Citation Nr: 1336328	
Decision Date: 11/07/13    Archive Date: 11/13/13

DOCKET NO.  07-33 448	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Medical and Regional Office Center in Wichita, Kansas


THE ISSUE

Entitlement to an initial compensable disability rating for degenerative osteoarthritis of the right (major) shoulder. 


REPRESENTATION

Appellant represented by:	Disabled American Veterans


ATTORNEY FOR THE BOARD

K. R. Fletcher, Counsel




INTRODUCTION

The Veteran had active service from August 1995 to December 1995 and from August 2004 to December 2005. 

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2007 rating decision by the above-referenced Department of Veterans Affairs (VA) Regional Office (RO).  This case was before the Board in April 2011 when it was remanded for additional development.

In addition to the paper claims file, there is a Virtual VA (VVA) electronic claims file associated with the Veteran's claim.  The VVA file includes a September 2013 Informal Hearing Presentation from the Veteran's representative.  The other documents in the VVA file are either duplicative of the evidence in the paper claims file or are irrelevant to the issue on appeal.


FINDING OF FACT

Throughout the period of the appeal, the service-connected degenerative osteoarthritis of the Veteran's right shoulder has been manifested by limitation of abduction to no worse than 170 degrees, forward elevation to no worse than 175 degrees, internal rotation to 90 degrees, and external rotation to 90 degrees.  No additional impairment resulting from excess fatigability, pain, weakness, of lack of endurance of his right shoulder has been shown.


CONCLUSION OF LAW

The criteria for an initial compensable rating for degenerative osteoarthritis of the right shoulder have not been met.  38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.1-4.14, 4.40-4.45, 4.59, 4.71a, Diagnostic Codes 5003, 5010, 5201 (2013).

REASONS AND BASES FOR FINDING AND CONCLUSION

I.  The Veteran's Claims Assistance Act of 2000 (VCAA)

The VCAA, codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A, and the pertinent implementing regulation, codified at 38 C.F.R. § 3.159, provide that VA will assist a claimant in obtaining evidence necessary to substantiate a claim but is not required to provide assistance to a claimant if there is no reasonable possibility that such assistance would aid in substantiating the claim.  They also require VA to notify the claimant and the claimant's representative, if any, of any information, and any medical or lay evidence, not previously provided to the Secretary that is necessary to substantiate the claim.  As part of the notice, VA is specifically to inform the claimant and the claimant's representative, if any, of which portion, if any, of the evidence is to be provided by the claimant and which part, if any, VA will attempt to obtain on behalf of the claimant. 

The plain language of 38 U.S.C.A. § 5103(a) requires that notice to a claimant pursuant to the VCAA be provided "at the time" that, or "immediately after," VA receives a complete or substantially complete application for VA-administered benefits.  Pelegrini v. Principi, 18 Vet. App. 112, 119 (2004).  "Lack of such a pre-AOJ-decision notice was not prejudicial to the appellant, see 38 U.S.C. § 7261(b)(2) (as amended by the Veterans Benefits Act of 2002, Pub. L. No. 107-330, § 401, 116 Stat. 2820, 2832) (providing that '[i]n making the determinations under [section 7261(a)], the Court shall...take due account of the rule of prejudicial error')."  The timing requirement enunciated in Pelegrini applies equally to the initial-disability-rating and effective-date elements of a service-connection claim.  Dingess v. Nicholson, 19 Vet. App. 473 (2006). 

In any event, however, the appeal of the claim for a compensable evaluation for the service-connected right shoulder disability arises from the initial rating assigned with award of service connection.  The statutory scheme contemplates that, once a decision awarding service connection, a disability rating, and an effective date has been made, statutory notice has served its purpose, and its application is no longer required because the claim has already been substantiated.  Dingess/Hartman, 19 Vet. App. 473, 490-91 (2006).  Here, the Veteran is exercising his right to appeal the rating assigned.  A July 2007 statement of the case (SOC) properly provided the Veteran with notice of the criteria for rating the shoulder disability, and further notice on the downstream issue of an initial increased rating, including of what the evidence showed, and why the current rating was assigned.  The Veteran has had opportunity to respond.  He is not prejudiced by this process.  Notably, he does not allege that notice in this case was less than adequate or that he has been prejudiced by any notice deficiency. 

Regarding VA's duty to assist, all appropriate development to obtain the Veteran's service treatment records (STRs) and pertinent medical records (including VA and private) has been completed.  As noted, this case was before the Board in April 2011 when it was remanded for additional action, including obtaining up-to-date VA treatment records and affording the Veteran a VA examination to ascertain the current nature and severity of his service-connected shoulder disability.  As will be discussed in more detail below, VA treatment records were obtained in June 2011, and the Veteran was afforded a VA examination in that same month.  The June 2011 examination report reflects that the Veteran's records were reviewed and contains the requested opinion.  The Board finds that there has been substantial compliance with its remand instructions, and additional remand is not required.  D'Aries v. Peake, 22 Vet. App. 97 (2008) (noting that substantial rather than strict compliance with the terms of a Board remand is required pursuant to Stegall v. West, 11 Vet. App. 268 (1998)).  The Veteran has not identified any pertinent, outstanding records that could be obtained to substantiate his claim.  The Board is also unaware of any such records.  Therefore, the Board concludes that VA has complied with its duty to assist the Veteran.  

II.  Analysis 

Disability ratings are determined by applying the criteria set forth in the VA's Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes.  38 U.S.C.A. § 1155; 38 C.F.R. § 4.1.  The basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment.  38 C.F.R. § 4.10. 

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 for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. 

A veteran's entire history is reviewed when making disability evaluations.  See generally 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1991).  Where, as here, the question for consideration is the propriety of the initial evaluation assigned, consideration of the medical evidence since the effective date of the award of service connection and consideration of the appropriateness of a staged rating are required.  Fenderson v. West, 12 Vet. App. 119, 126 (1999). 

In determining the degree of limitation of motion, the provisions of 38 C.F.R. §§ 4.10, 4.40 and 4.45 are for consideration.  DeLuca v. Brown, 8 Vet. App. 202 (1995).  In this regard, disability of the musculoskeletal system is primarily the inability, due to damage or infection in parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination and endurance.  Functional loss may be due to the absence or deformity of structures or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by the visible behavior in 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. 

With respect to joints, in particular, the factors of disability reside in reductions of normal excursion of movements in different planes. Inquiry will be directed to more or less than normal movement, weakened movement, excess fatigability, incoordination, pain on movement, swelling, deformity or atrophy of disuse.  38 C.F.R. § 4.45. 

The intent of the Rating Schedule is to recognize actually painful, unstable or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint.  38 C.F.R. § 4.59. 
Arthritis shown by X-ray studies is rated based on limitation of motion of the affected joint. When limitation of motion would be noncompensable under a limitation-of-motion code, but there is at least some limitation of motion, a 10 percent rating may be assigned for each major joint so affected. 38 C.F.R. § 4.71a, Diagnostic Codes 5003, 5010. Diagnostic Code 5010 (traumatic arthritis) directs that arthritis be rated under Diagnostic Code 5003 (degenerative arthritis), which states that degenerative arthritis established by X-ray findings will be rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved. 38 C.F.R. § 4.71a, Diagnostic Code 5010. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. 38 C.F.R. § 4.71a, Diagnostic Code 5010. In the absence of limitation of motion, X-ray evidence of arthritis involving two or more major joint groups with occasional incapacitating exacerbations warrants a 20 percent rating. These ratings are to be combined, not added under Diagnostic Code 5003. 38 C.F.R. § 4.71a, Diagnostic Code 5010, Note 1.

Diagnostic Code 5201 provides for the following ratings for limitation of motion of the major arm:  at shoulder level (20%), midway between the side and shoulder level (30%), and to 25 degrees from the side (40%).  38 C.F.R. § 4.71a, Diagnostic Code 5201.  Lifting the arm to shoulder level is lifting it to 90 degrees.  Normal ranges of shoulder motion are defined by VA regulation as follows: forward elevation (flexion) from zero to 180 degrees; abduction from zero to 180 degrees; and internal and external rotation to 90 degrees.  38 C.F.R. § 4.71, Plate I.  

Other diagnostic codes for rating shoulder disability are not for consideration because the pathology required by such codes-ankylosis of the scapulohumeral articulation; flail shoulder; false flail joint; fibrous union of the humerus; recurrent dislocation of the humerus at the scapulohumeral joint; malunion of the humerus; or impairment of the clavicle or scapula ankylosis-is not shown. 

In every instance where the schedule does not provide a zero percent rating for a diagnostic code, a zero percent rating shall be assigned when the requirements for a compensable rating are not met.  See 38 C.F.R. § 4.31. 

Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary.  The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary.  When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant.  38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990).  To deny a claim on its merits, the evidence must preponderate against the claim.  Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. 

The Board has reviewed all of the evidence in the Veteran's claims file, with an emphasis on the evidence relevant to this appeal.  Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record.  Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (holding that VA must review the entire record, but does not have to discuss each piece of evidence).  Hence, 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.

Historically, STRs note that the Veteran is right-handed.  STRs also note the Veteran's complaints of shoulder problems.  Following service, a December 2006 VA examination report notes the Veteran's report of falling during service and hurting his right shoulder.  Examination revealed no limitation of motion (180 degrees of forward flexion and abduction, and 90 degrees of internal and external rotation).  The Veteran had no complaints of pain with range of motion testing.  X-ray studies revealed minimal degenerative osteoarthritic changes of the right shoulder with minimal narrowing of the acromioclavicular joint.  

The Veteran was awarded service connection for degenerative osteoarthritis of the right shoulder in a January 2007 rating decision.  A noncompensable rating was assigned, effective December 25, 2005.  VA outpatient treatment records dated from 2006 to 2011 note the Veteran's complaints of, and treatment for, right shoulder problems.  The Veteran received an injection for right shoulder pain in August 2006.  On follow-up examinations that month he denied having right shoulder pain on one occasion and complained of mild pain (1/1) on another occasion.  Range of motion was normal in September 2006.  Subsequent VA treatment records note that the Veteran was being followed for arthritis, but no findings of limited range of motion or pain in the right shoulder were noted.

A June 2011 VA examination report notes the Veteran's complaints of dull right shoulder pain all the time.  He stated that he takes Ibuprofen to alleviate the pain.  On examination, there was no evidence of instability, deformity, incoordination, episodes of dislocation or subluxation, guarding of movement, stiffness, or fatigue.  Range of motion was: flexion from 0 to 175 degrees without pain; abduction from 0 to 170 degrees without pain; internal rotation from 0 to 90 degrees without pain; and external rotation from 0 to 90 degrees without pain.  There was no evidence of additional limitation of motion or additional functional loss and impairment following repetitive-use testing.  There was no evidence ankylosis of the joint noted on the examination.  The examiner stated that X-ray studies of the right shoulder showed no fracture or dislocation.  Glenohumeral joint space was well preserved.  Acromioclavicular joint was intact.  There was no evidence of degenerative joint disease of right shoulder.  After reviewing the claims file, the examiner opined that the Veteran's right shoulder disability should not affect his ability to obtain or maintain gainful employment, as there were no overall functional limitations imposed by the disability.

Here, the competent medical evidence of record does not reflect limitation of motion of the arm at shoulder level.  At worse, range of motion was forward elevation to 175 degrees, abduction to 170 degrees, internal rotation to 90 degrees and external rotation to 90 degrees.  See June 2011 VA examination report.  These measurements far exceed the criteria for a compensable rating under Diagnostic Code 5201 and in fact essentially represent normal range of motion of the Veteran's right shoulder.  38 C.F.R. § 4.71, Plate I.  

The Board has also considered the provisions of 38 C.F.R. §§ 4.40, 4.45, 4.59, and the holdings in DeLuca.  However, an initial compensable evaluation for the Veteran's right shoulder disability is not warranted on the basis of functional loss due to pain or weakness in this case, as the Veteran's symptoms are supported by pathology consistent with the assigned noncompensable rating, and no higher.  In this regard, the overwhelming majority of medical records show that the Veteran had no complaints of right shoulder pain.  The Board acknowledges the Veteran's occasional complaints of pain in his right shoulder, most recently noted on VA examination in June 2011.  However, the June 2011 VA examiner observed that the Veteran had nearly full range motion on examination, and there was no sign of pain upon repetitive movement.  The Board notes that the effect of the Veteran's complaints of pain is contemplated in the currently assigned noncompensable disability evaluation under Diagnostic Code 5201.  The Veteran's complaints do not, when viewed in conjunction with the medical evidence, tend to establish weakened movement, excess fatigability, or incoordination to the degree that would warrant a higher initial evaluation.  Functional loss due to pain or weakness must be supported by adequate pathology and evidenced by the visible behavior of the claimant; see 38 C.F.R. § 4.40.  There is no such evidence of record in this case.  See Fenderson, supra.

In sum, the Board has determined that a compensable evaluation for degenerative osteoarthritis of the right shoulder may not be assigned on a scheduler basis; accordingly, the claim must be denied.  Because the evidence preponderates against the claim, the benefit-of-the-doubt rule does not apply.  Gilbert, 1 Vet. App. 49, 54. 

The Board has also considered whether the record raises the matter of an extra-schedular rating under 38 C.F.R. § 3.321(b)(1).  Here, the rating criteria reasonably describe the Veteran's disability level and symptomatology.  The rating criteria provide higher ratings.  However, the competent medical evidence does not reflect that the Veteran's right shoulder disability is manifested by limitation of motion so as to warrant such a higher rating.  Moreover, the competent evidence does not show that the right shoulder disability causes marked interference with employment, requires frequent hospitalizations, or otherwise produces impairment unrecognized by the Schedule.  Thus, the Veteran's disability picture is contemplated by the rating schedule, and the assigned schedular evaluation is, therefore, adequate.  Thun v. Peake, 22 Vet. App. 111, 115 (2008).  Thus, referral for extra-schedular consideration is not warranted.  
Lastly, the United States Court of Appeals for Veterans Claims has recently held that a request for a total disability rating based on individual unemployability due to service-connected disability (TDIU), whether expressly raised by a claimant or reasonably raised by the record, is an attempt to obtain an appropriate rating for disability or disabilities, and is part of a claim for increased compensation.  There must be cogent evidence of unemployability in the record.  Rice v. Shinseki, 22 Vet. App. 447 (2009), citing Comer v. Peake, 552 F.3d 1362  (Fed. Cir. 2009).  However, the holding of Rice is inapplicable here because the evidence of record does not illustrate that the Veteran's service-connected right shoulder disability prevents him from obtaining and maintaining gainful employment-nor has he contended otherwise.  Thus, at this point, there is no cogent evidence of unemployability due solely to this service-connected disability, and the issue of entitlement to a TDIU need not be addressed further.  


ORDER

An initial compensable disability rating for degenerative osteoarthritis of the right shoulder is denied. 



____________________________________________
THERESA M. CATINO
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs