Citation Nr: 1323756 Decision Date: 07/25/13 Archive Date: 08/06/13 DOCKET NO. 09-25 866 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Louisville, Kentucky THE ISSUES 1. Entitlement to a compensable rating before June 23, 2009, for a left shoulder disability with Bankart procedure. 2. Entitlement to a rating higher than 20 percent from June 23, 2009, for a left shoulder disability with Bankart procedure. 3. Entitlement to an effective date before June 23, 2009, for the grant of a 20 percent rating for a left shoulder disability with Bankart procedure. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD J. Meawad, Counsel INTRODUCTION The Veteran, who is the appellant, served on active duty from December 1983 to May 1996. This matter is before the Board of Veterans' Appeals (Board) on appeal of a rating decision in May 2008 of a Department of Veterans Affairs (VA) Regional Office (RO). While on appeal in a rating decision in July 2009, the RO increased the rating for the left shoulder disability to 20 percent, effective June 23, 2009. The Veteran then continued his appeal as to the assigned effective date for the grant of a 20 percent rating for the left shoulder disability and the assigned rating for the left shoulder disability. In December 2011, the Veteran appeared at a hearing before the undersigned Veterans Law Judge. A transcript of the hearing is in the Veteran's file. In May 2012, the Board remanded the case for further development. FINDINGS OF FACT 1. Prior to June 23, 2009, the left shoulder disability with Bankart procedure was manifested by normal range of motion without painful motion. 2. From June 23, 2009, and currently, the left shoulder disability with Bankart procedure is manifested by limitation of motion at shoulder level. 3. In January 1997, the RO granted service connection for the left shoulder disability with Bankart procedure and assigned a noncompensable rating; in April 2002, the RO continued the noncompensable rating; after the Veteran was notified of the rating decision and of his right to appeal, the Veteran did not perfect a timely appeal and the rating action became final. 4. In August 2007, the Veteran filed the current claim for increase and while on appeal the RO increased the rating to 20 percent, effective June 23, 2009. 5. There is no evidence to establish a rating higher than 20 percent for the left shoulder disability with Bankart procedure prior to June 23, 2009. CONCLUSIONS OF LAW 1. The criteria for a compensable rating prior to June 23, 2009, for left shoulder disability with Bankart procedure have not been met. 38 U.S.C.A. § 1155; 5107(b) (West 2002); 38 C.F.R. §§ 4.7, 4.59, 4.71a, Diagnostic Code 5202 (2012). 2. The criteria for a rating higher than 20 percent from June 23, 2009, and currently for left shoulder disability with Bankart procedure have not been met. 38 U.S.C.A. § 1155; 5107(b) (West 2002); 38 C.F.R. §§ 4.7, 4.71a, Diagnostic Code 5202 (2012). 3. The criteria for an effective date prior to June 23, 2009, for the grant of a 20 percent rating for left shoulder disability with Bankart procedure have not been met. 38 U.S.C.A. §§ 5107(b), 5110 (West 2002); 38 C.F.R. § 3.400 (2012). The Veterans Claims Assistance Act of 2000 (VCAA) The VCAA, codified in part at 38 U.S.C.A. §§ 5103, 5103A, and implemented in part at 38 C.F.R § 3.159, amended VA's duties to notify and to assist a claimant in developing information and evidence necessary to substantiate a claim. Duty to Notify Upon receipt of a complete or substantially complete application, VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. VA must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide. In a claim for increase, the VCAA notice requirements are 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. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009) (interpreting 38 U.S.C.A. § 5103(a) as requiring generic claim-specific notice and rejecting Veteran-specific notice as to effect on daily life and as to the assigned or a cross-referenced Diagnostic Code under which the disability is rated). The VCAA notice, as required by 38 U.S.C.A. § 5103(a), must be provided to a claimant before the initial unfavorable adjudication by the RO. Pelegrini v. Principi, 18 Vet. App. 112, 119 (2004). The RO provided pre-adjudication VCAA notice by letter in January 2008. As for the content and the timing of the VCAA notice, the documents complied with the specificity requirements of Quartuccio v. Principi, 16 Vet. App. 183, 186-87 (2002) (identifying evidence to substantiate a claim and the relative duties of VA and the claimant to obtain evidence); of Charles v. Principi, 16 Vet. App. 370, 374 (2002) (identifying the document that satisfies VCAA notice); of Pelegrini v. Principi, 18 Vet. App. 112, 119-120 (2004) (pre-adjudication VCAA notice); of Dingess v. Nicholson, 19 Vet. App. 473, 484-86 (2006) (notice of the elements of the claim); and of Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009) (evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on employment). Duty to Assist Under 38 U.S.C.A. § 5103A, VA must make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate a claim. The RO has obtained service treatment records, VA records, and private medical records. The Veteran was afforded VA examinations in 2008, 2009, 2011, and 2012. As the examination reports are based on review of the Veteran's history and described the disability in sufficient detail so that the Board's review is a fully informed one, the examination reports are adequate to decide the claim. See 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 disabilities in sufficient detail so that the Board's evaluation of the disability will be a fully informed one). As there is no indication of the existence of additional evidence to substantiate the claim, the Board concludes that no further assistance to the Veteran in developing the facts is required to comply with the duty to assist. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Principles for Rating Disabilities A disability rating is determined by the application of VA's Schedule for Rating Disabilities (Rating Schedule). 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 military service and their residual conditions in civil occupations. Separate Diagnostic Codes identify the various disabilities. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. If there is a question of which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. The Board will consider whether separate ratings may be assigned for separate periods of time based on facts found, a practice known as "staged ratings," whether it is an initial rating case or not. Fenderson v. West, 12 Vet. App. 119, 126-27 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Rating Criteria A disability of the musculoskeletal system is primarily the inability, due to damage or infection in parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination and endurance. Functional loss may be due to the absence or deformity of structures or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by the visible behavior in undertaking the motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. 38 C.F.R. § 4.40. With respect to joints, in particular, the factors of disability reside in reductions of normal excursion of movements in different planes. Inquiry will be directed to more or less than normal movement, weakened movement, excess fatigability, incoordination, pain on movement, swelling, deformity or atrophy of disuse. 38 C.F.R. § 4.45. The intent of the Rating Schedule is to recognize actually painful, unstable or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59. Under Diagnostic Code 5010, arthritis due to trauma, substantiated by X-ray findings, is rated as degenerative arthritis. Pursuant to Diagnostic Code 5003, degenerative arthritis established by X-ray findings is rated on the basis of limitation of motion under the appropriate diagnostic code for the specific joint or joints involved. When there is arthritis with at least some limitation of motion, but to a degree which would be noncompensable under a limitation-of-motion code, a 10 percent rating will be assigned for each affected major joint or group of minor joints. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. 38 C.F.R. § 4.71a, Diagnostic Code 5010. Under Diagnostic Code 5201, when arm motion is limited at the shoulder level, or when arm motion is limited to a point midway between the side and shoulder level, the minor arm is rated 20 percent. When arm motion is limited to 25 degrees from the side, the minor arm is rated a maximum of 30 percent. Normal range of motion of the shoulder is from 0 degrees to 180 degrees for flexion or abduction. 38 C.F.R. § 4.71, Plate I. Under Diagnostic Code 5202, for impairment of the humerus (minor or non-dominant extremity), a 20 percent rating is warranted for malunion with either moderate or marked deformity, or recurrent dislocation at the scapulohumeral joint either with infrequent episodes and guarding of movement only at the shoulder level or with frequent episodes and guarding of all arm movements. A 40 percent rating requires fibrous union of the humerus. A 50 percent rating requires nonunion of the humerus (false flail joint). A 70 percent rating requires loss of head of the humerus (flail shoulder). A Compensable Rating before June 23, 2009 Facts and Analysis The service-connected left shoulder disability involves the minor or non-dominant extremity. The left shoulder disability with Bankart procedure was rated noncompensable before June 23, 2009, and 20 percent from June 23, 2009, under 38 C.F.R. § 4.71a, Diagnostic Code 5202, which is the criteria for rating impairment of the humerus. Before June 23, 2009, on VA examination in February 2008, the Veteran complained of stiffness and occasional locking when lifting his arm, which resolved by lowering his arm. Range of motion was normal. There was no objective evidence of pain or additional limitation following repetitive motion. Although the Veteran was diagnosed as having left shoulder degenerative joint disease, X-rays were negative for any bone, joint, or soft tissue abnormality. Based on the evidence of record before June 23, 2009, specifically, X-ray findings, in the absence of evidence of a fibrous union or nonunion of the left humerus, the criteria for a compensable rating under Diagnostic Code 5202 were not met. As for other potentially applicable Diagnostic Codes, under Diagnostic Code 5201 for limitation of motion of the left shoulder, normal range of motion does not more nearly approximate or equate to limitation of the arm to shoulder level for a compensable rating, considering functional loss due to pain, weakness, excess fatigability, swelling, deformity, atrophy, or painful movement and repetitive motion. 38 C.F.R. §§ 4.40, 4.45, and DeLuca v. Brown, 8 Vet. App. 202 (1995). Although the minimum compensable rating for the shoulder, 10 percent, does not require arthritis by X-ray finding, painful motion is still required. 38 .F.R. § 4.59; see Burton v. Shinseki, 25 Vet. App. 1 (2011) (painful motion under 38 C.F.R. § 4.59 does not require arthritis for a minimum rating for the specific joint). On VA examination in June 2009, the Veteran complained of stiffness and occasional locking when lifting his arm, but there was no objective evidence of painful motion. In the absence of evidence of painful motion, the criteria for a minimum compensable rating under 38 C.F.R. § 4.59 had not been met. A Higher Rating from June 23, 2009 On VA examination in June 2009, the Veteran complained of left shoulder pain. The pertinent findings were instability, pain, stiffness, weakness, incoordination, decreased speed of joint motion, crepitus, and tenderness. The Veteran reported having severe flare-ups every 3 to 4 months that would render him unable to use his arm until it was alleviated. Range of motion was normal with pain beginning at 90 degrees of flexion with repetitive use. There was no functional loss found on repetition. In May 2011, X-rays of the left shoulder were normal. In September 2011, magnetic imaging showed degenerative change of the greater tuberosity of the humerus from repetitive trauma. The rotator cuff and subscapularis tendon were intact and there was no labral tear found. In November 2011 on VA examination, the Veteran complained of pain with movement of the shoulder and of crepitus and popping. He also complained of intermittent stiffness and occasional locking with using his arm overhead. Flexion was to 90 degrees with pain beginning at 80 degrees. There was no change on repetitive motion testing. The Veteran was found to have less movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement with repetitive use. The Veteran also had guarding of the left shoulder. The Veteran had normal strength and there was no ankylosis of the glenohumeral articulation. In July 2012 on VA examination, the Veteran's complaints had not changed since November 2011. Flexion was to 125 degrees with pain beginning at 105 degrees. With repetitive use, flexion remained at 125 degrees with pain beginning at 115 degrees. The Veteran did not have additional limitation of motion with repetitive motion, but he did have functional loss with weakened movement, excess fatigability, incoordination, and pain on movement. There was no impairment of the clavicle or scapula, ankylosis, or any fibrous union, fibrous nonunion, or recurrent dislocation found. The left shoulder disability is currently rated 20 percent from June 23, 2009, under Diagnostic Code 5202. In the absence of evidence of a fibrous union of the humerus, the criteria for the next higher rating under Diagnostic Code 5202 have not been met. As for other potentially applicable Diagnostic Codes, under Diagnostic Code 5201 for limitation of motion of the left shoulder, flexion, ranging from 80 degrees to 115 degrees, does not more nearly approximate or equate to limitation of the arm to 25 degrees from the side, considering functional loss due to pain, weakness, excess fatigability, swelling, deformity, atrophy, or painful movement and repetitive motion. 38 C.F.R. §§ 4.40, 4.45, and DeLuca v. Brown, 8 Vet. App. 202 (1995). And the 20 percent rating is more than the minimum compensable rating for the shoulder, applying 38 .F.R. § 4.59. There are no other applicable Diagnostic Codes. In conclusion, the Board finds that the preponderance of the evidence is against the Veteran's claim for higher ratings for the left shoulder disability with Bankart procedure at any time during the period. Extraschedular Consideration Although the Board is precluded by regulation from assigning an extraschedular rating under 38 C.F.R. § 3.321(b)(1) in the first instance, the Board is not precluded from considering whether the case should be referred to the Director of VA's Compensation and Pension Service for a rating. The threshold factor for extraschedular consideration is a finding that the evidence presents such an exceptional disability picture that the available schedular ratings for that service-connected disability are inadequate. This is accomplished by comparing the level of severity and symptomatology of the service-connected disability with the established criteria. If the criteria reasonably describe the disability level and symptomatology, then the disability picture is encompassed by the Rating Schedule, and the assigned schedular ratings are, therefore, adequate and referral for an extraschedular rating is not required. Thun v. Peake, 22 Vet. App. 111, 115 (2008), aff'd sub nom. Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). Here, the rating criteria under Diagnostic Codes 5201 and 5202, applying 38 C.F.R. §§ 4.7. 4.40. 4.45, and 4.59, reasonably describe the disability levels and the left knee symptomatology. In other words, the Veteran does not experience any symptomatology not already encompassed in the Rating Schedule. Therefore referral for extraschedular consideration for the service-connected residuals of a left shoulder injury is not required under 38 C.F.R. § 3.321(b)(1). Total Disability Rating for Compensation based on Individual Unemployability The Veteran has maintained full-time employment during the pendency of the appeal. The Veteran does not assert and the evidence of record does not reasonably raise a claim for a total disability rating. See Rice v. Shinseki, 22 Vet. App. 447 (2009) (holding that a request for a total disability rating based on individual unemployability, whether expressly raised by the veteran or reasonably raised by the record, is not a separate claim for benefits). Earlier Effective Date for the 20 Percent Rating Criteria for Assigning an Effective Date The effective date of an increased rating is either the date of claim or the date entitlement arose, whichever is later. 38 U.S.C.A. § 5110(a); 38 C.F.R. § 3.400(o)(1). The exception to the rule allows for the earliest date as of which it was factually ascertainable that an increase in disability had occurred if the claim was received within 1 year from such date; otherwise, the effective date is the date of receipt of the claim. 38 C.F.R. § 3.400(o)(2). Facts and Analysis In January 1997, the RO granted service connection for the left shoulder disability with Bankart procedure and assigned a noncompensable rating. In April 2002, the RO continued the noncompensable rating. After the Veteran was notified of the rating decisions and of his right to appeal, the Veteran did not perfect a timely appeal and the rating actions became final. In August 2007, the Veteran filed the current claim for increase. While on appeal the RO increased the rating to 20 percent, effective June 23, 2009, the date entitlement arose, that is, the date the criteria for the 20 percent had been met. Under 38 C.F.R. § 3.400(o), the potential dates for the 20 percent rating are either date of claim in August 2007 or the date entitlement arose. The evidence of record does not show that the criteria for a 20 percent rating were met before June 23, 2009. The only medical evidence of record during this time period is a VA examination in February 2008. During this examination, the Veteran complained of having intermittent stiffness and occasional locking when lifting his arm, which resolved by lowering his arm. It was noted that the Veteran had not received recent treatment or complaints relating to his left shoulder. Physical examination revealed only stiffness and the range of motion was normal. There was no objective evidence of pain or additional limitations following repetitive motion. Based on the evidence of record prior to June 23, 2009, a higher rating was not warranted under Diagnostic Code 5202 in the absence of fibrous union or nonunion of the left humerus. An a higher rating based on limitation of motion of the left shoulder under Diagnostic Code 5201 was not shown as the range of motion was normal and there was no additional functional loss. 38 C.F.R. §§ 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5201; DeLuca v. Brown, 8 Vet. App. 202 (1995). The evidence does not support a finding that the criteria for a 20 percent rating under either Diagnostic Code 5202 or Diagnostic Code 5201 were met before to June 2009. And there was no pending claim or unadjudicated claim for increase before the Veteran filed his current claim for increase in August 2007. For these reasons, the preponderance of the evidence is against the claim for an earlier effective date for the 20 percent rating for the left shoulder disability, and there is no reasonable doubt to be resolved. ORDER A compensable rating before June 23, 2009, for a left shoulder disability with Bankart procedure is denied. A rating higher than 20 percent from June 23, 2009, for a left shoulder disability with Bankart procedure is denied. An effective date before June 23, 2009, for the grant of a 20 percent rating for a left shoulder disability with Bankart procedure is denied. ____________________________________________ George E. Guido Jr. Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs