Citation Nr: 1336023 Decision Date: 11/06/13 Archive Date: 11/13/13 DOCKET NO. 10-16 919 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUE Entitlement to a rating in excess of 30 percent for residuals of left shoulder injury, partial rotator cuff tear. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD G. E. Wilkerson, Counsel INTRODUCTION The Veteran served from July 1992 to September 1992, and from May 1995 to May 1998. This case comes before the Board of Veteran's Appeals (Board) on appeal from a March 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Seattle, Washington. Jurisdiction was subsequently transferred to the RO in Roanoke, Virginia. In January 2010, the Veteran presented testimony during a hearing before a Decision Review Officer (DRO) at the RO. A transcript of the hearing is associated with the claims file. In an August 2010 rating decision, the RO granted service connection for sarcoidosis, intervertebral disc syndrome of the cervical spine, and left upper and lower extremity neurological deficits. As this decision represents a full grant of these issues previously on appeal, they are no longer before the Board. An October 2011 report of contact reflects that the Veteran withdrew her request for a Travel Board hearing. Moreover, the Veteran expressed that she wished to withdraw the claim of entitlement to service connection for rheumatoid arthritis. As such, this claim is withdrawn. See 38 C.F.R. § 20.204 (2012). A review of the Veteran's Virtual VA and Veterans Benefits Management System (VBMS) electronic claims file reveals no additional records pertinent to the issue herein decided. FINDING OF FACT The Veteran's service-connected residuals of left shoulder injury, partial rotator cuff tear, have been manifested by limitation of motion of the left arm to approximately 25 degrees from side, but not ankylosis of the scapulohumeral articulation or impairment of the humerus, clavicle, or scapula. CONCLUSION OF LAW The criteria for a rating in excess of 30 percent for residuals of left shoulder injury, partial rotator cuff tear, are not met. 38 U.S.C.A. §§ 1155, 5107(b) (West 2002); 38 C.F.R. §§ 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5201 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION I. The Veterans Claims Assistance Act The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2012)) redefined VA's duty to assist the Veteran in the development of a claim. VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). Under the VCAA, VA 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; (3) that the claimant is expected to provide; and (4) must request that the claimant provide any evidence in his possession that pertains to the claim. Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004); 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). The United States Court of Appeals for Veterans Claims (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). In a November 2008 pre- rating letter, the RO notified the Veteran of the evidence needed to substantiate the claim for an increased rating for her left shoulder disability. This letter also satisfied the second and third elements of the duty to notify by delineating the evidence VA would assist in obtaining and the evidence it was expected that she would provide. Quartuccio v. Principi, 16 Vet. App. 183, 186-87 (2002); Charles v. Principi, 16 Vet. App. 370 (2002). The Veteran has substantiated her status as a veteran. The Veteran was notified of all other elements of the Dingess notice, including the disability rating and effective date elements of her claim, in the November 2008 letter. The Board further finds that VA has complied with the duty to assist by aiding the appellant in obtaining evidence. In this case, VA obtained the Veteran's service treatment records and all of the identified post-service private and VA treatment records. She also presented testimony at a DRO hearing in January 2010. The Veteran was also provided with VA examinations in December 2008, May 2010, and December 2011 as to her left shoulder disability on appeal. As these examinations were based on review of the Veteran's symptoms and complaints, and discuss her left shoulder disability in relation to the pertinent rating criteria, they are adequate for adjudication purposes. For the reasons set forth above, the Board finds that VA has complied with the VCAA's notification and assistance requirements. The claims on appeal are thus ready to be considered on the merits. II. Analysis Disability evaluations are determined by application of the criteria set forth in the VA's Schedule for Rating Disabilities, which is based on average impairment in earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. An evaluation of the level of disability present must also include consideration of the functional impairment of the Veteran's ability to engage in ordinary activities, including employment. 38 C.F.R. § 4.10. When a question arises as to which of two ratings apply under a particular diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3. The Veteran's entire history is to be considered when making disability evaluations. See generally 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). The Court has held that "staged" ratings are appropriate for any rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007); Fenderson v. West, 12 Vet. App 119 (1999). In this case, the disability has not significantly changed and a uniform evaluation is warranted. In addition, when assessing the severity of musculoskeletal disabilities that are at least partly rated on the basis of limitation of motion, VA must also consider the extent that the Veteran may have additional functional impairment above and beyond the limitation of motion objectively demonstrated, such as during times when her symptoms are most prevalent ("flare-ups") due to the extent of her pain (and painful motion), weakness, premature or excess fatigability, and incoordination-assuming these factors are not already contemplated by the governing rating criteria. DeLuca v. Brown, 8 Vet. App. 202, 204-7 (1995); see also 38 C.F.R. §§ 4.40, 4.45, 4.59. The Veteran's residuals of left shoulder injury, partial rotator cuff tear, are rated as 30 percent disabling under the criteria of 38 C.F.R. § 4.71a, Diagnostic Code 5201. Under Diagnostic Code 5201, a maximum 30 percent disability evaluation is warranted when the minor arm is limited to 25 degrees from the side. Handedness for the purpose of a dominant rating will be determined by the evidence of record, or by testing on VA examination. Only one hand shall be considered dominant. As demonstrated by the evidence of record, the Veteran is right-handed and as such, minor, as opposed to major, shoulder disability ratings are applicable. 38 C.F.R. § 4.69. The regulations define normal range of motion for the shoulder as forward flexion from zero to 180 degrees, abduction from zero to 180 degrees, external rotation to 90 degrees, and internal rotation to 90 degrees. See 38 C.F.R. § 4.71a, Plate I. A November 2007 private orthopedic report reflects that the Veteran presented for follow-up after left shoulder surgery. Examination of the shoulder revealed no warmth or erythema. The incisions were well-healed. There was no drainage or other abnormalities. There was good passive motion of the shoulder. A diagnosis of left shoulder status post revision, distal clavicle resection, and subacromial bursectomy was assigned. The pertinent evidence of record also includes VA outpatient treatment records documenting complaints of left shoulder pain. On VA treatment in November 2008, a report of chronic left shoulder pain was indicated. On VA QTC examination in December 2008, the Veteran endorsed left shoulder symptoms of weakness, stiffness, swelling, giving way, lack of endurance, dislocation, tingling, and numbness. She denied experiencing heat, redness, locking, and fatigability. She reported that pain in the left shoulder occurred 3 times per day lasting approximately 2 to 4 hours at a time. The pain travelled throughout the left arm into the fingers. She described the pain as squeezing and aching, and rated the pain a level 6 on a scale from 1 to 10. The pain could be elicited by physical activity but sometimes occurred spontaneously. It was relieved by rest and medication. With respect to functional impairment, the Veteran indicated that she could not raise her arm over her head, that she had difficulty reaching back to fasten her clothes, that her arm gave out, and that she was not able to hold weight in her left arm due to pain. She reported that she was right-hand dominant. The examiner observed 5 surgical scars on the shoulder. The scars were tender and hyperpigmented. While there was tenderness of the left shoulder, there were no signs of edema, effusion, weakness, redness, heat, or guarding of movement. There was no subluxation. Range of motion testing of the left shoulder revealed flexion to 90 degrees, abduction to 118 degrees, external rotation to 90 degrees, and internal rotation to 90 degrees. Joint function was additionally limited by pain after repetitive use, but there was no additional limitation in degrees. Joint function was not additionally limited by fatigue, weakness, lack of endurance, or incoordination upon repetitive use. An x-ray of the left shoulder revealed prior surgery of the distal clavicle, but was otherwise negative. The examiner diagnosed left shoulder injury, status post arthroscopic debridement of partial rotator cuff tear and open acromioplasty with limitation of motion and residuals. He also noted that there were no limitations on daily activity due to her left shoulder disability. During the Veteran's January 2010 DRO hearing, she reported that she could not sleep on her left side due to her left shoulder disability. She also indicated that she could not reach her left arm behind her back or above her head due to the disability. The Veteran described left arm numbness, tingling, and shaking. She indicated that she had difficulty gripping objects with her left hand. There was also pain with motion and she occasionally experienced a locking sensation. As a result, the Veteran indicated that she had to do most tasks, such as buttoning shirts, with her right hand. On VA examination in May 2010, the Veteran reported that her left shoulder continued to be weak and tender and frequently gave way. She endorsed pain but denied any stiffness, heat, redness, lack of endurance, locking, fatigability, dislocation, deformity, drainage, effusion, or subluxation. She stated that she experienced left shoulder flare-ups approximately 3 times per week lasting for hours at a time, and rated a level of 10 on a scale to 10 during flare-up. The pain was precipitated by physical activity involving use of the left upper extremity, though she experienced spontaneous exacerbation of pain. She stated that the left shoulder condition impeded her from overhead work, and made it impossible for her to move her left arm behind her back. She also indicated that her left shoulder condition interfered greatly with her ability to hold items, to lift, to reach for items in a cabinet or closet, and to put on her undergarments. The examiner noted well-healed, non-tender surgical scars on the left shoulder. He indicated that there was no limitation of motion or function due to these scars. The left shoulder was diffuse with tenderness. There was no evidence of instability, abnormal movement, edema, effusion, weakness, redness, heat, deformity, guarding of movement, malalignment, drainage, or subluxation. There was no ankylosis. Range of motion testing revealed flexion to 40 degrees with pain occurring at 35 degrees, abduction to 15 degrees with pain occurring at 10 degrees, and internal and external rotation each to 10 degrees with pain at the endpoint of range of motion. Range of motion was additional limited by pain, fatigue, weakness, and lack of endurance after repetitive use, but there was no limitation in degree. X-rays of the left shoulder documented old trauma at the distal clavicle. The examiner diagnosed left shoulder injury, partial rotator cuff repair along with tendonitis and bursitis. He noted chronic residuals of pain, bursitis/tendonitis, limitation of motion, and weakness. He also noted that that the Veteran indicated that she was unemployable due to a number of factors including her left shoulder pain, constant fatigue, chronic cough, and left-sided weakness. On VA examination in December 2011, the Veteran indicated that she continued to experience left shoulder pain and symptoms. She reported flare-ups of left shoulder symptoms, during which she experienced limited motion due to pain, tenderness, and swelling. Range of motion testing revealed left shoulder flexion to 45 degrees, with pain beginning at 0 degrees. Abduction was to 55 degrees with pain also beginning at 0 degrees. After repetitive range of motion, flexion was to 55 degrees, and abduction was to 50 degrees. There was no additional limitation in range of motion following repetitive use. The examiner noted that the Veteran experienced functional loss including less movement than normal, weakened movement, and pain on movement. There was localized tenderness of the left shoulder. Strength was normal on shoulder abduction and forward flexion. There was no ankylosis. Testing for rotator cuff conditions yielded negative findings. There was no history of recurrent dislocation of the glenohumeral joint. The examiner also noted that the Veteran did not have an acromioclavicular joint condition or any other impairment of the clavicle or scapula. While he observed surgical scarring of the left shoulder, none of the scars were painful and/or unstable, and none were greater than 39 square centimeters. The examiner diagnosed rotator cuff tear, osteoarthritis of the left shoulder, and subacromial bursitis. With respect to functional impact, the examiner determined that the Veteran experienced partial impairment of physical activities of employment due to her left shoulder condition. In this case, the Veteran's left shoulder disability has been assigned the maximum rating available under Diagnostic Code 5201 for limitation of motion of the minor, non-dominant, arm. Therefore, a rating in excess of 30 percent for the Veteran's residuals of left shoulder injury, partial rotator cuff tear, must be denied. The Board has also considered other potentially applicable diagnostic codes; however, the Veteran's residuals of left shoulder injury, partial rotator cuff tear, is not shown to involve any other factor that would warrant evaluation of the disability under any other provisions of the rating schedule. In this case, there simply is no evidence of any ankylosis of the scapulohumeral articulation, or impairment of the humerus or of the clavicle or scapula. As such, there is no basis for evaluation of the disability under Diagnostic Codes 5200, 5202, or 5203. See 38 C.F.R. § 4.71a. The Board acknowledges that the Veteran has scarring of the left shoulder associated with previous surgical procedures; however, a separate evaluation for this scarring has already been assigned. Moreover, while the Veteran has described neurological symptoms of the left upper extremity including numbness and tingling, a separate rating for left upper extremity neurological deficits contemplating these symptoms has also already been assigned. The Board has also considered the Veteran's statements regarding the severity of her left shoulder symptoms. Certainly, as a lay person, the Veteran is competent to attest to physical symptoms that she experiences, such as persistent shoulder pain. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). Generally, she has been credible, however, neither the medical evidence nor the lay evidence suggests that an evaluation in excess of 30 percent is warranted. The testimony was non-specific and failed to establish a greater degree of functional impairment. Here, the medical findings (as provided in the various VA examination reports) directly address the criteria under which the Veteran's left shoulder disability is evaluated. We find the medical evidence to be far more probative of the degree of impairment that her lay statements, even if sworn. Furthermore, it is important to note that the appellant is in receipt of the maxiumumk evalution for limitiaton of motion. Thererfore, further DeLuca consideration is not warranted. Johnston v. Brown, 10 Vet. App. 80 (1997). As to consideration of referral for an extraschedular rating, such consideration requires a three-step inquiry. See Thun v. Peake, 22 Vet. App. 111 (2008), aff'd sub nom. Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). The first question is whether the schedular rating adequately contemplates the Veteran's disability picture. Thun, 22 Vet. App. at 115. If the criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule, the assigned schedular evaluation is, therefore, adequate, and no referral is required. If the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, then the second inquiry is whether the claimant's exceptional disability picture exhibits other related factors such as those provided by the regulation as governing norms. If the Veteran's disability picture meets the second inquiry, then the third step is to refer the case to the Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether an extraschedular rating is warranted. The discussion above reflects that the symptomatology associated with the Veteran's left shoulder disability is fully contemplated by the applicable rating criteria. The symptomatology reported by the Veteran and shown on examination is contemplated by the rating criteria used to assign disability evaluations, and there is no characteristic or manifestations shown that is outside the purview of the applicable rating criteria or is so exceptional as to render the criteria in applicable. All potentially relevant rating codes have been considered and evaluated. Consideration of whether the Veteran's disability picture exhibits other related factors such as those provided by the regulations as "governing norms" is therefore not required. In any event, the Veteran did not claim, and the evidence does not reflect, that there has been marked interference with employment, frequent hospitalization, or that the Veteran's symptoms have otherwise rendered impractical the application of the regular schedular standards. The evidence of record certainly shows that the Veteran's disability has impacted her ability to work. However, the level of interference shown is contemplated by the disability evaluation already assigned to the Veteran's disorder. Therefore, referral for consideration of an extraschedular rating for any of the disability on appeal is not warranted. 38 C.F.R. § 3.321(b)(1). For the foregoing reasons, the Board concludes that there is no basis for staged ratings of the Veteran's residuals of left shoulder injury, partial rotator cuff tear, as her symptoms have been primarily the same throughout the appeal period, and finds that the preponderance of the evidence is against the assignment of a rating in excess of 30 percent for this disability. See 38 U.S.C.A. § 5107(b) ; 38 C.F.R. §§ 3.102, 4.3; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). ORDER Entitlement to a rating in excess of 30 percent for residuals of left shoulder injury, partial rotator cuff tear, is denied. ______________________________________________ H. N. SCHWARTZ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs