Citation Nr: 1334259 Decision Date: 10/29/13 Archive Date: 11/06/13 DOCKET NO. 09-42 466 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUE Entitlement to an evaluation in excess of 10 percent for degenerative joint disease, right shoulder, status post arthroscopic repair and right rotator cuff debridement with residual scar. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD A-L Evans, Associate Counsel INTRODUCTION The Veteran served on active duty from September 1981 to June 2005. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2009 rating determination of the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia. FINDINGS OF FACT 1. The Veteran is right-hand dominant. 2. The Veteran's right shoulder disability is not manifested by arm limitation of motion limited to shoulder level. CONCLUSION OF LAW The criteria for entitlement to an evaluation in excess of 10 percent for degenerative joint disease, right shoulder, status post arthroscopic repair and right rotator cuff debridement with residual scar have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 4.7, 4.71a, Diagnostic Codes 5010, 5200, 5201, 5202, 5203 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. VA's Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) enhanced VA's duty to notify and assist claimants in substantiating a claim for VA benefits, as codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.326(a) (2013). For an increased disability rating claim, VA is required to provide the Veteran with notice of the type of evidence needed to substantiate the claim. This includes evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on employment, as well as general notice regarding how disability ratings and effective dates are assigned. Vazquez-Flores v. Shinseki, 580 F. 3d 1270 (Fed. Cir. 2009). The Veteran was provided VCAA notice in August 2008 and February 2009 letters. These letters collectively advised the Veteran of what information and evidence is needed to substantiate her claim for a higher rating, as well as what information and evidence must be submitted by the Veteran and what information and evidence will be obtained by VA. These letters further advised the Veteran of how effective dates are assigned, and the type of evidence that impacts that determination. VA also has a duty to assist the Veteran in the development of the claim. The record reflects that VA has made reasonable efforts to obtain relevant records adequately identified by the Veteran including service treatment records, VA treatment records, private treatment records and VA examination reports. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Veteran has not indicated that there are any additional records that VA should seek to obtain on her behalf. The Veteran was afforded VA examinations in September 2008 and March 2013. The Board finds that the VA examination reports are adequate for evaluation purposes because the examiners either reviewed the claims file or were otherwise informed of the relevant facts, including the history of the disability from information obtained from the Veteran, considered the contentions of the Veteran, and addressed the relevant rating criteria. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007); Stefl v. Nicholson, 21 Vet. App. 120, 124-25 (2007); Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). As discussed above, the Veteran was notified and aware of the evidence needed to substantiate the claim, the avenues through which she might obtain such evidence, and the allocation of responsibilities between the Veteran and VA in obtaining such evidence. Therefore, she was provided with a meaningful opportunity to participate in the claims process. Any error in the sequence of events or content of the notice is not shown to have affected the essential fairness of the adjudication or to cause injury to the Veteran. See Pelegrini, 18 Vet. App. at 121. Therefore, any such error is harmless and does not prohibit consideration of this matter on the merits. See Conway, 353 F.3d at 1374; Dingess, 19 Vet. App. 473; see also ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998). II. Relevant Laws and Regulations Disability ratings are based on the average impairment of earning capacity established in the Schedule for Rating Disabilities. Separate diagnostic codes (DC) identify the various disabilities. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. Part 4 (2013). 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 required for that rating. Otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7. Generally, the degrees of disability specified are considered adequate to compensate for loss of time from work proportionate to the severity of the disability. 38 C.F.R. § 4.1. In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of a veteran's condition. Id. However, where an increase in the level of a service-connected disability is at issue, the primary concern is the present level of disability. Francisco v. Brown, 7 Vet. App. 55 (1994). Nevertheless, the Board acknowledges that a claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. Hart v. Mansfield, 21 Vet. App. 505 (2007). The analysis in the following decision is therefore undertaken with consideration of the possibility that different ratings may be warranted for different time periods. The assignment of a particular DC is "completely dependent on the facts of a particular case." See Butts v. Brown, 5 Vet. App. 532, 538 (1993). One DC may be more appropriate than another based on such factors as an individual's relevant medical history, the current diagnosis and demonstrated symptomatology. Any change in a DC by VA must be specifically explained. Pernorio v. Derwinski, 2 Vet. App. 625 (1992). 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, excess fatigability, or incoordination is demonstrated, and those factors are not 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). Recently, the Court clarified that pain by itself, even if throughout a joint's range of motion, does not constitute a functional loss entitling a claimant to a higher rating under the applicable DC or the DeLuca factors. See Mitchell v. Shinseki, 25 Vet. App. 32 (2011). 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). Ratings for functional impairment of the upper extremities depend on which extremity is the major extremity, i.e., the one predominantly used by the individual. Only one extremity is considered to be major or the dominant hand. 38 C.F.R. § 4.69 (2012). The Veteran is right-hand dominant as reported at the September 2008 and March 2013 VA examinations. The Veteran's right shoulder disability is currently rated under DC 5010, Under DC 5010, degenerative or traumatic arthritis established by X-ray findings will be rated as degenerative arthritis. Under DC 5003, degenerative arthritis is to be rated on the basis of limitation of motion under the appropriate diagnostic does for the specific joint or joints involved. If the limitation of motion is noncompensable, 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. In the absence of limitation of motion, a 20 percent evaluation is merited for X-ray evidence of involvement of two or more major joints or two or more minor joint groups, with occasional incapacitating exacerbations. A 10 percent evaluation is merited for X-ray evidence of involvement of two or more major joints or two or more minor joint groups. 38 C.F.R. § 4.71a, DC 5003 and 5010 (2013). The 10 and 20 percent ratings under these provisions will not be combined with ratings based on limitation of motion, nor are they to be combined with rating conditions listed under DCs 5013 to 5024, inclusive. DC 5003, Notes 1 & 2. Disabilities of the shoulder and arm are evaluated under rating criteria that contemplate ankylosis of scapulohumeral articulation (Diagnostic Codes 5200), limitation of motion of the arm (Diagnostic Code 5201), other impairment of the humerus (Diagnostic Code 5202), or impairment of the clavicle or scapula (Diagnostic Code 5203). Normal range of motion of the shoulder is as follows: forward elevation (flexion) to 180 degrees; abduction to 180 degrees; internal rotation to 90 degrees; and external rotation to 90 degrees. 38 C.F.R. § 4.71a, Plate I. The Veteran contends that her right shoulder disability is more severe than is represented by the currently assigned 10 percent rating assigned under DC 5010. Upon review of the evidence of record, the Board concludes that a rating in excess of 10 percent for the right shoulder disability is not warranted for any time since the Veteran filed her claim. Under DC 5200, ankylosis of the scapulohumeral articulation warrants a 20 percent evaluation for the minor arm and a 30 percent evaluation for the major arm when it is favorable with abduction to 60 degrees with the ability to reach the mouth and head. A 30 percent evaluation is assigned for the minor arm and a 40 percent evaluation is assigned for the major arm with intermediate ankylosis between favorable and unfavorable. A 40 percent evaluation is assigned for the minor arm and a 50 percent evaluation is assigned for the major arm with unfavorable ankylosis and abduction limited to 25 degrees from the side. Under Diagnostic Code 5201, where arm limitation of motion is at shoulder level for either the major or minor extremities, a 20 percent evaluation is assigned. Limitation of motion midway between the side and shoulder level contemplates a 20 percent evaluation for the minor arm and 30 percent evaluation for the major arm. Where the limitation of motion is to 25 degrees from the side, a 30 percent evaluation is assigned for the minor arm and a 40 percent evaluation is assigned for the major arm. Under Diagnostic Code 5202, for impairment of the humerus, malunion, with moderate deformity, a 20 percent evaluation is assigned for the either the major or minor arm. For a marked deformity, a 20 percent evaluation is assigned for the minor arm and a 30 percent evaluation is assigned for the major arm. Also under Diagnostic Code 5202, for recurrent dislocations of the minor arm at the scapulohumeral joint, a 20 percent rating is granted for infrequent episodes, and guarding of movement only at shoulder level for either the major and minor arm. A 20 percent rating for the minor arm and a 30 percent rating for the major arm is granted when there are frequent episodes and guarding of all arm movements. A 40 percent rating for the minor arm and a 50 percent rating for the major arm is granted for fibrous union of the arm. A 50 percent rating for the minor arm and a 60 percent rating for the major arm is warranted for nonunion (false flail joint) of the arm. A 70 percent rating for the minor arm and a 80 percent rating for the major arm is warranted for loss of head (flail shoulder). Under Diagnostic Code 5203, for impairment of the clavicle or scapula in either the major or minor arms, a 10 percent rating is granted for malunion or nonunion without loose movement. A 20 percent rating is granted for nonunion with loose movement or for dislocation of either arms. The Veteran was afforded a VA examination in September 2008. The Veteran alleged that she suffered from a spur in her right shoulder, which was not addressed in her arthroscopy surgery in May 2003. At the examination, the Veteran was not found to have any constitutional symptoms of arthritis or incapacitating episodes of arthritis. The examiner noted instability in the right shoulder, as well as pain, stiffness, weakness and inflammation. The Veteran indicated that locking episodes occurred weekly and effusion occurred on a repeated basis. The examiner noted that the Veteran's right shoulder condition did not affect motion of one or more joints. Upon examination, the report revealed that the Veteran's active range of motion for flexion from 0 degrees was 160 degrees, with no pain. Her passive range of motion for flexion was from 0 degrees was 180 degrees, with no pain. Additional limitation of motion on repetitive use was found. The Veteran's repetitive range of motion was from 0 degrees to 145 degrees. Weakness was the factor responsible for the limited motion. The Veteran's active range of motion for her right shoulder abduction from 0 degrees was 120 degrees, with pain beginning at 120 degrees. Her passive range of motion for her right shoulder abduction from 0 degrees was 130 degrees, with pain beginning at 120 degrees. There was no additional limitation of motion on repetitive use. The Veteran's right shoulder external rotation range of motion, both active and passive, from 0 degrees was 90 degrees. No pain was indicated in the report. Her right shoulder internal rotation range of motion for both active and passive motion from 0 degrees was 60 degrees with pain beginning at 60 degrees. Additional limitation of motion was found with repetitive use at 50 degrees. The examiner found no loss of bone, no recurrent shoulder dislocations, and no joint ankylosis. The examiner reviewed x-rays taken in March 2007 which indicated moderate AC joint arthritis with undersurfacing spurring of the AC joint on the clavicle side. The x-ray results also showed mild partial thickness articular surface tear of the distal infraspinatus without a full thickness tear, retraction or atropy. No growths or labral tears were found. The diagnosis provided was right shoulder degenerative joint disease, with spurring and partial thickness articular surface tear. The examiner reported that the Veteran's right shoulder condition would not interfere with her ability to obtain or maintain gainful employment. The Veteran underwent a VA examination in March 2013. The Veteran reported flare-ups, making it difficult to lift her arm and causing weakness. It was noted that the Veteran had undergone right shoulder surgery in 2003 and 2012. The Veteran reported that she suffered from weakness, pain and limitation of motion due to the surgery. The Veteran stated that she had difficulty carrying things. The Veteran's range of motion for right shoulder flexion from 0 degrees was 150 degrees. Objective evidence of pain began at 150 degrees. The Veteran's right shoulder abduction from 0 degrees was 150 degrees, and objective evidence of pain began at 150 degrees. Upon repetitive use, the Veteran's range of motion for both flexion and abduction from 0 degrees was 150 degrees. The examiner reported that the Veteran did not show any additional limitation in her range of motion following repetitive use. The examiner also noted that there was no functional loss or functional impairment found on examination. The examination report reflected that the Veteran did not have localized tenderness or pain on palpation and that she was not guarding her shoulder. The Veteran's strength was 5/5 and no ankylosis was found. There was no history of mechanical symptoms found and no history of recurrent dislocation. The examiner noted that the Veteran did not have an AC joint condition or other impairment of the clavicle or scapula. No scars were found on examination. The examiner noted that the Veteran's condition impacts her ability to work, as there is pain upon raising her shoulder; however, the examiner found that there is no change in the Veteran's diagnosis. The evidence does not show that the Veteran's right arm motion was limited to motion at shoulder level as required for a higher rating of 20 percent under DC 5201. As noted above, where arm limitation of motion is at shoulder level for the major extremity, a 20 percent evaluation is assigned. As reported on the September 2008 examination, the Veteran's forward flexion was limited by pain and weakness on repetitive use to 145 degrees. For abduction of the right shoulder, the range of motion was limited by pain to 120 degrees. On the most recent VA examination in 2013, with consideration of the point at which pain began, flexion of the right shoulder was to 150 degrees and abduction was to 150 degrees. Clearly such movements, even when factored for the endpoint where pain began are not reflective of motion limited to shoulder level. As such, a higher rating under DC 5201 for limitation of motion is not warranted. There is also no evidence that the right shoulder disorder warranted a 20 percent rating under DC 5003-5010, as there is no evidence of incapacitating exacerbations. Although there was some loss of motion present as noted above, the evidence of record reflects that it is noncompensable. In addition, neither VA examiner has indicated that the Veteran's condition involves two or more joints. The Board has also considered the application of DC 5200 for disabilities involving ankylosis of the scapulohumeral articulation; DC 5202 for other impairment of the humerus to include recurrent dislocation, fibrous union, non union or flail shoulder; and DC 5203 impairment of the clavicle/scapula to include nonunion with loose movement. However, there is no evidence of ankylosis, recurrent dislocation, fibrous union, non union, flail shoulder, or nonunion of the clavicle or scapula with loose movement involving the right shoulder joints. No such findings for the right shoulder are shown in the September 2008 or March 2013 examination reports or elsewhere in the records. The Board finds no provision upon which to assign a rating greater than 10 percent for the Veteran's right shoulder disability. The Board has also considered the Veteran's lay statements that she experiences pain and a worsening condition due to a bone spur. The Veteran is competent to discuss observable symptoms such as pain. Layno v. Brown, 6 Vet. App. 465 (1994). Further, her statements are credible. Barr v. Nicholson, 21 Vet. App. 303, 308 (2007). The Board has considered her statements, but finds that the statements have less probative value than the objective clinical findings of record. As shown above, the range of motion measurements of record demonstrate that the Veteran is limited to, at most, 145 degrees of flexion and 120 degrees of abduction which exceeds the maximum range of 90 degrees of abduction or flexion considered for a 20 percent rating under Diagnostic Code 5201 above. The Board finds the objective medical evidence documenting the Veteran's range of motion outweighs her competent lay statements of shoulder problems. The Board places more weight on the medical reports because they were performed by a skilled medical professional with specialized knowledge the working movements of the body. 38 C.F.R. § 3.159(a)(2). In light of the above, the Board finds that entitlement to an evaluation in excess of 10 percent for the Veteran's service-connected right shoulder disability is not warranted at any point in the appeal period. The Board has considered whether the benefit of the doubt rule applies to the present appeal. 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 4.3 (2012); Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). However, a preponderance of the evidence is against a higher evaluation; thus, this rule does not apply and the claim for an increased evaluation for right shoulder disability must be denied. In exceptional cases an extraschedular rating may be provided. 38 C.F.R. § 3.321. The Court has set out a three-part test, based on the language of 38 C.F.R. § 3.321(b)(1), for determining whether a Veteran is entitled to an extraschedular rating: (1) the established schedular criteria must be inadequate to describe the severity and symptoms of the claimant's disability; (2) the case must present other indicia of an exceptional or unusual disability picture, such as marked interference with employment or frequent periods of hospitalization; and (3) the award of an extraschedular disability rating must be in the interest of justice. Thun v. Peake, 22 Vet. App. 111 (2008), aff'd, Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). The Board finds that the rating criteria contemplate the Veteran's right shoulder disability. While the Veteran's service-connected disability produces pain and limitation of motion, those manifestations are specifically contemplated in the rating criteria. The March 2013 VA examination report reflects that the examiner acknowledged that the Veteran's condition impacts her ability to work, as there is pain upon raising her shoulder. However, there is nothing in the record to indicate that the Veteran's service-connected shoulder disability causes impairment over and above that which is contemplated in the assigned schedular rating. See Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993) (noting that the disability rating itself is recognition that industrial capabilities are impaired). The rating criteria are therefore adequate to evaluate the Veteran's disability and referral for consideration of extraschedular rating is not warranted. The Court has held that entitlement to a TDIU is an element of all appeals for a higher rating. Rice v. Shinseki, 22 Vet. App. 447 (2009). Entitlement to a TDIU is raised when a Veteran: (1) submits evidence of a medical disability; (2) makes a claim for the highest rating possible; and (3) submits evidence of unemployability. The Veteran has not alleged that her disability prevents her from obtaining and maintaining substantially gainful employment. In fact, the 2008 VA examiner noted that the Veteran's right shoulder would not interfere with her ability to obtain or maintain gainful employment. As such, further consideration of Rice is not required. ORDER Entitlement to an evaluation in excess of 10 percent for degenerative joint disease, right shoulder, status post arthroscopic repair and right rotator cuff debridement with residual scar is denied. ____________________________________________ M. N. HYLAND Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs