Citation Nr: 1326140 Decision Date: 08/16/13 Archive Date: 08/26/13 DOCKET NO. 07-25 458 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to a rating higher than 20 percent for a left shoulder disability involving degenerative joint disease (DJD/arthritis) and recurrent dislocation (except from May 1 to June 30, 2007, when there was a temporary 100 percent convalescent rating under 38 C.F.R. § 4.30). REPRESENTATION Veteran represented by: The American Legion ATTORNEY FOR THE BOARD C. Kedem, Counsel INTRODUCTION The Veteran served on active duty in the military from March 1961 to April 1965. He appealed to the Board of Veterans' Appeals (Board/BVA) is from August and November 2006 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida, which denied his claim for a rating higher than 20 percent for his service-connected left shoulder disability. Following left shoulder surgery on May 1, 2007, however, the RO issued a July 2007 rating decision awarding a temporary total, i.e., 100 percent rating, for this disability under 38 C.F.R. § 4.30 ("Paragraph 30") to compensate him for his convalescence. Effective July 1, 2007, upon termination of that temporary total convalescent rating, the prior 20 percent rating resumed. He since has continued to appeal, requesting a rating higher than 20 percent for this disability for the time he did not have that temporary total rating. See AB v. Brown, 6 Vet. App. 35, 38-39 (1993) (A Veteran is presumed to be seeking the highest possible rating, unless he expressly indicates otherwise). In March 2011, the Board remanded this claim to the RO via the Appeals Management Center (AMC) for further development. The remand directives have been accomplished satisfactorily, allowing the Board to proceed with its adjudication of this claim. See Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (another remand not required under Stegall v. West, 11 Vet. App. 268, 271 (1998), where the Board's remand instructions were substantially complied with), aff'd, Dyment v. Principi, 287 F.3d 1377 (Fed. Cir. 2002). FINDING OF FACT The service-connected left (minor) shoulder disability is manifested by pain, limitation of motion, some dislocation, stiffness, weakness, and guarding. CONCLUSION OF LAW The criteria are not met for a rating higher than 20 percent for the left shoulder disability. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5202 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Veterans Claims Assistance Act of 2000 (VCAA) As provided by the VCAA, VA has duties to notify and assist Veterans in substantiating claims for VA benefits upon receipt of a complete or substantially complete application. 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(a) (2012). More specifically, VA has a duty to notify the claimant of: (1) the information and evidence needed to substantiate the claim; (2) the information and evidence that VA will obtain; and (3) the information and evidence he is expected to provide. 38 U.S.C.A. §§ 5102, 5103(a); 38 C.F.R. § 3.159(b). See also Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). Ideally, this notice should precede the initial adjudication of the claim. See Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II). However, both the U. S. Court of Appeals for the Federal Circuit (Federal Circuit Court) and the U. S. Court of Appeals for Veterans Claims (Court/CAVC) have clarified that, even when notice is not provided prior to initially adjudicating a claim or, if provided, was inadequate or incomplete, VA need only provide all necessary notice, give the Veteran opportunity to submit additional evidence and/or argument in response, and then readjudicate the claim, including in a statement of the case (SOC) or supplemental SOC (SSOC), such that the essential fairness of the adjudication, as a whole, is unaffected because he is still provided meaningful opportunity to participate effectively in the adjudication of the claim. See Mayfield v. Nicholson, 499 F.3d 1317, 1323 (Fed. Cir. 2007) (Mayfield IV) (holding that an SOC or SSOC can constitute a "readjudication decision" that complies with all applicable due process and notification requirements if adequate VCAA notice is provided prior to the SOC or SSOC). As a matter of law, the provision of adequate VCAA notice prior to a readjudication "cures" any timing problem associated with inadequate notice or the lack of notice prior to an initial adjudication. See also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). In Shinseki v. Sanders, 129 S. Ct. 1696 (2009), the U. S. Supreme Court made clear that VCAA notice errors, even when shown to have occurred, are not presumptively prejudicial, instead, must be judged on an individual case-by-case basis. Moreover, as the pleading party attacking the agency's decision, the Veteran, not VA, has this burden of proof of not only establishing error but also, above and beyond that, of showing how it is unduly prejudicial, meaning outcome determinative of his claim. In this particular case at hand, a VCAA notice letter sent in May 2006, prior to adjudicating the claim in the August and November 2006 decisions at issue, satisfied the requirements of 38 U.S.C.A. § 5103(a). The letter duly apprised the Veteran of the information and evidence not then of record that was necessary to substantiate the claim; the information and evidence that VA would obtain; and the information and evidence he instead was expected to provide. In increased-rating claims, VA need only provide "generic" notice, not also apprise the Veteran of alternative diagnostic codes or daily-life evidence. See Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009), overruling the lower Court's holdings in Vasquez-Flores v. Peake, 22 Vet. App. 37 (2008). With regards to the duty to assist the Veteran with his claim, the Board is also satisfied VA has made the required efforts to obtain relevant records and evidence. Specifically, the information and evidence that has been obtained and associated with the claims file for consideration includes his service treatment records (STRs), VA treatment records, private medical records, VA examination reports, and his lay statements. In May 2006 and June 2011, the latter on remand, the RO/AMC provided him VA compensation examinations to assist in assessing the severity of his left shoulder disability. An addendum to the June 2011 VA examination report was provided in July 2011, so there is sufficient information to address the relevant rating criteria. As the VA examination reports and addendum were written after an interview with the Veteran and objective clinical evaluation and contain specific findings indicating the nature and functional limitations of his disability, the VA examination reports and addendum are adequate for rating purposes, and there is no duty to provide an additional examination or medical opinion for this claim. Nieves-Rodriguez v. Peake, 22 Vet. App 295 (2008); see Barr v. Nicholson, 21 Vet. pp. 303 (2007) (finding that VA must provide an examination that is adequate for rating purposes and ensure the adequacy of any examination provided or opinion obtained). See also 38 C.F.R. §§ 3.327(a), 4.2, collectively indicating it is incumbent on the VA rater to return an inadequate examination for correction). Further, the Veteran has not made the Board aware of any additional evidence that needs to be obtained prior to appellate review of his claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. Therefore, the Board finds that there is no reason to believe that any possible outstanding records would contain information relating to his claim. In view of this, the Board finds that VA has fulfilled its duties to notify and assist the Veteran in the development of this claim. Adjudication of the claim at this juncture, without directing or accomplishing any additional notification and/or development action, poses no risk of prejudicing him. Bernard v. Brown, 4 Vet. App. 384, 394 (1993). Standard of Review After the evidence has been assembled, it is the Board's responsibility to evaluate the entire record. 38 U.S.C.A. § 7104(a) (West 2002). When there is an approximate balance of evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107; 38 C.F.R. §§ 3.102, 4.3 (reasonable doubt to be resolved in Veteran's favor). In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the Court (CAVC) stated that "a Veteran need only demonstrate that there is an 'approximate balance of positive and negative evidence' in order to prevail." To deny a claim on its merits, the preponderance of the evidence must be against the claim. See Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. Increased Ratings Disability evaluations are determined by the application of the Schedule for Rating Disabilities (Rating Schedule), which assigns ratings based on the average impairment of earning capacity resulting from a service-connected disability. 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 picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the Veteran's condition. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). "Staged" ratings are appropriate for an increased-rating claim when the factual findings show distinct time periods where the service-connected disability exhibited symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). The Veteran's service-connected left shoulder disability has been rated 20-percent disabling (other than from May 1 to June 30, 2007, when he had the temporary 100 percent convalescent rating under 38 C.F.R. § 4.30). The disability is rated under 38 C.F.R. § 4.71a, Diagnostic Code 5202. In assessing the severity of limitation of shoulder motion, it is necessary to consider both forward flexion and abduction. Mariano v. Principi, 17 Vet. App. 305, 317-18 (2003). Normal ranges of motion of the shoulder are flexion (forward elevation) from 0 to 180 degrees, abduction from 0 to 180 degrees, external rotation from 0 to 90 degrees, and internal rotation from 0 to 90 degrees. 38 C.F.R. § 4.71, Plate I. Diagnostic Code 5202 pertains to other impairment of the humerus. As concerning the minor upper extremity, flail shoulder warrants a 70 percent evaluation. 38 C.F.R. § 4.71a, Diagnostic Code 5202. False flail joint warrants a 50 percent evaluation. Id. Fibrous union of the humerus warrants a 40 percent evaluation. Id. Malunion of the humerus with moderate deformity is rated as 20-percent disabling; malunion of the humerus with marked deformity is also rated as 20-percent disabling for the minor shoulder. As well, recurrent dislocations of the humerus at the scapulohumeral joint, with infrequent episodes, and guarding of movement only at the shoulder level, are rated as 20-percent disabling for the minor shoulder; so, too, are recurrent dislocations of the humerus at the scapulohumeral joint, with frequent episodes and guarding of all arm movements, rated as 20-percent disabling for the minor shoulder. Id. During his VA compensation examination in May 2006, the Veteran reported left shoulder instability, pain, stiffness, weakness, infrequent locking, limitation of motion, and flare-ups. Forward flexion was to 90 degrees with pain at 90 degrees, so not until the terminal endpoint. Abduction was to 70 degrees with pain at 70 degrees, again, not until the terminal endpoint. External rotation was to 30 degrees with pain at 30 degrees (endpoint). Internal rotation was to 70 degrees with pain at 70 degrees (endpoint). There was no left shoulder ankylosis. The diagnosis was degenerative disease of the left shoulder/chronic tendinitis status-post left shoulder surgery for a history of chronic dislocation of the left shoulder. Exercise was mildly restricted due to the left shoulder disability. Chores and recreation were moderately restricted due to the left shoulder disability. Sports were precluded due to the service-connected left shoulder disability. However, the service-connected left shoulder disability had no impact upon shopping, traveling, feeding, bathing, dressing, toileting, and grooming. The examiner indicated the Veteran's left shoulder disability was moderate to severe in nature. The examination report indicates his left shoulder is his minor shoulder. An August 2006 private medical report list a diagnosis of left shoulder pain with chronic instability. A September 2006 X-ray of the left shoulder revealed impingement with rotator cuff degeneration, chronic instability with post-operative changes, and osteoarthritic changes to the left upper extremity. In May 2007, the Veteran underwent an arthroscopy of his left shoulder. The post-operative diagnosis was chronic left subacromial bursitis with impingement and left shoulder degenerative arthritis. In June 2007, left shoulder range of motion was again measured. Abduction was to 80 degrees and forward flexion to 90 degrees. No external and internal rotation measurements were provided. In July 2008, the Veteran underwent another left shoulder arthroscopy with a mini-open rotator cuff repair. The post-operative diagnosis was chronic left subacromial bursitis, possible torn rotator cuff. During his more recent June 2011 VA compensation examination, he complained of constant left shoulder pain. The pain was aggravated by mowing the lawn and yard work. He could not do overhead activity. According to the examiner, there was left shoulder pain, stiffness, weakness, and decreased speed of joint motion. There was no deformity, giving way, instability, incoordination, dislocation or subluxation, locking, effusion, inflammation, or flare-ups of joint disease. The examiner found crepitus, tenderness, pain at rest, weakness, abnormal motion, and guarding of movement. There was objective evidence of pain on motion. Forward flexion was to 70 degrees, abduction to 40 degrees, internal rotation to 10 degrees, and external rotation to 20 degrees. The examiner indicated the Veteran had retired due to a back disability (so not because of his left shoulder disability). The examiner stated that the service-connected left shoulder disability would have the following impact on employment: decreased mobility, decreased manual dexterity, problems with lifting and carrying, difficulty reaching, weakness, fatigue, and pain. The left shoulder disability had no impact on feeding. It had a mild impact on traveling. It had a moderate impact on driving, grooming, toileting, dressing, and shopping. It had a severe impact on recreation. It prevented sports and chores. The examiner diagnosed left shoulder status-post four surgeries including rotator cuff repair. An evaluation higher than 20 percent under Diagnostic Code 5202, as concerning the minor upper extremity, requires fibrous union of the humerus, false flail joint, or flail shoulder. The Veteran is not shown to have this type of impairment, however, in turn precluding assignment of a higher rating under this code. But the Board also has considered whether a higher rating is warranted under any other code concerning disabilities affecting the minor shoulder. Diagnostic Code 5200 pertains to ankylosis of scapulohumeral articulation, but there is no suggestion the Veteran's left shoulder is ankylosed in this respect, therefore precluding assignment of a higher rating under this code. For point of explanation, ankylosis is "[s]tiffening or fixation of a joint as the result of a disease process, with fibrous or bony union across the joint." Dinsay v. Brown, 9 Vet. App. 79, 81 (1996) (quoting from Stedman's Medical Dictionary 87 (25th ed. 1990)). According to Dorland's Illustrated Medical Dictionary at 86 (27th ed. 1988), ankylosis is "immobility and consolidation of a joint due to disease, injury, or surgical procedure." See also Coyalong v. West, 12 Vet. App. 524, 528 (1999). See, too, Lewis v. Derwinski, 3 Vet. App. 259 (1992) [citing Saunders Encyclopedia and Dictionary of Medicine, Nursing, and Allied Health at 68 (4th ed. 1987)]. Alternatively, Diagnostic Code 5203 pertains to impairment of the clavicle or scapula. But there is no indication the Veteran suffers from impairment of the clavicle or scapula, so Diagnostic Code 5203 does not apply either. Diagnostic Code 5201 pertains to limitation of motion of the arm. According to this code, regarding the minor upper extremity, arm motion to shoulder level or to midway between the side and shoulder level warrants a 20 percent evaluation. Id. Arm motion to just 25 degrees from the side warrants a 30 percent evaluation. Id. The Board cannot assign a 30 percent evaluation under this code because the Veteran can move (elevate) his arm to more than 25 degrees from his side. Indeed, this is true even considering the extent of his pain. See DeLuca v. Brown, 8 Vet. App. 202, 204-07 (1995). When evaluating disabilities of the musculoskeletal system that are at least partly rated based on the extent they cause limitation of motion, 38 C.F.R. § 4.40 allows for consideration of functional loss due to pain and weakness causing additional disability beyond that reflected in range-of-motion measurements. Deuce v. Brown, 8 Vet. App. 202 (1995). Further, 38 C.F.R. § 4.45 provides that consideration also be given to weakened movement, excess fatigability and incoordination. Painful motion is an important factor of disability, and it is the intention of the Rating Schedule to recognize actually painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. See 38 CF.R. § 4.59. See also Burton v. Shinseki, 25 Vet. App. 1 (2011) (holding that 38 C.F.R. 4.59 is not limited to cases involving arthritis). Functional loss due to pain is rated at the same level as functional loss where motion is impeded. See Schafrath v. Derwinski, 1 Vet. App. 589, 592 (1991). Pursuant to § 4.59, painful motion should be considered limited motion, even though a range of motion may be possible beyond the point when pain sets in. See Powell v. West, 13 Vet. App. 31, 34 (1999); Hicks v. Brown, 8 Vet. App. 417, 421 (1995). A finding of functional loss due to pain, however, must be supported by adequate pathology and evidenced by the visible behavior of the Veteran. 38 C.F.R. § 4.40; Johnston v. Brown, 10 Vet. App. 80, 85 (1997). Moreover, although pain may cause a functional loss, pain itself does not constitute functional loss. See Mitchell v. Shinseki, 25 Vet. App. 32, 33, 43 (2011) (emphasis added). Rather, pain must affect some aspect of "the normal working movements of the body" such as "excursion, strength, speed, coordination, and endurance," in order to constitute functional loss. Id.; see 38 C.F.R. § 4.40. Here, even considering the Veteran's pain and other manifestations (e.g., left shoulder instability and weakness, etc.), they do not result in additional functional impairment - such as additional limitation of motion - at least not to the point of entitling him to a rating higher than 20 percent. And this has remained true since one year immediately preceding the filing of this increased-rating claim, except as mentioned for when he had the temporary 100 percent convalescent rating under § 4.30. The Board therefore cannot further "stage" this rating. Hart, supra. See also 38 U.S.C.A. § 5110(b)(2); 38 C.F.R. § 3.400(o)(2). The Court has held that, if the claimant or record reasonably raises the question of whether the Veteran is unemployable due to the disability for which an increased rating is sought, then part and parcel to that claim for an increased rating is whether a total disability rating due to individual unemployability (TDIU) as a result of that disability is warranted. Rice v. Shinseki, 22 Vet. App. 447 (2009). Here, though, the Board finds that a derivative claim for a TDIU is not raised by the record or by the Veteran personally. Specifically, although his left shoulder disability no doubt would have some noticeable impact on his employment, as even the VA compensation examiners have affirmed, it is not shown he is unemployable because of this disability. He indicated that he stopped working because of his back disability, not instead on account of his left shoulder disability, and there is no indication in the evidence since dated suggesting his left shoulder disability precludes him from engaging in all forms of substantially gainful employment (both physical and sedentary). The disability rating, itself, contemplates there is impairment in employment and is meant to compensate him for the corresponding decline in earning capacity (the delta so to speak between what he could earn if not disabled and what he can earn when considering his disability). 38 C.F.R. §§ 4.1, 4.15. See also Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). Therefore, the Board finds that no further consideration of a TDIU is warranted. Id. In deciding this claim, the Board has considered the provisions of 38 U.S.C.A. § 5107(b) and 38 C.F.R. § 4.3, but there is not such a state of approximate balance of the positive evidence with the negative evidence to otherwise warrant a favorable decision. Extra-schedular Consideration The Board additionally has considered whether referral for extra-schedular evaluation is warranted for the Veteran's left shoulder disability. Ordinarily, the VA Rating Schedule will apply unless there are exceptional or unusual factors that would render application of the schedule impractical. See Fisher v. Principi, 4 Vet. App. 57, 60 (1993). The question of an extra-schedular rating is a component of a claim for an increased rating. See Bagwell v. Brown, 9 Vet. App. 337, 339 (1996). And although the Board may not assign an extra-schedular rating in the first instance, it must specifically adjudicate whether to refer a case for extra-schedular evaluation when the issue either is raised by the claimant or reasonably raised by the evidence of record. Barringer v. Peake, 22 Vet. App. 242 (2008). The threshold factor for extra-schedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Therefore, initially, there must be a comparison between the level of severity and symptomatology of the Veteran's service-connected disability with the established criteria found in the Rating Schedule for that disability. Thun v. Peake, 22 Vet. App. 111 (2008). Under the approach prescribed by VA, if the criteria reasonably describe a Veteran's disability level and symptomatology, then the Veteran's disability picture is contemplated by the Rating Schedule, the assigned schedular evaluation is, therefore, adequate, and no referral is required. In the second step of the inquiry, however, if the schedular evaluation does not contemplate a Veteran's level of disability and symptomatology and is found inadequate, the RO or Board must determine whether the Veteran's exceptional disability picture exhibits other related factors such as those provided by the regulation as "governing norms." 38 C.F.R. 3.321(b)(1) (stating that related factors include "marked interference with employment" and "frequent periods of hospitalization"). When the Rating Schedule is inadequate to evaluate a Veteran's disability picture, and that picture has related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for completion of the third step, a determination of whether, to accord justice, the claimant's disability picture requires the assignment of an extra-schedular rating. 38 C.F.R. 3.321(b)(1). In Mittleider v. West, 11 Vet. App. 181 (1998), the Court held that the benefit-of-the-doubt doctrine applies to determinations of whether a symptom should be attributed to a service-connected condition. Id. at 182. Here, the Board has considered Mittleider and with this in mind has attributed all potentially service-connected symptoms to the service-connected disability in considering whether the Veteran is entitled to an extra-schedular rating for this disability. Looking at the first step of the Thun extra-schedular analysis, the Veteran's left shoulder disability has been manifested by degenerative changes (arthritis), limitation of motion, pain, weakness, guarding, stiffness, and dislocation - albeit now apparently infrequent. The schedular rating criteria, however, specifically contemplate ratings based on limitation of motion, including motion limited to factors such as pain, weakness, and guarding (see again 38 C.F.R. §§ 4.40, 4.45, 4.59, and DeLuca). So comparing the Veteran's disability level and symptomatology of the left shoulder to the Rating Schedule, the degree of disability throughout the entire period under consideration is contemplated by the Rating Schedule and the assigned rating is, therefore, adequate. To reiterate, the Rating Schedule is intended to compensate for average impairments in earning capacity resulting from service-connected disability in civil occupations. 38 U.S.C.A. § 1155. "Generally, the degrees of disability specified [in the Rating Schedule] are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability." 38 C.F.R. § 4.1. In this case, the problems reported by the Veteran are specifically contemplated by the criteria discussed above. In the absence of exceptional factors associated with his left shoulder disability, the Board finds that the criteria for submission for assignment of an extra-schedular rating pursuant to 38 C.F.R. § 3.321(b)(1) are not met. See Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). ORDER The claim of entitlement to a rating higher than 20 percent for the service-connected left shoulder disability is denied. ____________________________________________ KEITH W. ALLEN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs