Citation Nr: 1317746 Decision Date: 05/31/13 Archive Date: 06/06/13 DOCKET NO. 10-47 800 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUES 1. Entitlement to service connection for sleep apnea, claimed as being secondary to hypertension. 2. Entitlement to a compensable disability rating for varicocele. 3. Entitlement to an increased disability rating for right shoulder bursitits, currently rated as 10 percent disabling. REPRESENTATION Appellant represented by: Texas Veterans Commission ATTORNEY FOR THE BOARD D.S. Lee, Counsel INTRODUCTION The Veteran served on active duty from January 1987 through July 2001. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2009 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas. A timely Notice of Disagreement (NOD) was received from the Veteran in June 2009. After a Statement of the Case addressing those issues was mailed to the Veteran in September 2010, the Veteran perfected his appeal in a November 2010 letter that has been accepted as his substantive appeal in lieu of a formal VA Form 9. The issues of entitlement to service connection for sleep apnea, claimed as being secondary to hypertension, and entitlement to a compensable disability rating for varicocele are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDING OF FACT For all periods relevant to this appeal, the Veteran's right shoulder bursitis has been manifested by pain, weakness, giving way, and lack of endurance with full right shoulder motion. CONCLUSION OF LAW The criteria for a disability rating in excess of 10 percent for right shoulder bursitis have not been met or approximated. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 4.1, 4.3, 4.7, 4.40, 4.45, 4.71a, Diagnostic Codes 5003, 5019, and 5201 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION VA's duties to notify and assist claimants in substantiating a claim for VA benefits are found at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2010) and 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical evidence or lay evidence that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). In accordance with 38 C.F.R. § 3.159(b)(1), proper notice must inform the claimant of any information and 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. VA's notice requirements apply to all five elements of a service-connection claim: veteran status, existence of a disability, a connection between a veteran's service and the disability, degree of disability, and effective date of the disability. Dingess v. Nicholson, 19 Vet. App. 473 (2006). In rating cases, a claimant must be provided with information pertaining to assignment of disability ratings (to include the rating criteria for all higher ratings for a disability), as well as information regarding the effective date that may be assigned. Id. Such notice should be provided to a claimant before the initial unfavorable decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004). An October 2008 pre-rating letter provided the Veteran with notice of the information and evidence needed to substantiate his claim for an increased disability rating for his service-connected right shoulder bursitis. Consistent with Dingess, this letter included notice of the process in which VA assigns disability evaluations and effective dates. Subsequently, the Veteran's claim for a higher disability rating was adjudicated in the RO's January 2009 rating decision. Thus, because the VCAA notice in this case was legally sufficient, VA's duty to notify in this case has been satisfied. In addition, VA has fulfilled its duty to assist in obtaining identified and available evidence needed to substantiate the Veteran's claims. His service treatment records, claims submissions, lay statements, and identified and relevant private treatment records have been obtained and associated with the record. A VA examination of his right shoulder was conducted in November 2008. Moreover, VA has not received any additional evidence since the November 2008 examination which indicates that the Veteran's right shoulder condition has changed such as to warrant the scheduling of a new VA examination to reassess its symptoms and severity. Hence, this examination, along with the other evidence of record, is fully adequate for the purpose of determining the extent of the Veteran's disabilities in light of the applicable diagnostic criteria. See Barr v. Nicholson, 21 Vet. App. 303 (2007). Overall, there is no evidence of any VA error in notifying or assisting the Veteran that reasonably affects the fairness of this adjudication. I. Disability Rating for Right Shoulder Bursitis Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities. Ratings are based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. See 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Where there is a question as to which of two evaluations applies, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. 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 entitlement to compensation already has been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Moreover, staged ratings are appropriate in any increased rating claim in which distinct time periods with different ratable symptoms can be identified. The relevant focus for adjudicating an increased rating claim is on the evidence concerning the state of the disability from the time period one year before the claim was filed until VA makes a final decision on the claim. Hart v. Mansfield, 21 Vet. App. 505 (2007). When a reasonable doubt arises regarding the degree of disability, such doubt will be resolved in the veteran's favor. 38 C.F.R. §§ 3.102, 4.3. Once the evidence is assembled, the Board is responsible for determining whether the preponderance of the evidence is against the claim. If so, the claim is denied; if the evidence is in support of the claim or is in equal balance, the claim is allowed. 38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). Throughout the course of this appeal, the Veteran's right shoulder bursitis has been assigned a 10 percent disability rating pursuant to the rating criteria under Diagnostic Code (DC) 5019. These criteria apply specifically for disabilities attributable to bursitis and provide that all disabilities rated under it must be rated based upon the limitation of motion of the affected parts as degenerative arthritis. Degenerative arthritis is rated in accordance with the criteria under DC 5003. DC 5003 provides that arthritis that has been established by x-ray findings will be rated on the basis of limitation of motion under the appropriate Diagnostic Codes for the specific joint involved. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. Where there is x-ray evidence of arthritis and limitation of motion, but not to a compensable degree under the code, a 10 percent rating is to be assigned for each major joint affected. 38 C.F.R. § 4.71, Diagnostic Codes 5003, 5010. Disabilities based upon loss of shoulder motion are rated pursuant to the criteria under DC 5201, which provides a 20 percent disability rating where motion in the major arm is limited to shoulder level. A 30 percent disability rating is appropriate where motion of the major arm is limited to the point that is midway between the side and shoulder level. A maximum schedular 40 percent disability rating is assigned where motion of the major arm is limited to 25 degrees or less from the side. As noted in a December 2001 VA examination, the Veteran is right-hand dominant. The Board notes that full shoulder motion is characterized by flexion from zero to 180 degrees, abduction from zero to 180 degrees, and external and internal rotation from zero to 90 degrees. Motion from the side to shoulder level is marked by flexion or abduction to 90 degrees. 38 C.F.R. § 4.71, Plate I. Post-service treatment records which pertain to treatment received by the Veteran during the appeal period include private treatment records from San Antonio Orthopedic Group and from the Veteran's primary care physician, Dr. W.A. Overall, these treatment records reflect that the Veteran treated his right shoulder on one occasion with Dr. W.A. in February 2008. Those records reflect subjective complaints of right shoulder pain. An examination of the shoulder apparently revealed full range of motion, albeit with pain being present during abduction and external rotation. During a November 2008 VA examination which included examination of the Veteran's right shoulder, the Veteran reported symptoms of weakness, giving way, and lack of endurance. The Veteran reported constant right shoulder pain that was elicited by physical activity. The pain which was described as burning, aching, and cramping was relieved by rest and Ibuprofen. However, the Veteran denied having any stiffness, swelling, heat, redness, locking, fatigability, dislocation, or prior history of replacement surgery. An examination of the shoulder did not reveal any signs of edema, effusion, weakness, tenderness, redness, heat, subluxation, or guarding of movement. Consistent with the private February 2008 evaluation by Dr. W.A., the Veteran again demonstrated full motion in the right shoulder to all directions, including flexion and abduction to 180 degrees and external and internal rotation to 90 degrees. Repetitive motion of the right shoulder did not result in additional loss of function due to pain, fatigue, weakness, lack of endurance, or incoordination. The previous right shoulder diagnosis of subdeltoid bursitis with impingement was not changed. As shown above, at no time during the course of the appeal has the Veteran's right shoulder been manifested by limitation of motion to the shoulder level or below as contemplated by a higher evaluation under DC 5201. On the contrary, in the absence of such limitation of right shoulder motion, the Veteran is not entitled to a disability rating higher than 10 percent for his right shoulder bursitis under DC 5201. In holding that the criteria for a higher evaluation based on limitation of right shoulder motion is not warranted, the Board notes that, under DeLuca v. Brown, 8 Vet. App. 202 (1995), VA must consider "functional loss" of a musculoskeletal disability separately from consideration under the Diagnostic Codes. "Functional loss" may occur as a result of weakness or pain on motion. The evidence shows that pain has been present in the right shoulder, particularly during abduction movements. Nonetheless, given that the demonstrated right shoulder motion has remained full and unlimited, even after repetitive motion and despite subjectively reported pain, throughout the course of the appeal period, there is no evidence of a disability picture that is commensurate to a limitation of right shoulder motion to the extent necessary to establish entitlement to a higher disability rating. See DeLuca, 8 Vet. App. at 204-07; 38 C.F.R. §§ 4.40, 4.45, 4.71a, Diagnostic Codes 5260 and 5261. The Board turns its attention to the criteria under DC 5003, which provides that a 10 percent disability rating is for application for each major joint or group of minor joints affected by limitation of motion. The Board notes that DC 5003 does provide for a higher 20 percent disability rating where there is x-ray evidence of involvement of two or more major joints or two or more minor joint groups with occasional incapacitating exacerbations. Nonetheless, where the right shoulder at issue constitutes only one major joint, the criteria for a 20 percent disability rating under DC 5003 are not applicable in this case. As such, the Veteran is also not entitled to a disability rating higher than 10 percent for his right shoulder bursitis under DC 5003. Although the Veteran has not urged the application of any other specific rating criteria for his right shoulder bursitis, the Board has also considered the potential application of the other provisions of 38 C.F.R., Parts 3 and 4. Schafrath, 1 Vet. App. 589. In doing so, the Board notes that other criteria for shoulder disabilities are set forth under DCs 5200 (for ankylosis of the scapulohumeral articulation), 5202 (for impairment of the humerus such as malunion or nonunion, recurrent dislocation, fibrous union, or flail shoulder), and 5203 (for dislocation, malunion, or nonunion of the clavicle or scapula). In the absence of evidence showing the presence of any of those manifestations, those criteria are not applicable to the Veteran's right shoulder bursitis. The Board has also considered the provisions under 38 C.F.R. § 3.321(b)(1), which govern the assignment of extra-schedular disability ratings. However, in this case, the record does not show that the severity of the Veteran's right shoulder bursitis is so exceptional or unusual such as to warrant the assignment of a higher rating on an extra-schedular basis. See 38 C.F.R. § 3.321(b)(1) (2012). The threshold factor for extra-schedular consideration is a finding that the evidence presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. See Thun v. Peake, 22 Vet. App. 111 (2008). In this regard, there must be a comparison between the level of severity and symptomatology of the claimant's service-connected disability with the established criteria found in the rating schedule for that disability. If the criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule and the assigned schedular evaluation is therefore adequate, and, no extra-schedular referral is required. Id., see also VAOGCPREC 6-96 (Aug. 16, 1996). Otherwise, if the schedular rating does not contemplate the claimant's level of disability and symptomatology and is found inadequate, VA must determine whether the claimant's exceptional disability picture exhibits other related factors, such as those provided by the extra-schedular regulation (38 C.F.R. § 3.321(b)(1) ) as "governing norms"(which include marked interference with employment and frequent periods of hospitalization). The evidence in this case does not show that the Veteran's service-connected right shoulder bursitis presents an exceptional disability picture that renders inadequate the available schedular ratings. A comparison between the level of severity and symptomatology of the Veteran's assigned rating with the established criteria found in the rating schedule shows that the rating criteria reasonably describe the Veteran's disability level and symptomatology. As discussed above, there are higher ratings available under the applicable diagnostic codes; however, the Veteran's disabilities are not productive of the manifestations required for the next higher rating. As such, it cannot be said that the available schedular ratings for the Veteran's right shoulder disability are inadequate. The Board also observes that, even if the available schedular evaluation for the disability is inadequate (which it manifestly is not), the Veteran does not exhibit other related factors such as those provided by the regulation as "governing norms." The record does not show that the Veteran has required frequent hospitalizations for his right shoulder disability, and there is nothing in the record to indicate that the Veteran's disability causes impairment with employment over and above that which is contemplated in the assigned schedular rating. See Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993) (noting that the disability rating itself is recognition that industrial capabilities are impaired). Based on the foregoing, the Board finds that the requirements for an extra-schedular evaluation for the Veteran's service-connected right shoulder bursitis, under the provisions of 38 C.F.R. § 3.321(b)(1), have not been met. Thun, 22 Vet. App. 111; Bagwell v. Brown, 9 Vet. App. 337 (1996); Shipwash v. Brown, 8 Vet. App. 218 (1995). The Board has also considered whether "staged" disability ratings are warranted by the evidence. The symptomatology shown upon examination and treatment, however, has been essentially consistent and fully contemplated by the assigned disability rating. As such, there is no basis for staged disability ratings in connection with the Veteran's right shoulder disability. Overall, the evidence does not support the assignment of a disability rating higher than 10 percent for the Veteran's right shoulder bursitis. To that extent, this appeal is denied. 38 C.F.R. §§ 4.3, 4.7. ORDER Entitlement to an increased disability rating for right shoulder bursitits, currently rated as 10 percent disabling, is denied. REMAND Regarding the Veteran's claim for service connection for sleep apnea, a sleep study performed in March 2008 initially confirmed that the Veteran has severe sleep apnea. Although the evidence does not indicate a sleep apnea diagnosis prior to that time, the Veteran has alleged in his June 2009 NOD that he has experienced symptoms of fatigue and hypertension, which he believes are attributable to his sleep apnea, since active duty service. This assertion is supported by further assertions by his spouse, who has been married to the Veteran since 1996 and attests that over that time, she has observed the Veteran's loud snoring, instances in which the Veteran stopped breathing for several seconds in the middle of the night, and daytime fatigue and sleepiness. These unrebutted assertions appear to raise the possibility that the Veteran's current sleep apnea may be related to the reported symptoms during his active duty service. Despite the foregoing, the Veteran has yet to be afforded a VA examination for his sleep apnea. Such an examination should be arranged for the Veteran to explore whether there is an etiological relationship between his sleep apnea and his active duty service. 38 C.F.R. § 3.159(c)(4). In relation to the Veteran's claim for a compensable disability rating for his service-connected varicocele, the Veteran was afforded a VA examination in November 2008. During the examination, he reported symptoms of urinary frequency that was marked by daytime voiding of six times per day at two hour intervals and nighttime voiding of twice per night at six hour intervals. Despite these reported symptoms, the examiner did not address them in the context of the Veteran's varicocele disability; namely, whether the Veteran's reported reported urinary frequency was a manifestation of his varicocele. In view of the foregoing, and, as nearly five years have passed since the previous November 2008 VA examination, the Veteran should also be arranged to undergo a new examination of his service-connected varicocele. 38 C.F.R. § 3.159(c)(4); Snuffer v. Gober, 10 Vet. App. 400, 403 (1997); Caffrey v. Brown, 6 Vet. App. 377 (1994) (an examination that is too remote for rating purposes cannot be considered contemporaneous). The new examination should identify all manifestations that are attributable to the Veteran's varicocele and note their severity. Prior to arranging the VA examinations requested above, and in order to insure that the most complete and up-to-date evidence has been associated with the claims file, the Veteran should also be asked to identify any other private or VA treatment providers who have rendered treatment for his sleep apnea and/or varicocele since November 2009. VA must then also make efforts to obtain any treatment records that are identified by the Veteran. 38 C.F.R. § 3.159. Accordingly, the case is REMANDED for the following action: 1. A letter should be sent to the Veteran explaining, in terms of 38 U.S.C.A. §§ 5103 and 5103A, the need for additional evidence regarding his claims for service connection for sleep apnea, claimed as being secondary to hypertension, and for a compensable disability rating for varicocele. This letter must inform the Veteran about the information and evidence that is necessary to substantiate his claims, and also, must provide notification of both the type of evidence that VA will seek to obtain and the type of evidence that is expected to be furnished by the Veteran. The letter must also notify the Veteran that VA is undertaking efforts to arrange VA examinations of his sleep apnea and varicocele. The Veteran should be advised that it remains his responsibility to report for the scheduled VA examinations and to cooperate with the development of his claim; failure to report without good cause may result in denial of his claim. The Veteran should also be provided a VA 21-4142 release form, and be requested to identify on the release the name(s) and address(es) of any private or VA medical providers who have provided treatment for his sleep apnea and/or varicocele since November 2009. 2. Make efforts to obtain the records of any treatment identified by the Veteran. Any records obtained as a result of such efforts should be associated with the claims file. If such efforts yield negative results, a notation to that effect should be inserted in the file. The Veteran and his representative are to be notified of unsuccessful efforts in this regard, in order to allow the Veteran the opportunity to obtain and submit those records for VA review. 3. After the above development has been completed to the extent possible, the Veteran should then be afforded a VA examination, with an appropriate examiner, to determine whether the Veteran's sleep apnea is etiologically related to his active duty service. The claims folder must be made available to the examiner, and, the examiner must review the entire claims file in conjunction with the examination. All tests and studies deemed necessary by the examiner should be performed. The examiner should confirm the Veteran's sleep apnea diagnosis. If the examiner confirms the sleep apnea diagnosis, then the examiner should also provide an opinion as to whether it is at least as likely as not (i.e. is at least a 50 percent probability) that the diagnosed sleep apnea was incurred during service, is related to an injury or illness sustained during service, or was caused or aggravated by the Veteran's service-connected hypertension. A report of the examination should be prepared and associated with the Veteran's VA claims file. A complete rationale which includes citation to any relevant facts, evidence, or medical principles must be provided for all opinions rendered. If the examiner cannot provide the requested opinion without resorting to speculation, he or she should expressly indicate this and provide a supporting rationale as to what additional information is necessary and why the opinion sought cannot be given without resorting to speculation. 4. The Veteran should also be afforded a VA examination, with an appropriate examiner, to determine the current severity of the Veteran's service-connected varicocele. The claims folder must be made available to the examiner, and, the examiner must review the entire claims file in conjunction with the examination. All tests and studies deemed necessary by the examiner should be performed. The examiner should identify all manifestations of the Veteran's varicocele. The examiner should render an opinion as to whether this disability is manifested by urinary frequency as suggested by the Veteran. The examiner should also discuss the impact of such symptoms on the Veteran's activities and social and occupational functioning. A report of the examination should be prepared and associated with the Veteran's VA claims file. A complete rationale which includes citation to any relevant facts, evidence, or medical principles must be provided for all opinions rendered. If the examiner cannot provide the requested opinion without resorting to speculation, he or she should expressly indicate this and provide a supporting rationale as to what additional information is necessary and why the opinion sought cannot be given without resorting to speculation. 5. If the Veteran fails to report to the scheduled examinations, the RO must obtain and associate with the claims file a copy of any notice(s) of the dates and times of the examinations sent to the Veteran by the pertinent VA medical facility. 6. After completion of the above development, the issues of service connection for sleep apnea, claimed as being secondary to hypertension, and for a compensable disability rating for varicocele, should be readjudicated. If the determination remains adverse to the Veteran, he and his representative should be furnished with a supplemental SOC and be given an opportunity to respond. 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). ______________________________________________ DAVID L. WIGHT Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs