Citation Nr: 1315468 Decision Date: 05/10/13 Archive Date: 05/15/13 DOCKET NO. 10-48 549 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Lincoln, Nebraska THE ISSUES 1. Entitlement to a 20 percent disability rating for right shoulder strain prior to July 8, 2010. 2. Entitlement to a 20 percent disability rating for left shoulder strain prior to July 8, 2010. 3. Entitlement to a rating in excess of 20 percent for right shoulder strain from July 8, 2010. 4. Entitlement to a rating in excess of 20 percent for left shoulder strain from July 8, 2010. 5. Entitlement to a compensable disability rating for complete edentulous. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD E. I. Velez, Counsel INTRODUCTION The Veteran served on active duty from July 1998 to October 2009. This matter comes to the Board of Veterans' Appeals (Board) from rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Lincoln, Nebraska. The appellant was afforded a personal hearing in November 2011 before the undersigned Veterans Law Judge sitting at Lincoln, Nebraska. The transcript is of record. FINDINGS OF FACT 1. Prior to July 8, 2010, the Veteran's service connected right shoulder disability was not manifested by limitation of motion of the arm at the shoulder level; ankylosis of scapulohumeral articulation; impairment of the humerous; or impairment of the clavicle or scapula. 2. Prior to July 8, 2010, the Veteran's service connected right shoulder disability was not manifested by limitation of motion of the arm at the shoulder level; ankylosis of scapulohumeral articulation; impairment of the humerous; or impairment of the clavicle or scapula. 3. At the November 2011 hearing, the Veteran stated he was satisfied with the 20 percent disability rating currently assigned to the service connected left and right shoulder strain. 4. At the November 2011 hearing, the Veteran stated he wished to withdraw the appeal of the issue of the evaluation of completely edentulism. CONCLUSIONS OF LAW 1. The criteria for a 20 percent disability rating for right shoulder strain are not met prior to July 8, 2010. 38 U.S.C.A. § 5110 (West 2002 & Supp. 2012); 38 C.F.R. § 3.156, 3.400, 4.40, 4.45, 4.71a, Diagnostic Codes 5200, 5201, 5202, 5203 (2012). 2. The criteria for a 20 percent disability rating for left shoulder strain are not met prior to July 8, 2010. 38 U.S.C.A. § 5110 (West 2002 & Supp. 2012); 38 C.F.R. § 3.156, 3.400, 4.40, 4.45, 4.71a, Diagnostic Codes 5200, 5201, 5202, 5203 (2012). 3. The criteria for a withdrawal of the Veteran's substantive appeal as to the issue of a disability rating in excess of 20 percent for right shoulder strain have been met. 38 U.S.C.A. § 7105(b)(2), (d)(5) (West 2002); 38 C.F.R. § 20.204 (2012). 4. The criteria for a withdrawal of the Veteran's substantive appeal as to the issue of a disability rating in excess of 20 percent for left shoulder strain have been met. 38 U.S.C.A. § 7105(b)(2), (d)(5) (West 2002); 38 C.F.R. § 20.204 (2012). 5. The criteria for a withdrawal of the Veteran's substantive appeal as to the issue of entitlement to a compensable rating for complete edentulism have been met. 38 U.S.C.A. § 7105(b)(2), (d)(5) (West 2002); 38 C.F.R. § 20.204 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veterans Claims Assistance Act of 2000 (VCAA), codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2012), and the pertinent implementing regulation, codified at 38 C.F.R. § 3.159 (2012), provide that VA will assist a claimant in obtaining evidence necessary to substantiate a claim but is not required to provide assistance to a claimant if there is no reasonable possibility that such assistance would aid in substantiating the claim. They also require VA to notify the claimant and the claimant's representative, if any, of any information, and any medical or lay evidence, not previously provided to the Secretary that is necessary to substantiate the claim. As part of the notice, VA is to specifically inform the claimant and the claimant's representative, if any, of which portion, if any, of the evidence is to be provided by the claimant and which part, if any, VA will attempt to obtain on behalf of the claimant. Although the regulation previously required VA to request that the claimant provide any evidence in the claimant's possession that pertains to the claim, the regulation has been amended to eliminate that requirement for claims pending before VA on or after May 30, 2008. The notice requirements of 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a "service connection" claim, defined to include: (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. See Dingess v. Nicholson, 19 Vet. App. 473 (2006). The Board also notes that the United States Court of Appeals for Veterans Claims (Court) has held that the plain language of 38 U.S.C.A. § 5103(a) requires that notice to a claimant pursuant to the VCAA be provided "at the time" that, or "immediately after," VA receives a complete or substantially complete application for VA-administered benefits. Pelegrini v. Principi, 18 Vet. App. 112, 119 (2004). In the present case, the Veteran was provided VCAA compliance notice in a September 2009 letter. He was informed of the evidence necessary to support his claim for service connection and informed of the process in which VA assigns disability evaluations and effective dates. He was further informed of what VA would do to help him obtain evidence to support his claim and what information he could submit to support his claim. This notification came prior to the initial adjudication of the claim. Accordingly, the Board concludes that proper VCAA notice was given. With respect to the duty to assist, the RO obtained the Veteran's service and postservice treatment records. Moreover, the Veteran was afforded a VA examination in connection with claim. The available evidence of record is sufficient to evaluate the severity of the Veteran's shoulder disabilities during the period at issue. The Board also observes that the Veteran was also was afforded a hearing before the undersigned Veterans Law Judge (VLJ) during 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) (2011) requires that the VLJ/DRO 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, the VLJ fully explained the issue on appeal during the hearing. Significantly, neither the appellant nor his representative has 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 for a higher evaluation. 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) Accordingly, the Board will proceed to a decision. Entitlement to Higher Evaluation for Bilateral Shoulder Disabilities prior to July 8, 2010 This appeal arises from an appeal of the disability rating assigned at the time service connection was granted. By way of history, the Veteran was granted service connection for right and left shoulder strain and was assigned a 10 percent disability rating effective the date after release from active duty, October 29, 2009. He appealed the disability rating assigned and was subsequently granted a 20 percent disability rating effective July 8, 2010, the date of the VA examination in which an increase in the disability was noted. The Veteran appealed the disability evaluations assigned. Thus, the Board will consider the claim as entitlement to a higher evaluation for the period prior to July 8, 2010. In this regard, the Board observes that the United States Court of Appeals for Veterans Claims (Court) has held that in determining the present level of a disability for any increased evaluation claim, the Board must consider the application of staged ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007). In other words, where the evidence contains factual findings that demonstrate distinct time periods in which the service-connected disability exhibited diverse symptoms meeting the criteria for different ratings during the course of the appeal, the assignment of staged ratings would be necessary. The Board will therefore review the evidence to determine whether it is factually ascertainable that an increased disability rating was warranted at any point between October 29, 2009 and July 8, 2010. The Board notes that 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. The Board is required to consider a veteran's pain, swelling, weakness, and excess fatigability when determining the appropriate evaluation for a disability using the limitation of motion diagnostic codes. See 38 C.F.R. §§ 4.40, 4.45 and 4.59; Johnson v. Brown, 9 Vet. App. 7, 10 (1996); DeLuca v. Brown, 8 Vet. App. 202 (1995). Normal ranges of motion of the shoulder are flexion (forward elevation) from zero degrees to 180 degrees, abduction from zero degrees to 180 degrees, external rotation from zero degrees to 90 degrees, and internal rotation from zero degrees to 90 degrees. 38 C.F.R. § 4.71, Plate I. The Veteran was afforded a VA examination in October 2009 prior to his release from active duty service. At the time, range of motion of the shoulder was as follows: forward flexion to 180 degrees with tenderness at 165 degrees; abduction to 180 degrees with tenderness at 155 degrees; external rotation to 90 degrees with tenderness at 80 degrees; and, internal rotation to 90 degrees with tenderness at 85 degrees. There was no additional limitation of motion with repetitive use. VA outpatient treatment records of March 2010 restate the ranges of motion of the arms as per the findings of the October 2009 VA examination. The records do not indicate that a new physical examination of the Veteran was conducted that day. Additional treatment records dated between February 2007 and August 2008 show treatment for bilateral shoulder pain and note decreased range of motion. However, the records do not offer an actual measurement of the range of motion in degrees. Reviewing the evidence above, the Board finds that the evidence does not disclose objective findings of limitation of motion of the right and left arms to shoulder level at any point prior to July 8, 2010 as contemplated by a 20 percent disability evaluation. Indeed, his shoulder ranges of motion prior to July 8, 2010, with consideration of DeLuca factors was at worst, bilateral arm flexion to 165; abduction to 155 degrees; internal rotation (over the head) to 80 degrees; and external rotation (over the head) to 85 degrees. Accordingly, the objective evidence does not support an assignment of an earlier effective date, earlier than July 8, 2010 for the assignment of a 20 percent disability rating of left and right shoulder strain. The Board has considered whether any other potentially applicable rating criteria would have allowed for a higher disability rating prior to July 8, 2010 and finds that no other rating criteria provides for a disability rating of 20 percent. Indeed, Diagnostic Codes 5200 and 5203 are not applicable in this case. There is no competent evidence of ankylosis of the Veteran's shoulders. Further, Diagnostic Code 5203 clearly contemplates evaluation based upon limitation of motion, therefore, it would constitute pyramiding for the Board to separately consider this code. 38 C.F.R. § 4.14. Moreover, Diagnostic Code 5202 is inapplicable as the evidence does not show infrequent episodes of dislocations or malunion of the humerus. In adjudicating a claim, the Board must assess the competence and credibility of the Veteran. See Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). The Board also has a duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997). The Board acknowledges that the Veteran is competent to give evidence about what he experienced. See Layno v. Brown, 6 Vet. App. 465 (1994). Competency of evidence, however, must be distinguished from weight and credibility, which are factual determinations going to the probative value of the evidence. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); see also Cartwright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). See also Buchanan (The Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence. If the Board concludes that the lay evidence presented by a veteran is credible and ultimately competent, the lack of contemporaneous medical evidence should not be an absolute bar to the veteran's ability to prove his claim of entitlement to disability benefits based on that competent lay evidence.) The Board acknowledges the Veteran's contentions that he has had severe shoulder pain symptoms since service; that he has had limited motion of the arms to about 45 degrees on the side since service, and that the disability has remained essentially the same since service and through the present. Specifically, the Board has considered the Veteran's testimony at the November 2011 hearing. Moreover, the Board has considered the physical therapy and chiropractic treatment records dated between February 2007 and August 2008 which the Veteran argued at the hearing show he is entitled to a 20 percent disability rating since service. However, while the Veteran is competent to report symptoms of pain and limited motion, the objective findings of record do not support limitation of motion which warrants a 20 percent disability rating prior to July 8, 2010. Significantly, the objective findings at the October 2009 VA examination does not show limitation of motion restricted to shoulder level. In the present case, there is not a lack of contemporaneous evidence, but rather objective evidence contrary to the Veteran's current assertions. The Board further acknowledges the Veteran's testimony hat he can only lift his arms to shoulder height and that that has been the same since service. Also, his testimony that some days are better than others and he can do more on certain days than others, and that he can push through the pain. However, the Board notes that the ranges of motion noted in October 2009 include the point at which the Veteran stated he felt tenderness or pain. The examination does not report tenderness at shoulder height. Furthermore, when reporting his symptoms at the time of the examination, the Veteran did not state any restrictions of motion to shoulder height or any drastic variations of ranges of motion with flare ups or from day to day. Indeed, at the October 2009 VA examination, he reported that during flare-ups he experienced an increase in pain and discomfort, but he did not describe any specific functional limitations to his shoulders. The Board places more weight on the objective findings and the Veteran's statements at the time of the October 2009 VA examination than his current testimony at the November 2011 hearing. And therefore finds that his current statements are insufficient to find that he was entitled to a 20 percent disability rating prior to July 8, 2010. Moreover, the Veteran has argued that the chiropractic records note the term "somatic" which he explained refers to a limitation, in his case, of motion. However, as noted previously, none of the records provide the degrees of motion for the Veteran's shoulders. Similarly, they do not provide a reference point for the limitation of motion, i.e., they do not note if the Veteran' could or could not lift his arm past shoulder height. Accordingly, the records are not sufficient to show entitlement to a 20 percent disability rating prior to July 8, 2010. Considering the above, the Board finds that the preponderance of the evidence is against the claim and there is no doubt to be resolved. 38 U.S.C.A. § 5107(b), Gilbert v. Derwinski, 1 Vet.App. 49, 54-56 (1990). Entitlement to Higher Evaluations for Bilateral Shoulder Disabilities from July 8, 2010 and Entitlement to a Compensable Evaluation for the Veteran's Complete Edentulism 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 by his or her authorized representative. 38 C.F.R. § 20.204. In the present case, at the November 2011 hearing, the Veteran stated he was satisfied with the 20 percent disability rating assigned to the right and left shoulder strain; he also stated he wanted to withdraw the appeal of the issue of entitlement to a compensable disability rating for being completely edentulous. Hence, there remain no allegations of errors of fact or law for appellate consideration. The Board accordingly finds that the Veteran's statements at the hearing qualify as a valid withdrawal of his perfected appeal as to these issues. See 38 C.F.R. § 20.204 (2012). The matters are dismissed. ORDER Entitlement to a disability evaluation in excess of 10 percent prior to July 8, 2010, for right shoulder strain is denied. Entitlement to a disability evaluation in excess of 10 percent prior to July 8, 2010, for left shoulder strain is denied. The appeal of entitlement to a disability rating in excess of 20 percent for left shoulder strain is dismissed. The appeal of entitlement to a disability rating in excess of 20 percent for right shoulder strain is dismissed. The appeal of entitlement to a compensable disability rating for completely edentulous is dismissed. ____________________________________________ DAVID L. WIGHT Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs