Citation Nr: 1325416 Decision Date: 08/12/13 Archive Date: 08/16/13 DOCKET NO. 10-40 897 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Indianapolis, Indiana THE ISSUE Entitlement to an increased rating for residuals of a right shoulder dislocation, currently rated as 20 percent disabling. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD J. M. Kirby, Counsel INTRODUCTION The Veteran served on active duty from January 1982 to December 1989. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Indianapolis, Indiana. The Veteran testified at a May 2011 hearing by the undersigned held sitting at the RO. A transcript of that hearing is associated with the claims file. Subsequent to the May 2011 Board hearing, the Veteran submitted private treatment records pertaining to the issue on appeal, along with a waiver of review by the RO. FINDING OF FACT Manifestations of the Veteran's right shoulder dislocation residuals include right shoulder flexion to 145 at worst, right shoulder abduction to 90 at worst, and X-ray evidence of arthritis. CONCLUSION OF LAW The criteria for greater than a 20 percent rating for right shoulder dislocation residuals have not been met. 38 U.S.C.A. §§ 1155, 5103A, 5107 (West 2002); 38 C.F.R. §§ 4.40, 4.45, 4.71a, Diagnostic Code 5010-5201 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION VA's Duties to Notify and to Assist A review of the claims file reveals that VA has met all statutory and regulatory notice and duty to assist provisions in this case. VA has met all statutory and regulatory notice and duty to assist provisions. See 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, 3.326 (2012). An April 2009 letter satisfied the duty to notify provisions, to include notifying the Veteran of regulations pertinent to the establishment of an effective date and of the disability rating. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b) (1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002); Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The Veteran's service treatment records, VA medical treatment records, and identified private medical records have been obtained. 38 U.S.C.A. § 5103A, 38 C.F.R. § 3.159. The Social Security Administration (SSA) notified VA in October 2010 that they possessed no records concerning the Veteran. 38 C.F.R. § 3.159 (c) (2); Golz v. Shinseki, 590 F.3d 1317, 1320-21 (Fed. Cir. 2010). The June 2009 fee-based examination is adequate for rating purposes. 38 C.F.R. § 3.159(c) (4); Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). It considered the Veteran's subjective complaints, and documented range of motion testing, both initial and after repetition; radiology tests were completed and the examiner addressed functional loss and painful motion. The Board acknowledges that the Veteran was last examined in 2009, however, the passage of time alone is not a sufficient reason to seek additional development. Moreover, during the hearing, the Veteran testified that his symptoms had not increased in severity; they are the same, although he feels that a higher rating is warranted. The Veteran also submitted private treatment reports that are being considered too. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the United States Court of Appeals for Veterans Claims (Court) recently held that 38 C.F.R. § 3.103(c)(2) (2012) requires that the Veterans Law Judge (VLJ) who conducts 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 Board hearing the VLJ, in essence, noted the various bases on which the Veteran could substantiate his claim for an increased rating, and inquired as to the Veteran's symptomatology, to include whether it increased in severity with activity. The Veteran was assisted at the hearing by an accredited representative who, like the VLJ, asked questions to ascertain the Veteran's current level of disability and further detail the Veteran's symptomatology. The VLJ also inquired as to additional evidence not already associated with the record, and allowed the record to remain open for an additional 30 days so that the Veteran could submit that evidence. The record does not reflect that there is other outstanding pertinent evidence that would substantiate the claim. 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. Neither the representative nor the Veteran has suggested any deficiency in the conduct of the hearing. Therefore, the Board finds that, consistent with Bryant, the VLJ complied with the duties set forth in 38 C.F.R. § 3.103(c) (2). Review of the record does not indicate that additional evidence pertinent to the issue adjudicated in this decision is available, but not associated with the claims file. See Pelegrini v. Principi, 18 Vet. App. 112 (2004). As there is no indication VA did not provide sufficient notice or assistance, such that it reasonably affects the outcome of the case, the Board finds that any such lack of sufficient notice is harmless. See Mayfield v. Nicholson, 20 Vet. App. 537 (2006); see also Dingess/Hartman, 19 Vet. App. at 486; Shinseki v. Sanders/Simmons, 129 S. Ct. 1696 (2009). Law, Regulations & Analysis At the outset, all the evidence in the Veteran's claims file has been thoroughly reviewed. Although an obligation to provide sufficient reasons and bases in support of an appellate decision exists, there is no need to discuss, in detail, all of the evidence submitted by the Veteran or on his or her behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (holding that the entire record must be reviewed, but each piece of evidence does not have to be discussed). The analysis in this decision focuses on the most salient and relevant evidence, and on what the evidence shows or fails to show with respect to the appeal. The Veteran must not assume that pieces of evidence, not explicitly discussed herein, have been overlooked. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (noting that the law requires only that reasons for rejecting evidence favorable to the claimant be addressed). Although the Veteran testified at his May 2011 Board hearing that his disability has not increased in severity since his last VA examination, he has maintained that his right shoulder symptomatology warrants greater than the 20 percent rating currently assigned. He also testified that he has daily pain, limited function to the extent that he cannot put his hand behind his back, and functional loss manifested as pain, fatigue, weakness, and lack of endurance which make the condition more severe. Disability ratings are determined by the application of the VA's Schedule for Rating Disabilities (Schedule), which is based on the average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4 (2012). Pertinent regulations do not require that all cases show all findings specified by the Schedule, but that findings sufficient to identify the disease and the resulting disability and above all, coordination of the rating with impairment of function will be expected in all cases. 38 C.F.R. § 4.21 (2012). Although the evaluation of a service-connected disability requires a review of a veteran's medical history with regard to that disorder, the primary concern in a claim for an increased rating for service-connected disability is the present level of disability. VA is directed to review the recorded history of a disability in order to make a more accurate evaluation; however, the regulations do not give past medical reports precedence over current findings. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). VA has a duty to consider the possibility of assigning staged ratings in all claims for increase. See Hart v. Mansfield, 21 Vet. App. 505 (2007). The Veteran's right shoulder dislocation residuals are evaluated under the provisions of 38 C.F.R. § 4.71a, Diagnostic Code 5010-5201. 38 C.F.R. § 4.71a, Diagnostic Code 5010 (2012). Diagnostic Code 5010 contemplates traumatic arthritis, and directs that such a disability, as substantiated by x-ray findings, be rated as degenerative arthritis under Diagnostic Code 5003. 38 C.F.R. § 4.71, Diagnostic Code 5010. Degenerative arthritis established by x-ray findings will be rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved. 38 C.F.R. § 4.71a, Diagnostic Code 5003. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm or satisfactory evidence of painful motion. When the limitation of motion of the specific joint or joints involved is noncompensable under the appropriate diagnostic codes, a rating of 10 percent is applied for each major joint or group of minor joints affected by limitation of motion. The normal range of motion of the shoulder is from 0 degrees of flexion (forward elevation) to 180 degrees of flexion, from 0 degrees of abduction to 180 degrees of abduction, from 0 degrees of external rotation to 90 degrees of external rotation, and from 0 degrees of internal rotation to 90 degrees of internal rotation. 38 C.F.R. § 4.71, Plate I (2012). The June 2009 VA examination report reflects that the Veteran is right-handed; therefore, his service-connected right shoulder disorder affects his major (dominant) arm. Diagnostic Code 5201 provides for a 20 percent rating when the range of motion of the major arm is limited to shoulder level (90 degrees from side); a 30 percent rating when limited to midway between the side and shoulder level (45 degrees from side); and the maximum 40 percent rating when limited to 25 degrees from the side. 38 C.F.R. § 4.71a, Diagnostic Code 5201. The assignment of a rating in excess of 20 percent is not warranted at any point during the pendency of this appeal. Range of motion testing showed flexion to 155 degrees and abduction to 120 degrees at the June 2009 VA examination; flexion to 170 degrees at August 2009 and September 2009 private visits, and flexion to 165 degrees at an October 2009 private visit. As the next highest rating requires flexion or abduction of the shoulder to be limited to midway between the side and shoulder level (45 degrees from side), a rating greater than 20 percent under Diagnostic Code 5201 based on range of motion is not warranted. 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 (2012); DeLuca v. Brown, 8 Vet. App. 202 (1995). 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, supra. 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; Mitchell, supra. 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. However, the assignment of a rating greater than 20 percent is also not warranted on the basis of functional loss. The June 2009 fee-based examiner did note that after repetition, abduction of the right shoulder was limited to 90 degrees in the presence of pain, fatigue, weakness, and lack of endurance. However, this more closely approximates the currently assigned rating of 20 percent disabling (range of motion limited to shoulder level), not the next highest rating of 30 percent (range of motion limited to halfway between shoulder level and side). While the Veteran also testified during his Board hearing that he could not put his arm behind his back, the currently assigned rating contemplates that flexion and abduction are limited to 90 degrees; for a claimant to be unable to put the affected extremity's hand behind the back is contemplated by such a moderate degree of limited motion. It is also noted that consideration has been given to whether an increased rating is for application based on other diagnostic codes pertaining to the shoulder and arm. See Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). However, as impairment of the clavicle or scapula, or other impairment of the humerus, is not shown, Diagnostic Codes 5202 and 5203 are not for application. 38 C.F.R. § 4.71a, Diagnostic Codes 5202, 5203 (2012). As previously noted, the Veteran's complaints of daily pain, limited function to the extent that he cannot put his hand behind his back, and functional loss manifested as pain, fatigue, weakness, and lack of endurance which make the condition more severe have been considered. Yet, the objective clinical evidence of record does not support the assignment of an increased rating. More importantly, the Veteran has testified that his symptoms have not increased in severity, but he believes a higher rating is warranted. In spite of the Veteran's complaints and appellate assertions, which are competent and credible, the Board finds that they are outweighed by the more probative objective evidence of record which has remained consistent throughout the pendency of this appeal. While the Veteran experiences pain, fatigue, weakness and limitation of motion, his loss of motion and functional impairment still are not illustrative of the criteria required for the assignment of a higher rating. 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 service-connected right shoulder disability. While it is productive of pain, limited motion, and to a degree not warranting a higher rating than currently assigned, functional impairment, these manifestations that are contemplated in the rating criteria. The rating criteria are therefore adequate to evaluate the Veteran's right shoulder disability, and referral for consideration of extraschedular rating is not warranted. Finally, the Board does not find that this case raises a claim for a total disability rating based upon individual unemployability (TDIU). See Rice v. Shinseki, 22 Vet. App. 447, 454 (2009). The Veteran has consistently reported throughout the course of the appeal, to include at his May 2011 Board hearing, that he works full-time and has not experienced time missed from work due to his right shoulder disability. Therefore, the Board finds that a claim for TDIU has not been raised by the Veteran or the record. Because the criteria required to assign a rating greater than 20 percent disabling are not met, the preponderance of the evidence is against the Veteran's claim for an increase rating. As such, the benefit of the doubt doctrine is inapplicable, and the claim must be denied. See 38 C.F.R. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER An increased rating in excess of 20 percent for residuals of a right shoulder dislocation is denied. ____________________________________________ C. CRAWFORD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs