Citation Nr: 1317857 Decision Date: 05/31/13 Archive Date: 06/06/13 DOCKET NO. 10-41 081 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to an initial rating in excess of 20 percent for tendonitis of the left (minor) shoulder with degenerative changes. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Carole Kammel, Counsel INTRODUCTION The Veteran served on active duty from September 1977 to September 1981. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2008 rating decision of the RO in St. Petersburg, Florida. By that rating action, the RO granted service connection for tendonitis of the left (minor) shoulder with degenerative changes; an initial 10 percent rating was assigned, effective August 11, 2008--the date VA received the Veteran's initial claim for compensation for this disability. In a June 2011 decision, the Board denied the Veteran's claim for entitlement to an initial rating in excess of 10 percent for tendonitis of the left shoulder. The Veteran appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court). In a March 2012 Order, the Court vacated the June 2011 Board decision, and remanded the case to the Board for further proceedings consistent with a March 2012 Joint Motion for Remand (JMR). In November 2012, the Board remanded the claim on appeal for additional development consistent with the JMR and Court's Order. The requested development has been accomplished and the appeal has returned to the Board for further appellate consideration. By a March 2013 rating action, the RO granted a 20 percent disability rating to the service-connected left shoulder disability, effective August 11, 2008. As the veteran is presumed to be seeking the maximum rating for a disability, the claim remains viable on appeal. See AB v. Brown, 6 Vet. App. 35, 38 (1993). Moreover, as the veteran has perfected an appeal as to the initial rating assigned for the issue on the title page, the Board has characterized this issue in accordance with the decision in Fenderson v. West, 12 Vet. App. 119, 126 (1999) (appeals from original awards are not to be construed as claims for increased ratings), which requires consideration of the evidence since the effective date of the grant of service connection. FINDINGS OF FACT 1. The Veteran's is right-handed; thus, his left shoulder is his minor extremity. 2. Throughout the course of the appeal, the Veteran's tendonitis of the left shoulder with degenerative changes has been manifested by subjective complaints of pain and stiffness; however, ankylosis of the scapulohumeral articulation, limitation of motion of the arm 25 degrees from the side, or fibrous union of the humerus have not been demonstrated. CONCLUSION OF LAW The criteria for rating in excess of 20 percent for tendonitis of the left (minor) shoulder with degenerative changes have not been met. 38 U.S.C.A. §§ 1155, 5103(a), 5103A, 5107(b) (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.2, 4.3, 4.6, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5200, 5201, 5202 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. 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 agency of original jurisdiction (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); Pelegrini v. Principi, 18 Vet. App. 112 (2004). 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. See 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. Specifically, the Veteran's left shoulder disability claim arises from his disagreement with the initial evaluation following the grant of service connection. Courts have held that 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 further notice is needed under the VCAA. VA also has a duty to assist a Veteran in the development of the claim. This duty includes assisting him or her in the procurement of service treatment records and other pertinent records, and providing an examination when necessary. See 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2012). After a careful review of the file, the Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). The Veteran's service treatment records are associated with the claims file. The Veteran also submitted statements in support of his claim. In that regard, neither the Veteran nor his representative has identified any outstanding treatment records that have not otherwise been obtained. He does not report any VA or non-VA treatment of his left shoulder during the appeal period. Additionally, in November 2012 and in accordance with the Court's holding in Mitchell v. Shinseki, 25 Vet. App. 32 (2011), the Board remanded the claim on appeal to obtain an examination to determine the current severity of the service-connected left shoulder disability, to specifically include findings as to the starting point for pain in each of the respective ranges of motion. This examination was performed in February 2013. A copy of this examination report has been associated with the claims file. The Board finds that the February 2013 VA examination performed in this case is more than adequate, as it is predicated on a thorough examination of the Veteran's left shoulder. It considers all of the pertinent evidence of record, to include the Veteran's statements of how his left shoulder disability affects his daily functioning, and provides all the necessary information in order to properly consider the claim. 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) (2012). Hence, no further notice or assistance is required to fulfill VA's duty to assist in the development of the claim. Smith v. Gober, 14 Vet. App. 22 (2000), aff'd, 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). II. Laws and Regulations Increased/Initial Rating-general criteria Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. Generally, 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. See 38 C.F.R. § 4.1 (2012). Separate diagnostic codes identify the various disabilities. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. Part 4 (2012). In cases where the Veteran's claim arises from a disagreement with the initial evaluation following the grant of service connection, such as here, the Board shall consider the entire period of claim to see if the evidence warrants the assignment of different ratings for different periods of time during these claims a practice known as "staged" ratings. Fenderson, supra. Disability of the musculoskeletal system is primarily the inability, due to damage or infection in the parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. It is essential that the examination on which ratings are based adequately portray the anatomical damage, and the functional loss, with respect to all these elements. The functional loss may be due to absence of part, or all, of the necessary bones, joints and muscles, or associated structures, or to deformity, adhesions, defective enervation, or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. 38 C.F.R. §§ 4.10, 4.40, 4.45 (2012). The Court has held that the RO must analyze the evidence of pain, weakened movement, excess fatigability, or incoordination and determine the level of associated functional loss under 38 C.F.R. § 4.40, which requires the VA to regard as "seriously disabled" any part of the musculoskeletal system that becomes painful on use. See DeLuca v. Brown, 8 Vet. App. 202 (1995). The provisions of 38 C.F.R. § 4.14 (avoidance of pyramiding) do not forbid consideration of a higher rating based on greater limitation of motion due to pain on use, including during flare-ups. The Board notes that the guidance provided by the Court in DeLuca must be followed in adjudicating claims where a rating under the diagnostic codes governing limitation of motion should be considered. Furthermore, the intent of the rating schedule is to recognize painful motion with joint or periarticular pathology as productive of disability. Thus, actually painful, unstable, or malaligned joints, due to healed injury, are as entitled to at least the minimum compensable rating for the joint. The joints should be tested for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with the range of the opposite undamaged joint. See 38 C.F.R. § 4.59 (2012). Where there is a question as to which of two separate evaluations shall be applied, the higher evaluation will be assigned if the disability more closely approximates the criteria required for that particular rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2012). When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability, such doubt will be resolved in favor of the Veteran. 38 C.F.R. § 4.3 (2012). Shoulder rating criteria Historically, by a December 2008 rating action, the RO awarded service connection for a tendonitis with degenerative changes of the left shoulder; an initial 10 percent rating was assigned, effective August 11, 2008--the date VA received the Veteran's initial claim for compensation for this disability. The RO based its decision on service treatment records, reflecting that the Veteran had received treatment for left shoulder bursitis from 1979 to 1980, and November 2008 VA examiner's opinion that the Veterans left shoulder disability (degenerative joint disease and rotator cuff tendonitis) was as likely as not related to military service. For impairment of an upper extremity, the disability rating assigned depends on whether the extremity is the major extremity or the minor extremity. The major extremity is the one predominantly used. 38 C.F.R. § 4.69. The evidence reveals that the Veteran is right handed. Thus, his right upper extremity is the major extremity and his left upper extremity is the minor extremity. The RO assigned the Veteran's left shoulder disability a 10 percent rating under Diagnostic Codes 5201-5204. By a March 2013 rating action, the RO assigned a 20 percent disability rating to the service-connected left shoulder disability, effective August 11, 2008. The 20 percent rating was assigned pursuant to Diagnostic Code 5201 based on evidence of limiation of the left shoulder at shoulder level at a February 2013 VA examination. Pursuant to 38 C.F.R. § 4.71a , Diagnostic Code 5201 (2012), a 20 percent evaluation will be assigned for limitation of motion of the minor arm to shoulder level, or limitation of motion of the minor arm that is midway between side and shoulder level. Where limitation of motion of the minor arm is limited to 25 degrees from the side, a 30 percent evaluation is warranted. 38 C.F.R. § 4.71a, Diagnostic Code 5201. In assessing the severity of limitation of shoulder motion, it is necessary to consider both forward flexion and abduction. See Mariano v. Principi, 17 Vet. App. 305, 317-18 (2003). Additionally, under Plate I of 38 C.F.R. § 4.71a, normal range of motion of the shoulder is forward elevation (flexion) and abduction to 180 degrees, and internal and external rotation to 90 degrees. III. Merits Analysis The Board finds that the preponderance of the competent and probative evidence of record is against an initial rating in excess of 20 percent for the service-connected left shoulder disability. First, an initial 30 percent disability rating is not warranted under Diagnostic Code 5201 because there is no evidence of limitation of the left (minor) shoulder to 25 degrees from the side. When examined by VA in November 2008, the Veteran had flexion of the left shoulder to 180 degrees with pain; abduction to 160 degrees with pain; and internal and external rotation to 90 and 60 degrees with pain, respectively. When examined by VA in February 2013, the Veteran demonstrated flexion of the left shoulder to 90 degrees with pain at 60 degrees; left shoulder abduction to 75 degrees with pain at 60 degrees. These findings show that the Veteran was able to lift his left shoulder more than 25 degrees from the side even considering pain to 60 degrees upon flexion and abduction. The Board has also considered other potentially applicable Diagnostic Codes that may provide a basis of a disability rating in excess of 20 percent for the service-connected left shoulder disability. First, and as noted above, as the Veteran has range of motion of the left shoulder, albeit limited in flexion and abduction, there is no evidence of ankylosis of the scapulohumeral articulation. The March 2013 VA examiner specifically indicated that there was evidence of any ankylosis of the glenohumeral articulation (shoulder joint). The evidence of record also fails to show that there is fibrous union of the humerus so as to warrant a 30 percent disability rating under Diagnostic Code 5202. The March 2013 x-ray interpretations of the left shoulder revealed degenerative arthritis without any other significant clinical findings. Similarly, while he reported a "popping" of the joint at his 2008 examination, that examiner did not make a finding with respect to dislocations, nonunion, or malunion of the clavicle or scapula. The 2013 examiner similar noted no pathology of the clavicle or scapula except for arthritis. Higher or separate ratings under Diagnostic Codes, 5200, 5202, and 5203 would not be appropriate. The Board has also considered functional loss due to flare-ups of pain, fatigability, incoordination, pain on movement, and weakness of the left shoulder in determining whether a disability rating in excess of 20 percent is warranted. 38 C.F.R. §§ 4.40 , 4.45, 4.59 (2012); DeLuca v. Brown, 8 Vet. App. 202, 206-7 (1995). Notably, at a November 2008 VA examination, the stated that he had recurrent left shoulder pain, especially when he carried heavy objects, and "popping of the joint." When examined by VA in February 2013, he related that he had increased left shoulder pain at night that made it difficult for him to sleep. He also complained of stiffness of the left shoulder, crepitus upon elevation and an inability to lift objects in excess of 30 pounds. The Board notes that the February 2013 VA examination of the left shoulder yielded findings of weakened and pain on movement of the left shoulder, as well as functional loss and/or functional impairment. Nevertheless, an initial evaluation in excess of the currently assigned 20 percent rating for the Veteran's service-connected left shoulder disability is not warranted on the basis of functional loss due to pain or weakness because the Veteran's symptoms are contemplated by the 20 percent rating already assigned. The Board notes that the Veteran's left shoulder range of motion was noted to have been additionally limited by pain on motion, to include additional limitation of range of motion following repetitive-use testing. Despite the additional limitations due to pain, his left shoulder range of motion was well in excess of what is required for a 30 percent disability rating under Diagnostic Code 5201, even when accounting for pain to 60 degrees upon flexion and abduction of the left shoulder upon examination in February 2013. In addition, the left shoulder demonstrated normal strength (i.e., 5/5) in abduction and flexion in February 2013. There was also no evidence of any tenderness on palpation of the acromioclavicular joint in February 2013. A cross-body adduction test of the left shoulder was also negative. Thus, even when considering the Veteran's complaints of left shoulder pain, the Board finds that the criteria for a higher rating based on additional functional loss due to pain, weakness, excess fatigability, or incoordination, to include with repeated use or during flare-ups, are not met. Id. The Board is also aware of the Veteran's routine complaints of pain with movement of the left shoulder. The Court has clarified that the mere presence of pain does not, by itself, constitute functional loss. Rather, the pain must affect some aspect of the normal working movements of the body such as strength, speed, coordination or endurance. Mitchell v. Shinseki, 25 Vet. App. 32, 37-43 (2012). As noted above, despite the additional limitations due to pain, his range of motion was still well in excess of what is required for a 30 percent disability rating under Diagnostic Code 5201, even when accounting for pain to 60 degrees upon flexion and abduction of the left shoulder upon examination in February 2013. In addition, the left shoulder demonstrated normal strength (i.e., 5/5) in abduction and flexion in February 2013. The Veteran demonstrated normal strength in left shoulder. Thus, while the Board has considered the effects of left shoulder pain on the Veteran's functioning, but nevertheless concludes that a rating in excess of 20 percent is not warranted for his left shoulder disability based on ankylosis or limitation of motion, even when considering the additional effects of such pain. The Veteran's left shoulder symptoms remained constant throughout the course of the period on appeal as demonstrated by similar findings on VA examinations in 2008 and 2013. As such, staged ratings are not warranted. See Fenderson, supra. The Board has also considered the Veteran's statements that his disability is worse than the currently assigned 20 percent rating. In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. The former is a legal concept determining whether testimony may be heard and considered by the trier of fact, while the latter is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). In this case, the Veteran is competent to report symptoms because this requires only personal knowledge as it comes to him through his senses. Layno, 6 Vet. App. at 470. He is not, however, competent to identify a specific level of disability of his left shoulder disability according to the appropriate diagnostic codes. On the other hand, such competent evidence concerning the nature and extent of the Veteran's left shoulder disability has been provided by the medical personnel who have examined him during the current appeal and who have rendered pertinent opinions in conjunction with the evaluations. The medical findings (as provided in the examination reports) directly address the criteria under which the left shoulder disability is evaluated. IV. Other Considerations Next, the Board will consider whether referral for an extraschedular evaluation is warranted. The question of an extraschedular rating is a component of a claim for an increased rating. Bagwell v. Brown, 9 Vet. App. 337, 339 (1996). Although the Board may not assign an extraschedular rating in the first instance, it must specifically adjudicate whether to refer a case for extraschedular evaluation when the issue either is raised by the claimant or is reasonably raised by the evidence of record. Barringer v. Peake, 22 Vet. App. 242 (2008). The Court has clarified the analytical steps necessary to determine whether referral for such consideration is warranted. See Thun v. Peake, 22 Vet. App. 111 (2008). First, VA must first determine whether the available applicable schedular rating criteria are inadequate because they do not contemplate the Veteran's level of disability and symptomatology. If the rating criteria are inadequate, VA must then determine whether the Veteran exhibits an exceptional disability picture indicated by other related factors such as marked interference with employment or frequent periods of hospitalization. If such related factors are exhibited, then referral must be made to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for extraschedular consideration. In this case, the evidence does not indicate that Veteran's disability picture could not be adequately contemplated by the applicable schedular rating criteria discussed above. The Veteran's left shoulder symptoms were applied to the applicable rating criteria and case law. Although the diagnostic codes in this case allow for higher ratings, the Board fully explained why the higher ratings were not warranted. Therefore, given that the applicable schedular rating criteria are more than adequate in this case, the Board need not consider whether the Veteran's left shoulder disability picture includes exceptional factors, and referral for consideration of the assignment of a disability evaluation on an extraschedular basis is not warranted. See Thun, 22 Vet. App. at 111; see also Bagwell v. Brown, 9 Vet. App. 337, 338-9 (1996); Floyd v. Brown, 9 Vet. App. 88, 96 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). Finally, although the Veteran has submitted evidence of a medical disability, and made a claim for the highest rating possible, he has not submitted evidence of unemployability, or claimed to be unemployable. In fact, at his November 2008 VA examination, the Veteran reported that he was employed full-time and that he had not lost any time due to his left shoulder disability. At the February 2013 VA examination, although the examiner noted that the Veteran was restricted at work from lifting objects in excess of 30 pounds, he reported that there had not been any change in the Veteran's overall employment status as result of his left shoulder disability. Thus, the question of entitlement to a total disability rating based on individual unemployability due to a service-connected disability has not been raised. See Rice v. Shinseki, 22 Vet. App. 447 (2009); Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001). In sum, after a careful review of the evidence of record, the Board finds that the benefit of the doubt rule is not applicable and the appeal is denied. ORDER A disability rating in excess of 20 percent for tendonitis of the left (minor) shoulder with degenerative changes is denied. ____________________________________________ MICHAEL A. HERMAN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs