Citation Nr: 1328057	
Decision Date: 09/03/13    Archive Date: 09/10/13

DOCKET NO.  10-04 810	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Atlanta, Georgia


THE ISSUES

1.  Entitlement to service connection for sleep apnea. 

2.  Entitlement to an initial compensable evaluation prior to February 18, 2010 for residuals of left clavicle injury. 

3.  Entitlement to an evaluation in excess of 10 percent since February 18, 2010 for residuals of left clavicle injury. 


REPRESENTATION

Appellant represented by:	Georgia Department of Veterans Services


ATTORNEY FOR THE BOARD

J. Murray, Associate Counsel 



INTRODUCTION

The Veteran served on active duty in the United States Navy from October 1989 to December 1992.

These matters come before the Board of Veterans' Appeals (Board) on appeal from a March 2008 and December 2009 rating decisions rendered by the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia.  In the March 2008 rating decision, the RO denied the Veterans claims for entitlement to service connection for sleep apnea and residuals of left clavicle injury.  The Veteran appealed.  In the December 2009 rating decision, the RO awarded entitlement to service connection for residuals of left clavicle injury and assigned a noncompensable evaluation, effective from September 5, 2007 (date of his original claim).  The Veteran appealed the initial assigned evaluation. 

In November 2012, the Board remanded the matters on appeal to the RO (via the Appeals Management Center (AMC)) for additional development and for actions in accordance with due process.  In this regard, the Board instructed that any outstanding records of identified pertinent treatment and a VA medical opinion on the etiology of the Veteran's current sleep apnea should be obtained.  The Board also instructed that the results from a February 2010 VA examination for evaluation of left clavicle disability should be considered in the first instance and the Veteran issued a supplemental statement of the case.  A review of the claims folder reflects that requested development has been completed and the Veteran's claims have been re-adjudicated in a January 2013 SSOC.  No additional actions are necessary for compliance with the Board's 2012 remand directives.  See Stegall v. West, 11 Vet. App. 268 (1998).

In a January 2013 rating decision, the AMC increased the assigned evaluation for residuals of left clavicle injury from noncompensable to 10 percent disabling, effective from February 18, 2010.  Since this grant does not constitute a full grant of the benefit sought on appeal, the claim remains in appellate status.  See AB v. Brown, 6 Vet. App. 35, 39 (1993).

A review of the records contained in the Veteran's VA Virtual claims folder has been considered in this case.  


FINDINGS OF FACT

1.  The preponderance of the evidence of record is against a finding that the Veteran's current diagnosed sleep apnea had an onset during his period of service or that it is otherwise related to his period of service. 

2.  For the period prior to February 18, 2010, the Veteran's disability due to residuals of left clavicle injury were manifested by no more than x-ray evidence of an old healed fracture and intermittent complaints of pain, with full range of left arm motion.  

3.  For the period beginning as of February 18, 2010, the Veteran's disability due to residuals of left clavicle injury have been manifested by degenerative arthritis with loss of motion at approximately shoulder level due to pain, tenderness, and crepitus, but without evidence of deformity, nonunion, or malunion of the clavicle. 


CONCLUSIONS OF LAW

1.  The criteria for entitlement to service connection for sleep apnea have not been met.  38 U.S.C.A. §§ 1101, 1131, 1112, 1113 (West 2002); 38 C.F.R. § 3.303 (2012).

2.  The criteria for entitlement to an initial compensable evaluation prior to February 18, 2010 for disability due to residuals of left clavicle injury have not been met.  38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.71a including Diagnostic Code 5203.

3.  The criteria for entitlement to an evaluation of 20 percent, and not higher, beginning as of February 18, 2010 for disability due to residuals of left clavicle injury have been met.  38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.71a including Diagnostic Codes 5003, 5201, and 5203.


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

1.  VA's Duty to Notify and Assist 

As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), the United States Department of Veterans Affairs 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; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a).  

Under 38 U.S.C.A. § 5103, VA must notify the claimant of any information or evidence not of record that is necessary to substantiate the claim, as well as what parts of that information or evidence VA will seek to provide, and what parts VA expects the claimant to provide.  38 C.F.R. § 3.159(b).  VA must provide such notice to a claimant prior to an initial unfavorable decision on a claim for VA benefits by the agency of original jurisdiction (AOJ), even if the adjudication occurred prior to the enactment of VCAA.  See Pelegrini v. Principi, 18 Vet. App. 112, 119-120 (2004). 

Importantly, the VCAA requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all elements of a claim for service connection, so that VA must specifically provide notice that a disability rating and an effective date will be assigned if service connection is awarded.  Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006); aff'd sub nom., Hartman v. Nicholson, 483 F.3d 1311 (2007). 

VA sent a letter to the Veteran in October 2007 that addressed the notice elements concerning his claims.  The letters informed the Veteran of what evidence is required to substantiate the claim, and apprised the Veteran as to his and VA's respective duties for obtaining evidence.  VA also informed the Veteran how it determined the disability rating and the effective date for the award of benefits if service connection was to be awarded.  Dingess v. Nicholson, 19 Vet. App. 473 (2006).  

The Board finds that all notices required by VCAA and implementing regulations were furnished to the Veteran and that no useful purpose would be served by delaying appellate review to send out additional VCAA notice letters.

In addition to its duty to notify, or inform, the Veteran with regard to his claim, VA also has a duty to assist the Veteran in the development of the claim.  This duty includes assisting the Veteran in the procurement of service treatment records and records of pertinent medical treatment since service, and providing the Veteran a medical examination when necessary.  38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159.  

In this case, the available record includes service treatment records, service personnel records, post-service VA medical treatment reports, and the Veteran's own statements.  To the extent that any more recent records may remain outstanding, there is no indication that they are necessary for a fully informed adjudication of the Veteran's claims.  The Board finds that the notice requirements pertinent to the issues on appeal have been met and all identified and authorized records relevant to the matters have been requested or obtained.  There is no evidence that any additional relevant treatment records exist, and the Veteran has not so alleged.

VA provided the Veteran with VA joint examinations in February 2008 and February 2010, in which the examiners identified the nature and severity of the Veteran's left clavicle disability, and the examiners reported the clinical findings from the examination.  The Veteran has not argued that either of these examination reports was inadequate; rather, he has only asserted that the findings contained in the 2010 VA examination report suggest more severe symptomatology than associated with the assigned 10 percent evaluation as of the date of that examination.  The Board therefore concludes that the examinations are adequate for adjudication purposes.  See 38 C.F.R. § 4.2; Barr v. Nicholson, 21 Vet. App. 303 (2007).

Moreover, there is no objective evidence indicating that there has been a material change in the severity of the Veteran's service-connected disability since he was last examined in 2010.  See 38 C.F.R. § 3.327(a).  The Veteran has not asserted, and the Board does not find, any evidence that suggests the Veteran's disability has worsened since the 2010 VA examination.  The duty to assist does not require that a claim be remanded solely because of the passage of time since an otherwise adequate VA examination was conducted.  VAOPGCPREC 11-95.

In addition, pursuant to the Board's November 2012 remand, a December 2012 VA medical opinion report was obtained. The Board finds that the relevant opinion expressed in the report is well-supported by clinical findings and a full rationale.  The examination report reflects a review of the claims file, a pertinent history, and all clinical findings and opinions necessary for proper adjudication of the Veteran's claim, and is therefore adequate for adjudication purposes.  See Barr, 21 Vet. App. at 303

The Veteran has not identified, and the record does not otherwise indicate, any additional existing evidence that is necessary for a fair adjudication of the claim that has not been obtained.  See Bernard v. Brown, 4 Vet. App. 384 (1993).  

For the foregoing reasons, the Board therefore finds that VA has satisfied its duty to notify and its duty to assist pursuant to VCAA.  See 38 U.S.C.A. §§ 5102 and 5103; 38 C.F.R. §§ 3.159(b), 20.1102; Pelegrini, supra; Quartuccio v. Principi, 16 Vet. App. 183 (2002).

2.  Service Connection 

Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service.  38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a).  Service connection may also be granted for any disease diagnosed after discharge when all of the evidence establishes that the disease was incurred in service.  38 C.F.R. § 3.303(d).  

For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time.  If a condition noted during service is not shown to be chronic, then generally, a showing of continuity of symptoms after service is required for service connection.  See 38 C.F.R. § 3.303(b).  

The chronicity provision of 38 U.S.C.A. § 3.303(b) is applicable where the evidence, regardless of its date, shows that the Veteran had a chronic condition in service or during an applicable presumption period and still has such condition.  Regulations also provide that service connection may be granted for a disability diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability is due to disease or injury which was incurred in or aggravated by service.  38 C.F.R. § 3.303(d).  

The determination as to whether the requirements for service connection are met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value.  38 U.S.C.A. § 7104(a); Baldwin v. West, 13 Vet. App. 1 (1999); 38 C.F.R. § 3.303(a).  If there is at least an approximate balance of positive and negative evidence regarding any issue material to the claim, the claimant shall be given the benefit of the doubt in resolving each such issue.  38 U.S.C.A. § 5107; Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); 38 C.F.R. §§ 3.102.  On the other hand, if the Board determines that the preponderance of the evidence is against the claim, it has necessarily found that the evidence is not in approximate balance, and the benefit of the doubt rule is not applicable.  Ortiz, 274 F.3d at 1365.  

In this case, the Veteran seeks entitlement to service connection for sleep apnea.  He contends that he had symptoms of sleep impairment during his period of service that mark the onset of his current diagnosed sleep apnea. 

A review of the Veteran's service treatment records does not show any treatment or diagnosis for sleep apnea.  His records do show that the Veteran complained on several occasions in service of sleep disturbances.  In October 1992 and November 1992, the Veteran complained of "waking up at night [with] nightmares, beating on the wall." At that time, he reported that he felt his sleep disturbances were associated with pain reliever medication that he took for physical problems.  It was felt that his nightmares were related to his stress associated with his active service.  Subsequent November 1992 mental health treatment notes show that the Veteran continued to complain of nightmares and sleep disturbances in conjunction with other reported symptomatology.  He was diagnosed with personality disorder.  On the report of a December 1992 medical history prior to separation, the Veteran indicated that he had experienced frequent trouble sleeping, and the examining physician noted that his complaints were noted in his service treatment records.  The associated report of physical examination revealed on abnormalities.  

Private treatment records starting in November 1999 show that the Veteran was diagnosed with obstructive sleep apnea based on the findings from a sleep study.  Subsequent private treatment continues to show that the Veteran has sleep apnea and he has been prescribed a C-PAP machine to treat his disorder. 

Pursuant to the Board's 2012 remand directives, a VA medical opinion report was obtained in December 2012.  In that report, the examiner noted that the Veteran has been diagnosed with obstructive sleep since 1999 and he currently was prescribed a C-PAP machine.  Based on a review of the claims folder, including the Veteran's service treatment records and post-service treatment records, the examiner opined that it was less likely than not that the Veteran's sleep apnea was incurred in or otherwise related to his period of service.  In support of this medical conclusion, the examiner noted that there were no symptoms in service that were attributable to sleep apnea after a review of the claims folder.  The examiner specifically noted a review of the October and November 1992 mental health treatment notes that reflected the Veteran's complaints of nightmares as well as other symptomatology that was ultimately associated with a diagnosis of personality disorder.  The examiner then states that a "cause-effect relationship between nightmares and behavior such as beating on the wall and sleep apnea has not been established to date by preponderance of the medical literature." 

Based on a review of the evidence of record, the Board finds that the preponderance of the evidence is against a finding that the Veteran's sleep apnea had an onset in service or is otherwise related to his period of service.  

Here, the evidence of record clearly demonstrates that the Veteran has a current diagnosis of obstructive sleep apnea.  His service treatment records reflect complaints of sleep disturbances, but they do not show treatment or diagnosis of sleep apnea.  The Board observes that the evidence of record does not show that the Veteran was diagnosed with sleep apnea until November 1999, more than six years after his separation from service.  38 C.F.R. § 3.303.  

The Board acknowledges the Veteran's contentions that his sleep apnea first manifested during his period of service as reflected by his complaints of sleep disturbances in 1992.  In this regard, the Board finds it pertinent that none of the service treatment records reflects treatment or diagnosis of sleep apnea based on his reports of nightmares and other sleep disturbances at those times.  Rather, the service treatment records show that the Veteran's somatic complaints and nightmares were associated with a diagnosis of personality disorder.  Moreover, the December 2012 VA examiner concluded that none of the symptomatology contained in the Veteran's service treatment records was indicative of sleep apnea disorder.  There is no medical opinion to the contrary that supports a direct medical link between the current diagnosis of sleep apnea and his in-service complaints.  

The Board has considered the Veteran's assertions that his in-service complaints mark the onset of his sleep apnea; however, such questions of diagnosis based on reported symptomatology goes beyond lay observations.  See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007)(noting that a lay witness is capable of diagnosing dislocated shoulder); Barr v. Nicholson, 21 Vet. App. 308 -09 (2007) (finding that lay testimony is competent to establish the presence of varicose veins); Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (discussing that unlike varicose veins or a dislocated shoulder, rheumatic fever is not a condition capable of lay diagnosis); Falzone v. Brown, 8 Vet. App. at 405 (finding that a lay person is competent to testify to pain and visible flatness of his feet).  Notably, the diagnosis of sleep apnea requires diagnostic testing, such as sleep study, and interpretation by medical professional with appropriate expertise.  There is nothing in the record to suggest that the Veteran has the appropriate training, experience, or expertise to render a medical opinion regarding the etiology of his current disorder.  While he is competent to report what he experienced, the Veteran is not competent to ascertain a diagnosis of sleep apnea based on his reported symptomatology.  See Barr v. Nicholson, 21 Vet. App. 303 (2007); Charles v. Principi, 16 Vet. App. 370, 374-75 (2002); Layno v. Brown, 6 Vet. App. 465 (1994).  The Board gives more credence to the VA examiner's opinion that was rendered by a licensed medical professional rather than a lay person in light of the complexity of the medical condition at issue. 

Essentially, there is no evidence of a sleep disorder first manifested in service and there is no favorable medical nexus opinion of record that supports a direct medical link between the current diagnosis of sleep apnea and the Veteran's period of service.  See 38 C.F.R. § 3.303.

The Federal Circuit recently held that continuity of symptomatology under 38 C.F.R. § 3.303(b) applies to those conditions recognized as chronic under 38 C.F.R. § 3.309(a).  Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013).  However, the disability at issue in this case is not one of those recognized chronic conditions.  

Accordingly, the Board finds that the evidence does not show that the Veteran's current sleep apnea had an onset in service, and the preponderance of the evidence is against a finding that it is otherwise related to his periods of service, to include in-service complaints of sleep disturbances.  The evidence in this case is not so evenly balanced to allow application of the benefit-of-the-doubt rule as required by law and VA regulations.  38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102.  The preponderance is against the Veteran's claim, and it must be denied.


3.  Increased Rating 

Disability ratings are assigned in accordance with the VA's Schedule for Rating Disabilities and are intended to represent the average impairment of earning capacity resulting from disability.  See 38 U.S.C.A. § 1155; 38 C.F.R. §§ 3.321(a), 4.1.  Separate diagnostic codes identify the various disabilities.  See 38 C.F.R. Part 4.

In considering the severity of a disability, it is essential to trace the medical history of the veteran.  38 C.F.R. §§ 4.1, 4.2, 4.41.  Consideration of the whole-recorded history is necessary so that a rating may accurately reflect the elements of disability present. 38 C.F.R. § 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991). 

When the veteran is appealing the initial assignment of a disability rating, the severity of the disability is to be considered during the entire period from the initial assignment of the disability rating to the present time.  Fenderson v. West, 12 Vet. App. 119 (1999).  Additionally, in determining the present level of a disability for any increased rating claim, the Board must consider the application of staged ratings.  See Hart v. Mansfield, 21 Vet. App. 505 (2007).  In other words, where the evidence contains factual findings that demonstrate distinct time periods in which the service-connected disability exhibited diverse symptoms meeting the criteria for different ratings during the course of the appeal, the assignment of staged ratings would be necessary.

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.

When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied.  Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990).  Any reasonable doubt will be resolved in favor of granting the veteran's claim.  38 U.S.C.A. § 5107; Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); 38 C.F.R. § 3.102.  

The medical evidence of record confirms that the Veteran is right handed, and his left shoulder is his nondominant extremity.  The Veteran's disability due to residuals of left clavicle injury was previously evaluated under Diagnostic Code 5203 (clavicle impairment), and his disability is currently rated under Diagnostic Code 5003-5201.  Hyphenated diagnostic codes are used when a rating under one diagnostic code requires use of an additional diagnostic code to identify the basis for the evaluation assigned; the additional code is shown after the hyphen. 38 C.F.R. § 4.27.  Diagnostic Code 5003 pertains to degenerative arthritis and Diagnostic Code 5201 pertains to limitation of motion of the arm.  38 C.F.R. § 4.71a.

The application of a particular diagnostic code is "completely dependent on the facts of a particular case."  See Butts v. Brown, 5 Vet. App. 532, 538 (1993).  One diagnostic code may be more appropriate than another based upon such factors as an individual's relevant medical history, the current diagnosis, and demonstrated symptomatology.  Any change in diagnostic code by a VA adjudicator must be specifically explained.  See Pernorio v. Derwinski, 2 Vet. App. 625, 629 (1992).

Under Diagnostic Code 5003, degenerative arthritis established by X-ray findings will be rated on the basis of limitation of motion under the appropriate diagnostic codes for specific joint or joints involved.  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 involved is noncompensable, a 10 percent evaluation applies for each major joint or group of minor joints affected.  38 C.F.R. § 4.71a, Diagnostic Code 5003. 

Disabilities of the shoulder and arm are rated under Diagnostic Codes 5200 through 5203.  Normal ranges of upper extremity motion are defined by VA regulation as follows: forward elevation (flexion) from zero to 180 degrees; abduction from zero to 180 degrees; and internal and external rotation to 90 degrees.  Lifting the arm to shoulder level is lifting it to 90 degrees.  See 38 C.F.R. §4.71, Plate I (2012).

Under Diagnostic Code 5201 for (non-dominant) shoulder, a 20 percent evaluation is warranted for limitation of motion of the arm at the shoulder level and at midway between the side and shoulder level.  A 30 percent evaluation contemplates limitation of motion of the arm to 25 degrees from the side.

Under Diagnostic Code 5203 for (non-dominant) shoulder, a 10 percent rating is warranted for malunion of the clavicle or scapula or nonunion of the clavicle or scapula without loose movement, and a maximum 20 percent rating is warranted for dislocation of the clavicle or scapula, or nonunion of the clavicle or scapula with loose movement.  Under this diagnostic code, impairment of the clavicle or scapula may also be rated on impairment of function of the contiguous joint.  38 C.F.R. § 4.71a, Diagnostic Code 5203.

In every instance where the schedule does not provide a zero percent rating for a diagnostic code, a zero percent rating shall be assigned when the requirements for a compensable rating are not met.  38 C.F.R. § 4.31.

The provisions of 38 C.F.R. § 4.40 state that disability of the musculoskeletal system is primarily the inability, due to damage or inflammation in parts of the system, to perform normal working movements of the body with normal excursion, strength, speed, coordination and endurance.  Functional loss may be due to the absence of part, or all, of the necessary bones, joints and muscles, or associated structures.  It may also be due to pain supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion. 38 C.F.R. § 4.40.  The factors of disability affecting joints are reduction of normal excursion of movements in different planes, weakened movement, excess fatigability, swelling and pain on movement. 38 C.F.R. § 4.45.  See DeLuca v. Brown, 8 Vet. App. 202  (1995).

In this case, the Veteran seeks higher evaluations for his service-connected residuals of left clavicle injury.  Historically, the Veteran was treated for a fractured left clavicle from injuries incurred during a motor vehicle accident in January 1992. He was treated with his left arm in a sling for six weeks.  Subsequent service treatment records show that he continue to complain of left shoulder problems, in particular, he complained of awaking with numbness in his left arm secondary to sleep position.  He was assessed with normal upper extremity evaluation at the time of his separation from service in 1992.  The Veteran complained of left shoulder pain in September 1997 to his private physician. 

The Veteran filed a claim for service connection for residuals of left clavicle injury and he was awarded service-connection.  His disability has been evaluated as noncompensable prior to February 18, 2010, and thereafter as 10 percent disabling.   The Veteran contends that the severity of his left shoulder disability is worse than that reflected by his currently assigned disability ratings.  

During the course of the appeal period, the records show that the Veteran's residual of left clavicle disability has been evaluated twice by VA. 

The report of a February 2008 VA joint examination report shows that the Veteran complained of intermittent ache at the location where he fractured his left clavicle.  He reported episodes of flare-ups that occur three times a week and last for thirty minutes.  Elevating his arm above his shoulder caused him increasing pain, but he did not take any medication or use assistive aids to alleviate pain.  Physical examination revealed no evidence of pain or tenderness at the site of the fracture.  There was no evidence of muscle spasms, instability, increasing heat or redness.  Range of motion testing revealed that the Veteran had flexion limited to 180 degrees, abduction limited to 180 degrees, and external and internal rotation limited to 90 degrees, and with evidence of some crepitus on abduction and external rotation movements. There no evidence of additional loss of motion on repetitive use due to pain, fatigue, weakness, lack of endurance, or incoordination.  There was evidence of negative impingement sign.  X-ray film showed evidence of an old healed fracture of the left clavicle at the junction of the middle and distal third.  The Veteran was diagnosed with healed fracture, left clavicle.  The VA examiner opined that there was no residual disability as the result of the in-service fractured left clavicle.  

The Veteran subsequently submitted records of private treatment for left shoulder pain.   See September 1997 private treatment record.  The Veteran's claim for service connection was reconsidered and in a December 2009 rating decision, the RO awarded service connection for residuals of left clavicle injury and assigned a noncompensable evaluation.  

The Veteran underwent another VA joint examination in February 2010.  The examination report shows that the Veteran complained of pain and reduced range of motion in his left shoulder as residuals of the left clavicle fracture.  He reported that his symptomatology had become progressively worse and he takes Motrin twice a day for pain.  He also reported symptoms of deformity, stiffness, weakness, incoordination, and decreased speed of motion.  He experiences flare-ups of severe symptomatology three or four times a year.  He reported that precipitating activities include raising arm above shoulder, repetitive motion, and moderate to heavy lifting.  The Veteran felt that during a flare-up episode he is functionally limited to the level of about 50 percent.  The Veteran reported that he was currently employed as painter and he had lost approximately one week of work in the past year because medical appointments for other conditions.   Physical examination revealed evidence of crepitus, deformity, tenderness, painful motion and abnormal motion. Range of motion testing revealed that after repetitive motion the Veteran had flexion limited to 110 degrees, abduction limited to 110 degrees, and internal and external rotation limited to 90 degrees.  There was no evidence of ankylosis.  X-ray film showed findings of degenerative changes in the left shoulder joint and old left distal clavicle fracture.  The examiner found that the x-ray findings of degenerative changes were associated with the disability due to residuals of left clavicle fracture and history of inservice motor vehicle accident.  The examiner opined that the Veteran's disability significantly affects his usual occupation because of decreased mobility, problems with lifting and carrying, weakness or fatigue, and decreased strength in his left upper extremity. 

In this case, the Veteran seeks higher evaluation for his service-connected residuals of left clavicle injury.  Initially, the Board notes that a review of the record does reflect that the Veteran's symptomatology has increased during the period under appeal.  Prior to the date of the February 18, 2010 VA examination, the evidence of record does not support a compensable evaluation for disability due to residuals of left clavicle injury; however, as of the date of the VA examination, the evidence of record more closely approximates the criteria associated with a 20 percent evaluation.  As the record demonstrates a compensable increase in the Veteran's symptomatology, "staged" ratings are warranted.  38 C.F.R. § 4.71a; Hart, 21 Vet. App. 505.  

Prior to February 18, 2010 

The evidence of record prior to February 18, 2010 does not support the finding of a compensable evaluation for residuals of left clavicle fracture under any of the applicable rating criteria.  See 4.71a, Diagnostic Codes 5003, 5201, and 5203.  Although the competent lay and medical evidence shows that the Veteran complained of intermittent pain in his left shoulder, with weekly episodes of flare-ups due to pain, the February 2008 VA examiner found that the findings from clinical evaluation revealed no residuals as the result of the fractured left clavicle at that time, except for some crepitus on abduction and external rotation movements.  There was no evidence of degenerative arthritis or other bone abnormalities, and the Veteran had full range of flexion and abduction in his left shoulder, even after repetitive use testing.  Such symptomatology does not support a compensable evaluation for residuals of left clavicle fracture.  See 38 C.F.R. §§ 4.31, 4.71a, Diagnostic Codes 5003, 5201 and 5203.  

While the Veteran has subjectively complained of discomfort with pain, the reports of pain and discomfort do not allow for a compensable rating under the criteria of Diagnostic Code 5201 based upon the objective findings in the 2008 VA examination.  The Board has also considered the provisions of 38 C.F.R. § 4.40 and 4.45 (2012).  See DeLuca, supra.  In this regard, the Board notes the Veteran's report that he experienced intermittent pain in his shoulder and he has difficult lifting his arm over his head for long periods of time.  However, functional loss due to pain or weakness must be supported by adequate pathology and evidenced by the visible behavior of the claimant.  38 C.F.R. § 4.40.  As noted above, the February 2008 VA examination documented full flexion and abduction with no additional limitation due to pain.  38 C.F.R. §§ 4.40, 4.45.  No competent medical opinion contradictory to that of the VA examiner or other medical treatment reports with regard to the onset of pain during range of motion testing is of record.  Accordingly, the Board is unable to identify any clinical findings that would warrant a compensable evaluation under 38 C.F.R. § 4.40 and 4.45. 

Accordingly, the Board finds that the Veteran is not entitled to a compensable disability rating for the residuals of left clavicle prior to February 18, 2010.  

Since February 18, 2010

As of the date of the February 18, 2010 VA examination report, and in resolving all reasonable doubt in the Veteran's favor, the Board finds that an increased rating of 20 percent is warranted.  In this regard, under the Rating Schedule, the evidence of record as of February 18, 2010 shows that the severity of the service-connected left shoulder disability more closely approximated the criteria for a 20 percent evaluation under the provisions for degenerative arthritis with loss of arm motion.  38 C.F.R. § 4.71a, Diagnostic Codes 5003, 5201.  

The February 2010 VA examination report showed that the Veteran's disability was manifested by X-ray findings of degenerative arthritis and forward flexion limited to 110 degrees and abduction to 110 degrees after repetitive use, with objective evidence of crepitus, deformity, tenderness, and painful motion.  This symptomatology is appropriately rated under Diagnostic Codes applicable to the range of motion loss as there is x-ray evidence of arthritis and a compensable degree of limitation of arm motion based on limitation of forward flexion.  See 38 C.F.R. § 4.71a, Diagnostic Codes 5003, 5201.  

On its face, the finding of the limitation of forward flexion in the Veteran's left arm to110 degrees does not support a compensable evaluation under the criteria associated with Diagnostic Code 5201 (with compensable ratings starting at 20 percent for limitation of motion to shoulder level or 90 degrees), but when considering the factors discussed in DeLuca, the Veteran's symptomatology more closely reflects a disability picture manifested by limitation of arm motion at shoulder level.  See 38 C.F.R. § 4.7; see also 38 C.F.R. §§ 4.40, 4.45, 4.59 as applied under DeLuca, 8 Vet. App. at 204-08; 38 C.F.R. § 4.71a, Diagnostic Code 5201.  In this regard, the Board notes that February 2010 VA examination does show objective evidence of painful motion, tenderness and crepitus during range of motion testing.  Also, the 2010 VA examiner found that the Veteran had significant functional impairment due to decreased mobility and painful motion in his left arm.

In order to support a higher evaluation of 30 percent for loss of motion of non-dominate arm, the medical evidence must demonstrate that the Veteran had limitation to 25 degrees from side.  38 C.F.R. § 4.71a, Diagnostic Code 5201.  
At no point does the medical evidence more closely approximate limitation of left arm or a functional loss due to pain or other factors worse than limitation of motion to at shoulder level.  An evaluation of 20 percent, and no higher, for the period since February 18, 2012 is warranted.  See 38 C.F.R. § 4.71a, Diagnostic Codes 5003, 5201.  

Again, the 20 percent rating already includes the pain that the Veteran experiences on motion as it was noted by the 2010 VA examiner and the findings above were recorded after repetitive use.  See Id.  There is no evidence of ankylosis.   An evaluation in excess of 20 percent based on x-ray evidence of degenerative arthritis with limitation of arm motion is not warranted at any point during the under appeal.  See 38 C.F.R. § 4.71a, Diagnostic Code 5201.  

Moreover, the record contains no relevant evidence of muscle injury, neurological impairment, or other symptoms that fall outside the purview of C.F.R. § 4.71a, that should be considered at this time in evaluating the service-connected residual left clavicle fracture.   

In sum, the Board finds that a 20 percent disability rating, and no higher adequately addresses the severity of the service-connected residuals of left clavicle disorder since February 18, 2010.  To the extent that a higher evaluation is asserted, the preponderance of the lay and medical evidence is against such a finding.  See 38 C.F.R. § 4.1; see also Gilbert, 1 Vet. App. at 55.

Extraschedular Consideration

The above determinations are based on application of provisions of the VA's Schedule for Rating Disabilities.  38 C.F.R. Part 4.  However, the regulations also provide for exceptional cases involving compensation.  Ratings shall be based, as far as practicable, upon the average impairments of earning capacity with the additional proviso that VA shall from time to time readjust this schedule of ratings in accordance with experience.  

To accord justice to the exceptional case where the schedular evaluations are found to be inadequate, the Under Secretary for Benefits or the Director, Compensation and Pension Service, upon field station submission, is authorized to approve on the basis of the criteria set forth in this paragraph an extraschedular evaluation commensurate with the average earning capacity impairment due exclusively to the service-connected disability or disabilities.  

The governing norm in exceptional cases is a finding that 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).

Although the Board may not assign an extraschedular rating in the first instance, it must specifically adjudicate 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 (2008).

Here, the Board is cognizant of the Veteran's assertions that his residuals of left clavicle fracture impacts occupational functioning because of decreased mobility, problems with lifting and carrying, weakness or fatigue, and decreased strength in his left upper extremity.  See February 2010 VA examination report.  Nevertheless, the Board considers it unnecessary to refer the Veteran's disability for an extraschedular rating as the regular schedular standards obviously address this manifestation loss of motion in the left arm due to pain, weakness, and tenderness.  

The schedular rating criteria are designed 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.

Moreover, the competent and credible evidence of record does not otherwise show that the Veteran's residuals of left clavicle fracture  results in a marked functional impairment to a degree other than that addressed by VA's Rating Schedule.  The Veteran has maintained his employment as a painter, despite his disability that results in loss of motion.  Also, the Board considers it significant that the particular regulatory criteria used to rate the Veteran's service-connected disability expressly contemplate functional loss in the assignment of a schedular evaluation.  38 C.F.R. §§ 4.59, 4.71a.  Also, 

Accordingly, the Board finds that the Veteran has been reasonably compensated for the impairment attributable to that disability.  See Van Hoose v. Brown, 4 Vet. App. 361 (1993) (disability rating is recognition that industrial capabilities are impaired).

In light of the above, the Board finds that remand for referral for consideration of an extraschedular rating is unwarranted in this instance.  See 38 C.F.R. § 3.321(b)(1); Thun v. Peake, 22 Vet. App. 111 (2008); Bagwell v. Brown, 9 Vet. App. 337 (1996); Floyd v. Brown, 9 Vet. App. 88 (1996).

Total Disability Rating Based Upon Individual Unemployability (TDIU) 

The Board also notes that this case does not raise a claim for a TDIU rating. At no point during the period under appeal has the Veteran asserted that he is unable to obtain or maintain substantially gainful employment.  He has asserted that his disability causes him functional impairment, but this does not amount to claiming unemployable.  Rice v. Shinseki, 22 Vet. App. 447 (2009) (a request for TDIU, whether expressly raised by a Veteran or reasonably raised by the record, is not a separate claim for benefits, but is rather part of the adjudication of a claim for increased compensation).  Pertinently, the evidence of record shows that the Veteran has maintained employment as a painter.  


ORDER

Entitlement to service connection for sleep apnea is denied.  

Entitlement to an initial compensable evaluation prior to February 18, 2010 for residuals of left clavicle injury is denied.

Entitlement to an evaluation of 20 percent, but no more, since February 18, 2010 for residuals of left clavicle injury is granted, subject to the regulations governing payment of monetary awards.



____________________________________________
MICHAEL LANE
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs