Citation Nr: 1327332	
Decision Date: 08/26/13    Archive Date: 08/29/13

DOCKET NO.  07-39 890	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. Petersburg, Florida


THE ISSUE

Entitlement to an increased rating for status post left shoulder arthroscopy with subacromial decompression, currently rated at 10 percent.


REPRESENTATION

Appellant represented by:	The American Legion


ATTORNEY FOR THE BOARD

B. Elwood, Associate Counsel


INTRODUCTION

The Veteran served on active duty from July 1982 to July 2004.
This matter initially came before the Board of Veterans' Appeals (Board) from a March 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida.  In that decision, the RO denied entitlement to a compensable rating for status post left shoulder arthroscopy with subacromial decompression. 

In October 2011, the Board denied a compensable rating for left shoulder disability for the period prior to January 25, 2007 and remanded the issue listed above for further development.

In October 2012, the Appeals Management Center (AMC) awarded a 10 percent rating for status post left shoulder arthroscopy with subacromial decompression, effective July 13, 2007.

In January 2013, the Board remanded this matter for further development.

In June 2013, the AMC awarded a 10 percent rating for the service-connected left shoulder disability, effective January 25, 2007.  The AMC also awarded a temporary total (100 percent) rating for the service-connected left shoulder disability due to surgery requiring convalescence, effective from May 14, 2008 through June 30, 2008.  A 10 percent rating was resumed from July 1, 2008.

In addition to the paper claims file, there is a Virtual VA paperless claims file associated with the Veteran's claim.  The documents in this file have been reviewed and considered as part of this appeal.




	

FINDING OF FACT	

Since January 25, 2007, the Veteran's status post left shoulder arthroscopy with subacromial decompression has been manifested by pain, weakness, aching, soreness, popping/clicking, tenderness, guarding, "catching," and painful motion; shoulder flexion has been to between 150 and 160 degrees and abduction has been to 140 degrees, with no additional loss of motion due to such factors as pain, weakness, incoordination, lack of endurance, fatigability, or flare ups; there has been no shoulder ankylosis or impairment of the humerus, clavicle, or scapula.


	CONCLUSION OF LAW	

The criteria for a rating in excess of 10 percent for status post left shoulder arthroscopy with subacromial decompression, for the period since January 25, 2007, have not been met.  38 U.S.C.A. §§ 1155, 5107(b) (West 2002); 38 C.F.R. §§ 3.321(b)(1), 4.1, 4.2, 4.7, 4.10, 4.21, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes (DCs) 5003, 5019, 5200-5203 (2012).


REASONS AND BASES FOR FINDING AND CONCLUSION

The Veterans Claims Assistance Act of 2000 as amended (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance.  38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012).  

Under the VCAA, VA 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; (3) that the claimant is expected to provide; and (4) must request that the claimant provide any evidence in his possession that pertains to the claim.  Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004); see 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b).

The United States Court of Appeals for Veterans Claims (Court) has also held that the VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim.  Those five elements include:  (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.  Dingess/Hartman, 19 Vet. App. at 473.

In a pre-adjudication letter dated in June 2006, the RO notified the Veteran of the evidence needed to substantiate his claim for an increased rating for status post left shoulder arthroscopy with subacromial decompression.  This letter also satisfied the second and third elements of the duty to notify by delineating the evidence VA would assist him in obtaining and the evidence it was expected that he would provide.  Quartuccio v. Principi, 16 Vet. App. 183, 186-87 (2002); Charles v. Principi, 16 Vet. App. 370 (2002).

The claimant's veteran status has been substantiated.  He was notified of all other elements of the Dingess requirements, including the disability rating and effective date elements of his claim, in the June 2006 letter.

The Court held in Vazquez-Flores v. Peake that 38 U.S.C.A § 5103(a) requires, at a minimum, that the Secretary notify the Veteran that, to substantiate an increased rating claim, the Veteran 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.  Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008), vacated sub nom, Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009).  

Additionally, the Veteran 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.  Id.
Furthermore, the Court directed that 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 Veteran 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.  Id.

The June 2006 letter told the Veteran that evidence of worsening could substantiate the increased rating claim.  He was notified in the letter that medical or lay evidence could be submitted to substantiate his increased rating claim and was provided with specific examples.  The letter also stated that the Veteran could submit letters from individuals who could describe the manner in which his disability had worsened.  

The June 2006 letter also explained that disability ratings are determined by applying VA's rating schedule under which the RO would assign a rating from 0 to 100 percent, and that it would consider evidence of the nature of the symptoms of the condition, their severity and duration, and their impact upon employment.  

The VCAA also requires VA to make reasonable efforts to help a claimant obtain evidence necessary to substantiate his claim.  38 U.S.C.A. § 5103A; 38 C.F.R. 
§ 3.159(c), (d).  This "duty to assist" contemplates that VA will help a claimant obtain records relevant to his claim, whether or not the records are in Federal custody, and that VA will provide a medical examination or obtain an opinion when necessary to make a decision on the claim.  38 C.F.R. § 3.159(c)(4).  

VA obtained the Veteran's service treatment records and all of the identified relevant post-service VA treatment records and private medical records.  In addition, the Veteran was afforded VA examinations to assess the severity of his service-connected left shoulder disability.

In its October 2011 and January 2013 remands, the Board instructed the agency of original jurisdiction (AOJ) to, among other things, ask the Veteran to complete an authorization so as to allow VA to obtain additional relevant treatment records from Dr. Capra and schedule him for a VA examination to assess the severity of his service-connected left shoulder disability.  

In a January 2013 letter, the Veteran was asked to complete the appropriate release form so as to allow VA to obtain any additional relevant private treatment records from Dr. Capra.  Copies of the release form (VA Form 21-4142) were included with the letter.  The Veteran did not return a completed copy of the release form, but he did submit additional treatment records from Dr. Capra.  

VA is only required to seek pertinent records that are adequately identified and for which necessary releases are furnished.  38 U.S.C.A. § 5103A(b); See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991) (the duty to assist is not always a one-way street); 38 C.F.R. §§ 3.159(c)(1)(i), (c)(2)(i) (requiring a claimant to cooperate fully with VA's efforts to obtain federal and non-federal records).  As the Veteran did not submit the appropriate release form so as to allow VA to obtain treatment records from Dr. Capra or any other private treatment provider from whom records have not already been requested, VA has no further duty to attempt to obtain any additional private treatment records.

Moreover, VA examinations were conducted in November 2011 and September 2012 to assess the severity of the Veteran's service-connected left shoulder disability.  The most recent September 2012 examination was thorough, contained all pertinent findings, and responded to the inquiries posed by the Board.  

Accordingly, the AOJ complied with all of the Board's pertinent October 2011 and January 2013 remand instructions and VA has no further duty to obtain any additional records or conduct additional examinations with respect to the claim being decided herein.  See Dyment v. West, 13 Vet. App. 141, 146- 47 (1999); Stegall v. West, 11 Vet. App. 268 (1998).




Analysis

Disability evaluations are determined by evaluating the extent to which a Veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing his symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Rating Schedule).  38 U.S.C.A. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10.

If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation; otherwise, the lower evaluation will be assigned.  38 C.F.R. § 4.7.

In view of the number of atypical instances it is not expected, especially with the more fully described grades of disabilities, that all cases will show all the findings specified.  Findings sufficiently characteristic to identify the disease and the disability therefrom, and above all, coordination of rating with impairment of function will, however, be expected in all instances.  38 C.F.R. § 4.21.

In evaluating a disability, the Board considers the current examination reports in light of the whole recorded history to ensure that the current rating accurately reflects the severity of the condition.  The Board has a duty to acknowledge and consider all regulations that are potentially applicable.  Schafrath v. Derwinski, 1 Vet. App. 589 (1991).  The medical as well as industrial history is to be considered, and a full description of the effects of the disability upon ordinary activity is also required.  38 C.F.R. §§ 4.1, 4.2, 4.10.

Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary concern. Although a rating specialist is directed to review the recorded history of a disability in order to make a more accurate evaluation, see 38 C.F.R. § 4.2, the regulations do not give past medical reports precedence over current findings.  Francisco v. Brown, 7 Vet. App. 55 (1994).  Staged ratings are, however, 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.  

The relevant focus for adjudicating an increased rating claim is on the evidence concerning the state of the disability from the time period one year before the claim was filed until VA makes a final decision on the claim.  Hart v. Mansfield, 21 Vet. App. 505 (2007).

Disabilities evaluated on the basis of limitation of motion require VA to apply the provisions of 38 C.F.R. §§ 4.40, 4.45, pertaining to functional impairment.  The Court has instructed that in applying these regulations VA should obtain examinations in which the examiner determines whether the disability is manifested by weakened movement, excess fatigability, incoordination, pain, or flare ups.  Such inquiry is not to be limited to muscles or nerves.  These determinations are, if feasible, to be expressed in terms of the degree of additional range-of-motion loss due to any weakened movement, excess fatigability, incoordination, flare ups, or pain.  The examiner should also determine the point, if any, at which such factors cause functional impairment.  Mitchell v. Shinseki, 25 Vet. App. 32, 43-4 (2011); DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Johnston v. Brown, 10 Vet. App. 80, 84-5 (1997); 38 C.F.R. § 4.59.

When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant.  38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 4.3 (2012); see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990).

The Veteran's status post left shoulder arthroscopy with subacromial decompression is currently rated under 38 C.F.R. § 4.71a, DCs 5201-5019. Hyphenated diagnostic codes are used when a rating under one code requires use of an additional diagnostic code to identify the basis for the rating assigned.  38 C.F.R. § 4.27 (2012).  Here, the use of DCs 5201-5019 reflects that the Veteran's left shoulder disability is rated as bursitis under DC 5019 and that the rating assigned is based on limitation of motion of the shoulder under DC 5201.  However, as explained below, the service-connected left shoulder disability has been manifested by noncompensable limitation of motion throughout the entire claim period.  Thus, the disability is more properly rated under 38 C.F.R. § 4.71a, DCs 5019-5003 as bursitis with noncompensable limitation of shoulder motion.

Under DC 5019, bursitis is generally to be rated on limitation of motion of the affected part, as degenerative arthritis.  38 C.F.R. § 4.71a, DC 5019.

Degenerative arthritis established by X-ray findings will be rated on the basis of limitation of motion under the appropriate codes for the specific joint or joints involved.  If the limitation of motion is noncompensable, a rating of 10 percent is for application for each such major joint or group of minor joints affected by limitation of motion, to be combined, not added under DC 5003.  Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion.  In the absence of limitation of motion, a 20 percent rating is warranted for X-ray evidence of involvement of two or more major joints or two or more minor joint groups, with occasional incapacitating exacerbations.  A 10 percent rating is warranted for X-ray evidence of involvement of two or more major joints or two or more minor joint groups.  38 C.F.R. § 4.71a, DC 5003.

Under DC 5201, the following ratings apply to limitation of motion of the minor extremity: a 20 percent rating is warranted when arm motion is limited to shoulder level or to midway between the side and shoulder level; and a 30 percent rating is warranted when arm motion is limited to 25 degrees from the side.  38 C.F.R. § 4.71a, DC 5201. 

The normal ranges of motion of the shoulder are 180 degrees of forward elevation (flexion) and abduction (90 degrees is shoulder level), and 90 degrees of internal and external rotation.  38 C.F.R. § 4.71, Plate I (2012).

In this case, medical records dated from May 2007 to May 2010 and the Veteran's December 2007 substantive appeal (VA Form 9) reveal that he reported that he was right hand dominant and that he experienced occasional mild to moderate left shoulder pain/aching/soreness which was 3-9/10 in intensity, sometimes occurred during the night and caused sleep impairment, was occasionally caused by overhead reaching and repetitive motion, and was treated with medications and injections.  He contended on his December 2007 VA Form 9 that he could "barely raise [his] shoulder to around 30 degrees."  There was also occasional audible popping of the shoulder, catching, and weakness.  The Veteran performed exercises to strengthen the shoulder and in May 2008 he underwent arthroscopic subacromial decompression, arthroscopic distal clavicle resection, and placement of a pain pump inflow catheter to the subacromial space

Examinations of the left shoulder revealed occasional pain with some ranges of motion, slight impairment (4+/5 to 5/5) of shoulder strength, and acromioclavicular joint, supraspinatus, and rotator cuff tenderness.  Forward flexion of the shoulder was to 150 degrees during a May 2007 examination at White Wilson Medical Center, P.A. (White Wilson), however the ranges of shoulder motion were otherwise normal and there was no scapular winging.  MRIs revealed distal supraspinatus and infraspinatus tendinopathy with a focal area of full thickness posterior supraspinatus distal tear with probable granulation tissue filling the space, a rotator cuff tear, tendinosis of the supraspinatus tendon with slight subcortical cystic character at the insertion, considerable subacromial stenosis, and probable impingement.  The Veteran was diagnosed as having left shoulder impingement, recurrent cuff tedinitis, a rotator cuff tear, left shoulder acromioclavicular degenerative joint disease, and chronic shoulder arthralgia.

The Veteran reported during a November 2011 VA examination that he experienced left shoulder pain during the night when he would roll on the shoulder and that he would wake up as a result of the pain.  During the day, he avoided aggravating movements which would cause achy pain.  Therefore, he frequently did not experience any pain during the day.  The pain that did occur was 5/10 in intensity, with the exception of the pain caused by rolling over on his shoulder which was 8/10 in intensity.  He did not require any assistance with activities of daily living, he was able to climb ladders, and was able to reach high with the left hand to reach some objects (e.g. cereal boxes in the cabinet).  However, he did experience some difficulty reaching for overhead objects weighing more than 25 to 30 pounds.  He was employed as a "wing consultant" at a military facility and was able to perform all requirements of the job, with the exception of reaching overhead for heavy objects.

The physician who conducted the November 2011 VA examination noted that the Veteran was reportedly left hand dominant.  The ranges of motion of the left shoulder were not provided in the examination report, repetitive use testing was not conducted, and no information was provided with regard to any possible functional loss or impairment.  Rather, the examiner concluded that it would be mere speculation to opine on issues of functional loss due to painful motion, weakness, fatigability, limited or excess motion, flare ups, or prolonged use.  The examiner explained that due to excessive pain behavior, "all active range movements were invalid bilaterally" and varied significantly on repeated examinations.  Abduction varied between 20 and 40 degrees bilaterally and forward flexion was in the range of 80 to 90 degrees bilaterally (but varied on several repeated attempts).  There was a marked inconsistency in that the Veteran's upper extremity muscular development was that of an elite body builder.  There was no atrophy of the supraspinatus trapezius, rhomboids, deltoids, biceps, or triceps.  Testing for scapular winging revealed that the Veteran had no trouble pushing firmly on the wall with his upper extremities flexed slightly above 90 degrees.  The examiner noted that there would be no way of developing or maintaining such muscular development without regular resistive exercise, including the overhead position.

Examination further revealed that there was no localized tenderness or pain on palpation of the joints (including the acromioclavicular joint), soft tissues, or biceps tendon of the left shoulder.  Also, there was no history of any recurrent dislocations (subluxations) of the glenohumeral (scapulohumeral) joint, the Veteran had not undergone any total shoulder joint replacement, and crank apprehension, relocation, and cross-body adduction testing were all negative.  He was unable to perform empty-can testing, external rotation/infraspinatus strength testing, and lift-off subscapularis testing.  Deltoid, supraspinatus, triceps, and biceps testing revealed cog-wheel weakness, invalidating strength testing.  There was guarding of the shoulder and a history of mechanical symptoms (e.g. clicking, catching), Hawkins' impingement testing was positive, and the Veteran had undergone surgical procedures involving the shoulder.  The only residual signs and/or symptoms due to the surgical procedures were slightly hypertrophic (but insignificant) arthroscopic portal scars without any tenderness.  The scars were not painful or unstable and the total area of all related scars was not greater than 39 square centimeters (6 square inches).  

Moreover, the functional impairment of an extremity was not such that no effective function remained other than that which would have been equally well served by an amputation with prosthesis.  X-rays of the left shoulder revealed no abnormalities or arthritic changes of the glenohumeral joint.  There was a left distal acromioclavicular joint resection (Mumford procedure) without complications and cystic changes of greated tuberosity consistent with supraspinatus tendonosis.  There were no "glenohumeara" arthritic changes.  A diagnosis of left shoulder impingement was provided.  This disability did not impact the Veteran's ability to work.

A report of a VA examination dated in September 2012 reveals that the Veteran reported that he was employed full time as a "wing consultant/trainer."  His ability to perform overhead tasks and heavy lifting/carrying at work was impeded due to his shoulder disability.  He was right hand dominant, his left shoulder disability did not affect his activities of daily living, and he had not been hospitalized overnight due to the disability during the previous 12 months.  He used an "easy glide" at least once a week for 15 to 20 minutes and worked with machines at the gym twice a week for approximately 15 minutes each time.  He experienced chronic left shoulder pain on a daily basis which was 4-7/10 in intensity and increased in severity at night.  Also, the shoulder would catch when he reached for objects.  However, there were no flare ups of shoulder symptoms.  Although he had undergone shoulder surgeries in 1999 and 2008, he had not performed any physical therapy or received any injections to the shoulder during the previous 3 years. 

The ranges of motion of the left shoulder were recorded as flexion to 160 degrees with pain beginning at 150 degrees and abduction to 140 degrees with pain beginning at that point.  After completing repetitive use testing, the ranges of motion were recorded as flexion to 160 degrees and abduction to 140 degrees.  There was functional loss and/or functional impairment of the shoulder and arm in terms of less movement than normal and pain on movement.  However, there were no additional limitations in the ranges of shoulder motion following repetitive use testing and there was no other functional loss or functional impairment (including due to weakened movement, excess fatigability, or incoordination).  There was no localized tenderness or pain on palpation of the joints/soft tissue/biceps tendon of the left shoulder and there was no shoulder guarding.  Muscle strength associated with shoulder abduction and forward flexion was normal (5/5).  Also, there was no ankylosis of the left shoulder glenohumeral articulation.

Examination further revealed that Hawkins' impingement testing, empty-can testing, external rotation/infraspinatus strength testing, lift-off subscapularis testing, and cross-body adduction testing were all negative.  Crank apprehension and relocation testing was only positive on the right and only the right shoulder involved tenderness on palpation of the acromioclavicular joint.  There was a history of mechanical symptoms (e.g. clicking, catching) on the left and there were post operative changes in the left "acromion" joint, but there was no history of any recurrent dislocations (subluxations) of the glenohumeral (scapulohumeral) joint.  The Veteran had not undergone any total shoulder joint replacement, but a left subacromial decompression was performed in April 1999 and an arthroscopy was performed in 2008.  The only residual signs and/or symptoms due to the surgical procedures were arthroscopic scars.  There were three laparoscopic scars on the anterolateral left shoulder which measured 2 centimeters and there were two 1.5 centimeter scars on the anterior left shoulder and posterolateral left shoulder.  These scars were nontender and stable and the total area of all related scars was not greater than 39 square centimeters (6 square inches).

Moreover, there was no functional impairment of an extremity such that no effective function remained other than that which would be equally well served by an amputation with prosthesis.  Imaging studies of the shoulder did not reveal any degenerative/traumatic arthritis or any other significant diagnostic test findings or results.  The Veteran was diagnosed as having rotator cuff tendinosis and a partial tear.


A. Orthopedic Impairment

The above evidence reflects that there is a left shoulder disability with pain, weakness, aching, soreness, popping/clicking, impaired strength, tenderness, guarding, and "catching."  The examiner who conducted the November 2011 VA examination reported that left shoulder abduction varied to between 20 and 40 degrees bilaterally and that forward flexion was in the range of 80 to 90 degrees bilaterally (but varied on several repeated attempts).  However, he explained that due to excessive pain behavior, "all active range movements were invalid bilaterally" and varied significantly on repeated examinations.  Also, the examiner noted that the Veteran was left hand dominant, whereas his medical records reflect that he is right handed.  In light of these findings in the examination report and the fact that the examiner specifically noted that all active range movements were invalid, the accuracy of the November 2011 VA examination report is questionable and the Board finds that it is not probative as to the extent of any limitation of left shoulder motion.

During the May 2007 examination at White Wilson and the September 2012 VA examination, the Veteran was able to perform left shoulder flexion to between 150 and 160 degrees with pain beginning at 150 degrees and abduction to 140 degrees with pain beginning at that point in the range of motion.  The examiner who conducted the November 2011 VA examination did not conduct repetitive use testing, did not provide any information concerning possible functional loss or impairment, and stated that it would be mere speculation to opine on issues of functional loss due to painful motion, weakness, fatigability, limited or excess motion, flare ups, or prolonged use.  Cf. Mitchell, 25 Vet. App. at 43-4.  However, this deficiency was corrected in the September 2012 VA examination report in that repetitive use testing was conducted (with the ranges of motion remaining the same following such testing) and it was reported that there were no functional losses or functional impairments other than due to less movement than normal and pain on movement (including due to weakened movement, excess fatigability, or incoordination).  Although there was pain associated with shoulder ranges of motion, it occurred at 150 degrees and 140 degrees of flexion and abduction, respectively.  Also, the examiner who conducted the September 2012 VA examination specifically reported that there were no additional limitations in the ranges of shoulder motion following repetitive use testing.  The Veteran did not report any flare ups during the September 2012 VA examination.

The Board notes that the Veteran reported on his December 2007 VA Form 9 that he could "barely raise [his] shoulder to around 30 degrees."  He is competent to report observable symptoms of his left shoulder disability, such as limitation of motion.  However, his report must be weighed against the objective evidence and its credibility must be assessed.  See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006).

As explained above, the objective medical evidence dated since January 25, 2007 reflects that the ranges of left shoulder motion have been recorded as being flexion to between 150 and 160 degrees and abduction to 140 degrees.  These ranges of motion have remained the same following repetitive motion.  Thus, the Board finds that the Veteran's report of limitation of shoulder motion to at most 30 degrees is not credible, as objective measurements during the claim period have never closely approached that level.  

Therefore, even considering pain and other functional factors, the Veteran's left shoulder symptoms during the period since January 25, 2007 have not been shown to be so disabling to actually or effectively result in limitation of shoulder motion to shoulder level or to midway between the side and shoulder level, which are the requirements for the next higher percentage rating based on limitation of motion of the shoulder of the minor extremity without evidence of ankylosis, impairment of the humerus, or impairment of the clavicle or scapula (i.e. a 20 percent rating) under DC 5201.  See 38 C.F.R. § 4.71a, DC 5201.  

Furthermore, there has been no evidence of shoulder ankylosis at any time since January 25, 2007 and the absence of ankylosis was specifically reported by the examiner who conducted the September 2012 VA examination.   Also, there has been no evidence of any impairment of the humerus, clavicle, or scapula.  Hence, a higher rating is not warranted on the basis of such impairments.

In light of the above findings, a rating in excess of 10 percent for status post left shoulder arthroscopy with subacromial decompression for the period since January 25, 2007 is not warranted (except for a period when a temporary total rating was in effect).  38 U.S.C.A. §§ 1155, 5107(b); 38 C.F.R. §§ 4.7, 4.71a, DCs 5003, 5019, 5200-5203.

B. Scars

The Veteran has left upper extremity scars associated with the service-connected left shoulder disability.  The Board notes that on September 23, 2008, VA amended the criteria for evaluating scars.  See 73 Fed. Reg. 54,708 (Sept. 23, 2008).  The amendments, however, are only effective for claims filed on or after October 23, 2008, although a claimant may request consideration under the amended criteria.  In this case, the Veteran has not requested such consideration.  As his claim for an increased rating was received in April 2006, the amendments are not applicable in this instance and will not be applied in this case.

To warrant a compensable rating under the applicable criteria, a scar would need to involve the head, face or neck and have at least one character of disfigurement (DC 7800); be deep or cause limited motion and affect an area or areas exceeding at least 6 square inches (39 square centimeters) (DC 7801); be superficial and affect an area or areas of 144 square inches (929 square centimeters) or greater (DC 7802); be superficial and unstable (DC 7803); be superficial and painful on demonstration (DC 7804); or cause some limitation of the function of the part affected (DC 7805). 38 C.F.R. § 4.118, DCs 7800-7805 (2004).  

In this case, the left upper extremity scars do not involve the head, face, or neck and there is no evidence that they are deep, cause any limitation of motion or function, affect an area exceeding at least 6 square inches, or are unstable or painful.  Hence, a separate compensable rating for left upper extremity scars is not warranted at any time during the claim period.  Id.



Extraschedular Rating

Pursuant to 38 C.F.R. § 3.321(b)(1), the Under Secretary for Benefits or the Director, Compensation and Pension Service, is authorized to approve an extraschedular evaluation if the case "presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical the application of the regular schedular standards."  38 C.F.R. § 3.321(b)(1).  The question of an extraschedular rating is a component of a claim for an increased rating.  See Bagwell v. Brown, 9 Vet. App. 337, 339 (1996).  The Board must specifically address whether to refer a case for extraschedular evaluation when the issue either is raised by the claimant or is reasonably raised by the evidence of record.  Barringer v. Peake, 22 Vet. App. 242, 244 (2008).

If the evidence raises the question of entitlement to an extraschedular rating, the threshold factor for extraschedular 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 a claimant's service-connected disability with the established criteria found in the rating schedule for that disability.  Thun v. Peake, 22 Vet. App. 111 (2008), aff'd sub nom, Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009).

Under the approach prescribed by VA, if the criteria reasonably describe the claimant's disability level and symptomatology, then the claimant'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 the claimant's level of disability and symptomatology and is found inadequate, the RO or Board must determine whether the claimant'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) (related factors include "marked interference with employment" and "frequent periods of hospitalization").

There is no allegation or evidence of exceptional factors in this appeal with regard to the Veteran's service-connected left shoulder disability.  All of the symptoms experienced by the Veteran described above are contemplated by the appropriate diagnostic criteria as set forth above.  Thus, referral for consideration of an extraschedular evaluation is not warranted.  38 C.F.R. § 3.321(b)(1).

Total Rating for Compensation Purposes Based on Individual Unemployability (TDIU)

The Court has held that entitlement to a TDIU is an element of all claims for an increased rating.  Rice v. Shinseki, 22 Vet. App. 447 (2009).  Entitlement to a TDIU is raised 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. Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001); see Jackson v. Shinseki, 587 F.3d 1106, 1109-10 (2009) (holding that an inferred claim for a TDIU is raised as part of an increased rating claim only when the Roberson requirements are met).

The evidence reflects that the Veteran has been gainfully employed during the entire claim period.  As there is no evidence of unemployability, the question of entitlement to a TDIU is not raised under Roberson and Rice in this instance.

 
ORDER

An increased rating for status post left shoulder arthroscopy with subacromial decompression, currently evaluated at 10 percent, is denied.



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THOMAS J. DANNAHER
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs