Citation Nr: 1340176 Decision Date: 12/05/13 Archive Date: 12/20/13 DOCKET NO. 12-31 866 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Pittsburgh, Pennsylvania THE ISSUES 1. Entitlement to an increased rating for arthritis of the right shoulder, status post torn rotary cuff with a scar, currently rated as 20 percent disabling. 2. Entitlement to an increased rating for arthritis of the right elbow, status post arthroplasty with anterior release and a scar, currently rated as 10 percent disabling. REPRESENTATION Appellant represented by: Georgia Department of Veterans Services ATTORNEY FOR THE BOARD Michael Sanford, Associate Counsel INTRODUCTION The Veteran had active military service from December 1981 to December 2001. The case comes before the Board of Veterans' Appeals (Board) on appeal of a December 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia. Subsequent to the issuance of that rating decision, jurisdiction was transferred to the RO in Pittsburgh, Pennsylvania. FINDINGS OF FACT 1. X-rays of the Veteran's right shoulder document degenerative or traumatic arthritis. 2. The Veteran's right shoulder disability is characterized by pain and limited range of motion; flexion is limited to 135 degrees and ankylosis is not shown; a resultant scar is not painful or unstable and the total area of that scar is not greater than 39 square centimeters. 3. X-rays of the Veteran's right elbow document degenerative or traumatic arthritis. 4. The Veteran's right elbow disability is characterized by pain and limited range of motion; extension is limited to 45 degrees and flexion is limited to 135 degrees; no ankylosis or limitation of pronation and supination is shown, a resultant scar is not painful or unstable and the total area of that scar is not greater than 39 square centimeters. CONCLUSIONS OF LAW 1. The criteria for an evaluation in excess of 20 percent for arthritis of the right shoulder status post torn rotary cuff with a scar have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.118, Diagnostic Codes 7801-7805, 4.40, 4.71a, Diagnostic Codes 5003, 5010, 5200, 5201 (2013). 2. The criteria for an evaluation in excess of 10 percent for arthritis of the right elbow status post arthroplasty with anterior release and a scar have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.118, Diagnostic Codes 7801-7805, 4.40, 4.71a, Diagnostic Codes 5003, 5010, 5206-5208, 5213 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist VA's duties to notify and assist claimants in substantiating a claim for VA benefits are found at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). See also Quartuccio v. Principi, 16 Vet. App. 183 (2002); Pelegrini v. Principi, 18 Vet. App. 112 (2004); Dingess v. Nicholson, 19 Vet. App. 473 (2006). The Veteran received notification prior to the initial unfavorable agency decision through a notice letter dated September 2010. That notice letter explained the type of evidence necessary for the Veteran to substantiate his claim for an increased rating of both his service-connected right shoulder and right elbow disabilities. The duty to notify the Veteran was satisfied under the circumstances of this case. 38 U.S.C.A. § 5103. VA must also make reasonable efforts to assist the appellant in obtaining evidence necessary to substantiate the claim for the benefit sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159 (2013). Service treatment records are associated with claims file. All post-service treatment records and reports identified by the Veteran have also been obtained. The appellant has not identified any additional records that should be obtained prior to a Board decision. Therefore, VA's duty to further assist the Veteran in locating additional records has been satisfied. The Veteran has been afforded a VA examination for his right shoulder and right elbow disabilities on appeal. See 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159 (c)(4); Wells v. Principi, 327 F. 3d 1339 (Fed. Cir. 2002). The Board finds this examination is adequate for the purposes of the evaluating the Veteran's right shoulder and right elbow disabilities, as it involved a review of the Veteran's pertinent medical history as well as a physical examination of the Veteran, and provided a review of relevant symptomatology related to the disability on appeal. See generally Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). In light of the foregoing, the Board is satisfied that all relevant facts have been adequately developed to the extent possible; no further assistance to the appellant in developing the facts pertinent to the issues on appeal is required to comply with the duty to assist. 38 U.S.C.A. §§ 5103 and 5103A (West 2002); 38 C.F.R. § 3.159 (2013). Merits Disability evaluations are determined by comparing a Veteran's present symptomatology with criteria set forth in the VA's Schedule for Rating Disabilities (Rating Schedule), which is based on average impairment in earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. When a question arises as to which of two ratings apply under a particular diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating. 38 C.F.R. § 4.7. 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 reviewed when making disability evaluations. See generally 38 C.F.R. 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Where, as in the present case, entitlement to compensation has already been established and increase in disability rating is at issue, present level of disability is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Therefore, although the Board has thoroughly reviewed all evidence of record, the more critical evidence consists of the evidence generated during the appeal period. Further, the Board must evaluate the medical evidence of record since the filing of the claim for increased rating and consider the appropriateness of a "staged rating" (i.e., assignment of different ratings for distinct periods of time, based on the facts). See Hart v. Mansfield, 21 Vet. App. 505 (2007); see also Fenderson v. West, 12 Vet. App. 119 (1999). Disability of the musculoskeletal system is primarily the inability, due to damage or infection in 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 the visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and a part which becomes painful on use must be regarded as seriously disabled. A little used part of the musculoskeletal system may be expected to show evidence of disuse, either through atrophy, the condition of the skin, absence of normal callosity or the like. See 38 C.F.R. Part 4, § 4.40 (2013). The Board points out that the diagnostic codes pertaining to limitation of motion of the shoulder and elbow differentiate ratings based on whether the major or minor extremity is impacted. See 38 C.F.R. § 4.71a, Diagnostic Codes 5200-5203, 5205-5213. In this instance, the Veteran's right shoulder and right elbow disabilities are service-connected and the Veteran is right handed, see February 2012 VA Examination Report, meaning that it is the Veteran's major extremities that are at issue. The United States Court of Appeals for Veterans Claims has held that the Board must determine whether there is evidence of weakened movement, excess fatigability, incoordination, or functional loss due to pain on use or flare-ups when the joint in question is used repeatedly over a period of time. See DeLuca v. Brown, 8 Vet. App. 202, 206 - 207 (1995). The Board will now address the Veteran's claims for increased ratings of his service-connected right shoulder disability and right elbow disability, in turn, below. A. Increased Rating for a Right Shoulder Disability. The Veteran's right shoulder disability is currently rated as 20 percent disabling under 38 C.F.R. § 4.71a, Diagnostic Code 5010-5207. Generally, hyphenated diagnostic codes are used when an unlisted disability is at issue. See 38 C.F.R. § 4.27 (2013). Use of the second diagnostic code helps provide further detail regarding the origins of the unlisted disability, the bodily functions affected, the symptomatology, and anatomical location. Id.; see Tropf v. Nicholson, 20 Vet. App. 317, 321 (2006). Additionally, the diagnostic code following the hyphen is the diagnostic code by which the disability is evaluated. Id. Diagnostic Code 5010 contemplates traumatic arthritis. It provides that traumatic arthritis established by X-ray findings is to be evaluated as degenerative arthritis. 38 C.F.R. § 4.71a, Diagnostic Code 5010. Degenerative arthritis established by X-ray findings will be evaluated on the basis of limitation of motion of the specified joint or joints involved. 38 C.F.R. § 4.71a, Diagnostic Code 5003. When, however, limitation of motion of the specific joint is noncompensable under the appropriate diagnostic codes, a 10 percent rating is assigned for major joint pain affected by limitation of motion. Diagnostic Code 5201 provides the ratings for limitation of motion of the arm. That diagnostic code specifies that limitation of motion of the arm is rated as follows for the major extremity (as here): A 20 percent rating is warranted for limitation of motion at the shoulder level (e.g., flexion to 90 degrees). A 30 percent rating is additionally warranted for limitation of motion of the arm midway between the side and shoulder level (e.g., flexion between 25 to 90 degrees). A 40 percent rating is warranted for limitation of motion of the arm to 25 degrees from the side. 38 C.F.R. § 4.71a, Diagnostic Code 5201. Also potentially applicable is Diagnostic Code 5200, pertaining to ankylosis of the of the scapulohumeral articulation. Normal range of motion of the shoulder joint is from 0 to 180 degrees of forward elevation, 0 to 180 degrees of abduction, 0 to 90 degrees of external rotation, and 0 to 90 degrees of internal rotation. See 38 C.F.R. § 4.71, Plate I (2013). In evaluating the examination reports, forward flexion means forward elevation, with shoulder abduction indicating motion from the side. Id. X-rays of the Veteran's right shoulder showed degenerative or traumatic arthritis of the shoulder. See February 2012 VA Examination Report. At the Veteran's February 2012 VA examination, the Veteran reported that he experiences pain in his right shoulder and he is unable to life his right arm over his head. The Veteran denied that flare-ups impact the function of his shoulder or arm. Range of motion testing was performed on the Veteran's right shoulder. The results of that testing showed flexion to 135 degrees and no objective evidence of painful motion. Further, the testing showed abduction to 135 degrees and no objective evidence of painful motion. Repetitive-use range of motion testing on the Veteran's right shoulder was also performed. That testing showed flexion to 135 degrees and abduction to 135 degrees. As such, repetitive-use testing showed no additional limitation of range of motion. The examiner also explained that the Veteran does not have ankylosis of the shoulder. The objective results of the range of motion testing support no greater than a 20 percent rating for the Veteran's right shoulder disability. A 30 percent rating is warranted where flexion is between 25 and 90 degrees. 38 C.F.R. § 4.71a, Diagnostic Code 5203. Moreover, a 40 percent rating is warranted where flexion ends at 25 degrees. Id. Indeed, in this instance, the Veteran exhibited right shoulder flexion to 135 degrees on range of motion testing. In fact, the Veteran does not meet the criteria for a 20 percent rating under Diagnostic Code 5203, as that requires that flexion be limited to 90 degrees. Id. Rating of the Veteran's right shoulder disability does not meet any of the criteria under Diagnostic Code 5200 as the Veteran does not have ankylosis of the right shoulder. See February 2012 VA Examination Report. As such, a rating under the applicable diagnostic codes does not warrant an evaluation in excess of 20 percent. Further, a rating under Diagnostic Code 5200 is not warranted as the Veteran does not have ankylosis of the right shoulder. The Veteran argues that his limited range of motion, relating to his right shoulder disability warrant an increased rating. See January 2011 Notice of Disagreement; November 2012 VA 9 Form. However, that range of motion was objectively measured at the Veteran's February 2012 VA examination. The results of that testing was applied to the applicable diagnostic code criteria above. The Veteran is correct that he does experience some limited range of motion. However, the extent of that limited range of motion does not warrant a rating in excess of 20 percent. Several VA treatment records pertaining to the Veteran's right shoulder disability are associated with the claims file. However, none of those records indicate a level of disability greater than that shown in the February 2012 VA examination record. Further, it does not appear that the Veteran has undergone any range of motion testing, other than at his February 2012 VA examination, that would indicate that the Veteran's right shoulder range of motion is more impaired than that which was shown at his February 2012 examination. As such, those records do not support a rating in excess of 20 percent for the Veteran's service-connected right shoulder disability. The Board acknowledges the Veteran's complaints of pain pertaining to his right shoulder. However, the objective evidence of record does not indicate such pain limits the Veteran's functional range of motion of his right shoulder at all. See February 2012 VA Examination Report. As such, those complaints of pain do not serve as the basis for an increased evaluation for the Veteran's right shoulder disability. See Mitchell v. Shinseki, 25 Vet. App. 32 (2011) ("pain itself does not rise to the level of functional loss as contemplated by the VA regulations applicable to the musculoskeletal system."). The Board has also considered the right shoulder scar in the evaluation of the service-connected shoulder disability. The February 2012 VA examiner, however, explained that the Veteran's right shoulder scar was not painful or unstable and the total area of that scare was not greater than 39 square centimeters (6 square inches). As such, a separate, compensable rating for the residual scar is not appropriate. See 38 C.F.R. § 4.118, Diagnostic Codes 7801-7805. B. Increased Rating for a Right Elbow Disability. The Veteran's right elbow disability is currently rated as 10 percent disabling under 38 C.F.R. § 4.71a, Diagnostic Code 5010-5207. As stated above, Diagnostic Code 5010 contemplates traumatic arthritis. It provides that traumatic arthritis established by X-ray findings is to be evaluated as degenerative arthritis. 38 C.F.R. § 4.71a, Diagnostic Code 5010. Degenerative arthritis established by X-ray findings will be evaluated on the basis of limitation of motion of the specified joint or joints involved. 38 C.F.R. § 4.71a, Diagnostic Code 5003. When, however, limitation of motion of the specific joint is noncompensable under the appropriate diagnostic codes, a 10 percent rating is assigned for major joint pain affected by limitation of motion. Under Diagnostic Code 5207, extension of the forearm limited to 45 degrees is rated as 10 percent disabling for the major side; extension of the forearm limited to 60 degrees is rated as 10 percent disabling for the major side; extension of the forearm limited to 75 degrees is rated as 20 percent disabling for the major side; extension of the forearm limited to 90 percent is rated as 30 percent disabling for the major side; extension of the forearm limited to 100 degrees is rated as 40 percent disabling for the major side; and extension of the forearm limited to 110 degrees is rated as 50 percent disabling for the major side. 38 C.F.R. § 4.71a, Diagnostic Code 5207 (2013). Additionally, under the provisions of Diagnostic Code 5206, flexion of the major forearm limited to 110 degrees is rated as 0 percent disabling; flexion of the major forearm limited to 100 degrees is rated as 10 percent disabling; flexion of the major forearm limited to 90 degrees is rated as 20 percent disabling; flexion of the major forearm limited to 70 degrees is rated as 30 percent disabling; flexion of the major forearm limited to 55 degrees is rated as 40 percent disabling; flexion of the major forearm limited to 45 degrees is rated as 50 percent disabling. 38 C.F.R. § 4.71a, Diagnostic Code 5206 (2013). Moreover, a 20 percent rating is warranted where flexion of the forearm is limited to 100 degrees and extension is limited to 45 degrees. 38 C.F.R. § 4.71a, Diagnostic Code 5208. The schedule also includes criteria for evaluation of limitation of pronation and supination. 38 C.F.R. § 4.71a, Diagnostic Code 5213. Limitation of supination of 30 degrees or less warrants a 10 percent rating. A 20 percent rating is warranted for loss of pronation motion beyond the last quarter of the arc or for loss of pronation motion beyond the middle of the arc. Diagnostic Code 5213 also provides for a 20 percent rating if the hand is fixed near the middle of the arc or moderate pronation or if the minor hand is fixed in full pronation; and a 30 percent rating if the minor hand is fixed in supination or hyperpronation. Id. At the Veteran's February 2012 VA examination, the Veteran explained to the examiner that the Veteran's right elbow disability causes much pain to the Veteran and causes numbness. The Veteran did not report that flare-ups impact the function of his elbow or forearm. Range of motion testing was completed. The Veteran exhibited right elbow extension to 45 degrees. After repetitive-use testing, the Veteran displayed right elbow extension to 45 degrees. The Veteran also exhibited right elbow flexion to 135 degrees, the point at which the Veteran displayed objective evidence of painful motion. After repetitive-use testing, the Veteran exhibited right elbow flexion to 135 degrees. The examiner noted that right elbow flexion and extension strength were both 5/5. The examiner also noted that the Veteran did not have ankylosis of the right elbow. Finally, the examiner stated that the Veteran did not have right elbow joint fracture or impairment of supination or pronation. The objective results of the February 2012 range of motion testing supports no greater than a 10 percent rating for the Veteran's right elbow disability. As noted above, a 20 percent rating under Diagnostic Code requires that flexion be limited to 90 degrees. Here, the Veteran exhibited flexion to 135 degrees, this was also true after repetitive-use testing. See February 2012 VA Examination Report. Under Diagnostic Code 5206, a rating in excess of 10 percent for the Veteran's right shoulder disability is not warranted. Further, with regard to extension, a rating of 20 percent is warranted where extension is limited to 75 degrees and a 10 percent rating is applicable where extension is limited to 45 degrees. 38 C.F.R. § 4.71a, Diagnostic Code 5207. In this instance, the examiner noted that extension was limited to 45 degrees, which was also true after repetitive-use testing. See February 2012 VA Examination Report. Under Diagnostic Code 5207, a rating in excess of 10 percent is not warranted. Further, any rating under Diagnostic Code 5213 is also not warranted as the February 2012 examiner noted that the Veteran does not have right elbow joint fracture or impairment of supination or pronation. The Veteran argues that his limited range of motion, relating to his right elbow disability warrant an increased rating. See January 2011 Notice of Disagreement; November 2012 VA 9 Form. However, that range of motion was objectively measured at the Veteran's February 2012 VA examination. The results of that testing was applied to the applicable diagnostic code criteria above. The Veteran is correct that he does experience some limited range of motion. However, the extent of that limited range of motion does not warrant a rating in excess of 10 percent. The Veteran further argues that he has suffered a loss of bone or muscle mass in his right arm. See January 2012 Notice of Disagreement. Even assuming that is true, the Veteran is not competent to state that a loss of bone or muscle mass is a result of any of his service-connected disabilities. See Moray v. Brown, 5 Vet. App. 211 (1993) (lay persons not competent to render medical opinions). Moreover, after detailing the effects of the Veteran's service-connected disabilities on appeal, the February 2012 VA examiner specifically noted that there were no further pertinent physical findings related to the Veteran's service-connected right shoulder and right elbow disabilities. This indicates that the examiner did not find any purported bone or muscle mass loss pertinent or that such symptomatology was unrelated or not present. Several VA treatment records pertaining to the Veteran's right elbow disability are associated with the claims file. However, none of those records indicate a level of disability greater than that shown in the February 2012 VA examination record. Further, it does not appear that the Veteran has undergone any range of motion testing, other than at his February 2012 VA examination, that would indicate that the Veteran's right elbow range of motion is more impaired than that which was shown at his February 2012 examination. As such, those records do not support a rating in excess of 10 percent for the Veteran's service-connected right elbow disability. The Board acknowledges the Veteran's complaints of pain pertaining to his right elbow. However, the objective evidence of record does not indicate such pain limits the Veteran's functional range of motion of his right elbow at all. See February 2012 VA Examination Report. As such, those complaints of pain do not serve as the basis for an increased evaluation for the Veteran's right elbow disability. See Mitchell, 25 Vet. App. 32 ("pain itself does not rise to the level of functional loss as contemplated by the VA regulations applicable to the musculoskeletal system."). The Board has also considered the right elbow scar in the evaluation of the service-connected right elbow disability. The February 2012 VA examiner, however, explained that the Veteran's right elbow scar was not painful or unstable and the total area of that scare was not greater than 39 square centimeters (6 square inches). As such, a separate, compensable rating for the residual scar is not appropriate. See 38 C.F.R. § 4.118, Diagnostic Codes 7801-7805. C. Extraschedular Rating 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. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). The Board finds that the severity of the Veteran's service-connected right shoulder and right elbow disabilities are fully contemplated by the rating criteria. There is nothing exceptional about these service-connected disabilities. The degrees of disability exhibited by the Veteran's service-connected right shoulder and right elbow disabilities are fully contemplated by the rating schedule. Thus, the Board finds that the threshold test is not met for referral for extra-schedular consideration. 38 C.F.R. § 4.16(b); Thun v. Peake, 22 Vet. App. 111 (2008). D. TDIU Finally, pursuant to Rice v. Shinseki, 22 Vet. App. 447 (2009), a claim for a total disability rating by reason of individual unemployability due to a service-connected disability (TDIU) is considered part and parcel of an increased rating claim when the issue of unemployability is raised by the record. In this case, the issue of unemployability is not raised by the record. Nowhere does the Veteran assert that his service-connected disabilities render him unable to secure or maintain substantially gainful employment. Indeed, the February 2012 VA examiner noted that the Veteran is serving as a training officer and opined that the Veteran "can do the job with his shoulder and elbow." The Board finds that the issue of unemployability is not raised by the record. In conclusion, the Board has considered the doctrine of reasonable doubt, but finds that the record does not provide an approximate balance of negative and positive evidence on the merits. 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 3.102 (2013). Therefore, the Board is unable to identify a reasonable basis for granting the Veteran's claim ORDER Entitlement to an increased rating for arthritis of the right shoulder, status post torn rotary cuff with a scar, currently rated as 20 percent disabling, is denied. Entitlement to an increased rating for a arthritis of the right elbow, status post arthroplasty with anterior release and a scar, currently rated as 10 percent disabling, is denied. ____________________________________________ J. A. MARKEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs