Citation Nr: 1319969 Decision Date: 06/20/13 Archive Date: 07/02/13 DOCKET NO. 05-06 673A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Phoenix, Arizona THE ISSUE Entitlement to an initial rating greater than 20 percent for a right shoulder disability, to include impingement syndrome with adhesive capsulitis and arthritis. REPRESENTATION Appellant represented by: Florida Department of Veterans Affairs WITNESSES AT HEARING ON APPEAL Appellant and a friend ATTORNEY FOR THE BOARD S. M. Marcus, Counsel INTRODUCTION The Veteran served on active duty from December 1974 to December 1978. This case came before the Board of Veterans' Appeals (Board) on appeal from rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Phoenix, Arizona. In January 2008, the Veteran and a friend testified at a Travel Board hearing before the undersigned Veterans Law Judge. A transcript of the proceeding is of record. When this issue was most recently before the Board in February 2013, it was remanded for further action by the originating agency. The requested action has been completed, and the case has been returned to the Board for further appellate action. FINDINGS OF FACT 1. The Veteran is left-handed dominant. 2. For the entire period of the claim, the Veteran's right shoulder disability has been manifested by limitation of motion that more nearly approximates limitation to 25 degrees from the side than midway between the side and shoulder level. CONCLUSION OF LAW The criteria for entitlement to an initial rating of 30 percent, but no higher, for a right shoulder disability, to include impingement syndrome with adhesive capsulitis and arthritis, have been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.40, 4.45, 4.69, 4.71a, Diagnostic Code (DC) 5201 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A , and the pertinent implementing regulation, codified at 38 C.F.R. § 3.159, provide that VA will assist a claimant in obtaining evidence necessary to substantiate a claim but is not required to provide assistance to a claimant if there is no reasonable possibility that such assistance would aid in substantiating the claim. They also require VA to notify the claimant and the claimant's representative, if any, of any information, and any medical or lay evidence, not previously provided to the Secretary that is necessary to substantiate the claim. As part of the notice, VA is to specifically inform the claimant and the claimant's representative, if any, of which portion, if any, of the evidence is to be provided by the claimant and which part, if any, VA will attempt to obtain on behalf of the claimant. The Board also notes the United States Court of Appeals for Veterans Claims (Court) has held that the plain language of 38 U.S.C.A. § 5103(a), requires that notice to a claimant pursuant to the VCAA be provided 'at the time' that or 'immediately after' VA receives a complete or substantially complete application for VA-administered benefits. Pelegrini v. Principi, 18 Vet. App. 112, 119 (2004). The timing requirement enunciated in Pelegrini applies equally to the initial-disability-rating and effective-date elements of a service-connection claim. Dingess v. Nicholson, 19 Vet. App. 473 (2006). The record reflects that the Veteran was provided all required notice in a letter mailed in May 2008. While this was provided after the initial adjudication of the claim, the Board finds that there is no prejudice to the Veteran in proceeding with the issuance of a final decision. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993). In this regard, the Board notes that following the provision of the required notice and the receipt of all pertinent evidence, the originating agency readjudicated the claim. There is no indication or reason to believe that the ultimate decision of the originating agency on the merits of the claim would have been different had complete VCAA notice been provided at an earlier time. See Overton v. Nicholson, 20 Vet. App. 427, 437 (2006) (A timing error may be cured by a new VCAA notification followed by a readjudication of the claim). The Board also concludes VA's duty to assist has been satisfied. The Veteran's service treatment records and VA medical records have been obtained. The RO provided the Veteran appropriate VA examinations in 2004 and 2005. The reports of these examinations are adequate because they are based on a thorough examination, a description of the Veteran's pertinent medical history, a complete review of the Veteran's pertinent history and appropriate diagnostic tests. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007); Stefl v. Nicholson, 21 Vet. App. 120, 124-25 (2007) (holding an examination is considered adequate when it is based on consideration of the appellant's prior medical history and examinations and also describes the disability in sufficient detail so that the Board's evaluation of the disability will be a fully informed one). Thereafter, the Veteran testified in 2008 that his right shoulder had worsened. VA outpatient treatment records also indicate the possibility of a worsened disability. Pursuant to the Board's remand directive, the Veteran was scheduled for VA examinations in September 2008 and May 2012. He failed to appear to either of these examinations despite notification being sent to his last known address. He has never provided a reason for his failure to report to the examinations, nor has he requested that the examinations be rescheduled. The Board emphasizes that the duty to assist is not a one-way street. If a veteran wishes to help in developing his claim, he cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining putative evidence. See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). Consequently, the Board will decide the claim without the benefit of a more current VA examination. Neither the Veteran nor his representative has identified any other evidence that could be obtained to substantiate the claim. The Board is also unaware of any such evidence. Therefore, the Board is satisfied that VA has complied with its duty to assist the Veteran in the development of the facts pertinent to this claim. Legal Criteria Disability evaluations are determined by the application of VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4 (2012). The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during active service and their residual conditions in civil occupations. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Traumatic arthritis is rated as degenerative arthritis. 38 C.F.R. § 4.71a, Diagnostic Code 5010. Degenerative arthritis established by X-ray findings will be rated on the basis of limitation of motion under the appropriate diagnostic code(s) for the specific joint(s) involved. 38 C.F.R. § 4.71a, Diagnostic Code 5003. A 20 percent rating is warranted for limitation of the motion of the major or minor arm at the shoulder level or limitation of motion of the minor arm to midway between the side and shoulder level. A 30 percent rating is authorized for limitation of motion of the major arm to midway between the side and shoulder level or for limitation of motion of the minor arm to 25 degrees from the side. A 40 percent rating is warranted for limitation of motion of the major arm to 25 degrees from the side. 38 C.F.R. § 4.71a, Diagnostic Code 5201. In determining the degree of limitation of motion, the provisions of 38 C.F.R. § 4.40 concerning lack of normal endurance, functional loss due to pain, and pain on use and during flare-ups; the provisions of 38 C.F.R. § 4.45 concerning weakened movement, excess fatigability, and incoordination; and the provisions of 38 C.F.R. § 4.10 concerning the effects of the disability on the veteran's ordinary activity are for consideration. See DeLuca v. Brown, 8 Vet. App. 202 (1995). Handedness for the purpose of a dominant rating will be determined by the evidence of record, or by testing on VA examination. Only one hand shall be considered dominant. The injured hand, or the most severely injured hand, of an ambidextrous individual will be considered the dominant hand for rating purposes. 38 C.F.R. § 4.69. 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. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary. The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107 (West 2002); 38 C.F.R. §§ 3.102, 4.3 (2012); see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. Factual Background and Analysis In accordance with 38 C.F.R. §§ 4.1, 4.2, 4.41, 4.42 (2012) and Schafrath v. Derwinski, 1 Vet. App. 589 (1991), the Board has reviewed all evidence of record pertaining to the history of the service-connected disability. The Board has found nothing in the historical record which would lead to the conclusion that the current evidence of record is not adequate for rating purposes. Moreover, the Board is of the opinion that this case presents no evidentiary considerations which would warrant an exposition of remote clinical histories and findings pertaining to this disability. Aside from claiming a more overall severe disability, the Veteran first and foremost disagrees with the classification of his right arm as the dominant arm. That is, he contends that he is ambidextrous and, therefore, his right shoulder disability should be rated as the dominant side because it is the more severely injured of the two sides. The Veteran testified before the Board in January 2008 that although he only writes with his left hand, he uses both sides, and in many cases his right side predominantly, for almost all other tasks such as driving, cleaning, dressing, carrying, etc. He always classified himself as a left-handed person because that is the hand with which he writes, but he uses his right side for almost everything else. Therefore, he feels his right shoulder is a bigger hindrance to his day to day activities than his left shoulder. The service treatment records indicate the Veteran is left handed. (See, e.g. the record of the November 1974 entrance examination). On past examinations, the Veteran has always indicated he is left-handed. See VA examination reports dated in March 2004 and December 2005. In March 2004, the examiner confusingly indicated the Veteran is "left-handed and ambidextrous." The December 2005 VA examiner clarified saying the Veteran is left-handed and not ambidextrous. In fact, at that time, the examiner noted that the Veteran is not claiming to be ambidextrous nor is he claiming ability to write with his right hand. This was part of the 2005 VA examiner's medical findings. Similarly, during an August 2006 independent medical examination, the Veteran reported he is "ambidextrous" specifying that he uses his left hand for eating and writing and his right hand for all other activities. The examiner noted the Veteran's statements, but did not conduct any specific testing to confirm the Veteran's dominant hand. The Board has considered the Veteran's testimony of being able to do many things with both hands and, in fact, using his right side more often for daily activities. The Veteran also concedes, however, that he only writes with his left hand and has always considered himself a left-handed person. Based on the evidence of record, and the 2005 VA examiner's medical testing/discussion, the Board concludes the Veteran is left-hand dominant. During the pendency of this appeal, the Veteran only underwent two VA examinations for compensation purposes. One was in 2004 and the other was in 2005. In March 2004, the Veteran underwent a general VA examination where the examiner diagnosed the Veteran with severe impingement syndrome. Forward flexion was limited to 35 degrees and abduction was limited to 45 degrees with an additional five degree loss of motion due to pain, flare-ups, and on repetitive motion. An MRI at that time also revealed tendinosis. The Veteran was afforded another VA examination in December 2005. He complained of experiencing pain approximately two to three times a week, and reported receiving no ongoing treatment. At that time, the Veteran had full strength, but forward flexion was limited to 70 degrees and abduction was limited to 30 degrees. Pain was noted on motion, but no further change of motion was found on repetition. The Veteran was diagnosed with right shoulder tendinosis with supraspinatus tendon. The examiner found the Veteran's functional impairment was at least moderate. The Veteran underwent an independent medical examination in August 2006. The examiner thoroughly reviewed the Veteran's medical history. He noted that the Veteran sustained injuries of both shoulders during in service as a result of lifting and carrying heavy radio equipment, and subsequent in-service injuries due to a 1977 football injury and a 1978 motor vehicle accident. The private physician noted the Veteran's claim that he did not receive much in-service treatment and his pain persisted immediately after service for years. At the time of the 2006 examination, the Veteran claimed his right shoulder was worse than his left and he had no post-service trauma, merely working in sedentary, managerial-type jobs. The August 2006 private physician also noted the Veteran's complaints of increased symptomatology as a result of activities of daily living requiring pushing, pulling, and overhead activities. In fact, the physician indicated the Veteran can only do such activities up to the level of horizontal and, thus, has problems when dressing and washing his hair. On physical examination, the Veteran's abduction and forward flexion were limited to 90 degrees, with pain beginning at 35 degrees. There was generalized tenderness over the anterior aspect of the right shoulder with slight crepitation. The examiner further observed the Veteran exhibited difficulties while taking off his shirt for purposes of the examination. The examiner diagnosed the Veteran with supraspinatus and chronic acromioclavicular joint derangement of the right shoulder. Although the Veteran had some amount of range of motion of his right shoulder, the private physician opined that his right shoulder should be rated under Diagnostic Code (DC) 5200 (for ankylosis, or "frozen" scapulohumeral articulation) specifically "intermediate between favorable and unfavorable." All other medical evidence pertaining to the Veteran's right shoulder is merely found in VA outpatient treatment records. VA outpatient treatment records from 2004 to 2012 indicate ongoing complaints for right shoulder pain, which limit his activities of daily living (ADLs). In August 2004, the VA physician noted the Veteran's limitations in dressing himself. The Veteran refused any motion of his right shoulder with significant guarding. At that time, the VA physician noted the Veteran's right shoulder was hot to touch, red with local edema. Even so, range of motion testing indicated 0 to 90 degrees motion (to shoulder level) with 4/5 strength. The VA physician further noted the "possibility of non-organic issues contributing to pain." To that end, the Board finds noteworthy that the Veteran is currently service-connected for posttraumatic stress disorder (PTSD), rated 100 percent disabling, with psychotic tendencies. The Veteran also has a history of substance abuse, to include addiction to pain medication. These factors are noted by VA physicians as at least "possibly" related to his right shoulder subjectively reported symptoms of pain. VA outpatient treatment records from approximately 2006 further note a diagnosis of right shoulder arthritis, confirmed by X-ray. In approximately June 2009 the Veteran was in a traffic accident. In 2009, VA outpatient treatment records note an increase in right shoulder pain due to the acute injury and a recommendation for surgery. The Veteran refused surgery despite complaining that his right shoulder pain keeps him awake at night. Instead, the Veteran requested additional medications to help him sleep. VA outpatient treatment records from 2009 to 2012 indicate ongoing use of pain medication for his right shoulder and a decrease in range of motion and strength. In March 2011, the VA physician noted the Veteran would not in general move his right shoulder, claiming he could not tolerate the pain. The physician noted the sterno/clavicle areas had atrophied muscles. Surgery was again offered, but refused. The March 2011 VA physician further noted the Veteran's ability to conduct ADL had significantly deteriorated as has the Veteran's range of motion and motor strength. The VA physician observed the Veteran struggling to put sandals on his feet. In September 2012, the VA physician noted the Veteran's right shoulder abduction was limited to 20 degrees with pain. He was again told he needed surgery, specifically a shoulder placement, and the Veteran once again refused surgery. In short, throughout the pendency of this claim, the Veteran's right shoulder disability has been manifested by chronic pain, limited motion, some muscle weakness, and a gradual decrease in his ability to perform ADLs. It is unclear to what extent the reported ranges of motion are actually attributable to his organic disability versus "non-organic issues" such as his psychiatric disability or substance abuse history. The 2005 VA examiner noted the presence of moderate functional impairment with limitation of flexion no worse than 70 degrees and limitation of abduction no worse than 30 degrees. The August 2006 private physician noted limitation of flexion and abduction to 90 degrees, but with pain beginning at 35 degrees. Range of motion findings have differed from 20 degrees abduction and/or forward flexion to 125 degrees abduction and/or forward flexion. In all cases, however, VA physicians and examiners indicate further functional limitations causing the Veteran to guard almost any right shoulder movement. Again, when evaluating a disability involving a joint, adequate consideration must be given of functional loss due to pain under 38 C.F.R. § 4.40 and functional loss due to weakness, fatigability, incoordination or pain on movement of a joint under 38 C.F.R. § 4.45; see also DeLuca, 8 Vet. App. 202. Resolving all reasonable doubt in favor of the Veteran, the Board finds his right shoulder disability warrants a 30 percent disability rating for limitation of minor arm motion. That is, although range of motion findings have differed substantially, considering the Veteran's extreme guarding of movement, chronic pain, and other functional limitations, the Board finds that the functional impairment more nearly approximates limitation to 25 degrees from the side than midway between the side and shoulder level. The Board has considered whether there is any other schedular basis for granting a higher rating but has found none. The Board notes that the only diagnostic codes related to the "minor" shoulder that would provide for a higher rating require a showing of unfavorable ankylosis (DC 5200), fibrous union of the humerus (DC 5202), a false flail joint (DC 5202), or a flail shoulder (DC 5202). The Veteran does not have any pathology or impairment warranting a higher rating under any of those Diagnostic Codes. With regard to ankylosis, the Board finds no medical professional has specifically indicated the Veteran's right shoulder is ankylosed (i.e., "frozen"). As indicated above, the Veteran underwent an independent medical examination in August 2006. At that time, the private physician opined that the Veteran's right shoulder characteristics are best classified under Diagnostic Code 5200 "intermediate between favorable and unfavorable." The Board notes that intermediate ankylosis between favorable and unfavorable for the "minor" side is rated 30 percent disabling under Diagnostic Code 5200. Thus, even looking at the medical evidence in the most favorable light possible, DC 5200 would not provide for a higher rating here. In light of the August 2006 private opinion, the Board also considered whether the Veteran could be awarded separate ratings under DC 5201 (for limitation of motion) and DC 5200 (for ankylosis). The critical element in permitting the assignment of several ratings under various diagnostic codes is that none of the symptomatology for any one of the disabilities is duplicative or overlapping with the symptomatology of the other disability. See 38 C.F.R. § 4.14; Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994) (emphasis added). Here, however, DC 5200 and DC 5201 are both premised on range of motion findings. While DC 5200 is premised on ankylosis, or the complete absence of any motion, DC 5201 awards disability based on limitation of motion. Not only are the criteria duplicative in and of themselves, but it would be entirely contradictory to award a rating based on limitation of motion and ankylosis. The Board finds applying two separate ratings in this case would be impermissible pyramiding. See 38 C.F.R. § 4.14. For these reasons, the Board concludes a single, 30 percent rating is warranted here, but no higher. Other Considerations The Board has considered whether this claim should be referred to the Director of the Compensation and Pension Service for extra-schedular consideration. In determining whether a case should be referred for extra-schedular consideration, the Board must compare the level of severity and the symptomatology of the claimant's disability with the established criteria provided in the rating schedule for disability. If the criteria reasonably describe the claimant's disability level and symptomatology, then the disability picture is contemplated by the rating schedule, the assigned evaluation is therefore adequate, and no referral for extra-schedular consideration is required. Thun v. Peake, 22 Vet. App. 111, 115 (2008). As explained above, the Veteran's right shoulder disability is primarily manifested by pain and resulting limitation of motion. His overall functional impairment is contemplated by the schedular criteria. Therefore, referral of this claim for extra-schedular consideration is not in order. The Board has also considered whether a claim of entitlement to a total rating based on unemployability (TDIU) due to the service-connected right shoulder disability has been raised. Where a veteran: (1) submits evidence of a medical disability; (2) makes a claim for the highest rating possible; and (3) submits evidence of unemployability, the requirement in 38 C.F.R. § 3.155(a) that an informal claim "identify the benefit sought" has been satisfied and VA must consider whether the veteran is entitled to a total rating for compensation purposes based on individual unemployability. Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001). In this case, the Veteran has not alleged that he is unemployable due to his right shoulder disability and there is no evidence indicating that his right shoulder disability is sufficient to render him unemployable. In fact, the Veteran is rated 100 percent disabled as a result of his service-connected PTDS. Therefore, the issue of entitlement to a TDIU based on the service-connected right shoulder disability is not properly before the Board. ORDER Entitlement to an initial rating of 30 percent, but no higher, for a right shoulder disability, to include impingement syndrome with adhesive capsulitis and arthritis, is granted subject to the legal criteria governing the award of monetary awards. ____________________________________________ Shane A. Durkin Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs