain, stiffness, and decreased speed of joint motion. There were no episodes of dislocation or subluxation, locking episodes, or effusions. There were daily flare-ups of degenerative joint disease. There was pain with an audible click, with triggers of reaching above the shoulder or heavy lifting, and the alleviating factor of rest. There were no incapacitating episodes of arthritis, or assistive devices utilized. On physical evaluation, there was point tenderness over the acromioclavicular joint, and guarding of movement. Range of motion consisted of flexion to 130 degrees, abduction to 130 degrees, internal rotation 60 degrees, and external rotation 60 degrees. There was objective evidence of pain following repetitive motion. There was no additional limitation after three repetitions of range of motion. There was no joint ankylosis. The Veteran was not then employed, having been laid off less than one year ago. The diagnosis was right shoulder degenerative arthritis; rotator cuff tendinopathy. There was no significant effect deemed to have manifested upon his usual occupation. Having reviewed the foregoing, the Board ascertains an objective basis of record upon which to assign an increased evaluation of 20 percent for the Veteran's service-connected right shoulder disorder, from the September 7, 2007 date of claim. In so doing, the Board has been mindful to consider the evidence in its entirety since the date of claim. See 38 C.F.R. § 4.2 ("It is the responsibility of the rating specialist to interpret reports of examination in the 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 present."). See also Ardison v. Brown, 6 Vet. App. 405, 407 (1994). Moreover, the Board is fully cognizant of its duty to resolve any reasonable doubt on a material issue in the claimant's favor, pursuant to VA's benefit-of-the-doubt doctrine. See 38 C.F.R. § 4.3. Applying all relevant adjudicatory principles, the Board concludes that the criteria are effectively met for assignment of a 20 percent evaluation under 38 C.F.R. § 4.71a, Diagnostic Code 5201 for a right shoulder disorder, due to limitation of motion of the arm at shoulder level. Whereas the Veteran's ostensible level of retained joint mobility in the right arm fluctuated significantly over the time period of the rating history, the entire evidentiary picture supports this award. There are a sufficient number of times out of the whole where the Veteran either had forward flexion (or abduction) limited to 90 degrees, or more often, somewhat above shoulder level but along with onset of pain at 90 degrees. In the latter situation, VA must evaluate the affected joint region based on the nature and extent of functional loss. See DeLuca, supra; 38 C.F.R. §§ 4.45, 4.59. Under such circumstances, the Veteran's range of motion for all practical purposes, when factoring functional loss due to pain, was approximately at shoulder level. In reaching this determination, it is readily acknowledged that the most recent VA examination of October 2010 showed both flexion and abduction to 130 degrees, well above shoulder level -- but that there was also pain on repetitive motion, and the VA examiner never specifically quantified at what point pain had its onset. Therefore, there is reason to believe that true range of motion when factoring in functional loss due to pain was likely closer to actual shoulder level. As the level of impairment observed above has been present generally since inception of the Veteran's filing his claim, the September 7, 2007 date of claim provides the effective date of the increased evaluation. Therefore, a 20 percent evaluation is assigned pursuant to the rating schedule, as of September 7, 2007. ORDER A 20 percent evaluation for right shoulder degenerative arthritis with tenosynovitis, effective September 7, 2007, is granted, subject to the law and regulations governing the payment of VA compensation benefits. REMAND Entitlement to an increased evaluation in excess of 20 percent for right shoulder degenerative arthritis with tenosynovitis Unfortunately, a remand is required in this case. In April 2013, the Veteran submitted a copy of a March 2013 VA treatment records. He did not waive RO consideration of this evidence. Remand is required for the issuance of a supplemental statement of the case. Also, in a statement received in January 2011, the Veteran stated that he was recently enrolled in Medicare and was given various Medicare physical exams. He indicated this his shoulder problem was highlighted. He also referenced an examination performed by Dr. Enzo Abad. On remand, these treatment records should be obtained. The Veteran's representative argued in February 2013 that the VA examination conducted in October 2010 was inadequate because the examiner did not identify the presence of any impairment clavicle or scapula that is determined to be secondary to the Veteran's service-connected shoulder disability, as instructed by the prior Board remand. On remand, the Veteran should be afforded a current VA examination of his right shoulder. Finally, as the case must be remanded for the foregoing reasons, updated VA treatment records should be obtained. Accordingly, the case is REMANDED for the following action: 1. Make arrangements to obtain the Veteran's VA treatment records, dated since November 2010. 2. Make arrangements to obtain the Veteran's treatment records from Dr. Enzo Abad. 3. The Veteran has stated that he recently enrolled in Medicare and was given various Medicare physical examinations. Make arrangements to obtain these records. 4. Thereafter, schedule the Veteran for a VA orthopedic examination to determine the current severity of his service-connected right shoulder disability. The claims folder must be made available to the examiner for review, and the examination report should reflect that such review was completed. All indicated tests should be performed and the findings reported in detail. The VA examiner should determine the nature of any right shoulder disability to include testing for right shoulder range of motion. The VA examiner should identify the presence of any functional loss due to flare-ups of pain, fatigability, incoordination, pain on movement, and/or weakness. The degree of any additional loss in range of motion due to pain should be noted. All pertinent symptomatology and findings must be reported in detail. The VA examiner should also identify the presence of any impairment of the humerus to include: malunion of the humerus with moderate deformity; malunion of the humerus with moderate deformity; recurrent dislocation of the humerus at the scapuloheumeral joint with infrequent episodes and guarding of movements at shoulder level; recurrent dislocation of the humerus at the scapuloheumeral joint with frequent episodes and guarding of all arm movements associated; fibrous union of the humerus; nonunion of the humerus; or loss of the head of the humerus. The VA examiner should identify the presence of any impairment clavicle or scapula that is determined to be secondary to the Veteran's service-connected shoulder disability, to include malunion of the clavicle or scapula; nonunion of the clavicle or scapula without loose movement; nonunion of the clavicle or scapula with loose movement; or dislocation of the clavicle or scapula. A complete rationale for all opinions must be provided. 4. Next, review the claims file and ensure that all of the foregoing development actions have been conducted and completed in full. If any development is incomplete, appropriate corrective action must be implemented. If the examination report does not include adequate responses to the specific opinions requested, it must be returned to the providing examiner for corrective action. 5. Finally, readjudicate the Veteran's claim of entitlement to an increased evaluation in excess of 20 percent for right shoulder degenerative arthritis with tenosynovitis. If the benefit sought on appeal is not granted, the Veteran and his representative should be furnished with a supplemental statement of the case and afforded a reasonable opportunity to respond before the record is returned to the Board for further review. The appellant has the right to submit additional evidence and argument on the matter or matters 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). ______________________________________________ P.M. DILORENZO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs