Citation Nr: 1323893 Decision Date: 07/26/13 Archive Date: 08/06/13 DOCKET NO. 09-37 634 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Lincoln, Nebraska THE ISSUES 1. Entitlement to an initial rating greater than 10 percent for bursitis of the left shoulder. 2. Entitlement to an initial rating greater than 20 percent for a partial supraspinatus tear, superior labral from anterior to posterior (SLAP) tear, and acromioclavicular degenerative joint disease of the right shoulder, status post arthroscopic open rotator cuff repair with distal clavicle excision. REPRESENTATION Appellant represented by: John S. Berry, Attorney at Law ATTORNEY FOR THE BOARD S.K.C. Boyce, Associate Counsel INTRODUCTION The Veteran served on active duty from October 1986 to November 1997. The claim for a higher initial rating for bursitis of the left shoulder comes before the Board of Veterans' Appeals (Board) on appeal from an April 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Lincoln, Nebraska, which granted the Veteran's claim for service connection for a left shoulder disability and assigned a 10 percent disability rating, effective July 25, 2011. The claim for a higher initial rating for partial supraspinatus tear, SLAP tear, and acromioclavicular degenerative joint disease of the right shoulder, status post arthroscopic open rotator cuff repair with distal clavicle excision, comes before the Board by order of the United States Court of Appeals for Veterans Claims (Court), which granted a Joint Motion for Remand, vacated the Board's March 2012 decision, and remanded the Veteran's claim to the Board for action consistent with the Joint Motion in September 2012. The issue of entitlement to a higher disability rating for a the Veteran's service-connected right shoulder disability initially arose from a June 2009 rating decision by the Lincoln RO, which granted the Veteran's claim for service connection for a right shoulder disability and assigned a 10 percent disability rating, effective April 28, 2008. In April 2012, the Lincoln RO increased the initial disability rating assigned for the Veteran's right shoulder disability to 20 percent disabling. This claim has been recharacterized to reflect the higher initial rating assigned by the RO and the Veteran's relevant surgical history during the pendency of this appeal. In a September 2011 rating decision, the Lincoln RO assigned a temporary total disability rating from September 9, 2010, to December 1, 2010, for surgical treatment necessitating convalescence, and in a March 2012 rating decision, entitlement to special monthly compensation at the housebound rate was also assigned from September 9, 2010, to December 1, 2010, in response to the December 2011 notice of disagreement (NOD) to the September 2011 rating decision submitted by the Veteran's attorney. As no further disagreement has been received on the issue of the temporary total rating assigned for surgical treatment necessitating convalescence, and the March 2012 rating decision granted all benefits sought on appeal on the issue of entitlement to a temporary total disability rating, as stated in the December 2011 NOD, the assignment of a temporary total rating for the Veteran's September 2010 right shoulder surgery has not been included in the characterization of the issue on appeal at this time. The issue of entitlement to an initial rating greater than 10 percent for a partial supraspinatus tear, SLAP tear, and acromioclavicular degenerative joint disease of the right shoulder is addressed in the REMAND portion of the decision below and is REMANDED to the RO. FINDING OF FACT The Veteran's bursitis of the left shoulder is manifested by pain, painful motion, localized tenderness, pain on palpitation, weakness, and impaired ability to engage in sustained use of the left shoulder. CONCLUSION OF LAW The criteria for an initial disability rating higher than 10 percent for service-connected bursitis of the left shoulder have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.6, 4.7, 4.10, 4.71a, Diagnostic Codes 5003, 5019, 5201 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION I. Duty to Notify and Assist The Department of Veterans Affairs (VA) has a duty to notify the claimant of the information and evidence that is necessary to substantiate the claim and a duty to assist claimants in obtaining that evidence. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.326(a) (2012). No further notification requirements were required in this case as the Veteran's claim for service connection was already granted and only the assignment of his initial rating is on appeal. Dingess v. Nicholson, 19 Vet. App. 473, 490-91 (2006); see also Goodwin v. Peake, 22 Vet. App. 128, 136 (2008) (holding that where a service-connection claim has been substantiated, the Veteran bears the burden of demonstrating any prejudice from defective VCAA notice with respect to downstream elements). The duty to assist has also been met as VA has obtained the Veteran's private treatment records, VA treatment records, and relevant service records, including his physical examinations for flight duty, and provided him with a thorough and contemporaneous VA examination. See 38 U.S.C.A. § 5103A; El-Amin v. Shinseki, 26 Vet. App. 136, 139 (2013); 38 C.F.R. § 3.159(c). The examiner fully considered the Veteran's prior medical history, including his lay statements; described the disability in sufficient detail; and provided reasoned medical explanations connecting the observations and conclusions. See id.; see also Buchanan v. Nicholson, 451 F.3d 1331, 1336-37 (Fed. Cir. 2006) (discussing the examiner's duty to consider lay evidence). Therefore, VA's duties to notify and assist have been met. As any additional development efforts would serve no useful purpose, there is no prejudice to the Veteran in adjudicating this appeal. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994); Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991). II. Evidentiary Standards The Veteran bears the burden of presenting and supporting the claim for benefits. 38 U.S.C.A. § 5107(a). When evaluating the claim, the Board must consider all pertinent medical and lay evidence. See Hogan v. Peake, 544 F.3d 1295, 1298 (Fed.Cir.2008). While lay witnesses are not competent to offer expert medical testimony, they are fully competent to testify as to their firsthand observations of the Veteran's visible symptoms. Chotta v. Peake, 22 Vet. App. 80, 84 (2008); Washington v. Nicholson, 21 Vet. App. 191, 195 (2007) (lay persons competent to provide information regarding visible, or otherwise observable symptoms of disability). The Board must analyze the credibility and probative value of the evidence, account for the evidence that it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. Kahana v. Shinseki, 24 Vet. App. 428, 433 (2011). Equal weight is not assigned to each piece of evidence as every item of evidence does not have the same probative value. Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). When there is an approximate balance of positive and negative evidence regarding service origin, the degree of disability, or any other issue material to the Veteran's claim, doubt will be resolved in favor of the Veteran. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. The Board has reviewed all of the evidence in the Veteran's claims file with an emphasis on the evidence relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, all of the evidence submitted by the appellant or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence); see also 38 U.S.C.A. § 7104(d)(1). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim. The appellant must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the claimant). III. Initial Rating Assigned for Left Shoulder Bursitis In April 2012, the RO granted service connection for bursitis of the left shoulder and assigned a 10 percent rating under 38 C.F.R. § 4.71a, Diagnostic Code 5019 effective from July 25, 2011. The Veteran disagrees with this assignment and contends that a higher disability rating is warranted. A. Law Governing the Assignment of Initial Disability Ratings Disability ratings are based on the average impairment of earning capacity resulting from the disability. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. An evaluation of the level of disability present includes consideration of the functional impairment of the Veteran's ability to engage in ordinary activities, including employment. 38 C.F.R. § 4.10. Separate diagnostic codes identify the various disabilities. See 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability more closely approximates the criteria required for that rating. 38 C.F.R. § 4.7. Otherwise, the lower rating will be assigned. Id. In a claim arising from the Veteran's dissatisfaction with the initial disability rating assigned pursuant to a grant of service connection, it is essential to review the Veteran's complete medical history to ensure that the rating accurately reflects the elements of disability present. Peyton v. Derwinski, 1 Vet. App. 282 (1991); 38 C.F.R. §§ 4.1, 4.2, 4.41; see generally Fenderson v. West, 12 Vet. App. 119 (1999). Further, the Board must determine whether the Veteran's history, from the date of initial application for service connection to the present, illustrates differing levels of severity of symptomatology over distinct time periods warranting different disability ratings for each distinct "stage." Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007) (("[S]taged ratings are appropriate for an increased-rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings."). B. Rating Disability of the Musculoskeletal System Disability of the musculoskeletal system is primarily the inability, due to damage or infection in the parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. 38 C.F.R. § 4.40. The functional loss may be due to absence of part, or all, of the necessary bones, joints and muscles, or associated structures, or to deformity, adhesions, defective innervation, or other pathology; or it may be due to pain, supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion. Id. Weakness is as important as limitation of motion, and a part which becomes painful on use must be regarded as seriously disabled. Id. When evaluating disability of a joint, VA must consider evidence of less movement than normal, more movement than normal, weakened movement, excess fatigueability, incoordination, pain on movement, swelling, and deformity or atrophy of disuse, as well as instability, disturbance of locomotion, and interference with sitting, standing, and weight-bearing. 38 C.F.R. § 4.45; see also DeLuca v. Brown, 8 Vet. App. 202, 207 (1995). VA must also consider further limitation of functional ability during flare-ups or when a joint is used repeatedly over a period of time. See DeLuca, 8 Vet. App. at 206; see also Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011). The intent of the schedule is to recognize painful motion with joint or periarticular pathology as productive of disability, and to recognize actually painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. Burton v. Shinseki, 25 Vet. App. 1, 1-2 (2011); 38 C.F.R. § 4.59. However, while pain may cause functional loss, pain, by itself, does not constitute further compensable functional loss unless there is evidence of pain of such severity that it affects the normal working movements of the body. Mitchell, 25 Vet. App. at 36. Where the diagnostic code is not predicated on the loss of range of motion, the provisions regarding pain in 38 C.F.R. §§ 4.40 and 4.45 do not apply. Johnson v. Brown, 9 Vet. App. 7, 11 (1996). C. Factual Background The Veteran was provided with a VA examination of his left shoulder in March 2012. In an April 2012 addendum, the examiner provided a diagnosis of left shoulder bursitis. The Veteran reported the onset of intermittent pain in the left shoulder when engaging in heavy lifting and overhead work in 1988. He reports symptoms similar to the symptoms he has experienced from his service-connected right shoulder rotator cuff tendon tear with a non-displaced flap tear and right acromioclavicular joint disease, now status post arthroscopic open rotator cuff repair with distal clavicle excision, but of less severity. He reported a history of mechanical symptoms such as clicking or catching, as well as interference with his occupational tasks. Specifically, he explained that he had to take regular breaks when running cable because of his left shoulder pain. He does not report any missed work as a result of his left shoulder disability. On examination, the Veteran exhibited full range of motion in all planes with no objective evidence of painful motion, and no additional loss of range of motion with repetition. There was localized tenderness or pain on palpitation and tenderness on palpitation of the acromioclavicular joint, but cross body adduction testing was normal. The examiner found that the Veteran did not have an acromioclavicular joint condition or any other impairment of the clavicle or scapula. Upon examination for rotator cuff conditions, Hawkins impingement testing was positive, but the other rotator cuff tests, specifically the empty can test, external rotation / infraspinatus strength test, and lift off test, were all negative. The Crank apprehension and relocation test for instability, dislocation, or labral pathology was also negative, and the Veteran did not report a history of recurrent dislocation of the shoulder. Muscle strength testing showed normal strength of the left shoulder on abduction and flexion. The examiner did not observe guarding of the left shoulder and the Veteran did not have ankylosis of the shoulder joint. The examiner noted that the Veteran is right-handed. Private treatment records pertaining to the Veteran's right shoulder surgery dated from September 2010 and January 2011 note that show full range of motion of the right shoulder. In December 2011, the Veteran's attorney noted that the Veteran had not yet sought treatment for his left shoulder disability beyond informal reports and assessments undertaken while seeking medical care for his right shoulder disability as of that date. The Veteran's attorney also stated that the Veteran reports symptoms of pain and weakness of the left shoulder. Specifically, the Veteran asserts that his left shoulder aches most of the time and flares up at least once and day. The Veteran is competent to attest to these symptoms and the Board finds that the description of symptoms in the December 2011 correspondence from the Veteran's attorney is credible as it is consistent with the symptoms reported at his March 2012 VA examination. Washington v. Nicholson, 19 Vet. App. 362, 368 (2005) (the Veteran, as a layperson, is competent to report symptoms of pain); Caluza v. Brown, 7 Vet. App. 498, 511 (1995) (credible testimony is that which is plausible or capable of being believed; in determining whether written statements are credible, the Board may properly consider internal consistency, facial plausibility, and consistency with other evidence submitted on behalf of the Veteran). D. Disability Evaluation of Bursitis of the Left Shoulder The Veteran's left shoulder bursitis is currently rated under 38 C.F.R. § 4.71a, Diagnostic Code 5019, which provides that bursitis will be rated on limitation of motion of the affected part, "as arthritis, degenerative." The normal range of motion of the shoulder is 0 to 180 degrees of flexion (forward elevation), 0 degrees to 180 degrees of abduction, 0 degrees to 90 degrees of external rotation, and 0 degrees to 90 degrees of internal rotation. 38 C.F.R. § 4.71, Plate I (2012). Limitation of motion of the arm at the shoulder is rated under Diagnostic Code 5201, which provides for a 20 percent rating when the range of motion of the minor arm is limited to shoulder level or midway between the side and shoulder level and a maximum 30 percent evaluation when the range of motion of the minor arm is limited to 25 degrees from the side. 38 C.F.R. § 4.71a. Where the limitation of motion of the affected joint is noncompensable under the applicable diagnostic code, a 10 percent rating will be assigned for each major joint or group of minor joints affected where otherwise noncompensable limitation of motion is objectively confirmed by findings such swelling, muscle spasm, or satisfactory evidence of painful motion. 38 C.F.R. § 4.71a, Diagnostic Code 5003. With full consideration of the effects of the pain and weakness reported by the Veteran, as well as the effects of his daily flare-ups, requiring regular breaks from his daily works tasks, the Board nevertheless finds that the Veteran is not entitled to a disability rating greater than 10 percent disabling for his bursitis of the left shoulder as his range of motion of the shoulder is not limited to shoulder level or lower. See DeLuca, 8 Vet. App. at 206; 38 C.F.R. § 4.71a, Diagnostic Code 5201. Both VA and private medical examinations show that the Veteran has full range of motion of the shoulder, and the VA examination report shows that the Veteran's range of motion is not further limited by pain or upon repetitive motion. However, as it is the policy of VA to recognize all joints which are actually painful as entitled to at least the minimum compensable rating, and the Veteran's bursitis of the left shoulder is manifested by pain, painful motion, localized tenderness, pain on palpitation, weakness, and impaired ability to engage in sustained use of the left shoulder, a 10 percent disability rating is warranted under Diagnostic Code 5003. See Burton, 25 Vet. App. at 1-2; 38 C.F.R. §§ 4.59; 4.71, Diagnostic Code 5019 (providing that bursitis will be rated as degenerative arthritis). The Veteran is not entitled to a rating higher than 10 percent under any other Diagnostic Code used to evaluate disabilities of the shoulder. See 38 C.F.R. § 4.71a, Diagnostic Codes 5200-5203. There is no ankylosis of the shoulder joint; no evidence of impairment of the humerus; and no evidence of malunion, nonunion, or dislocation of the clavicle or scapula, or impairment of function of a contiguous joint. Id. Nor is the Veteran entitled to any separate ratings for his left shoulder disability. The residual scarring reported by the examiner is associated with his right shoulder surgical history only and all manifestations of his left shoulder disability are accounted for by the 10 percent disability rating assigned under Diagnostic Code 5003 pursuant to Diagnostic Code 5019. See Brady v. Brown, 4 Vet. App. 203, 206 (1993) (the rating schedule may not be used to compensate the Veteran twice for the same symptomatology as this would overcompensate for the actual impairment of earning capacity and is referred to as "pyramiding"); 38 C.F.R. § 4.14; but see Esteban v. Brown, 6 Vet. App. 259 (1994) (separate and distinct manifestations attributable to the same injury will be compensated under different diagnostic codes). In denying entitlement to a schedular rating higher than 10 percent for bursitis of the left shoulder, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the Veteran's claim, that doctrine is not applicable. Ortiz v. Principi, 274 F. 3d. 1361, 1365 (Fed. Cir. 2001). E. Consideration of the Assignment of an Extraschedular Rating Generally, it is sufficient to evaluate a disability using either the corresponding or analogous diagnostic codes contained in the rating schedule. "However, in exceptional cases where the rating is inadequate, it may be appropriate to assign an extraschedular rating." Thun v. Peake, 22 Vet. App. 111, 114 (2008), aff'd sub nom. Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). "[D]etermination of whether a claimant is entitled to extraschedular rating under § 3.321(b) is a three-step inquiry." Id. at 115. First, the Board must determine whether the evidence presents "such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate." Id. To do this, the Board must determine whether the criteria found in the rating schedule reasonably describe the claimant's disability level and symptomatology. If so, the claimant's disability picture is contemplated by the rating schedule and the assigned schedular evaluation is, therefore, adequate, and no referral is required. Id. However, if the schedular evaluation does not contemplate the claimant's level of disability and symptomatology, VA will move to the second step of the analysis. Id. at 115-16. Under the second prong, the RO and Board must determine whether the claimant's exceptional disability picture exhibits other related factors such as "marked interference with employment" and "frequent periods of hospitalization." Id. In sum, if the Board determines that the schedular evaluation does not contemplate the claimant's level of disability and symptomatology, and the disability picture exhibits other related factors such as marked interference with employment or frequent periods of hospitalization, the case must be referred for completion of the third step-to determine whether, "to accord justice," an extraschedular rating must be assigned. Id. The symptoms associated with the Veteran's left shoulder bursitis (i.e., pain, painful motion, localized tenderness, pain on palpitation, weakness, and impaired ability to engage in sustained use of the left shoulder) do not cause any impairment not already contemplated by Diagnostic Code 5003 and the provisions pertaining to painful motion under 38 C.F.R. §§ 4.40 and 4.45 Therefore, the Board finds that the rating criteria reasonably describe his disability and referral for consideration of an extraschedular rating is not warranted. ORDER Entitlement to an initial rating greater than 10 percent for left shoulder bursitis is denied. REMAND The Board finds that a remand is required in order to obtain relevant private medical records identified by the Veteran. Specifically, the records from Dr. H, dated from January 2012 to the present, as requested in the VA Form 21-4142, Authorization and Consent to Release Information to VA, dated March 2013, as well as any other outstanding relevant VA or private treatment records adequately identified by the Veteran, should be obtained and associated with the claims folder or electronic records file. See 38 U.S.C.A. § 5103A(b); Ivey v. Derwinski, 2 Vet. App. 320, 323 (1992) (when reference is made to pertinent medical records, VA is on notice of their existence and has a duty to assist the Veteran to attempt to obtain them). As authorization forms are only valid for 180 days, the RO should, if necessary, obtain a current authorization form and explain the need for additional authorization to the Veteran, if necessary. While on remand, the RO should obtain a supplemental medical opinion from the examiner who conducted the January 2012 VA examination. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (holding that when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate). In consideration of the Veteran's September 2010 right shoulder arthroscopic open rotator cuff repair with distal clavicle excision, the examiner should, to the extent possible, provide an opinion as to whether the evidence supports the existence of distinct time periods where the Veteran's service-connected right shoulder disability exhibited symptoms producing varying levels of impairment in accordance with the Board's duty to consider the applicability of staged ratings. See Hart, 21 Vet. App. at 509-10 (2007). The examiner should also review any additional relevant treatment records obtained on remand, to include any records obtained from Dr. H., and explain whether any changes to the findings in the January 2012 VA examination report are necessary as a result of the additional medical evidence associated with the claims folder or electronic records file. See Green v. Derwinski, 1 Vet. App. 121, 124 (1991) (an adequate examination "takes into account the records of prior treatment, so that the evaluation of the claimed disability will be a fully informed one"). Accordingly, the case is REMANDED for the following action: 1. The RO should obtain the Veteran's outstanding contemporaneous treatment records for his right shoulder disability and associate these records with the claims folder or electronic records file, including his recent VA treatment records and his treatment records from Dr. H. See March 2013 VA Form 21-4142, Authorization and Consent to Release Information to VA. If necessary, contact the Veteran and obtain any additional information and/or authorization to obtain these records. 2. Then, request an addendum to the January 2012 VA examination report from the same examiner who conducted the January 2012 examination, if possible. If the same examiner is not available, a different examiner should be asked to review the claims folder and provide the requested opinion. If it is believed that an additional examination is needed to better assess the current severity of the Veteran's disability, one should be scheduled. Based on the review of this Remand and the claims folder, to include consideration of the Veteran's lay statements of record, the examiner should explain whether any changes to the findings in the January 2012 VA examination report are necessary following review of any additional medical evidence associated with the claims folder or electronic records file since the January 2012 VA examination, including any records obtained from Dr. H., dated from January 2012 to the present. The examiner should determine whether the Veteran experienced additional functional loss in excess of that reported in the VA examination reports, and, if so, state any additional limitation of motion experienced during this period in terms of degrees, if possible. If any requested information cannot be provided without resort to speculation, for example, the additional limitation of motion caused by repetitive use, pain, fatigueability, etc., the examiner should indicate whether the inability to provide a definitive opinion is due to a need for further information, because the limits of medical knowledge have been exhausted, or for some other reason. The examiner must identify the facts relied on in reaching any opinion provided and provide a full explanation as to why those particular facts support the examiner's conclusions. 3. Finally, after all appropriate development has been completed, the RO should readjudicate the claim on appeal. Such readjudication should take into account any lost motion of the right shoulder caused by repetitive use, pain, fatigueability, etc., and whether "staged" ratings are appropriate. If the claim remains denied, provide the Veteran and his representative with a supplemental statement of the case and allow an appropriate time for response. The appellant has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals 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. 2012). ______________________________________________ K. Parakkal Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs