Citation Nr: 1315837 Decision Date: 05/14/13 Archive Date: 05/15/13 DOCKET NO. 07-07 034 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUES 1. Entitlement to an extraschedular rating for the service-connected rotator cuff tear, with degenerative joint disease, of the right shoulder. 2. Entitlement to a total disability rating based upon individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD J.R. Bryant, Counsel INTRODUCTION The Veteran served on active duty in the United States Army from August 1985 to August 1989. This matter comes before the Board of Veterans' Appeals (Board) on appeal from rating actions issued in November 2006 and December 2007 by the Department of Veterans Affairs (VA) Regional Office (RO) in Jackson, Mississippi. [Due to the location of the Veteran's residence, however, the jurisdiction of his appeal remains with the RO in Atlanta, Georgia.] In July 2009, the Veteran testified at a hearing conducted before the undersigned Veterans Law Judge (VLJ) at the RO. A copy of the transcript of that hearing is of record. The Veteran's appeal was previously before the Board in December 2009 at which time it issued a decision denying service connection for left thumb and left shoulder disorders. In addition, it remanded the issues of entitlement to service connection for psychiatric disorder, entitlement to an increased disability rating for the service-connected right shoulder disability, and entitlement to a TDIU. The case was again before the Board in September 2011. At that time, the Board restored a 30 percent evaluation for the Veteran's service-connected right shoulder disability from March 1, 2008 and then assigned a 40 percent disability rating, from May 12, 2011. [An October 2011 rating decision effectuated the Board's decision]. In addition, the issues of entitlement to an extraschedular disability rating for the service-connected right shoulder disability, entitlement to service connection for psychiatric disorder, and entitlement to a TDIU were remanded for additional development and readjudication. Upon completion of such development, and by a rating action dated July 2012, the Appeals Management Center (AMC) in Washington, D.C. granted service connection for major depression and awarded a 50 percent disability rating, effective from July 25, 2006 and a 70 percent disability rating, effective from November 5, 2011. A letter dated on November 5, 2012 informed the Veteran of that decision. At no time following receipt of notification of the July 2012 rating decision has the Veteran expressed disagreement with the ratings or effective dates assigned to this now service-connected disability. Accordingly, no issue pertaining to the Veteran's major depression is currently before the Board in appellate status. Further, upon denial of the claim for an extraschedular evaluation for the service-connected right shoulder disability and the claim for a TDIU, the Veteran's appeal was returned to the Board. Accordingly, the Board's current review is limited to the issues listed on the first page of this decision. Also, recent VA medical records, available through the Compensation and Pension Records Interchange (CAPRI), were uploaded to the Veteran's electronic Virtual VA folder in July 2012 and considered by the RO in the most recent Supplemental Statement of the Case. Because the current appeal includes records that are located only in the Virtual VA system, any future consideration of this Veteran's case should take into consideration the existence of this electronic record. The issue of entitlement to a TDIU is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the AMC. FINDING OF FACT An exceptional or unusual disability picture of the service-connected rotator cuff tear, with degenerative joint disease, of the right shoulder has not been shown, so as to render impractical the application of the regular schedular standards. CONCLUSION OF LAW The criteria for an extraschedular evaluation for the service-connected rotator cuff tear, with degenerative joint disease, of the right shoulder have not been met. 38 U.S.C.A. § 1155, 5103, 5103A, 5107 (West 2002); 38 C.F.R. § 3.321(b)(1), 4.71a, DC 5201 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Duty to Notify and Assist VA has a duty to notify and a duty to assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. §§ 3.159, 3.326(a). Proper notice from VA must inform the claimant and his representative, if any, prior to the initial unfavorable decision on a claim by the AOJ of any information and any medical or lay evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). These notice requirements apply to all five elements of a service-connection claim (veteran status, existence of a disability, a connection between the veteran's service and the disability, degree of disability, and effective date of the disability). Dingess v. Nicholson, 19 Vet. App. 473 (2006). Information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded must be included. Id. Neither the Veteran nor his representative has alleged prejudice with respect to notice, as is required. Shinseki v. Sanders, 129 S. Ct. 1696 (2009); Goodwin v. Peake, 22 Vet. App. 128 (2008). None is found by the Board. Indeed, VA's duty to notify has been more than satisfied. The Veteran was notified via letters dated in July 2006, June 2008, and September 2011 of VA's duty to assist him in substantiating his claim for an increased rating on an extraschedular basis and the effect of this duty upon his claim. These letters also informed him of how disability ratings and effective dates are assigned. Dingess, 19 Vet. App. at 484. The timing defect of the June 2008 and September 2011 correspondence was cured by the AMC's subsequent readjudication of the Veteran's claim and issuance of a supplemental statement of the case, most recently in January 2013. Thus, the Board concludes that all required notice has been given to the Veteran. Shinseki v. Sanders, 129 S. Ct. 1696 (2009). VA has also satisfied its duty to assist the Veteran in the development of his claim. In-service and post-service treatment reports are of record. The Veteran submitted personal statements, lay statements from others, and representative argument and provided testimony at the 2009 hearing. He has not indicated that any additional pertinent evidence exists, and there is no indication that any such evidence exists. The Board is also satisfied that the AMC has substantially complied with its September 2011 remand directives as they pertain to the matter decided herein. Stegall v. West, 11 Vet. App. 268, 271 (1998); D'Aries v. Peake, 22 Vet. App. 97, 105 (2008) (finding that only substantial compliance, rather than strict compliance, with the terms of a Board engagement letter requesting a medical opinion is required). As directed by the Board, the AMC provided the Veteran notice on what information and evidence was needed to establish entitlement to an extraschedular evaluation for his service-connected right shoulder disability, and any other necessary development, and then readjudicated the claim, to include determination of whether referral for consideration of an extraschedular rating was warranted. The Board finds that VA has satisfied its duty to assist the Veteran in apprising him of the evidence needed, and in obtaining evidence pertinent to his claim. No useful purpose would be served in remanding this matter for yet more development. A remand would result in unnecessarily imposing additional burdens on VA, with no additional benefit to the Veteran. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001). Law and Analysis In the present appeal, the Veteran essentially contends that his service-connected right shoulder disability is more disabling than the current disability ratings reflect. Specifically, he claims that he is unable to maintain full time employment as a barber and eventually had to stop, because of persistent right shoulder pain. See the Veteran's claim for increase (VA Form 21-4138) dated July 2006 and lay statement from former employer received May 2008. By way of history, the Veteran's appeal arises from a July 2006 claim for an increased disability rating for his rotator cuff tear of the right shoulder, rated as 30 percent disabling under Diagnostic Code (DC) 5201 (limitation of motion of the arm). In a December 2007 rating decision, the RO reduced the disability rating for the Veteran's service-connected right shoulder disability from 30 percent to 0 percent. The reduction was effective on March 1, 2008. Subsequently, by rating decision issued in January 2009, the RO granted a 10 percent disability rating effective March 1, 2008. In a September 2011 decision, the Board found that the reduction of the Veteran's disability rating for his service-connected right shoulder disability was not appropriate. Thus, the 30 percent disability rating was restored under DC 5201, effective March 1, 2008 and a 40 percent rating was assigned as of May 12, 2011. Disabilities of the shoulder and arm are rated under DCs 5200 through 5203. 38 C.F.R. § 4.71a. 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. § 4.71, Plate I. Under DC 5201 limitation of motion of the major or minor arm at shoulder level warrants a 20 percent disability rating. Limitation of motion of the major arm midway between the side and shoulder level also warrants a 30 percent rating. A maximum 40 percent disability rating is warranted when motion of the major arm is limited to 25 degrees from the side. See 38 C.F.R. § 4.71a. The rating criteria also provide ratings for ankylosis, impairment of the humerus, impairment of the scapula, and impairment of the clavicle. See 38 C.F.R. § 4.71a, DCs 5200, 5202, 5203. Ordinarily, the VA Rating Schedule will apply unless there are exceptional or unusual factors, which would render application of the schedule impractical. See Fisher v. Principi, 4 Vet. App. 57, 60 (1993). Pursuant to 38 C.F.R. § 3.321(b)(1), an extraschedular rating is in order when there exists such an exceptional or unusual disability picture as to render impractical the application of the regular schedular standards. See Barringer v. Peake, 22 Vet. App. 242, 243-44 (2008) (noting that the issue of an extraschedular rating is a component of a claim for an increased rating and referral for consideration must be addressed either when raised by the Veteran or reasonably raised by the record). An extra-schedular evaluation is for consideration where a service-connected disability presents an exceptional or unusual disability picture with marked interference with employment or frequent periods of hospitalization that render impractical the application of the regular schedular standards. Floyd v. Brown, 9 Vet. App. 88, 94 (1996). An exceptional or unusual disability picture occurs where the diagnostic criteria do not reasonably describe or contemplate the severity and symptomatology of the Veteran's service-connected disability. Thun v. Peake, 22 Vet. App. 111, 115 (2008). If there is an exceptional or unusual disability picture, then the Board must consider whether the disability picture exhibits other factors such as marked interference with employment and frequent periods of hospitalization. Id. at 115-116. When those two elements are met, the appeal must be referred for consideration of the assignment of an extraschedular rating. Otherwise, the schedular evaluation is adequate, and referral is not required. 38 C.F.R. § 3.321(b)(1); Thun, 22 Vet. App. at 116. In the current appeal, the record contains numerous medical records demonstrating regular complaints and treatment related to the Veteran's right shoulder, which have been summarized in the prior September 2011 Board decision. [So, there is no need to recite them in detail in this decision.] In pertinent part, it is noted that the Veteran has undergone multiple VA examinations during the pendency of his appeal in large part because he had been repeatedly uncooperative during the examination process, especially with range of motion and examination of the right arm. See August 2006 QTC examination report, January 2007 VA examination report, and June 2010 VA examination report. In general these examination reports show that the Veteran reported having chronic severe right shoulder pain, rated as a 9 or 10 out of 10 in terms of intensity. He complained of stiffness, redness and swelling. He reported having functional impairment in that he had difficulty with over head acts and carrying heavy loads. He reported that his brother had to help him with bathing and dressing him on occasion, and that he was unable to lift anything with the right arm. He also reported he has been unable to work regularly as a barber due to his right shoulder pain, maybe working two days a week. Objective clinical findings from these reports show there was tenderness over the right shoulder but no swelling, erythema, redness, or heat. The Veteran had decreased right grip strength, but it was noted that he had given poor effort. These reports also show that the Veteran refused and resisted active and passive range of motion testing due to pain. However, it was noted that the Veteran was witnessed demonstrating greater range of motion when donning/doffing his shirt, and submaximal effort during examination was suspected. The 2007 VA examiner indicated that it was unclear as to what degree of pain the Veteran was in as he did not display grimaces or other gestures consistent with severe pain. It was also noted that the Veteran was noncompliant with visits, therapy, and home exercises prescribed. Other VA treatment notes detail the Veteran's subjective complaints and appear to indicate he has had significantly limited range of motion, but again the range of motion measurements are questionable given the Veteran's lack of cooperation and outright resistance to thorough examination. See Orthopedic Surgery Notes dated in August 2006 and October 2006 and Occupational Therapy Consult Note dated in May 2008. Unfortunately, because the Veteran did not cooperate with the range of motion exercises and gave little or no effort in completing those he did, these reports and treatment records are inadequate for evaluating his right shoulder disability as the findings obtained were not a true picture of his disability. The Board notes that, while the Veteran had a history of being uncooperative during the course of this appeal, he was apparently cooperative during a May 2011 VA examination. He reported that he had not worked for the last five to six years and that his previous occupation was as a barber. It was noted that he could no longer work as a barber because he was right handed and that the job required considerable manipulation using the hands and considerable work of the arms above a right angle. He stated that he did not pick up anything with his right arm. On physical examination, the Veteran's right arm appeared to be flail in the sense that it simply hung there straight down, while the left arm was moved around in a normal fashion. There was tenderness all over the shoulder and upper extremity. Active range of motion was grossly limited and measured as follows: abduction of 0 to 45 degrees; forward elevation of 0 to 30 degrees; backward elevation of 0 to 20 degrees; internal rotation of 0 degrees; and external rotation of 0 to 5 degrees. The examiner noted that the Veteran had pain throughout all ranges of active motions, but no evidence of fatigue, weakness, lack of endurance, instability, incoordination or additional loss of joint function or motion with use due to pain. However, there was no wasting of musculature and power was 5/5. There was no inflammation, swelling, redness or heat noted. X-rays were noted to be virtually normal although showing very minimal degenerative changes and the humerus slightly higher suggesting an underling rotator cuff injury. The examiner concluded that the Veteran had a severe disability related to his right shoulder. Also of record is correspondence from a former employer who indicated that the Veteran had not been able to work and could not perform his work duties adequately, due to complaints of right shoulder pain. See lay statement received in May 2008. The same employer also completed a VA Form 21-4192 (Request For Employment Information In Connection With Claim for Disability Benefits) which shows that the Veteran was employed by Simply You-Nique Salon from July 2003 to October 2005. According to the employer, the Veteran worked about 20 hours a week as a shampoo assistant and that concessions were made to accommodate his right shoulder pain. This document in no way suggests that the Veteran was asked to leave because of any service-connected disability or because of excessive absence from work. In fact, the Veteran had lost no time during the 12 months preceding his last date of employment. In January 2013, the AMC arranged for a VA records review and medical opinion assessing the current state of the Veteran's right shoulder disability. The reviewing VA examiner referred to findings from a MRI which showed a low grade partial thickness tear supraspinatus tendon and superimposed on moderate tendinosis of his right shoulder and evidence of degenerative joint disease by bone scan in both shoulders. He also noted that, while orthopedic evaluations provided an assessment of right shoulder pain, probable rotator cuff pathology, due to the Veteran's noncompliance with therapy/motion etc. it would be expected that his shoulder would be quite stiff. Also, it was noted that, while examinations of the Veteran's right shoulder have resulted in current VA disability based on limited range of motion and pain, those examiners have consistently expressed concern over the large factor of psychological overlay and concerns about malingering, manifested by consistent perceived lack of cooperation and poor effort on examinations of the Veteran's right shoulder. The examiner opined that there was a significant inconsistency between the Veteran's symptoms and the documented degree of injury, in that his degree of disability was out of proportion to the right rotator cuff injury identified. The Board finds that there is no basis for referral for consideration of an extra-schedular rating. See 38 C.F.R. § 3.321(b)(1). In this case, the schedular evaluations for the Veteran's right shoulder disability are not inadequate. The Veteran has not identified any factors which may be considered to be exceptional or unusual so as to render impractical the application of the regular schedular standards, and the Board has been similarly unsuccessful. He does not argue, and the evidence does not suggest, that the right shoulder disability manifests in symptoms other than persistent pain and limited range or motion. No other factors (such as frequent hospitalizations, unusual clinical presentation, or any other factors, which take the right shoulder disability outside the usual rating criteria) have been identified, and none is evident in the record on appeal. Rather, it appears that the Veteran's arguments have focused squarely on whether his right shoulder disability causes marked interference with employment. While, the above evidence unquestionably shows that the Veteran's service-connected right shoulder disability has had an adverse impact on his employability, this alone is not sufficient to warrant the assignment of an extraschedular rating, which is premised on an exceptional or unusual disability picture. Loss of industrial capacity is the principal factor in assigning schedular disability ratings. See 38 C.F.R. §§ 3.321(a), 4.1. Indeed, 38 C.F.R. § 4.1 specifically states: "[g]enerally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability." Moyer v. Derwinski, 2 Vet. App. 289, 293 (1992) and Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993) [noting that the disability rating itself is recognition that industrial capabilities are impaired]. Thus, in order for an extraschedular rating to be assigned there must be something which takes the case out of the norm. While the Board is sympathetic to the difficulties the Veteran's service-connected right shoulder disability may cause him in maintaining employment and a certain level of activity, the evidence does not reflect that the average industrial impairment he suffers is in excess of that contemplated by the assigned evaluations, or that application of the schedular criteria is otherwise rendered impractical. The Board does not dispute the Veteran's contentions that his service-connected right shoulder disability has caused him to alter his lifestyle and restrict his activities. Even so, such complaints have been taken into consideration in the 30 and 40 percent evaluations assigned. In other words, the regular schedular standards contemplate the symptomatology (pain and limited motion) shown. Accordingly, the criteria for submission for assignment of an extraschedular rating pursuant to 38 C.F.R. § 3.321(b)(1) are not met. Bagwell v. Brown, 9 Vet. App. 337 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). Although the Veteran is entitled to the benefit of the doubt where the evidence is in approximate balance, the benefit of the doubt doctrine is inapplicable where, as here, the preponderance of the evidence is against the claim. 38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49, 56 (1990). ORDER An extraschedular rating for the service-connected rotator cuff tear, with degenerative joint disease, of the right shoulder is denied. REMAND Unfortunately, another remand is required in this case. Although the Board sincerely regrets the additional delay that will result from this remand, it is necessary to ensure that there is a complete record upon which to decide the claim so that the Veteran is afforded every possible consideration. See, e.g., Ascherl v. Brown, 4 Vet. App. 371, 377 (1993) (where the record before the Board is inadequate, a Remand is mandatory rather than permissive.). With regard to the claim for entitlement to a TDIU, review of the record indicates that there are some recent VA outpatient treatment records that are pertinent to the claim remaining on appeal which, although mentioned in the most recent VA examination report, are not associated with claims file or the Veteran's computerized electronic Virtual VA claims file, and thus they are not currently available for the Board's review. These records include a VA psychological test report from the Atlanta VA Medical Center dated on August 6, 2012 and a VA progress note dated on October 15, 2012, which were discussed in the report of a November 2012 VA medical examination. [In this regard, the Board notes that the most recent record of any outpatient treatment that the Veteran has undergone (and that is included in his claims folder or Virtual VA folder) is dated in June 2012]. The Board cannot adjudicate the claim based on an incomplete record. See Culver v. Derwinski, 3 Vet. App. 292 (1992) (VA has a duty to obtain all pertinent medical records which have been called to its attention by the appellant and by the evidence of record.) A remand is thus warranted so that these relevant medical records may be obtained for inclusion in the evidence. Jolley v. Derwinski, 1 Vet. App. 37, 40 (1990); Dunn v. West, 11 Vet. App. 462, 466-67 (1998); Bell v. Derwinski, 2 Vet. App. 611, 613 (1992) (indicating, at bare minimum, VA has constructive, if not actual, notice and possession of these additional records since they are VA generated and maintained, even if not physically in the file). Accordingly, the case is REMANDED for the following action: 1. Obtain and associate with the claims file copies of all clinical records that are not already in the claims file. The Board is particularly interested in records of such treatment that he may have received at the VAMC in Atlanta, Georgia since June 2012. These records should include, but are not limited to, the August 6, 2012 psychological test report and the October 15, 2012 VA progress note identified by the VA examiner in the November 2012 medical report. Document the attempts to obtain such records. If the AMC/RO is unable to obtain any pertinent evidence identified by the Veteran, so inform him and request that he obtain and submit it. If any records are unavailable, do not exist, or further attempts to obtain them would be futile, document this fact in the claims file. All such available documents should be associated with the Veteran's claims folder or Virtual VA folder, as appropriate. 2. Thereafter, readjudicate the TDIU claim remaining on appeal. If such action does not resolve the claim, a Supplemental Statement of the Case should be issued to the Veteran and his representative. An appropriate period of time should be allowed for response. The claim should then be returned to the Board for further appellate review, if in order. The Veteran has the right to submit additional evidence and argument on the matter that 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 remanded by the Board 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. 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ______________________________________________ THERESA M. CATINO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs