Citation Nr: 1339879 Decision Date: 12/04/13 Archive Date: 12/18/13 DOCKET NO. 10-47702 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUE Entitlement to an increased rating for right shoulder instability, status post labral tear and arthroscopic repair (right shoulder disability), currently rated at 10 percent disabling. REPRESENTATION Appellant represented by: South Carolina Office of Veterans Affairs ATTORNEY FOR THE BOARD Roya Bahrami, Associate Counsel INTRODUCTION The Veteran served on active duty from March 2003 to July 2007. This matter comes before the Board of Veterans' Appeals (Board) from a September 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina. The Board notes that, in addition to the paper claims file, there is a paperless, electronic claims file (Virtual VA). The Board has reviewed the contents of the Virtual VA file in addition to the paper file in deciding this claim. FINDING OF FACT Resolving all doubt in the Veteran's favor, the Veteran's right shoulder disability is characterized by pain and range of motion limited to the shoulder level, but not midway between the side and shoulder levels. CONCLUSION OF LAW The criteria for an evaluation of 20 percent for right shoulder instability, status post labral tear and arthroscopic repair, has been met. 38 U.S.C.A. §§ 1155, 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 4.1 , 4.2, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5200-5203 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. 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). 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 the VA will seek to provide; and (3) that the claimant is expected to provide. 38 U.S.C.A. § 5103(a) (West 2002); C.F.R. § 3.159(b)(1) (2011). Pelegrini v. Principi, 18 Vet. App. 112 (2004). In a claim for increase, the VCAA requirement is generic notice, that is, the type of evidence needed to substantiate the claim, namely, evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on employment, as well as general notice regarding how disability ratings and effective dates are assigned. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009). The Veteran was provided with a notification letter in November 2008 that fully addressed all notice elements and was sent prior to the initial RO decision in this matter. The letter informed the Veteran of what evidence was required to substantiate the claim, of his and VA's respective duties for obtaining evidence, and of the criteria for assigning disability ratings and assigning effective dates. The Veteran also received a notification letter in June 2013 that informed the Veteran of what evidence was required to substantiate a claim for an increased rating. The VCAA also requires VA to make reasonable efforts to help a claimant obtain evidence necessary to substantiate his claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c), (d). This "duty to assist" contemplates that VA will help a claimant obtain records relevant to his claim, whether or not the records are in Federal custody, and that VA will provide a medical examination or obtain an opinion when necessary to make a decision on the claim. 38 C.F.R. § 3.159(c)(4). The duty to assist has also been met here. The Veteran's service records and private treatment records have been obtained. The Veteran was afforded adequate VA examinations in June 2012 and July 2013. Both the examiners reviewed the claims file, considered the contentions of the appellant, and provided supporting rationales for the conclusions reached. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). Lastly, there is no indication that there is any relevant evidence outstanding in these claims. Therefore, the Board will proceed with consideration of the Veteran's appeal. II. Law and Regulations Disability ratings are determined by the application of the VA's Schedule for Rating Disabilities (Schedule), which is based on the average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. Part 4 (2011). Pertinent regulations do not require that all cases show all findings specified by the Schedule, but that findings sufficient to identify the disease and the resulting disability and above all, coordination of the rating with impairment of function will be expected in all cases. 38 C.F.R. § 4.21 (2011); see also Mauerhan v. Principi, 16 Vet. App. 436 (2002). The primary concern in a claim for an increased evaluation for service-connected disability is the present level of disability. Although the overall history of the disability is to be considered, the regulations do not give past medical reports precedence over current findings. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, when an appeal is based on the assignment of an initial rating for a disability, following an initial award of service connection for this disability, the rule articulated in Francisco does not apply. Fenderson v. West, 12 Vet. App. 119 (1999). Instead, the evaluation must be based on the overall recorded history of a disability, giving equal weight to past and present medical reports. Id. VA has a duty to consider the possibility of assigning staged ratings in all claims for increase. See Hart v. Mansfield, 21 Vet. App. 505 (2007). When evaluating disabilities of the musculoskeletal system, 38 C.F.R. § 4.40 allows for consideration of functional loss due to pain and weakness causing additional disability beyond that reflected on range of motion measurements. DeLuca v. Brown, 8 Vet. App. 202 (1995). Further, 38 C.F.R. § 4.45 provides that consideration also be given to weakened movement, excess fatigability and incoordination. Currently, the Veteran's right shoulder disability is rated under Diagnostic Code (DC) 5201, which pertains to limitation of motion of the arm. 38 C.F.R. § 4.71a. Under DC 5201, a 20 percent disability rating is warranted when range of motion (ROM) of the major upper extremity is limited to the shoulder level. A 30 percent disability rating is warranted when ROM of the major upper extremity is limited to midway between the side and shoulder levels. A 40 percent disability rating is warranted when ROM of the major upper extremity is limited to 25 degrees from the side. A distinction is made between major (dominant) and minor upper extremities for rating purposes. In the instant case, the July 2013VA examination report notes the Veteran is right-hand dominant, which means his right shoulder is the dominant or major shoulder. There are several other diagnostic codes which pertain to limitation of motion or disabilities of the shoulder that may be appropriate for use when evaluating the Veteran's right shoulder disability. Under DC 5200, which pertains to ankylosis of the scapulohumeral articulation, a 30 percent disability rating is warranted when there is favorable ankylosis of the major upper extremity with abduction to 60 degrees and the ability to reach the mouth and head with the major upper extremity. A 40 percent disability rating is warranted when the ankylosis in the major upper extremity is intermediate between favorable and unfavorable. A 50 percent disability rating is warranted when there is unfavorable ankylosis with abduction limited to 25 degrees from the side. 38 C.F.R. § 4.71a. Under DC 5202, which pertains to impairment of the humerous, a 20 percent disability rating is warranted when there is malunion of the humerous with moderate deformity in the major upper extremity or recurrent dislocation of the scapulohumeral joint of the major upper extremity with infrequent episodes and guarding of movement only at shoulder level. A 30 percent disability rating is warranted when there is malunion of the humerous with marked deformity in the major upper extremity or recurrent dislocation of the scapulohumeral joint of the major upper extremity with frequent episodes and guarding of all arm movements. A 50 percent disability rating is warranted when there fibrous union of the humerous in the major upper extremity. A 60 percent disability rating is warranted when there is nonunion of the humerous (false flail joint) in the major upper extremity. A maximum disability rating of 80 percent is warranted when there is loss of humerous head (flail shoulder) in the major upper extremity. 38 C.F.R. § 4.71a. The normal ROM of the shoulder is forward elevation (flexion) of 0 to 180 degrees; abduction of 0 to 180 degrees, external rotation of 0 to 90 degrees and internal rotation of 0 to 90 degrees. 38 C.F.R. § 4.71, Plate I. With forward elevation (flexion) and abduction, ROM for the arm is from the side of the body (zero degrees) to above the head (180 degrees) with the mid-point of 90 degrees where the arm is held straight out from the shoulder. Id. With external rotation, ROM for the arm is from the shoulder level (zero degrees) to in line with the side of the head (90 degrees). Id. With internal rotation, ROM for the arm is from the shoulder level (zero degrees) to in line with the side of the torso (90 degrees). Id. In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. Gabrielson, 7 Vet. App. at 39-40; Gilbert, 1 Vet. App. at 57. Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker, 10 Vet. App. at 74; Layno, 6 Vet. App. at 469; see also Cartright, 2 Vet. App. at 25 (1991). III. Facts The Veteran is currently assigned a 10 percent disability evaluation for his right shoulder disability. The Veteran asserts that a higher disability rating should be assigned. Service treatment records show that the Veteran incurred a right shoulder injury, diagnosed as a labral tear, in 2004. The Veteran subsequently underwent an arthroscopic repair procedure in June 2005. At a March 2007 medical evaluation, the Veteran complained that his right shoulder continued to bother him since surgery. Upon physical examination, pain was elicited by motion of the right shoulder. There was no swelling, no deformity, no muscle atrophy, and no tenderness on palpation of the shoulder. An X-ray showed no evidence of rotator cuff tendon or labral injury but some abnormal signal in the right humeral head posterolaterally. The examiner diagnosed recurring anterior instability of the right shoulder with continued pain. The Veteran was discharged from active duty in July 2007 due to his shoulder disability. The Veteran filed a claim for shoulder instability in November 2008. In June 2012, The Veteran was afforded a VA examination in connection with his claim. The Veteran reported constant pain, but did not report flare-ups. The Veteran stated that he has intermittent pain with lifting, pushing, and pulling. Examination of the right shoulder revealed no tenderness or pain on palpation, no guarding, and no ankylosis. The VA examiner noted that there was no functional loss for the right upper extremity. Muscle strength was 5/5 for abduction and flexion, which was normal. ROM testing revealed flexion and abduction to 180 degrees, with no objective evidence of painful motion, and internal and external rotation to 90 degrees. Repetitive-use testing revealed flexion and abduction to 180 degrees. The examiner opined that the Veteran did not have an AC joint disability or any other impairment of the clavicle or scapula. After the Veteran sought an initial increased rating for his service-connected right shoulder disability, he received a second VA examination in July 2013. The Veteran complained of persistent pain in his right shoulder, exacerbated by moderate activity. The Veteran stated that he could not lift greater than 10 pounds. The Veteran did not report flare ups. ROM testing revealed flexion and abduction to 140 degrees, with pain at 90 degrees, and internal and external rotation to 90 degrees. The Veteran was unable to perform repetitive use-testing due to pain. The examiner noted that the Veteran's right shoulder did not have localized tendernesss or pain on palpation, nor did the Veteran have guarding of the right shoulder. Muscle strength was 5/5 for abduction and flexion. The examiner did not find the Veteran to have ankylosis or any impairment of the clavicle or scapula. IV. Analysis Given the evidence of record, the Board finds that a rating of 20 percent for status post arthroscopy of the right shoulder is warranted. Although the June 2013 examination revealed flexion and abduction to 140 degrees, the Veteran experienced pain at 90 degrees (shoulder level). Resolving all doubt in the Veteran's favor, and in consideration of Deluca, the Board finds that the Veteran has limitation at shoulder level. A rating of 30 percent is not warranted because, even with consideration of pain, ROM of the right shoulder is not limited to midway between the side and shoulder levels. In this case there is no evidence of ankylosis of the scapulohumeral articulation; malunion of the humerus, or malunion of the major clavicle or scapula or nonunion without loss movement. Therefore, there is no basis for a higher schedular rating under either DC 5200, 5201, 5202, or 5203. In light of the holding in Hart, the Board has considered whether the Veteran is entitled to additional "staged" ratings in addition to those already awarded for his service-connected right shoulder disability, as the Court indicated can be done in this type of case. Based upon the record, the Board finds that at no time during the claims period has the disability on appeal been more disabling than as currently rated under the present decision of the Board. The Board has also considered the potential application of other various provisions, including 38 C.F.R. § 3.321(b)(1), for exceptional cases where schedular evaluations are found to be inadequate. In Thun v. Peake, 22 Vet. App. 111 (2008), the Court held that the determination of whether a claimant is entitled to an extra-schedular rating is a three-step inquiry. In Anderson v. Shinseki, 22 Vet. App. 423, 427 (2008), the Court clarified that the Thun steps are, in fact, "elements." The first step (or element) is a finding of whether the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Therefore, initially, 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. Id. This task is to be performed by the RO or the Board. Id. The second step is a determination of whether the claimant's exceptional disability picture exhibits other related factors such as those provided by the regulation as "governing norms." Id. Such factors include "marked interference with employment" and "frequent periods of hospitalization." Id. If these two elements are met, the case must be referred to the Under Secretary for Benefits or the Director of Compensation and Pension Service for completion of the third step or element-a determination of whether, to accord justice, the claimant's disability picture requires the assignment of an extra-schedular rating. Id. The Court has held that neither the RO nor the Board is permitted to assign an extra-schedular rating in the first instance; rather the matter must initially be referred to those officials who possess the delegated authority to assign such a rating. Anderson, 22 Vet. App. at 426. The record in this case does not show a level of severity or symptomatology that is not contemplated by the established criteria found in the rating schedule for the service-connected disability. It is not shown to result in frequent hospitalization or marked interference with employment. ORDER Entitlement to an evaluation of 20 percent, but not more, for right shoulder disability is granted. ____________________________________________ THOMAS J. DANNAHER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs