Citation Nr: 1318013 Decision Date: 06/03/13 Archive Date: 06/11/13 DOCKET NO. 08-16 351A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to an initial disability rating in excess of 10 percent for service-connected impingement syndrome of the right shoulder. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD A. Fagan, Associate Counsel INTRODUCTION The Veteran served on active duty from June 1978 to July 2006. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a July 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. The Board denied the Veteran's increased initial rating claim in a decision issued in December 2011, and that portion of the decision was later vacated pursuant to an August 2012 United States Court of Appeals for Veterans Claims (Court) Order, which granted the parties' August 2012 Joint Motion for Remand (Joint Motion). In January 2013, the Board remanded the matter for a VA examination. The record reflects substantial compliance of the requested development. In March 2013, the AOJ granted an increased 10 percent rating for the Veteran's right shoulder impingement syndrome, effective August 1, 2006, the date of service connection. As that increase does not represent the maximum rating available, the Veteran's claim remains in appellate status. See AB v. Brown, 6 Vet. App. 35 (1993). FINDING OF FACT Resolving doubt in favor of the Veteran, his right shoulder impingement syndrome, which is the major side, has been manifested by a disability picture approximating limitation of motion of the arm at the shoulder level. CONCLUSION OF LAW The criteria for a disability of 20 percent, but no higher, for right shoulder impingement syndrome have been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.102, 4.1-4.14, 4.71a, Diagnostic Codes 5201 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION I. Duties to Notify and Assist The VA has a duty to provide notification to the Veteran with to respect establishing entitlement to benefits, and a duty to assist with development of evidence under 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. § 3.159(b). The Board notes that the Veteran's claim seeking a higher rating arises from his disagreement with the initial evaluation assigned following the grant of service connection. Courts have held that in these circumstances, once notice has been satisfied in conjunction with the grant of service connection, additional notice is not required under 38 U.S.C.A. § 5103. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). As VA fulfilled its notice requirements with regard to the Veteran's right shoulder service connection claim by a December 2006 letter, the Board finds that no additional notice with regard to this claim is required under 38 U.S.C.A. § 5103. Regarding VA's duty to assist, the Board finds that all relevant facts have been properly developed and that all available evidence necessary for equitable resolution of the issue addressed in this appeal has been obtained. The Veteran's service treatment records have been obtained, as well as his VA treatment records. Moreover, there are no records identified by the Veteran as relevant that were not obtained. In this regard, in October 2006, the Veteran reported that he did not receive private treatment for his right shoulder disability. The Veteran was also offered an opportunity to testify at a Board hearing, but he declined. Moreover, pursuant to the Board's recent remand directives, the Veteran was provided with a VA examination to address the current nature and severity of his right shoulder disability. The Board finds that the examination is sufficient for adjudicatory purposes, as the examination report reflects that the examiner conducted a relevant physical examination of the Veteran and reviewed relevant diagnostic studies. Moreover, the examiner conducted a review of the Veteran's claims file and electronic medical records. For the foregoing reasons, the Board concludes that all reasonable efforts were made by the VA to obtain evidence necessary to substantiate the Veteran's claim decided in this appeal. As VA's duties to notify and assist have been met, there is no prejudice to the Veteran in adjudicating this aspect of his appeal. II. Analysis The Veteran contends that a higher disability rating is warranted for his service-connected right shoulder impingement syndrome. Disability evaluations are determined by the application of VA's Schedule for Rating Disabilities, which assigns ratings based on average impairment of earning capacity resulting from a service-connected disability. 38 U.S.C.A. § 1155 (2012); 38 C.F.R. § 4.1 (2012). Ratings are based primarily upon the average impairment in earning capacity, that is, upon the economic or industrial handicap which must be overcome and not from individual success in overcoming it. 38 C.F.R. § 4.15. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. 38 C.F.R. § 4.7. Otherwise, the lower rating will be assigned. Id. All potential applicable diagnostic codes, whether or not raised by a claimant, must be considered. Schafrath v. Derwinski, 1 Vet. App. 589, 593 (1991). Furthermore, when it is not possible to separate the effects of the service-connected disability from a nonservice-connected condition, such signs and symptoms must be attributed to the service-connected disability. 38 C.F.R. § 3.102; Mittleider v. West, 11 Vet. App. 181, 182 (1998) (per curiam). After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the claimant. 38 C.F.R. § 4.3. Under Diagnostic Code 5201, a 20 percent evaluation is assigned for limitation of motion of the arm at the shoulder level. A 30 percent evaluation is assigned for limitation of motion of the arm midway between the side and shoulder level. A 40 percent evaluation is assigned for limitation of motion of the arm to 25 degrees from the side. 38 C.F.R. § 4.71a. In assessing limitation of motion under DC 5201, the criteria for a higher rating may be met by considering limitations of motion in either forward flexion or abduction. See Mariano v. Principi, 17 Vet. App. 305, 317-18 (2003). Under Plate I of 38 C.F.R. § 4.71a, normal range of motion of the shoulder encompasses forward elevation (flexion) and abduction to 180 degrees. Also potentially pertinent are the schedular rating criteria of DC 5200, concerning ankylosis of scapulohumeral articulation, DC 5202, regarding other impairments of the humerus, and DC 5203, regarding impairment of the clavicle or scapula. 38 C.F.R. § 4.71a. The joining of schedular criteria by the conjunctive "and" in a diagnostic code does not always require that all criteria to be met, except in the case of diagnostic codes that use successive rating criteria, where assignment of a higher rating requires that elements from the lower rating are met. Tatum v. Shinseki, 23 Vet. App. 152 (2009). The intent of the rating schedule is to recognize painful motion with joint or periarticular pathology as productive of disability. Thus, with or without degenerative arthritis, it is the intention to recognize actually painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59; see also, Burton v. Shinseki, 25 Vet. App. 1, 5 (2011) (holding that the provisions of 38 C.F.R. § 4.59 are not limited to disabilities involving arthritis). Moreover, when evaluating musculoskeletal disabilities, VA is to consider functional loss due to limited or excessive movement, pain, weakness, excessive fatigability, or incoordination, to include during flare-ups and with repeated use. See 38 C.F.R. §§ 4.40, 4.45, 4.59; see also DeLuca v. Brown, 8 Vet. App. 202 (1995); see also, Burton, 25 Vet. App. at 5. Nonetheless, a disability rating higher than the minimum compensable rating is not assignable under any diagnostic code relating to range of motion where pain does not cause a compensable functional loss. Rather, the "pain must affect some aspect of 'the normal working movements of the body' such as 'excursion, strength, speed, coordination, and endurance,'" as defined in 38 C.F.R. § 4.40, before a higher rating may be assigned. This is because "pain alone does not constitute a functional loss under the VA regulations that evaluate disability based upon range-of-motion loss." Mitchell v. Shinseki, 25 Vet. App. 32, 33, 43 (2011). In making all determinations, the Board must also fully consider the lay assertions of record. If credible, competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159(a). Thus, a layperson is competent to report on his symptomatology. See Kahana v. Shinseki, 24 Vet. App. 428, 438 (2011); Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a veteran is competent to report on that of which he or she has personal knowledge). Lay evidence can also be competent and sufficient evidence of a diagnosis if (1) the medical issue is within the competence of a layperson, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. See Kahana, 24 Vet. App. at 433; Davidson, 581 F.3d at 1316; Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). In the present case, the Board finds after a careful review of the pertinent evidence of record that an increased rating of 20 percent, but not higher, is warranted the Veteran's right shoulder disability. In making this determination, the Board takes notice of the evidence of record showing that the Veteran is right-handed, so the right will be considered the major (dominant) side. 38 C.F.R. § 4.69 (2012). Here, the relevant medical evidence includes a January 2007 VA joints examination and a February 2013 VA shoulder and arm examination. VA examination in January 2007 revealed full range of right shoulder motion, with pain on motion beginning at 160 degrees in abduction and flexion. There was no additional limitation of motion on repetitive use. The Veteran reported stiffness but denied weakness, locking, giving way, instability, or episodes of dislocation. Imaging of the right shoulder was within normal limits. During subsequent VA examination in February 2013, the Veteran exhibited limitation of right shoulder motion in flexion to 100 degrees and abduction to 110 degrees. There was also evidence of painful motion at 80 degrees in both flexion and abduction, though no additional limitation of motion after repetitive-use testing. The Veteran reported weekly flare-ups that are alleviated by rest and medication. The examiner noted functional loss in the form of less movement than normal and pain on movement. The Board finds that the February 2013 clinical finding of limitation of right shoulder flexion to 100 degrees, in conjunction with the Veteran's August 2007 assertion of functional limitations due fatigue and repetitive use and his report of flare-ups and functional loss during the February 2013 examination, more nearly approximates limitation of motion of the right shoulder to shoulder level (90 degrees) to warrant a 20 percent rating. See 38 C.F.R. § 4.71a, Plate I. However, the evidence does not more nearly approximate arm limitation midway between side and shoulder level, or limitation of motion to 25 degrees from side, necessary for rating in excess of 20 percent. Indeed, the Veteran exhibited full range of motion in January 2007 and limitation to no more than 100 degrees in February 2013, with no degrees of additional limitations after repetitive use due to pain, fatigue, weakness, lack of endurance, and pain. Thus, even when considering functional limitation due to the DeLuca factors, a higher schedular disability rating under DC 5201 is not warranted. See 38 C.F.R. § 4.71; Mitchell, 25 Vet. App. at 33, 43. The above analysis takes into consideration the Deluca factors, particularly limitation of motion due to pain. Where shown by the evidence, the Veteran's pain does not result in additional functional limitations warranting a schedular disability rating in excess of 20 percent. See Mitchell, 25 Vet. App. at 33, 43. The Board also takes notice of the Veteran's August 2007 complaint of fatigue and altered movement on repetitive use, as well as the report during the February 2013 VA examination of flare-ups occurring one day a week. A higher rating is not warranted on this basis, however, because the Veteran's pain and claimed fatigue are not shown, even when considering his own testimonial statements, to result in further functional limitations that more nearly approximate the criteria for a higher 40 percent rating. See Mitchell, 25 Vet. App. at 33, 43. Thus, to reiterate, the Board finds that the Veteran's right shoulder disability more nearly approximates a 20 percent disability rating, but not higher. The Board has carefully considered whether a higher rating is warranted, but finds that the demonstrated limitations of motion, to include functional loss due to limited or excessive movement, pain, weakness, excessive fatigability, or incoordination, to include during flare-ups and with repeated use, do not more nearly approximate the criteria for a higher rating at any time throughout the period of appellate review. See 38 C.F.R. §§ 4.40, 4.45, 4.59, 4.71a; see also DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Mitchell, 25 Vet. App. at 33, 43; Burton, 25 Vet. App. at 5. The Board also finds that a higher rating is not assignable under any potentially applicable alternative diagnostic code. First, the evidence confirms that the Veteran does not have ankylosis, which would warrant consideration under DC 5200. 38 C.F.R. § 4.71a. There is also no evidence that the Veteran underwent a right shoulder replacement, or has arthritis, bursitis, or any other acute, subacute, or chronic disease affecting the right shoulder. 38 C.F.R. § 4.71a, DCs 5013-5024, 5051. Even so, Diagnostic Codes 5013 through 5024 provide for rating on limitation of the motion of the affected part, or DC 5201, and therefore, would not serve as a basis for a higher rating. 38 C.F.R. § 4.71a, DCs 5013-5024. A higher rating is also not assignable under DC 5202, regarding other impairment of the humerus, or DC 5203, concerning impairment of the clavicle or scapula. Potentially pertinent to those diagnostic codes is a January 2007 x-ray imaging report, which revealed no evidence of fracture, dislocation, or focal bony lesion. Those findings confirm that there is no nonunion or malunion of the humerus, clavicle or scapula, and no loss of head or fibrous union of the humerus. Moreover, both VA examination reports confirm that the Veteran does not experience recurrent dislocations. Thus, a higher rating is not assignable under DC 5202 or DC 5203. 38 C.F.R. § 4.71a; Schafrath, 1 Vet. App. at 593. In conclusion, the Board finds for the foregoing reasons that a schedular disability rating of 20 percent, but not higher, is warranted for the service-connected right shoulder impingement syndrome. The Board's findings above are based on schedular evaluation. 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. Schedular ratings are based primarily upon the average impairment in earning capacity, that is, upon the economic or industrial handicap which must be overcome and not from individual success in overcoming it. 38 C.F.R. § 4.15. To afford justice in exceptional situations, however, an extraschedular rating may also be provided. 38 C.F.R. § 3.321(b). The Board may determine, in the first instance, that a veteran has not presented evidence warranting referral for extraschedular consideration, provided that it articulates the reasons or bases for that determination. See Bagwell v. Brown, 9 Vet. App. 337, 339 (1996). This determination follows a three-step inquiry. See Thun v. Peake, 22 Vet. App. 111, 115 (Vet.App. 2008). 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, the level of severity and symptomatology of a veteran's service-connected disability must be compared with the established criteria found in the rating schedule for that disability. Id. If the rating criteria reasonably describe a veteran's disability level and symptomatology, the disability picture is contemplated by the rating schedule. Therefore, the assigned schedular evaluation is adequate and no referral is required. Id. If the schedular evaluation does not contemplate the level of disability and symptomatology, and is found inadequate, the second step of the inquiry requires the Board to determine whether the exceptional disability picture exhibits other related factors such as marked interference with employment or frequent periods of hospitalization. Id. at 115-16. If analysis of the first two steps shows that the rating schedule is inadequate to evaluate the disability picture and that picture shows the related factors discussed above, the final step requires that the case be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for a determination of whether the disability picture requires the assignment of an extraschedular rating. Id. In the instant case, as explained in detail above, the applicable schedular rating criteria reasonably describe the disability level and symptomatology of the Veteran's right shoulder disability, which primarily involves complaints of pain. The Board acknowledges the Veteran's August 2007 statement that his right shoulder is altered and limited by repetitive motion, and has resulted in "loss of work effectiveness." Additionally, the Veteran reported during his February 2013 VA examination that he cannot lift or reach above shoulder height, and is limited in many physical activities. Importantly, however, the record shows that the Veteran works in an office environment, and the Veteran has not alleged marked interference with his office work due to his shoulder disability or indicated that reaching or lifting is required as part of his office duties. Nor has he reported lost time from work for his shoulder disability, but instead, generally reported in February 2007 that he had lost one-week of work due to "feeling bad." Moreover, he reported that his flare-ups are alleviated with rest and medication, and the February 2013 VA examiner found that the Veteran's right shoulder disability does not preclude sedentary employment. Thus, the Board concludes that the evidence does not present an exceptional or unusual disability picture. Accordingly, referral for extraschedular consideration is not in order. Finally, the Veteran has not alleged that his right shoulder disability precludes employment, and the evidence of record fails to reflect that the Veteran is currently unemployed. Therefore, no discussion is necessary as to whether a claim of entitlement to a total disability rating based on individual unemployability (TDIU) has been raised as part of the Veteran's increased rating claim. See Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009). ORDER A disability rating of 20 percent, but no higher, is granted for right shoulder impingement syndrome. ____________________________________________ MICHAEL E. KILCOYNE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs