Citation Nr: 1319655 Decision Date: 06/18/13 Archive Date: 06/27/13 DOCKET NO. 08-28 111 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Boise, Idaho THE ISSUES 1. Whether the 30 percent schedular rating for right shoulder impingement syndrome was properly reduced to 0 percent, effective June 1, 2007. 2. Entitlement to an evaluation in excess of 20 percent for right shoulder impingement syndrome. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD Bridgid D. Cleary, Counsel INTRODUCTION The Veteran served on active duty from August 2000 to August 2002, from February 2003 to May 2004, and from January 2006 to April 2006, with additional service in the National Guard. The record also indicates that the Veteran was redeployed in May 2009, during the pendency of this appeal, but the specific end date of that service has not yet been ascertained. This matter has come before the Board of Veterans' Appeals (Board) on appeal from a March 2007 rating decision of the Boise, Idaho, Department of Veterans Affairs (VA) Regional Office (RO), which reduced the evaluation of the Veteran's right shoulder impingement disability from 30 percent to noncompensable (0 percent), effective June 1, 2007. The Veteran filed a Notice of Disagreement with that decision in March 2008. As noted in the June 2010 remand, the appeal of this reduction decision was essentially treated as a claim for an increased rating. See July 2008 Statement of the Case; see also Peyton v. Derwinski, 1 Vet. App. 292 (1991); Dofflemyer v. Derwinski, 2 Vet. App. 277, 280 (1992) (generally, a claim stemming from a rating reduction action is a claim for restoration of the prior rating, not a claim for an increased rating). Ultimately, the subsequent evaluation was increased to 20 percent, effective June 1, 2007, in a July 2008 rating decision. The Veteran likewise appealed that rating decision. As a result, the issue on appeal were clarified in the June 2010 remand, as reflected on the title page. This remand also instructed the Appeals Management Center (AMC) to further develop both claims. In addition to the paper claims file, there is a Virtual VA paperless claims file associated with the Veteran's claim. A review of the documents in such file reveals that they are either duplicative of the evidence in the paper claims file or are irrelevant to the issue on appeal. The issue of entitlement to an evaluation in excess of 20 percent for right shoulder impingement syndrome is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. A 30 percent evaluation for the Veteran's right shoulder disability had been in effect for less than five years. 2. The evaluation assigned the right shoulder disability was reduced in a March 2007 rating decision to 0 percent, effective June 1, 2007. 3. At the time of the reduction, the symptoms associated with the right shoulder impingement showed improvement in the Veteran's range of motion and this improvement reflected an improvement in the Veteran's ability to function under ordinary conditions of life and work. CONCLUSION OF LAW The discontinuance of the 30 percent evaluation for the Veteran's for right shoulder impingement syndrome to 0 percent, effective June 1, 2007, was proper. 38 U.S.C.A. § 1155, 5103A, 5107(b) (West 2002); 38 C.F.R. § 3.105(e), 3.344, 4.71a, Diagnostic Code 5201 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012). As for the reduction at issue in this portion of the appeal, inasmuch as the reduction was initiated by VA, and not by the Veteran, it is not an "application" to which the VCAA notification provisions apply. The Board notes that reductions are subject to a separate set of regulatory due process provisions governing the notice to be supplied, and that those regulations were observed by VA in this case. The Veteran received notice of the proposed reduction, along with the reasons for the reduction and notice of his right to a predetermination hearing, and was allowed the appropriate time to respond. The RO implemented the reduction in accordance with the time periods specified in 38 C.F.R. § 3.105. The Board finds that all due process notification requirements applicable to the reduction issue have been complied with by VA. VA has a duty to assist the Veteran. In this case, VA provided him with an examination, and also obtained those outstanding records either mentioned by the Veteran or indicated by the record. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the appellant. See Bernard v. Brown, 4 Vet. App. 384 (1993). In compliance with the Board's June 2010 remand, VA issued a May 2011 Statement of the Case with regard to the reduction issue. Thus VA has complied with the June 2010 remand instructions with regard to this issue. Stegall v. West, 11 Vet. App. 268 (1998). For the above reasons, no further notice or assistance to the appellant is required to fulfill VA's duty to assist the appellant in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (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). Reduction The Veteran was originally granted service connection for right shoulder impingement syndrome in a November 2002 rating decision. At that time, this disability was evaluated as 30 percent disabling based on limitation of motion, effective August 24, 2002. The November 2002 VA examination noted loss of motion from the onset of pain at 100 degrees flexion, 70 degrees abduction, and 60 degrees external rotation. This evaluation was continued in an August 2004 rating decision. The Veteran did not appeal either of these decision and no new and material evidence was received within one year of their issuance. Thus, these decision are final. See 38 C.F.R. §§ 3.156(b), 20.1103. As noted in the introduction, the Veteran has periods of active duty service since the original grant of service connection in November 2002. During these periods, his disability payments were halted. In May 2006, the Veteran alerted VA that he was no longer on active duty. Pursuant to a July 2006 letter, VA benefits were resumed. In a September 2006 deferred rating decision, the RO noted that the Veteran's service treatment records indicated that his shoulder disability may have improved. An examination was ordered and the procedures for reducing the Veteran's evaluation for right shoulder impingement syndrome were initiated. The RO satisfied all the necessary procedural guidelines for a reduction in the Veteran's evaluation for his service-connected right shoulder impingement syndrome. Reduction in the evaluation of a service-connected disability is allowed when warranted by the evidence and subject to certain procedural guidelines: First, there must be a rating action proposing the reduction; then the Veteran must be given 60 days to submit additional evidence and to request a predetermination hearing. 38 C.F.R. § 3.105(e). In a November 2006 rating decision, the RO proposed a reduction in the Veteran's disability evaluation from 30 percent to 0 percent. The reasons for this reduction (that there was indicia of significant improvement including full range of motion) was explained in that rating decision. The Veteran was provided notice of the proposed reduction in a December 2006 letter that was mailed to the Veteran's address of record. See 38 C.F.R. § 3.105(e)(setting forth the notice requirements for reduction in the evaluation of a service-connected disability). This letter notified the Veteran of the 60-days time frame within which he could submit additional evidence and/or request a predetermination hearing. Thus, the necessary procedural guidelines for a reduction were satisfied. The Veteran did not request a hearing or submit additional evidence with 60 days of that letter. Because no hearing was held, the final determination was made based on the evidence of record. See 38 C.F.R. § 3.105(e), (i)(2). In a March 2007 rating decision, the RO reduced the Veteran's disability evaluation from 30 percent to 0 percent, effective June 1, 2007. Thus, the RO correctly followed the procedural guidelines for a reduction of the Veteran's right shoulder impingement disability by properly notifying him of the action and allowing him 60 days to submit evidence on his behalf. The prior 30 percent disability rating was in effect for less than five years. As such, it was not entitled to the special regulatory protections of 38 C.F.R. § 3.344(a), (b), and could be reduced based upon a showing that the disability had improved. 38 C.F.R. § 3.344(c); see also Brown v. Brown, 5 Vet. App. 413, 420-21 (1993)(holding that a reduction requires determinations, based on a preponderance of the evidence, that an improvement has occurred and that such improvement reflects an improvement in ability to function under ordinary conditions of life and work). Ratings for disease subject to temporary or episodic improvement will not be reduced on the basis of any one examination, except in those instances where the evidence of record clearly warrants the conclusion that sustained improvement has been demonstrated. 38 C.F.R. § 3.344(a). Disability ratings are assigned in accordance with the VA's Schedule for Rating Disabilities and are intended to represent the average impairment of earning capacity resulting from disability. 38 U.S.C.A. § 1155. Limitation of motion of the arm is rated under Diagnostic Code 5201. 38 C.F.R. § 4.71a. The record indicates that the Veteran is right-hand dominant. See e.g., February 2000 Report of Medical History. As such, this disability is evaluated under the criteria for the major shoulder. Under Diagnostic Code 5201, limitation of motion of the arm at the shoulder level is rated 20 percent for the major shoulder. 38 C.F.R. § 4.71a. Limitation of motion of the arm midway between the side and shoulder level is rated as 30 percent for the major shoulder. 38 C.F.R. § 4.71a, Diagnostic Code 5201. Limitation of motion of the arm to 25 degrees from the side is rated as 40 percent for the major shoulder. Id. The record shows that the Veteran was redeployed in January 2006. Prior to redeployment, the Veteran underwent an MRI for his right shoulder. The results of that MRI were found to be essentially normal. In March 2005, a VA physician found that the Veteran was ready to return to duty and his shoulder was feeling better. In his September 2005 pre-deployment health assessment, the Veteran reported that his health was very good. In his October 2005 post-deployment health assessment, the Veteran denied current symptoms of swollen, stiff, or painful joints or muscle aches. VA outpatient treatment records following his return from deployment note the Veteran's complaints of right shoulder pain, particularly when he is very physically active. See May 2006 VA Outpatient Treatment Record. He was instructed to undergo physical therapy. The Veteran underwent a VA examination in October 2006. At that time, he reported that his right shoulder pain had worsened since his original injury in 2002. He stated that his right shoulder pain was always there, but rated the pain as 0/10. He reported flare-ups three times per week, resulting in pain of 5/10 and some loss of strength, but not loss of range of motion. In response to these flare-ups, he would take a 30 minute to an hour break before returning to work. He was working in industrial painting and reportedly took no sick days. These flare-ups were precipitated mainly by shoveling, overhead work, and repetitive motion. There were no limits to his usual work and no restrictions in housework or yard work. He did not take medication and reported no surgical intervention for this disability. The Veteran stated that he had been able to deploy earlier that year because he was able to perform pushups as required to pass his physical training requirements. The Veteran had full range of motion in his shoulder despite pain at the end of the flexion, abduction, and external rotation ranges and from 160 degrees to 140 degrees and from 90 degrees to 80 degrees of abduction returning to his side. Resistance to abduction resulted in some decrease in strength. There was no additional incoordination, weakness, increase in fatigability, loss of motion, or impaired endurance with repetitive testing. Radiological evidence was reviewed and found to be essentially normal. The examiner noted that the Veteran did not have functional loss at the time of this examination. In this case, the evidence of record at the time of the reduction clearly showed improvement in the Veteran's disability symptoms that were reasonably certain to be maintained under the ordinary conditions of life. The Veteran himself and the VA examination indicated that he had regained full range of motion in his right shoulder, although pain persisted. The Veteran's range of motion in every excursion of movement had improved by the time of the reduction, even when pain and weakness were considered. In addition, the evidence did not otherwise show limitation of motion of the arm either midway between the side and shoulder level or at the shoulder level. The Veteran was able to perform the pushups and other physical training requirements for redeployment and to successfully perform his duties during deployment. The Veteran reported regular flare-ups due to extensive physical activity, including while working as an industrial painter. Nevertheless, the Veteran was generally able to perform these occupational tasks and no functional impairment to housework or yard work was shown. Thus, the record shows sustained improvement from before the Veteran's redeployment to the date of the reduction, June 1, 2007, which reflected an improvement in the Veteran's ability to function under ordinary conditions of life and work. In sum, the reduction of the Veteran's disability rating for right shoulder impingement from 30 to 0 percent was proper. The Board has considered the applicability of the benefit of the doubt rule. As the preponderance of the evidence shows the reduction was proper, the claim is denied. See 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990). ORDER The reduction of the Veteran's disability rating for right shoulder impingement from 30 to 0 percent was proper, and entitlement to restoration of the 30 percent disability rating is denied. REMAND Increased Rating Claim A remand by the Board confers upon the claimant, as a matter of law, the right to compliance with the remand order. Stegall, 11 Vet. App. 268. Where the remand orders of the Board were not complied with, the Board itself errs in failing to ensure compliance. In such situations, the Board must again remand the case for compliance with the remand orders. In its June 2010 remand instructions, the Board requested that the Veteran be provided VCAA-compliant notice with regard to the increased rating claim on appeal. Contrary to the Veteran's representative's May 2013 arguments, the VCAA requires only generic notice as to the type of evidence needed to substantiate a claim for increase, namely, evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on employment, as well as general notice regarding how disability ratings and effective dates are assigned. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009). Regardless, the record contains no notice whatsoever, despite this request. The Board acknowledges the difficulty the RO faced in trying to located the Veteran previously, noting the Veteran's redeployment for a three-year term that began approximately May 2009. As that three-year period should have expired, the Board hopes that the Veteran will be easier to locate. However, notice sent to the Veteran's last address of record will be sufficient to comply with this remand. Accordingly, the case is REMANDED for the following action: 1. Provide the Veteran with appropriate notice regarding his claim seeking an increased rating for his right shoulder impingement syndrome disability. See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159; Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). This notice should be mailed to the Veteran's last known address of record. 2. Thereafter, the RO/AMC should readjudicate the claim in light of any additional evidence obtained. If the benefit sought on appeal remains denied, the Veteran and his representative should be provided a supplemental statement of the case. An appropriate period of time should then be allowed for a response, before the record is returned to the Board for further review. 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). ____________________________________________ Thomas H. O'Shay Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs