Citation Nr: 1328586 Decision Date: 09/06/13 Archive Date: 09/16/13 DOCKET NO. 08-35 854 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Newark, New Jersey THE ISSUE Entitlement to a disability rating in excess of 20 percent for a left shoulder disorder. REPRESENTATION Appellant represented by: National Association of County Veterans Service Officers WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD S. Layton, Counsel INTRODUCTION The Veteran served on active duty from May 1977 to June 1981, June 1985 to June 1989, and from August 1989 to November 1997. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Huntington, West Virginia; jurisdiction resides at the RO in Newark, New Jersey. In June 2012 and May 2013, the Board remanded the claim for additional development. The case has now returned to the Board for further appellate consideration. The Veteran testified before the undersigned Veterans Law Judge (VLJ) at a March 2012 hearing conducted via videoconference. A transcript of the hearing is of record. FINDINGS OF FACT 1. The Veteran is right-hand dominant. 2. During all periods relevant to this appeal, the Veteran's left shoulder disorder was manifested by chronic pain, weakness, stiffness, and loss of left shoulder motion which consisted of flexion to at least 45 degrees and abduction to at least 90 degrees with no further loss of motion or function attributable to the Veteran's reported pain symptoms. CONCLUSION OF LAW The criteria for disability rating in excess of 20 percent for a left shoulder disorder have not been met or approximated for the entire period of appeal. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5201 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Board has thoroughly reviewed all the evidence in the Veteran's claims file. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence submitted by or on behalf of the Veteran. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim. The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the Veteran). I. Duties to Notify and Assist The VCAA describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits. See 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 representative of any information, and any medical or lay evidence, that is necessary to substantiate the claim. See 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b) (2012); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper VCAA 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. VCAA notice should be provided to a claimant before the initial unfavorable RO decision on a claim. See Pelegrini v. Principi, 18 Vet. App. 112 (2004); Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006). 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. See Dingess v. Nicholson, 19 Vet. App. 473 (2006). 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. The Court held that upon receipt of an application for a service-connection claim, 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) require VA to review the information and the evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating or is necessary to substantiate the elements of the claim as reasonably contemplated by the application. Id. at 486. In September 2007, VA advised the Veteran of the evidence necessary to support a claim for increased ratings. He was asked to submit or identify relevant evidence. The evidence of record was discussed and the Veteran was told how VA would assist him in obtaining additional pertinent evidence. This letter also advised the Veteran of the manner in which VA determines disability ratings and effective dates. The Board finds that the content of the notice fully complied with the requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) regarding VA's duty to notify. The Veteran has been provided with every opportunity to submit evidence and argument in support of his claim and to respond to VA notices. Further, the Board finds that the purpose behind the notice requirement has been satisfied because the appellant has been afforded a meaningful opportunity to participate effectively in the processing of his claim. The duty to assist also includes providing a medical examination or obtaining a medical opinion when such is necessary to make a decision on the claim. 38 C.F.R. § 3.159(c)(4)(i) (2012). In this case, the Veteran was most recently provided a VA examination in June 2013. The examiner considered the Veteran's claims, as well as the material in the claims file, and conducted a physical examination. The examiner recorded the Veteran's reported symptoms as well as his own objective observations. As the June 2013 VA examination report contains both the Veteran's subjective complaints as well as the examiner's objective findings, the Board finds it to be sufficient for adjudication purposes. Additionally, based on the June 2013 VA examination report, the Board finds that there has been substantial compliance with its prior remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (a remand by the Board confers upon the claimant, as a matter of law, the right to compliance with the remand instructions, and imposes upon the VA a concomitant duty to ensure compliance with the terms of the remand); see also D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); Dyment v. West, 13 Vet. App. 141, 146-47 (1999). As noted above, the Veteran was also afforded a hearing before the undersigned Veterans Law Judge (VLJ) during which he presented oral argument in support of his increased rating claim. In Bryant v. Shinseki, 23 Vet. App. 488 *2010), the United States Court of Appeals for Veterans Claims (Court) held that 38 C.F.R. § 3.103(c)(2) (2012) required that the VLJ who chairs a hearing fulfill two duties to comply with the above regulation. These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. Here, the VLJ fully explained the issue on appeal during the hearing and specifically discussed the Veteran's left shoulder symptomatology, and suggested the submission of evidence that would be beneficial to the Veteran's claim , namely evidence pertaining to how the Veteran's left shoulder disability affects his daily activities. Significantly, neither the Veteran nor his representative has asserted that VA failed to comply with 38 C.F.R § 3.103(c)(2), nor has he identified any prejudice in the conduct of the Board hearing. By contrast, the hearing focused on the rating criteria necessary to substantiate the claim, and the Veteran, through his testimony, demonstrated that he had actual knowledge of the criteria necessary to substantiate his claim. As such, the Board finds that, consistent with Bryant, the VLJ complied with the duties set forth in 38 C.F.R. § 3.103(c)(2). As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). II.. Increased Rating Claim Disability evaluations are determined by the application of a schedule of ratings, which is based on average impairment of earning capacity. See 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. Part 4 (2012). Separate rating codes identify the various disabilities. See 38 C.F.R. Part 4 (2012). When 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. See 38 C.F.R. § 4.7 (2012). Any reasonable doubt regarding the degree of disability is resolved in favor of the veteran. See 38 C.F.R. § 4.3 (2012). In general, when an increase in the disability rating is at issue, the present level of disability is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). When the appeal arises from an initial assigned rating, consideration must be given to whether staged ratings should be assigned to reflect entitlement to a higher rating at any point during the pendency of the claim. See Fenderson v. West, 12 Vet. App. 119 (1999). However, staged ratings are also appropriate in any increased rating claim in which distinct time periods with different ratable symptoms can be identified. See Hart v. Mansfield, 21 Vet. App. 505 (2007). The assignment of a particular diagnostic code is "completely dependent on the facts of a particular case." Butts v. Brown, 5 Vet. App. 532, 538 (1993). One diagnostic code may be more appropriate than another based on such factors as an individual's relevant medical history, 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). Separate disabilities arising from a single disease entity are to be rated separately. See 38 C.F.R. § 4.25 (2012); see also Esteban v. Brown, 6 Vet. App. 259, 261 (1994). Pyramiding-the evaluation of the same disability, or the same manifestation of a disability, under different diagnostic codes-is to be avoided when rating a veteran's service-connected disabilities. See 38 C.F.R. § 4.14 (2011). In general, after the evidence has been assembled, it is the Board's responsibility to evaluate the entire record. See 38 U.S.C.A. § 7104(a) (West 2002). When there is an approximate balance of evidence regarding the merits of an issue material to the determination of the matter, the Board resolves the benefit of the doubt for each such issue in favor of the claimant. See 38 U.S.C.A. § 5107 (West 2002); 38 C.F.R. §§ 3.102, 4.3 (2012). In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the United States Court of Appeals for Veterans Claims (Court) stated that "a veteran need only demonstrate that there is an 'approximate balance of positive and negative evidence' in order to prevail." To deny a claim on its merits, the preponderance of the evidence must be against the claim. See Alemany v. Brown, 9 Vet. App. 518, 519 (1996) (citing Gilbert, 1 Vet. App. at 54). The Veteran's left shoulder disability has been rated as being 20 percent disabling pursuant to 38 C.F.R. § 4.71a, DC 5201. DC 5201 provides rating criteria for disabilities based upon loss of motion of the arm. The stated criteria provide different rating schedules based upon whether the disability being rated involves the major (dominant) or minor (non-dominant) arm. Here, the Veteran is right-hand dominant. Hence, the disability at issue involves the Veteran's minor arm. Under DC 5201, a maximum schedular 30 percent disability rating is assigned for disabilities of the minor arm that are marked by limitation of motion to 25 degrees from the side. For the purpose of lending context to the criteria stated under DC 5201, the Board notes that the regulations identify that, for shoulder flexion and abduction motions, zero degrees represent the arm being at rest to the side, 90 degrees represents the arm being raised to shoulder height, and 180 degrees as representing full shoulder motion. For external and internal rotation motions, zero degrees represents the arm being held at shoulder level with the forearm pointed forward. Full external rotation consists of 90 degrees of upward rotation. Full internal rotation consists of 90 degrees of downward rotation. 38 C.F.R. § 4.71, Plate I (2012). Consistent with Schafrath, the Board has also considered the potential application of the other provisions of 38 C.F.R., Parts 3 and 4. Schafrath, 1 Vet. App. 589. In doing so, the Board notes that additional criteria for rating shoulder disabilities are available under DCs 5200 (for disabilities involving ankylosis of the scapulohumeral articulation) 5202 (for impairment of the humerus), and 5203 (for disabilities involving impairment of the clavicle or scapula). The criteria under DC 5200 are inapplicable in this case because the evidence does not show the presence of any ankylosis in the Veteran's shoulder. The criteria under DC 5202 are inapplicable in this case because the evidence does not show that the Veteran experiences recurrent dislocation of the humerus, nonunion of the humerus, or loss of the head of the humerus. Also, the criteria under DC 5203 do not assist the Veteran because it does not provide for schedular disability ratings higher than 20 percent. Accordingly, neither DC 5200 nor DC 5203 will be considered in connection with this appeal. In August 2007, the Veteran filed the current claim for a rating in excess of 20 percent for a left shoulder injury on appeal. In conjunction with a prior claim for an increased rating, the Veteran was afforded a VA shoulder examination in July 2006. On physical evaluation, his motor strength was normal. He had abduction to 180 degrees, with onset of pain at 45 degrees. He had forward flexion to 170 degrees, with onset of pain at 90 degrees. The examiner noted there was no diminution of his range of motion with repetitive testing. There was also no evidence of atrophy in the upper extremity. The examiner noted the Veteran had "no DeLuca criteria for" his left shoulder joint. An x-ray taken in conjunction with the evaluation revealed two small calcified or ossific densities adjacent to the acromion, and no significant degenerative changes. He was assessed with left shoulder tendonitis. An October 2006 VA treatment record noted the Veteran had "very limited range of motion" of his left shoulder, with bicep and anterior shoulder discomfort. In October 2007, the Veteran was afforded a VA examination in conjunction with his current claim on appeal. The evaluator noted that x-rays of record revealed "some degenerative joint disease and calcification." On physical evaluation, the Veteran had forward flexion and abduction of his left shoulder to 110 degrees. He complained of pain "in all ranges of motion." He had a positive impingement sign, and negative arm drop test. His motor strength was "5-/5 in all planes of motion, secondary to complaints of pain." The evaluator noted that after repetitive motion of the left shoulder there was no additional loss of joint function due to pain, fatigue or lack of coordination. He was assessed with left shoulder impingement syndrome and rotator cuff tendonitis. In November 2009, the Veteran was afforded an additional VA joints evaluation. He reported that his shoulder pain had increased since the 2007 evaluation. On physical evaluation he had forward flexion and abduction to 100 degrees. He complained of pain on all ranges of motion. He had a positive impingement sign. His motor strength was 5/5 in all planes of motion. After repetitive motion of the left shoulder there was no additional loss of joint function due to pain, fatigue or lack of endurance. A September 2010 VA treatment record reflects that the Veteran's left shoulder motion was limited to 45 degrees with pain. Additional VA outpatient records from 2010 and 2011 contain the Veteran's complaints of left shoulder stiffness and pain. A November 2011 x-ray of the left shoulder was read to reveal moderate degenerative changes in the joint and calcific tendinitis. In March 2012, the Veteran testified at a Board hearing that he believed his left shoulder was "worse" and beyond the 20 percent rating assigned. He stated that his left shoulder had lost some of its range of motion ("a lot") in the past ten years. He stated that his shoulder "hurt" all the time, and that "certain things" would cause sharp pain. The Veteran also stated that during his last VA examination he lifted his arm as high as he could, even though it hurt, and that it hurt him for four days after the evaluation. In July 2012, the Veteran reported to a VA compensation and pension evaluation. He reported daily pain, which worsened with motion of the shoulder or sleeping. He refused to demonstrate range of motion, and stated that the last examination caused him too much pain. His strength was 5/5 with internal and external rotation, with motor strength tested at the elbow at his side. He refused to allow the evaluator to further examine his shoulder. On VA compensation and pension examination in June 2013, the Veteran complained of constant daily pain. He said that medication helped but did not totally relieve his pain. He stated that any type of motion increased his left shoulder pain, and sleeping on his left side was particularly painful. He had missed several days of work due to left shoulder pain. The examiner observed forward flexion of the left shoulder to 90 degrees with pain at 85 degrees. Left shoulder abduction was to 100 degrees with pain at 95 degrees. No further limitations of range of motion or function were experienced on multiple repetition or due to fatigue, weakness, or lack of endurance. No swelling, deformity, or atrophy was noticed by the examiner. Muscle strength testing was 5/5 with abduction and flexion. There was no evidence of ankylosis. No clicking or catching of the left shoulder was noted. The examiner found mild tenderness to palpation but no guarding. The Veteran further reported that he worked full-time as a cook, although it was getting more and more difficult for him to work due to his left shoulder pain. The examiner opined that the Veteran was independent in his activities of daily living. Throughout the course of this appeal, the Veteran's left shoulder disability has been manifested by pain, weakness, and stiffness that has been productive of diminished left shoulder motion. Concerning the diminished motion of his shoulder, the evidence shows that all left shoulder motion from the side was well in excess of 25 degrees. In that regard, the evidence shows that the Veteran was consistently able to produce flexion to at least 90 degrees and abduction to at least 90 degrees. Although the July 2006 VA examiner indicated that the Veteran experienced an onset of pain at 45 degrees of motion, and a September 2010 VA treatment record contains a range of motion finding of 45 degrees, none of the evidence of record reflects that the limit of the Veteran's left shoulder range of motion has approximated 25 degrees, as required for a disability rating in excess of 20 percent under DC 5201. The Board acknowledges that all motion was accompanied by reported pain. Nonetheless, repetitive motion performed during the June 2013 VA examination did not reveal any further loss of function due to the reported pain or other symptoms. Repeated tests of motor strength were consistently within normal limits. Even taking the Veteran's pain symptoms into consideration, given the extent of left shoulder motion and overall shoulder function demonstrated by the Veteran over that time, the Board does not find that a higher disability rating is warranted based upon the Veteran's reported pain. See Deluca v. Brown, 8 Vet. App. 202 (1995). As noted above, there are no other rating criteria that may be appropriately applied in rating the Veteran's left shoulder disorder. Overall, the symptoms associated with the Veteran's service- connected chronic left shoulder disorder do not met the criteria for a disability rating higher than 20 percent at any time throughout the period of appeal. As such, this appeal is denied. 38 C.F.R. §§ 4.3, 4.7. III. Extra-schedular Consideration/TDIU As noted above, the potential application of various provisions of Title 38 Code of Federal Regulations have been considered, whether or not they were raised by the Veteran. Schafrath, 1 Vet. App. 589. In that regard, the Board has also considered the provisions under 38 C.F.R. § 3.321(b)(1), which govern the assignment of extra-schedular disability ratings. However, in this case, the Board finds that the record does not show that the Veteran's left shoulder disorder is so exceptional or unusual as to warrant the assignment of a higher rating on an extra-schedular basis. See 38 C.F.R. § 3.321(b)(1) (2012). The threshold factor for extra-schedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. See Thun v. Peake, 22 Vet. App. 111 (2008). In this regard, there must be a comparison between the level of severity and symptomatology of the claimant's service- connected disability with the established criteria found in the rating schedule for that disability. If the criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule and the assigned schedular evaluation is therefore adequate, and no extra- schedular referral is required. Id., see also VAOGCPREC 6- 96 (Aug. 16, 1996). Otherwise, if the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, VA must determine whether the claimant's exceptional disability picture exhibits other related factors, such as those provided by the extra-schedular regulation (38 C.F.R. § 3.321(b)(1)) as "governing norms"(which include marked interference with employment and frequent periods of hospitalization). The evidence in this case does not show such an exceptional disability picture that renders inadequate the available schedular ratings for the Veteran's left shoulder disorder. A comparison between the level of severity and symptomatology of the Veteran's assigned rating with the established criteria found in the rating schedule shows that the rating criteria reasonably describe the Veteran's disability level and symptomatology for his left shoulder. As discussed above, there are higher ratings available under potentially applicable diagnostic codes, but the Veteran's disorder is not productive of the manifestations necessary to warrant a higher rating. As such, it cannot be said that the available schedular ratings for the Veteran's left shoulder disorder is inadequate. Based on the foregoing, the Board finds that the requirements for an extra-schedular evaluation for the Veteran's service-connected left shoulder disorder, under the provisions of 38 C.F.R. § 3.321(b)(1), have not been met. Bagwell v. Brown, 9 Vet. App. 337 (1996); Shipwash v. Brown, 8 Vet. App. 218 (1995); Thun, 22 Vet. App. 111. The Board also acknowledges that in Rice v. Shinseki, 22 Vet. App. 447 (2009) the Court of Appeals for Veterans Claims (Court) held that a claim for TDIU, either expressly raised by the Veteran or reasonably raised by the record, involves an attempt to obtain an appropriate rating for a disability and is therefore part of the claim for an increased rating. Nonetheless, the evidence in this case does not raise a TDIU claim, either expressly or implicitly. In this regard, the evidence shows that while the Veteran has stated that his left shoulder disability interferes with his work, he has not claimed that he is unemployable due to his left shoulder disorder. Indeed, the evidence shows that the Veteran has maintained employment as a cook throughout the period of appeal. Under the circumstances, the Board will not endeavor to consider entitlement to TDIU in connection with this appeal. ORDER Entitlement to a disability rating in excess of 20 percent for residuals from a left shoulder injury is denied. ____________________________________________ MICHAEL LANE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs