Citation Nr: 1315801	
Decision Date: 05/14/13    Archive Date: 05/15/13

DOCKET NO.  12-15 172	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Houston, Texas


THE ISSUE

Entitlement to an initial rating in excess of 10 percent for left shoulder dislocation with degenerative changes.


ATTORNEY FOR THE BOARD

J. Young, Associate Counsel



INTRODUCTION

The Veteran served on active duty from July 1984 to July 1988.

This matter comes before the Board of Veterans' Appeals (Board) on appeal of a February 2012 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas that granted service connection and assigned an initial 10 percent rating for the left shoulder disability.  


FINDINGS OF FACT

1.  The Veteran's left (minor) shoulder disability is manifested by painful motion, without evidence of ankylosis.

2.  The Veteran's left shoulder joint has flexion to 180 degrees, with pain at 180 degrees and abduction to 180 degrees, with pain at 180 degrees.


CONCLUSION OF LAW

The criteria for an initial rating in excess of 10 percent for service-connected left shoulder dislocation with degenerative changes have not been met.  38 U.S.C.A. §1155 (West 2002); 38 C.F.R. §§ 3.159, 3.321, 4.1, 4.2, 4.7, 4.20, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5010, 5200, 5201, 5202, 5203 (2012).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

I.  Notice and Assistance

Upon receipt of a complete or substantially complete application for benefits and prior to an initial unfavorable decision on a claim by an agency of original jurisdiction, VA is required to notify the appellant of the information and evidence not of record that is necessary to substantiate the claim.  See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159 (2012); Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006).  The notice should also address the rating criteria or effective date provisions that are pertinent to the appellant's claim.  Dingess v. Nicholson, 19 Vet. App. 473 (2006).  See also Vazquez-Flores v. Shinseki, 24 Vet. App. 94 (2010).  

This appeal arises from the Veteran's disagreement with an initial evaluation following the grant of service connection.  Once service connection is granted the claim is substantiated, additional notice is not required, and any defect in the notice is not prejudicial.  Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007).  No additional discussion of the duty to notify is therefore required.

VA also has a duty to assist the Veteran in the development of a claim, which is not abrogated by the granting of service connection.  The claims file contains service treatment records (STRs), VA medical records, and the statements of the Veteran in support of his claims.  The Board has considered the statements and perused the medical records for references to additional treatment reports not of record, but has found nothing to suggest that there is any outstanding evidence with respect to the Veteran's claims for which VA has a duty to obtain.

The Veteran was afforded a VA examination in September 2011.  When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate.  Barr v. Nicholson, 21 Vet. App. 303, 312 (2007).  The Board finds that the examination was adequate, as the examination included a clinical examination and interview with the Veteran with regard to his symptoms.  The report of the examination contains findings necessary to evaluate the Veteran's service-connected disability under the applicable diagnostic code rating criteria.  Nieves-Rodriguez v. Peake, 22 Vet App 295 (2008).  Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion with respect to the issue on appeal has been met.  38 C.F.R. § 3.159(c) (4).  

Based on the foregoing, the Board finds that all relevant facts have been properly and sufficiently developed in this appeal and no further development is required to comply with the duty to assist the Veteran in developing the facts pertinent to the claims.  Essentially, all available evidence that could substantiate the claims has been obtained.

II.  Legal Criteria

Disability evaluations are based upon the average impairment of earning capacity as determined by a schedule for rating disabilities.  38 U.S.C.A. § 1155; 38 C.F.R. Part 4.  Separate rating codes identify various disabilities. 38 C.F.R. Part 4.  In determining the current level of impairment, the disability must be considered in the context of the whole recorded history, including service medical records.  See generally 38 C.F.R. §§ 4.1, 4.2.  Where there is a question as to which of two ratings 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.  After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the appellant.  38 C.F.R. § 4.3.

Where the rating appealed is the initial rating assigned with a grant of service connection, the entire appeal period is for consideration, and separate ratings may be assigned for separate periods of time based on facts found, a practice known as "staged ratings." See Fenderson v. West, 12 Vet. App. 119 (1999).  

In the rating action on appeal, the RO granted service connection for left shoulder dislocation with degenerative changes and assigned the initial 10 percent rating under Diagnostic Codes 5201-5010, which concern limitation of motion of the arm and traumatic arthritis, respectively.  Hyphenated diagnostic codes are used when a rating under one diagnostic code requires the use of an additional diagnostic code to identify the basis for the rating assigned; the additional code is shown after the hyphen.  38 C.F.R. § 4.27.  The hyphenated diagnostic code in this case indicates that limitation of motion of the arm is the service-connected disorder, and that traumatic arthritis, is a residual condition. 

Disabilities of the shoulder and arm are rated under Diagnostic Codes 5200 through 5203.  Normal ranges of upper extremity motion are defined by VA regulation as follows: forward elevation (flexion) from zero to 180 degrees; abduction from zero to 180 degrees; and internal and external rotation to 90 degrees.  Lifting the arm to shoulder level is lifting it to 90 degrees. See 38 C.F.R. § 4.71a, Plate I.

Diagnostic Code 5200 provides ratings for ankylosis of the scapulohumeral articulation.  A 20 percent rating for this shoulder requires favorable ankylosis in which abduction is limited to 60 degrees and the claimant can reach month and head.  Intermediate ankylosis between favorable and unfavorable merits a 30 percent rating for the minor shoulder.  A 40 percent rating for this shoulder requires unfavorable ankylosis in which abduction is limited to 25 degrees from the side.  38 C.F.R. § 4.71a, Diagnostic Code 5200.  

Under Diagnostic Code 5201, a 20 percent evaluation is assigned for limitation of the minor arm motion at shoulder level.  When there is limitation of motion of the minor arm midway between the side and shoulder level, a 20 percent rating is warranted.  The highest available rating under this code section, a 30 percent rating, is warranted when there is limitation of motion to 25 degrees from the side of the minor arm.  

Under Diagnostic Code 5202, for the minor extremity, malunion of the humerus with moderate deformity, or recurrent dislocation of the humerus at the scapulohumeral joint with infrequent episodes and guarding of movement only at the shoulder level, warrants a 20 percent evaluation.  Malunion of the humerus with marked deformity, or recurrent dislocation of the humerus at the scapulohumeral joint with frequent episodes and guarding of all arm movements, warrants a 20 percent rating.  Higher ratings of 40, 50, and 70 percent are warranted for fibrous union, nonunion (false flail joint), and loss of the head (flail shoulder) of the humerus, respectively.  

Under Diagnostic Code 5203, a 10 percent rating is assigned for the minor arm when there is malunion or nonunion without loose movement.  Clavicle or scapular impairment, with dislocation; is assigned a 20 percent rating when either the major or minor arm is involved.  Nonunion of the clavicle or scapula with loose movement is also assigned a 20 percent rating.  

Diagnostic Code 5010 applies to traumatic arthritis and provides that such is evaluated under the criteria for 38 C.F.R. § 4.71a, Diagnostic Code 5003.  Diagnostic Code 5003 provides that degenerative arthritis is to be rated on the basis of limitation of motion of the affected joint under the appropriate diagnostic code 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 code, a rating of 10 percent is for application for each such major joint group or minor joint group affected by limitation of motion.  In the absence of limitation of motion, a 20 percent evaluation is provided where there is X-ray evidence of involvement of two or more major joints, or two of more minor joint groups with occasional incapacitating exacerbations.  A 10 percent evaluation is provided where there is X-ray evidence of involvement of two or more major joints, or two of more minor joint groups without exacerbations. 

Under 38 C.F.R. § 4.40, functional loss may be due to pain, supported by adequate pathology and evidenced by visible behavior on motion.  Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled.  Under 38 C.F.R. § 4.45, factors of joint disability include increased or limited motion, weakness, fatigability, or painful movement, swelling, deformity or disuse atrophy. 

Where functional loss is alleged due to pain upon motion, the provisions of 38 C.F.R. §§ 4.40 and 4.45 must be considered.  DeLuca v. Brown, 8 Vet. App. 202, 207-08 (1995).  Within this context, a finding of functional loss due to pain must be supported by adequate pathology, and evidenced by the visible behavior of the claimant.  Johnston v. Brown, 10 Vet. App. 80, 85 (1997).

III.  Factual Background

The Veteran is seeking an increased rating for his left shoulder disability due to the limitations it places on his daily life, including the limited ability to play sports and lift weights.  See Veteran's VA Form 9.  

In a February 2011 statement, the Veteran indicated that he has worked in the education field for over 18 years and has not reported any difficulties with maintaining employment.  See Veteran's Statement in Support of Claim February 2011.

There is no indication that the Veteran received post-service treatment from a private physician for his left shoulder disability.  In a February 2011 response to the RO for information regarding treatment, the Veteran noted "N[ot]/A[pplicable]."  

During a September 2011VA examination, the Veteran reported the following symptoms: weakness, stiffness, swelling, giving way, tenderness, pain, and dislocation.  The Veteran also reported that he experiences "flare-ups," precipitated by physical activity, as often as once per month, with each lasting three days; the flare-ups occur "spontaneously."  When pain develops in his left shoulder, he has to take breaks from work until the pain subsides.  The Veteran denied experiencing the following symptoms: heat, redness, lack of endurance, locking, fatigability, deformity, drainage, effusion and subluxation.  

On physical examination, the VA examiner noted that the Veteran, who is right hand dominant, did not show any signs of ankylosis, edema, instability, abnormal movement, effusion, weakness, tenderness, redness, heat, deformity, malalignment, drainage, subluxation, or guarded movement in the left shoulder.  The VA examiner tested the range of motion (ROM) of the Veteran's left shoulder with the following results: flexion to 180 degrees, with pain at 180 degrees; abduction to180 degrees, with pain at 180 degrees; external rotation to 70 degrees, with pain at 70 degrees; and internal rotation to 70 degrees, with pain at 70 degrees.  Repetitive ROM is possible; and no additional degree of limitation.  The examiner commented that "on the left, the joint function is not additionally limited by pain, fatigue, weakness, lack of endurance or incoordination after repetitive use."  An x-ray of the Veteran's shoulder revealed findings of moderate degenerative joint space at the glenohumeral joint and a 2 cm round calcific or ossific density near the medial aspect of the left humeral neck.  The study was "otherwise unremarkable."  

IV.  Analysis

Having carefully considered the Veteran's contentions in light of the evidence of record and the applicable law, the Board finds that an increased rating is not warranted.  The Board has considered the Veteran's statements and finds that he is both competent and credible in his assertions.  Even taking his statements into consideration, however, the Board finds that the preponderance of the evidence demonstrates that the Veteran's symptoms do not more closely approximate the criteria for the next higher rating.

Diagnostic Code 5200 is inapplicable because there is no evidence of ankylosis.  The Board acknowledges the Veteran's reported recurrent and subsequent dislocation of his left shoulder; however, he does not exhibit any guarding of movement of his left shoulder and there is no evidence of malunion of the humerus to warrant assignment of an increased rating under Diagnostic Code 5202.  Consideration of Diagnostic Code 5203 is applicable because there is no evidence of impairment of the clavicle or scapula.  

At the September 2011 VA examination, flexion and abduction were each to 180 degrees, with pain at 180 degrees.  Even after repetitive testing and consideration of the additional impairment due to pain, the Veteran retains flexion to 180 degrees and abduction to 180 degrees, with pain at 180 degrees.  This does not more nearly resemble limitation of the range of motion to shoulder level, and therefore Diagnostic Code 5201, the rating code for limitation of motion of the arm, does not provide a basis for a higher evaluation than the current 10 percent.  38 C.F.R. §§ 4.7, 4.40, 4.45, 4.59, 4.71a.  See also Deluca, 8 Vet. App. at 207-08.  

The Board concludes that the preponderance of the evidence is against entitlement to an initial rating higher than the current 10 percent rating for degenerative arthritis.  

The discussion above reflects that the symptoms of the Veteran's left shoulder disability are contemplated by the applicable rating criteria.  The competent medical evidence of record shows that the left shoulder disability is primarily manifested by limitation of motion due to pain.  Many of the applicable diagnostic codes used to rate the Veteran's disability provide for ratings based on limitation of motion and instability, and the effects of pain and functional impairment have been taken into account and are considered in applying the relevant criteria in the rating schedule.  See 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca, 8 Vet. App. 202.  The effects of the Veteran's disabilities have been fully considered and are contemplated in the rating schedule.  Consideration of whether the Veteran's disability picture exhibits other related factors such as those provided by the regulations as "governing norms" is not required and referral for an extraschedular rating is unnecessary.  Thun v. Peake, 22 Vet. App. 111 (2008). 

A total rating for compensation based on individual unemployability (TDIU) is an element of all appeals of an initial rating.  Rice v. Shinseki, 22 Vet. App. 447 (2009).  Entitlement to TDIU is raised where a Veteran : (1) submits evidence of a medical disability; (2) makes a claim for the highest rating possible; and (3) submits evidence of unemployability.  Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001).  However, TDIU is not raised in an increased rating claim unless the Roberson requirements are met.  Jackson v. Shinseki, 587 F.3d 1106 (Fed. Cir. 2009).  Although the VA examiner stated that the Veteran's occupation is effected by his impairment as it requires him to rest and take breaks until the pain subsides, the Veteran he continues to be employed.  Hence further consideration of TDIU is not warranted. 



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ORDER

Entitlement to an initial rating in excess of 10 percent for the left shoulder dislocation with degenerative changes is denied. 




____________________________________________
M. E. LARKIN
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs