Citation Nr: 1316034 Decision Date: 05/15/13 Archive Date: 05/29/13 DOCKET NO. 09-17 634 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to a disability evaluation in excess of 20 percent for residuals of rotator cuff syndrome of the left shoulder for the period prior to October 11, 2011, and in excess of 30 percent thereafter, exclusive of a temporary total disability evaluation from June 25, 2010 through July 31, 2010. 2. Entitlement to a disability evaluation in excess of 10 percent for residuals of a neuroma transposition of the right leg for the period prior to July 16, 2009 and in excess of 20 percent thereafter. REPRESENTATION Appellant represented by: Texas Veterans Commission WITNESS AT HEARING ON APPEAL The Veteran (Appellant) ATTORNEY FOR THE BOARD Hallie E. Brokowsky, Counsel INTRODUCTION The Veteran had active service from March 1982 to June 1992. This matter comes before the Board of Veterans' Appeals (Board) on appeal from September 2008 and September 2009 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. The September 2008 rating decision denied a disability evaluation in excess of 20 percent for a left shoulder disability and a disability evaluation in excess of 10 percent for a right leg disability. The September 2009 rating decision increased the Veteran's disability evaluation for his right leg from 10 percent to 20 percent, effective July 16, 2009. The Veteran testified at a Travel Board hearing in support of his claims in July 2010 before the undersigned Acting Veterans Law Judge. A copy of the transcript has been associated with the claims file. After the hearing, he submitted additional medical evidence and waived his right to have it initially considered by the RO. 38 C.F.R. §§ 20.800, 20.1304(c) (2012). This case was previously before the Board in September 2011, wherein it was remanded for additional VA examinations and to obtain Social Security Administration records. The case was returned to the Board for appellate consideration. The Board finds that there has been substantial compliance with the directives of the remand, as the Veteran was afforded VA examinations and the requested Social Security Administration records were obtained. As such, an additional remand to comply with such directives is not required. See Stegall v. West, 11 Vet. App. 268 (1998). In a September 2012 rating decision, the RO granted a temporary total disability rating for surgical treatment necessitating convalescence for the period from June 25, 2010 through July 31, 2010, and 30 percent thereafter. The Veteran has not indicated that he is satisfied with the ratings assigned. See AB v. Brown, 6 Vet. App. 35 (1993). The Board notes that, in the September 2011 decision, the Veteran's claim was characterized as a claim for an earlier effective date for the assignment of the 20 percent rating for the residuals of a neuroma transposition of the right leg. However, the Board has recharacterized the issue as listed above, as the Veteran's claim for an earlier effective date for the grant of an increased disability rating is inherently a claim for an increased rating for the earlier portion of the rating period on appeal. The Board has not only reviewed the Veteran's physical claims file, but also the Veteran's file on Virtual VA, to ensure a total review of the available evidence. FINDINGS OF FACT 1. Throughout the rating period prior to October 11, 2011, the Veteran's left shoulder disability is productive of limitation of motion at shoulder level but not ankylosis of the scapulohumeral articulation, impairment of the clavicle or scapula, or impairment of the humerus. 2. Throughout the rating period since October 11, 2011, the Veteran's left shoulder disability is productive of limitation of motion to 25 degrees flexion, but not ankylosis of the scapulohumeral articulation, impairment of the clavicle or scapula, or impairment of the humerus. 3. Throughout the rating period on appeal, the Veteran's residuals of a neuroma transposition of the right leg is productive of moderate incomplete paralysis of the sciatic nerve. CONCLUSIONS OF LAW 1. The criteria for a disability rating greater than 20 percent for residuals of rotator cuff syndrome of the left shoulder have not been met for any period prior to October 11, 2011. 38 U.S.C.A. §§ 1155, 5103A, 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1-4.14, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5200-5203 (2012). 2. The criteria for a disability rating greater than 30 percent for residuals of rotator cuff syndrome of the left shoulder have not been met for any period since October 11, 2011. 38 U.S.C.A. §§ 1155, 5103A, 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1-4.14, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5200-5203 (2012). 3. The criteria for a 20 percent rating for residuals of a neuroma transposition of the right leg have been met for the time period prior to July 16, 2009. 38 U.S.C.A. §§ 1155, 5103A, 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1-4.14, 4.20, 4.124a, Diagnostic Code 8520 (2012). 4. The criteria for a rating higher than 20 percent for residuals of a neuroma transposition of the right leg have not been met or more nearly approximated for any period. 38 U.S.C.A. §§ 1155, 5103A, 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1-4.14, 4.20, 4.124a, Diagnostic Code 8520 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). The United States Court of Appeals for Veterans Claims (CAVC) issued a decision in the appeal of Dingess v. Nicholson, 19 Vet. App. 473 (2006), which held that the notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim, including the degree of disability and the effective date of an award. Those five elements include: (1) veteran status; (2) existence of a disability; (3) a connection between a veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. In this case, the agency of original jurisdiction (AOJ) issued notice letters, dated in January 2008 and November 2008, to the Veteran. These letters explained the evidence necessary to substantiate the Veteran's claims for an increased rating, as well as the legal criteria for entitlement to such benefits. The letters also informed him of his and VA's respective duties for obtaining evidence. The AOJ decision that is the basis of this appeal was decided after the issuance of an initial, appropriate VCAA notice. As such, there was no defect with respect to timing of the VCAA notice. See Pelegrini v. Principi, 18 Vet. App. 112 (2004). In a claim for increase, the VCAA notice requirements are the type of evidence needed to substantiate the claim, namely, evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on employment. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009) (interpreting 38 U.S.C.A. § 5103(a) as requiring generic claim-specific notice and rejecting veteran-specific notice as to effect on daily life and as to the assigned or a cross-referenced Diagnostic Code under which the disability is rated). This appeal grew out of the claim for increased ratings for the Veteran's residuals of a meniscectomy of the right knee; therefore, no further notice is needed under VCAA regarding the rating issue. VA also has a duty to assist a veteran with the development of facts pertinent to the appeal. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c). This duty includes the obtaining of "relevant" records in the custody of a Federal department or agency under 38 C.F.R. § 3.159(c)(2), as well as records not in Federal custody (e.g., private medical records) under 38 C.F.R. § 3.159(c)(1). VA will also provide a medical examination if such examination is determined to be "necessary" to decide the claim. 38 C.F.R. § 3.159(c)(4). In this case, the claims file contains the Veteran's service treatment records and reports of VA and private post-service treatment, as well as the Veteran's own statements in support of his claims. The Veteran was examined by VA in connection with his claims for increased ratings for his right and left knee disabilities in 2008, 2009, and 2011. The Board has reviewed the examination reports, and finds that they are adequate for the purpose of deciding the issues on appeal. The examination reports contain all the findings needed to rate the Veteran's disabilities, including his history and clinical evaluation. The Board has reviewed the Veteran's statements and medical evidence of record and concludes that there is no outstanding evidence with respect to the Veteran's claims. The Veteran's appeal for higher evaluations is distinguished from the facts in Proscelle v. Derwinski, 2 Vet. App. 629, 633 (1992), where no VA examination was provided during the rating claim, and a veteran specifically stated that his disability "has increased in severity [such] that I rate a higher disability," constituting at least both some assertion by the veteran and some evidence of worsening of disability since the last VA examination. Proscelle, 2 Vet. App. at 632. In the Veteran's case currently on appeal to the Board, there is no evidence of worsening of the Veteran's disability since the 2011 VA examination, including no assertion by the Veteran of worsening since the last VA examination. The Veteran here does not assert that his disabilities have worsened since the October 2011 VA examination; he merely asserts entitlement to higher disability evaluations. The Veteran has not submitted evidence of worsening, and the evidence of record, including the medical evidence reflecting on the severity of the disability on appeal, does not suggest that the disability on appeal has worsened since the last VA examination and VA treatment records in 2012. As there is no evidence of worsening since the last VA examination, a remand for a new VA examination is not warranted, and is not required by the VCAA. See Palczewski v. Nicholson, 21 Vet. App. 174, 182 (2007) (mere passage of time does not require VA to provide a new medical examination); VAOPGCPREC 11-95 (interpreting that a new examination is appropriate when there is an assertion of an increase in severity since the last examination). The Veteran has been afforded an adequate examination on the issues decided herein. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). For these reasons, the Board finds that the VCAA duties to notify and assist have been met. Rating Disabilities Disability ratings are determined by evaluating the extent to which a veteran's service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, including employment, by comparing his or her symptomatology with the criteria set forth in the Schedule for Rating Disabilities. See 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. If two ratings are potentially applicable, the higher rating will be assigned if the disability more nearly approximates the criteria required for that rating; otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability will be resolved in favor of the veteran. See 38 C.F.R. § 4.3. When an unlisted condition is encountered it will be permissible to rate under a closely related disease or injury in which not only the functions affected, but the anatomical localization and symptomatology are closely analogous. 38 C.F.R. § 4.20 (2012). A disability rating may require re-evaluation in accordance with changes in a veteran's condition. Thus, it is essential that the disability be considered in the context of the entire recorded history when determining the level of current impairment. See 38 C.F.R. § 4.1. See also Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Nevertheless, where the veteran is appealing the rating for an already established service-connected condition, his present level of disability is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). The Board notes that staged ratings are appropriate for an increased-rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). The United States Court of Appeals for Veterans Claims (Court) has emphasized that when assigning a disability rating it is necessary to consider functional loss due to flare-ups, fatigability, incoordination, and pain on movements. See DeLuca v. Brown, 8 Vet. App. 202, 206-7 (1995). The rating for an orthopedic disability should reflect functional limitation due to pain which is supported by adequate pathology and evidenced by the visible behavior of the veteran undertaking the motion. Weakness is also as important as limitation of motion, and a part which becomes painful on use must be regarded as seriously disabled. A little used part of the musculoskeletal system may be expected to show evidence of disuse, either through atrophy, the condition of the skin, absence of normal callosity, or the like. See 38 C.F.R. § 4.40. The factors of disability reside in reductions of their normal excursion of movements in different planes. Instability of station, disturbance of locomotion, and interference with sitting, standing, and weight bearing are related considerations. See 38 C.F.R. § 4.45. It is the intention of the rating schedule to recognize actually painful, unstable, or maligned joints, due to healed injury, as entitled to at least the minimal compensable rating for the joint. 38 C.F.R. § 4.59 . Residuals of a Rotator Cuff Repair, Left Shoulder The Veteran's left shoulder disability is evaluated as 20 percent disabling prior to October 11, 2011 and 30 percent disabling thereafter, pursuant to the provisions of 38 C.F.R. § 4.71a, Diagnostic Codes 5200-5203. A temporary total evaluation was assigned for the period from June 25, 2010 to July 31, 2010. See 38 C.F.R. § 4.30. Under Diagnostic Code 5203, a 20 percent disability evaluation is for assignment where there is dislocation of the clavicle or scapula, or where there is nonunion of the clavicle or scapula, with loose movement. A disability evaluation in excess of 20 percent is not available under Diagnostic Code 5203, and, as such, the Board will consider whether the veteran may be entitled to a higher rating under other potentially applicable Diagnostic Codes, including 5200, 5201, and 5202. Diagnostic Code 5200 assigns a minimum 30 percent disability rating for favorable ankylosis of the scapulohumeral articulation, with abduction to 60 degrees. See 38 C.F.R. § 4.71a, Diagnostic Code 5200. Under Diagnostic Code 5201, a 20 percent evaluation is provided for limitation of motion of the arm at shoulder level. The next-higher 30 percent evaluation may be assigned for limitation of motion of the major arm midway between the side and shoulder level, and a 40 percent evaluation may be assigned for motion of the major arm limited to 25 degrees from the side. See 38 C.F.R. § 4.71a, Diagnostic Code 5201. Under Diagnostic Code 5202, a 20 percent disability rating is assigned for malunion of the humerus with moderate deformity or for recurrent dislocation of the scapulohumeral joint with infrequent episodes and guarding of movement only at the shoulder level. A 30 percent disability evaluation is assigned for malunion of the major humerus with marked deformity or recurrent dislocation of the major scapulohumeral joint with frequent episodes and guarding of all arm movements. See 38 C.F.R. § 4.71a, Diagnostic Code 5202. The Veteran contends that he is entitled to higher disability ratings for his left shoulder disability. He complains of pain and limitation of function of the left shoulder. The Veteran is right hand dominant. After a review of all the evidence, lay and medical, the Board finds that for the rating period prior to October 11, 2011, the Veteran's service-connected residuals of rotator cuff syndrome more nearly approximates the criteria for a 20 percent disability evaluation. The evidence shows that, throughout the rating period on appeal, the Veteran does not have impairment of the humerus with fibrous union, limitation of motion of the arm to 25 degrees from side, or ankylosis of the scapulohumeral articulation. According to the February 2008 and July 2009 VA examination reports, the Veteran does not have instability, deformity, ankylosis, subluxation, or locking of the left shoulder. At the February 2008 VA examination, he had range of motion to at least 158 degrees flexion, 90 degrees abduction, external rotation to 30 degrees, and internal rotation to 90 degrees, without evidence of weakness, fatigue, or incoordination; there was no evidence of atrophy or muscle wasting, but he had minimal enlargement of the acromioclavicular joint with tenderness. At the July 2009 VA examination, he had range of motion to 80 degrees flexion, abduction to 80 degrees, external rotation to 30 degrees, and internal rotation to 20 degrees, with full motor strength; there was no additional weakness, fatigability, or incoordination on repetitive use testing. After a review of all the evidence, lay and medical, the Board finds that for the rating period since October 11, 2011, the Veteran's service-connected residuals of left rotator cuff syndrome more nearly approximates the criteria for a 30 percent disability evaluation. The evidence shows that, throughout the rating period on appeal, the Veteran does not have impairment of the humerus with fibrous union or ankylosis of the scapulohumeral articulation. See Dinsay v. Brown, 9 Vet. App. 79, 81 (1996) and Lewis v. Derwinski, 3 Vet. App. 259 (1992) (indicating that ankylosis is complete immobility of the joint in a fixed position, either favorable or unfavorable). According to the October 11, 2011 VA examination report and VA treatment records since October 11, 2011, the Veteran has range of motion to 25 degrees flexion and 35 degrees abduction; he also had pain to palpation and swelling. However, he had full muscle strength, and there was no evidence of ankylosis or recurrent dislocation of the left shoulder. Furthermore, the available VA treatment records for the periods on appeal do not show any treatment for the left shoulder, other than complaints of pain. The Board acknowledges that, at the VA examinations, the Veteran had complaints of pain, stiffness, and weakness. The Veteran had left arm forward flexion to 158 degrees, active abduction to 90 degrees, and rotation to 90 degrees internal and 30 degrees external on VA examination in February 2008. On VA examination in October 2011, left arm forward flexion was to 25 degrees and abduction was to 35 degrees. The Board has also considered whether he has additional functional loss - beyond that objectively shown - due to his pain, or because of weakness, premature or excess fatigability, incoordination, etc. See DeLuca v. Brown, 8 Vet. App. 202 (1995), citing 38 C.F.R. §§ 4.40, 4.45, and 4.59. However, the fact that the Veteran experienced pain, even if experienced throughout the range of motion on examination, does not by itself warrant a higher rating under the diagnostic codes providing ratings for limitation of motion. See Mitchell v. Shinseki, 25 Vet. App. 32 (2011). Rather, it is the functional limitation, i.e., the additional limitation of motion, caused by pain or the other DeLuca factors that must be considered in determining whether a higher rating is warranted, and there is no objective indication that the Veteran's symptoms result in any additional functional limitation to a degree that would support a rating in excess of the current disability ratings for his left shoulder. The February 2008 and October 2011 VA examiners noted that joint function on the left was not additionally limited, after repetitive use, by fatigue, weakness, lack of endurance, or incoordination, despite mild pain. The current disability evaluations of 20 percent prior to October 11, 2011 and 30 percent thereafter contemplate the Veteran's complaints, as well as any limitation of motion due to pain. For these reasons, the Board finds that increased evaluations for residuals of rotator cuff syndrome of the left shoulder are not warranted for any period. Residuals of a Neuroma Transposition The Veteran's residuals of a neuroma transposition of the right leg is rated as 10 percent disabling prior to July 16, 2009 and 20 percent disabling thereafter according to the provisions of 38 C.F.R. § 4.124a, Diagnostic Code 8520, for paralysis of the sciatic nerve. Under Diagnostic Code 8520, a 10 percent disability evaluation is warranted for mild incomplete paralysis of the sciatic nerve. A 20 percent evaluation is assigned for moderate incomplete paralysis; a 30 percent disability rating requires moderately severe incomplete paralysis; and a 50 percent rating requires severe incomplete paralysis with marked muscular atrophy. An 80 percent disability rating requires complete paralysis; the foot dangles and drops, no active movement is possible of muscles below the knee, and flexion of the knee is weakened or lost. See 38 C.F.R. § 4.124a, Diagnostic Code 8520. After a review of all the evidence, lay and medical, the Board finds that the Veteran's disability picture is most consistent with a 20 percent disability rating, but no higher, for the entire rating period on appeal for his residuals of a neuroma transposition. The evidence of record does not demonstrate that the Veteran experiences moderately severe incomplete paralysis of the sciatic nerve. At the February 2008 VA examination, the Veteran complained of decreased sensation and dysthesias of the right anterolateral calf area, with pain upon prolonged standing or walking. Upon examination, there was no evidence of muscle atrophy or decreased strength. There was decreased sensation to light touch. An October 2008 evaluation in conjunction with the Veteran's claim for Social Security Administration disability benefits showed that the Veteran had right leg weakness. At the July 2009 VA examination, the Veteran complained of an intermittent burning numbness over the anterior tibialis muscle; examination showed a numbness sensation, but no pain to palpation. Motor testing and muscle strength were normal, reflexes were normal, and Tinel's sign was positive. Thus, applying the facts to the criteria set forth above, the Board finds that the Veteran is entitled to a 20 percent disability evaluation, but no higher, for the entire period on appeal. 38 C.F.R. §§ 4.3, 4.7. Extraschedular Considerations The Board has considered whether referral for an extraschedular evaluation is warranted for his service-connected disabilities on appeal. In exceptional cases an extraschedular rating may be provided. 38 C.F.R. § 3.321 (2012). The threshold factor for extraschedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Therefore, initially, there must be a comparison between the level of severity and symptomatology for each of the claimant's service-connected disabilities with the established criteria found in the rating schedule for that disability. Thun v. Peake, 22 Vet. App. 111 (2008). Under the approach prescribed by VA, if the criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule, the assigned schedular evaluation is, therefore, adequate, and no referral is required. In the second step of the inquiry, however, if the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, the RO or Board must determine whether the claimant's exceptional disability picture exhibits other related factors such as those provided by the regulation as "governing norms." See 38 C.F.R. 3.321(b)(1) (related factors include "marked interference with employment" and "frequent periods of hospitalization"). When the rating schedule is inadequate to evaluate a claimant's disability picture and that picture has related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for completion of the third step-a determination of whether, to accord justice, the claimant's disability picture requires the assignment of an extraschedular rating. Id. Turning to the first step of the extraschedular analysis, the Board finds that the symptomatology and impairment caused by the Veteran's residuals of rotator cuff syndrome of the left shoulder and residuals of a neuroma transposition of the right leg are specifically contemplated by the schedular rating criteria, and no referral for extraschedular consideration is required. The schedular rating criteria, Diagnostic Codes 5201 and 8520 specifically provide for disability ratings based on a combination of history and clinical findings. In this case, considering the lay and medical evidence, the Veteran's residuals of rotator cuff syndrome of the left shoulder and residuals of a neuroma transposition of the right leg have symptoms which are part of the schedular rating criteria. Regarding the residuals of rotator cuff syndrome of the left shoulder and residuals of a neuroma transposition of the right leg, the Veteran had complaints of pain and limitation of motion of the left shoulder, but did not have additional functional impairment beyond that which was contemplated by the rating criteria. The Veteran had range of motion of the left arm above the shoulder prior to October 25, 2011 and to 25 degrees thereafter. Likewise, although the Veteran complained of burning and numbness of the right leg, he had no more than moderate incomplete paralysis of the sciatic nerve as a result of his residuals of a neuroma transposition of the right leg for the entire rating period on appeal; he had loss of sensation to light touch, but no other neurological symptoms. Furthermore, there was no evidence of ankylosis, malunion, or nonunion of his joints, and he did not have any deformities. Additionally, as previously discussed, the factors of 38 C.F.R. §§ 4.40, 4.45, and 4.59, as well as those in DeLuca, were adequately contemplated in the rating criteria utilized to rate the Veteran's disabilities. The disability rating schedule is intended to compensate for average impairments in earning capacity resulting from service-connected disability in civil occupations. See 38 U.S.C.A. § 1155. "Generally, the degrees of disability specified [in the rating schedule] 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." 38 C.F.R. § 4.1. In this case, the problems reported by the Veteran are specifically contemplated by the criteria discussed above, including the effect on his daily life. In the absence of exceptional factors associated with residuals of rotator cuff syndrome of the left shoulder and residuals of a neuroma transposition of the right leg, the Board finds that the criteria for submission for assignment of extraschedular ratings pursuant to 38 C.F.R. § 3.321(b)(1) are not met. See Bagwell v. Brown, 9 Vet. App. 337 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). ORDER An increased disability evaluation (rating) for residuals of rotator cuff syndrome of the left shoulder, in excess of 20 percent for the period prior to October 11, 2011, and in excess of 30 percent thereafter, is denied. An increased disability evaluation (rating) of 20 percent for residuals of a neuroma transposition of the right leg is granted prior to July 16, 2009. An increased disability evaluation (rating) in excess of 20 percent for residuals of a neuroma transposition of the right leg is denied. ____________________________________________ C. L. KRASINSKI Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs