Citation Nr: 1330471 Decision Date: 09/23/13 Archive Date: 09/30/13 DOCKET NO. 07-28 506 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Indianapolis, Indiana THE ISSUE Entitlement to increased ratings for left shoulder rotator cuff tendonitis, currently assigned "staged" ratings of 10 percent prior to November 15, 2011, and 20 percent from that date. REPRESENTATION Veteran represented by: The American Legion ATTORNEY FOR THE BOARD Megan C. Kral, Associate Counsel INTRODUCTION The Veteran served on active duty from November 1987 to March 1988, from January 2004 to October 2005, and from December 2007 to December 2010. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2006 rating decision by a Regional Office (RO) of the Department of Veterans Affairs (VA). This case was previously before the Board in May 2011 when it was remanded for additional development. At that time, the Veteran had also initiated appeals of the denials of entitlement to service connection for a skin disability and peripheral vestibular disorder. A July 2012 rating decision granted service connection for a skin disability and a December 2012 rating decision granted service connection for peripheral vestibular disorder. Consequently, those matters are not before the Board. FINDINGS OF FACT 1. The Veteran is left-handed; prior to October 7, 2011, her service-connected left shoulder disability was manifested by pain and noncompensable limitation of arm motion. 2. From October 7, 2011, the Veteran's service-connected left shoulder disability has been manifested by limitation of motion of the left arm to shoulder level; limitation of motion of the arm to midway between the side and shoulder level, impairment of the humerus, clavicle or scapula, or ankylosis are not shown. CONCLUSIONS OF LAW 1. Prior to October 7, 2011, a rating in excess of 10 percent was not warranted for the Veteran's service-connection left shoulder disability. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Codes (Codes) 5003, 5024, 5201 (2013). 2. From October 7, 2011, a rating in excess of 20 percent is warranted for the Veteran's service-connected left shoulder disability. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code (Code) 5201 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Veterans Claims Assistance Act of 2000 (VCAA) As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), the United States Department of Veterans Affairs (VA) 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 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2013). Duty to Notify Upon receipt of a complete application, VA must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide. 38 U.S.C.A. § 5103(a); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). The notice requirements apply to all five elements of a service connection claim: (1) veteran status; (2) existence of a disability; (3) a connection between the veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The notice must be provided to a claimant before the initial unfavorable adjudication by the RO. Pelegrini v. Principi, 18 Vet. App. 112 (2004). In this case, the RO provided VCAA notices to the Veteran in March 2006 and September 2007. The Veteran was aware that it was ultimately her responsibility to give VA any evidence pertaining to the claim. These letters informed her that additional information or evidence was needed to support her claim, and asked her to send the information or evidence to VA. See Pelegrini II, 18 Vet. App. at 120-121. Furthermore, these letters described how appropriate disability ratings and effective dates were assigned. Furthermore, for initial rating claims, where, as here, service connection has been granted and the initial rating has been assigned, the claim of service connection has been more than substantiated, as it has been proven, thereby rendering 38 U.S.C.A. § 5103(a) notice no longer required since the purpose that the notice was intended to serve has been fulfilled. Once a claim for service connection has been substantiated, the filing of a NOD with the rating of the disability does not trigger additional 38 U.S.C.A. § 5103(a) notice. See Dingess, 19 Vet. App. at 490-491; Dunlap v. Nicholson, 21 Vet. App. 112 (2007); see also Goodwin v. Peake, 22 Vet. App. 128, 137 (2008) (where a claim has been substantiated after the enactment of the VCAA, the appellant bears the burden of demonstrating any prejudice from defective VCAA notice with respect to any downstream elements). The Veteran has received all essential notice, has had a meaningful opportunity to participate in the development of her claim, and is not prejudiced by any technical notice deficiency along the way. See Conway v. Principi, 353 F.3d 1369 (Fed. Cir. 2004). In any event, the Veteran has not demonstrated any prejudice with regard to the content of the notice. See Shinseki v. Sanders, 129 S.Ct. 1696 (2009) (Reversing prior case law imposing a presumption of prejudice on any notice deficiency, and clarifying that the burden of showing that an error is harmful, or prejudicial, normally falls upon the party attacking the agency's determination). See also Mayfield v. Nicholson, 444 F.3d 1328, 1333-34 (Fed. Cir. 2006). Duty to Assist VA has obtained pertinent treatment records, assisted the Veteran in obtaining evidence, and afforded the Veteran VA examinations for her left shoulder in May 2006 and October 2011. The Board finds these examination reports and opinions to be thorough, complete, and sufficient upon which to base a decision with regard to the Veteran's claim. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (holding that when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate). All known and available treatment records relevant to the issue on appeal have been obtained and associated with the Veteran's claims file; and the Veteran and her representative have not contended otherwise. The Board finds that the record as it stands includes adequate competent evidence to allow the Board to adjudicate the issue addressed in the decision that follows and that no further action is necessary with respect to the issue adjudicated herein. See generally 38 C.F.R. § 3.159(c)(4). No additional pertinent evidence has been identified by the Veteran as relevant to the issue adjudicated herein, and under these circumstances, no further action is necessary to assist the claimant with this appeal with respect to the issue adjudicated below. Legal Criteria The Board notes that is has reviewed all of the evidence in the Veteran's claims file, as well as in "Virtual VA", 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)(VA must review the entire record, but does not have to discuss each piece of evidence). Hence, the Board will summarize the relevant evidence as appropriate and the Board's analysis will focus specifically on what the evidence shows, or fails to show, as to the claim. Disability evaluations are determined by the application of the Schedule For Rating Disabilities, which assigns ratings based on the average impairment of earning capacity resulting from a service-connected disability. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. 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. In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the Veteran's condition. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). The severity of the disability at issue is to be considered during the entire period from the initial assignment of the disability rating to the present time. See Fenderson v. West, 12 Vet. App. 119 (1999). The analysis in the following decision is therefore undertaken with consideration of the possibility that different ratings may be warranted for different time periods. At the outset, the Board notes the Veteran is left-handed; consequently, her left shoulder disability is of the major (dominant) arm. The Veteran's service-connected left shoulder rotator cuff tendonitis was originally rated under Diagnostic Code 5024, which is to be rated as degenerative arthritis under Diagnostic Code 5003. 38 C.F.R. § 4.71a, Diagnostic Code 5024. Degenerative arthritis, or osteoarthritis, when established by x-ray findings, will be rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved. When the limitation of motion of the specific joint or joints involved is noncompensable under the appropriate diagnostic codes, a rating of 10 percent is for application for each such major joint or group of minor joints affected by limitation of motion to be combined, not added under 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. Since November 15, 2011, the Veteran's service-connected left shoulder rotator cuff tendonitis has been rated under Diagnostic Code 5021, for limitation of motion. Diagnostic Code 5021, provides that for the major (dominant) arm, limitation of motion is rated 20 percent for limitation of motion at the shoulder level. A 30 percent rating is also assigned for limitation of motion at the midway between the shoulder and the side. A 40 percent rating requires limitation to 25 degrees from the side. 38 C.F.R. § 4.71a. Normal range of motion of the shoulder is as follows: forward elevation (flexion) to 180 degrees; abduction to 180 degrees; internal rotation to 90 degrees; and external rotation to 90 degrees. 38 C.F.R. § 4.71, Plate I. Other diagnostic codes for rating the shoulder disability do not apply in this case as the pathology required, such as ankylosis or impairment of the humerus, clavicle or scapula, is not shown by the medical evidence. 38 C.F.R. § 4.71a, Codes 5200, 5202, and 5203. The Court has held that functional loss, supported by adequate pathology and evidenced by visible behavior of the veteran undertaking the motion, is recognized as resulting in disability. DeLuca v. Brown, 8 Vet. App. 202 (1995); 38 C.F.R. §§ 4.10, 4.40, 4.45. 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 pain supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion. 38 C.F.R. § 4.40. Factual Background The Veteran filed her claim in November 2055 following separation from service. In January 2006, x-rays revealed a normal left shoulder. No acute fracture or dislocation was shown; the glenohumeral and acromioclavicular joint spaces were preserved; bony mineralization was within normal limits; and there was no focal soft tissue abnormality. The Veteran underwent a VA examination in May 2006. The Veteran complained of pain, stiffness, and weakness of the left shoulder. The examiner noted the Veteran was left-hand dominant. Range of motion studies showed flexion between 0 to 120 degrees, without pain; external rotation to 90 degrees, without pain; and internal rotation to 90 degrees, with pain. No additional loss of motion was reported with repetitive use. No loss of bone, dislocation, arthritis, or ankylosis was shown. Contemporaneous x-rays showed no evidence of acute bony injury and no gross soft tissue abnormality. Left shoulder pain was diagnosed. The examiner concluded that there were no significant effects on the Veteran's occupation, but that there were mild effects on her ability to perform chores and shopping; moderate effects on her ability to play sports; and severe effects on her ability to exercise. A November 2007 VA treatment record noted that the Veteran continued to have intermittent pain in her left shoulder for which she occasionally took ibuprofen. The Veteran was recalled to active duty beginning December 2007 to December 2010. During this time, she continued to receive treatment for her left shoulder. Due to complaints of increased pain and limitation of motion, a MRI of the left shoulder joint was taken in November 2008. There was increased signal intensity and thickness of the distal supraspinatus and infraspinatus tendons compatible with severe tendinopathy. There was also a small amount of fluid intensity signal within the infraspinatus muscle compatible with a small undersurface tear. The teres minor and subscapularis tendons were intact and the rotator cuff muscle bulk was maintained. There was no effusion of the glenohumeral joint, and the anterior and posterior labrum were grossly intact. There were no degenerative changes of the acromioclavicular joint. A tiny undersurface tear of the infraspinatus muscle and severe supraspinatus and infraspinatus tendinopathy were diagnosed. The Veteran underwent physical therapy between March and May 2009 for severe supraspinatus and infraspinatus tendinopathy and pain. Physical therapy discharge notes showed the Veteran attended seven physical therapy appointments and only felt pain in her shoulder when doing push-ups or playing the tambourine at church. The Veteran reported she was able to use her shoulder to perform functional tasks. Range of motion upon discharge from physical therapy showed flexion to 175 degrees and abduction to 175 degrees. Strength was four out of five for flexion and abduction, and five out of five for extension. The examiner noted the Veteran no longer had constant pain in her left shoulder. A VA treatment record from August 2009 noted the Veteran was doing well, with no complaints and normal range of motion. In August 2010, during a routine physical, the Veteran reported that she still had pain in the left shoulder that comes and goes. She denied swelling and redness. The Veteran was afforded another VA examination on October 7,2011, for left shoulder tendenopathy. She reported baseline discomfort was a four or five out of ten and felt like "a bunch of sticks" going through her shoulder, or a cold throbbing pain. The Veteran reported flare-ups that impacted the function of her shoulder with activity and when playing the tambourine. Pain on flare-up reached ten out of ten. She reported that every couple of weeks, the pain in her shoulder would wake her. She used ibuprofen for pain. She stated that her range of motion varied from day to day, but that it was always significantly decreased. Range of motion studies were conducted. Left shoulder flexion was measured to 90 degrees, with pain at 60 degrees; left shoulder abduction was measured to 90 degrees, with pain at 60 degrees. There was additional loss of motion with repetitive testing; flexion was reduced to 80 degrees and abduction was reduced to 85 degrees. The examiner also concluded that the Veteran had additional functional loss due to less movement, weakened movement, excess fatigability, and pain on movement. Localized tenderness was reported at the left shoulder. The Veteran did not exhibit guarding of the left shoulder. There was no ankylosis of the glenohumeral joint. Hawkins' Impingement Test was positive; Empty-can Test was negative; the Veteran was unable to perform the external rotation and lift-off subscapularis tests. There was evidence of mechanical symptoms, such as clicking or catching. No history of dislocation was reported. No arthritis was documented. The examiner noted that her left shoulder pain impacted her ability to work and explained that driving caused aggravation, and when she experienced pain, it was uncomfortable for her to use her arm. The examiner also noted that if shoulder pain woke the Veteran at night, she would be more fatigued which affected her work. Analysis After reviewing the claims file, the Board finds that a 20 percent rating is warranted from October 7, 2011, instead of the November 15, 2011, date selected by the RO. It is not clear why the RO selected the November 15 date. Although the rating decision referred to an examination on that date, the Board's review reveals that the examiner was actually conducted on October 7, 2011. The Board's analysis of the time periods in question follows. Prior to October 7, 2011 For the period prior to October 7, 2011, the Veteran's service-connected left shoulder disability has been assigned a 10 percent rating under 38 C.F.R. § 4.71a, Code 5024, which is rated under the criteria for Code 5003. A 10 percent rating is the maximum rating available under Code 5003. As discussed above, to warrant a higher (20 percent) rating, the Veteran must show that the motion of her left arm was limited to the shoulder level (90 degrees). The first time the Veteran exhibited a limitation of motion to the shoulder level was on October 7, 2011 VA examination. At that time, her left shoulder flexion was measured to 90 degrees, extension was measured to 90 degrees. Prior to this examination, the Veteran's flexion was measured above 120 degrees. Furthermore, although the Veteran complained of pain on motion and tenderness, there is no objective evidence of record that shows there was additional limitation of motion. Consequently, the clinical findings in the record for the period prior to October 7, 2011, do not provide a factual basis for increasing the rating for the Veteran's left shoulder disability above 10 percent under any applicable criteria. From October 7, 2011 The Board finds that the Veteran should be assigned a 20 percent rating under 38 C.F.R. § 4.71a, Code 5201 (for limitation of arm motion) from October 7, 2011, based on VA examination findings on that date. This amends the effective date of the 20 percent rating assigned by July 2012 rating decision from November 15, 2011. As noted above, October 7, 2011 is the date where the medical evidence first showed a reduction in range of motion of the Veteran's left arm to 90 degrees. To warrant a higher (30 percent) rating from October 7, 2011, the Veteran must establish that the motion of her left arm is limited to midway between side and shoulder level. Range of motion testing during the October 2011 VA examination revealed forward flexion to 90 degrees, abduction to 90 degrees. Such findings fall squarely within the criteria for a 20 percent rating under Code 5201. The Veteran complained of pain with movement; repetitive testing showed that pain limited flexion to 80 degrees and abduction to 85 degrees. Additionally, on repetitive testing, the examiner noted that there was weakened movement, pain, and excess fatigability. While this demonstrates some decrease in range of motion, it does not rise to a finding that the Veteran's arm motion is limited midway between side and shoulder level. The Veteran's complaints of pain experienced in her left shoulder, functional loss due to flare-ups, pain on movement, and weakness were considered and are reflected in the 20 percent rating. See 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca, 8 Vet. App. at 206-7. Even considering the DeLuca factors, the additional limitation of motion on repetitive motion was slight. Consequently, the Board finds that the criteria for a 30 percent rating under Code 5201 are not met. The Board concludes that the preponderance of the evidence is against entitlement to a increased ratings. As the preponderance of the evidence weighs against the claim, the benefit-of-the-doubt doctrine does not apply. See 38 U.S.C.A. § 5107(b). The Veteran may always advance an increased rating claim if the severity of her disability should increase in the future. Extraschedular Rating The Board has also considered the potential application of other various provisions, including 38 C.F.R. § 3.321(b)(1), for exceptional cases where scheduler evaluations are found to be inadequate. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). In general, the schedular disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. The application of such schedular criteria was discussed in great detail above. To accord justice in an exceptional case where the schedular standards are found to be inadequate, the RO is authorized to refer the case to the Chief Benefits Director or the Director, Compensation and Pension Service for assignment of an extraschedular evaluation commensurate with the average earning capacity impairment. 38 C.F.R. § 3.321(b)(1). The criterion for such an award is a finding that the case presents an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical application of regular schedular standards. Id. The Court has held that the Board is precluded by regulation from assigning an extraschedular rating under 38 C.F.R. § 3.321(b)(1) in the first instance; however, the Board is not precluded from raising this question, and in fact is obligated to liberally read all documents and oral testimony of record and identify all potential theories of entitlement to a benefit under the law and regulations. Floyd v. Brown, 9 Vet. App. 88 (1996). The Court further held that the Board must address referral under 38 C.F.R. § 3.321(b)(1) only where circumstances are presented which the Director of VA's Compensation and Pension Service might consider exceptional or unusual. Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). In Thun v. Peake, 22 Vet. App. 111 (2008), the Court clarified the analytical steps necessary to determine whether referral for extraschedular consideration is warranted. Either the RO or the Board must first determine whether the schedular rating criteria reasonably describe a Veteran's disability level and symptomatology. Id. at 115. If the schedular rating criteria do reasonably describe a Veteran's disability level and symptomatology, the assigned schedular evaluation is adequate, referral for extraschedular consideration is not required, and the analysis stops. If the RO or the Board finds that the schedular evaluation does not contemplate a Veteran's level of disability and symptomatology, then either the RO or the Board must determine whether a Veteran's exceptional disability picture includes other related factors such as marked interference with employment and frequent periods of hospitalization. Id. at 116. If this is the case, then the RO or the Board must refer the matter to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for the third step of the analysis, determining whether justice requires assignment of an extraschedular rating. Id. In this case, the symptoms described by the Veteran fit squarely within the criteria for the disability at issue. The current applicable Code expressly addresses the Veteran's disability and associated pain, range of motion, and functional limitations. In short, the rating criteria contemplate not only her symptoms but the severity of her disability. For these reasons, referral for extraschedular consideration is not warranted. ORDER Prior to October 7, 2011, entitlement to a rating in excess of 10 percent for left shoulder rotator cuff tendonitis is not warranted. To this extent, the appeal is denied. A 20 percent rating for left shoulder rotator cuff tendonitis is warranted from October 7, 2011. To this extent, the appeal is granted, subject to laws and regulations governing payment of VA monetary benefits. ____________________________________________ ALAN S. PEEVY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs