Citation Nr: 1333159 Decision Date: 10/23/13 Archive Date: 10/24/13 DOCKET NO. 09-18 862 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cheyenne, Wyoming THE ISSUES 1. Entitlement to a rating in excess of 10 percent for a right shoulder disorder, status post repair of a partial tear of dominant supraspinatus tendon, prior to June 2, 2008. 2. Entitlement to a rating in excess of 20 percent for a right shoulder disorder, status post repair of a partial tear of dominant supraspinatus tendon, since June 2, 2008. ATTORNEY FOR THE BOARD Andrea Johnson, Associate Counsel INTRODUCTION The Veteran had active military service from May 1999 to November 2005. This appeal comes to the Board of Veterans' Appeals (Board) from a June 2007 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). The issue of entitlement to service connection for lip numbness was also listed on the Veteran's May 2009 substantive appeal. However in a January 2013 rating decision VA granted service connection for this disorder, constituting a full grant of all issues sought on appeal. Accordingly, the issue of service connection for lip numbness is no longer before the Board. In reviewing this case the Board has not only reviewed the Veteran's physical claims file, but also his file on the "Virtual VA" system to ensure a total review of the evidence. FINDINGS OF FACT 1. The evidence preponderates against finding that the Veteran had nonunion or dislocation of the clavicle or scapula with loose movement or limitation of right arm motion to shoulder level prior to June 2, 2008. 2. The evidence preponderates against finding that the Veteran's right arm motion is limited to midway between his side and shoulder level at any point during the period on appeal. CONCLUSION OF LAW The criteria for a rating in excess of 20 percent for a right shoulder disorder status post repair of a partial tear of the dominant supraspinatus tendon, to include entitlement to a rating in excess of 10 percent prior to June 2, 2008 have not been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.27, 4.30, 4.59, 4.71a, Diagnostic Code 5201 and 5203 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION Veterans Claims Assistance Act As service connection, an initial rating, and an effective date have been assigned, the notice requirements of the Veterans Claims Assistance Act (VCAA), 38 U.S.C.A. § 5103(a) have been met. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007). VA fulfilled its duty to assist the Veteran in obtaining identified and available evidence needed to substantiate a claim, and as warranted by law, affording VA examinations. There is no evidence that additional records have yet to be requested, or that additional examinations for these issues are in order. The Veteran was offered the opportunity to testify at a hearing before the Board, but he declined. The Board has reviewed all the evidence in the Veteran's claims files. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Veteran or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) Increased rating The Veteran is seeking entitlement to an increased rating for his right shoulder disorder. 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 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. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). 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 v. West, 12 Vet. App. 119, 126 (1999). The Veteran's right shoulder disorder was rated as 10 percent disabling until June 2, 2008, and 20 percent after that date. Between September 12, 2008 and November 1, 2008 the disorder was assigned a temporary 100 percent rating following surgery under 38 C.F.R. § 4.30 (2013). Aside from this temporary total rating the Veteran's disorder has been rated under Diagnostic Code 5203-5201. Hyphenated diagnostic codes are used when a rating under one code requires use of an additional diagnostic code to identify the basis for the rating assigned. 38 C.F.R. § 4.27. Diagnostic Code 5203 rates clavicle or scapula impairment and Code 5201 rates limitation of motion. Therefore the Veteran's hyphenated code reflects his right arm disorder is rated based on limitation of motion caused by clavicle or scapula impairment. Under Diagnostic Code 5201 a 20 percent rating is warranted when arm motion is limited to shoulder level, a higher 30 percent rating is warranted when arm motion is limited to midway between the side and shoulder level. 38 C.F.R. § 4.71a. Under Diagnostic Code 5203 a 10 percent rating is warranted for malunion or nonunion of the clavicle or scapula without loose movement. A higher 20 percent rating is warranted for nonunion with loose movement or dislocation. Id. All evidence has been reviewed and considered and relevant evidence is summarized below. In April 2006, the Veteran established care at a VA medical facility following his military service. The Veteran reported having right shoulder trouble from an injury during service and estimated his pain severity was 3 out of 10. A MRI study revealed multiple ligament micro tears. Upon examination the physician noted "loud crepitus" joint laxity, and anterior rotator pain on palpation of the bicep insertion area, and posterior pain with decreased deep tendon reflexes all around. Muscle strength was normal. The physician opined the Veteran had traumatic arthritis and right rotator injury and recommended that he begin physical therapy. In May 2007 the Veteran was provided with a VA examination. The examiner noted the Veteran's history of right shoulder with partial tear of the supraspinatus tendon since 2000. The Veteran reported experiencing a lack of strength above chest height, weakness, stiffness in the mornings, lack of endurance, and fatigability. The Veteran also reported experiencing constant pain described as burning, aching, and sharp which traveled from shoulder to elbow. The Veteran stated his pain came on by itself but was relieved by rest. Objectively there was no evidence of edema, weakness, tenderness, abnormal movement, subluxation, or guarding of movement. Range of motion study revealed flexion and abduction to 180 degrees and internal and external rotation to 90 degrees. The examiner opined that joint function was not additionally limited after repetitive use. X-rays studies revealed findings that were within normal limits. The examiner opined the Veteran had right shoulder partial tear of supraspinatus tendon which caused the appellant to have limited lifting and ability to work overhead. The Board finds that the results of this testing reflect the Veteran had normal range of motion at this examination. See 38 C.F.R. § 4.71 Plate I. Accordingly no higher rating was warranted based on limitation of movement. Additionally x-rays were normal, indicating no higher rating was warranted for nonunion of the clavicle or scapula. Therefore the Board finds the medical evidence preponderates against entitlement to a rating in excess of 10 percent prior to June 2, 2008. Given, however, that the Veteran experienced pain upon right shoulder motion, the assigned 10 percent rating will not be disturbed. 38 C.F.R. § 4.59. In May 2008 the Veteran returned to the VA facility stating his shoulder pain was worse, now an estimated 4 out of 10 severity. The Veteran reported his shoulder felt "loose" most of the time and he experienced chronic pain. The medical provider noted the Veteran's right shoulder had crepitus, decreased strength to resistance, and mildly limited internal range of motion. The Veteran again returned in June 2008, and reported right shoulder pain and non-painful popping with reaching. The Veteran also reported he had to "push" his "collar bone back in." Finally the Veteran stated that pain woke him at night . Range of motion testing revealed external rotation of 45 degrees, forward flexion to 180 degrees, and abduction to 90 degrees. The orthopedic surgeon noted a possible "slap/bankart" tear of the acromioclavicular and glenohumeral joints. The physician noted the Veteran was able to dislocate his acromioclavicular joint with shoulder manipulation. He recommended the Veteran for surgery. The Board finds this record reflects the Veteran's range of motion in his right arm was limited for the first time during the period on appeal. The Veteran had external rotation limited to 45 degrees, instead of the normal 90 degrees. Therefore he was granted an increased rating of 20 percent based on this limitation of motion. The Board finds, however, that the preponderance of the evidence is against finding entitlement to a rating in excess of 20 percent. The evidence does not establish the Veteran's arm was limited to motion only midway between his side and shoulder level. Therefore a rating in excess of 20 percent was not warranted. In September 2008, the Veteran underwent right shoulder surgery to repair the slap tear/partial thickness tear. During surgery the Veteran was found to have an "intrasubstance slap tear of the biceps tendon insertion with a partial thickness less than 50 percent tear of the artic side infraspinatus with a partial thickness tear of the infraspinatus bursal side." Based on the need for postsurgical convalescence the Veteran was granted a temporary one month 100 percent rating following surgery. Following the one month temporary total evaluation the Veteran's rating returned to 20 percent effective November 1, 2008. In a January 2009 written statement the Veteran stated he continued to have problems with his right arm, including "sharp pains from the right shoulder to my hands." In August 2009 the Veteran was provided with a VA examination. The examiner noted the Veteran's right shoulder disorder had been "progressively worse" since onset. The examiner also noted the Veteran's "SLAP repair" surgery in September 2008. The Veteran reported experiencing pain, stiffness, weakness, tenderness, and limited motion due to his right shoulder disorder. The Veteran stated his pain flared following weather changes, overuse, or repeated movement. The Veteran also reported poor sleep patterns due to discomfort. Range of motion study revealed flexion, abduction, internal rotation, and external rotation to 90 degrees. The examiner noted objective evidence of pain following repetitive motion, but no additional limitation of motion. The examiner opined there was no joint ankylosis. X-rays revealed "metallic fixation devices" from his previous surgery, but shoulder was otherwise "unremarkable." The Veteran was noted not to have lost time from work due to his shoulder disorder save for the period during which he underwent surgery. The examiner opined the Veteran had a right shoulder disorder with residuals of supraspinatus tear, however this disorder had "no significant effects" on the Veteran's usual occupation. The examiner noted the following effects on the Veteran's usual daily activities: mild effect on shopping, feeding, grooming, and driving and moderate effect on chores, exercise, recreation, traveling, bathing, and dressing. Flexion and abduction limited to 90 degrees constitutes a limitation of right arm motion to shoulder level, the criteria for a 20 percent rating. The evidence, however, preponderates against finding that the Veteran's arm motion was limited to midway between his side and shoulder level, the criteria for a higher 30 percent rating. Therefore a 20 percent rating was not warranted at this time. Based on the foregoing, the Board finds that the evidence preponderates against finding that the Veteran was entitled to an increased rating at any point during the period on appeal. His claim is denied. In reaching this conclusion, 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. 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 both VA examiners from May 2007 and August 2009 specifically opined that while the Veteran reported complaints of pain and weakness, he did not objectively experience any additional loss of motion after repetitive use. Further, any limitation of motion due to weakness and/or pain was not so severe as to cause an increased limitation of motion to a higher compensable degree. Accordingly the Board finds a higher rating was not warranted based on additional limitation of motion after repetitive use. The Board has also considered whether referral for consideration of 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 United States Court of Appeals for Veterans Claims has held that the determination of whether a claimant is entitled to an extraschedular rating under 38 C.F.R. § 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 veteran's service-connected disability with the established criteria found in the rating schedule for that disability. If the criteria reasonably describe the veteran's disability level and symptomatology, then the veteran'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 veteran's disability level and symptomatology, a determination must be made whether the veteran'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. In this case the medical evidence preponderates against finding anything unique or unusual about the Veteran's right shoulder disability that would render the schedular criteria inadequate. The Veteran's main symptoms were complaints of pain and limited motion. These symptoms are contemplated in the ratings assigned, as discussed above. Therefore, the schedular rating criteria, when viewed in the light of 38 C.F.R. §§ 4.40, 4.45 and 4.59 adequately describe the Veteran's disability picture. Moreover, to the degree that it may not, the symptoms presented would not be found to be within the "governing norms" for an extraschedular rating. That is, there is no evidence of marked interference with employment or frequent hospitalization due to this disorder. Accordingly, referral for consideration of an extraschedular rating is not warranted. The Board has considered whether an inferred claim for a total disability rating based on individual unemployability under Rice v. Shinseki, 22 Vet. App. 447 (2009) has been raised. However at his most recent VA examination in August 2009 the Veteran reported he was currently employed fulltime as an associate engineer doing computer work. Therefore the Board finds that Rice is inapplicable since there is no evidence the Veteran is unemployable. Finally, in reaching this decision the Board considered the doctrine of reasonable doubt, however, as the preponderance of the evidence is against the appellant's claim, the doctrine is not for application. Gilbert v. Derwinski, 1 Vet.App. 49 (1990). ORDER Entitlement to a rating in excess of 10 percent for a right shoulder condition, with partial tear of dominant supraspinatus tendon, prior to June 2, 2008, is denied. Entitlement to a rating in excess of 20 percent for a right shoulder condition, with partial tear of dominant supraspinatus tendon, since June 2, 2008 is denied. ____________________________________________ DEREK R. BROWN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs