Citation Nr: 1329563 Decision Date: 09/16/13 Archive Date: 09/20/13 DOCKET NO. 11-09 126 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to an initial disability rating for osteoarthritis, right shoulder acromioclavicular joint separation (dominant) (hereinafter "right shoulder disability") in excess of 20 percent. REPRESENTATION Veteran represented by: Texas Veterans Commission ATTORNEY FOR THE BOARD Patricia Kingery, Associate Counsel INTRODUCTION The Veteran had active military service from June 1989 to June 1994. This appeal comes to the Board of Veterans' Appeals (Board) from an April 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. The Board has not only reviewed the Veteran's physical claims file, but also his file on the "Virtual VA" system to insure a total review of the evidence. FINDINGS OF FACT 1. The Veteran is right-handed. 2. Resolving any doubt in the Veteran's favor, his service- connected right shoulder disability is manifested by complaints of pain and limitation of motion to midway between the side and shoulder level. 3. The Veteran's right shoulder disability does not result in limitation of motion of the arm to 25 degrees from the side, ankylosis of the scapulohumeral articulation, or impairment of the humerus, clavicle, or scapula. CONCLUSION OF LAW The criteria for a 30 percent rating, but no higher, for the Veteran's service-connected right shoulder disability have been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.71a, Diagnostic Code (DC) 5010-5201 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Procedural Duties The Board finds that no further notice or development action is necessary in order to satisfy VA's duties to the Veteran under the Veterans Claims Assistance Act of 2000 (VCAA). 38 U.S.C.A. §§ 5100, 5103(a), 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159 (2012). Because the matter at issue in this case concerns an appeal of an initial rating, VA's notice obligations under the VCAA were fully satisfied once service connection was granted. Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 490 (2006) (holding that once a decision awarding service connection and assigning a disability rating and an effective date has been made, the section 5103(a) notice has served its purpose, and its application is no longer required because the claim has been substantiated). The record in this case does not show, nor does the Veteran or his representative contend, that any notification deficiencies have resulted in prejudice. See Goodwin v. Peake, 22 Vet. App. 128 (2008) (holding that the claimant bears the burden of demonstrating any prejudice from defective VCAA notice with respect to the downstream elements such as the disability rating and effective date). VA satisfied its duty to assist the Veteran in the development of his claim. First, VA satisfied its duty to seek, and assist in the procurement of, relevant records. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. VA has made reasonable efforts to obtain relevant records adequately identified by the Veteran. Specifically, the information and evidence that have been associated with the claims file include the Veteran's VA treatment records, correction department treatment records, and lay statements. In February 2010, the RO, pursuant to the Veteran's authorization and consent to release information, requested correction department treatment records for the period dated February 1977 through July 1998. Correspondence received in March 2010 stated the correction department retained treatment records for 10 years following the date of discharge and as such, the sought after records had already been destroyed. Thus, the Board finds that any further attempts to obtain this evidence would be futile and is therefore not required by the duty to assist. 38 C.F.R. § 3.159(c). Additionally, neither the Veteran nor his representative has 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. Thus, the Board concludes that VA has made every reasonable effort to obtain all records relevant to the Veteran's claim. Second, VA satisfied its duty to obtain a medical opinion when required. See 38 U.S.C.A. § 5103A; 38 C.F.R. §§ 3.159(c)(4), 3.326(a); McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006). The Veteran was provided with a VA joints examination (the report of which has been associated with the claims file) in February 2010. The Board finds the VA examination was thorough and adequate. The VA examiner personally interviewed and examined the Veteran, fully reviewed all medical evidence of record, and specifically addressed the symptoms listed in the relevant criteria in the potentially applicable diagnostic codes. Additionally, neither the Veteran nor his representative has questioned the adequacy of examination and there is no indication of worsening since. The Veteran was offered the opportunity to testify at a hearing before the Board, but he declined. As VA satisfied its duties to notify and assist the Veteran, the Board finds that there is no further action to be undertaken to comply with the provisions of 38 U.S.C.A. § 5103(a), § 5103A, or 38 C.F.R. § 3.159, and that the Veteran will not be prejudiced as a result of the Board's adjudication of his claim. II. Increased Rating Disability ratings are determined by applying a schedule of ratings that is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C.A. § 1155 (West. 2002); 38 C.F.R., Part 4 (2012). Each disability must be viewed in relation to its history and the limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. § 4.1. Examination reports are to be interpreted in light of the whole recorded history, and each disability must be considered from the point of view of the Veteran working or seeking work. 38 C.F.R. § 4.2. Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § 4.7. Where entitlement to compensation already has been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern, including the appropriateness of staged ratings. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994); Hart v. Mansfield, 21 Vet. App. 505 (2007). However, where, as here, the question for consideration is propriety of the initial evaluations assigned, evaluation of the medical evidence since the grant of service connection and consideration of the appropriateness of staged ratings, whenever the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings, is required. See Fenderson v. West, 12 Vet. App. 119, 126 (1999). Hyphenated Diagnostic Codes are used when a rating under one Diagnostic Code (DC) requires use of an additional DC to identify the basis for the evaluation assigned; the additional code is shown after the hyphen. 38 C.F.R. § 4.27. In claims for VA benefits, VA 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(b). In August 2009, the Veteran filed his initial claim for VA compensation, seeking service connection for a right shoulder disability. In April 2010, the Veteran's claim was granted and the right shoulder disability was assigned a 20 percent disability rating effective in August 2009. In May 2010, the Veteran filed a Notice of Disagreement disagreeing with the rating that was assigned. The Veteran's right shoulder disability, his dominant shoulder, is currently assigned a 20 percent disability rating under DC 5010-5201. Under DC 5201 (arm, limitation of motion of), a 20 percent rating for either the dominant or minor shoulder is assigned where limitation of motion is to shoulder level. A 30 percent rating for the dominant shoulder, or a 20 percent rating for the minor shoulder, is assigned where limitation of motion is midway between side and shoulder level. A 40 percent rating for the dominant shoulder, or a 30 percent rating for the minor shoulder, is assigned where limitation is to 25 degrees from the veteran's side. Normal ranges of motion of the shoulder are flexion (forward elevation) from 0 degrees to 180 degrees, abduction from 0 to 180 degrees, external rotation from 0 to 90 degrees, and internal rotation from 0 to 90 degrees. 38 C.F.R. § 4.71, Plate I. Shoulder level is equivalent to 90 degrees of shoulder flexion or abduction. Id. Applying the criteria set forth above to the facts in this case, and affording the Veteran the benefit of the doubt, the Board finds that a 30 percent disability rating, but no higher, is warranted for his service-connected right shoulder disability. A November 2009 correction department treatment record notes the Veteran was unable to actively abduct his right arm beyond 25 to 30 degrees, had limited flexion and extension, and experienced pain in his right shoulder and acromioclavicular joint. An associated X-ray report noted degenerative osteoarthritic changes within his acromioclavicular joint and possible slight acromioclavicular separation. In connection with his claim, the Veteran underwent a VA examination in February 2010. The examination report includes range of motion testing which notes objective evidence of pain with active motion on the right side. Right flexion was 0 to 90 degrees, right abduction was 0 to 90 degrees, right internal rotation was 0 to 45 degrees, and right external rotation was 0 to 45 degrees. Objective evidence of pain following repetitive motion was also noted, but no additional limitations of motion upon repetition were found. The examination report also notes no joint ankylosis or evidence of recurrent dislocations. Degenerative osteoarthritis in the acromioclavicular joint and irregularity of the outermost end of the clavicle were noted by the VA examiner upon review of X-rays. As noted above, the Veteran's right shoulder disability is presently evaluated as 20 percent disabling under DC 5201. It is undisputed that the Veteran's right arm is his dominant arm and is noted in the February 2010 VA examination. 38 C.F.R. § 4.69. As reflected in the November 2009 correction department treatment record, the Veteran's right arm abduction was limited to 25 to 30 degrees, with corresponds to the range of motion midway between his side and shoulder level as contemplated by the 30 percent rating criteria under DC 5201. The Board notes that the February 2010 VA examination reported right flexion and abduction of 0 to 90 degrees, which is contemplated by the 20 percent rating criteria under DC 5201. However, because these two range of motion tests occurred within 3 months of each other and resolving any reasonable doubt in the Veteran's favor, the Board finds that a 30 percent rating is warranted for his right shoulder disability. However, after a careful review of the record to include the Veteran's contentions, the Board finds that he does not meet the criteria for a rating in excess of 30 percent for his right shoulder disability. The Veteran is not entitled to the next higher disability rating of 40 percent because the evidence does not show that his right arm's range of motion is limited to 25 degrees from his side. As noted above, the November 2009 correction department treatment record reported that the Veteran was unable to actively abduct his arm beyond 25 to 30 degrees. His range of motion was beyond 25 degrees from his side, greater range of motion then that contemplated by the 40 percent rating criteria. Additionally, as previously discussed, the February 2010 VA examination notes range of motion results that are specifically contemplated by the 20 percent rating criteria. Accordingly, the weight of the lay and medical evidence does not demonstrate that the schedular criteria for 40 percent disability rating for his right shoulder disability under DC 5201 are met. The Board has considered whether a higher disability evaluation is warranted on the basis of functional loss due to pain or due to weakness, fatigability, incoordination, or pain on movement of a joint under 38 C.F.R. §§ 4.40 and 4.45. See also DeLuca v. Brown, 8 Vet. App. 202 (1995). Functional loss contemplates the inability of the body to perform the normal working movements of the body with normal excursion, strength, speed, coordination and endurance, and must be manifested by adequate evidence of disabling pathology, especially when it is due to pain. 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. Additionally, painful motion is an important factor of disability; and joints that are actually painful, unstable, or malaligned, due to healed injury, should be entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59. In this case, the Veteran has complained of pain as a result of his right shoulder disability as detailed in lay statements submitted throughout the course of his appeal. In his August 2009 claim, the Veteran reported constant pain and very limited use of his right arm and shoulder. In a November 2009 written statement, the Veteran reported the pain and discomfort caused by his right shoulder had worsened. In November 2009, the Veteran's brother, mother, and spouse submitted lay statements detailing their observations of the Veteran's pain and limitation of motion. The Veteran's brother reported witnessing him not being able to use his arm at times, his frequent physical pain, and the limited mobility of his shoulder. The Veteran's spouse detailed that the Veteran cannot raise his arm at full length and that his pain has worsened, becoming almost constant. The Veteran's mother reported knowing that he has limited use of his arm. The Board has reviewed the Veteran's complaints of constant and worsening pain and limited use of his right arm and shoulder as well as his family member's lay statements detailing the severity of his pain and the limited mobility of his shoulder based upon their observations and interactions with the Veteran. There is no question that the Veteran experiences right shoulder pain. However, shoulder pain alone is not sufficient to warrant a higher rating, as pain may cause a functional loss, but pain itself does not constitute functional loss. Mitchell v. Shinseki, 25 Vet. App. 32, 36-38 (2011). Rather, pain must affect some aspect of "the normal working movements of the body" such as "excursion, strength, speed, coordination, and endurance," in order to constitute functional loss. Id. at 43; see 38 C.F.R. § 4.40. The Board acknowledges that there was objective evidence of pain on active motion as well as following repetitive motion, but notes that there was no additional limitations after repetitions of range of motion testing as reported on the February 2010 VA examination. The Veteran is competent to give evidence about what he experiences, e.g. right shoulder pain. Layno v. Brown, 6 Vet. App. 465, 469 (1994) (noting competent lay evidence requires facts perceived through the use of the five senses). However, the Board finds more probative the objective findings including evidence of multiple range of motion tests and no objective evidence of any additional functional impairment. Thus, a higher rating is not warranted in this case because the 30 percent rating assigned adequately compensates him for any functional impairment that he experiences due to his right shoulder disability. Next, the Board has also considered the application of DC 5200 for disabilities involving ankylosis of the scapulohumeral articulation; DC 5202 for other impairment of the humerus to include recurrent dislocation, fibrous union, non union or flail shoulder; and, DC 5203 impairment of the clavicle/scapula to include nonunion with loose movement. However, weight of the evidence does not demonstrate evidence of ankylosis, recurrent dislocation, fibrous union, non union, flail shoulder, or nonunion of the clavicle or scapula with loose movement involving the right shoulder joint. No such findings for the Veteran's right shoulder are shown in the February 2010 VA examination report or elsewhere of record. Therefore, consideration of an increased disability rating under such codes is not warranted. The Board has also considered whether referral for consideration of an extraschedular rating is warranted, noting that if an exceptional case arises where rating based on the statutory schedules are found to be inadequate, consideration of an "extra-schedular" evaluation commensurate with the average earning capacity impairment due exclusively to the service-connected disability or disabilities will be made. 38 C.F.R. § 3.321(b)(1). 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. This means that initially 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, the assigned schedular evaluation is adequate, and no referral is required. If the criteria do not reasonably describe the claimant's disability level and symptomatology, a determination must be made 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"); see Thun v. Peake, 22 Vet. App. 111 (2008). In this case, the schedular evaluation is adequate. The Veteran's right shoulder disability is manifested by limitation of motion of the arm and pain, symptoms specifically contemplated by 38 C.F.R. §§ 4.40, 4.45, 4.59, and 4.71a. He has not identified any other factors which may be considered exceptional or unusual that would render the schedular criteria inadequate. Therefore, the Board concludes that, in the absence of exceptional factors associated with the right shoulder disability, the assigned schedular evaluation reasonably describes the Veteran's right shoulder disability and submission for assignment of an extraschedular rating pursuant to 38 C.F.R. § 3.321(b)(1) are not met. Finally, the Board has considered whether an inferred claim for a total disability rating based on individual unemployability (TDIU) under Rice v. Shinseki, 22 Vet. App. 447 (2009) has been raised. In this case, the record on appeal contains no indication that the Veteran is unemployable as a result of his right shoulder disability. The February 2010 VA examination report notes that the Veteran is currently unemployed due to incarceration and the examiner found no significant effects on usual occupation. The correction department treatment records reflect that, while the Veteran has restrictions upon the type of work he may perform, he is not unable or prevented from working. A July 2005 correction department treatment record notes the Veteran reported not being able to work "in the garden squad" due to his shoulder, but not that he was entirely unable to work. In a November 2009 written statement, the Veteran states that, prior to being incarcerated, he did not disclose his right shoulder disability when applying for jobs or during employment. He has not alleged that he is, or was at any time, unemployable on account of his right shoulder disability. Thus, the Board finds that Rice is inapplicable since there is no evidence of unemployability due to the Veteran's service-connected right shoulder disability. In sum, the evidence is at least in equipoise as to whether the degree of right shoulder impairment is more nearly approximated by a 30 percent rating, as described above. Resolving any reasonable doubt in favor of the Veteran, the Board finds that the criteria for a 30 percent initial evaluation for the Veteran's right shoulder disability have been met. 38 C.F.R. §§ 4.3, 4.7, 4.71a, DC 5010-5201. ORDER An initial 30 percent evaluation, but no higher, for osteoarthritis, right shoulder acromioclavicular joint separation (dominant) is granted for the entire initial rating period on appeal. ____________________________________________ K. J. ALIBRANDO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs