Citation Nr: 1338772 Decision Date: 11/25/13 Archive Date: 12/06/13 DOCKET NO. 08-09 743A ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania THE ISSUES 1. Entitlement to an initial evaluation in excess of 20 percent for the service-connected left shoulder strain. 2. Entitlement to service connection for a claimed migraine headache disorder. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD M. Mills, Associate Counsel INTRODUCTION The Veteran served on active duty from January 1993 to September 2000. The case initially came to the Board of Veterans' Appeals (Board) on appeal from a rating decision issued in August 2006 by the RO. In a February 2008 rating decision, the RO assigned a 20 percent evaluation for the service-connected left shoulder disability, effective beginning on the date of the grant of service connection. As the applicable law mandates that, when a veteran seeks an increased evaluation, it will generally be presumed that the maximum benefit allowed by law and regulation is sought, and it follows that such a claim remains in controversy where less than the maximum benefit available is awarded. See AB v. Brown, 6 Vet. App. 35 (1993). Thus, the issue remains on appeal to the Board. In February 2012, the Board remanded the claims for additional development. The case is once again before the Board. In February 2012, the Board also observed that the issue of an increased rating for the service-connected PTSD was raised by the record, but had not been adjudicated by the Agency of Original Jurisdiction (AOJ). As this issue still has not been adjudicated, the Board again refers it to the AOJ for appropriate action. The Veteran was scheduled to appear for a hearing with a Veterans Law Judge in June 2010. He failed to report for this hearing. The Veteran has provided no explanation for his failure to report and has not since requested that the hearing be rescheduled. His hearing request, therefore, is deemed to have been withdrawn. See 38 C.F.R. §20.704 (2013). A review of the Veterans Benefits Management System and Virtual VA paperless claims processing system does not reveal any additional documents pertinent to the present appeal with the exception of an October 2013 appellate brief. The issue of service connection for a migraine headache disorder is being remanded to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT The service-connected left shoulder disability is shown to be manifested by functional loss due to pain, but a limitation of motion of the arm at 25 degrees from the side is not demonstrated. CONCLUSION OF LAW The criteria for the assignment of an evaluation in excess of 20 percent for the service-connected left shoulder disability have not been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.71a including Diagnostic Code 5201. REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duty 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); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2013). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper VCAA notice 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; and (3) that the claimant is expected to provide. 38 C.F.R. § 3.159(b)(1). A December 2005 VCAA letter explained the evidence necessary to substantiate the claim for service connection. This letter also informed the Veteran of his and VA's respective duties for obtaining evidence. See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). In addition, a March 2006 VCAA notice letter from VA explained how a disability rating is determined for a service-connected disorder and the basis for determining an effective date upon the grant of any benefit sought, in compliance with Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). In this case, the RO sent the second notice letter after initially deciding the Veteran's claims. It was thus untimely. The RO later cured this timing defect, however, by readjudicating these claims in a Supplemental Statement of the Case issued in February 2008. Mayfield v. Nicholson, 499 F.3d 1317 (Fed. Cir. 2007). This appeal arises from a Notice of Disagreement (NOD) with the initial evaluation following the grant of service connection for a left shoulder strain. This NOD does not give rise to additional duty to notify on the part of VA. Dingess/Hartman, 19 Vet. App. 473; 38 C.F.R. § 3.159(b)(3)(i) (no duty to provide VCAA notice arises upon receipt of a notice of disagreement). With regard to the duty to assist, the claims file contains service treatment records and reports of VA examinations. See 38 U.S.C.A. § 5103A(a)-(d). The Veteran underwent VA examinations in January 2006 and March 2012 to evaluate the current severity of the service-connected left shoulder strain. When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The VA examination reports provide detailed descriptions of the service-connected disability. The examination reports are deemed to be adequate for the purpose of rating of the service-connected disability in accordance with the applicable rating criteria. Based on the foregoing, the Board finds that all relevant facts have been properly and sufficiently developed in this appeal and that no further development is required to comply with the duty to assist the Veteran in developing the facts pertinent to his claim. Law and Regulations Disability ratings are assigned in accordance with the VA's Schedule for Rating Disabilities and are intended to represent the average impairment of earning capacity resulting from disability. See 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.321(a), 4.1 (2013). Separate diagnostic codes identify the various disabilities. See 38 C.F.R. Part 4. The Court has held that an appeal from an initial rating is a separate and distinct claim from a claim for an increased rating. At the time of an initial rating, separate ratings can be assigned for separate periods of time based on facts found, a practice known as "staged ratings." See Fenderson v. West, 12 Vet. App. 119, 126 (1999). Staged ratings are not warranted in this case. The evaluation of a service-connected disability involving a joint rated on limitation of motion requires adequate consideration of functional loss due to pain under 38 C.F.R. § 4.40 and functional loss due to weakness, fatigability, incoordination or pain on movement of a joint under 38 C.F.R. § 4.45. See DeLuca v. Brown, 8 Vet. App. 202 (1995). The basis of disability evaluations is the ability of the body as a whole to function under the ordinary conditions of daily life, including employment. 38 C.F.R. § 4.10 (2013). Disability of the musculoskeletal system is primarily the inability to perform the normal working movements of the body with normal excursion, strength, speed, coordination and endurance. 38 C.F.R. § 4.40 (2013). Consideration is to be given to whether there is less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, pain on movement, swelling, deformity, atrophy of disuse, instability of station, or interference with standing, sitting, or weight bearing. 38 C.F.R. § 4.45 (2013). 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 (2013). Merits of the Claim The service-connected left shoulder strain is currently rated 20 percent disabling under Diagnostic Code 5201. The record shows that the Veteran's right hand is his dominant hand. See, e.g., the January 2006 VA examination report; see also 38 C.F.R. § 4.69 (2013) (a distinction is made between major (dominant) and minor musculoskeletal groups for rating purposes, and only one extremity is to be considered major). Under Diagnostic Code 5201, limitation of motion of the minor (non-dominant) arm results in the following levels of disability for rating purposes: limitation to 25 degrees from side warrants a 30 percent rating; limitation to midway between side and shoulder level warrants a 20 percent rating; and limitation at shoulder level warrants a 20 percent rating. See 38 C.F.R. § 4.71a including Diagnostic Code 5201 (2013). Normal range of shoulder motion is forward extension (flexion) from zero to 180 degrees; shoulder abduction is from 0 to 180 degrees; internal rotation is from zero to 90 degrees; and external rotation from 0 to 90 degrees. Lifting the arm to shoulder level is lifting it to 90 degrees. See 38 C.F.R. § 4.71, Plate I (2013). The Veteran was afforded a VA examination in January 2006. The examiner documented his complaints of pain, stiffness and an inability to lift his left arm above shoulder level. His forward flexion was performed to 130 degrees and abduction was performed to 110 degrees. There was no additional loss of range of motion due to pain, fatigue, weakness or incoordination. It was noted that there was no atrophy or instability of the shoulder joint. During a March 2012 VA examination, the Veteran demonstrated flexion and abduction to 145 degrees with pain. The Veteran stated that he was unable to perform repetitive-use testing due to pain. The examination report indicated the Veteran had functional loss after repetitive use manifested by less movement than normal and pain on movement. There was no pain on palpation of the left shoulder joint, guarding, ankylosis, rotator cuff disability or history of recurrent dislocation. The Board finds based on a review of the record that an evaluation in excess of 20 percent for the service-connected left shoulder disability is not warranted at any point during the period of the appeal. As noted, the medical evidence in January 2006 showed that the Veteran's forward flexion was limited to 130 degrees and abduction to 110 degrees. However, event with consideration of his complaints of pain, the criteria for rating higher than 20 percent rating under Diagnostic Code 5201were not met at that time. In DeLuca, the Court held that VA's review of a service-connected musculoskeletal disability must include an assessment of the functional impairment caused by that disability. 38 C.F.R. §§ 4.40, 4.45 and 4.59 (2013). Here, the Veteran has complained of left shoulder pain and stiffness that has been demonstrated on examination. As detailed, the functional impairment associated with the service-connected left shoulder disability results in forward flexion and abduction limited to shoulder level. On examination in March 2012, the examiner stated that the Veteran did not perform repetitive testing because it was too painful. Nevertheless, the examination findings at that time did not establish the presence of a functional loss due to pain that would warrant the assignment of a rating of 30 percent. The demonstrated symptomatology, even when considering the DeLuca factors, does not support a finding of a loss of arm function that would be limited to 25 degrees from the side. Thus, on this record, at no point during the appeal is the service-connected left shoulder disability shown to have been manifested by a limitation of motion or functional loss due to pain that was productive of a restriction to 25 degrees from the side to support a higher evaluation of 30 percent for loss of motion on a non-dominate arm. As the left shoulder disability is not shown to be manifested by ankylosis, fibrous union of the humerus, nonunion of the humerus, loss of head of the humerus or dislocation of the clavicle or scapula, there is no basis for application of Diagnostic Codes 5200 (ankylosis of scapulohumeral articulation), 5202 (impairment of the humerus), or 5203 (impairment of the clavicle or scapula). Therefore, on this record, an evaluation in excess of 20 percent disabling for the service-connected left shoulder strain is denied. Extraschedular Consideration The determination of whether a claimant is entitled to an extraschedular rating is a three-step inquiry. Thun v. Peake, 22 Vet. App. 111, 115 (2008). The first step is to determine whether the "evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate." Id. If it is determined that this is so, the second step of the inquiry requires a determination of "whether the claimant's exceptional disability picture exhibits other related factors," such as marked interference with employment or frequent periods of hospitalization. Id. at 116. Finally, if the first two steps of the inquiry have been satisfied, the third step requires referral of the claim to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for a determination of whether an extraschedular rating is warranted. Id. Here, the Board is cognizant of the Veteran's assertions that his left shoulder disability results in functional limitations where he is unable to lift his arm above shoulder level. Nevertheless, the evidence in this case does not show such an exceptional disability picture that the available schedular evaluation for the service-connected disability is inadequate. A comparison between the level of severity and symptomatology of the Veteran's assigned rating with the established criteria found in the rating schedule shows that the rating criteria reasonably describe the Veteran's disability level and symptomatology. Based on the foregoing, the Board finds that referral for extraschedular consideration is not warranted. Bagwell v. Brown, 9 Vet. App. 337 (1996); Shipwash v. Brown, 8 Vet. App. 218 (1995); Thun v. Peake, 22 Vet. App. 111 (2008). As a final matter, the Board notes that under Rice v. Shinseki, 22 Veteran. App. 447 (2009), the Board must remand an increased rating issue if the Veteran, or the evidence of record raised the matter of individual unemployability. However, in this case, the Veteran has not indicated that he is unable to maintain employment because of his service-connected disabilities during the pendency of this appeal; hence, any development or consideration under Rice is not indicated at this time. ORDER An increased initial rating in excess of 20 percent for the service-connected left shoulder strain is denied. REMAND Another remand is required in this case to obtain an addendum medical opinion. In accordance with the February 2013 remand, the Veteran was scheduled for a VA examination to determine the nature and likely etiology of the claimed migraine headache disorder. The examiner stated that no opinion could be rendered because there was no current evidence of headaches or migraine headaches. The examiner also stated that there was no treatment or diagnosis of headaches during service. As noted in the February 2013 remand, the service treatment records reflect that the Veteran complained of headaches in July 2000. Additionally, he continued to complain of headaches after service. See April 2012 VA treatment note. Thus, notwithstanding the March 2012 VA examiner's findings, the Board finds that sufficient evidence exists to indicate that the Veteran has a headache disorder that might be associated with service. Additionally, the Veteran is competent to state that he had headaches during service and continues to have since discharge. See Layno v. Brown, 6 Vet.App. 465, 467-69 (1994) (noting that the Veteran as a lay person is competent to report information of which he has personal knowledge, i.e., information that he can gather through his senses). It does not appear that the VA examiner considered the Veteran's lay assertions. On remand, the VA examiner must provide an opinion concerning the etiology of any disability that has existed since the claim was filed. Accordingly, this remaining matter is REMANDED to the RO for the following action: 1. The RO should take appropriate steps to have case returned to the VA examiner who conducted the examination in the March 2012 or a suitable substitute in order to obtain a clarifying medical opinion to ascertain the nature and likely etiology of the claimed headache disorder. If another examination is necessary, this should be scheduled. The entire claims file must be made available to the examiner for review. The examiner is requested to review all pertinent records associated with the claims file, including the service treatment records, post-service medical records, and the Veteran's own statements about the nature and extent of his headaches. The examiner should identify whether the Veteran currently has migraines or another type of headache disorder. After reviewing the entire record, the examiner should provide an opinion as to whether it is at least as likely as not (50 percent probability or greater) that a migraine or other headache disorder had its clinical onset during the Veteran's period of service or otherwise was due to an event or incident of that service. In providing the requested opinion, the examiner should specifically discuss the Veteran's service treatment records documenting a complaint of headaches as well as the post-service medical evidence reflecting a complaint of headaches. The examiner is advised also that the Veteran is competent to report symptoms and treatment, and that his reports must be taken into account, along with the other evidence of record, in formulating the requested opinion and rationale. The examiner should set forth all examination findings, along with the complete rationale for any conclusions reached. If the requested opinions cannot be provided without resorting to mere speculation, the examiner should clearly so state, and the reasons and bases for the inability to provide the opinion must be included in the examination report. 2. After completing all indicated development, the RO should readjudicate the claim remaining on appeal in light of all the evidence of record. If the benefit sought on appeal remains denied, the Veteran and his representative should be furnished a fully responsive Supplemental Statement of the Case and afforded a reasonable opportunity for response. Thereafter, if indicated, the case should be returned to the Board for the purpose of appellate disposition. The Veteran has the right to submit additional evidence and argument on the matter 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). ______________________________________________ STEPHEN L. WILKINS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs