Citation Nr: 1333307 Decision Date: 10/23/13 Archive Date: 10/24/13 DOCKET NO. 09-14 106 ) DATE ) ) Received from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to a higher initial rating for left acromioclavicular joint degenerative changes, status post rotator cuff repair, rated as noncompensable prior to July 21, 2012 and 10 percent disabling from July 21, 2012. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD C. D. Simpson, Counsel INTRODUCTION The Veteran had active duty service from January 1982 to March 2008. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2008 rating decision by a Regional Office (RO) of the Department of Veterans Affairs (VA) in Roanoke, Virginia. The decision granted service connection and assigned an initial noncompensable rating for a left shoulder disability and denied service connection for a right knee disability. The Veteran timely appealed both issues. Jurisdiction has subsequently been transferred to the RO in St. Petersburg, Florida. In June 2012, the Board denied service connection for a right knee disability and remanded the issue currently on appeal for additional development. In January 2013, the Appeals Management Center (AMC) granted an initial rating of 10 percent effective July 21, 2012. As higher ratings are available, the issue remains on appeal. A review of the Virtual VA paperless claims processing system includes the Informal Hearing Presentation, but does not show any additional pertinent records that are not already associated with the claims folder. FINDINGS OF FACT 1. Prior to July 21, 2012, the evidence did not show degeneration of the left shoulder or painful motion. 2. A July 21, 2012, VA examination revealed degenerative arthritis diagnosed by X-ray and painful motion of the left shoulder. 3. The Veteran has not had disability equating to limitation of forward flexion or abduction to the shoulder level (90 degrees) at any time during the claim period. CONCLUSION OF LAW The criteria for higher ratings for the Veteran's service-connected left shoulder disability have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.159, 4.1-4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5003, 5019, 5201 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duty to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations imposes obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2013); 38 C.F.R §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013). Proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b)(1) (2013); Pelegrini v. Principi, 18 Vet. App. 112 (2004). In Pelegrini, the United States Court of Appeals for Veterans Claims (Court) held that VCAA notice, as required by 38 U.S.C.A. § 5103(a), must be provided to a claimant before the initial unfavorable adjudication by the RO. The Court has also held that the VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim. Those five elements include: 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 appeal arises from disagreement with the initial rating following the grant of service connection. The courts have held that once service connection is granted, the claim is substantiated. Additional VCAA notice is not required, and any defect in the notice is not prejudicial. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). Nevertheless, the record indicates that the Veteran was provided with adequate VCAA notice in June 2008. Specifically, the RO notified the Veteran of information and evidence necessary to substantiate his service connection claims. He was notified of the information and evidence that VA would seek to provide and the information and evidence that he was expected to provide. In February 2009, he received additional information about how to substantiate his left shoulder increased rating claim. The duty to notify has been met. The VCAA also requires VA to make reasonable efforts to help a claimant obtain evidence necessary to substantiate his claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c), (d). This "duty to assist" contemplates that VA will help a claimant obtain records relevant to his claim, whether or not the records are in Federal custody, and that VA will provide a medical examination or obtain an opinion when necessary to make a decision on the claim. 38 C.F.R. § 3.159(c)(4). VA obtained the Veteran's service treatment records. In August 2008, the Veteran reported that he did not have any post-service medical records. He has not identified any additional medical records since that time. He was afforded March 2008 and July 2012 VA examinations to assess the severity of his service-connected left shoulder disability. An October 2012 VA examination addendum was also obtained. There is no indication that the Veteran's left shoulder disability has materially increased since the July 2012 VA examination. In the June 2012 remand, the Board instructed the AOJ to schedule another VA examination and readjudicate the claim following the development. A VA examination was conducted in July 2012 to assess the severity of the Veteran's service-connected left shoulder disability. An October 2012 addendum was made to confirm the examiner's review of the claims file. The July 2012 examination was thorough, contained all pertinent findings, and was responsive to the questions posed by the Board. Accordingly, the AOJ substantially complied with all of the Board's relevant June 2012 remand instructions and VA has no further duty to obtain any additional records or conduct additional examinations. See Dyment v. West, 13 Vet. App. 141, 146- 47 (1999); Stegall v. West, 11 Vet. App. 268 (1998). II. Analysis The Veteran contends that his service-connected left shoulder disability is more disabling than reflected by the currently assigned noncompensable initial rating prior to July 21, 2012 and 10 percent rating thereafter. Disability evaluations are determined by comparing a Veteran's symptoms with criteria set forth in VA's Schedule for Rating Disabilities, which are based on average impairment in earning capacity. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. Part 4 (2013). When a question arises as to which of two ratings applies under a particular diagnostic code, the higher of the two evaluations is assigned if the disability more closely approximates the criteria for the higher rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2013). After consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3 (2013). The Veteran's entire history is reviewed when making disability evaluations. See generally 38 C.F.R. § 4.1 (2013); Schafrath v. Derwinski, 1 Vet. App. 589 (1991). 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 the propriety of the initial rating assigned, consideration of the medical evidence since the effective date of the award of service connection and consideration of the appropriateness of staged ratings are required. See Fenderson v. West, 12 Vet. App. 119, 126 (1999). The Board must consider a Veteran's pain, swelling, weakness, and excess fatigability when determining the appropriate evaluation for a disability using the limitation-of-motion diagnostic codes. 38 C.F.R. §§ 4.40, 4.45; see Johnson v. Brown, 9 Vet. App. 7, 10 (1996). The Court interpreted these regulations in DeLuca v. Brown, 8 Vet. App. 202 (1995), and held that all complaints of pain, fatigability, etc., shall be considered when put forth by a veteran. In accordance with this requirement, the Veteran's reports of pain have been considered in conjunction with the Board's review of the limitation-of-motion diagnostic codes. See also Mitchell v. Shinseki, 25 Vet. App. 32 (2011). The Veteran is currently rated under Diagnostic Codes (DC) 5201-5019. 38 C.F.R. § 4.71a, DC 5019, 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 (2013). Diagnostic Code 5019 allows for rating bursitis as arthritis, based on limitation of motion, and Diagnostic Code 5201 sets for the criteria for rating limited motion of the shoulder. Diagnostic Code 5003 (arthritis) provides that degenerative arthritis will be evaluated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved. When, however, 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 major joint or group of minor joints affected by limitation of motion, to be combined, not added under DC 5003. 38 C.F.R. § 4.71a, DC 5003. Limitation of motion of the shoulder is evaluated under DC 5201 for limitation of motion of the arm. The Veteran is right handed, and the left arm is the minor arm. Under DC 5201, a 20 percent rating is assigned when motion of the arm is limited to shoulder level or midway between the side and shoulder level for the minor arm. A 30 percent rating is assigned when motion of the minor arm is limited to 25 degrees from the side. 38 C.F.R. § 4.71a DC 5201. In March 2008, the Veteran was afforded a VA/QTC shoulder examination. He reported that he injured his left shoulder in service while turning a wrench. He had stiffness, but denied weakness, swelling, heat, redness, giving way, lack of endurance, locking, fatigability, and dislocation. He also denied pain. He was not receiving any treatment. Clinical examination was negative for edema, effusion, weakness, tenderness, redness, heat, subluxation, or guarding of movement. He exhibited a full range of motion in all planes of movement. Additional functional impairment was not observed on repetitive movement. X-rays of the left shoulder were within normal limits. The examiner noted the status post repair of the left shoulder rotator cuff, but declined to assign an additional diagnosis based upon lack of current pathology. On July 21, 2012, VA reexamined the Veteran. He reported having left shoulder rotator cuff surgery in service. He believed the surgery was successful, but that he did not regain total function. He had to stop participating in certain activities due to shoulder pain. Left shoulder pain occurred during strenuous activities or lying in bed with his left arm raised. He reported having flare-ups of pain lasting a few days, which prevented any strenuous activity. He also had difficulty sleeping in a comfortable position. During clinical examination, he demonstrated full left shoulder flexion without pain. Abduction was full with endpoint pain. He did not have diminished movement from repetitive motion. The examiner identified excess fatigability and pain as functional impairments. He also noted tenderness to palpation. Guarding was not observed. Muscle strength was full (5/5) for both abduction and flexion. Ankylosis was not present, nor was any history of recurrent dislocation. The examiner noted the surgical scar, but did not find it to be painful or cover an area greater than 6 square centimeters. X-rays showed mild degenerative changes in the left shoulder. The examiner commented that the disability should not interfere with work, aside from handling luggage while traveling. He listed a final diagnosis of degenerative joint disease of the left acromioclavicular joint, rotator cuff tear, status post surgical repair. An October 2012 VA addendum reflects that the July 2012 examiner reviewed the claims folder and declined to make any changes to the July 2012 VA examination report. The Veteran contends that higher initial ratings are warranted. However, the March 2008 VA examination report reflects that the Veteran did not have any limitation in motion; nor did he have painful motion of the left shoulder. X-rays were negative for findings of degenerative arthritis. Prior to July 21, 2012, the evidence does not indicate that the Veteran had additional left shoulder symptomatology, other than that which was demonstrated at the March 2008 VA examination. Hence, a compensable rating is not warranted prior to July 21, 2012. 38 C.F.R. § 4.71a, DC 5201-5019. VA examination conducted on July 21, 2012 revealed that the Veteran had painful motion in his left shoulder. X-ray study confirmed the presence of degenerative arthritis. Range-of-motion testing did not show limitation of forward flexion or abduction to the shoulder level (90 degrees). Instead, the Veteran demonstrated full abduction with endpoint pain. The limitation-of-motion rating criteria specifically applicable to the shoulder are not met for a rating in excess of 10 percent. See 38 C.F.R. § 4.71a, DC 5201. Because application of the joint-specific diagnostic code, here DC 5201, does not result in a higher rating, the 10 percent rating under DC 5003 for painful motion with degenerative arthritis applies. 38 C.F.R. § 4.71a, DC 5003, 5019-5201; see July 2012 VA examination report. The Board notes that the Veteran reported functional impairment of pain and flare-ups of pain upon strenuous activity in July 2012. However, viewing the functional impairment in light of the contemporaneous July 2012 range-of-motion study demonstrating full movement, an increased rating is not warranted based upon these functional complaints and assessments alone. DeLuca, 8 Vet. App. at 206 -07; 38 C.F.R. §§ 4.40 and 4.45. In other words, there has been no showing that functional losses due to problems such as pain have equated to limitation of motion to a compensable level-at the shoulder level. Consequently, an initial rating in excess of 10 percent based upon left shoulder functional impairment is not warranted. Id.; 38 C.F.R. § 4.71a, DC 5201-5019. The Board has also considered additional potentially relevant diagnostic codes. Schafrath, 1 Vet. App. 589; 38 C.F.R. § 4.71a, DCs 5200, 5202, and 5203. Ankylosis, recurrent dislocation of humerus or scapula, or malunion of humerus or scapula, have not been demonstrated. See July 2012 VA examination report. Consequently, the preponderance of the evidence is against the award of an increased rating. The Board has also considered the potential application of 38 C.F.R. § 3.321(b)(1), for exceptional cases where schedular evaluations are found to be inadequate. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). The Board finds that the severity of the Veteran's service-connected left shoulder disability is fully contemplated by the rating criteria. Mittleider v. West, 11 Vet. App. 181 (1998). The symptoms include pain and excess fatigability. The degree of disability exhibited for the left shoulder is contemplated by the rating schedule. It is not productive of frequent hospitalizations or marked interference with employment. The evidence does not suggest any extraordinary symptoms beyond what the schedular criteria contemplate, such as a left shoulder disability interfering with a sedentary occupation. The assigned rating fully contemplates occupational interference from diminished use of the left arm. Thus, the Board finds that the threshold test is not met for referral for extraschedular consideration of the Veteran's rating claim. 38 C.F.R. § 4.16(b); Thun v. Peake, 22 Vet. App. 111 (2008). ORDER Higher ratings for left shoulder disability are denied. ________________________________ MARK F. HALSEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs