Citation Nr: 1337718	
Decision Date: 11/19/13    Archive Date: 12/06/13

DOCKET NO.  09-35 160	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs (VA) Regional Office (RO)
in Philadelphia, Pennsylvania


THE ISSUES

1.  Entitlement to service connection for bilateral hearing loss.

2.  Entitlement to service connection for tinnitus.

3.  Entitlement to a rating in excess of 20 percent for the service-connected status post Bankhart repair of recurrent dislocation of the left shoulder with early osteoarthritis of the acromioclavicular (AC) joint.  


REPRESENTATION

Appellant represented by:	Disabled American Veterans


ATTORNEY FOR THE BOARD

G. E. Wilkerson, Counsel


INTRODUCTION

The Veteran served on active duty from July 1986 to June 1990. 

These matters come before the Board of Veterans' Appeals (Board) on appeal from a December 2008 rating decision of the RO.   

A review of the Veteran's Virtual VA and VBMS electronic claims file reveals additional VA outpatient treatment records dated through December 2012.

The Board acknowledges that a claim for a total rating based on individual unemployability (TDIU) due to service connected disability is part of an increased rating claim when such claim is expressly raised by the Veteran or reasonably raised by the record. See Rice v. Shinseki, 22 Vet. App. 447 (2009).  

In this case, although the Veteran has indicated that he has lost employment due to his service-connected disabilities-and namely, his left shoulder disability-a claim for a TDIU rating has been separately adjudicated by the RO in an unappealed rating decision in July 2012. Consequently, no further consideration of the claim for a TDIU rating under Rice is warranted by the Board at this time


FINDINGS OF FACT

1.  The Veteran currently does not have a bilateral hearing loss disability for VA compensation purposes.

2.  The currently demonstrated tinnitus is shown as likely as not to be due to the Veteran's documented exposure to hazardous noise levels that began incident to his duties as a motor vehicle operator during service.

3.  The Veteran's service-connected status post Bankhart repair of recurrent dislocation of the left shoulder with early osteoarthritis of the AC joint has been manifested by limitation of motion of the left arm that more closely approximates limitation to less than 25 degrees from the side; however, neither ankylosis of the scapulohumeral articulation nor fibrous union of the humerus have been shown.


CONCLUSIONS OF LAW

1.  The claim of service connection for a bilateral hearing loss disability must be denied by operation of law.  38 U.S.C.A. §§ 1101, 1131, 1137, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.385 (2012).

2.  In resolving all reasonable doubt in favor of the Veteran, his disability manifested by tinnitus is due to disease or injury that was incurred in active service. 38 U.S.C.A.§§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303.

3.  In resolving all reasonable doubt in favor of the Veteran, the criteria for the assignment of a 30 percent rating, but no higher, for the service-connected status post Bankhart repair of recurrent dislocation of the left shoulder with early osteoarthritis of the AC joint, are 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 including Diagnostic Codes 5201, 5202 (2013).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I.  The Veterans Claims Assistance Act of 2000

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 VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013).

To the extent favorable action has been taken as to the claim of service connection for tinnitus, the Board finds that a full discussion of VCAA is not required as to that matter.

As regards the claim of service connection for bilateral hearing loss and the claim for increased rating for the service-connected left shoulder disability, under 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 June 2008 and November 2008 pre-rating letters, the RO notified the Veteran of the evidence needed to substantiate the claims for service connection and for increase.  

These letters 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 he would provide.  Quartuccio v. Principi, 16 Vet. App. 183, 186-87 (2002); Charles v. Principi, 16 Vet. App. 370 (2002).

The Veteran has substantiated his status as a veteran.  He was notified of all other elements of Dingess in the 2008 letters.  

The Board further finds that VA has complied with the duty to assist by aiding the Veteran in obtaining evidence.  Here, VA obtained the Veteran's service treatment records and all of the identified post-service VA treatment records.  

The Veteran was also afforded a VA examination to determine the nature of the claimed hearing loss, as well as VA examinations in July 2008 and February 2012 and December 2012 to evaluate the severity of the service-connected left shoulder disability.  

As these examinations were based on review of the Veteran's symptoms and complaints and discussed his left shoulder disability in relation to the pertinent rating criteria, they are adequate for adjudication purposes.

For these reasons, the Board finds that VA has complied with the VCAA's notification and assistance requirements.  


II.  Service Connection for Bilateral Hearing Loss and Tinnitus

Laws and Regulations

Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service.  38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a).  

Establishing service connection generally requires competent evidence of three things: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the claimed in-service disease or injury and the current disability.  Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a).

Under 38 C.F.R. § 3.303(b), an alternative method of establishing the second and third elements is through a demonstration of continuity of symptomatology. However, 38 C.F.R. § 3.303(b), applies to only those chronic diseases listed in 38 C.F.R. § 3.309(a).  See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013).  With respect to the current appeal, this list includes other organic disease of the nervous system, to include hearing loss.  See 38 C.F.R. § 3.309(a).  

Service connection may also be granted for a disease first diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service.  38 C.F.R. § 3.303(d).  

With disability compensation claims, VA adjudicators are directed to assess both medical and lay evidence.  In certain circumstances, lay evidence may be sufficient to establish a medical diagnosis or nexus.  See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009).  

In addressing lay evidence and determining its probative value, if any, attention is directed to both competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted").  See Layno v. Brown, 6 Vet. App. 465, 469 (1994).

In terms of competency, lay evidence has been found to be competent with regard to a disease with "unique and readily identifiable features" that is "capable of lay observation."  See Barr v. Nicholson, 21 Vet. App. 303, 308-09 (2007) (concerning varicose veins); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (a dislocated shoulder); Charles v. Principi, 16 Vet. App. 370, 374 (2002) (tinnitus); Falzone v. Brown, 8 Vet. App. 398, 405 (1995) (flatfoot).  

In weighing credibility, VA may consider interest, bias, inconsistent statements, bad character, internal inconsistency, facial plausibility, self-interest, consistency with other evidence of record, malingering, desire for monetary gain, and demeanor of the witness.  See generally Caluza v. Brown, 7 Vet. App. 498 (1995).  

The Board may weigh the absence of contemporaneous medical evidence against the lay evidence in determining credibility, but the Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence.  See Buchanan v. Nicholson, 451 F.3d 1331, 1335 (Fed. Cir. 2006); but see Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000) (evidence of a prolonged period without medical complaint after service can be considered along with other factors in the analysis of a service connection claim).  

Once the evidence has been assembled, it is the Board's responsibility to evaluate the evidence.  38 U.S.C.A. § 7104(a).  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. § 7105; 38 C.F.R. §§ 3.102, 4.3.  


Analysis

The Veteran claims service connection for a bilateral hearing loss and tinnitus, as he believes that he developed these conditions due to his in-service noise exposure.  He reported being attached to an artillery unit for three years and firing howitzers and machine guns.  He also reported being attached to an armored assault battalion as an explosive driver.  Moreover, the Veteran indicated that he frequently did not wear hearing protection.  Finally, he reports having experienced constant tinnitus since its onset in service. 
 
In addition to general principles and regulations concerning service connection, there are also specific requirements regarding what constitutes a hearing loss disability under VA law.  The threshold for normal hearing is from 0 to 20 
decibels at the tested frequencies of 500, 1000, 2000, 3000, and 4000 Hertz, and a higher threshold level indicates some degree of hearing impairment, but not necessarily a hearing loss disability under 38 C.F.R. § 3.385. Hensley v. Brown, 
5 Vet. App. 155, 157 (1993) (citing as authority Current Medical Diagnosis and Treatment, 110-11 (Stephen A. Schroeder et al. eds. (1988)).

For the purposes of applying the laws administered by VA, impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent.  38 C.F.R. § 3.385.

The threshold question that must be addressed in this case (as with any claim seeking service connection) is whether the Veteran has a disability within the meaning of the law, for which service connection is sought.  See 38 C.F.R. 
§ 3.385 (determines what constitutes a hearing loss disability within VA law).

The DD Form 214 confirms the Veteran's military occupational specialty is consistent with the Veteran's assertions of having been routinely exposed to hazardous noise.  Therefore, the Board concedes that the Veteran was exposed to hazardous noise in service.  See 38 U.S.C.A. § 1154(a).  

The Veteran's April 1985 enlistment examination notes audiological evaluation pure tone thresholds, in decibels, as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
10
0
5
5
0
LEFT
10
5
20
5
0

On July 1986 audiological evaluation, pure tone thresholds, in decibels, were as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
10
5
0
5
0
LEFT
10
5
5
10
0


On February 1988 audiological evaluation, pure tone thresholds, in decibels, were as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
5
-5
10
0
5
LEFT
10
0
10
5
5

On January 1989 audiological evaluation, pure tone thresholds, in decibels, were as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
5
-5
5
0
0
LEFT
5
0
10
5
5

The Veteran's May 1990 separation examination does not reflect any complaint or finding with respect to hearing loss or tinnitus.  On audiological evaluation, pure tone thresholds, in decibels, were as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
10
0
5
5
0
LEFT
10
5
20
5
0

Following the Veteran's discharge from service, a February 2007 VA outpatient treatment report reflects that the Veteran complained of having tinnitus and decreased hearing in both ears.  He was referred to the audiology clinic.  

A March 2007 VA audiology consultation report reflects that the Veteran presented with complaints of a soft but constant bilateral tinnitus since his military service.  He denied having chronic ear disease as an adult, as well as vertigo, gait, or balance disorders.  Audiometric test results revealed normal hearing sensitivity, bilaterally, and excellent speech recognition.  Middle ear function and acoustic reflects were also normal.  

On VA examination in November 2008, the examiner noted that he reviewed the Veteran's claims file including his service treatment records.  He noted that all puretone audiometric data in service was well within normal limits and that the Veteran did not complain of tinnitus at the time of those evaluations.  

The Veteran reported experiencing a slight degree of hearing loss, more predominantly a constant bilateral tinnitus.  He indicated that the onset of tinnitus was while serving in the Marines as a motor vehicle operator when he delivered arms and ammunitions to gunlines during training sessions.  He indicated that the diesel engines of the vehicles were quite loud, as was the noise emanating from the training lines.  

The Veteran also reported that he was required to be a road guard stationed near howitzers and assisted a gun crew at times.  Finally, the Veteran reported that his vehicle was mounted in a 50-caliber machine gun that was used during training sessions.  He noted that he first started experiencing tinnitus after his first field operation.  He denied having a history of noise exposure prior to or following service, either occupationally or recreationally.  He denied having a history of ear disease, vertigo, traumatic injury or familial hearing loss.

On audiological evaluation, pure tone thresholds, in decibels, were as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
10
10
10
10
15
LEFT
10
10
10
10
10

Speech audiometry revealed speech recognition ability of 100 percent in the right ear and of 98 percent in the left ear.

The examiner indicated that puretone audiometric data, both air conduction and bone conduction, and speech reception thresholds were all indicated of normal hearing sensitivity.   He notes that, given that the hearing sensitivity was well within normal limits, the claim for hearing loss was unsubstantiated.  

As regards the claimed tinnitus, the examiner determined that this disability was less likely as not caused by or a result of military noise exposure, given that the claims file did not indicate any evidence of the Veteran reporting such during or following his military service.  

In a January 2009 statement, the Veteran's friends, T. T., indicated that he served with the Veteran as an ammunition driver.  He indicated that they often were not provided ear protection and that both he and the Veteran experienced constant ear ringing during service, but were told that these symptoms were just "part of the job" in artillery.  He also noted that the Veteran had dealt with tinnitus since discharge from service.  

Continued VA outpatient treatment reports note a history of tinnitus and hearing impairment.

In sum, on this record, the Board finds that the Veteran currently is not shown to have a hearing loss disability for VA compensation purposes. 
 
The service treatment records do not show that the Veteran's hearing acuity did not ever reach the level of disability under 38 C.F.R. § 3.385.   

The Board acknowledges that, even "when audiometric test results at a Veteran's separation from service do not meet the regulatory requirements for establishing a 'disability' at that time, he or she may nevertheless establish service connection for a current hearing disability by submitting evidence that the current disability is causally related to service." Hensley, 5 Vet. App. at 160 (1993).  

However, on this record, the post-service evidence of hearing acuity does not amount to a disability under VA standards, as indicated on the VA examination, as the auditory thresholds were not 40 decibels or greater at any of the frequencies, the auditory thresholds at minimum of three frequencies were not 26 decibels or greater, and the Maryland CNC speech recognition scores were not less than 94 percent.  See 38 C.F.R. § 3.385.  

Moreover, neither the Veteran nor his representative has presented or identified existing audiometric testing results that meet the requirements of that regulation for a hearing loss disability.  Instead, the record contains audiometric findings over the years that show his bilateral hearing has been within normal limits as per VA regulations.  

As such, the Veteran is not found to have a bilateral hearing loss disability for compensation purposes under VA standards.  The objective test results are controlling in this case.  In the absence of evidence of a current disability, there can be no grant of service connection under the law.  See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992).

For this reason, the Board finds that the claim for service connection for a claimed bilateral hearing loss disability must be denied by law. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990).  

As regards the claimed tinnitus, the Board finds the November 2008 VA examiner's opinion concerning the etiology of tinnitus to be of little probative value.  The examiner relied, in part, on the absence of service treatment records supporting the claim, but did not consider the competent reports of the Veteran and the lay evidence as to the onset of symptoms.  

In Dalton v. Nicholson, 21 Vet. App. 23 (2007), it was determined that an examination was inadequate where the examiner did not comment on the Veteran's report of in-service injury and, instead, relied on the absence of evidence in the Veteran's service treatment records to provide a negative opinion. 

Additionally, the examiner did not explain why the Veteran's current tinnitus was unrelated to his accepted in-service noise exposure.  See Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) (holding that a medical opinion "must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions."); see also Nieves- Rodriguez v. Peake, 22 Vet. App. 295, 302 (2009).  It is unclear from the report why the Veteran's tinnitus would be more likely related to his pre- or post-service noise exposure, which the Veteran has indicated was minimal.  

Based on a careful review of the record, the Board finds the evidence to be in relative equipoise in showing that the current tinnitus as likely as not had its clinical onset following the exposure to a pattern of excessive and harmful noise levels beginning with the Veteran's duties during service.

The Board finds the Veteran's lay statements regarding onset of tinnitus to be credible evidence consistent with the lay statement of his friend T. T., and of greater probative value than the opinion of the VA examiner.  See Buchanan, 452 F.3d at 1335; see also Washington v. Nicholson, 19 Vet. App. 362, 367-68 (2005) (it is the Board's responsibility, as fact-finder, to determine the credibility and weight to be given to the evidence).

Therefore, after resolving all reasonable doubt in the Veteran's favor, service connection is warranted.  The Veteran has a current diagnosis of tinnitus and the competent, credible and persuasive evidence places the onset of this condition in service.  See Davidson, 581 F.3d at 1316; Jandreau, 492 F.3d at 1376-77.   
	

III.  Increased Rating for Left Shoulder Disability

Law and Regulations

Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule) and are intended to represent the average impairment of earning capacity resulting from disability.  38 U.S.C.A. § 1155; 38 C.F.R. § 4.1.  Disabilities must be reviewed in relation to their history.  38 C.F.R. § 4.1.  

VA should interpret reports of examination in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability.  38 C.F.R. § 4.2.  Any reasonable doubt regarding the degree of disability should be resolved in favor of the claimant.  38 C.F.R. § 4.3.  

Where there is a question as to which of two evaluations apply, the higher of the two should be assigned where the disability picture more nearly approximates the criteria for the next higher rating.  38 C.F.R. § 4.7.  

When considering functional impairment caused by a service-connected disorder, evaluations should be based on an assessment of the lack of usefulness, and adjudicators should consider the effects of the disabilities upon the person's ordinary activity.  38 C.F.R. § 4.10.  See also Schafrath v. Derwinski, 1 Vet. App. 589 (1991).  

In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of a veteran's disability.  Schafrath, 1 Vet. App. at 594.  

In general, the degree of impairment resulting from a disability is a factual determination and generally the Board's primary focus in such cases is upon the current severity of the disability.  Francisco v. Brown, 7 Vet. App. 55, 57-58 (1994); Solomon v. Brown, 6 Vet. App. 396, 402 (1994).  

The Board also acknowledges that a claimant may experience multiple distinct degrees of disability that might result in different levels of compensation at any stage since the effective date of service connection.  See Fenderson v. West, 12 Vet. App 119 (1999); see also Hart v. Mansfield, 21 Vet. App. 505 (2007).  

The analysis is undertaken with consideration of the possibility that different ratings may be warranted for different time periods.  

Ratings shall be based as far as practicable, upon the average impairments of earning capacity with the additional proviso that the Secretary shall from time to time readjust this schedule of ratings in accordance with experience.  

To accord justice, therefore, to the exceptional case where the schedular evaluations are found to be inadequate, the Under Secretary for Benefits or the Director, Compensation and Pension Service, upon field station submission, is authorized to approve on the basis of the criteria set forth in this paragraph an extraschedular evaluation commensurate with the average earning capacity impairment due exclusively to the service-connected disability or disabilities.  

The governing norm in these exceptional cases is: A finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical the application of the regular schedular standards.  38 C.F.R. § 3.321(b)(1).  


Analysis

The Veteran seeks a higher rating for the service-connected left shoulder disability, as he believes that it has increased in severity.

Historically, the RO granted service connection for status post Bankhart repair of recurrent dislocation of the left shoulder with early osteoarthritis of the AC joint in an October 1990 rating decision.  A 20 percent rating was assigned, effective on June 9, 1990.  

The Veteran filed the instant claim for increase in April 2008.  He appeals from a February 2008 rating decision continuing the 20 percent rating for this disability.

The Board notes that in a September 2009 rating decision, the RO awarded a temporary total 100 percent rating for the service-connected left shoulder disability based on surgical treatment necessitating convalescence for the period from August 24, 2009 to October 31, 2009.  Thus, the Board's decision will address only the periods prior to and after this period.  

The Veteran's status post Bankhart repair of recurrent dislocation of the left shoulder with early osteoarthritis of the AC joint is rated as 20 percent disabling under 38 C.F.R. § 4.71a, Diagnostic Code 5202, other impairment of the humerus.  

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.

Under Diagnostic Code 5202, as concerning the minor upper extremity, flail shoulder warrants a 70 percent evaluation.  False flail joint warrants a 50 percent evaluation.  Fibrous union of the humerus warrants a 40 percent evaluation.  Malunion of the humerus with moderate deformity is rated as 20 percent disabling; malunion of the humerus with marked deformity is also rated as 20 percent disabling for the minor shoulder.  

A 20 percent rating is also warranted for recurrent dislocations of the humerus at the scapulohumeral joint, with infrequent episodes, and guarding of movement only at the shoulder level or for recurrent dislocations of the humerus at the scapulohumeral joint, with frequent episodes and guarding of all arm movements.  38 C.F.R. § 4.71a, Diagnostic Code 5202.

Also pertinent is Diagnostic Code 5201, limitation of motion of the arm.  Under this code, a 20 percent disability evaluation is contemplated for limitation of motion of the arm at shoulder level or when the minor arm is limited to midway between side and shoulder level.  A 30 percent disability evaluation is warranted when the minor arm is limited to 25 degrees from the side.

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.

The Board notes that, when evaluating musculoskeletal disabilities, VA may, in addition to applying scheduler criteria, consider granting a higher rating in cases in which the claimant experiences additional functional loss due to pain, weakness, excess fatigability, or incoordination, to include with repeated use or during flare-ups, and those factors are not contemplated in the relevant rating criteria.  See 38 C.F.R. §§ 4.40, 4.45 (2010); DeLuca v. Brown, 8 Vet. App. 202, 204-7 (1995).  The provisions of 38 C.F.R. § 4.40 and 38 C.F.R. § 4.45 are to be considered in conjunction with the diagnostic codes predicated on limitation of motion.  See Johnson v. Brown, 9 Vet. App. 7 (1996).

On VA outpatient treatment in April 2008, the Veteran voiced complaints of left shoulder pain.  It was noted that the Veteran was last seen in the orthopedic clinic in March 2007.  He indicated that his prescribed medication, tramadol, was not controlling his pain.  Objectively, there was a slightly decrease in range of motion because of discomfort.  There was no significant tenderness.  An assessment of history of recurrent bilateral shoulder dislocation, status post Bankhart repair, was noted.  

On VA examination in July 2008, the Veteran reported having recurrent subluxation of the left shoulder.  He also reported having a tender scar.  He indicated that his left shoulder pain was aggravated by using his arm overhead or lifting anything.  He felt that his shoulder was swollen at times.  He denied locking, heat, or redness.  He endorsed weakness, stiffness, and less range of motion with fatigue and lack of endurance.  He reported that his left shoulder gave out on him several times a month, usually associated with lifting or moving something.  He endorsed daily flare-ups.  It was noted that the Veteran no longer played sports and was unable to lift things due to his left shoulder disability.  He had worked as a shift manager without problems, but was no longer employed.

On inspection, the examiner observed that the left shoulder sloped more than the right.  There were a well-healed anterior scar and tenderness along the posterior shoulder just lateral or distal to the AC joint and tenderness over the biceps tendon.  There was no evidence of edema, effusion, instability, weakness, redness, abnormal movement or guarding of movement.  There was no crepitus, heat or point tenderness on palpation.  

The Veteran's range of motion was noted to be that of 160 degrees of flexion and 160 degrees of abduction, with pain at the endpoint of motion.  External rotation was to 80 degrees, and internal rotation was to 90 degrees.  While the examiner noted pain on motion, joint function was not additionally limited by pain, fatigue, weakness, incoordination, or lack of endurance following repetitive use.    The examiner estimated that there was no additional decrease in range of motion with flare-ups.  An x-ray study of the left shoulder was normal.  

The examiner diagnosed Bankhart repair of the left shoulder with recurrent pain and reports of instability.  He noted that the Veteran had mild functional impairment as the result of decreased range of motion and pain in the left shoulder.  There was no additional estimated decrease in range of motion with flare-ups that occurred daily with any overhead activity or lifting.  

A September 2008 VA outpatient treatment report reflected that the Veteran's left shoulder disability was stable and that he used tramadol and Tylenol for pain control.

A November 2008 left shoulder MRI report notes an impression of linear increased T2 signal within the substance of the left superior glenoid labrum, extending to the level of the left biceps tendon anchor, compatible with type II left superior labrum anterior and posterior lesion (SLAP II).  There was no definite left shoulder rotator cuff tear identified.  

A November 2008 orthopedic clinic report reflected that the Veteran still experienced left shoulder pain, although there had been no further dislocations.  It was noted that the Veteran had recently received a steroid injection in the area of the AC joint, which alleviated much of his pain.  Range of motion testing revealed flexion to 160 degrees, abduction to 150 degrees, internal rotation to 60 degrees, and external rotation to 60 degrees.  There was some pain during abduction, flexion, and external rotation.  An x-ray study of the left shoulder was normal.

On VA treatment in February 2009, the Veteran reported having pain in the shoulder without pain over the distal clavicle.  Active flexion was to 150 degrees; abduction to 130 degrees; internal rotation was to 70 degrees, and external rotation was to 40 degrees.  There was tenderness below and posterior to the AC joint.  He underwent steroid injection for pain.

A July 2009 x-ray study of the left shoulder revealed no bone or joint abnormalities.

The VA outpatient treatment records reflected that the Veteran underwent left shoulder arthroscopy, Bankhart, SLAP repair, distal clavicle resection and subacromial decompression in August 2009.

The treatment records following the surgery reflected that the Veteran participated in physical therapy to improve left shoulder range of motion and symptoms.  

An October 2009 x-ray report recorded an impression of surgical excision of the distal clavicle versus old injury.

In November 2009, the Veteran reported having left shoulder pain.  He rated the pain a level of 5 on a scale to 10, but indicated that the pain could increase to a level of 8 or 9 on activity.  On examination, flexion was performed to 75 degrees, and abduction was performed to 40 degrees.  External rotation was to 0 degrees.  He reported having discomfort upon the attainable end of available ranges.  

A December 2009 VA orthopedic surgery outpatient note reflected that the Veteran complained of pain and decreased range of motion following the surgery.  He indicated that he had gone to 3 physical therapy sessions, but these were stopped once he reached initial recommendations of 90 degrees flexion and 90 degrees of abduction.  He wanted to get clearance for continued rehabilitation for his left shoulder stiffness and pain.  The treating physician recommended at least 6 more weeks of physical therapy.

On VA examination in February 2010, the Veteran indicated that he limited the use of his left arm due to intense pain in his left shoulder.  He continued to treat his symptoms with pain medication and physical therapy.  He endorsed pain, stiffness, weakness, incoordination, and daily episodes of locking.  He denied giving way, instability, and decreased speed of joint motion.  He reported symptoms of inflammation including warmth, redness, swelling, and tenderness.  

The examiner indicated that there was evidence of guarding on all movements.  There were also findings of crepitus, edema, pain at rest, and abnormal movement.  There was objective evidence of pain with motion.  Flexion was performed to 90 degrees, and abduction was carried out to 70 degrees.  He could not perform internal or external rotation.  The examiner was unable to perform repetitive motion testing due to intense pain.  There was no joint ankylosis.

The examiner diagnosed mild changes of degenerative arthritis of the left shoulder.  It was noted that, while the Veteran was no longer employed, he was a full-time student.  

A March 2012 VA outpatient treatment report reflected that the Veteran complained of low back pain.  He indicated that the shoulder was getting better, but he still had limited range of motion.  Objectively, there were a decreased range of motion and a non-tender surgical scar.  It was indicated that the Veteran was referred to physical therapy to improve his range of motion.

On VA examination in June 2012, the examiner noted that there was a superficial non-linear scar associated with the 2009 surgery that was not painful and did not cause any functional impairment.  Left shoulder flexion was performed to 80 degrees, with pain at the endpoint of range of motion, while left shoulder abduction was to 75 degrees, also with pain at the endpoint of range of motion.  He was unable to perform repetitive range of motion testing.  

The examiner indicated that the Veteran suffered from functional impairment including less movement than normal, weakened movement, and pain on movement.  He had guarding of the shoulder.  

The examiner indicated that the Veteran did not have ankylosis of the glenohumeral articulation.  A Hawkins' impingement test and empty-can test, external rotation/infraspinatus strength test, and subscapularis test for rotator cuff tendinopathy or tear were all positive.  The examiner denied a history of recurrent dislocation of the glenohumeral joint.  

The examiner also noted that the Veteran did not have an AC joint condition or any other impairment of the clavicle or scapula.   

The examiner determined that the Veteran's left shoulder disability impacted his ability to work, in that it limited lifting and some physical activities.  She also indicated that sedentary activities were limited by shoulder fatigue and limited range of motion. 

A February 2012 VA psychiatric examination reflects that the Veteran stopped working in 2007 due to what he reported was a lack of accommodation for his shoulder surgeries.  He reported that he had not worked since 2007 until December 2011, when he got a job in a warehouse as a packer.  He reported that he was worried about his inability to function physically on this job.

On VA examination in December 2012, the Veteran reported that his left shoulder was "useless." He reported increased pain since the last examination.  He reported limited range of motion and weakness.  He denied experiencing flare-ups.  

Objectively, the range of motion testing revealed that flexion and abduction each were performed to 80 degrees with pain at 0 degrees.  After 3 repetitions of range of motion, flexion and abduction were still each to 80 degrees.  The examiner indicated that there was no additional limitation in range of motion following repetitive-use testing; however, he did experience functional loss to the extent that there was less movement than normal, weakened movement, and pain on movement.  There was localized tenderness or pain on palpation of the joints/soft tissue/biceps tendon of the left shoulder.  There was also guarding of the left shoulder.  The examiner denied ankylosis of the glenohumeral articulation of the shoulder joint.  Similar to the previous February 2012 examination results, testing for cuff conditions of the left shoulder yielded positive findings.  While there was scarring, the scar was superficial and not painful.

The examiner indicated that there was a history of mechanical symptoms, such as clicking or catching, as well as a history of infrequent episodes of recurrent dislocation with guarding of all arm movements.  A Crank apprehension and relocation test for instability was positive.   With respect to AC joint impairment, the examiner indicated that there was dislocation of the AC joint.  X-ray studies revealed degenerative arthritis.  

The examiner diagnosed status post Bankhart repair of recurrent dislocation of the left shoulder with early osteoarthritis of the AC joint and status post surgical arthroscopy and SLAP repair.  The examiner indicated that the Veteran's left shoulder disability impacted his ability to work, in that the Veteran could not perform any physical work involving the left shoulder.  

In this case, a review of the VA examination reports, as well as the treatment records, shows that the service-connected status post Bankhart repair of recurrent dislocation of the left shoulder with early osteoarthritis of the AC joint, has been manifested by a limitation of arm flexion or abduction that more nearly approximates limitation to 25 degrees or less from the side.  

In so finding, the Board notes that the February 2010 and June 2012 VA examinations reflected that the Veteran was unable to perform repetitive motion testing due to pain.   In addition, on VA examination in December 2012, there was pain at 0 degrees upon range of motion testing.  Such results, consistent with 38 C.F.R. §§ 4.40 and 4.45 and the holdings in DeLuca, indicated that the Veteran's joint function experiences additional functional loss due to symptoms such as pain and weakness.  As such, the Board finds that the criteria for a 30 percent rating under Diagnostic Code 5201 have been met.  

The Board notes that this is the maximum rating available under this code.

The Board has also considered other potentially applicable Diagnostic Codes; however, the Veteran's status post Bankhart repair of recurrent dislocation of the left shoulder with early osteoarthritis of the AC joint is not shown to involve any other factor that would warrant higher evaluation of the disability under any other provisions of the rating schedule.  

In this case, there is no evidence of any ankylosis of the scapulohumeral articulation or fibrous union of the humerus.  As such, there is no basis for evaluation in excess of 30 percent for the disability under Diagnostic Codes 5200 or 5202.  See 38 C.F.R. § 4.71a.  Moreover, Diagnostic Code 5203, impairment of the clavicle or scapula, provides no basis for a rating in excess of 20 percent. 

The Board acknowledges that the Veteran has scarring of the left shoulder associated with a previous surgical procedure; however, a separate evaluation for this scarring has already been assigned.  While there is additional scarring associated with the 2009 surgery on the left shoulder, given that this scar has been indicated to be non-tender and stable, a separate rating for this scar is not warranted.

For all the foregoing reasons, the Board finds that a rating of 30 percent, but no higher, for the service-connected status post Bankhart repair of recurrent dislocation of the left shoulder with early osteoarthritis of the AC joint is warranted.

The above determinations are based upon application of the pertinent provisions of VA's rating schedule.  The Board finds that the record does not reflect that the service-connected status post Bankhart repair of recurrent dislocation of the left shoulder with early osteoarthritis of the AC joint is 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).  

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).   

The Board finds that the rating criteria used to evaluate the service-connected left shoulder disability reasonably describe his disability level and symptomatology.  

There is nothing in the record to distinguish his case from the cases of other veterans who are subject to the schedular rating criteria for the same disabilities.  

The evidence of record certainly shows that the Veteran's disability has impacted his ability to work and the types of employment he can pursue. However, the level of interference shown is contemplated by the disability evaluation already assigned to the Veteran's disorder.  Moreover, to the extent that the Veteran indicated that he lost a job due to inability to accommodate his shoulder issues, he has indicated that he had been a full-time student and obtained other work in December 2011.  

Moreover, 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 disabilities.  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).  
 
While the Board has resolved all reasonable doubt in the Veteran's favor in granting a 30 percent rating for status post Bankhart repair of recurrent dislocation of the left shoulder with early osteoarthritis of the AC joint, the preponderance of the evidence is against assignment of any higher rating for this disability.  See 38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 3.102, 4.3; Gilbert, 1 Vet. App. at 53-56.


ORDER

The claim of service connection for bilateral hearing loss is denied under the law.

Service connection for tinnitus is granted.  

An increased rating of 30 percent, but no more, for the service-connected status post Bankhart repair of recurrent dislocation of the left shoulder with early osteoarthritis of the AC joint is granted, subject to the regulations controlling disbursement of VA monetary benefits.



____________________________________________
STEPHEN L. WILKINS
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs