Citation Nr: 1322686 Decision Date: 07/16/13 Archive Date: 07/24/13 DOCKET NO. 10-21 037 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to an increased rating for a left shoulder disability, currently rated as 30 percent disabling. 2. Entitlement to a total disability rating due to individual unemployability (TDIU). REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD C. D. Simpson INTRODUCTION The Veteran served on active duty from August 1955 to June 1958, with additional service in the National Guard. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2009 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. The Veteran was afforded a Travel Board Hearing before the undersigned Veterans Law Judge in May 2012. A hearing transcript is of record. The Board remanded the appeal in July 2012 for additional development. At that time, the Board determined that the issue of TDIU was part of the appeal and characterized it as a separate issue. See Rice v. Shinseki, 22 Vet. App. 447 (2009). A review of the Virtual VA paperless claims processing system shows that updated VA treatment records are of record. The RO considered these updated VA treatment records in the March 2013 Supplemental Statement of the Case. The issue of TDIU is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDINGS OF FACT 1. The Veteran's left shoulder disability is manifested by limitation of motion of the arm to midway between side and shoulder level; limitation of motion of the arm to 25 degrees from the side, ankylosis, fibrous union, nonunion or loss of head of the humerus is not demonstrated. 2. The competent medical evidence of record does not show that the Veteran's service-connected left shoulder disability is so exceptional or unusual that referral for extraschedular consideration by designated authority is required. CONCLUSION OF LAW The criteria for a disability rating in excess of 30 percent for a left shoulder disability have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.1-4.7, 4.14, 4.40, 4.45, 4.71a, Diagnostic Codes (DCs) 5200 to 5203 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duty 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. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012). Proper notice from VA must inform the claimant of any information and medical or lay evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In addition, the notice requirements of the VCAA apply to all elements of a service-connection claim, including the degree of disability and the effective date of the disability. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Further, this notice must include information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Id. at 486. VCAA notice must be provided prior to an initial unfavorable decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). Where complete notice is not timely accomplished, such error may be cured by issuance of a fully compliant notice, followed by readjudication of the claim. See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); see also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). In a claim for increase, the VCAA requires only generic notice as to the type of evidence needed to substantiate the claim, 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, 1277 (2009). In September 2008, the Veteran received notice about the information and evidence necessary to substantiate his claim for an increased rating and how VA assigns disability ratings and effective dates. He was informed about the division of responsibilities between him and VA in developing a claim. The duty to notify has been met. There is no indication that any additional action is needed to comply with the duty to assist in connection with the issue on appeal. The Veteran's service treatment records and updated VA treatment records are available. The Social Security Administration (SSA) has responded that they do not possess any medical records for the Veteran. The Veteran was provided an adequate VA examination for his claim with the most recent taking place in February 2013. The report contains sufficient evidence by which to evaluate the Veteran's left shoulder disability in the context of the rating criteria. Thus, VA has properly assisted the Veteran in obtaining any relevant evidence. The Board notes that the Veteran's representative argues that the February 2013 VA examination is an inadequate assessment of the left shoulder functional impairment. Review of the range of motion studies taken on clinical examination show that the examiner specifically considered where pain began and motion loss from repetitive motion. She gave an overall summary of all functional loss demonstrated on clinical examination. Given the above consideration of functional impairment, the Board finds the representative's objections to be without merit. The Court has held that the provisions of 38 C.F.R. § 3.103(c)(2) (2012) impose two distinct duties on VA employees, including Board personnel, in conducting hearings: The duty to explain fully the issues and the duty to suggest the submission of evidence that may have been overlooked. Bryant v. Shinseki, 23 Vet. App. 488 (2010) (per curiam); see also 77 Fed. Reg. 23128-01 (April 18, 2012). At the May 2012 hearing, the undersigned identified the issue on appeal. The Veteran provided testimony as to all treatment received for his service connected left shoulder disability and, thereby, demonstrated actual knowledge of the ability to submit additional relevant evidence. In July 2012, the Board remanded the claim to further assist the Veteran in obtaining outstanding medical records and furnishing an updated VA examination. The duties imposed by Bryant were thereby met. The Board also finds that the record reflects substantial compliance with its July 2012 remand. Updated VA treatment records have been incorporated to the Veteran's Virtual VA efolder. The Veteran was afforded an adequate VA examination in February 2013. The agency of original jurisdiction (AOJ) then readjudicated the claim by way of a March 2013 Supplemental Statement of the Case. The Boards finds that substantial compliance has been established. Accordingly, the Board is satisfied that the duty-to-assist requirements under 38 U.S.C.A. § 5103A and 38 C.F.R. § 3.159(c) were satisfied and that there was at least substantial compliance with all terms of its July 2012 remand for the issue decided herein. See D'Aries v. Peake, 22 Vet. App. 97, 104-06 (2008) (citing Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (substantial compliance as applied to remand instructions)); Stegall v. West, 11 Vet. App. 268 (1998). Laws and regulations Disability evaluations are determined by comparing a veteran's present symptomatology with criteria set forth in VA's Schedule for Rating Disabilities, which is based on average impairment in earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. When a question arises as to which of two ratings apply under a particular diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the veteran. 38 C.F.R. § 4.3. The Veteran's entire history is reviewed when making disability ratings. See generally 38 C.F.R. 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Although the regulations do not give past medical reports precedence over current findings, the Board is to consider a Veteran's medical history in determining the applicability of a higher rating for the entire period in which the appeal has been pending. Id.; Powell v. West, 13 Vet. App. 31, 35 (1999). Nevertheless, the Board acknowledges that a claimant may experience multiple distinct degrees of disability that might 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. The Veteran is currently in receipt of a 30 percent rating for a left shoulder disability pursuant to Diagnostic Code (DC) 5201. 38 C.F.R. § 4.71a, DC 5201. The Board points out that this Diagnostic Code, and all diagnostic codes dealing with the shoulder and arm, have separate criteria based on whether a Veteran is right or left handed. Here, the Veteran has indicated that he is ambidextrous. As such, the Board will consider the Veteran's left shoulder to be the major shoulder. See 38 C.F.R. § 4.69 (2012). Under DC 5201, a 30 percent evaluation contemplates limitation of motion of the arm midway between side and shoulder level, and a 40 percent evaluation contemplates limitation of motion of the arm to 25 degrees from the side. See 38 C.F.R. § 4.71a, DC 5201 (2012). As to other diagnostic codes the Veteran could be rated under, as there is no evidence of ankylosis, the Board does not find a rating under DC 5200 [ankylosis of scapulohumeral articulation] to be appropriate. DC 5202 applies where there is loss of head of the humerus (flail shoulder), nonunion, fibrous union, recurrent dislocation, or malunion. Impairment of the humerus, with recurrent dislocation of the major or minor shoulder at the scapulohumeral joint, is assigned a 20 percent evaluation with infrequent episodes of dislocation and guarding of movement only at shoulder level. A 30 percent evaluation is assigned with frequent episodes and guarding of all arm movements, if the major arm is affected. This Diagnostic Code further provides a 50 percent evaluation for fibrous union of the major humerus, a 60 percent evaluation for nonunion (false flail joint) of the major humerus, and an 80 percent evaluation for loss of the head of the major humerus (flail shoulder). See 38 C.F.R. § 4.71a, Diagnostic Code 5202 (2012). Under Diagnostic Code 5203, a 20 percent evaluation is the highest available and contemplates dislocation of the major or minor clavicle or scapula. See 38 C.F.R. § 4.71a, Diagnostic Code 5203 (2012). The regulations define normal range of motion for the shoulder as forward flexion from zero to 180 degrees, abduction from zero to 180 degrees, external rotation to 90 degrees, and internal rotation to 90 degrees. See 38 C.F.R. § 4.71, Plate I (2012). With forward elevation (flexion) and abduction, range of motion for the arm is from the side of the body (zero degrees) to above the head (180 degrees) with the mid-point of 90 degrees where the arm is held straight out from the shoulder. Id. With external rotation, range of motion for the arm is from the shoulder level (zero degrees) to in line with the side of the head (90 degrees). Id. With internal rotation, range of motion for the arm is from the shoulder level (zero degrees) to in line with the side of the torso (90 degrees). Id. In his August 2008 claim, the Veteran reported that his left shoulder disability had increased in severity and his range of motion was "severely restricted." VA treatment records from October 2008 reflect that the Veteran had a "very limited" range of motion of his left shoulder. X-rays did not reveal an acute fracture or dislocation, but mild degenerative changes in the glenohumeral joint and humeral head. Moderate degenerative change was observed in the acromioclavicular joint and along the acromion. He had areas of sclerosis on the humeral head. In an orthopedic consultation the following month, the Veteran complained about his painful left shoulder. He was unable to abduct it without pain. He had limitation of motion and weakness. The Veteran underwent a VA examination in February 2009. The examiner reviewed the claims folder. The Veteran reported having pain, stiffness, and weakness in his left shoulder. He had several episodes of dislocation on less than a monthly basis. He reported severe flare-ups occurring about twice a year that lasted several hours. Clinical examination showed guarding of movement at shoulder level. Range of motion of the left flexion and abduction were to 45 degrees without pain. Left internal rotation was to 90 degrees and external rotation was to 45 degrees without pain. No additional limitations were found during repetitive motion studies. Ankylosis was not found. The left arm circumference was less than the right arm circumference. The examiner reviewed the October 2008 X-rays. She diagnosed left shoulder degenerative joint disease and muscle atrophy. She opined that the muscle atrophy was part of the service connected left shoulder disability. The Veteran had a May 2012 hearing. He described having constant pain and crepitus in his left shoulder. He was very careful moving his left arm. He also experienced numbness in his left hand. He could not perform his usual occupational duties as a heavy equipment mechanic. He had been on SSA disability for many years due to left shoulder and neck disabilities. He reported being ambidextrous. He demonstrated that he could not move his left arm about five inches from his waist before pain started. VA treatment records from February 2012 reflect that the Veteran was assessed as having a mild left index trigger finger. In June 2012, he complained about bilateral shoulder and left hand numbness. VA treatment records from December 2012 reflect increased left shoulder pain and left shoulder rotation restricted to 90 degrees. In February 2013, he was suspected to have carpal tunnel syndrome in his left hand based upon his description of numbness. The Veteran was reexamined in February 2013. He reported that his shoulder became dislocated 3 to 4 times per week. He had chronic left shoulder pain. He stated that during flare-ups he was unable to raise his left arm. Range of motion of the left flexion was to 65 degrees with pain. Abduction was to 60 degrees and 65 degrees with pain. Upon repetitive motion, flexion was to 65 degrees and abduction to 50 degrees. The examiner described the additional functional impairment as less movement than normal, weakened movement, excess fatigability, pain on motion, and swelling. She also noted tenderness and guarding. Muscle strength was 4/5 for abduction and full strength for flexion. Ankylosis was not found. The examiner noted frequent episodes of recurrent dislocation. However, she did not find an acromioclavicular joint disorder. X-rays from December 2012 showed degenerative arthritis and probable calcific tendonitis. MRI from December 2012 showed: full-thickness, full width tears and atrophy of the supraspinatus and infraspinatus, tendiopathy of the subscalpularis tendon with adjacent prominent spurs in the lesser tuberosity, proximal migration of the humeral head, advanced bicep tendonitis, and glenohumeral tendonitis. She diagnosed full thickness, width tears of the supraspinatus and infraspinatus tendons and degenerative joint disease. The Veteran contends that an increased rating is warranted. Again, the Veteran's left shoulder is currently rated as 30 percent disabling under DC 5201. Under DC 5201, a 30 percent rating contemplates limitation of motion of the arm midway between side and shoulder level, and a 40 percent rating contemplates limitation of motion of the arm to 25 degrees from the side. See 38 C.F.R. § 4.71a, DC 5201 (2012). On both VA examinations, the Veteran demonstrated significantly more range of motion than 25 degrees, even when considering functional impairment. (See VA examination reports dated February 2009 and February 2013). These findings show a restricted motion of the left shoulder which approximates the 30 percent criteria for DC 5201. At the hearing, the Veteran stated that he could not move his left arm more than 5 inches from his waist. His report is suggestive of a greater degree of severity than shown on the two VA clinical examinations. The Veteran is certainly competent to describe his restricted motion in his left shoulder. However, the VA assessments are made by medical professionals in a clinical setting with precise measurements and considerations of functional impairment. The Board considers the VA clinical examination findings more persuasive for rating purposes. Caluza v. Brown, 7 Vet. App. 498, 510-511 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996) (per curiam) (table); see Madden v. Brown, 125 F. 3d 1447, 1481 (Fed. Cir. 1997); (Holding that the Board has the "authority to discount the weight and probative value of evidence in light of its inherent characteristics in its relationship to other items of evidence"). The Veteran's description of restricted motion at the hearing, alone, is not persuasive evidence that his left shoulder disability approximated the criteria for a 40 percent rating under DC 5201. 38 C.F.R. § 4.71a, DC 5201. For DC 5201, the Board has considered 38 C.F.R. §§ 4.40 and 4.45, addressing the impact of functional loss, weakened movement, excess fatigability, incoordination, and pain. DeLuca, 8 Vet. App. at 206 -07. However, an increased rating for complaints about pain, excess fatigability, decreased functional ability, etc. is not warranted. As detailed, on examinations in February 2009 and February 2013, with regard to his left shoulder, pain was the major functional impact. Likewise, pain had an effect on functional impairment. His functional impairment due to pain and weakness has been considered in the 30 percent disability rating for a left shoulder disability. While acknowledging the effects on his daily activities reflected in the VA examination report of record, there is no basis for a higher rating based on additional functional loss due to pain, weakness, impaired endurance, fatigue, incoordination, or flare-ups. The Board has also considered whether higher or separate ratings are warranted under other DCs. The diagnostic studies did not show fibrous union of the humerus, nonunion of the humerus, or a loss of the head of the humerus so as to warrant a disability rating higher than 30 percent under DC 5202. Additionally, the medical evidence also does not show that the Veteran had any dislocation, nonunion of, or malunion of the clavicle or scapula; or ankylosis of the scapulohumeral articulation, so as to warrant a disability rating higher than 30 percent under DC 5200 or 5202. Although dislocation and guarding have been noted, separate ratings would not be warranted under DCs 5202 or 5203, because the symptoms arise from a single disability and separate ratings are not warranted for multiple symptoms arising from a single disability. Yonek v. Shinseki, Slip Op. No. 10-3320 (Fed. Cir. July 8, 2013); Burton v. Shinseki, 25 Vet. App. 1, 6 (2011); Cullen v. Shinseki, 24 Vet. App. 74, 84 (2010); 38 C.F.R. § 4.14 (2012). Here, the limitation of left arm motion the Veteran experiences is due in part to frequent episodes of dislocation and guarding of left arm movements. Any separate rating under DCs 5202 and 5203 would constitute an impermissible "pyramiding" of benefits. See id.; Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994); Brady v. Brown, 4 Vet. App. 203, 206-7 (1993). The Veteran has also complained about left arm numbness. (See May 2012 hearing; VA treatment records from February and June 2012). However, the most recent assessment suggests that it is related to carpal tunnel syndrome of the left hand, rather than any left shoulder disorder. (See February 2013 VA treatment records). Based upon the current record, a separate rating for neurological manifestations of the left shoulder disability is not warranted at this time. The Board has also considered the February 2009 VA examiner's findings of left shoulder muscle atrophy. Clinical findings showed that the Veteran's left arm circumference was less than his right arm. At the most recent VA clinical examination in February 2013, the Veteran demonstrated 4/5 strength abduction and full strength forward flexion for his left arm. Ongoing treatment records do not otherwise include pertinent clinical findings suggestive of atrophy or similar disorder with his left shoulder muscles. Based upon the current record, the Board does not find that a separate compensable rating for left shoulder muscle impairment is warranted at this time. 38 C.F.R. § 4.73, DCs 5301-5304. The Board has considered all other potentially applicable provisions of 38 C.F.R. Parts 3 and 4, whether or not they have been raised by the Veteran, as required by Schafrath, supra. The Board has found no section that provides a basis upon which to assign a higher or additional disability rating for the Veteran's left shoulder disability. Extraschedular considerations The Board has also considered the potential application of other various provisions, including 38 C.F.R. § 3.321(b)(1), for exceptional cases where schedular evaluations are found to be inadequate. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). The Board finds that the severity of the Veteran's service-connected left shoulder disability is fully contemplated by the rating criteria regardless of whether such symptoms are considered as part of an individual disability or based upon the combined effects of all service connected disabilities. Mittleider v. West, 11 Vet. App. 181 (1998). The symptoms are productive of pain and reduced motion. The degree of disability exhibited for the left shoulder is contemplated by the rating schedule, to include as based upon the combined effects of all service connected disabilities. See id. Thus, the Board finds that the threshold test is not met for referral for extraschedular consideration for the Veteran's increased rating claim. 38 C.F.R. § 4.16(b); Thun v. Peake, 22 Vet. App. 111 (2008). ORDER A rating in excess of 30 percent for a left shoulder disability is denied. REMAND For TDIU claims, the duty to assist requires that VA obtaining an examination which includes an opinion on what effect the appellant's service-connected disability has on his ability to work. Friscia v. Brown, 7 Vet. App. 294, 297 (1994). The February 2013 VA medical opinion reflects that the Veteran is unable to work as a heavy equipment operator due to his service connected left shoulder disability. However, the examiner did not consider whether alternative employment was possible. She also failed to consider any occupational impairment due to multiple non-service connected disabilities, including diabetes mellitus, Type II and hypertension. In short, the current medical opinion does not reflect a fully informed review of the record and must be returned for clarification as detailed below. Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). Accordingly, the case is REMANDED for the following action: 1. Contact the February 2013 VA examiner for a TDIU medical opinion. The claims folder, a copy of the remand and any pertinent documents in the Virtual VA or VBMS efolders must be available and reviewed by the examiner. The examiner is asked to opine on whether the Veteran's service connected disabilities (left shoulder, rated as 30 percent disabling, tinnitus, rated as 10 percent disabling, and bilateral hearing loss, rated as noncompensably disabling), alone and without consideration to non service connected disabilities, are more likely than not (i.e. 50 percent probability or greater) productive of unemployability consistent with the Veteran's high school education and occupational experience as a mechanic. 2. Following the completion of the requested action and any additional development deemed necessary, the RO should then re-adjudicate the Veteran's TDIU claim. If the benefits on appeal remain denied, the Veteran and his representative should be provided with a supplemental statement of the case (SSOC) and afforded an opportunity to respond. Thereafter, the case should be returned to the Board, if in order. The appellant has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This case must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board 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. 2013). ____________________________________________ J. A. MARKEY Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2012). Department of Veterans Affairs