Citation Nr: 1320111 Decision Date: 06/21/13 Archive Date: 07/02/13 DOCKET NO. 11-01 791 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to an increased rating for recurrent dislocation of the left shoulder, status post surgery, evaluated as 20 percent disabling, prior to September 27, 2007, and from December 1, 2007. 2. Entitlement to an extension of a temporary total rating based on convalescence under the provisions of 38 C.F.R. § 4.30 (2012). REPRESENTATION Appellant represented by: T. Edmund Spinks, Attorney WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD James R. Siegel, Counsel INTRODUCTION The Veteran served on active duty from January 1991 to February 1995. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a January 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) that granted a temporary total rating under 38 C.F.R. § 4.30 for the period from September 27, 2007, through November 30, 2007, and reinstated, effective December 1, 2007, the 20 percent schedular evaluation that had previously been assigned. When this case was previously before the Board in June 2011, it was remanded for additional development of the record. As the requested development has been accomplished, the case is again before the Board for appellate consideration. Certain items of evidence discussed in the following decision reference the fact that the Veteran has reported to medical personnel that he has not returned to employment due to his left shoulder disability. As noted in the prior remand, a claim of entitlement to a total rating based on individual unemployability (TDIU) may be part of a claim for increased compensation. Rice v. Shinseki, 22 Vet.App. 447 (2009). However, the Veteran was expressly asked at the August 2010 RO hearing if he was claiming TDIU and he indicated that he was not at that time. Under these circumstances (with further recognition that the Veteran is proceeding with this appeal under the guidance from his attorney representative), the Board finds that a TDIU issue is not part of the present appeal. FINDINGS OF FACT 1. The Veteran is right-handed. 2. The Veteran's left shoulder disability is manifested by limitation of motion, pain and guarding. Flexion was possible to at least 70 degrees. There is no evidence of ankylosis. 3. The Veteran underwent surgery on his left shoulder in September 2007. 4. His postoperative residuals were not severe beyond November 30, 2007, and his shoulder was not immobilized. CONCLUSIONS OF LAW 1. The criteria for an evaluation in excess of 20 percent for recurrent dislocation of the left shoulder, prior to September 27, 2007, and from December 1, 2007, have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. § 4.71a, Diagnostic Codes 5201, 5202 (2012). 2. The criteria for an extension of a temporary total rating pursuant to the provisions of 38 C.F.R. § 4.30, beyond November 30, 2007, have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. § 4.30 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Veterans Claims Assistance Act VA has duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a). See also 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); Dingess v. Nicholson, 19 Vet. App. 473 (2006). In an increased rating claim, VA must notify the Veteran to submit evidence showing (1) a worsening or increase in severity of the disability and (2) the effect that worsening has on the claimant's employment. Vazquez-Flores v. Shinseki, 24 Vet. App. 94 (2010). The duties to notify and assist were met in this case. Notice was provided in an October 2007 letter. The record also reflects that VA has made reasonable efforts to obtain relevant records adequately identified by the appellant. Specifically, the information and evidence that have been associated with the claims file include private and VA medical records, Social Security Administration records, VA examination reports, and the Veteran's testimony at a hearing at the RO. In its June 2011 remand, the Board noted the Veteran stated in March 2008 that he was under a physician's care following his surgery and the VA had authorized fee basis treatment. These records were not in the claims folder and the RO was directed to attempt to procure them. By letter dated October 2011, the Veteran was requested to provide information concerning such records, but no response was received. VA clinical examinations have been obtained. 38 C.F.R. § 3.159(c) (4). The Board finds that the VA clinical examinations obtained in this case are more than adequate, as they are predicated on a full reading of the medical records in the Veteran's claims file. As appropriate, clinical findings pertinent to the schedular criteria for rating the disability at issue were obtained. Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination with respect to the issues on appeal has been met. 38 C.F.R. § 3.159(c) (4). Analysis The Board has reviewed all the evidence in the appellant's claims file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the appellant or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claims and what the evidence in the claims file shows, or fails to show, with respect to each claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. Separate diagnostic codes identify the various disabilities. Disabilities must be reviewed in relation to their history. 38 C.F.R. § 4.1. Other applicable, general policy considerations are: interpreting reports of examination in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability, 38 C.F.R. § 4.2; resolving any reasonable doubt regarding the degree of disability in favor of the claimant, 38 C.F.R. § 4.3; where there is a question as to which of two evaluations apply, assigning a higher of the two where the disability picture more nearly approximates the criteria for the next higher rating, 38 C.F.R. § 4.7; and, evaluating functional impairment on the basis of lack of usefulness, and the effects of the disabilities upon the person's ordinary activity, 38 C.F.R. § 4.10. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). The Board acknowledges that a claimant may experience multiple degrees of disability that may result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. Hart v. Mansfield, 21 Vet. App. 505 (2007). The analysis in the following decision is therefore undertaken with consideration of the possibility that different ratings may be warranted for different time periods. A 30 percent evaluation may be assigned for limitation of motion of the arm of the minor extremity to 25 degrees from the side. When the motion is limited to midway between the side and shoulder level or at the shoulder level, a 20 percent evaluation may be assigned. 38 C.F.R. § 4.71a, Diagnostic Code 5201. A 70 percent evaluation may be assigned for impairment of the humerus of the minor extremity with loss of the head of the humerus (flail shoulder). A 50 percent evaluation may be assigned for nonunion of the humerus (false flail joint), and a 40 percent evaluation may be assigned for fibrous union of the humerus. A 20 percent rating may be assigned for recurrent dislocation of the humerus at the scapulohumeral joint with frequent episodes and guarding of all arm movements or with infrequent episodes, and guarding of movement only at the shoulder level. A 20 percent evaluation may also be assigned for malunion of the humerus with marked or moderate deformity. 38 C.F.R. § 4.71a, Diagnostic Code 5202. Normal range of motion of the shoulder is as follows: forward elevation (flexion) to 180 degrees; abduction to 180 degrees; internal rotation to 90 degrees; and external rotation to 90 degrees. 38 C.F.R. § 4.71a, Plate I. The record reflects the Veteran is right handed. The Veteran submitted a claim for an increased rating for his left shoulder disability in September 2007. Private medical records disclose the Veteran was seen in May 2007 for recurrent instability of the left shoulder. He reported his pain was 8/10 and shoulder stability as 7/10. Elevation of the left shoulder was to 90 degrees, with hints of posterior subluxation. Abduction was to 90 degrees, with perhaps mild scapular dyssynchrony. Internal rotation was to L5, and external rotation was to 40 degrees. The Veteran exhibited strength to the subscapularis. Motor and sensory examinations were intact. The Veteran had no appreciable atrophy. The impression was left shoulder recurrent instability versus posttraumatic arthritis. In August 2007, the Veteran asserted his shoulder pain interfered significantly with his activities of daily living as well as his job. On examination, anterior forward flexion was to about 100 degrees, and he could externally rotate to about 80 degrees. The Veteran could internally rotate to about the lower lumbar spine. Posterior load and shift test was positive and he had a remarkable anterior apprehension test. The assessment was status post anterior and posterior stabilization surgeries with recurrent instability. In September 2007, a private physician completed a form that showed the Veteran was scheduled to have left shoulder surgery about three weeks later. The physician indicated the Veteran had been first seen in May 2007, and that he became unable to perform his job duties in August. He indicated the Veteran was unable to use his left arm. The physician stated the Veteran would be able to return to light duty in December 2007, and return to full duty in March 2008. Additional private medical records reveal the Veteran was seen in September 2007, two days prior to left shoulder surgery. On examination, elevation was to 100 degrees and external rotation was to 40 degrees. Internal rotation was to L5. He had positive anterior apprehension, and a positive shift and load test. Motor and sensory evaluations were intact. The Veteran was seen for his initial postoperative follow-up in October 2007. He was able to demonstrate pendulum exercises properly. Later that month, he said he felt well. His wounds were well healed and he was able to do pendulum exercises. He was neurologically intact from C5-T1. There was no evidence of swelling or erythema to suggest an infection. The assessment was status post left shoulder Bankart repair. A VA examination of the joints was conducted in February 2008. The Veteran reported pain, weakness, instability fatigability and lack of endurance. He denied stiffness, swelling, heat, redness and locking. He denied flare-ups. An examination demonstrated forward flexion to 90 degrees; extension to 20 degrees; internal rotation to 30 degrees; external rotation to 20 degrees; abduction to 90 degrees; and adduction was to 30 degrees. There was pain on motion. There was no change with repetitive motion. Fatigue, weakness and lack of endurance were also noted. Guarding of movement was present. There was no effusion, redness or heat. The diagnosis was arthritic and unstable left shoulder from multiple dislocations and several surgeries. The examiner indicated there was no impairment of joint function. VA outpatient treatment records disclose the Veteran was seen in April 2008 and asserted his left shoulder pain was getting worse. He stated Percocet was quite helpful. VA outpatient treatment records show the Veteran reported in May 2008 that his left shoulder pain radiated to his finger. He felt his pain was worsening. He described a stabbing pain at night in the shoulder, and claimed his arm became numb during the day. The assessment was shoulder pain with neuropathic component. The Veteran was again examined by the VA in October 2010. He reported his left shoulder pain had increased. He related he was told that he was not a candidate for surgery. He claimed he had severe flare-ups two to three times a week, and he was not able to use the arm during those episodes. An examination revealed tenderness, pain at rest, weakness and guarding of movement. Flexion and abduction were from 0 to 70 degrees; and both internal and external rotation were negligible. The examiner indicated pain began at 70 degrees of flexion and abduction, and that the Veteran was not able to perform any rotation. There was no change with repetition. Significant tenderness at the anterior aspect of the joint was reported. The Veteran stated he was not employed due to his left shoulder condition. The diagnosis was recurrent dislocations of the left shoulder. The examiner asserted the condition had a significant effect on the Veteran's usual occupation. The Veteran was most recently examined by the VA in April 2012. He reported he was not able to go back to work as a train driver following the September 2007 surgery. He related he went to vocational rehabilitation to work at computers. He noted he went to the emergency room in December 2011 for his left shoulder, and it was stated an examination at that time demonstrated subacromial pain, anterior capsule pain and some limitation of motion. On the examination in April 2012, flexion of the left shoulder was to 70 degrees, with pain at 70 degrees, and abduction was to 30 degrees, with pain at 30 degrees. The Veteran was able to perform repetitive use testing and did not have additional limitation of motion. Functional loss consisted of less movement than normal, weakened movement and pain on movement. There was tenderness or pain on palpation of the joints, and he had guarding of the left shoulder. Muscle strength testing was 2/5 on abduction and 3/5 on forward flexion. The Veteran was unable to perform tests for rotator cuff conditions. He did not have an acromioclavicular joint condition or other impairment of the clavicle or scapula. There was no tenderness to palpation of the acromioclavicular joint. The residuals of the surgery were tenderness, pain and marked limitation of motion. The diagnoses were recurrent dislocations of the left shoulder, status post surgery and repair and degenerative joint disease of the left shoulder. The examiner stated the Veteran was not able to return to his job after the surgery in 2007, and he was not able to perform any lifting or carrying with his left upper extremity. I. Increased rating The Veteran asserts a schedular rating in excess of 20 percent is warranted prior to September 27, 2007, and from December 1, 2007. Initially, the Board notes that the three VA examinations conducted during the course of the Veteran's claim all demonstrate that forward flexion of the left shoulder is to at least 70 degrees. This establishes he is able to move his arm to a point higher than midway between his side and shoulder level. There is, therefore, no basis on which a higher rating may be assigned based on limitation of motion. The Board notes that since the Veteran retains motion in the left shoulder, there is no evidence of ankylosis and, therefore, a higher rating pursuant to Diagnostic Code 5200 is not warranted. Ankylosis is stiffening or fixation of a joint as the result of a disease process, with fibrous or bony union across the joint. Dinsay v. Brown, 9 Vet. App. 79, 81 (1996). (Ankylosis is "immobility and consolidation of a joint due to disease, injury, or surgical procedure." Dorland's [Illustrated Medical Dictionary], at 86 [(27th ed. 1988]). Coyalong v. West, 12 Vet. App. 524, 528 (1999). The Board has considered whether factors including functional impairment and pain as addressed under 38 C.F.R. §§ 4.10, 4.40 and 4.45 would warrant a higher rating for the Veteran's left shoulder disability. See Spurgeon v. Brown, 10 Vet. App. 194 (1997); and DeLuca v. Brown, 8, Vet. App. 202 (1995). The Board points out that the most VA examination shows that repetitive motion did not produce additional limitation in range of motion of the shoulders. The Board finds that any pain the Veteran experiences is contemplated in the evaluation that has been assigned for his left shoulder disability. The Board has also considered whether a higher rating could be assigned under Diagnostic Code 5202. It is not disputed that he experiences guarding of movement. In order to assign a higher rating under this Diagnostic Code, the record must establish fibrous union of the humerus. There is no objective evidence in the record that shows this is present. The Board concedes the Veteran is competent to report symptoms he experiences, such as pain and limitation of motion, and the Board finds him to be credible in this regard. However, the objective medical findings on examination do not support a finding that the regulatory criteria for a higher rating have been met. The Board finds, therefore, that the preponderance of the evidence is against the claim for an evaluation in excess of 20 percent for his service connected recurrent dislocation of the left shoulder, either prior to September 27, 2007, or from December 1, 2007. In general, the schedular disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. The application of such schedular criteria was discussed in great detail above. To accord justice in an exceptional case where the schedular standards are found to be inadequate, the RO is authorized to refer the case to the Chief Benefits Director or the Director, Compensation and Pension Service for assignment of an extraschedular evaluation commensurate with the average earning capacity impairment. 38 C.F.R. § 3.321(b)(1)). However, after reviewing the record in this case the Board finds that the symptoms described by the Veteran fit squarely with the criteria found in the relevant Diagnostic Codes for the disability at issue. In short, the rating criteria contemplate not only his symptoms but the severity of his disability. For these reasons, referral for extraschedular consideration is not warranted. Thun v. Peake, 22 Vet. App. 111 (2008), II. Temporary total rating under 38 C.F.R. § 4.30 Under 38 C.F.R. § 4.30(a), total ratings will be assigned if treatment of a service-connected disability resulted in: (1) Surgery necessitating at least one month of convalescence; (2) Surgery with severe postoperative residuals such as incompletely healed surgical wounds, stumps of recent amputations, therapeutic immobilization of one major joint or more, application of a body cast, or the necessity for house confinement, or the necessity for continued use of a wheelchair or crutches (regular weight- bearing prohibited); or (3) Immobilization by cast, without surgery, of one major joint or more. The Veteran argues that an extension of the temporary total rating that was assigned under the provisions of 38 C.F.R. 4.30 for the period from September 27, 2007, through November 30, 2007, is warranted. He asserts he has been unable to work since his left shoulder surgery. The treatment records following the surgery document that his wounds had healed. In fact, the initial postoperative visit in October 2007 shows he could perform pendulum exercises, and the next follow-up visit later that month reveals his wounds were well healed. There is no allegation his joint was immobilized or that he was confined to his house. The mere fact he could not work for a short period of time following the surgery is not an appropriate basis for a temporary total rating. The Board concludes the medical findings of record are of greater probative value than the Veteran's allegations regarding his post surgery residuals. The Board finds, therefore, that the preponderance of the evidence is against the claim for an extension beyond November 30, 2007 of a temporary total rating pursuant to the provisions of 38 C.F.R. § 4.30. Additional considerations In reaching the above conclusions, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine is not applicable in the instant appeal. See 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER An rating in excess of 20 percent for recurrent dislocation of the left shoulder, status post surgery, prior to September 27, 2007, and from December 1, 2007 is denied. An extension of a temporary total rating under 38 C.F.R. § 4.30, beyond November 30, 2007, is denied. ____________________________________________ ALAN S. PEEVY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs