Citation Nr: 1327316 Decision Date: 08/26/13 Archive Date: 08/29/13 DOCKET NO. 03-25 883A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to a disability rating in excess of 30 percent for rotary subluxation of the left (major) sternoclavicular joints. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD David Gratz, Counsel INTRODUCTION The Veteran served on active duty from January 1989 to January 1991. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2002 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. The Veteran was scheduled to present testimony before a Veterans Law Judge at a travel board hearing in October 2009. However, the Veteran failed to report to the hearing. As the record does not contain good cause and a request to reschedule the hearing, the Board deems the Veteran's request for such a hearing to be withdrawn. See 38 C.F.R. § 20.704(d). In March 2010, the Board remanded this case for further development. The case has returned to the Board for appellate review. FINDINGS OF FACT 1. The Veteran's service-connected rotary subluxation of the left (major) sternoclavicular joints is characterized by limitation of motion of the left arm to midway between side and shoulder level. 2. The Veteran does not have ankylosis of the scapulohumeral articulation or other impairment of the humerus, clavicle, or scapula. CONCLUSION OF LAW The criteria for the assignment of a rating in excess of 30 percent for rotary subluxation of the left (major) sternoclavicular joints have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 4.1-4.14, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5201 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). Proper notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide in accordance with 38 C.F.R. § 3.159(b)(1). Pelegrini v. Principi, 18 Vet. App. 112, 120-121 (2004). This notice should be provided prior to an initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ). Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). In addition, the notice requirements of the VCAA apply to all five elements of a claim, including: (1) Veteran status; (2) existence of a disability; (3) a connection between the Veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. See Dingess v. Nicholson, 19 Vet. App. 473 (2006). Further, this notice must include notice that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Id. at 486. For an increased-compensation claim, section § 5103(a) requires, at a minimum, that the Secretary notify the claimant that, to substantiate a claim, the claimant must provide, or ask the Secretary to obtain, medical or lay evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on the claimant's employment and daily life. Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008), vacated on other grounds sub nom., Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009). Further, if the diagnostic code under which the claimant is rated contains criteria necessary for entitlement to a higher disability rating that would not be satisfied by the claimant demonstrating a noticeable worsening or increase in severity of the disability and the effect that worsening has on the claimant's employment and daily life (such as a specific measurement or test result), the Secretary must provide at least general notice of that requirement to the claimant. Additionally, the claimant must be notified that, should an increase in disability be found, a disability rating will be determined by applying relevant diagnostic codes, which typically provide for a range in severity of a particular disability from noncompensable to as much as 100 percent (depending on the disability involved), based on the nature of the symptoms of the condition for which disability compensation is being sought, their severity and duration, and their impact upon employment and daily life. As with proper notice for an initial disability rating and consistent with the statutory and regulatory history, the notice must also provide examples of the types of medical and lay evidence that the claimant may submit (or ask the Secretary to obtain) that are relevant to establishing entitlement to increased compensation-e.g., competent lay statements describing symptoms, medical and hospitalization records, medical statements, employer statements, job application rejections, and any other evidence showing an increase in the disability or exceptional circumstances relating to the disability. Here, the duty to notify was not satisfied prior to the initial unfavorable decision on the claim by the RO. Under such circumstances, VA's duty to notify may not be satisfied by various post-decisional communications from which a claimant might have been able to infer what evidence the VA found lacking in the claimant's presentation. However, there is no prejudicial error arising from the deficiencies of the July 2002 notice letter because any defect was cured by actual knowledge on the part of the claimant and her representative, as demonstrated in statements to VA and in her representative's February 2010 and June 2013 briefings. Specifically, the Veteran has fully demonstrated that she is aware of the need to submit evidence showing that the rotary subluxation of her left (major) sternoclavicular joints is more severe than currently rated, and she has repeatedly raised arguments based on how her disability impacts both her employment and daily life. The diagnostic codes pertaining to rotary subluxation of her left (major) sternoclavicular joints have been provided on several occasions including the statement of the case in August 2003. Thus, VA has overcome the burden of prejudicial error by demonstrating that the Veteran had actual knowledge of what was needed to support her claim. The purpose behind the notice requirement has been satisfied and the Veteran has been afforded a meaningful opportunity to participate effectively in the processing of her claim. Based on the foregoing, the Board has complied with the requirements of 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b). Next, VA has a duty to assist the Veteran in the development of the claim. This duty includes assisting the Veteran in the procurement of service medical records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. In this case, the RO has obtained service treatment records; Social Security Administration (SSA) records; and private, state, and VA treatment records. Additionally, the Veteran was offered the opportunity to testify at a hearing before the Board, but she failed to appear. The Veteran was afforded VA compensation and pension examinations germane to her claim in August 2002, June 2011, September 2012, and March 2013; these examinations were adequate because the examiners based their opinions upon consideration of the Veteran's prior medical history, described the disability in sufficient detail so that the Board's evaluations of the claimed disability will be fully informed, and supported all conclusions with analyses that the Board could consider and weigh against contrary opinions. Additionally, the VA examinations of record fully describe the functional effects caused by the Veteran's disability. Martinak v. Nicholson, 21 Vet. App. 447, 455 (2007). For the foregoing reasons, the Board concludes that VA made all reasonable efforts to obtain evidence necessary to substantiate the Veteran's claim. Therefore, no further assistance to the Veteran with the development of evidence is required. Analysis Disability ratings are determined by applying a schedule of ratings that is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C.A. § 1155; 38 C.F.R., Part 4. Each disability must be viewed in relation to its history and the limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. § 4.1. Examination reports are to be interpreted in light of the whole recorded history, and each disability must be considered from the point of view of the appellant working or seeking work. 38 C.F.R. § 4.2. Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § 4.7. The Board notes that while the regulations require review of the recorded history of a disability by the adjudicator to ensure an accurate evaluation, the regulations do not give past medical reports precedence over the current medical findings. Where an increase in the disability rating is at issue, the present level of the Veteran's disability is the primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). It is also noted that staged ratings are appropriate for an increased rating claim whenever the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007). 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. In Mitchell v. Shinseki, 25 Vet. App. 32 (2011), the Court held that, although pain may cause a functional loss, "pain itself does not rise to the level of functional loss as contemplated by VA regulations applicable to the musculoskeletal system." Rather, pain may result in functional loss, but only if it limits the ability "to perform the normal working movements of the body with normal excursion, strength, speed, coordination, or endurance." Id., quoting 38 C.F.R. § 4.40. Evidence of pain, weakened movement, excess fatigability, or incoordination must be considered in determining the level of associated functional loss in light of 38 C.F.R. § 4.40, taking into account any part of the musculoskeletal system that becomes painful on use. DeLuca v. Brown, 8 Vet. App. 202 (1995). The provisions regarding the avoidance of pyramiding do not forbid consideration of a higher rating based on greater limitation of motion due to pain on use, including flare ups. 38 C.F.R. § 4.14 (2011). In this case, service connection was granted for a sternoclavicular strain in a November 1992 rating decision, and a 10 percent rating was assigned, effective January 9, 1991 (the day after separation from service), under Diagnostic Code 5203. In a January 1995 rating decision, the RO recharacterized the disability as rotary subluxation of the left (major) sternoclavicular joints and increased the Veteran's rating to 20 percent, effective July 23, 1994. In the September 2002 rating decision currently on appeal, the RO increased the Veteran's rating to 30 percent, effective June 19, 2002 (the date of her claim for an increased rating). Under 38 C.F.R. § 4.71a, DC 5201, with respect to the major extremity, a 40 percent rating applies where there is limitation of motion of the arm to 25 degrees from the side. A 30 percent rating applies when there is limitation of motion of the arm midway between the side and shoulder level. Other potentially applicable rating codes include DC 5200, which applies where there is ankylosis of the scapulohumeral articulation, such that the scapula and humerus move as one piece. DC 5202 applies where there is other impairment of the humerus, such as loss of head of humerus (flail shoulder), nonunion of humerus (false flail joint), fibrous union of humerus, or recurrent dislocation of the humerus at the scapulohumeral joint. DC 5203 applies where there is impairment of the clavicle or scapula, including dislocation, nonunion, or malunion. A separate rating for arthritis (degenerative disease) is not warranted under 38 C.F.R. § 4.71a, DC 5003 or 5010, because the Veteran is in receipt of a compensable rating for limitation of motion of the joint. Id. The Veteran contends in her May 2010 statement that her left clavicle is inverted, and that she "cannot raise [her] left arm more than shoulder level without pain, nor can [she] bring [her] left arm behind [her] back due to pain." In an October 2010 statement, the Veteran asserted that she believed that only her left shoulder, and not her inverted left clavicle, was being rated. In an August 2012 letter, the Veteran wrote that her affected activities of daily living include brushing her teeth, using most toiletries, writing, lifting, and sleeping. In a November 2012 letter, the Veteran asserted that lifting her arm causes terrible pain, and that the September 2012 VA examiner erred in measuring her left shoulder range of motion because the examiner had found that the range of motion had improved from 90 to 120 degrees. Additionally, the Veteran's partner wrote in August 2012 that her capabilities have been in progressive decline for almost a decade. She specified that: My assistance is required to do bathing, hair shampooing, and taking her daily medication. Then we transition to dressing; pulling up undergarments, fastening her bra, zipping her pants, buttoning her shirts, and tying her shoes. I then assist in preparing, feeding, and clean-up of the first of her daily meals....If her appointments require long distance driving, I must drive her. VA provided the Veteran with an examination in August 2002. The examiner found that the Veteran had left shoulder abduction to 80 degrees-i.e., midway between side and shoulder level. Additionally, the examiner found that x-rays revealed that the clavicle at the sternoclavicular joint appeared to be in an abnormal position; the was no x-ray evidence of problems with the acromioclavicular joint or the glenohumeral joint. The examiner found that the Veteran cannot work overhead, and cannot lift 10 pounds beyond a horizontal position. In May 2010, a physician at the Lowell Correctional Institution found that an x-ray of the Veteran's left shoulder was negative, and was a normal study. VA provided the Veteran with a second examination in June 2011. The Veteran reported having problems with lifting and carrying, weakness or fatigue, decreased strength in the left upper extremity, pain, problems with circular motion, inability to lift overhead, and problems with pulling and pushing. The examiner found that the Veteran had left shoulder abduction to 90 degrees, with pain beginning at 80 degrees. In December 2011, a VA physician performed an MRI of the Veteran's left shoulder and found that the acromioclavicular (AC) joint demonstrated only mild osteoarthritic change. In February 2012, another VA physician performed an MRI of the Veteran's left shoulder, and found minimal tendinopathy of the conjoined portions of the supraspinatus and infraspinatus tendons, unchanged from December 2011. Minimal osteoarthritic changes of the AC joint were stable. The MR arthrogram was otherwise normal, with no rotator cuff tear and no labrum abnormality. Also in February 2012, another VA physician found that the Veteran had left shoulder abduction to 90 degrees; the Veteran reported having loss of the ability to perform most common toiletries, and having trouble carrying a backpack on her left side and using a computer for prolonged periods. VA provided the Veteran with a third examination in September 2012. The examiner found that the Veteran had left shoulder abduction to 100 degrees, including after repetitive use testing, with pain at 100 degrees. The examiner found no ankylosis of the glenohumeral articulation (shoulder joint). The examiner found no history of recurrent dislocation (subluxation) of the glenohumeral (scapulohumeral) joint. The examiner found no malunion, nonunion, or dislocation of the clavicle or scapula. The examiner found minimal osteoarthritis per imaging. The examiner opined that: The veteran's subjective complaints during the examination appeared, to this examiner, out of proportion to objective exam findings. The veteran was noted to display poor effort during the examination in this examiner's opinion. No redness, heat, swelling, deformity of left shoulder on exam. No appreciable difference in the sternoclavicular joints on both sides by inspection or palpation. NO objective evidence of sensory loss, with normal sensation to touch, pin, position, [and] vibration. No muscle atrophy: Arm circumferences measure 40.5 cm on right, 40 [cm] on left; forearms 29 cm on right, 29.5 cm on left. No trophic changes of the LUE [left upper extremity] skin noted. No objective evidence of ankylosis of the scapulohumeral articulation in the LUE. No history of fracture in the left shoulder or clavicle, therefore no possibility of non-union, fibrous union, [or] loss of head of the humerus.... No ankylosis of the scapulohumeral articulation in the Veteran's left shoulder was noted on exam. No neurological impairment of the LUE was seen on neurological exam. Veteran exhibited decreased response on muscle strength testing, not from neurological deficit, but from lack of voluntary effort. EMG exam 2-28-12 showed no evidence of left brachial plexopathy or radiculopathy. NOTE: Left rotator cuff tendinopathy per imaging in this examiner's opinion [is] less likely [than] not due to or a result of or aggravated by the [service-connected] sternoclavicular subluxation. There are multiple other more likely causes for this condition including occupational stresses, lifestyle (incarceration, MVA in 1995, falling from roof in 2003) aging, [and] daily stresses/activities. In December 2012, a VA physician performed a CT scan of the Veteran's left shoulder and found degenerative changes of the bilateral sternoclavicular joints, left greater than right. There is posterior subluxation and bony deformity of the left clavicular head. The left clavicular head remains subluxed posteriorly with the arms above the head and arms at sides positions. It is contiguous with the anterior margin of the innominate vein. There is a left sternoclavicular joint effusion and capsular thickening. The acromioclavicular joints appear normally positioned. In a March 2013 addendum to the September 2012 examination, the examiner opined that the Veteran's left acromioclavicular joint mild osteoarthritis seen on imaging in 2011 is not directly related to the Veteran's service-connected disabilities, but rather is caused by natural progression. As a rationale, the VA examiner explained that the AC joint is at a distance away from the service-connected sternoclavicular joint, and the DC joint osteoarthritis is due to natural aging with contribution from daily physical activities, stresses, and lifestyle. Based on the evidence of record described above, the Board finds that the Veteran's rotary subluxation of the left (major) sternoclavicular joints does not warrant a disability rating in excess of 30 percent. First, a higher rating is not warranted under 38 C.F.R. § 4.71a, DC 5201 because the Veteran does not have limitation of motion of the left arm to 25 degrees from the side; rather, her range of motion is to no less than 80 degrees, which is consistent with the 30 percent category of "Midway between side and shoulder level." A separate rating under DC 5200 does not apply because, as the September 2012 examiner found, the Veteran does not have ankylosis of the scapulohumeral articulation. A separate rating under DC 5202 does not apply because, as the September 2012 examiner found, the Veteran does not have loss of head of the humerus, or nonunion, fibrous union, or recurrent dislocation thereof. A separate rating under DC 5203 does not apply because, as the September 2012 examiner found, the Veteran does not have malunion, nonunion, or dislocation of the clavicle or scapula. Finally, no additional separate ratings are warranted because, as the September 2012 VA examiner explained in that report and the March 2013 addendum, the Veteran's other left shoulder symptoms are not attributable to her service-connected disability, as they are instead attributable to her occupational stresses, lifestyle (incarceration, MVA in 1995, falling from roof in 2003), aging, daily stresses, and activities. The Board finds that the VA physician examiner's opinions as to these symptoms and clinical findings warrant greater probative weight than the Veteran's own contentions based on the VA examiner's thorough medical rationales and greater medical training and expertise. Winsett v. West, 11 Vet. App. 420 (1998), aff'd 217 F.3d 854 (Fed. Cir. 1999). The Board has considered whether staged ratings under Hart, supra, are appropriate for the Veteran's service-connected rotary subluxation of the left (major) sternoclavicular joints; however, the Board finds that her symptomatology has been stable throughout the appeal. Therefore, assigning staged ratings for such disability is not warranted. 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 has carefully compared the level of severity and symptomatology of the Veteran's service-connected rotary subluxation of the left (major) sternoclavicular joints with the established criteria found in the rating schedule. The Board finds that the Veteran's left shoulder and sternoclavicular joint symptomatology is fully addressed by the rating criteria under which such disability is rated-specifically, the limitation of motion of her left arm to midway between side and shoulder level. Therefore, the Board finds that the rating criteria reasonably describe the Veteran's disability level and symptomatology of her service-connected disability. As such, the Board finds that the rating schedule is adequate to evaluate the Veteran's disability picture. Moreover, even if the rating criteria were found inadequate to describe the severity and symptoms of the Veteran's service-connected left shoulder and sternoclavicular joint disability, the Board further finds that this case does not present other indicia of an exceptional or unusual disability picture. Specifically, the Veteran has not reported frequent periods of hospitalization for her disability, and any interference with her employment is contemplated by her 30 percent rating. Finally, even if the first two criteria are met, the Board finds that the award of an extraschedular disability rating would not be in the interest of justice in this case, because the Board does not find the Veteran's reported non-schedular symptoms to be credible, based on the September 2012 VA examiner's observation that the Veteran made complaints out of proportion to objective exam findings, and made a poor effort during the examination. Consequently, the Board concludes that referral of this case for consideration of an extra-schedular rating is not warranted. Id.; Bagwell v. Brown, 9 Vet. App. 337, 338-39 (1996); Floyd v. Brown, 9 Vet. App. 88, 96 (1996). Finally, the Court of Appeals for Veterans Claims has held that a total disability rating based on individual unemployability (TDIU) is a part of a claim for increased rating. Rice v. Shinseki, 22 Vet. App. 447 (2009). Where a Veteran: (1) submits evidence of a medical disability; (2) makes a claim for the highest rating possible; and (3) submits evidence of unemployability, the requirement in 38 C.F.R. § 3.155(a) that an informal claim "identify the benefit sought" has been satisfied, and VA must consider whether the Veteran is entitled to a total rating for compensation purposes based on individual unemployability (TDIU). Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001). The Board finds that the most probative evidence-including the Veteran's June 2011 and September 2012 VA examination reports-shows that the Veteran is not unemployable due to her rotary subluxation of the left (major) sternoclavicular joints. Furthermore, even the August 2012 letter sent by the Veteran's treating VA physician, stating that the Veteran "cannot maintain employment in any job which requires her to use her left (dominant) hand," implicitly leaves open the prospect that she can maintain employment in any job which does not require the use of that hand. Thus, TDIU is not raised by the record. In summary, the Board finds that the Veteran's rotary subluxation of the left (major) sternoclavicular joints results in limitation of motion of the left arm to midway between side and shoulder level. Accordingly, the Board concludes that reasonable doubt does not apply, and the criteria for a rating in excess of 30 percent for the Veteran's rotary subluxation of the left (major) sternoclavicular joints have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 4.1-4.14, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5201 (2012). ORDER A disability rating in excess of 30 percent for rotary subluxation of the left (major) sternoclavicular joints is denied. ____________________________________________ MICHAEL E. KILCOYNE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs