Citation Nr: 1332761 Decision Date: 10/21/13 Archive Date: 10/24/13 DOCKET NO. 09-15 833 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania THE ISSUE Entitlement to a compensable disability rating for service-connected right shoulder sprain. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Anthony M. Flamini, Counsel INTRODUCTION The Veteran served on active duty from March 1999 to November 2003. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision issued in July 2008 by the Department of Veterans Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania. A hearing was held in November 2010, with the Veteran sitting at the RO before a local Decision Review Officer (DRO). A transcript of the testimony is in the claims file. The issue of entitlement to a compensable disability rating for service-connected right shoulder sprain was previously before the Board in September 2012 when the Board denied the Veteran's claim. The Veteran appealed the September 2012 Board decision to the United States Court of Appeals for Veterans Claims (Court). In an Order dated in March 2013, the Court partially vacated the Board's September 2012 decision and remanded the case to the Board for development consistent with a Joint Motion for Partial Remand (Joint Motion). The Board acknowledges that its September 2012 decision remanded the issue of entitlement to service connection for tinnitus for additional development; however, this disability was service connected as part of a rating decision dated in May 2013. Therefore, this matter is no longer before the Board for appellate consideration. FINDING OF FACT The Veteran's service-connected right (major) shoulder disability has not been shown to be productive of limitation of motion of the right arm at shoulder level, malunion with moderate deformity or recurrent dislocation at the scapulohumeral joint with infrequent episodes and guarding of arm movement only at shoulder level, or impairment of the clavicle or scapula with either dislocation or nonunion with loose movement; however, it is productive of painful motion limiting the Veteran's right arm range of motion to 120 degrees. CONCLUSION OF LAW Resolving reasonable doubt in the Veteran's favor, the criteria for a rating of 10 percent, but no more, for right shoulder sprain have been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1-4.14, 4.40, 4.45, 4.59, 4.71, 4.71a, Diagnostic Codes 5003, 5201, 5202, 5203 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION Upon receipt of a substantially complete application for benefits, VA must notify the claimant what information or evidence is needed in order to substantiate the claim and it must assist the claimant by making reasonable efforts to get the evidence needed. 38 U.S.C.A. §§ 5103(a), 5103A; 38 C.F.R. § 3.159(b); see Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). The notice required must be provided to the claimant before the initial unfavorable decision on a claim for VA benefits, and it 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. 38 U.S.C.A. §§ 5103(a); 38 C.F.R. § 3.159(b)(1); Pelegrini v. Principi, 18 Vet. App. 112, 120 (2004). Here, the RO did provide the Veteran with VCAA notice in February 2007, June 2007, and December 2007, including per Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Also, an October 2008 letter informed the Veteran that, should an increase in disability be found, a disability rating would be determined by applying relevant Diagnostic Codes, which typically provide for a range in severity of a particular disability from noncompensable to as much as 100 percent (depending on the disability involved), based on the nature of the symptoms of the condition for which disability compensation is being sought, their severity and duration. This letter was sent after the increased rating adjudication of the claims. In this regard, the Board notes that, while the October 2008 notice provided to the Veteran was not given prior to the initial adjudication in this case, notice was provided by the agency of original jurisdiction (AOJ) prior to the transfer and certification of the Veteran's case to the Board, and the content of the notice fully complied with the requirements of 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b). After the notice was provided, the Veteran's increased rating claim was readjudicated in a March 2009 statement of the case and March 2012 supplement statement of the case. Prickett v. Nicholson, 20 Vet. App. 370, 377-78 (2006) (VA cured failure to afford statutory notice to claimant prior to initial rating decision by issuing notification letter after decision and readjudicating the claim and notifying claimant of such readjudication in the statement of the case). Accordingly, the Board concludes that any defect in the timing of any notice has been cured, and no prejudice to the Veteran has resulted. The Veteran's representative has also not claimed any prejudice occurred in this case. The duty to assist the Veteran has also been satisfied in this case. The Veteran's service treatment records as well as all identified and available VA medical records pertinent to the years after service are in the claims file and were reviewed by both the RO and the Board in connection with the Veteran's increased rating claim. The Veteran has not informed VA of any existing records which may be helpful in the adjudication of her claim, and VA is not on notice of any evidence needed to decide the claims which has not been obtained. In addition, the Veteran was afforded a VA examination in February 2011. To that end, when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Board finds that the VA examination obtained in this case is adequate, as it was predicated on a review of the pertinent medical evidence of record as well as on a physical examination and fully addressed the rating criteria that are relevant to rating the disability in this case. There is also no evidence indicating that there has been a material change in the severity of the Veteran's service-connected right shoulder sprain since she was last examined in February 2011. 38 C.F.R. § 3.327(a). Thus, there is adequate medical evidence of record to make a determination in this case. Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion with respect to the increased rating issue on appeal has been met. 38 C.F.R. § 3.159(c)(4). The Board concludes the Veteran was provided the opportunity to meaningfully participate in the adjudication of her claim and did in fact participate. Washington v. Nicholson, 21 Vet. App. 191 (2007). This includes her having an opportunity to provide testimony at a hearing conducted by a DRO in November 2010. Hence, there is no error or issue that precludes the Board from addressing the merits of this appeal. In addition, all relevant, identified, and available evidence has been obtained. Thus, the Board finds that VA has satisfied both the notice and duty to assist provisions of the law. Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R., Part 4. The rating schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. 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 for that rating. 38 C.F.R. § 4.7. In considering the severity of a disability, it is essential to trace the medical history of the veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41. Consideration of the whole-recorded history is necessary so that a rating may accurately reflect the elements of disability present. 38 C.F.R. § 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991). While the regulations require review of the recorded history of a disability by the adjudicator to ensure a more accurate evaluation, the regulations do not give past medical reports precedence over the current medical findings. Where an increase in the disability rating is at issue, the present level of the veteran's disability is the primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). The Board notes that staged ratings are appropriate for an increased-rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). 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. The functional loss may be due to absence of part or all of the necessary bones, joints and muscles, or associated structures, or to deformity, adhesions, defective innervation, or other pathology, or may be due to pain, supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and a part which becomes painful on use must be regarded as disabled. See DeLuca v. Brown, 8 Vet. App. 202 (1995); 38 C.F.R. § 4.40; see also 38 C.F.R. § 4.45. With respect to joints, in particular, the factors of disability reside in reductions of normal excursion of movements in different planes. Inquiry will be directed to more or less than normal movement, weakened movement, excess fatigability, incoordination, pain on movement, swelling, deformity or atrophy of disuse. 38 C.F.R. § 4.45. The intent of the rating schedule is 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. Although pain may be a cause or manifestation of functional loss, limitation of motion due to pain is not necessarily rated at the same level as functional loss where motion is impeded. See Mitchell v. Shinseki, 25 Vet. App. 32 (2011); cf. Powell v. West, 13 Vet. App. 31, 34 (1999); Hicks v. Brown, 8 Vet. App. 417, 421 (1995); Schafrath v. Derwinski, 1 Vet. App. 589, 592 (1991). Instead, pursuant to 38 C.F.R. §§ 4.40 and 4.45, the possible manifestations of functional loss include decreased or abnormal excursion, strength, speed, coordination, or endurance, as well as less or more movement than is normal, weakened movement, excess fatigability, and pain on movement (as well as swelling, deformity, and atrophy) that affects stability, standing, and weight-bearing. See 38 C.F.R. §§ 4.40, 4.45. Thus, functional loss caused by pain must be rated at the same level as if the functional loss were caused by any of the other factors cited above. Thus, in evaluating the severity of a joint disability, VA must determine the overall functional impairment due to these factors. The provisions of 38 C.F.R. § 4.59, which relate to painful motion, are not limited to arthritis and must be considered when raised by the claimant or when reasonably raised by the record. Burton v. Shinseki, 25 Vet. App. 1 (2011). Degenerative arthritis, 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. See 38 C.F.R. § 4.71a, Diagnostic Code 5003. 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. In assessing the severity of limitation of shoulder motion, it is necessary to consider both forward flexion and abduction. See Mariano v. Principi, 17 Vet. App. 305, 317-18 (2003). In every instance where the rating schedule does not provide a zero percent rating for a diagnostic code, a zero percent rating shall be assigned when the requirement for a compensable rating are not met. 38 C.F.R. § 4.31 (2013). The Veteran's service-connected right shoulder sprain is characterized as right shoulder girdle muscle strain. This disability is not listed on the Rating Schedule, and the RO assigned Diagnostic Code 5299 pursuant to 38 C.F.R. § 4.27, which provides that unlisted disabilities requiring rating by analogy will be coded first the numbers of the most closely related body part and "99." See 38 C.F.R. § 4.20 (2013). The RO determined that the most closely analogous diagnostic code is 38 C.F.R. § 4.71a, Diagnostic Code 5201. Diagnostic Code 5201 provides that limitation of motion at shoulder level (i.e., 90 degrees) warrants a 20 percent disability rating. 38 C.F.R. § 4.71a, Diagnostic Code 5201. A 30 percent rating is for assignment when limitation of motion of the major arm is midway between the side and the shoulder level (i.e., less than 90 degrees but more than 25 degrees shoulder motion). Id. If motion is limited of the major arm to 25 degrees from the side, a 40 percent rating is for assignment. Id. VA's regulations indicate that handedness for the purpose of a dominant rating will be determined by the evidence of record. 38 C.F.R. § 4.69. The Veteran indicated as part of a Physical Therapy Medical History Form, dated in October 2002, that she was right handed. Under 38 C.F.R. § 4.71a, Diagnostic Code 5202, a 20 percent rating contemplates moderate deformity of the humerus. Under 38 C.F.R. § 4.71a, Diagnostic Code 5203, a 10 percent rating is warranted for malunion of the clavicle or scapula, or nonunion without loose movement. A 20 percent rating contemplates either non-union of the clavicle or scapula with loose movement; or dislocation of the clavicle or scapula. This is the maximum rating assignable under Diagnostic Code 5203. Here, a November 2006 VA treatment note indicated that the Veteran complained of right shoulder pain which radiated into her neck. A January 2007 VA progress note included a diagnosis of right shoulder pain, with Toradol and Percocet use. The report of February 2008 a magnetic resonance imaging (MRI) examination showed normal right shoulder findings. October 2008 VA MRI reports, concerning the Veteran's right shoulder, showed a small simple humeral head cyst. A March 2009 VA primary care note shows that the Veteran was seen for right shoulder complaints. Concerning her shoulder pain, no obvious neurological pathology was reported. No radiculopathy was present. She was diagnosed as having right shoulder pain. A May 2009 VA orthopedic clinic note shows that the Veteran was administered a right trapezius pain trigger point depo-Medrol and Marcaine injection. As noted, the Veteran provided testimony at a DRO hearing in November 2010. As concerning her service-connected right shoulder disability, the Veteran testified that she could lift her right arm above her shoulder level. The Veteran was also afforded a VA orthopedic examination in February 2011, including to evaluate her service-connected right shoulder disability. The Veteran was noted to be employed as a VA police officer. The examiner clarified that the problems were not associated with the Veteran's right shoulder per se, but rather her right shoulder girdle. This was noted to cause constant pain over the right scapula radiating into the right side of her neck. Percocet use was noted to alleviate the pain to a certain degree. Noting the Veteran was right handed, the examiner commented that the right shoulder girdle problems were not associated with flare-ups, but rather were manifested by constant right shoulder pain. Examination of the right shoulder showed tenderness to palpation over the right trapezius muscle. No palpable paravertebral muscle spasm in either the neck nor mid back was observed. Right shoulder range of motion testing, to the point of increased pain, showed forward flexion to 130 degrees, abduction to 75 degrees, internal rotation to 30 degrees, and external rotation to 60 degrees. Repetitive use testing showed forward flexion to 120 degrees, abduction to 75 degrees, internal rotation to 30 degrees, and external rotation to 80 degrees. The examiner commented that repetitive testing caused one motion range to be limited due to pain, but not because of fatigue, weakness, or lack of endurance. The Veteran was diagnosed as having right shoulder girdle muscle strain. The Board notes that certain records from the claims file have been stored electronically as part of the Virtual VA paperless claims processing system. These include VA medical records dated in 2011 and 2012, showing outpatient treatment afforded the Veteran for her right shoulder. Treatment shown to have been afforded the Veteran is essentially cumulative in nature to the numerous VA medical records comprehensively discussed above. After considering all of the evidence of record, including particularly the above-referenced VA February 2011 examination report, the Board finds that the Veteran's service-connected right shoulder disability warrants no more than a 10-percent disability rating. Here, the February 2011 VA medical examination report shows that examination of the right shoulder, while indicative of tenderness to palpation over the right trapezius muscle, revealed range of motion testing results which, while limited, clearly were not sufficiently severe as to warrant the assignment of a 20 percent compensable rating under Diagnostic Code 5201. See 38 C.F.R. § 4.71a, Plate I. Also, in the course of her May 2010 hearing, the Veteran testified that she could lift her right arm above the level of her shoulder. As such, based on these facts, a compensable rating for the Veteran's right shoulder disability cannot be assigned pursuant to Diagnostic Code 5201. Further, the clinical medical evidence on file fails to demonstrate that a compensable rating is warranted for the Veteran's right shoulder disability under either Diagnostic Code 5202 or Diagnostic Code 5203. First, the evidence, while cognizant of the fact that a small simple humeral head cyst was diagnosed as part of an October 2008 VA MRI examination report, does not show any malunion of the humerus. Thus, a 20 percent disability rating is not for assignment under Diagnostic Code 5202. Also, for a compensable 10 percent disability rating to be assigned under Diagnostic Code 5203, impairment of the right clavicle or scapula, manifested by malunion, need be manifested. Here, it is not. Therefore, a compensable rating cannot be assigned pursuant to Diagnostic Code 5203. The March 2013 Joint Motion for Partial Remand noted that C.F.R. §§ 4.40 (functional loss) and 4.45 (joints) are for consideration with respect to musculoskeletal disorders such as the Veteran's shoulder sprain/strain. See DeLuca, supra. The Joint Motion emphasized that the Board's September 2012 decision did not provide any discussion as to the impact, if any, of the factors under these regulatory provisions as to a higher rating under any diagnostic code involving limitation of motion, particularly Diagnostic Code 5201. The Board acknowledges that the Veteran has right shoulder pain and thus, recognizes the application of 38 C.F.R. §§ 4.40 and 4.45, and DeLuca, supra. Nevertheless, higher compensation is not warranted under these provisions because the persuasive and credible evidence of additional functional loss due to pain, weakness, fatigue, or incoordination does not show limited motion or function to such a degree so as to warrant a compensable rating for any period of time. Specifically, even with consideration of pain, the Veteran was able to forward flex her right shoulder to 130 degrees. The examiner noted that repetitive testing caused motion range to be additionally limited to 120 degrees due to pain. However, even this does not meet the criteria for a compensable rating under Diagnostic Code 5201, which requires that movement of the major arm be limited to at least 90 degrees to warrant the minimum compensable rating of 20 percent. The Board has considered the effective range of motion only to the point where pain sets in. VAOPGCPREC 9-98. Moreover, there was no evidence of additional functional loss due to weakness, fatigue, or incoordination. In addition, the March 2013 Joint Motion for Partial Remand noted that the Board's September 2012 decision failed to discuss C.F.R. § 4.59 in its analysis, as well as Burton v. Shinseki, 25 Vet. App. 1. To this point, the Board emphasizes that the Veteran has not been diagnosed as having, and radiology does not reveal, arthritis of the right shoulder. Rather, the Veteran has been diagnosed as having a sprain and/or strain of the right shoulder. However, regardless of whether the Veteran has arthritis of his right shoulder, the Court has held that the application of 38 C.F.R. § 4.59 is not limited to disabilities involving arthritis. See Burton, supra. The Veteran is competent to report the symptoms and impairments associated with the right shoulder disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Given the consistency of her complaints and the objective evidence of pain, the Board finds her to be credible regarding her complaints of right shoulder pain. Resolving reasonable doubt in the Veteran's favor, the Board finds that her service-connected right shoulder disability manifested painful, and thus limited, motion to a noncompensable degree. As such, a 10 percent rating (the minimum compensable rating for the joint) is warranted by analogy to Diagnostic Code 5003 as well as under 38 C.F.R. §§ 4.3, 4.7, and 4.59. See Powell, 13 Vet. App. at 34; Hicks, 8 Vet. App. at 417. The Board also notes that an extraschedular rating is a component of a claim for an increased rating. Barringer v. Peake, 22 Vet. App. 242 (2008); Bagwell v. Brown, 9 Vet. App. 337, 338-39 (1996). The threshold factor for extraschedular consideration is a finding on part of the RO or the Board that the evidence presents such an exceptional disability picture that the available schedular evaluations for the service-connected disability at issue are inadequate. Thun v. Peake, 22 Vet. App. 111 (2008); see Fisher v. Principi, 4 Vet. App. 57, 60 (1993); 38 C.F.R. § 3.321(b)(1). If so, factors for consideration in determining whether referral for an extraschedular rating include marked interference with employment or frequent periods of hospitalization that indicate that application of the regular schedular standards would be impracticable. Thun, citing 38 C.F.R. § 3.321(b)(1) (2013). The Board finds that the record does not reflect that the Veteran's service-connected right shoulder disability has been so exceptional or unusual as to warrant the assignment of a higher rating on an extra-schedular basis. See 38 C.F.R. § 3.321(b)(1) (2013). In this regard, there must be a comparison between the level of severity and symptomatology of the claimant's service-connected disabilities with the established criteria found in the rating schedule for that disability. If the criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule and the assigned schedular evaluation is therefore adequate, and no extraschedular referral is required. Id., see also VAOGCPREC 6-96 (Aug. 16, 1996). Otherwise, if the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, VA must determine whether the claimant's exceptional disability picture exhibits other related factors, such as those provided by the extraschedular regulation (38 C.F.R. § 3.321(b)(1)) as "governing norms" (which include marked interference with employment and frequent periods of hospitalization). In this case, the evidence of record clearly does not show frequent periods of hospitalization. In fact, the Veteran does not even appear to be in receipt of what could be described as regular treatment for her service-connected right shoulder disability. Additionally, the Board finds that the rating criteria to evaluate her service-connected right shoulder orthopedic-based disorder reasonably describe the claimant's disability level and symptomatology, and while she has argued that higher ratings should be assigned, the evidence here simply does not support such an award. Further, the Veteran, according to the evidence of record, is currently employed as a police officer. Therefore, the Veteran's disability picture is contemplated by the rating schedule and no extraschedular referral is required. 38 C.F.R. § 3.321(b)(1); Bagwell; Shipwash v. Brown, 8 Vet. App. 218 (1995). Finally, the Board is cognizant of the ruling of the Court in Rice v. Shinseki, 22 Vet. App. 447 (2009). In Rice, the Court held that a claim for a total rating based on individual unemployability due to service-connected disability (TDIU), either expressly raised by the Veteran or reasonably raised by the record, involves an attempt to obtain an appropriate rating for a disability and is part of the claim for an increased rating. In this case, the Board again notes that the evidence of record reflects that the Veteran is currently employed as a police officer. As such, the record does not reflect, and the Veteran has not asserted, that she is unemployable due to the disability at issue. Accordingly, the Board concludes that a claim for TDIU is not for appellate consideration. ORDER A 10-percent disability rating, but no more, for service-connected right shoulder sprain is granted. ____________________________________________ U. R. POWELL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs