Citation Nr: 1329102 Decision Date: 09/11/13 Archive Date: 09/17/13 DOCKET NO. 09-40 257 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Des Moines, Iowa THE ISSUE Entitlement to an initial rating in excess of 20 percent for osteoarthritis of the right acromioclavicular joint with labral tear and rotator cuff tendonitis, status post slap repair. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD K. R. Fletcher, Counsel INTRODUCTION The Veteran served on active duty from October 1993 to January 2008. This matter is before the Board of Veterans' Appeals (Board) on appeal from a May 2008 rating decision of the RO in Des Moines, Iowa, which (in pertinent part) granted service connection for a right shoulder disability and assigned a 20 percent rating, effective January 5, 2008. [During the pendency of the appeal, the Veteran was granted a temporary total rating under 38 C.F.R. § 4.30 for his right shoulder disability from May 30 to July 31, 2008, following surgery. Hence, that period is not for consideration by the Board in this appeal.] The Veteran testified before the undersigned Veterans Law Judge at a January 2011 videoconference hearing. A transcript has been associated with the file. In March 2011, the Board remanded the issue on appeal for additional development. The Veteran's claims folder includes a paper file, as well as a Virtual VA (VVA) electronic claims file. The VVA file includes VA treatment records dated from October 2009 to March 2012-and other documents that are either duplicative of the evidence in the paper claims file or are irrelevant to the issue on appeal. FINDING OF FACT Throughout the period of the appeal, the osteoarthritis of the Veteran's right shoulder has been manifested by limitation of motion with pain but not by limitation of motion of the right arm midway between the side and shoulder level. There is no ankylosis of the scapulohumeral articulation, or impairment of the humerus, such as loss of the head of the humerus (flail shoulder), nonunion of the shoulder (flail joint), or fibrous union of the humerus. CONCLUSION OF LAW The criteria for an initial rating in excess of 20 percent for osteoarthritis of the right acromioclavicular joint with labral tear and rotator cuff tendonitis, status post slap repair, have not been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.7, 4.10, 4.40, 4.45, 4.71a, Diagnostic Code 5201 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION I. The Veteran's Claims Assistance Act of 2000 (VCAA) The VCAA, codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2012), and the pertinent implementing regulation, codified at 38 C.F.R. § 3.159 (2012), provide that VA will assist a claimant in obtaining evidence necessary to substantiate a claim but is not required to provide assistance to a claimant if there is no reasonable possibility that such assistance would aid in substantiating the claim. They also require VA to notify the claimant and his/her representative, if any, of any information, and any medical or lay evidence, not previously provided to the Secretary that is necessary to substantiate the claim. As part of the notice, VA must inform the claimant and his/her representative, if any, of which portion, if any, of the evidence is to be provided by the claimant and which part, if any, VA will attempt to obtain on behalf of the claimant. The United States Court of Appeals for Veterans Claims (Court) has also held that 38 U.S.C.A. § 5103(a) requires that notice to a claimant pursuant to the VCAA be provided "at the time" that, or "immediately after," VA receives a complete or substantially complete application for VA-administered benefits. Pelegrini v. Principi, 18 Vet. App. 112, 119 (2004). The Court further held that VA failed to demonstrate that "lack of such a pre-AOJ-decision notice was not prejudicial to the appellant, see 38 U.S.C. § 7261(b)(2) (as amended by the Veterans Benefits Act of 2002, Pub. L. No. 107-330, § 401, 116 Stat. 2820, 2832) (providing that '[i]n making the determinations under [section 7261(a)], the Court shall...take due account of the rule of prejudicial error')." The timing requirement enunciated in Pelegrini applies equally to the initial rating and effective date elements of a service connection claim. Dingess v. Nicholson, 19 Vet. App. 473 (2006). In any event, however, the appeal of the claim for a rating in excess of 20 percent for the service-connected osteoarthritis of the right acromioclavicular joint with labral tear and rotator cuff tendonitis, status post slap repair, arises from the initial rating assigned with award of service connection. The statutory scheme contemplates that, once a decision awarding service connection, a disability rating, and an effective date has been made, statutory notice has served its purpose, and its application is no longer required because the claim has already been substantiated. Dingess v. Nicholson, 19 Vet. App. 473, 490-91 (2006). Here, the Veteran is exercising his right to appeal the rating assigned. An August 2009 statement of the case (SOC) properly provided the Veteran with notice of the criteria for rating shoulder disabilities, and further notice on the downstream issue of an initial increased rating, including of what the evidence showed, and why the current rating was assigned. The Veteran has had opportunity to respond. He is not prejudiced by this process. Notably, he does not allege that notice in this case was less than adequate or that he has been prejudiced by any notice deficiency. Regarding VA's duty to assist, all appropriate development to obtain the Veteran's service treatment records (STRs) and pertinent medical records (including VA and private) has been completed. The Veteran has not identified any pertinent, outstanding records that could be obtained to substantiate his claim. The Board is also unaware of any such records. Moreover, the Veteran has been afforded appropriate, adequate, and thorough VA examinations. As directed by the March 2011 Board remand, a VA examination was provided in June 2011 so as to ascertain the severity of the Veteran's right shoulder disability. The examination included the requested opinion. The Board thus finds that there has been substantial compliance with its remand directives. See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008). Thus, VA has complied with its duty to assist the Veteran. II. Analysis Disability ratings are determined by applying the criteria set forth in the VA's Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. The basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. 38 C.F.R. § 4.10. Where there is a question as to which of two evaluations shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. A veteran's entire history is reviewed when making disability evaluations. See generally 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 1991). Where, as here, the question for consideration is the propriety of the initial evaluation assigned, consideration of the medical evidence since the effective date of the award of service connection and consideration of the appropriateness of a staged rating are required. Fenderson v. West, 12 Vet. App. 119, 126 (1999). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary. The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. 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; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. In the appealed May 2008 rating decision, service connection for osteoarthritis of the right acromioclavicular joint with labral tear and rotator cuff tendonitis, status post slap repair, was granted. A 20 percent rating was assigned pursuant to 38 C.F.R. § 4.71a, Diagnostic Code 5201, effective from January 5, 2008. Degenerative arthritis established by X-ray findings will be rated on the basis of limitation of motion under the appropriate diagnostic code(s) for the specific joint(s) involved. When, however, the limitation of motion of the specific joint(s) involved is noncompensable under the appropriate diagnostic code(s), a 10 percent rating is for application for each such major joint or group of minor joints affected by limitation of motion, to be combined, not added under Diagnostic Code 5003. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm or satisfactory evidence of painful motion. 38 C.F.R. § 4.71a, Diagnostic Code 5003. Under Diagnostic Code 5201, limitation of motion of the major arm at shoulder level each warrant a 20 percent evaluation. Limitation of motion of the major arm midway between the side and shoulder level warrants a 30 percent evaluation. Limitation of motion of the major arm to 25 degrees from the side warrants a 40 percent evaluation. 38 C.F.R. § 4.71a, Diagnostic Code 5201. (Other diagnostic codes for rating shoulder disability (5200, 5202, and 5203) are not for consideration because, as will be discussed below, the pathology required by such codes-ankylosis of the scapulohumeral articulation; flail shoulder; false flail joint; fibrous union of the humerus; recurrent dislocation of the humerus at the scapulohumeral joint; malunion of the humerus; or impairment of the clavicle or scapula ankylosis-is not shown.) Normal ranges of shoulder 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. 38 C.F.R. § 4.71, Plate I. For disabilities evaluated on the basis of limitation of motion, VA is required 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 determined whether the disability was manifested by weakened movement, excess fatigability, incoordination, or pain. 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. 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. The provisions of 38 C.F.R. § 4.40 state that the disability of the musculoskeletal system is primarily the inability, due to damage or infection in parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. According to this regulation, it is essential that the examination on which ratings are based adequately portrays the anatomical damage, and the functional loss, with respect to these elements. In addition, the regulations state that the functional loss may be due to pain, supported by adequate pathology and evidenced by the visible behavior of the veteran undertaking the motion. Weakness is as important as limitation of motion, and a part which becomes painful on use must be regarded as seriously disabled. 38 C.F.R. § 4.40. The provisions of 38 C.F.R. § 4.45 state that when evaluating the joints, inquiry will be directed as to whether there is less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement. The intent of the schedule is to recognize painful motion with joint or periarticular pathology as productive of disability. It is the intention to recognize actually painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59. The Board has reviewed all of the evidence in the Veteran's claims file and VVA file, with an emphasis on the evidence relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (holding that VA must review the entire record, but does not have to discuss each piece of evidence). Hence, the Board will summarize the relevant evidence where appropriate, and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, as to the claim. STRs note the Veteran's complaints of right shoulder pain beginning in 1994. Diagnoses in service included posterior deltoid spasm, trapezius spasm or shoulder strain, chronic rotator cuff spasm, and widened right acromioclavicular joint. STRs note that the Veteran is right-handed. Following service, a March 2008 VA examination report notes that the Veteran reported landing on his right shoulder after a bad parachute jump in service. The Veteran complained of occasional shoulder pain with use, especially lifting. He stated that it bothered him to reach down and behind as well as upward, but denied any decrease in range of motion. He denied being bothered by overhead work. On examination, the right shoulder was tender anteriorly. Empty can test was positive. Speed's, drop arm, and apprehension tests were all negative. There was no crepitus. Range of motion of the right shoulder was: abduction to 180 degrees, with pain at 180 degrees; forward flexion to 180 degrees, with pain at 180 degrees; and internal and external rotation to 70 degrees, with pain at 70 degrees. The examiner diagnosed right shoulder impingement syndrome. On May 20, 2008, the examiner noted an addendum to the diagnosis following review of the MRI studies conducted in April 2008. The examiner stated that the final diagnosis was mild osteoarthritis of the right acromioclavicular joint with labral tear and rotator cuff tendonitis. A May 2008 rating decision granted service connection for a right shoulder disability and assigned a 20 percent rating, effective January 5, 2008. The Veteran appealed the rating assigned. VA treatment records show that on May 30, 2008, the Veteran underwent Superior Labral Anterior Posterior (SLAP) repair of his right shoulder. The Veteran was seen on June 11 for a follow-up; it was noted that his remained in a sling, and that this should continue pending further follow-up in 4 to 6 weeks. Private treatment records dated in June 2008 note that the Veteran underwent physical therapy. On VA evaluation on July 22, 2008, the Veteran was doing well. His pain level had improved, and he was working with physical therapy. He reported frustration at his limited shoulder rotation. There was no indication at that time that the physician continued orders to keep the shoulder immobilized by a sling. On examination, range of motion was: active flexion to 160 degrees; external rotation to 20 degrees; and internal rotation to 60 degrees. Although it was reported to be improving, there was still pain on motion. In an August 2008 rating decision, the Veteran was awarded a temporary total rating under 38 C.F.R. § 4.30 for his right shoulder disability from May 30, 2008, to July 31, 2008. VA treatment records dated from August 2008 to December 2009 note the Veteran's ongoing complaints of right shoulder pain. In March 2009 the Veteran reported that his right shoulder was still not where he thought it would be, but it was getting there. No range of motion findings were reported. A December 2009 VA examination report notes that the examiner reviewed the claims file. The examiner noted that the Veteran is right-handed. The Veteran reported that he initially did well after shoulder surgery; however, over the past nine months he noticed a decrease in strength and mobility. He complained of pain, weakness, stiffness and instability. He reported that, on bad days, throwing a ball was painful. He denied any current treatment for his right shoulder disability. On examination, the right shoulder was tender. There was no deformity. Range of motion of the right shoulder was: abduction to 140 degrees; forward flexion to 140 degrees; and internal rotation to 55 degrees; and external rotation to 45 degrees. There was pain on motion. After repetitive motion, range of motion of the right shoulder was: abduction to 170 degrees; forward flexion to 130 degrees; and internal rotation to 65 degrees; and external rotation to 65 degrees. There was no ankylosis. X-ray studies revealed no evidence of fracture, dislocation, or degenerative disease. The shoulders were in gross anatomic alignment. VA treatment records dated in 2010 note no complaints or treatment for right shoulder disability. At the January 2011 hearing, the Veteran indicated that his right shoulder pain had been increasing. He testified further that the shoulder felt like it did just before his 2008 surgery. A June 2011 VA examination report notes the Veteran's complaints of a decline in right shoulder function. He stated that his shoulder felt lopsided. He had a hard time picking up things and working overhead. He indicated that his shoulder no longer popped. He did, however, have pain, weakness, stiffness, and instability, as well as weekly flare-ups with use. The examiner noted that the Veteran had not sought treatment for his right shoulder disability since his 2008 operation. On examination, right shoulder range of motion was: flexion from 0 to 160 degrees; abduction from 0 to 169 degrees; internal rotation from 0 to 53 degrees; and external rotation from 0 to 82 degrees. Pain was noted on range of motion testing. There was no further limitation of range of motion after repetitive range of motion testing. There was no evidence of a fracture to the right shoulder or degenerative joint disease. An August 2011 VA primary physician care note shows the Veteran's complaints of a complete lack of strength and movement. The Veteran complained that he "lost ground" after surgery in 2008. He was agreeable to physical therapy. September 2011 VA X-ray studies revealed degenerative joint disease and mild irregularity of the humeral head. Private treatment records show that the Veteran underwent physical therapy from September 2011 to November 2011. One undated record notes that the Veteran had mild difficulty changing a light bulb overhead; another undated record notes that he had no difficulty with this task. No range of motion findings were reported. At the end of his therapy, he rated his pain 4/10 and complained of popping and clicking. VA treatment records show that the Veteran received an injection in March 2012 to treat his right shoulder pain. In an April 2012 statement, the Veteran complained of pain and weakness in his right shoulder. Based on the foregoing medical evidence, the Board finds that the objective medical evidence does not show that the Veteran's right shoulder disability has been manifested by symptomatology that more nearly approximates the criteria for the higher ratings under Diagnostic Codes 5200, 5201, or 5202, at any point during the appeal period. As an initial matter, there is no evidence to show ankylosis (i.e., a complete lack of motion in the joint), flail shoulder, nonunion, or recurrent dislocation. Furthermore, the evidence throughout this appeal period demonstrates that, while the Veteran has limitation of motion of his right shoulder due to pain and weakness, it is not so limited as to rise to the level contemplated by the next higher, 30 percent rating. That requires that motion be limited midway between the side and shoulder level, or 45 degrees of elevation (flexion) or abduction. However, when factoring in pain, the Veteran has shown forward elevation (flexion) to between 130 and 180 degrees. His abduction has been between 140 and 180 degrees. These levels of limitation still far exceed that required for the higher rating. The Board also finds that there is no basis for the assignment of any higher rating based on consideration of any of the factors addressed in 38 C.F.R. §§ 4.40, 4.45 and DeLuca, 8 Vet. App. at 204-7. Competent medical evidence reflects that the currently-assigned 20 percent rating properly compensates the Veteran for the extent of functional loss resulting from any such symptoms. Although it was noted in the record that the Veteran exhibited pain on motion and some limitation of motion due to pain, these findings have already been taken into consideration in the assignment of the current 20 percent rating. In summary, the evidentiary record does not show that at any time during the appeal period (apart from the period when the right shoulder was rated totally disabling) that the right shoulder disability has involved manifestations warranting a schedular rating in excess of 20 percent. The preponderance of the evidence is against the claim, and the benefit-of-the-doubt standard of proof does not apply. See Fenderson, supra; 38 U.S.C.A. § 5107(b). The Board has also considered whether the record raises the matter of an extra-schedular rating under 38 C.F.R. § 3.321(b)(1). Here, the rating criteria reasonably describe the Veteran's disability level and symptomatology. The rating criteria provide a higher rating. However, the competent medical evidence does not reflect that the disability at issue is manifested by (at least) limitation of motion of the right arm midway between the side and shoulder level so as to warrant such a higher rating. Moreover, the competent evidence does not show that right shoulder disability causes marked interference with employment, requires frequent hospitalizations, or otherwise produces impairment unrecognized by the Schedule. Thus, the Veteran's disability picture is contemplated by the rating schedule, and the assigned schedular evaluation is, therefore, adequate. Thun v. Peake, 22 Vet. App. 111, 115 (2008). Thus, referral for extra-schedular consideration is not warranted. Finally, the Board recognizes that the Court has held that a request for a total disability rating based on individual unemployability due to service-connected disability (TDIU), whether expressly raised by a claimant or reasonably raised by the record, is an attempt to obtain an appropriate rating for disability or disabilities, and is part of a claim for increased compensation. There must be cogent evidence of unemployability in the record. Rice v. Shinseki, 22 Vet. App. 447 (2009), citing Comer v. Peake, 552 F.3d 1362 (Fed. Cir. 2009). Here, however, the Veteran has not asserted, and the objective evidence of record does not reflect, that he is unemployable as a result of his service-connected right shoulder disability. In fact, the report of the June 2011 VA examination includes a notation that the Veteran has not sought medical care for this disability since his post-operative appointment in 2008. Accordingly, the Board need not address the matter of a TDIU further. ORDER Entitlement to an initial rating in excess of 20 percent for mild osteoarthritis of the right acromioclavicular joint with labral tear and rotator cuff tendonitis, status post slap repair, is denied. ____________________________________________ THERESA M. CATINO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs