Citation Nr: 1332189 Decision Date: 10/17/13 Archive Date: 10/21/13 DOCKET NO. 09-09 402 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Fort Harrison, Montana THE ISSUE Entitlement to an initial compensable rating for left shoulder strain. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Matthew Blackwelder, Counsel INTRODUCTION The Veteran had active military service from May 1988 to May 1992. This appeal initially came to the Board of Veterans' Appeals (Board) from an April 2008 rating decision. In June 2012, the Board denied the Veteran's claim. The Veteran appealed this decision to the Court of Appeals for Veterans Claims (Court). In November 2012, the Court vacated the Board decision and remanded the Veteran's claim for action consistent with the directives of a joint motion for remand (JMR). The Board has not only reviewed the Veteran's physical claims file but also her file on the "Virtual VA" system to insure a total review of the evidence. FINDINGS OF FACT 1. The Veteran's service-connected left shoulder strain has been productive of slight limitation of motion of the left arm; however, she maintains motion well above the shoulder level and there is no clinical or x-ray evidence of dislocation, nonunion or malunion of the clavicle or scapula; there is also no x-ray evidence of arthritis. 2. The Veteran's left shoulder disability has been shown to be productive of pain. CONCLUSION OF LAW The criteria for a 10 percent rating for left shoulder strain have been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5024, 5201-5203 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION 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; 38 C.F.R., Part 4. 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 appellant 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. In Fenderson v. West, 12 Vet. App. 119, 126 (1999), the Court of Appeals for Veterans' Claims (Court) noted a distinction between an appeal involving the Veteran's disagreement with the initial rating assigned at the time a disability is service connected. 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. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). 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 rating" is required. See Fenderson, 12 Vet. App. at 126. The Veteran filed her claim for service connection for a left shoulder disability in August 2007. Service connection was granted by an April 2008 rating decision and a noncompensable rating was assigned for a left shoulder strain. The Veteran appealed the rating that was assigned. In June 2012, the Board denied a compensable rating for the Veteran's left shoulder strain. This decision was subsequently vacated by the Court and returned to the Board for action consistent with a JMR. The premise of the JMR was that the Board had failed to consider whether the Veteran was entitled to a compensable disability on the basis of pain, pursuant to 38 C.F.R. § 4.59, which relates to painful motion and provides: "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 maligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint." 38 C.F.R. § 4.59. The Court has explained that 38 C.F.R. § 4.59 applies when evaluating joint pain, even if such pain is not arthritis-related. Burton v. Shinseki, 25 Vet. App. 1, 4 (2011). The JMR acknowledged that the Veteran had demonstrated considerable range of motion at her VA examination in February 2008, but noted that the examiner had diagnosed a left shoulder strain and commended that "pain is the only limitation of function." The examiner also stated that pain had a "moderate" impact on the Veteran's daily activities, including chores, shopping exercise, sports and recreation. Indeed, the Veteran has consistently reported experiencing left shoulder pain. For example, at a VA examination in February 2008, she reported treating her left shoulder pain with non-steroidal anti-inflammatory drugs (NSAIDs) and received a cortisone injection in 2003. As will be discussed below, it appears that the majority of the Veteran's current left shoulder symptoms have been found to be unrelated to her service connected left shoulder strain. However, it does not appear that the left shoulder pain that the Veteran has consistently reported experiencing can be found to be completely unrelated from her service connected strain. See Mittleider v. West, 11 Vet. App. 181, 182 (1998) (where the effects of service-connected and non-service-connected disabilities cannot be separated, reasonable doubt requires that the signs and symptoms should be attributed to the service-connected disabilities). Therefore, having considered the evidence of record a second time, the Board is in concurrence with the JMR that 38 C.F.R. § 4.59 is indeed applicable to the Veteran's claim and giving the Veteran the benefit of all doubt. Therefore, a 10 percent rating is granted in recognition that the Veteran is entitled to the minimal compensable rating for her left shoulder. However, a rating in excess of 10 percent is not warranted. It is worth noting that aside from requesting additional consideration of 4.59, the JMR did not find any flaws with the Board's June 2012 decision. Moreover, since the Board's decision in June 2012, the Veteran has not advanced any additional evidence, identified any additional treatment, or suggested that her left shoulder disability has worsened. As such, the Board finds that the majority of the findings made in the June 2012 Board decision remain fully applicable to the Veteran's left shoulder claim. The Veteran's left shoulder disability is rated under Diagnostic Codes 5201-5024, effective from August 28, 2007. Tenosynovitis is rated based upon limitation of motion of the affected joint, as arthritis, degenerative. 38 C.F.R § 4.71a, Diagnostic Code 5024. Disabilities of the shoulder and arm are rated under Diagnostic Codes 5200 through 5203. Normal ranges of upper extremity motion are defined by VA regulation as follows: forward elevation (flexion) from zero to 180 degrees; abduction from zero to 180 degrees; and internal and external rotation to 90 degrees. Lifting the arm to shoulder level is lifting it to 90 degrees. See 38 C.F.R. § 4.71, Plate I. Diagnostic Code 5201 provides that limitation of motion of the minor arm at shoulder level warrants a 20 percent disability rating. Limitation of motion of the minor arm midway between the side and shoulder level warrants a 20 percent disability rating. Limitation of motion of the minor arm to 25 degrees from the side warrants a maximum 30 percent rating. 38 C.F.R. § 4.71a, Diagnostic Code 5201. Here, the evidence of record fails to show that the range of motion in the Veteran's left shoulder has been sufficiently functionally limited as to warrant even a compensable rating. At her February 2008 VA examination, the Veteran demonstrated full range of motion of the left shoulder, providing evidence against both the current finding and/or a higher evaluation. At an October 2008 VA examination, the Veteran demonstrated forward flexion to 165 degrees and abduction to 175 degrees. She also demonstrated external rotation to 90 degrees and internal rotation to 78 degrees. At a February 2010 VA examination, the Veteran demonstrated active forward flexion to 160 degrees; active abduction to 150 degrees; external rotation to 90 degrees; and internal rotation to 70 degrees. VA and private treatment records were reviewed, but they fail to describe the results of any range of motion testing. As described, on each occasion that the range of motion in the Veteran's left shoulder was measured, it greatly exceeded the limitation required for a compensable rating under Diagnostic Code 5201, providing evidence against both the current finding and/or a higher evaluation. 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. As noted above, the Board has assigned a 10 percent rating based on the Veteran's complaints of pain under 38 C.F.R. § 4.59. However, the examiners have noted the Veteran's reports of pain, and in fact have indicated that pain was the Veteran's only functional limiter. For example, at the February 2010 VA examination, the examiner noted that repetitive motion did not change the level of pain and did not cause any fatigue, lack of endurance or weakness with repetitive motion. Yet, even with pain, the Veteran still demonstrated range of motion to considerably above shoulder level. Thus, accepting that the Veteran does experience left shoulder pain, it has not been shown that the pain functionally limited the range of motion in the Veteran's shoulder to such a degree as to warrant a rating in excess of 10 percent. Even if pain was experienced throughout the range of motion (which it has not been in this case), the pain must be shown to cause functional loss, but pain itself does not constitute functional loss. Mitchell v. Shinseki, 25 Vet. App. 32, 36-38 (2011) (emphasis added). 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. In this case, it does not. Therefore, a rating in excess of the 10 percent rating that was assigned for pain is not warranted based on additional limitation of motion. As such, the Board does not find that the Veteran's range of motion is so functionally limited so as to warrant a rating in excess of the 10 percent that is already assigned. Again, it is noted that the JMR did not voice any disagreement with such a conclusion. The Board has considered whether other Diagnostic Codes might allow for a compensable disability rating. The only other Diagnostic Codes available for rating the shoulder and arm are Diagnostic Codes 5200 through 5203. Any evaluation under Diagnostic Code 5200 requires ankylosis of the scapulohumeral articulation, which was not shown by the evidence of record. A rating under Diagnostic Code 5202 is not warranted because it relates to disabilities of the humerus, which are not shown in the evidence of record. Under Diagnostic Code 5203, a compensable rating requires either malunion of the clavicle or scapula, or nonunion of the clavicle or scapula without loose movement. Service connection is not in effect for such bony abnormalities and, in any event, neither of these is shown by the evidence of record. The Board recognizes that in the October 2008 VA examination report and January 2009 addendum to the report, a VA examiner stated that the Veteran's current left shoulder disability, diagnosed as myofascial pain syndrome, was not a part of her service-connected left shoulder strain because it was not related to her in-service musculoskeletal strain. In this regard, the examiner noted that the evidence of record showed that beginning in 1996, the Veteran was diagnosed with other disabilities of the left shoulder; specifically trapezius strain, bilateral impingement, and bursitis. In addition, private medical records showed that in December 2003, a magnetic resonance imaging (MRI) was taken of the Veteran's left shoulder and was reported to show AC joint arthrosis and subacromial and subdeltoid bursitis and adhesive capsulitis. The examiner indicated that although the Veteran was treated for a left shoulder strain during service, she had not been treated for a strain post-service. Rather, she was treated for bursitis, impingement, and inflammation of the AC and subacromial joints, and the examiner opined that those pathologies were different from the pathology of a strain. Importantly, it was the examiner's opinion that the Veteran's current left shoulder pathologies were not related to her in-service left shoulder strain. Clearly, this opinion only provides evidence against this claim of some probative weight (against both the Board's grant and for a higher evaluation). However, because the examiner noted that her opinion was speculative, the RO obtained another VA opinion in February 2010. In the February 2010 VA examination report, the VA examiner diagnosed the Veteran with the following: (1) left shoulder glenoid labrum tear with sequela (pain, instability, and decreased motion), and (2) myofascial pain, mild, left trapezius secondary to diagnosis number 1. The examiner interpreted the December 2003 MRI as showing a SLAP lesion, type 2, which was known as a superior labrum anterior to posterior tear. The examiner stated that in regard to the post-service left shoulder diagnoses, which included AC joint arthrosis, impingement syndrome, left shoulder adhesive capsulitis, left shoulder bursitis, a SLAP type 2 tear of the glenoid labrum of the left shoulder, and left shoulder myofascial pain syndrome, it was his opinion that all of the aforementioned left shoulder disorders were likely consequences of the SLAP type 2 tear which had not, to date, been surgically repaired. The injury to cause such a tear most likely would have occurred sometime after the 1996 trapezius muscle strain and before the July 2003 treatment began (in July 2003, the Veteran received a steroid injection and treatment for left trapezius muscle strain). Thus, the examiner opined that the Veteran's currently diagnosed left shoulder disorders, as listed above, were not related to her in-service left shoulder strain which was likely acute and self-limited. Again, this report provides more highly probative evidence against the claim that her service connected disability (the strain) has caused any of her current problems, providing more evidence against the Board's grant or a higher evaluation. In this case, it appears that the Veteran's currently diagnosed left shoulder disabilities, to include AC joint arthrosis, impingement syndrome, left shoulder adhesive capsulitis, left shoulder bursitis, a SLAP type 2 tear of the glenoid labrum of the left shoulder, and left shoulder myofascial pain syndrome, are separate and not related to her service-connected left shoulder strain. Nevertheless, regardless of whether the Veteran's current left shoulder symptomatology is related to nonservice-connected left shoulder disabilities or to her service-connected left shoulder strain, the fact remains that such symptomatology does not meet the criteria under Diagnostic Code 5201, or any other pertinent Diagnostic Code, for a rating in excess of 10 percent. Consequently, two findings are made by the Board: (1) it is likely (a much more than 50% chance) that the Veteran's current problems are not associated with her service or her service connected disability, based on the medical evidence cited above; and (2) even if the Board assumes, arguendo, that all of the Veteran's problems with her shoulder are service-related, the evidence is against a finding that her current problems with this disability warrant a rating in excess of 10 percent under any pertinent Diagnostic Code. The Board has also considered whether an extraschedular rating is warranted, noting that if an exceptional case arises where ratings 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 Court has held that the determination of whether a claimant is entitled to an extraschedular rating under § 3.321(b) is a three-step inquiry, the responsibility for which may be shared among the RO, the Board, and the Under Secretary for Benefits or the Director, Compensation and Pension Service. Thun v. Peake, 22 Vet. App. 111 (2008). 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 id. However, in this case, the medical evidence fails to show anything unique or unusual about the Veteran's left shoulder strain that would render the schedular criteria inadequate. The record does not reflect, for example only, that the Veteran has required any hospitalizations for her left shoulder disability and there is no indication in the record that the left shoulder disability markedly interferes with her employment or daily activities, beyond what is contemplated in the rating schedule. In this regard, the Board notes that in the October 2008 VA examination report, the Veteran stated that she worked at a VARO as a veteran's service representative. She indicated that it was a desk job and that a recent change in desks aggravated her left shoulder pain. However, she reported that her left shoulder pain did not prevent her from doing her job. Thus, in the February 2008 VA examination report, although the examiner stated that the Veteran's left shoulder pain had significant effects on her occupational activities, the Board notes that he did not state that the Veteran's left shoulder disability prevented her from obtaining and/or maintaining employment. Furthermore, it was not noted at any of the Veteran's three VA examinations that the Veteran's left shoulder strain caused symptoms or complications that were not being covered by the Veteran's service connected rating. As such, it would not be found that the Veteran's left shoulder strain met the "governing norms" of an extraschedular rating. Accordingly, an extraschedular rating is not warranted for left shoulder strain. Again it is worth pointing out that the JMR did not suggest that the Board's extraschedular analysis was deficient in any way, and no such argument has been received from the Veteran or her representative suggesting that an extraschedular rating might be warranted. Duties to Notify and Assist Under applicable criteria, VA has certain notice and assistance obligations to claimants. See 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). Notice must be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim for VA benefits and must: (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; and (3) inform the claimant about the information and evidence the claimant is expected to provide. Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II). With respect to service connection claims, a section 5103(a) notice should also advise a claimant of the criteria for establishing a disability rating and effective date of award. Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 486 (2006). In the present case, required notice was provided by letters dated in January 2008 and July 2008, which informed the Veteran of all the elements required by the Pelegrini II Court as stated above. In addition, the aforementioned letters informed her about how VA determines effective dates and disability ratings, as required by Dingess. Under these circumstances, the Board finds that the notification requirements of the VCAA have been satisfied as to content. The Board finds that any defect concerning the timing of the notice requirement was harmless error. Although the entirety of the notice provided to the Veteran was not given prior to the first adjudication of the claim, the Veteran has been provided with every opportunity to submit evidence and argument in support of her claim and ample time to respond to VA notices. See Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006). Additionally, the Veteran's claim was readjudicated following completion of the notice requirements. It is noted that the JMR did not identify any notice deficiency, and neither the Veteran, nor her representative, has suggested any prejudice caused by a content error. See Shinseki v. Sanders, 129, S. Ct. 1696 (2009). The Veteran's employment would suggest that she is aware of what is required in this case. The Veteran has been provided the opportunity to respond to VA correspondence and over the course of the appeal has had multiple opportunities to submit and identify evidence. Furthermore, she has been provided a meaningful opportunity to participate effectively in the processing of her claim by VA, which she has done. VA also has a duty to assist the Veteran in obtaining evidence necessary to substantiate the claim. 38 U.S.C.A. § 5103A(a) ("The Secretary shall make reasonable efforts to assist a claimant in obtaining evidence necessary to substantiate the . . . claim"). This duty includes assisting the veteran in obtaining records and providing medical examinations or obtaining medical opinions when such are necessary to make a decision on the claim. 38 U.S.C.A. § 5103A(b), (c), (d) (setting forth Secretary's various duties to claimant). VA informed the Veteran of its duty to assist in obtaining records and supportive evidence, and the Veteran received VA examinations in February 2008, October 2008, and February 2010, which were thorough in nature and adequate for the purposes of deciding this claim. The aforementioned VA examinations revealed findings that are adequate for rating the Veteran's left shoulder strain. The Board acknowledges that the most recent VA examination was provided in 2010. However, the duty to assist does not require that a claim be remanded solely because of the passage of time since an otherwise adequate examination was conducted. VAOPGCPREC 11-95. Here, there is no objective evidence indicating that there has been a material change in the severity of the Veteran's left shoulder disability since that examination. The Veteran, who has knowledge of what to do (and ask) in these situations based on her employment, has not indicated to the Board that her problem has become worse since the most recent examination and has not requested a new examination. Thus, the Board finds that the medical evidence of record is sufficient to resolve this appeal; VA has no further duty to provide an examination or medical opinion. 38 C.F.R. §§ 3.326, 3.327. Based on the foregoing, it is the Board's determination that the VA fulfilled its VCAA duties to notify and to assist the Veteran, and thus, no additional assistance or notification was required. The Veteran has suffered no prejudice that would warrant a remand, and her procedural rights have not been abridged. See Bernard, 4 Vet. App. at 384. ORDER A 10 percent rating for the Veteran's left shoulder strain is granted, subject to the laws and regulations governing the award of monetary benefits. ____________________________________________ JOHN J. CROWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs