Citation Nr: 1333355 Decision Date: 10/23/13 Archive Date: 10/24/13 DOCKET NO. 06-12 157 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Pittsburgh, Pennsylvania THE ISSUE Entitlement in an initial evaluation in excess of 10 percent for the service connected residuals of a left shoulder injury with brachial plexus injury. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD H.J. Baucom, Counsel INTRODUCTION The Veteran served on active duty from November 1990 to June 1991 and from January 2003 to August 2004. His awards and decorations include the Combat Action Ribbon. This matter initially came before the Board of Veterans' Appeals (Board) on appeal from a February 2005 rating decision by the RO, which, in pertinent part, granted service connection for a left shoulder injury with brachial plexus injury and assigned a 10 percent evaluation, effective on August 15, 2004. The Veteran appealed the assigned rating. In March 2007, the Veteran testified at a hearing conducted at the RO before the undersigned Veterans Law Judge. A transcript of the hearing has been associated with the claims file. In October 2007, June 2010, February 2012, December 2012 and May 2013, the Board remanded the claim to the RO for further development which has been completed. The Board notes that per Rice v. Shinseki, 22 Vet. App. 447 (2009) a claim for an increased rating contains an implicit claim for total disability based on individual unemployability (TDIU) when the Veteran presents evidence of unemployability. The Veteran has consistently reported interference with his employment due to his service-connected shoulder injury, but not that he is unemployable due to his service-connected disability, therefore a claim for a TDIU rating has not been raised. The Veteran's virtual VA file has been reviewed. FINDING OF FACT The service-connected left shoulder injury is shown to be productive of a disability picture that more nearly approximates that of limitation of motion to 25 degrees from the side; no impairment of the humerus, clavicle or scapula or ankylosis of scapulohumeral articulation is demonstrated. CONCLUSION OF LAW The criteria for the assignment of a 30 percent rating for the service-connected left shoulder disability with brachial plexus injury 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, 4.3, 4.7, 4.71a including Diagnostic Code 5201 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION Notice and Assistance 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. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2013). An April 2004 letter satisfied the duty to notify provisions. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b) (1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). When a claim for service connection has been granted and an initial disability rating and effective date have been assigned, the typical service-connection claim has been more than substantiated; it has been proven, thereby rendering section 5103(a) notice no longer required because the purpose that the notice is intended to serve has been fulfilled. Dingess v. Nicholson, 19 Vet. App. 473, 484 (2006). As the Veteran's claim for an increased initial disability rating was appealed directly from the initial rating assigned, no further action under the section 5103(a) is required. The May 2013 remand was complied with as the Veteran's current mailing address was confirmed by telephone conversation, and the March 2013 Supplemental Statement of the Case (SSOC), was sent to the Veteran in June 2013. A July 2013 SSOC was also sent to the Veteran at his address of record. The Veteran's service treatment records, VA medical treatment records, and private treatment records have been obtained; he did not identify any additional private or VA treatment records pertinent to the appeal. 38 U.S.C.A. § 5103A, 38 C.F.R. § 3.159. The Veteran was also afforded an opportunity to present testimony at a hearing before the Board. During the hearing, the undersigned Veterans Law Judge (VLJ) clarified the issue on appeal, and elicited the Veteran to describe his physical and functional limitations of his service connected left shoulder injury. The actions of the VLJ supplement the VCAA and comply with any related duties owed during a hearing. The Veteran has not indicated, and the record does not contain evidence, that he is in receipt of disability benefits from the Social Security Administration. 38 C.F.R. § 3.159 (c) (2). VA examinations were conducted in January 2005, September 2009 and September 2010. The September 2009 examination was done while the Veteran was still recovering from a July 2009 shoulder surgery and not reflective of his fully recovered abilities therefore another examination was conducted in September 2010. The Veteran has not argued, and the record does not reflect, that the other examinations were inadequate for rating purposes. 38 C.F.R. § 3.159(c) (4); Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). The examinations were adequate as the examiners evaluated the Veteran's current disability level and provided findings to allow for proper application of the rating criteria. There is no indication in the record that any additional evidence, relevant to the issue decided, is available and not part of the claims file. See Pelegrini v. Principi, 18 Vet. App. 112 (2004). As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of the case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 20 Vet. App. 537 (2006); see also Dingess/Hartman, 19 Vet. App. at 486; Shinseki v. Sanders/Simmons, 129 S. Ct. 1696 (2009). All of the evidence in the Veteran's claims file has been thoroughly reviewed. The analysis in this decision focuses on salient and relevant evidence, and on what the evidence shows or fails to show with respect to the matter on appeal. The Veteran should not assume that pieces of evidence, not explicitly discussed herein, have been overlooked. See Timberlake v. Gober, 14 Vet. App. 122 (2000). Increased Rating In evaluating the severity of a particular disability, it is essential to consider its history. 38 C.F.R. § 4.1; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary importance. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Separate ratings may be assigned for separate periods of time based on the facts found, however. This practice is known as "staged" ratings. Fenderson v. West, 12 Vet. App. 119, 126-127 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). If the evidence for and against a claim is in equipoise, the claim will be granted. A claim will be denied only if the preponderance of the evidence is against the claim. See 38 U.S.C.A. § 5107 (West 2002); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 56 (1990). Any reasonable doubt regarding the degree of disability should be resolved in favor of the claimant. 38 C.F.R. § 4.3. Where there is a question as to which of two evaluations shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that evaluation. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Disability evaluations are determined by the application of the facts presented to VA's Schedule for Rating Disabilities (Rating Schedule) at 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and the residual conditions in civilian occupations. 38 U.S.C.A. § 1155; 38 C.F.R. §§ 3.321(a), 4.1. When evaluating joint disabilities rated on the basis of limitation of motion, VA must consider granting a higher rating in cases in which functional loss due to pain, weakness, premature or excess fatigability, or incoordination is demonstrated, assuming these factors are not already contemplated in the relevant rating criteria. See 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202 (1995). Functional loss due to pain is rated at the same level as functional loss where motion is impeded. Schafrath v. Derwinski, 1 Vet. App. 589, 592 (1991). Pursuant to 38 C.F.R. § 4.59, painful motion should be considered limited motion, even though a range of motion may be possible beyond the point when pain sets in. See Powell v. West, 13 Vet. App. 31, 34 (1999); Hicks v. Brown, 8 Vet. App. 417, 421 (1995). 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 reasonably by the record. Burton v. Shinseki, 25 Vet. App. 1 (2011). It is important to note that although pain may cause functional loss, pain itself does not constitute functional loss. See Mitchell v. Shinseki, 25 Vet. App. 32 (2011). Rather, pain must affect some aspect of "the normal working movements of the body" such as "excursion, strength, speed, coordination, and endurance," to constitute functional loss. Id.; see 38 C.F.R. § 4.40. Separate disabilities arising from a single disease entity are to be rated separately. See 38 C.F.R. § 4.25; see also Esteban v. Brown, 6 Vet. App. 259, 261 (1994). However, the evaluation of the same disability under various diagnoses is to be avoided, as this would violate VA's anti-pyramiding regulation. 38 C.F.R. § 4.14; Fanning v. Brown, 4 Vet. App. 225 (1993). 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 assignment of a particular diagnostic code is "completely dependent on the facts of a particular case." See Butts v. Brown, 5 Vet. App. 532, 538 (1993). One diagnostic code may be more appropriate than another based on such factors as the Veteran's relevant medical history, his current diagnosis, and demonstrated symptomatology. Any change in diagnostic code by a VA adjudicator must be specifically explained. See Pernorio v. Derwinski, 2 Vet. App. 625, 629 (1992) In assessing the appropriateness of the rating for the disability at issue, the Board has reviewed all of the evidence in the Veteran's claims file and has an obligation to provide an adequate statement of reasons or bases supporting its decision. See 38 U.S.C.A. § 7104 (West 2002); Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). While the Board must review the entire record, however, it need not discuss each piece of evidence, certainly not in exhaustive detail. See id. The analysis therefore focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, concerning this claim. The Veteran must not assume the Board has overlooked pieces of evidence that are not explicitly discussed in this decision. See Timberlake v. Gober, 14 Vet. App. 122 (2000). The law requires only that the Board address its reasons for rejecting evidence favorable to him. Id. The Veteran's left shoulder disability is currently rated as Diagnostic Code (DC) 5299-5203. The code 5299 is used to describe when a disability is rated as similar to a diagnostic code. In this case 5299-5203 is for a disability similar to DC 5203. DC 5203 provides rating for impairment of the clavicle or scapula however as there is no malunion, nonunion or dislocation of the clavicle or scapula, the right shoulder disability is more accurately rated under DC 5201 for limitation of motion of the arm. The Veteran's left arm is his minor arm. DC 5203 provides ratings for impairment of the clavicle or scapula. For the minor shoulder a 10 percent rating is assigned for malunion of the clavicle or scapula or for non union without loose movement; a 20 percent rating is assigned for nonunion with loose movement, or dislocation of the clavicle or scapula. DC 5203 also instructs that alternatively it can be rated on impairment of function of contiguous joint. DC 5201 provides ratings for limitation of motion of the arm. A 20 percent rating is assigned for the minor arm when limited to shoulder level; a 20 percent rating is assigned for the minor arm when limited to midway between the side and shoulder level; and a 30 percent rating is assigned for the minor arm when limited to 25 degrees from the side. 38 C.F.R. § 4.71, Plate I provides guidance as to normal range of motion of the shoulder as well as what is meant by limitation of the arm at the shoulder level. The images in Plate I show that normal forward elevation, or flexion, of the shoulder is from 0 to 180 degrees and that flexion to the shoulder level is 90 degrees. Similarly, normal shoulder abduction is from 0 to 180 degrees with abduction to the shoulder level being 90 degrees. Normal external rotation and internal rotation are from 0 to 90 degrees, with 0 degrees representing the shoulder level. Two days into the Iraqi war in 2003, the Veteran was involved in a motor vehicle accident when his "hummer" hit the one in front, and then was subsequently rear ended by a truck. This resulted in a dislocated left shoulder and extensive nerve damage, as well as other injuries. The Veteran's shoulder remained dislocated for 15 hours until he was able to be treated, and the shoulder reset. The Board notes that the Veteran is separately rated for ulnar neuropathy of left forearm (30 percent) and cervical disc herniation (20 percent) which compensate for his complaints of shooting pain in the lower arm and numbness in his hands. The discussion focuses on the functional impairment of the left shoulder, with brachial plexus injury and the effects thereof not already considered in ratings for ulnar neuropathy and cervical strain. At the March 2007 hearing, the Veteran testified that his comfort level for using his left shoulder was between the waist and his chest, and anything above the chest was "bad." In a March 2007 statement, the Veteran's employer reported that the Veteran could not lift his arms vertically, such as to remove a transmission from a vehicle, and that his strength had diminished to half of what it was. The private treatment records showed a left shoulder impairment. At a June 2003 evaluation, the Veteran presented with left shoulder pain and strain, left brachial plexus neuralgia and suspected left rotator cuff tear. However, a June 2003 MRI revealed no rotator cuff tear, and a June 2003 x-ray study found a normal left shoulder, with the exception of what might represent soft tissue artifact. At a private January 2004 evaluation, the Veteran reported decreasing pain, but noted that he still had a limited range of motion. The range of motion testing of the left shoulder found internal rotation to 68 degrees, external rotation to 63 degrees with mild pain, flexion to 79 degrees with mild pain and extension to 38. The Veteran received continuous treatment through VA after his service ended in 2004. A January 2004 initial evaluation, prior to service discharge, revealed significant atrophy of the left shoulder and hand. No range of motion testing was conducted. The Veteran reported a history of chronic left shoulder pain. A January 2005 VA examination noted the Veteran's complaints that his hand locked up on him at times and that he had numbness and tingling in his arm between the elbow and hand. The range of motion findings showed abduction to 100 degrees with pain of 6/10, forward flexion to 120 degrees with pain at 6 to 7, external rotation to 60 degrees with pain of 5, and internal rotation to 90 degrees with pain of 6. Repetitive motion increased the pain to an 8, but there was no evidence of increased weakness, decreased endurance, or incoordination during the examination. There was no redness, warmth or effusion in the left shoulder, but there was some tenderness with palpation. At a March 2007 orthopedic consultation, the Veteran reported having an increase in left shoulder pain with an increase in weakness in the shoulder and arm. Although the left arm was his minor arm, he reported experiencing some difficulty with tasks at work as he worked as an auto mechanic. Upon examination, the Veteran's shoulder showed no obvious atrophy of the musculature, but there was tenderness to palpation along the clavicle, and more significant over the AC joint. He had pain over the humeral head and some over the biceps tendon. The range of motion of the shoulder was good, but painful with 160 degrees of abduction and forward flexion on the left compared to 170 on the right. External rotation was to 80 degrees, bilaterally, and was relatively painless. Internal rotation was to about L5 on the left compared to T12 on the right. The physician noted that the x-ray studies demonstrated no significant degenerative joint disease of the left shoulder or identifiable bony Bankart or Hill-Sachs lesion. A January 2007 MRI of the left shoulder was noted to have found a partial tear of the supraspinatus tendon near the insertion to the humerus head. An April 2007 MRI arthrogram found no evidence of a rotator cuff tear. The radiologist found that, after reviewing the previous study, the lack of increased signal on the sagittal in the previous study, and the lack of increased signal on the sagittal images supports the fact that there was no rotator cuff tear. At a June 2007 VA treatment visit, the Veteran complained that he had left shoulder pain and could raise his arm only approximately 30 to 40 degrees with pain and discomfort. In June 2008, the Veteran reported having chronic left shoulder pain. At a May 2009 orthopedic evaluation, the Veteran had full range of motion with 4/5 rotator cuff strength. He did not appear to have popped his biceps as it appeared to still be intact in his arm, although it was very weak based upon his pain. In June 2009, prior to surgery, the Veteran had full range of motion with abduction to 180 degrees, forward flexion to 180 degrees, and internal rotation limited by pain, external rotation to 45 degrees, and 4/5 shoulder abduction with decreased sensation in his fingers. In July 2009 the Veteran had arthroscopic surgery on his left shoulder. In September 2009 a VA examination was conducted, but the Veteran was still recovering from his July 2009 surgery and an accurate picture the limitations of his shoulder was not able to be assessed. Another examination was ordered. The examination showed range of motion findings of forward flexion to 170 degrees, abduction to 170 degrees, external rotation to 70 degrees, and internal rotation to 30 degrees. There was no change in range of motion after three repetitions. At a September 2010 VA joint examination, the Veteran denied having swelling, stiffness, loss of range of motion, heat or drainage. There was no current treatment other than medications. He reported being able to work full time as a mechanic, but being severely limited in terms of doing any type of overhead activity in that his left shoulder fatigues too quickly, within minutes of when he was able to do any type of meaningful work. As long as he was working below shoulder level he was able to function fine. Upon examination, the Veteran's forward flexion of the left shoulder was to 180 degrees, abduction to 180 degrees, external rotation to 70 degrees, absent 20 degrees (?), internal rotation to 85 degrees, absent 5 degrees. The range of motion did not cause pain. Limitation of motion due to weakness was noted. With repeated testing, this muscle strength did decrease to 3/5 just in 3 trials. He had an increase in fatigability and weakness with repetitive range of motion, but no incoordination or change in degrees of range of motion. Radiographs were reviewed, but there was no evidence of osteoarthritis. A December 2010 x-ray showed minimal degenerative changes of the left shoulder. In February 2011, the Veteran reported that his shoulder was hurting just above the arm pit with numbness and tingling in the 4th and 5th fingers and now starting in the first and second digits. An October 2011 pain clinic note stated that he had constant shoulder pain of 6/10 with worse with movement or work, better with pain medications and some stretching. In consideration of the weight of the medical evidence and the Veteran's competent and credible reports as to the limiting effects of chronic pain and fatigability on his left shoulder, at the Board hearing and in the course of medical treatment, the Board finds that a higher rating of 30 percent for the service-connected left shoulder is warranted. This is the evaluation assigned for limitation of motion of the minor arm to 25 degrees from the side. It is not necessary to demonstrate exactly 25 degrees or less to warrant this higher evaluation. The Veteran has repeatedly reported that his left shoulder fatigues very quickly resulting in him not being able to lift it very far from his side at all. At the hearing, the Veteran testified that his shoulder was comfortable between the waist and chest. In June 2007 he could only lift it 30 to 40 degrees with pain and discomfort. The most recent VA examination, in September 2010 noted that after only three repetitions his muscle had atrophied to 3/5. The left shoulder pain and fatigability constituted additional functional loss as it affected the normal working movements of the shoulder, the impact of which was reflected in the assignment of a higher, 30 percent evaluation. A 30 percent evaluation is the highest evaluation available for the minor arm under DC 5201. Additional ratings under other diagnostic codes have also been considered. As there is no ankylosis, or the functional equivalent of ankylosis, of the scapulohumeral articulation, DC 5200 is not for application. As there is no impairment of the humerus such as deformity, malunion, nonunion, or recurrent dislocation of scapulohumeral joint DC 5202 is not for application. The Board has also considered whether a separate rating is warranted for the Veteran's left shoulder surgical scars. However, the evidence does not show that there are residuals scars which are considered in any way disfiguring, or the equivalent of painful or unstable scars, and a separate rating under DCs 7800-7805 is not warranted. In a November 2012 statement, the Veteran's representative contended that a separate rating for muscle damage of the shoulder should be assigned under DCs 5301-5305. Evaluation of muscle disabilities under 38 C.F.R. § 4.56 is limited to the types of injuries defined therein, an open comminuted fracture and a through-and-through injury. The Veteran did not have this type of injury in service. Rating the left shoulder disability under limitation of motion of the shoulder joint under DC 5203 best encompasses the Veteran's disability picture and allows for the highest evaluation available, the 30 percent evaluation assigned here. Extraschedular Extraschedular consideration involves a three step analysis. Thun v. Peake, 22 Vet. App. 111 (2008). First, a determination must be made as to whether the schedular 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, referral for extraschedular consideration is not required and the analysis stops. Id. If the schedular rating criteria do not reasonably describe a veteran's level of disability and symptomatology, a determination must be made as to whether an exceptional disability picture includes other related factors, such as marked interference with employment and frequent periods of hospitalization. Id. At 116. If an exceptional disability picture including such factors as marked interference with employment and frequent periods of hospitalization exists, the matter must be referred 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. The rating schedule criteria reasonably describe the Veteran's service-connected left shoulder disability picture. The Veteran's left shoulder disability does not present an exceptional or unusual factors. ORDER An initial evaluation of 30 percent for the service connected residuals of a left shoulder injury with brachial plexus injury is granted, subject to controlling regulations governing the payment of monetary awards. ____________________________________________ STEPHEN L. WILKINS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs