Citation Nr: 1323736 Decision Date: 07/25/13 Archive Date: 08/06/13 DOCKET NO. 07-20 898 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Boston, Massachusetts THE ISSUE Entitlement to a higher initial evaluation in excess of 10 percent for the service-connected recurrent dislocation of the left shoulder, status post Bankart repair. REPRESENTATION Veteran represented by: The American Legion WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD A-L Evans, Associate Counsel INTRODUCTION The Veteran had active service from January 2002 to January 2006. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2006 rating decision of the Department of Veteran's Affairs (VA) Regional Office (RO) in Boston, Massachusetts, which granted service connection for recurrent dislocation of the left shoulder, status post Bankart repair, and assigned a 10 percent evaluation effective January 14, 2006. The Veteran testified before the undersigned Veterans Law Judge in a hearing at the RO in May 2010. A transcript of the hearing has been associated with the claims file. In July 2010, the Board granted an initial 10 percent evaluation for a post-operative scar of the left shoulder and remanded the remaining issue on appeal to the RO via the VA Appeals Management Center (AMC), for the development of additional evidence. The AMC completed the requested evidentiary development on the issue of a higher initial evaluation in excess of 10 percent for the service-connected recurrent dislocation of the left shoulder, status post Bankart repair, and returned that case to the Board for adjudication. FINDINGS OF FACT 1. The Veteran is right-hand dominant; therefore, his left shoulder is his minor extremity. 2. During the entire period on appeal, the Veteran's left shoulder disability has been manifested by chronic pain and corresponding functional impairment, resulting in disability analogous to limitation of motion at shoulder level. CONCLUSION OF LAW The criteria for a 20 percent disability evaluation for a left shoulder disability have been met. 38 U.S.C.A. §§ 1155, 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 4.7, 4.40, 4.45, 4.71a, 4.73, Diagnostic Codes 5200-5203 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. VA's Duties to Notify and Assist The Veteran's claim for a higher rating arises from a disagreement with the initial evaluation that was assigned following the grant of service connection. Once service connection is granted, the claim is substantiated, additional notice is not required, and any defect in the notice is not prejudicial. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). VA also has a duty to assist the Veteran in the development of the claim. This duty includes assisting the Veteran in the procurement of service treatment records, pertinent treatment records, and providing an examination when necessary. 38 C.F.R. § 5103A; 38 C.F.R. § 3.159. The Board finds that all relevant facts have been properly developed, and that all available evidence necessary for equitable resolution of the issue has been obtained. The RO obtained the Veteran's service treatment records, VA treatment records, private treatment records and lay statements. He has been provided appropriate VA examinations and the Board finds that the VA examination reports are adequate for evaluation purposes because the examiners conducted clinical evaluations, reviewed the medical history, and described the disability in sufficient detail so that the Board's evaluation of the claimed disability is an informed determination. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007); Stefl v. Nicholson, 21 Vet. App. 120, 124-25 (2007); Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). Further, the Veteran has not reported that the condition has worsened since the most recent VA examination. This case was previously before the Board and was remanded in July 2010 for the RO to provide the Veteran with a VA medical examination to determine the severity of his left shoulder condition. There has been substantial compliance with the Board's remand instructions. See Stegall v. West, 11 Vet. App. 268 (1998). The Board finds that all necessary development has been accomplished, and appellate review does not therefore result in prejudice to the Veteran. See Bernard v. Brown, 4Vet. App. 384 (1993). In addition, the Veteran has been afforded a hearing before a VLJ in which he presented oral argument in support of his increased rating claim for a left shoulder disability. In Bryant v. Shinseki, 23 Vet. App. 488, the United States Court of Appeals for Veterans Claims (Court) held that 38 C.F.R. § 3.103(c)(2) (2010) requires that the VLJ who chairs a hearing fulfill two duties to comply with the above the regulation. These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. During the May 2010 hearing, the VLJ noted that basis of the prior determination and noted the elements of the claim were lacking to substantiate the claim for benefits. The VLJ sought to identify any pertinent evidence not currently associated with the claims folder that might have been overlooked or was outstanding that might substantiate the claim, to include remanding the claim for additional development. Moreover, neither the Veteran nor his representative has asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2) nor has identified any prejudice in the conduct of the Board hearing. By contrast, the hearing focused on the elements necessary to substantiate the claim and the Veteran, through his testimony, demonstrated that he had actual knowledge of the elements necessary to substantiate his claim for benefits as evident in the provided testimony and oral presentation. As such, the Board finds that, consistent with Bryant, the VLJ complied with the duties set forth in 38 C.F.R. § 3.103(c)(2) and that the Board can adjudicate the claim(s) based on the current record. II. Analysis Disability ratings are determined by application of the criteria set forth in VA's Schedule for Rating Disabilities, 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. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. Part 4 (2012). 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. See 38 C.F.R. § 4.7. The Veteran's entire history is reviewed when making disability evaluations. See generally 38 C.F.R. §§ 4.1, 4.2; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Although, where entitlement to compensation has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Consistent with the facts found, the rating may be higher or lower for segments of the time under review on appeal, i.e., the rating may be "staged." Fenderson v. West, 12 Vet. App. 119 (1999); see also Hart v. Mansfield, 21 Vet. App. 505 (2007). The assignment of a particular diagnostic code is "completely dependent on the facts of a particular case." See Butts v. Brown, 5 Vet. App. 532, 538 (1993). One diagnostic code may be more appropriate than another based on such factors as an individual's relevant medical history, the current diagnosis and demonstrated symptomatology. Any change in a diagnostic code by VA must be specifically explained. Pernorio v. Derwinski, 2 Vet. App. 625 (1992). Under the laws administered by VA, disabilities of the shoulder and arm are rated under 38 C.F.R. § 4.71a, Diagnostic Codes 5200 through 5203. For rating purposes, a distinction is made between major (dominant) and minor musculoskeletal groups. 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. Here, as the medical evidence shows that the Veteran is right-hand dominant, his left shoulder is his minor shoulder for rating purposes. Under 38 C.F.R. § 4.71a, Diagnostic Code 5200, a 20 percent evaluation is assigned for favorable ankylosis of scapulohumeral articulation, with abduction to 60 degrees and the ability to reach the mouth and head. A 30 percent evaluation is assigned for intermediate ankylosis of scapulohumeral articulation, between favorable and unfavorable. A 40 percent evaluation is assigned for unfavorable ankylosis of scapulohumeral articulation, with abduction limited to 25 degrees from the side. Under Diagnostic Code 5201, a 20 percent evaluation is assigned for limitation of motion of the arm at the shoulder level. A 20 percent evaluation is assigned for limitation of motion of the arm midway between the side and shoulder level. A 30 percent evaluation is assigned for limitation of motion of the arm to 25 degrees from the side. In determining assessing limitation of motion, it is necessary to consider forward flexion and abduction. See Mariano v. Principi, 17 Vet. App. 305, 317-18 (2003). Under Diagnostic Code 5202, regarding other impairment of the humerus, a 20 percent evaluation is assigned for malunion with moderate deformity; or recurrent dislocation of the humerus at the scapulohumeral joint, with infrequent episodes and guarding of movement only at the shoulder level. A 40 percent evaluation is assigned for fibrous union of the humerus. A 50 percent evaluation is assigned for nonunion of the humerus (false flail joint). A 70 percent evaluation is assigned for loss of the head of the humerus (flail shoulder). Under Diagnostic Code 5203, regarding impairment of the clavicle or scapula, a 10 percent evaluation is assigned for malunion, or nonunion without loose movement. A 20 percent evaluation is assigned for dislocation or nonunion with loose movement. Alternatively, the disability may be rated on impairment of function of a contiguous joint. Under Plate I of 38 C.F.R. § 4.71a, normal range of motion of the shoulder is forward elevation (flexion) and abduction to 180 degrees, and internal and external rotation to 90 degrees. When evaluating joint disabilities rated on the basis of limitation of motion, VA must consider granting a higher rating in cases in which functional loss due to pain, weakness, excess fatigability, or incoordination is demonstrated, and those factors are not contemplated in the relevant rating criteria. See 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202 (1995). Recently, the Court clarified that although pain may be a cause or manifestation of functional loss, limitation of motion due to pain is not necessarily rated at the same level as functional loss where motion is impeded. See Mitchell v. Shinseki, 25 Vet. App. 32 (2011); cf. Powell v. West, 13 Vet. App. 31, 34 (1999); Hicks v. Brown, 8 Vet. App. 417, 421 (1995); Schafrath v. Derwinski, 1 Vet. App. 589, 592 (1991). Instead, the Mitchell Court explained that pursuant to 38 C.F.R. §§ 4.40 and 4.45, the possible manifestations of functional loss include decreased or abnormal excursion, strength, speed, coordination, or endurance, as well as less or more movement than is normal, weakened movement, excess fatigability, and pain on movement (as well as swelling, deformity, and atrophy) that affects stability, standing, and weight-bearing. See 38 C.F.R. §§ 4.40, 4.45. Thus, functional loss caused by pain must be rated at the same level as if the functional loss were caused by any of the other factors cited above. Thus, in evaluating the severity of a joint disability, VA must determine the overall functional impairment due to these factors. The provisions of 38 C.F.R. § 4.59, which relate to painful motion, are not limited to arthritis and must be considered when raised by the claimant or when reasonably raised by the record. Burton v. Shinseki, 25 Vet. App. 1 (2011). The Veteran underwent a VA examination in April 2006. The examiner noted that there were no constitutional symptoms or incapacitating episodes of arthritis in the Veteran's left shoulder. The examiner indicated that the Veteran experienced stiffness and weakness. Upon examination, the Veteran's forward flexion was 0 to 160 degrees with pain beginning at 160 degrees. The Veteran's abduction was 0 to 140 degrees with pain beginning at 140 degrees. The Veteran's external rotation was 0 to 60 degrees and pain began at 60 degrees. No additional limitation of motion on repetitive use was found on any of the tests provided. The examination report reflected no recurrent shoulder dislocation problems and no joint ankylosis. X-ray results showed some calcification of the ligamentous structure between the left clavicle and corcoid. The Veteran was diagnosed with left shoulder weakness due to recurrent dislocation of the left shoulder status post Bankart repair. It was noted that the disability impacted mobility and problems lifting and carrying items. VA treatment records show that the Veteran was treated for left shoulder pain. It was noted in a May 2006 VA treatment record that the Veteran indicated that his left shoulder was "ok at rest" and denied joint tenderness or swelling; however, when he was active playing basketball, the pain was a 4/10. A VA annual physical examination report dated in July 2007 shows that the Veteran stated that his left shoulder would get sore after working with a forklift or lifting gallons of oil. An October 2009 private medical treatment record noted that the Veteran complained of clicking, catching and instability regarding his left shoulder. At his May 2010 Travel Board hearing, the Veteran testified that he experienced left shoulder pain and had not exerted his shoulder since service. It was indicated that he experiences "clicking" in his shoulder. The Veteran noted that he experienced feelings of subluxation when he was running or lifting heavy objects. The Veteran was afforded a January 2011 VA examination. The Veteran indicated that his pain was felt when pushing, lifting or carrying things and lying on his shoulder when sleeping. It was noted that there was no pain when the shoulder was at rest. Upon examination, there was no erythema, edema or tenderness found. The Veteran's left flexion range of motion was 0 to 160 degrees. The left abduction was 0 to 170 degrees. The examiner noted objective evidence of pain after repetitive motion, but no additional limitation after repetitions. Thereafter, however, the examiner diagnosed the Veteran as having left shoulder impingement with recurrent subluxation. The examiner indicated that the left shoulder disability was productive of left shoulder pain that resulted in "significant functional effects." The examiner explained that the Veteran had problems with lifting, carrying, pushing, pulling and reaching, and that he had decreased left arm strength, which had resulted in his being reassigned different duties at work. In addition, the examiner indicated that the Veteran had essentially moderate overall impairment on his usual daily activities due to his left shoulder, with severe restriction on his ability to exercise and mild impairment to his ability to dress and to maintain hygiene. For the entire period under review, the Board finds that the criteria for a 20 percent disability evaluation, under Diagnostic Code 5201, have been met. The Veteran has provided a competent and credible account of left shoulder symptomatology, to include pain and functional impairment. See Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006); see also Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The medical evidence documents his generally consistent account of symptomatology, to include both VA and private treatment records. Painful and limited left shoulder motion has continuously been documented. The January 2011 VA examiner stated that the Veteran's left shoulder was noted to have decreased range of motion in flexion and abduction. The examiner further stated that because of the Veteran's left shoulder pain with repetitive range of motion, functionally, it would limit his ability to perform tasks that involve lifting and carrying or pushing against resistance. In addition, the Veteran would have difficulty with reaching tasks due to the decreased range of motion. Further, the examination was not conducted during a period of flare-up. In light of the medical finding and the Veteran's competent and credible account of his left shoulder symptoms, and resolving all reasonable doubt in his favor, the Board finds that the level of functional impairment caused by the Veteran's left shoulder disability most closely approximates limitation of motion at the shoulder level. See Mitchell; DeLuca. Thus, the criteria for a 20 percent disability evaluation under the relevant Diagnostic Code 5201, have been met for the entire period under review. See Hart v. Mansfield, 21 Vet. App. 505 (2007). Given the objective range of motion findings, however, the Board finds that the preponderance of the evidence is against entitlement to an evaluation in excess of 20 percent under Diagnostic Code 5201. In this regard, the Board reiterates that the Veteran is right-hand dominant and given the objective range of motion findings and the Veteran's competent reports of his functional impairment, the Board finds that the preponderance of the evidence shows that the Veteran's limitation of motion does not more closely approximate limitation of arm motion to 25 degrees from the side. In making these determinations, the Board notes that there is no evidence of (I) scapulohumeral articulation, ankylosis; (II) loss of the head of the humerus; (III) nonunion of the humerus; (IV) fibrous union of the humerus; (V) recurrant dislocation of the scapulohumeral joint; (VI) malunion of marked or moderate deformity; or (VII) nonunion of the clavicle or scapula with nonunion or dislocation. Therefore, at this time, Diagnostic Codes 5200, 5202 and 5203 are not properly applicable. In exceptional cases an extraschedular rating may be provided. 38 C.F.R. § 3.321. The Court has set out a three-part test, based on the language of 38 C.F.R. § 3.321(b)(1), for determining whether a Veteran is entitled to an extraschedular rating: (1) the established schedular criteria must be inadequate to describe the severity and symptoms of the claimant's disability; (2) the case must present other indicia of an exceptional or unusual disability picture, such as marked interference with employment or frequent periods of hospitalization; and (3) the award of an extraschedular disability rating must be in the interest of justice. Thun v. Peake, 22 Vet. App. 111 (2008), aff'd, Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). The Board finds that the rating criteria contemplate the Veteran's left shoulder disability. While the Veteran's service-connected disability produces pain and limitation of motion, those manifestations are contemplated in the rating criteria. The Board finds that the symptoms associated with the Veteran's service-connected disability are adequately addressed by the applicable rating criteria. Further, the effects of pain and functional impairment have been taken into account and were considered in applying the relevant criteria in the rating schedule. See 38 C.F.R. § 4.40, 4.45, 4.59; DeLuca, 8 Vet App. 202. The rating criteria are therefore adequate to evaluate the Veteran's disability and referral for consideration of extraschedular rating is not warranted. The Court has held that entitlement to a TDIU is an element of all appeals for a higher rating. Rice v. Shinseki, 22 Vet. App. 447 (2009). Entitlement to a TDIU is raised when a Veteran: (1) submits evidence of a medical disability; (2) makes a claim for the highest rating possible; and (3) submits evidence of unemployability. Here, the Veteran is presently employed, has only relayed his account of the difficulties his service-connected disability causes at his place of employment and does not meet the schedular threshold criteria to warrant a TDIU. Further, he does not maintain and the evidence of record does not suggest that the left shoulder disability renders the Veteran unable to work. As there is no evidence of unemployability due to the Veteran's disability, the question of entitlement to a TDIU is not raised. In sum, resolving all reasonable doubt in the Veteran's favor, the criteria for a 20 percent disability evaluation under the relevant Diagnostic Code have been met for the entire period under review and the claim is granted. ORDER A 20 percent disability evaluation, and no more, is granted for the left shoulder disability, subject to the laws and regulations governing the awards of monetary compensation. ____________________________________________ STEVEN D. REISS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs