Citation Nr: 1338372 Decision Date: 11/22/13 Archive Date: 12/06/13 DOCKET NO. 09-30 244 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to an increased rating for degenerative disc disease with degenerative arthritis, currently evaluated at 20 percent disabling. 2. Entitlement to an increased rating for the residuals of a mid-clavicle fracture with shortening, currently evaluated at 10 percent disabling. 3. Entitlement to an increased rating for the residuals of a right little finger fracture, currently evaluated at 0 percent disabling. REPRESENTATION Appellant represented by: The American Legion WITNESSES AT HEARING ON APPEAL The Veteran and his fiancée ATTORNEY FOR THE BOARD M. Sopko, Associate Counsel INTRODUCTION The Veteran had active service from September 1982 to August 1992. This matter comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions in June 2008 and December 2008 of the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran had a Travel Board Hearing before the undersigned Veterans Law Judge in May 2011. A review of the Virtual VA paperless claims processing system does not reveal any additional documents pertinent to the present appeal. The Veteran alleged in his VA Form 9 that the RO failed to obtain his VA treatment records for the clavicle and finger issues from the Daytona Beach VA Outpatient Clinic. The December 2008 RO decision misidentified, but correctly obtained and reviewed, the records the Veteran identified in its decision. The records are contained in the claims file. The issue of an increased rating for degenerative disc disease 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 is right-hand dominant. 2. The Veteran demonstrated, at worst: forward flexion of the right shoulder of 124 degrees; shoulder abduction of 119 degrees; external rotation to 85 degrees; and internal rotation to 70 degrees. 3. The residuals of the right little finger disability are not shown to be productive of ascertainable functional impairment. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 20 percent for the right shoulder disability are not met. 38 U.S.C.A. § 1155, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 4.20, 4.71a, Diagnostic Codes 5201, 5203 (2012). 2. The criteria for a compensable evaluation for residuals of a fracture of the right little finger have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002 and Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1-4.14, 4.40, 4.45, 4.71a, Diagnostic Codes 5227, 5230 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 ("VCAA") describes VA's 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) (2012). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the Veteran and his representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim, and to indicate 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); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). VCAA 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/Hartman v. Nicholson, 19 Vet. App. 473, 486 (2006). The notice must be provided to the Veteran prior to the initial adjudication of his claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004). VA has satisfied its duty to notify by issuing notice letters in March 2008 (back) and October 2008 (clavicle and finger). These letters advised the Veteran of what evidence was required to substantiate his claim, and of his and VA's respective duties for obtaining evidence. These letters provided notice informing the Veteran that to substantiate his increased evaluation claims he needed to submit evidence that his service-connected disabilities had increased in severity. The duty to assist provisions of the VCAA have also been met. The claims file contains service treatment records (STRs), reports of post-service medical treatment, reports of VA compensation examinations in June 2008 (back), November 2008 (hand and clavicle), and May 2009 (back), and a private examination conducted in September 2011. The Veteran had a VA Travel Board Hearing in May 2011 before the undersigned Veterans Law Judge (VLJ). During the hearing, the VLJ engaged in an appropriate discussion with the Veteran on the issues presently decided. The Veteran did not raise any new issues pertaining to this claim during the course of the hearing. See Bryant v. Shinseki, 23 Vet. App. 488 (2010). Thus, the Board finds that the hearing officer's two-fold duty to inform the Veteran of the outstanding issues relevant and material to the claim and to suggest the submission of evidence when such evidence is missing or has been overlooked has been satisfied. See id at 496-97. The Veteran has not alleged that there were any deficiencies in the conducting of that hearing related to the hearing officer's duties under section 3.103(c)(2). See Bryant, 23 Vet. App. at 497-98. The Veteran has not made the RO or the Board aware of any additional evidence that must be obtained in order to fairly decide the appeal. He has been given ample opportunity to present evidence and argument in support of his claim. General due process considerations have been complied with by VA. See 38 C.F.R. § 3.103 (2012). Increased Evaluation Claims Disability ratings are determined by applying the criteria established in VA's Schedule for Rating Disabilities, which is based upon the average impairment of earning capacity. Individual disabilities are assigned separate Diagnostic Codes. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.1, 4.20 (2012). When a question arises as to which of two ratings applies under a particular Diagnostic Code, the higher evaluation is assigned if the disability more nearly approximates the criteria for the higher rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Consideration must be given to increased evaluations under other potentially applicable Diagnostic Codes. Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3. The Veteran's entire history is to be considered when making disability evaluations. 38 C.F.R. § 4.1. Where an increase in the disability rating is at issue, as is the case here, the present level of the Veteran's disability is the primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). The standard of proof to be applied in decisions on claims for veterans' benefits is set forth in 38 U.S.C.A. § 5107 (West 2002). A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence. See 38 C.F.R. § 3.102. The Board must determine the value of all evidence submitted, including lay and medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). However, although an obligation to provide sufficient reasons and bases in support of an appellate decision exists, there is no need to discuss, in detail, all of the evidence submitted by the Veteran or on his or her behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (holding that the entire record must be reviewed, but each piece of evidence does not have to be discussed). Right Clavicle The Veteran is right-handed; therefore, his right arm is his major extremity. The Veteran's right clavicle disability is currently rated under 38 C.F.R. § 4.71a, Diagnostic Code 5203, for impairment of the clavicle or scapula. The currently assigned 20 percent rating is the maximum available under this code. Diagnostic Code 5201 provides disability ratings for limitation of motion of the shoulder. A 30 percent rating is warranted where motion of the major (dominant) arm is limited to midway between the side and shoulder level. A 40 percent rating is assigned where motion of the major arm is limited to 25 degrees from the side. 38 C.F.R. § 4.71a, Diagnostic Code 5201. Normal (full) range of motion of the shoulder is forward elevation (flexion) to 180 degrees, abduction to 180 degrees, external rotation to 90 degrees, and internal rotation to 90 degrees. 38 C.F.R. § 4.71, Plate I. A November 2008 private treatment shows an old, healed midshaft fracture of the right clavicle. There was mild-to-moderate arthritis in the acromioclavicular (AC) joint. During a November 2008 VA joints examination, the Veteran complained that he has had pain in the shoulder and decreased range of motion. On examination, there was a palpable deformity of the distal right clavicle. There was tenderness to palpation, but no ankylosis. Right shoulder range of motion was recorded as follows: forward flexion from 0 to 160 degrees, with pain from 150 to 160 degrees; abduction from 0 to 150 degrees, with pain from 140 to 150 degrees; external rotation from 0 to 90 degrees with no pain; and internal rotation from 0 to 70 degrees, with pain from 55 to 70 degrees. On repetitive testing, there was no additional limitation due to fatigue, weakness, or incoordination. Also, range of motion values were unchanged from baseline testing. The examiner noted no instability and reported being unable to estimate function in a flare-up without undue speculation. At the May 2011 hearing, the Veteran testified that he did not have full range of motion in his shoulder. He reported trying to compensate for the limitation by becoming more ambidextrous. His fiancée testified he had problems dressing himself and reaching. During a September 2011 joints examination with a private physician, the Veteran reported that he had moderate to severe, daily, constant pain. Range of motion (in degrees) of the right shoulder was forward flexion from 0 to 124, abduction from 0 to 119, external rotation 0 to 85, and internal rotation from 0 to 70. Strength in each of these positions was rated as 4 or 4- out of 5. He was noted to be unable to perform housework and reach overhead. He had right upper extremity weakness. Ankylosis was not noted. Upon review, the Board finds that between his VA and private joints examinations, the Veteran has demonstrated, at worst: forward flexion of the right shoulder of 124 degrees; shoulder abduction of 119 degrees; external rotation to 85 degrees; and internal rotation to 70 degrees. This evidence does not reflect limitation of motion of the arm to midway between the side and shoulder level, or to 25 degrees from the side. 38 C.F.R. § 4.71a, Diagnostic Code 5201. There is no medical or lay evidence to suggest that the Veteran experiences this level of impairment of the right shoulder. Therefore, a higher rating under this code is not warranted. Although there is evidence of degenerative arthritis affecting the right AC joint, under Diagnostic Code 5003, a 10 percent rating is warranted where limitation of motion of the joint involved is noncompensable under the appropriate Diagnostic Code; or where X-ray evidence shows involvement of two or more major joints or two or more minor joint groups. Range of motion testing shows some limitation of motion of the right shoulder which is noncompensable under Diagnostic Code 5201. 38 C.F.R. § 4.71a, Diagnostic Code 5201. However, there is no evidence of involvement of more than one major joint, so the Veteran may not be rated under Diagnostic Code 5003. As the medical evidence of record does not show evidence of ankylosis of the scapulohumeral articulation, flail joint, or fibrous union of the humerus, neither Code 5200 or Code 5202 is applicable to the Veteran's shoulder disability. The Veteran has complained of aching in his right shoulder and he is competent to report his symptoms to VA. Under the rating schedule, actually painful joints resulting from healed injury are entitled to at least the minimum compensable rating. 38 C.F.R. § 4.59. Although the Board finds his reports of aching credible, the November 2008 VA examiner found no functional loss on range of motion testing of the joint. The September 2011 private examiner conducted range of motion testing of the shoulder, but did not find functional loss. Repetition of motion did not result in decreased range of motion that would entitle him to a higher rating. See DeLuca v. Brown, 8 Vet.App. 202, 204-06 (1995). Therefore, there is no basis for assigning an increased rating. The preponderance of the evidence is against the claim so the benefit of the doubt rule is not applicable. See 38 U.S.C.A. § 5107(b); Gilbert, 1 Vet. App. at 54-56. Right Little Finger The Veteran's right little finger disability is currently assigned a noncompensable evaluation under DC 5230, limitation of motion of the ring or little finger. 38 C.F.R. § 4.71a. For both the major and minor hand, the only available disability evaluation under DC 5230 is a noncompensable evaluation. Id. The Board has also considered DC 5227, ankylosis of the ring or little finger. 38 C.F.R. § 4.71a. However, such a disability still only warrants a noncompensable evaluation for both the major and minor extremities. Id. Further, in November 2008, a VA examiner found that the Veteran did not have ankylosis. The Veteran underwent a VA hand, thumb, and examination in November 2008. The examiner found the Veteran had no gross deformity of the right hand. There was mild tenderness to palpation over the right little finger. The Veteran claimed to have lost strength in his hand and had pain when gripping or lifting objects. A goniometer measured flexion of the right little finger at the metacarpalphalangeal (MTP) joint at 90 degrees, 100 degrees at the proximal interphalangeal (PIP) joint, and 80 degrees at the distal interphalangeal (DIP) joint, with pain in none of these modalities. Repetitive range of motion testing caused no change in baseline range of motion or pain values for the right little finger. When an evaluation of a disability is based upon limitation of motion, such as under DC 5230, the Board must also consider in conjunction with the otherwise applicable Diagnostic Code, any additional functional loss the Veteran may have sustained by virtue of other factors as described in 38 C.F.R. §§ 4.40 and 4.45. DeLuca v. Brown, 8 Vet. App. 202, 206 (1995). Such factors include more or less movement than normal, weakened movement, excess fatigability, incoordination, pain on movement, swelling, and deformity or atrophy from disuse. A finding of functional loss due to pain must be supported by adequate pathology and evidenced by the visible behavior of the Veteran. 38 C.F.R. § 4.40; Johnston v. Brown, 10 Vet. App. 80, 85 (1997). However, the Veteran is already receiving the maximum disability rating available based on symptomatology that includes limitation of motion of the major little finger, and therefore it is not necessary to consider whether 38 C.F.R. §§ 4.40 and 4.45 are applicable. Johnston, 10 Vet. App. at 80. The preponderance of the evidence is against the claim so the benefit of the doubt rule is not applicable. See 38 U.S.C.A. § 5107(b); Gilbert, 1 Vet. App. at 54-56. Extra-Schedular The Board finds that there is no basis for referral for consideration of an extra-schedular rating in this case. 38 C.F.R. § 3.321(b)(1) (2012). The Veteran has not presented any evidence that his clavicle or finger disabilities results in a unique disability that is not addressed by the rating criteria. The predominant symptomatology the Veteran experiences as a result of his shoulder and little finger disabilities - pain and limitation of motion - are already contemplated and compensated for by the current rating criteria. Thus, there is no basis for referral of the case for consideration of an extraschedular disability evaluation. See Thun v. Peake, 22 Vet. App 111, 115-16 (2008). ORDER Entitlement to an increased rating for the residuals of a mid-clavicle fracture with shortening, currently evaluated at 10 percent disabling, is denied. Entitlement to an increased rating for the residuals of a right little finger fracture, currently evaluated at 0 percent disabling, is denied. REMAND Where the record does not adequately reveal the current state of disability, the fulfillment of the statutory duty to assist requires a thorough and contemporaneous medical examination. See Palczewski v. Nicholson, 21 Vet. App. 174, 181 (2007). An examination too remote for rating purposes cannot be considered "contemporaneous." See Caffrey v. Brown, 6 Vet. App. 377, 381 (1994). Additionally, VA generally has a duty to provide an additional examination when the claimant alleges that the disability in question has undergone an increase in severity since the time of the last examination. VAOPGCPREC 11-95 (Apr. 7, 1995). In his May 2011 Travel Board Hearing, the Veteran testified that the results of his May 2009 VA examination did not reflect the severity of his disability. He further testified that his private physician believed his condition had worsened since this examination. See Hearing Transcript p.7. His pain "ha[d] increased" as did his use of pain medication (going from as-needed use to daily use). Id. at 7-8. Given these factors, together with the time that has passed since his last VA examination, the Veteran merits a new examination to determine the current severity of his service-connected disability. In addition, any recent VA treatment records should be obtained. Accordingly, the case is REMANDED for the following action: 1. Ascertain if the Veteran has received any VA, non-VA, or other medical treatment, pertinent to the claim on appeal, that is not evidenced by the current record - to specifically include, but not limited to, any VA outpatient records for any treatment of his degenerative disc disease. The Veteran must be provided with the necessary authorizations for the release of any private treatment records not currently on file. The RO/AMC must then obtain these records, as well as any other pertinent records, and associate them with the claims folder. If VA is unsuccessful in obtaining any medical records identified by the Veteran, it must inform him and provide him an opportunity to submit copies of the outstanding medical records. In particular, arrange to obtain VA treatment records from the Gainesville VA Medical Center and Daytona Beach Outpatient Clinic, dated since January 2007 (one year prior to his claim for increase). 2. Following completion of the above-requested actions, schedule the Veteran for a VA examination with an orthopedist, to ascertain the current severity of his service-connected degenerative disc disease. Both the claims file and a separate copy of this Remand must be made available to and reviewed by the clinician in conjunction with the examination. The examiner should indicate in the report that the claims file was in fact reviewed in conjunction with the examination. All indicated tests and studies should be done, and all subjective complaints and objective findings should be reported in detail. It is requested that the designated physician identify all present symptoms and manifestations attributable to the Veteran's service-connected spine disability. The examiner must further report the complete range of motion for the thoracolumbar spine. In providing this objective information, he should indicate whether there is likely to be any additional decrease in range of motion attributable to functional loss, due to any of the following: pain on use, including during flare-ups; weakened movement; excess fatigability; incoordination; and repetitive use. All limitation of function must be identified. If there is no pain, no limitation of motion and/or no limitation of function, such facts must be noted in the report. The examiner must provide a comprehensive report including a complete rationale for all conclusions reached. 3. The RO/AMC must then readjudicate the Veteran's increased rating claim. If the benefit sought on appeal remains denied, the Veteran and his representative must be provided a supplemental statement of the case (SSOC) that readjudicates his claim. The SSOC must set forth that the additional evidence has been considered and identify the relevant actions taken on the claim for benefits, to include a summary of the evidence and applicable law and regulations considered pertinent to the issues currently on appeal. An appropriate period of time must be allowed for response. Thereafter, if indicated, the case must be returned to the Board for appellate disposition. 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). ______________________________________________ John Z. Jones Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs