Citation Nr: 1318416 Decision Date: 06/06/13 Archive Date: 06/11/13 DOCKET NO. 09-39 692 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Los Angeles, California THE ISSUE Entitlement to an increased rating for service-connected postoperative Bristow repair, recurrent dislocation, left shoulder, currently evaluated as 20 percent disabling. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD T. Stephen Eckerman, Counsel INTRODUCTION The Veteran served on active duty from September 1980 to September 1984. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Los Angeles, California, which denied the Veteran's claim of entitlement to an increased rating for service-connected postoperative Bristow repair, recurrent dislocation, left shoulder, currently evaluated as 20 percent disabling. In his appeal (VA Form 9), received in October 2009, the Veteran indicated that he desired a hearing before a travelling Veterans Law Judge at the RO. In May 2012, he was notified that he was scheduled for a hearing on June 27, 2012. The Veteran failed to appear for his scheduled hearing, and there is no record that a request for another hearing was ever made. Without good cause being shown for the failure to appear, no further hearing can be scheduled and appellate review may proceed. FINDING OF FACT The Veteran's service-connected left shoulder disability has been shown to be productive of complaints of pain, and some limitation of motion, but not shoulder motion limited to 25 degrees from his side, a fibrous union of the left humerus, or ankylosis of left scapulohumeral articulation. CONCLUSION OF LAW The criteria for a rating in excess of 20 percent for the Veteran's service-connected left shoulder disability have not been met. 38 U.S.C.A. §§ 1155, 5103(a), 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 4.7, 4.40, 4.45, 4.71a, Diagnostic Codes 5200, 5201, 5202 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION I. Increased Rating The Veteran asserts that he is entitled to a rating in excess of 20 percent for his service-connected left shoulder disability. He argues that he has such symptoms as pain, weakness, and difficulty moving his shoulder, including overhead motion, and swinging a bat. See Veteran's appeal (VA Form 9), received in October 2009. As for the history of the shoulder disability in issue, see 38 C.F.R. § 4.1 (2012), the Veteran's service treatment reports show that, he was profiled for recurrent anterior dislocations of the left shoulder, and that he underwent a modified Bristow procedure in April 1983. He was afforded physical therapy thereafter, with a July 1983 report noting a lack of initiative in the rehabilitation process. The Veteran's separation examination report, dated in July 1984, is difficult to read, but appears to note a crescent-shaped scar at the left shoulder, and a history of recurrent left shoulder dislocations with surgical repair. As for the post-service medical evidence, a June 1992 VA X-ray report contained an impression of "status post surgery, otherwise negative." An associated VA examination report noted that there was no arthritis, but that was a large screw at the anterior glenoid. The examiner recommended that the screw be removed. In June 2001, he complained of pain following a dislocation of his left shoulder. A September 2002 report notes a likely AC (acromioclavicular) dislocation; on X-ray he was found to have a Grade 2 AC joint dislocation/separation. In October 1984, the RO granted service connection for postoperative Bristow repair for recurrent dislocation, left shoulder, evaluated as noncompensable (0 percent disabling). The Veteran subsequently filed several claims for an increased rating, and the RO granted the claims, to the extent that it increased his rating to 10 percent in March 1993, and to 20 percent in October 2002. In March 2006, the RO denied a claim for a rating in excess of 20 percent. For each of the RO's rating decisions, there was no appeal, and the RO decisions became final. See 38 U.S.C.A. § 7105(c) (West 2002 & Supp. 2012). In December 2008, the Veteran filed his claim for an increased rating. In June 2009, the RO denied the claim. The Veteran has appealed. Disability evaluations are determined by comparing the veteran's symptomatology with the criteria set forth in the VA's Schedule for Ratings Disabilities. 38 U.S.C.A. § 1155; 38 C.F.R. § Part 4. The RO has evaluated the Veteran's right shoulder disability under 38 C.F.R. § 4.71a, Diagnostic Codes (DCs) 5203-5201. See 38 C.F.R. § 4.27 (2012) (hyphenated diagnostic codes are used when a rating under one diagnostic code requires use of an additional diagnostic code to identify the basis for the evaluation assigned; the additional code is shown after the hyphen). This hyphenated diagnostic code may be read to indicate that impairment of the clavicle or scapula is the service-connected disorder, and it is rated as if the residual condition is limitation of arm motion under 38 C.F.R. § 4.71a, DC 5201. The Veteran's left hand is shown to be his non-dominant hand. See e.g., April 2009 examination report. Under 38 C.F.R. § 4.71a, DC 5200, a 30 percent evaluation is warranted for: scapulohumeral articulation, ankylosis of: Intermediate between favorable and unfavorable (minor extremity). Under 38 C.F.R. § 4.71a, DC 5201, a 30 percent evaluation is warranted for: Arm, limitation of motion of: To 25 degrees from side (minor extremity). Under 38 C.F.R. § 4.71a, DC 5202, a 40 percent evaluation is warranted for: humerus, other impairment of: fibrous union of (minor extremity). The standardized description of joint measurements is provided in Plate I under 38 C.F.R. § 4.71. These descriptions indicate that normal forward flexion of the shoulder is from 0 to 180 degrees, normal abduction of the shoulder is from 0 to 180 degrees, normal external rotation is from 0 to 90 degrees, and normal internal rotation is from 0 to 90 degrees. The medical evidence dated during the time period in issue consists of VA progress notes, and an examination report, dated in April 2009. VA progress notes contain a number of findings, some of which do not provide specific degrees of motion. Specifically, they show that in March 2008, the Veteran's range of motion was noted to be "intact." A May 2008 report notes a "fairly good" range of motion in the shoulder, "except [at] elevation over 100 degrees." A December 2008 report notes "fairly good joint mobility with some crepitation." Another December 2008 report notes abduction to 100 degrees. An examination report, from R.S., M.D., dated in April 2009, shows that the Veteran complained of constant severe left arm and left shoulder pain, with increased symptoms about 10 times a day during flare-ups, lasting 30 minutes. On examination, the left shoulder had flexion to 90 degrees, abduction to 90 degrees, and external and internal rotation to 60 degrees (each). The Board notes that in February 2012, the Veteran was scheduled for an examination. However, he failed to report. The Board finds that the criteria for a rating in excess of 20 percent under DC 5201 have not been met. The aforementioned ranges of motion do not show that motion in his left shoulder is limited to 25 degrees from his side. In summary, he has not shown that his flexion or abduction in the left arm more nearly approximates to 25 degrees so as to warrant a rating in excess of 20 percent. Accordingly, the Board finds that the preponderance of the evidence is against the claim, and that the criteria for a rating in excess of 20 percent under DC 5201 have not been met. A higher evaluation is not warranted under any other diagnostic code. Schafrath v. Derwinski, 1 Vet. App. 589, 592 (1995). In this case, there is no evidence to show ankylosis of scapulohumeral articulation, or fibrous union of the humerus. The criteria for a rating in excess of 20 percent under DCs 5200 and 5202 are therefore not met. Finally, the Board has also considered the functional impairment which can be attributed to pain and weakness. DeLuca v. Brown, 8 Vet. App. 202 (1995); 38 C.F.R. §§ 4.40, 4.45, 4.59 (2012); see also VAGCOPPREC 9-98, 63 Fed. Reg. 56704 (1998). The Board further recognizes that the Court recently determined that pain alone does not constitute functional loss under VA regulations that evaluate disabilities based upon loss of motion. Mitchell v. Shinseki, 25 Vet. App. 32, 38 (2011). An evaluation in excess of 20 percent is not warranted on the basis of additional functional loss due to pain and weakness. VA progress notes show that despite the Veteran's complaints of severe, constant pain, he has indicated that he is extremely active. Specifically, he has complained of left shoulder symptoms incurred while playing frisbee (March 2008), while playing football (April and December of 2008), and while playing baseball (May 2008). He has been found to have 5/5 strength at the deltoid (in March 2008). He has been noted to have minimal pain on motion (December 2008). A March 2008 VA X-ray report contains an impression of "no evidence of acute left shoulder osseous injury or degenerative disease." The April 2009 examination report notes that the range of motion in the shoulders was not additionally limited secondary to pain, fatigue, weakness, lack of endurance, or incoordination, to include after repetitive use. The diagnosis was status post Bristow repair for recurrent dislocation of the left shoulder, and it notes a decreased range of motion. In summary, when the ranges of motion in the Veteran's left shoulder are considered together with the evidence (or lack thereof) of such symptoms as weakness, laxity, incoordination, atrophy, or other impairment, the Board finds that the record does not show that the Veteran's functional loss due to his service-connected left shoulder disability impairs him to such a degree that he has the equivalent of the criteria as required for a rating in excess of 20 percent for the right shoulder. 38 C.F.R. § 4.71a; DeLuca. The Board has considered the doctrine of reasonable doubt. However, the preponderance of the evidence is against the claim, and the doctrine is not for application. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Accordingly, the claim for an increased rating for a right shoulder disability must be denied. Consideration has also been given to whether the schedular evaluation is inadequate, thus requiring that the RO refer a claim to the Under Secretary for Benefits or the Director, Compensation and Pension Service, for consideration of "an extra-schedular evaluation commensurate with the average earning capacity impairment due exclusively to the service-connected disability or disabilities." 38 C.F.R. § 3.321(b)(1) (2012); Barringer v. Peake, 22 Vet. App. 242, 243-44 (2008) (noting that the issue of an extraschedular rating is a component of a claim for an increased rating and referral for consideration must be addressed either when raised by the veteran or reasonably raised by the record). In determining whether an extra-schedular evaluation is for consideration, the Board must first consider whether there is an exceptional or unusual disability picture, which occurs where the diagnostic criteria do not reasonably describe or contemplate the severity and symptomatology of a Veteran's service-connected disability. See Thun v. Peake, 22 Vet. App. 111, 115 (2008). If there is an exceptional or unusual disability picture, the Board must next consider whether the disability picture exhibits other factors such as marked interference with employment and frequent periods of hospitalization. Thun, 22 Vet. App. at 115-16. When those two elements are met, the appeal must be referred for consideration of the assignment of an extra-schedular rating. Otherwise, the schedular evaluation is adequate, and referral is not required. 38 C.F.R. § 3.321(b)(1) (2012); Thun, 22 Vet. App. at 116. The schedular evaluation in this case is not inadequate. When comparing the Veteran's disability picture with the symptoms contemplated by the Rating Schedule, the Board finds that manifestations of the service-connected left shoulder disability are congruent with the disability picture represented by the disability rating assigned herein. The criteria for the 20 percent rating assigned herein more than reasonably describes the Veteran's disability level and symptomatology. The Veteran is shown to have some decreased motion and pain in his left shoulder. As the Board finds that the Veteran's disability picture is contemplated by the rating schedule, the inquiry ends and the Board need not consider whether the disability picture exhibits other related factors such as marked interference with employment and frequent periods of hospitalization. Accordingly, referral for consideration of an extra-schedular rating is not warranted. In reaching this decision, the Board has considered the written testimony of the Veteran. The Board points out that, although a lay person is competent to testify only as to observable symptoms, see Falzone v. Brown, 8 Vet. App. 398, 403 (1995), a layperson is not, however, competent to provide evidence that the observable symptoms are manifestations of chronic pathology or diagnosed disability, unless such a relationship is one to which a lay person's observation is competent. See Savage v. Gober, 10 Vet. App. 488, 495-97 (1997). In this case, the Board has determined that the medical evidence is more probative of the issue, and that it outweighs the lay statements. Accordingly, the Veteran's claim must be denied. Finally, although the Veteran has submitted evidence of medical disability, and made a claim for the highest rating possible, he has not submitted evidence of unemployability, or claimed to be unemployable. He has reported that he is employed as a furniture refinisher. See VA progress note, dated in December 2008. Therefore, 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). II. Duties to Notify and Assist The Board is required to ensure that the VA's "duty to notify" and "duty to assist" obligations have been satisfied. See 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159 (2012). The notification obligation in this case was accomplished by way of a letter from the RO to the Veteran dated in March 2009. See Quartuccio v. Principi, 16 Vet. App. 183 (2002); Pelegrini v. Principi, 18 Vet. App. 112 (2004); Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F. 3d 1328 (Fed. Cir. 2006); Dingess v. Nicholson, 19 Vet. App. 473 (2006). The RO also provided assistance to the Veteran as required under 38 U.S.C.A. § 5103A and 38 C.F.R. § 3.159(c), as indicated under the facts and circumstances in this case. The Veteran's service treatment reports, and VA medical records, have been obtained, and the Veteran has been afforded an examination. In June 2012, the Veteran was scheduled for a hearing, however, he failed to report. In February 2012, the Veteran was scheduled for an examination. However, he failed to report. No argument has been presented that the Veteran failed to receive notice of his examination. Furthermore, in a March 2012 supplemental statement of the case (SSOC), the Veteran was notified of his failure to appear for his March 2012 examination. Therefore, any failure to provide him with such notice would not have been prejudicial to him, because the March 2012 SSOC afforded him the opportunity to protest the RO's decision. See e.g., Jones v. West, 12 Vet. App. 98, 101 (1998) (any purported failure of the RO to notify the veteran of an examination, even if true, was harmless error in view of the issuance of a follow-up letter which afforded him the opportunity to protest the action). Finally, in written argument, dated in April 2012 and May 2013, the Veteran's representative failed to request any further development. The Veteran and his representative have not made the RO or the Board aware of any additional evidence that needs to be obtained in order to fairly decide this appeal, and have not argued that any error or deficiency in the accomplishment of the duty to assist has prejudiced him in the adjudication of his appeal. See Mayfield, 19 Vet. App. at 103. In further regard to the March 2012 SSOC, the Board notes that RO appeared to have denied a higher rating, based at least in part, on the Veteran's failure to report to the scheduled 2012 examinations under the provisions of 38 C.F.R. § 3.655. Under the circumstances of this case considerations on the merits, as undertaken above, is necessary. Summary denial under 38 C.F.R. § 3.655(b) is inappropriate because during the pendancy of this appeal the Veteran did report to his initial April 2009 VA examination. Moreover, the provisions under 38 C.F.R. § 3.655(c) (running award) is not applicable because the proper notice required to the Veteran under that regulation was not provided. Based on the foregoing, the Board finds that the Veteran has not been prejudiced by a failure of VA in its duty to assist, and that any violation of the duty to assist could be no more than harmless error. See Conway v. Principi, 353 F.3d 1369 (Fed. Cir. 2004). ORDER The appeal is denied. ____________________________________________ JONATHAN A. KRAMER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs