Citation Nr: 1339508 Decision Date: 12/02/13 Archive Date: 12/13/13 DOCKET NO. 12-23 911 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas THE ISSUES 1. Entitlement to an initial evaluation higher than 10 percent for the service-connected residuals of a right clavicle fracture. 2. Entitlement to an initial compensable evaluation for the service-connected residuals of a partial tear and strain of the right Achilles tendon. REPRESENTATION Appellant represented by: Texas Veterans Commission ATTORNEY FOR THE BOARD Andrew Dubinsky, Associate Counsel INTRODUCTION The Veteran had active service from April 1988 to September 1996 and from May 2007 to May 2008. The Veteran also served in the Navy Reserve. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2011 rating decision of the RO. The Veteran requested a videoconference hearing that was scheduled for November 6, 2013. The record reflects that he failed to report for his hearing. If a Veteran fails to appear for a scheduled hearing and a request for postponement has not been received and granted, the case proceeds as though the request for a hearing has been withdrawn. 38 C.F.R. § 20.704(d) (2013). Since the Veteran did not request postponement, his hearing request is deemed withdrawn. A review of the Virtual VA and VBMS paperless claims processing systems does not reveal any additional evidence pertinent to the claims on appeal. FINDINGS OF FACT 1. The competent evidence of record shows that the service-connected right shoulder disability is manifested by a full range motion with forward flexion and abduction performed to 180 degrees and 90 degrees of internal and external rotation performed to 90 degrees for the period of the appeal; neither non-union with loose movement, nor dislocation is demonstrated. 2. The competent evidence of record shows that the service-connected right ankle disability picture is shown to be productive of a functional loss that more closely resemble that of a moderate limitation of motion for the entire period of the appeal. CONCLUSIONS OF LAW 1. The criteria for the assignment of an initial rating higher than 10 percent for the service-connected residuals of a right clavicle fracture have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A (West 2002); 38 C.F.R. §§ 3.159, 3.321, 4.7, 4.59, 4.71a including Diagnostic Code 5203 (2013). 2. The criteria for the assignment of an initial evaluation of 10 percent, but no higher for the service-connected residuals of a partial tear and strain of the right Achilles tendon have been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.7, 4.71a including Diagnostic Code 5271 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist 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) (2013); 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. VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004); but see Mayfield v. Nicholson, 19 Vet. App. 103, 128 (2005), rev'd on other grounds, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006) (when VCAA notice follows the initial unfavorable AOJ decision, remand and subsequent RO actions may "essentially cure [] the error in the timing of notice"). VCAA notice should also apprise the claimant of the criteria for assigning disability ratings and for award of an effective date. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). In April 2010 correspondence, the RO advised the Veteran of what the evidence must show to establish service connection for his claimed disorders and described the types of evidence that the Veteran should submit in support of his claims. The RO also explained what evidence VA would obtain and make reasonable efforts to obtain on the Veteran's behalf in support of the claims. The VCAA notice letter also addressed the elements of degree of disability and effective date. Although the decision was subsequently modified, the Board notes that the United States Court of Appeals for Veterans Claims (Court) held in Vazquez-Flores v. Peake that certain notice elements were required for an increased rating claim. 22 Vet. App. 37 (2008); see Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009). However, the Court drew a distinction between the notice requirements for a claim involving an initial disability rating and a claim for additional (increased) compensation of an already service-connected disability and indicated that the notice requirements were relevant to claims for increased compensation. Id. As the issues on appeal involve claims for higher initial ratings, the Board finds that no discussion of VA's compliance with the notice elements outlined in Vazquez is necessary in this case. Therefore, the Board concludes that the requirements of the notice provisions of VCAA have been met, and there is no outstanding duty to inform the Veteran that any additional information or evidence is needed. Quartuccio, 16 Vet. App. at 187. To fulfill its statutory duty to assist, the RO afforded the Veteran with a compensation examination in November 2010 and obtained the Veteran's service treatment records (STRs) and personnel records to the extent possible. To that end, 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 Board finds that the VA examination obtained in this case was adequate, as it was predicated on a full reading of the Veteran's claims file. The examination included the Veteran's own complaints about his disabilities and the objective findings needed to rate the disabilities. Based on the foregoing, the Board finds that all relevant facts have been properly and sufficiently developed in this appeal and no further development is required to comply with the duty to assist the Veteran in developing the facts pertinent to the claims. Legal Criteria Disability evaluations are determined by the application of the VA Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practically determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.1 (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 for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2013). Disability of the musculoskeletal system is primarily the inability, due to damage or infection in the parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. It is essential that the examination on which ratings are based adequately portray the anatomical damage, and the functional loss, with respect to all these elements. The functional loss may be due to absence of part, or all, of the necessary bones, joints and muscles, or associated structures, or to deformity, adhesions, defective innervation, or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. 38 C.F.R. §§ 4.40, 4.45 (2013); DeLuca v. Brown, 8 Vet. App. 202, 206-07 (1995). Painful, unstable, or malaligned joints, due to healed injury, are entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59 (2013). The factors involved in evaluating and rating disabilities of the joints include weakness; fatigability; incoordination; restricted or excess movement of the joint, or pain on movement. 38 C.F.R. § 4.45 (2013). In determining the disability evaluation, VA has a duty to acknowledge and consider all regulations that are potentially applicable through the assertions and issues raised in the record and to explain the reasons and bases for its conclusions. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Governing regulations include 38 C.F.R. §§ 4.1 and 4.2, which require the evaluation of the complete medical history of the veteran's condition. In a claim for a greater original rating after an initial award of service connection, all of the evidence submitted in support of a veteran's claim is to be considered. An appeal from the initial assignment of a disability rating, such as in this case, requires consideration of the entire time period involved and contemplates staged ratings where warranted. Fenderson v. West, 12 Vet. App. 119 (1999). Right Shoulder The Veteran is currently in receipt of a 10 percent rating for service-connected the residuals of his service-connected right clavicle fracture under Diagnostic Code 5203. Under Diagnostic Code 5203, a 10 percent disability rating is appropriate for malunion of the clavicle or scapula or nonunion of the clavicle or scapula without loose movement. A 20 percent disability rating is warranted for nonunion of the clavicle or scapula with loose movement or dislocation of the clavicle or scapula. At his November 2010 examination, the Veteran reported having stiffness and some discomfort at the sternal clavicular joint. He said that certain movements caused an aching sensation in the joint and that this was his only complaint. Aspirin helped control the symptomatology related to the shoulder disability, and he denied any flare-ups or incapacitating events. The examiner further noted that the Veteran had no inflammatory joint disease. On examination, the examiner found a midshaft deformity that was palpated, but nontender. There was also no tenderness in the sternoclavicular joints or the acromioclavicular joint. The Veteran had flexion and abduction of the shoulder to 180 degrees and internal and external rotation to 90 degrees. Active and passive repetitive motion in all ranges of motion produced no indication of pain, weakness, or fatigue. Finally, an X-ray study revealed a healed mid clavicular fracture with a mild deformity, including asymmetric narrowing of the acromioclavicular joint space that the examiner described as a bridge between overriding pieces. Based on a review of the entire record, the Board finds that an increased, initial rating higher than 10 percent is not assignable for the service-connected the right shoulder disability. There is no showing that the Veteran's clavicle or scapula was dislocated or that there was a nonunion of the joint with loose motion. As for other potentially applicable diagnostic codes, the record does not contain evidence of an impairment of the humerus, limitation of arm motion to shoulder level, or ankylosis of the shoulder. 38 C.F.R. § 4.71a, Diagnostic Codes 5200-5202. Thus, on this record, the Board finds that the claim for an increased evaluation must be denied. While the Board has considered whether staged ratings are warranted in this case, the factual findings do not show distinct time periods where the Veteran's claimed disability exhibited symptoms that would warrant different ratings. See Fenderson, supra. As for any adverse effects the Veteran's disability has on his employability, such has been contemplated in the assignment of the current schedular evaluation. The evidence does not reflect that his right shoulder disability picture is unusual or exceptional or is productive of marked interference with employment (i.e. beyond that already contemplated in the assigned evaluation) or the need for frequent periods of hospitalization, or that any other governing norms are present such that application of the regular schedular standards is rendered impracticable. Thus, referral to the RO for consideration of the assignment of an extra-schedular evaluation under 38 C.F.R. § 3.321 is not warranted. In reaching this conclusion, the Board notes that under the provisions of 38 U.S.C.A. § 5107(b), the benefit of the doubt is to be resolved in the claimant's favor in cases where there is an approximate balance of positive and negative evidence in regard to a material issue. The preponderance of the evidence, however, is against the claim and that doctrine is not applicable. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Right Ankle The Veteran is assigned a noncompensable rating under Diagnostic Code 5271 for his service-connected residuals of a partial tear and strain of the right Achilles tendon. Under that Diagnostic Code, a 10 percent disability rating is warranted for moderate limitation of motion of the ankle and a 20 percent disability rating represents marked limitation of motion of the ankle. Initially, the Board notes that the ankle's normal range of motion is zero to 20 degrees of dorsiflexion and zero to 45 degrees of plantar flexion. 38 C.F.R. § 4.71a, Plate II (2013). The Veteran was afforded a VA examination for his right ankle disability in November 2010. At that examination, the Veteran complained of having stiffness and pain in his ankle, particularly with prolonged standing. He did not take any medications for these symptoms and denied having flare-ups and incapacitating episodes. The examiner found that the Veteran did not have inflammatory joint disease or use braces. The Veteran told the examiner that his daily activities were affected in that he needed to sit down whenever he could because of pain caused by prolonged standing. On examination, the Achilles tendon was intact and palpation revealed no swelling or tenderness. The Veteran demonstrated a range of motion that included 55 degrees of plantar flexion, 15 degrees of dorsiflexion, 35 degrees of supination, and 20 degrees of pronation. Repetitive motion of the ankle produced no indication of pain, weakness, or fatigue, and the Veteran ambulated without the appearance of discomfort. Finally, the examiner noted that the Achilles tendon appeared well healed, although the Veteran had some residual strain periodically in the tendon that was likely due to scar tissue. Based on a review of the entire record, the Board finds that an increased rating of 10 percent, but no higher is warranted for the service-connected right ankle disability based on somewhat limited dorsiflexion and reported episodes of strain likely due to scar tissue. In this case, the service-connected disability picture is found to more nearly approximate that of moderate limitation of motion. Nevertheless, the Board finds that the record does not demonstrate a functional loss that would equate or even approach a level of disablement consistent with marked limitation of motion. He is shown to have lost only five degree dorsiflexion, full plantar flexion and no additional loss on repetitive motion. The Board will also consider whether other diagnostic codes are potentially applicable to the Veteran's claim. In this regard, the Board finds that the evidence of record does not show that the Veteran has ankylosis of the ankle, a malunion of the os calcis or astragalus, or that he underwent an astragalectomy. Thus, the Veteran is not entitled to an increased evaluation for his service-connected right ankle disability under Diagnostic Codes 5270 or 5272-5274. To the extent that the service-connected disability affects his employment, such has been contemplated in the assignment of the current disability ratings. The evidence does not reflect that the service-connected right ankle disability picture is not shown to be unusual or exceptional or to result in marked interference with employment (i.e. beyond that already contemplated in the assigned evaluation) or require any frequent periods of hospitalization, or that any other governing norms are present such that application of the regular schedular standards would be rendered impracticable. Hence, referral to the RO for consideration of the assignment of an extraschedular evaluation under 38 C.F.R. § 3.321 (2013) is not warranted. ORDER An increased, initial evaluation higher than 10 percent for the service-connected residuals of a right clavicle fracture is denied. An increased, initial evaluation of 10 percent, but no more for the service-connected residuals of a partial tear and strain of the right Achilles tendon is granted, subject to the regulations governing the payment of monetary benefits. . ____________________________________________ STEPHEN L. WILKINS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs