Citation Nr: 1337306 Decision Date: 11/15/13 Archive Date: 11/26/13 DOCKET NO. 08-32 823 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUES 1. Entitlement to service connection for a low back disability. 2. Entitlement to an initial rating in excess of 20 percent for degenerative joint disease of the right shoulder. 3. Entitlement to an initial rating in excess of 10 percent for degenerative joint disease of the left hip. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL Appellant and spouse ATTORNEY FOR THE BOARD K. Curameng, Counsel INTRODUCTION The Veteran had active duty service from October 1970 to October 1973 with subsequent service in the reserves. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2007 rating decision by a Regional Office (RO) of the Department of Veterans Affairs (VA). The Veteran appeared at an October 2011 Board hearing in Washington D.C. A transcript is of record. The issue of entitlement to service connection for a low back disability 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. FINDINGS OF FACT 1. The Veteran's service-connected degenerative joint disease of the right shoulder is not manifested by limitation of motion to 25 degrees from the side. 2. The Veteran's service-connected degenerative joint disease of the left hip is not manifested by limitation of abduction of thigh with motion lost beyond 10 degrees. CONCLUSIONS OF LAW 1. The criteria for entitlement to a disability evaluation in excess of 20 percent for the Veteran's service-connected degenerative joint disease of the right shoulder have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.7, 4.71a and Code 5201 (2013). 2. The criteria for entitlement to a disability evaluation in excess of 10 percent for the Veteran's service-connected degenerative joint disease of the left hip have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.7, 4.71a and Code 5253 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Veterans Claims Assistance Act of 2000 (VCAA) As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), the United States Department of Veterans Affairs (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 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2013). Duty to Notify 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 requirements apply to all five elements of a service connection claim: 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 v. Nicholson, 19 Vet. App. 473 (2006). The notice must be provided to a claimant before the initial unfavorable adjudication by the RO. Pelegrini v. Principi, 18 Vet. App. 112 (2004). The notice requirements may be satisfied if any errors in the timing or content of such notice are not prejudicial to the claimant. Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006). The RO provided the appellant pre-adjudication notice by a letter dated in June 2006. The RO provided the appellant with additional notice in May 2008, subsequent to the initial adjudication. The notification substantially complied with the specificity requirements of Dingess v. Nicholson, 19 Vet. App. 473 (2006) identifying the five elements of a service connection claim; and Quartuccio v. Principi, 16 Vet. App. 183 (2002), identifying the evidence necessary to substantiate a claim and the relative duties of VA and the claimant to obtain evidence. While the May 2008 notice was not provided prior to the initial adjudication, the claimant has had the opportunity to submit additional argument and evidence, and to meaningfully participate in the adjudication process. The claim was subsequently readjudicated in an October 2008 statement of the case and August 2009 supplemental statement of the case, following the provision of notice in May 2008. The Veteran has received all essential notice, has had a meaningful opportunity to participate in the development of his claims, and is not prejudiced by any technical notice deficiency along the way. See Conway v. Principi, 353 F.3d 1369 (Fed. Cir. 2004). In any event, the Veteran has not demonstrated any prejudice with regard to the content of the notice. See Shinseki v. Sanders, 129 S.Ct. 1696 (2009) (Reversing prior case law imposing a presumption of prejudice on any notice deficiency, and clarifying that the burden of showing that an error is harmful, or prejudicial, normally falls upon the party attacking the agency's determination). See also Mayfield v. Nicholson, 444 F.3d 1328, 1333-34 (Fed. Cir. 2006). Duty to Assist VA has obtained service and private treatment records, reviewed VBMS and Virtual VA files, assisted the Veteran in obtaining Social Security Administration (SSA) evidence that ultimately was found unavailable (as noted in a January 2011 Formal Finding of Unavailability), afforded the Veteran VA examinations, and afforded the Veteran the opportunity to give testimony before the Board in Washington D.C. in October 2011. On a form received in April 2012, the Veteran marked the appropriate line to indicate that he had more information/evidence to submit and needed an additional 30 days. To date, no additional information/evidence has been received. All known and available records relevant to the issues on appeal have been obtained and associated with the Veteran's claims file; and the Veteran and his representative have not contended otherwise. VA has substantially complied with the notice and assistance requirements and the Veteran is not prejudiced by a decision on the claims at this time. Increased Ratings The present appeal involves the Veteran's claim that the severity of his service-connected degenerative joint disease of the right shoulder and left hip warrant higher disability ratings. Disability evaluations are determined by the application of the Schedule For Rating Disabilities, which assigns ratings based on the average impairment of earning capacity resulting from a service-connected disability. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. 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. 38 C.F.R. § 4.7. Where, as in the instant case, the appeal arises from the original assignment of a disability evaluation following an award of service connection, the severity of the disability at issue is to be considered during the entire period from the initial assignment of the disability rating to the present time. See Fenderson v. West, 12 Vet. App. 119 (1999). At the time of an initial rating, separate ratings can be assigned for separate periods of time based on the facts found, a practice known as "staged" ratings. Id. at 126. In the present case, it should also be noted that when evaluating disabilities of the musculoskeletal system, 38 C.F.R. § 4.40 allows for consideration of functional loss due to pain and weakness causing additional disability beyond that reflected on range of motion measurements. DeLuca v. Brown, 8 Vet. App. 202 (1995). Further, 38 C.F.R. § 4.45 provides that consideration also be given to weakened movement, excess fatigability and incoordination. I. Right Shoulder The Veteran's service-connected degenerative joint disease of the right shoulder has been rated by the RO under the provisions of Diagnostic Code 5201. For rating purposes, the Board notes that a June 2007 VA examination report shows that the Veteran is left-hand dominant. Under Diagnostic Code 5201 for the minor arm, a rating of 20 percent is warranted where limitation of motion of the arm is at shoulder level or midway between side and shoulder level. A maximum rating of 30 percent is warranted for limitation of motion of arm to 25 degrees from side. 38 C.F.R. § 4.71a, Diagnostic Code 5201. Since the increased rating involves the shoulder, the Board notes that flexion and abduction are from 0 to 180 degrees; and external and internal rotation are from 0 to 90 degrees. 38 C.F.R. § 4.71, Plate I. An April 2006 SSA form filled out by a health care provider shows about one month of incapacity, monthly doctor's visits and physical therapy 2 to 3 times a week for 2 to 3 months. The Veteran's regimen of continuing treatment included prescription drugs, physical therapy and requirement of special equipment. A June 2007 VA examination report shows that the Veteran is left hand dominant. The examiner noted no dislocation or subluxation. At the time, he worked as a postal clerk and was placed on light duty due to his shoulder. He reported pain when lifting his hand to the keyboard. Upon physical examination, forward flexion was to 100 degrees both actively and passively with pain at 100 degrees. The examiner noted that there was no change with repetition. Extension was to 110 degrees with no change in repetition. Internal rotation was to 80 degrees actively and passively with pain at 80 degrees and no change with repetition. External rotation was to 70 degrees both actively and passively with pain at 70 degrees and no change with repetition. The examiner noted no edema, effusion, instability or weakness. He noted tenderness to palpation of the shoulder at the coracoid process. There was no redness or heat. He stated that there was abnormal movement of the shoulder and guarding with assessment. He noted positive drop arm test and positive pain with forced adduction. As for ankylosis, the examiner did not provide a response. The examiner diagnosed degenerative joint disease of the right shoulder, status-post arthroscopic debridement with signs of early adhesive capsulitis. He noted that pain is the primary limiting factor. A May 2008 private treatment record from Southeastern Orthopedics Sports Medicine & Shoulder Center shows 0 degrees of external rotation and elevation to 80 degrees. Dr. K.S. noted that the Veteran lacked about 60 percent of his terminal motion arc in all directions. When the Veteran was afforded a VA examination in January 2012, the examiner noted no flare-ups that impacted the function of the shoulder and/or arm. Right shoulder flexion was to 90 degrees with evidence of painful motion. Right shoulder abduction was to 45 degrees with evidence of painful motion at 45 degrees. The examiner noted that the Veteran was able to perform repetitive-use testing with three repetitions. Right shoulder post-test range of motion shows flexion to 90 degrees and abduction ending at 45 degrees. The examiner noted no limitation of range of motion of the shoulder or arm following repetitive testing, but did note functional loss and/or functional impairment of the shoulder and arm. The contributing factors were less movement than normal and pain on movement. The Veteran had localized tenderness or pain on palpation of the joints/soft tissue/biceps tendon. Guarding was noted. Muscle strength for shoulder abduction and forward flexion was 5/5 (normal strength). The examiner noted no ankylosis of the shoulder joint. Crank apprehension and relocation (which may indicate shoulder instability) was negative. The examiner noted no other acromioclavicular (AC) joint condition and impairment of the clinical or scapula. He did not check the appropriate boxes to indicate malunion of the clavicle/scapula, nonunion of clavicle/scapula with/without loose movement, and dislocation. Cross body adduction test which may indicate acromioclavicular joint pathology was negative. The examiner noted that residuals of the 2008 surgery showed immediate degrees of residual weakness, pain and/or limitation of motion. The examiner noted that imaging studies showed documentation of degenerative/traumatic arthritis. The examiner noted a January 2012 diagnostic test showing right total shoulder arthroplasty. The examiner noted that the Veteran's shoulder impacted his ability to work in that the Veteran could not lift/push/pull more than 20 pounds and he could not reach above his head with his right arm. Overall, a maximum rating of 30 percent is not warranted as the Veteran's service-connected degenerative joint disease of the right shoulder is not manifested by limitation of motion to 25 degrees from the side. Here, range of motion showed flexion no less than 90 degrees, abduction no less than 45 degrees, external rotation to no less than 70 degrees and internal rotation no less than 80 degrees. Range of motion was more than 25 degrees. Turning to other applicable diagnostic codes, the Board notes that Diagnostic Code 5200 is not for application as there is no medical diagnosis of ankylosis and the most current VA examination shows that the examiner marked the appropriate box to indicate that there was no ankylosis of the shoulder joint. As noted above, the Veteran's shoulder had range of motion. There was also no competent evidence of impairment of the humerus to warrant a higher rating under Diagnostic Code 5202. Specifically, there was no evidence of fibrous union of the humerus, nonunion of the humerus and loss of head of humerus to warrant higher ratings of 40, 50 and 70 percent, respectively. Additionally, Diagnostic Code 5203 is not for application since the highest available rating is 20 percent and the most current VA examination report shows no other impairment of the clavicle or scapula. The January 2012 examiner did not mark the appropriate boxes to indicate dislocation, nonunion of the clavicle/scapula with loose movement, nonunion of the clavicle or scapula without lose movement and malunion of the clavicle or scapula. The Board acknowledges that the Veteran is competent to report chronic shoulder pain and thus, recognizes the application of 38 C.F.R. §§ 4.40 and 4.45, and DeLuca. Nevertheless, a higher compensation is not warranted under these provisions because there is no persuasive evidence of additional functional loss due to pain, weakness, fatigue, or incoordination which would limit motion to such a degree so as to warrant a rating of 30 percent. In conclusion, the preponderance of the evidence is against the claim for evaluation in excess of 20 percent for degenerative joint disease of the right shoulder. Should the disability increase in severity in the future, the Veteran may always file a new claim for an increased rating. II. Left Hip The Veteran's service-connected degenerative joint disease of the left hip has been rated by the RO under the provisions of Diagnostic Code 5253. Under this regulatory provision, a maximum rating of 20 is warranted where there is limitation of abduction of the thigh with motion lost beyond 10 degrees. 38 C.F.R. § 4.71a, Diagnostic Code 5253. Since the increased rating involves the hip, the Board notes that hip flexion is from 0 to 125 degrees; and hip abduction is from 0 to 45 degrees. 38 C.F.R. § 4.71, Plate II. A June 2007 VA examination shows complaints of left hip pain with no radiation, weakness, stiffness, swelling, heat, redness, instability, giving way, locking, fatigability or decrease in endurance. The Veteran took Celebrex 200 mg daily with plus-minus efficacy and no adverse reaction. He utilized a cane for ambulation and no other adaptive devices. The examiner noted no dislocation or subluxation. It was noted that the Veteran had no limitation in his job due to his left hip. Upon physical examination, flexion was to 125 degrees actively and passively without pain and no change with repetition. Abduction was to 45 degrees actively and passively without pain and no change in repetition. Internal rotation was to 40 degrees actively and passively without pain and no change with repetition. External rotation was to 55 degrees actively and passively without pain and no change with repetition. Extension was to 25 degrees, but the examiner noted that this was symmetrical compared to the right hip and was therefore normal. He noted no change passively, no mention of pain, and no change with repetition. The examiner found no edema, effusion, instability or weakness. There was no guarding with assessment of the hip. The examiner noted that the Veteran walked with a limp. The Veteran was able to stand without difficulty and walked normally. As for ankylosis, the examiner did not provide comment. The examiner diagnosed degenerative joint disease of the left hip. Pain was the primary limiting factor. A June 2007 VA examination radiology report shows the hip was negative and unremarkable for age. A May 2008 private treatment record from Dr. C.W. of Boylan Medical Associates shows increased internal range of motion of both hips. The impression was hip osteoarthritis. When the Veteran was afforded a VA examination in January 2012, the Veteran's range of motion showed left hip flexion was to 90 degrees with no objective evidence of painful motion. Left hip extension ended at 0 degrees with no objective evidence of painful motion. There was no abduction lost beyond 10 degrees. The examiner noted that adduction was not limited such that the Veteran cannot cross legs, and that rotation was not limited such that the Veteran cannot toe-out more than 15 degrees. The examiner noted that the Veteran was able to perform repetitive-use testing with three repetitions. Left hip post-test ROM where post-test flexion ended at 90 degrees. Post-test extension ended at 0 degrees. Post-test abduction was not lost beyond 10 degrees. Post-test adduction was not limited such that the Veteran cannot cross legs. Post-test rotation was not limited such that the Veteran could not toe-out more than 15 degrees. The examiner noted no limitation in range of motion of the hip and thigh following repetitive-use testing. The examiner noted functional loss and/or functional impairment of the hip and thigh due to less movement than normal. Hip flexion, abduction and extension was 5/5 (normal strength). The examiner noted no analysis of the hip joint. The examiner noted no malunion or nonunion of femur, flail hip joint or leg length discrepancy. The Veteran regularly used a cane and no other assistive devices. The examiner noted no degenerative or traumatic arthritis shown on imaging studies of the hip. It was noted that a January 2012 imaging showed femoral acetabular impingement syndrome. Overall, a rating in excess of 20 percent is not warranted. A higher rating under Diagnostic Code 5253 is not warranted. Here, the highest available rating is 20 percent. Turning to other applicable diagnostic codes, the Board notes that the most current VA examination shows no ankylosis. The Veteran's hip exhibited range of motion. Thus, a higher rating under Diagnostic Code 5250 is not for application. Additionally, the highest available rating under Diagnostic Code 5251 is 10 percent; and thus this Diagnostic Code is not for application. Diagnostic Code 5252 is also not for application as the most recent examination shows that there was no limitation in range of motion of the hip and thigh following repetitive-use testing. Diagnostic Codes 5254 and 5255 are also not for application as the January 2012 VA examiner noted no flail hip joint and no impairment of the femur. He specifically noted no malunion or nonunion with femur. The Board acknowledges that the Veteran is competent to report chronic left hip pain and thus, recognizes the application of 38 C.F.R. §§ 4.40 and 4.45, and DeLuca. Nevertheless, a higher compensation is not warranted under these provisions because there is no persuasive evidence of additional functional loss due to pain, weakness, fatigue, or incoordination which would limit motion to such a degree so as to warrant a rating in excess of 10 percent. The preponderance of the evidence is against the claim for evaluation in excess of 10 percent degenerative joint disease of the left hip. Should the disability increase in severity in the future, the Veteran may always file a new claim for an increased rating. Extraschedular Consideration In general, the schedular disability evaluations 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. The application of such schedular criteria was discussed in great detail above. To accord justice in an exceptional case where the schedular standards are found to be inadequate, the RO is authorized to refer the case to the Chief Benefits Director or the Director, Compensation and Pension Service for assignment of an extraschedular evaluation commensurate with the average earning capacity impairment. 38 C.F.R. § 3.321(b)(1)). The criterion for such an award is a finding that the case presents an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical application of regular schedular standards. Id. The Court has held that the Board is precluded by regulation from assigning an extraschedular rating under 38 C.F.R. § 3.321(b)(1) in the first instance; however, the Board is not precluded from raising this question, and in fact is obligated to liberally read all documents and oral testimony of record and identify all potential theories of entitlement to a benefit under the law and regulations. Floyd v. Brown, 9 Vet. App. 88 (1996). The Court further held that the Board must address referral under 38 C.F.R. §3.321(b)(1) only where circumstances are presented which the Director of VA's Compensation and Pension Service might consider exceptional or unusual. Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). In Thun v. Peake, 22 Vet. App. 111 (2008), the Court clarified the analytical steps necessary to determine whether referral for extraschedular consideration is warranted. Either the RO or the Board must first determine whether the schedular rating criteria reasonably describe the veteran's disability level and symptomatology. Id. at 115. If the schedular rating criteria do reasonably describe the veteran's disability level and symptomatology, the assigned schedular evaluation is adequate, referral for extraschedular consideration is not required, and the analysis stops. If the RO or the Board finds that the schedular evaluation does not contemplate the veteran's level of disability and symptomatology, then either the RO or the Board must determine whether the veteran's exceptional disability picture includes other related factors such as marked interference with employment and frequent periods of hospitalization. Id. at 116. If this is the case, then the RO or the Board must refer the matter to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for the third step of the analysis, determining whether justice requires assignment of an extraschedular rating. Id. In this case, the symptoms described by the Veteran fit squarely with the criteria found in the relevant Diagnostic Codes for the disability at issue. In short, the rating criteria contemplate not only his symptoms but the severity of his disability. For these reasons, referral for extraschedular consideration is not warranted. ORDER Entitlement to an initial rating in excess of 20 percent for degenerative joint disease of the right shoulder is denied. Entitlement to an initial rating in excess of 10 percent for degenerative joint disease of the left hip is denied. REMAND In the January 2012 remand, the Board found that while there is a lack of specific documentation of back injury in service, the in-service incurrence element had been satisfied with the Veteran's numerous parachute jumps in service, receipt of a parachute badge, military personnel records reflecting service as a parachute packer and airdrop specialist, and past rating decisions in which the RO essentially conceded parachute-related injuries in service. The Board remanded the claim for a VA examination to determine the etiology of his current back disability and noted that in-service incurrence of parachute-related injuries had been conceded. In the case of Stegall v. West, 11 Vet. App. 268 (1998), the United States Court of Appeals for Veterans Claims (Court) held that a remand by the Board imposes upon the Secretary of the VA a concomitant duty to ensure compliance with the terms of the remand. It was further held that where the remand orders of the Board are not complied with, the Board errs in failing to insure compliance. A review of the January 2012 VA examination report shows a negative nexus opinion based on normal findings on in-service examinations. It appears to the Board that the medical examiner impermissibly ignored the appellant's lay assertions, and thus the medical opinion is inadequate. See Dalton v. Nicholson, 21 Vet. App. 23 (2006). The Board notes that since the examination, the Veteran submitted another opinion (dated in April 2012) from Dr. M.M. of Raleigh Orthopaedic Clinic who rendered a positive nexus opinion, which should be addressed by the VA examiner. In light of the remand reasons above, the Board notes outstanding treatment record. In testimony provided at the October 2011 hearing, the Veteran reported treatment for his back by Dr. McMichaels and Dr. Anderson. Treatment reports authored by the aforementioned doctors are not of record. The Veteran also testified to being treated by Dr. Lastene and clarified in a release signed in January 2008, the Veteran noted treatment by Dr. Lastene from October 2007 to February 2008. A November 2007 treatment report is of record, but treatment records prior to and from this date remain outstanding. In addition, in an April 2012 letter, Dr. M.M. stated that the Veteran had been treated by many physicians at Raleigh Orthopaedic Clinic and the records reflecting such treatment are available upon request. Associated with the claims file are records dated from 1996 to 1999, 2003, 2005 and 2008. It is unclear to the Board whether these are all the records from Raleigh Orthopaedic Clinic. Outstanding treatment records should be obtained before the Board can proceed with appellate review. Although the Board regrets further delay, the case must be returned to the RO for additional development. Accordingly, the case is REMANDED for the following action: 1. Appropriate action should be taken to obtain treatment records from Drs. McMichael and Anderson (mentioned at the October 2011 hearing); complete treatment records dated prior to and after November 2007 from Dr. Lastene (as noted in the release signed in January 2008); and all outstanding records from Raleigh Orthopaedic Clinic. 2. After completion of the above, the claims file should be forwarded to the January 2012 VA examiner for review and an addendum opinion addressing the question posed below. If the January 2012 VA examiner is no longer available, the Veteran should also be afforded an appropriate VA examination to determine the nature, extent and etiology of any current low back disability. It is imperative that the claims file be made available to the examiner for review in connection with the examination. Any medically indicated special tests should be accomplished. After reviewing the claims file and examining the Veteran, the examiner should respond to the following: Is it at least as likely as not (a 50% or higher degree of probability) that the current low back disability is causally related to service? The examiner should offer a rationale for any opinion with reference to pertinent evidence (including the medical opinions from Dr. M.M. of the Raleigh Orthopaedic Clinic) and medical principles. In addition, the examiner should note that the VA has already recognized the Veteran's duties as a paratrooper and conceded the in-service incurrence of parachute-related disabilities. Thus, the examiner may not ignore the Veteran's lay assertions but should consider whether statements present sufficient evidence of the etiology of the disability. 3. After completion of the above and any additional development which the RO may deem necessary, the RO should then review the expanded record and readjudicate the issue entitlement to service connection for a low back disability. The RO should issue an appropriate supplemental statement of the case, and give the Veteran and his representative the opportunity to respond. The case should then be returned to the Board, if in order, for further 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). ______________________________________________ MICHAEL MARTIN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs