Citation Nr: 1334411 Decision Date: 10/29/13 Archive Date: 11/06/13 DOCKET NO. 08-28 111 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Boise, Idaho THE ISSUE Entitlement to an evaluation in excess of 20 percent for right shoulder impingement syndrome. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD Bridgid D. Cleary, Counsel INTRODUCTION The Veteran served on active duty from August 2000 to August 2002, from February 2003 to May 2004, and from January 2006 to April 2006, with additional service in the National Guard. The record also indicates that the Veteran was redeployed in May 2009, during the pendency of this appeal, but the specific end date of that service has not yet been ascertained. This matter has come before the Board of Veterans' Appeals (Board) on appeal from a July 2008 rating decision of the Boise, Idaho, Department of Veterans Affairs (VA) Regional Office (RO), which increased to 20 percent, effective June 1, 2007. In June 2010, the Board remanded this case to the Appeals Management Center (AMC) for further development. In June 2013, the Board affirmed the reduction of the Veteran's disability rating for right shoulder impingement from 30 to 0 percent and remanded the issue of entitlement to an evaluation in excess of 20 percent for right shoulder impingement syndrome for further development. FINDING OF FACT Throughout the appeals period, the Veteran's right shoulder impingement syndrome has been characterized by pain, crepitus, and limitation of motion, but not limitation of motion of the arm to 25 degrees from side, sensory impairment, loss of strength, or decreased reflexes. CONCLUSION OF LAW The criteria for a rating in excess of 20 percent for right shoulder impingement are not met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.1, 4.7, 4.40, 4.45, 4.71a, Diagnostic Code 5201 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Notify and Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), 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; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a). Proper notice from VA must inform the claimant of any information and medical or lay 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 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In addition, the notice requirements of the VCAA apply to all elements of a service-connection claim. Accordingly, notice must include information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). VCAA notice must be provided prior to an initial unfavorable decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). Where complete notice is not timely accomplished, such error may be cured by issuance of a fully compliant notice, followed by readjudication of the claim. See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); see also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). In a claim for increase, the VCAA requires only generic notice as to the type of evidence needed to substantiate the claim, namely, 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). In the present case, complete notice was not issued prior to the adverse determination on appeal. However, fully compliant notice was later issued in a June 2013 communication, and the claim was thereafter readjudicated in a July 2013 Supplemental Statement of the Case. Accordingly, any timing deficiency has here been appropriately cured. Mayfield, 444 F.3d 1328 (Fed. Cir. 2006). Moreover, as this was the purpose of the Board's June 2010 and June 2013 remand, VA has complied with the June 2010 and June 2013 remand instructions. Stegall v. West, 11 Vet. App. 268 (1998). Next, VA has a duty to assist the Veteran in the development of the claim. This duty includes assisting him in the procurement of service treatment records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the appellant. See Bernard v. Brown, 4 Vet. App. 384 (1993). The Board has reviewed the electronic evidence contained in the Veteran's Virtual VA folder as well as the paper file. These files together comprise the claims file. The claims file contains the Veteran's service treatment records, as well as post-service reports of VA and private treatment and examination. Moreover, his statements in support of the claim are of record. The Board has carefully reviewed such statements and concludes that no available outstanding evidence has been identified. The Board has also perused the medical records for references to additional treatment reports not of record, but has found nothing to suggest that there is any outstanding evidence with respect to the Veteran's claim. For the above reasons, no further notice or assistance to the appellant is required to fulfill VA's duty to assist the appellant in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd, 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). Analysis The Veteran was originally granted service connection for right shoulder impingement syndrome in a November 2002 rating decision. At that time, this disability was evaluated as 30 percent disabling based on limitation of motion, effective August 24, 2002. This rating was properly reduced to 0 percent on June 1, 2007. See March 2007 rating decision; June 2012 Board Decision. The Veteran filed a Notice of Disagreement with that decision in March 2008. As noted in the June 2010 remand, the appeal of this reduction decision was essentially treated as a claim for an increased rating. See July 2008 Statement of the Case; see also Peyton v. Derwinski, 1 Vet. App. 292 (1991); Dofflemyer v. Derwinski, 2 Vet. App. 277, 280 (1992)(generally, a claim stemming from a rating reduction action is a claim for restoration of the prior rating, not a claim for an increased rating). Ultimately, this evaluation was increased to 20 percent, effective June 1, 2007. See July 2008 rating decision. The Veteran appealed that rating decision. When 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 concern. Francisco v. Brown, 7 Vet. App. 55 (1994). Nevertheless, in Hart v. Mansfield, 21 Vet. App. 505 (2007), the Court held that staged ratings are also appropriate for an increased rating claim that is not on appeal from the assignment of an initial rating when the factual findings show distinct time periods where the service-connected disability exhibited symptoms that would warrant different ratings. The following analysis is therefore undertaken with consideration that different (staged) ratings may be warranted for different time periods during the period of appellate review beginning within one year of his March 2008 claim. Disability ratings are assigned in accordance with the VA's Schedule for Rating Disabilities and are intended to represent the average impairment of earning capacity resulting from disability. 38 U.S.C.A. § 1155. Limitation of motion of the arm is rated under Diagnostic Code 5201. 38 C.F.R. § 4.71a. The record indicates that the Veteran is right-hand dominant. See e.g., February 2000 Report of Medical History. As such, this disability is evaluated under the criteria for the major shoulder. Normal range of motion for the shoulder is forward elevation (flexion) from zero to 180 degrees, abduction from zero to 180 degrees, external rotation from zero to 90 degrees, and internal rotation from zero to 90 degrees. 38 C.F.R. § 4.71a, Plate I. Under Diagnostic Code 5201, limitation of motion of the arm at the shoulder level is rated 20 percent for the major shoulder. 38 C.F.R. § 4.71a. Limitation of motion of the arm midway between the side and shoulder level is rated as 30 percent for the major shoulder. 38 C.F.R. § 4.71a, Diagnostic Code 5201. Limitation of motion of the arm to 25 degrees from the side is rated as 40 percent for the major shoulder. Id. For disabilities evaluated on the basis of limitation of motion, VA is required to apply the provisions of 38 C.F.R. §§ 4.40, 4.45, pertaining to functional impairment. The United States Court of Appeals for Veterans Claims (Court) has instructed that in applying these regulations VA should obtain examinations in which the examiner determines whether the disability is manifested by weakened movement, excess fatigability, incoordination, or pain. Such inquiry is not to be limited to muscles or nerves. These determinations are, if feasible, to be expressed in terms of the degree of additional range-of-motion loss due to any weakened movement, excess fatigability, incoordination, flare-ups, or pain. DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Mitchell v. Shinseki, 25 Vet. App. 32 (2011) (holding that pain without associated functional impairment did not constitute additional limitation of motion under DeLuca); Johnston v. Brown, 10 Vet. App. 80, 84-5 (1997); 38 C.F.R. § 4.59. According to February 2008 VA treatment records, the Veteran reported an increase in right shoulder pain. He was treated with medication and capsaicin cream. A February 2008 VA MRI found mucoid degeneration of the anterior labrum and mild acromioclavicular (AC) arthropathy. In a March 2008 statement, the Veteran's former foreman, T.W.P., reported that the Veteran's shoulder disability necessitated breaks or reassignment at times to accommodate flare-ups of pain. T.W.P. stated that the Veteran worked mainly as an industrial painter. In an April 2008 statement, the Veteran explained why he felt his earlier examination in March 2005 did not accurately reflect his symptoms. That examination is outside the relevant time period for this appeal, however, the Veteran's reported symptoms are relevant. In that regard, the Veteran reported daily pain that he treated with over-the-counter medication and heat rubs. Despite this he was able to perform his duties and pass physical training. Additionally, he stated that there were no restrictions on the work he could do as long as he was able to get a break or rest. VA treatment records from April 2008 note a flare-up of the Veteran's shoulder pain due to painting his house. Physical examination found full range of motion overhead to 170 degrees of forward elevation and 160 degrees of abduction. He had external rotation to 40 degrees and internal rotation to L4. He had positive impingement signs, positive crossed-arm abduction pain, negative Yergason, and negative O'Brien tests. Later treatment records from that month noted that the Veteran continued to report constant dull to throbbing pain at a level of 4 out of 10. He also complained that the medication made him drowsy and the capsaicin cream burned, so he did not take it. He sought alternate treatment including non-drowsy pain medication and an alternate cream. In April 2008, the Veteran underwent a VA examination in conjunction with this claim. At that time, the Veteran reported shoulder pain with walking and worsening pain when he recently returned to Pocatello to remodel his house for resale. Specifically, the Veteran reported that his pain pulsated at a level of 2 or 3 out of 10 whereas before it was 1 out of 10. Additionally, overhead activity or repetitive motion below the level of his shoulder caused flare-ups of pain up to 5 out of 10. These flare-ups lasted from a few minutes to hours. He was still remodelling his house, but noted that some tasks took twice as long to complete due to shoulder pain. He relied more on his left shoulder and asked for help when necessary. The examiner noted that the Veteran was unemployed, but was still able to do construction and remodelling work without significant limits. Physical examination of his right shoulder demonstrated tenderness, palpation directly at the AC joint. The Veteran had some tenderness along the posterior deltoid. Flexion was to 145 degrees with pain beginning at 70 degrees. Abduction was to 110 degrees with pain beginning at 70 degrees. Internal rotation to 20 degrees with pain throughout the motion. External rotation to 60 degrees with pain throughout the motion. He retained full strength, normal sensory, and normal reflexes. Special testing was positive for impingement. There was no change in range of motion testing with repeat testing and no additional loss of range of motion due to pain, weakness, impaired endurance, fatigue, incoordination, or flare-ups. The examiner also observed that the Veteran preferred to use his right arm and shoulder to don and doff his shirt and shoulder carrier bag and did so without observed pain or grimacing. The Veteran was diagnosed with right shoulder subacromial bursitis with mild AC arthropathy. In a letter dated June 2008, the Veteran's private physical therapist, D.D., reported feeling an abnormal "clunk" with the Veteran's range of motion of the shoulder. July 2008 VA treatment records note the Veteran's complaints of throbbing shoulder pain at a level of 3 out of 10 most of the time. He reported that he was unable to work doing any type of activity for more than a half hour, which was significantly affecting his lifestyle. He reported daily pain which was worse with overhead activities and lifting objects. Physical examination found dull strength in abduction, thumbs down forward elevation. He had active forward elevation and abduction to 170 degrees. His external rotation on each side was to 50 degrees and internal rotation was to L4 on the right. He did not have a positive Hawkins or Neer sign or crossed arm test at that time, but the examiner noted that prior records showed these tests had been positive in the past. The Veteran was tender over his biceps tendon anteriorly and he had pain anteriorly over his shoulder with resisted forward elevation with his hands held in supination. He did not have any pain with resisted supination with his arms to the side. He had crepitance with catching superiorly and anteriorly in the shoulder with circumduction motion. Surgery was recommended. Private physical therapy records dated August 2008 show some progress towards the Veteran's goals of increased range of motion, increased strength, improved function, and decreased pain. The Veteran's range of motion was described as "166 degrees flexion, 142 degrees abduction, 50 degrees internal rotation, 72 degrees external rotation. Shoulder strength is 5-/5 grade. He has pain with internal rotation and remains tight shoulder flexion with horizontal abduction produces a 'Klunk.'" VA treatment records from August 2008 show that the Veteran sought treated his right shoulder because he was experiencing throbbing pain in his shoulder during his marathon training runs. He was prescribed additional medication. In his September 2008 VA Form 9, the Veteran reported that he was unable to lift his arm without pain. He stated, "I have pain from mid-way between my waist and shoulder and can't lift it above my shoulder without forcing it to go." He further stated that, without special treatment from his employers, he would be unable to work. He also reported decreased strength in his arm. VA treatment records show a November 2008 call from the Veteran. At that time, he requested more physical therapy for his right shoulder but stated that he was not ready to undergo surgery. He described his pain as a constant dull ache at level 1 out of 10 except with shoulder movement, which increased it to level 3-6 out of 10. His pain was worse in the morning. He was not taking pain medication at that time. Based on the above, the Veteran's right shoulder disability does not most nearly approximate the criteria for a higher rating than the current 20 percent evaluation. The Veteran's shoulder symptoms consist of pain, crepitus, and slight limitation of motion. This limitation of motion, which has been measured at flexion to at least 166 degrees and abduction to at least 110 degrees warrant no more than a 10 percent evaluation under Diagnostic Code 5201. See 38 C.F.R. § 4.71a. Despite this, the Veteran has been awarded a 20 percent rating. The next higher evaluation of 30 percent requires limitation of motion of the arm to 25 degrees from side, which is not shown. See 38 C.F.R. § 4.71a, Diagnostic Code 5201. Despite his credible reports of pain and additional objective evidence of crepitus, no additional functional limitation is shown. Therefore, evaluation based on pain and crepitus would also not warrant a higher rating than the current 20 percent evaluation. See 38 C.F.R. § 4.59. The record does not show any objective evidence of sensory impairment, decreased strength, or decreased reflexes and so evaluation under separate diagnostic codes for these aspects of the Veteran's disability is not warranted. As such, the preponderance of the evidence is against a rating higher than the current 20 percent for the Veteran's right shoulder impingement. 38 C.F.R. § 4.7. The Board must also determine whether the schedular evaluation is inadequate, thus requiring that the RO refer a claim to the Chief Benefits Director or the Director, Compensation and Pension Service, for consideration of "an extra-schedular evaluation commensurate with the average earning capacity impairment due exclusively to the service-connected disability or disabilities." 38 C.F.R. § 3.321(b)(1). An extra-schedular evaluation is for consideration where a service-connected disability presents an exceptional or unusual disability picture. An exceptional or unusual disability picture occurs where the diagnostic criteria do not reasonably describe or contemplate the severity and symptomatology of the Veteran's service-connected disability. Thun v. Peake, 22 Vet. App. 111, 115 (2008). If there is an exceptional or unusual disability picture, then the Board must consider whether the disability picture exhibits other factors such as marked interference with employment or frequent periods of hospitalization. Id. at 115-116. When either of those elements has been satisfied, the appeal must be referred for consideration of the assignment of an extraschedular rating. Otherwise, the schedular evaluation is adequate, and referral is not required. 38 C.F.R. § 3.321(b)(1); Thun, 22 Vet. App. at 116. In this case, the schedular evaluation is not inadequate. An evaluation in excess of that assigned is provided for certain manifestations of the service-connected disability, such as additional limitation of motion or separate neurological symptoms, but the medical evidence reflects that those manifestations are not present in this case. Additionally, the diagnostic criteria adequately describe the severity and symptomatology of the Veteran's disorder. As the rating schedule is adequate to evaluate the disabilities, referral for extraschedular consideration is not in order. The Board has also considered whether a Total Rating for Compensation Based on Individual Unemployability (TDIU) is warranted. Under Rice v. Shinseki, 22 Vet. App. 447 (2009), TDIU is considered an element of initial ratings when raised by the record. While the record shows a period of unemployment, it does not raise the issue of unemployability. Indeed, the Veteran spent that period of unemployment remodelling his home, which was similar to his normal occupation. Furthermore, the Veteran's supervisor reported some flare-ups at work that necessitated breaks, but did not state that the Veteran was unable to complete his assigned tasks generally. Additionally, the Veteran was redeployed during the appeals period. Finally, the record does not include any objective finding of unemployability. Thus, TDIU has not been raised by the evidence of recor and Rice is inapplicable in this case. ORDER Entitlement to an evaluation in excess of 20 percent for right shoulder impingement syndrome is denied. ____________________________________________ Thomas H. O'Shay Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs