Citation Nr: 1335390 Decision Date: 11/04/13 Archive Date: 11/13/13 DOCKET NO. 10-11 057 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to an increased rating for healed right shoulder anterior dislocation with humeral shaft fracture, currently evaluated as 10 percent disabling. 2. Entitlement to an increased rating for left knee chondromalacia, with medial meniscus tear and abnormal anterior cruciate ligament, currently evaluated as 10 percent disabling. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD C. Lawson, Counsel INTRODUCTION The Veteran served on active duty from November 2002 to May 2005. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a January 2009 rating decision by a Regional Office (RO) of the Department of Veterans Affairs (VA). In part, that decision assigned the Veteran a temporary total rating for her service-connected left knee disability effective from October 28, 2008 through April 2009. The Veteran had filed a notice of disagreement regarding other issues denied in January 2009. However, after the March 2010 statement of the case, she limited her appeal in her April 2010 VA Form 9 to the issues shown on the cover page. In addition, the Veteran filed an October 2009 notice of disagreement with the rating that had been assigned for bilateral pes planovalgus in a June 2005 rating decision. She was advised by letter dated March 9, 2010, that her October 2009 correspondence was not timely as to the June 2005 rating decision, and therefore it could not serve as an NOD. See 38 C.F.R. § 20.302 (2013). The Veteran did not appeal that timeliness determination. Instead, the RO developed the claim as a claim for increase. For these reasons, the issues addressed by the Board herein are limited to those on the first page of this decision. The Veteran had requested but in October 2011 failed to appear for a Board hearing. The Veteran's hearing request is considered withdrawn. See 38 C.F.R. § 20.704 (2013). The issue of an increased rating for left knee chondromalacia with medial meniscus tear and abnormal anterior cruciate ligament is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDING OF FACT The Veteran does not have ankylosis of the scapulohumeral articulation; left humerus malunion, recurrent dislocation, fibrous union, or nonunion; or loss of the head of the left humerus; and her left arm motion is not limited to the shoulder level. CONCLUSION OF LAW The criteria for a disability rating in excess of 10 percent for healed right shoulder anterior dislocation with humeral shaft fracture have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.1, 4.10, 4.40, 4.45, 4.71a, Diagnostic Codes 5200, 5201, 5202, 5203 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION Veterans Claims Assistance Act (VCAA) Upon receipt of a complete or substantially complete application, VA must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide. 38 U.S.C.A. § 5103(a). The notice must be provided to a claimant before the initial unfavorable adjudication by the RO. Pelegrini v. Principi, 18 Vet. App. 112 (2004). In a claim for increase, the VCAA requirement is generic notice, that is, 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). The RO provided the Veteran pre-adjudication notice by a letter dated in September 2008. The notification complied with the general notice requirements of Vazquez-Flores. VA also has a duty to assist a claimant under the VCAA. VA has assisted the Veteran in obtaining evidence; examined the Veteran for right shoulder disability in October 2008 (with an addendum in January 2009); and afforded the Veteran the opportunity to give testimony before the Board. The examination report and its addendum contain adequate information to rate the Veteran's right shoulder disability. The examiner physically evaluated the Veteran, reviewed the claims file, and made all necessary physical findings. This examination was therefore adequate. All known and available records relevant to the issue on appeal have been obtained and associated with the Veteran's claims file; and the Veteran has not contended otherwise. VA has complied with the notice and assistance requirements and the Veteran is not prejudiced by a decision on the claim at this time. Relevant Law, Factual Background, and Analysis The RO has rated the Veteran's right shoulder disability under Diagnostic Code 5202-5203. The right shoulder is considered the dominant side as she is right-handed. See March 2005 VA examination report. Disability ratings are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. 38 U.S.C.A. § 1155. 38 C.F.R. Part 4 contains the rating schedule. When a question arises as to which of two ratings applies under a particular diagnostic code, the higher evaluation 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. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. Id. § 4.3. The Board has reviewed all of the evidence in the Veteran's claims file, with an emphasis on the medical evidence pertinent to the claims on appeal. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Therefore, the Board will summarize the relevant evidence where appropriate, and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, as to the claim. In Fenderson v. West, 12 Vet. App. 119 (1999), and in Hart v. Mansfield, 21 Vet. App. 505 (2007), the Court discussed the concept of the "staging" of ratings, finding that in cases where an initially assigned disability evaluation or an increased rating has been disagreed with, it was possible for a Veteran to be awarded separate percentage evaluations for separate periods based on the facts found during the appeal period. Based on the evidence, the Board finds that a uniform rating is warranted. Disability of the musculoskeletal system is primarily the inability, due to damage or infection in the parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. It is essential that the examination on which ratings are based adequately portray the anatomical damage, and the functional loss, with respect to all these elements. The functional loss may be due to absence of part, or all, of the necessary bones, joints and muscles, or associated structures, or to deformity, adhesions, defective innervation, or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. 38 C.F.R. §§ 4.40 and 4.45 (2013), see also DeLuca v. Brown, 8 Vet. App. 202, 206-07 (1995). Painful, unstable, or malaligned joints, due to healed injury, are entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59 (2013). The factors involved in evaluating, and rating, disabilities of the joints include weakness; fatigability; incoordination; restricted or excess movement of the joint, or pain on movement. Id. § 4.45. Shoulder disabilities are rated under Codes 5200 to 5203. Diagnostic Code 5200 pertains to ankylosis of the shoulder. Under Code 5201 (for limitation of arm motion), the minimum schedular rating of 20 percent is warranted where there is limitation of motion of an arm at the shoulder level. Limitation of major arm motion to midway between the side and shoulder level warrants a 30 percent rating, and a 40 percent rating is warranted where there is limitation of motion to 25 degrees from the side. 38 C.F.R. § 4.71a. The Federal Circuit recently held that the plain language of 38 C.F.R. § 4.71a confirms that a Veteran is only entitled to a single disability rating under diagnostic code 5201 for each arm that suffers from limited motion at the shoulder joint. The diagnostic code does not provide separate ratings for limitation of motion in the flexion and abduction planes, but rather is addressed generically as "limitation of motion of" the arm. Yonek v. Shinseki, 72 F.3d 1355 (Fed. Cir. 2013). Diagnostic Code 5202 provides ratings for other impairment of the humerus. Malunion of the humerus with moderate deformity is rated as 20 percent for the major shoulder; malunion of the humerus with marked deformity is rated as 30 percent for the major shoulder. Recurrent dislocations of the humerus at the scapulohumeral joint, with infrequent episodes, and guarding of movement only at the shoulder level, are rated as 20 percent; recurrent dislocations of the humerus at the scapulohumeral joint, with frequent episodes and guarding of all arm movements, are rated as 30 percent for the major shoulder. Fibrous union of the humerus is rated as 50 percent for the major shoulder. Nonunion of humerus (false flail joint) is rated as 60 percent for the major shoulder. Loss of head of the humerus (flail shoulder) is rated as 80 percent for the major shoulder. Id. In cases of clavicular or scapular impairment, Diagnostic Code 5203 provides for a 20 percent rating with dislocation or nonunion of the clavicle or scapula with loose movement, while nonunion without loose movement or malunion warrants a 10 percent evaluation. Alternately, this impairment may be rated based on impairment of function of the contiguous joint. 38 C.F.R. § 4.71a, Code 5203. Normal forward flexion of an arm is from 0 to 180 degrees, normal abduction of an arm is from 0 to 180 degrees, normal external rotation is from 0 to 90 degrees, and normal internal rotation is from 0 to 90 degrees. 38 C.F.R. § 4.71a, Plate I. On VA examination in October 2008, the Veteran reported that she injured her right shoulder in a physical training exercise, and that this led to repeated subluxations until she had a surgical repair in 2006. She indicated that there had been no subluxation recurrences since. She complained of stiffness associated with overuse/external rotation; as well as limitation of motion due to pain, particularly in external rotation and in reaching back behind. She was right-hand dominant. X-rays of the right shoulder showed no fracture or destructive lesion. A January 2009 addendum to the examination report indicates that right shoulder passive and active range of motion was flexion to 150 degrees with pain noted at that point, abduction to 130 degrees with pain noted at that point, internal and external rotation to 90 degrees, with no pain. There were no further limitations of motion following 3 repetitions. Based on the evidence, the Board concludes that a rating in excess of the 10 percent rating currently assigned is not warranted, even when 38 C.F.R. §§ 4.3, 4.7, 4.10, 4.40, 4.45 are considered. The Board has considered the Veteran's statements regarding her stiffness and pain with overuse; however, the Board also notes that the Veteran has reported that she does not take medication other than anti-inflammatories for her pain and has not sought steroid injection treatment. The Board places significant value on the assessment of the VA examiner in this regard, including the finding on examination that there were no further limitations of motion following 3 repetitions and that the Veteran had significant ranges of pain-free motion in all directions. The Veteran does not allege and the evidence does not show that she has ankylosis of the scapulohumeral articulation; right humerus malunion; recurrent dislocation; fibrous union or nonunion; or loss of the head of the right humerus. The medical evidence shows movement of the shoulder joint. As the Veteran is not shown to have ankylosis of the shoulder, Code 5200 does not apply. Also, at no time has the Veteran exhibited limitation of motion of the arm consistent with flexion only to the shoulder level or lower. The medical evidence shows pain-free forward flexion up to 150 degrees. Thus, an evaluation under DC 5201 for limitation of motion of the arm is also precluded. 38 C.F.R. § 4.71a (2013). As X-rays were normal in October 2008, a compensable rating is not warranted for arthritis under Diagnostic Code 5003. There is no other pathological anatomy identified upon examination. In particular, there is no flail shoulder, malunion or non-union of the joint, and ankylosis, loss of bone, and recurrent dislocation are expressly ruled out. See 2008 VA examination. As such, no higher evaluation is warranted under any of the applicable diagnostic criteria. 38 C.F.R. §§ 4.71a, DCs 5202-5203. The Veteran noted in April 2010 that she had a right shoulder operation in 2006. However, this was before the rating period, which began in September 2008, and the rating to be assigned currently is to be based on the current degree of functional impairment shown. 38 C.F.R. § 4.1. In light of the above, a schedular rating in excess of 10 percent is not warranted for the service-connected right shoulder disability. Extra Schedular Considerations The above determination is based upon application of the pertinent provisions of VA's rating schedule. The Board finds that the record does not reflect that the Veteran's service-connected disability is so exceptional or unusual as to warrant the assignment of a higher rating on an extraschedular basis. See 38 C.F.R. § 3.321(b)(1) (2013). 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. See Thun v. Peake, 22 Vet. App. 111 (2008). In this regard, there must be a comparison between the level of severity and symptomatology of the claimant's service-connected disability with the established criteria found in the rating schedule for that disability. If the criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule and the assigned schedular evaluation is therefore adequate, and no extraschedular referral is required. Id.; see also VAOGCPREC 6-96 (Aug. 16, 1996). Otherwise, if the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, VA must determine whether the claimant's exceptional disability picture exhibits other related factors, such as those provided by the extraschedular regulation 38 C.F.R. § 3.321(b)(1) as "governing norms" (which include marked interference with employment and frequent periods of hospitalization). In this case, the Board finds that the rating criteria used to evaluate the Veteran's service-connected disability reasonably describe her disability level and symptomatology. The schedular criteria, in general, are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. 38 C.F.R. § 4.1. Therefore, the Veteran's disability picture is contemplated by the rating schedule and no extraschedular referral is required. 38 C.F.R. § 3.321(b)(1); Bagwell v. Brown, 9 Vet. App. 337 (1996); Shipwash v. Brown, 8 Vet. App. 218 (1995). Lastly, the Court has held that a request for a total disability rating based on individual unemployability (TDIU), whether expressly raised by a Veteran or reasonably raised by the record, is not a separate claim for benefits, but rather involves an attempt to obtain an appropriate rating for a disability or disabilities, either as part of the initial adjudication of a claim, or, if the disability upon which entitlement to TDIU is based has already been found to be service connected, as part of a claim for increased compensation. Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009). In the instant case, TDIU has not been raised by the Veteran and is not reasonably raised by the record as the evidence shows she is employed full-time as a security officer and has not lost time from work in the last year. See 2008 VA examination report. The Board has considered the doctrine of giving the benefit of the doubt to the appellant, under 38 U.S.C.A. § 5107 (West 2002), and 38 C.F.R. § 3.102 (2013), but does not find that the evidence is of such approximate balance as to warrant its application. Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990). ORDER An rating in excess of 10 percent for healed right shoulder anterior dislocation with humeral shaft fracture is not warranted. REMAND The Veteran appeals the denial of a rating greater than the 10 percent assigned for her service-connected left knee chondromalacia with medial meniscus tear and abnormal anterior cruciate ligament. Currently, she is rated under Diagnostic Code 5014, which is for a form of arthritis which is to be rated based on limitation of motion. In addition to the ratings based on limitation of motion, a separate rating may be assigned for instability of the knee. See VAOPGCPREC 23-97 (July 1, 1997). In the present case, the Veteran underwent a left knee anterior cruciate ligament reconstruction procedure on October 21, 2008. It is a generally accepted medical principle that the anterior cruciate ligament affects stability of the knee. There was one VA examination of the Veteran's left knee after the October 2008 anterior cruciate ligament surgery, in August 2009. At the time, the Veteran complained of left knee instability. However, the examiner made no findings as to left knee stability. The Board therefore finds that such VA examination is inadequate for rating purposes. The remedy at this point is to remand for another VA examination which assesses for left knee stability. Beforehand, however, any additional medical records of treatment which the Veteran has received for left knee disability since she filed her claim in September 2008, which are not of record, should be obtained. VA medical records are constructively of record and must be obtained. See 38 C.F.R. § 3.159; Bell v. Derwinski, 2 Vet.App. 611 (1992). Accordingly, the case is REMANDED for the following action: 1. The RO should take appropriate action to obtain all additional relevant medical records of left knee treatment the Veteran has received since September 2008, which are not of record. This should include any and all outstanding VA medical records. 2. Thereafter, the Veteran should be scheduled for a VA examination for her left knee disability. The examiner should identify all impairment attributable to the Veteran's service-connected left knee disability. The examiner should report the range of motion measurements for the left knee, in degrees. Whether there is any pain, weakened movement, excess fatigability or incoordination on movement should be noted, and whether there is likely to be additional range of motion loss due to any of the following should be addressed: (1) pain on use, including during flare-ups; (2) weakened movement; (3) excess fatigability; or (4) incoordination. The examiner is asked to describe whether pain significantly limits functional ability during flare-ups or when the left knee is used repeatedly. All limitation of function must be identified. If there is no pain, no limitation of motion and/or no limitation of function, such facts must be noted in the report. The examiner should examine for and indicate whether there is any evidence of recurrent subluxation or lateral instability of the left knee and, if so, whether it is slight, moderate, or severe. 3. After completion of the above, the RO should review the expanded record and determine whether a higher rating is warranted for the Veteran's service-connected left knee disability. The Veteran and her representative should be furnished a supplemental statement of the case. After they are afforded an opportunity to respond, the case should be returned to the Board for appellate review. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ______________________________________________ M. C. GRAHAM Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs