Citation Nr: 1340432 Decision Date: 12/06/13 Archive Date: 12/20/13 DOCKET NO. 13-06 077 ) DATE ) ) On appeal from the Department of Veterans Affairs Hartford Regional Office in Newington, Connecticut THE ISSUE Entitlement to a rating in excess of 20 percent for a left shoulder disability. REPRESENTATION Veteran represented by: Paul Bradley, Agent ATTORNEY FOR THE BOARD Rory Reyhan Layne, Associate Counsel INTRODUCTION The Veteran served on active duty from June 1980 to June 1984. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2012 rating decision of the Department of Veterans Affairs (VA), Hartford Regional Office (RO) in Newington, Connecticut. The record before the Board consists of the Veteran's paper claims file and an electronic file known as Virtual VA. FINDINGS OF FACT 1. The Veteran is right hand dominant. 2. The Veteran's left shoulder disability is manifested by limitation of motion; the limitation of motion does not more nearly approximate limitation to 25 degrees from the side than midway between the side and shoulder level. CONCLUSION OF LAW The criteria for a disability rating in excess of 20 percent for a left shoulder disability have not been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.7, 4.71a, Diagnostic Codes 5200-5203 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veterans Claims Assistance Act of 2000 (VCAA), codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2013), and the pertinent implementing regulation, codified at 38 C.F.R. § 3.159 (2013), provide that VA will assist a claimant in obtaining evidence necessary to substantiate a claim but is not required to provide assistance to a claimant if there is no reasonable possibility that such assistance would aid in substantiating the claim. They also require VA to notify the claimant and the claimant's representative, if any, of any information, and any medical or lay evidence, not previously provided to the Secretary that is necessary to substantiate the claim. As part of the notice, VA is to specifically inform the claimant and the claimant's representative, if any, of which portion, if any, of the evidence is to be provided by the claimant and which part, if any, VA will attempt to obtain on behalf of the claimant. The Board also notes the United States Court of Appeals for Veterans Claims (Court) has held that the plain language of 38 U.S.C.A. § 5103(a), requires that notice to a claimant pursuant to the VCAA be provided "at the time" that or "immediately after" VA receives a complete or substantially complete application for VA-administered benefits. Pelegrini v. Principi, 18 Vet. App. 112, 119 (2004). The timing requirement enunciated in Pelegrini applies equally to the initial-disability-rating and effective-date elements of a service-connection claim. Dingess v. Nicholson, 19 Vet. App. 473 (2006). The record reflects that the Veteran was provided with all required notice in a letter mailed in September 2011, prior to the initial adjudication of the claim. The record also reflects that VA has obtained the Veteran's private and VA treatment records. The RO also provided the Veteran appropriate VA examinations in September 2011 and June 2012. The reports of these examinations are adequate because they were based on a thorough examination, a description of the Veteran's pertinent medical history, a complete review of the Veteran's pertinent history and appropriate diagnostic tests. The Board acknowledges that the Veteran's agent, in a notice of disagreement and substantive appeal received in February 2013, challenged the adequacy of the VA examination. Specifically, the agent contends that the VA examiner "encouraged [the Veteran] to push his movements into the area of great pain/discomfort." The Board has reviewed the examination reports. They reflect that the VA examiners, in conducting the required range of motion tests, specifically noted the normal endpoint for flexion and abduction of the Veteran's left shoulder. The examiners also noted where objective evidence of painful motion began for both flexion and abduction. Therefore, the Board has not found the representative's argument to be persuasive. Neither the Veteran nor his representative has identified any other evidence that could be obtained to substantiate the claim. The Board is also unaware of any such evidence. Therefore, the Board is satisfied that VA has complied with its duty to assist the Veteran in the development of the facts pertinent to this claim. Legal Criteria Disability evaluations are determined by the application of the VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4 (2013). The percentage ratings contained in the Rating Schedule represent, as far as can be practicably 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; 38 C.F.R. §§ 3.321(a), 4.1 (2013). Currently, the Veteran's left shoulder disability is rated under Diagnostic Code 5201, which pertains to limitation of motion of the arm. Under this code a 20 percent disability rating is warranted when range of motion of the minor arm is limited to the shoulder level or midway between the side and shoulder level. A 30 percent disability rating is warranted when range of motion of the minor upper extremity is limited to 25 degrees from the side. 38 C.F.R. § 4.71a. Under Diagnostic Code 5200, which pertains to ankylosis of the scapulohumeral articulation (Note: the scapula and the humerus move as one piece), a 20 percent disability rating is warranted when there is favorable ankylosis of the minor scapulohumeral articulation with abduction to 60 degrees and the ability to reach the mouth and head with the minor upper extremity. A 30 percent disability rating is warranted when the ankylosis in the minor upper extremity is intermediate between favorable and unfavorable. A 40 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 38 C.F.R. § 4.71a , Diagnostic Code 5202, which pertains to impairment of the humerous, a 20 percent disability rating is warranted when there is malunion of the humerus with moderate or marked deformity in the minor upper extremity or recurrent dislocation of the scapulohumeral joint of the minor upper extremity with infrequent or frequent episodes and guarding of movement only at shoulder level. A 40 percent disability rating is warranted when there fibrous union of the humerus in the minor upper extremity. A 50 percent disability rating is warranted when there is nonunion of the humerous (false flail joint) in the minor upper extremity. A maximum disability rating of 70 percent is warranted when there is loss of humerous head (flail shoulder) in the minor upper extremity. In determining the degree of limitation of motion, the provisions of 38 C.F.R. § 4.40 concerning lack of normal endurance, functional loss due to pain, and pain on use and during flare-ups; the provisions of 38 C.F.R. § 4.45 concerning weakened movement, excess fatigability, and incoordination; and the provisions of 38 C.F.R. § 4.10 concerning the effects of the disability on the veteran's ordinary activity are for consideration. See DeLuca v. Brown, 8 Vet. App. 202 (1995). 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. The evaluation of the same disability under various diagnoses is to be avoided. 38 C.F.R. § 4.14 (2013). 38 C.F.R. § 4.14 does not preclude the assignment of separate evaluations for separate and distinct symptomatology where none of the symptomatology justifying an evaluation under one diagnostic code is duplicative of or overlapping with the symptomatology justifying an evaluation under another diagnostic code. Esteban v. Brown, 6 Vet. App. 259, 262 (1994). In both initial rating claims and normal increased rating claims, the Board must discuss whether "staged ratings" are warranted, and if not, why not. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary. The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107 (West 2002); 38 C.F.R. §§ 3.102, 4.3 (2013); see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. Factual Background and Analysis In accordance with 38 C.F.R. §§ 4.1, 4.2, 4.41, 4.42 (2013) and Schafrath v. Derwinski, 1 Vet. App. 589 (1991), the Board has reviewed all evidence of record pertaining to the history of the service-connected disability. The Board has found nothing in the historical record which would lead to the conclusion that the current evidence of record is not adequate for rating purposes. Moreover, the Board is of the opinion that this case presents no evidentiary considerations which would warrant an exposition of remote clinical histories and findings pertaining to this disability. In September 2011, the Veteran sought treatment at a VA emergency room. The Veteran reported chronic left shoulder pain with recent worsening, significant left shoulder pain with damp weather, difficulty holding a cell phone, and pain in his left shoulder while lying on his stomach. The noted clinical history also included "recurrent dislocations last 10 years." The treatment report notes that the Veteran underwent shoulder dislocation repair in 1984. On physical examination, the physician noted "some pain with [internal] rotation [left] shoulder and abduction [greater than] 90 degrees." Radiographic examination of the Veteran's left shoulder revealed, ". . . . no radiographic evidence of acute fracture or dislocation. The joint spaces show mild degenerative changes at the acromioclavicular joint space and more prominent degenerative change [at] the gelenohumeral joint space. Hardware is present without breakage. There is no aggressive bone destruction. The soft tissues are unremarkable." The treatment report notes a final impression of "[d]egenerative changes predominantly in the glenohumeral joint space." During the pendency of this claim, the Veteran underwent two VA examinations. In September 2011, the examiner diagnosed degenerative joint disease of the glenohumeral joint, and noted a previous 1984 diagnosis of recurrent dislocation of the shoulder status post open reduction. At that time, the Veteran reported that his left shoulder had been bothering him "on and off for the past 5-6 years." He reported that the pain lasted approximately two days and would relieve itself spontaneously. He also reported that he was unable to lift his shoulder above shoulder level without pain, experienced some numbness in his arm while lying down on his stomach or raising his arm above his shoulder, and was unable to hold his cellular phone to his ear for more than a few seconds without pain. The Veteran denied any difficulty with driving, home or work-related activities, or activities of daily living (ADLs). The examiner noted the Veteran's report of flare-ups, as detailed above. On range of motion testing, the Veteran had forward flexion of 180 degrees with no objective evidence of painful motion. Left shoulder abduction was limited to 155 degrees, with evidence of painful potion beginning at 155 degrees. Range of motion after repetitive use was unchanged. No ankylosis was noted. Muscle strength test results for left shoulder flexion and abduction were 5/5. A scar was noted; however, it was not painful or unstable, and did not have a total area greater than 6 square inches. The Veteran underwent a second VA examination in June 2012. In reporting his flare-up symptoms, the Veteran noted that the pain in his left shoulder had become more persistent and intense. He described it as a throbbing pain that lasted from two hours to an entire day. The Veteran stated that as a result of the pain, he had difficulty pulling up his pants with his left hand, and had to wear his seatbelt below his arm. He also reported that he had maintained his full-time employment with no light duty or loss of time from work. In addition, the Veteran reported that there was no impairment of his ADLs. On range of motion testing, the Veteran had forward flexion of 160 degrees, with evidence of painful potion beginning at 150 degrees. Left shoulder abduction was limited to 150 degrees, with evidence of painful motion beginning at 130 degrees. Range of motion after repetitive use was unchanged. No ankylosis was noted. Muscle strength test results for left shoulder flexion and abduction were 5/5. A scar was noted; however, it was not painful or unstable, and did not have a total area greater than 6 square inches. The Veteran also submitted private treatment records, from June 2012 to October 2012, showing forward flexion of 160 degrees, and abduction limited to 90 degrees. A July 2012 treatment report notes that the Veteran no longer experienced shoulder instability or dislocations. The treatment notes indicate that on physical examination, in October 2012, the Veteran had "no internal rotation and limited motion associated with discomfort." At that time, the Veteran reported that his left shoulder pain had persisted for longer than usual, thus, an intra-articular injection was administered. The private physician diagnosed left shoulder osteoarthritis, and associated it with the increased pain being experienced by the Veteran. Upon careful review of the evidence of record, the Board finds that the Veteran is not entitled to a disability rating in excess of 20 percent for his left shoulder disability. The Board notes that, at worst, his left shoulder flexion is limited to 150 degrees (including consideration of pain), and his left shoulder abduction is only limited to 90 degrees. The Board acknowledges that the Veteran certainly has limitation of motion of the left shoulder. This range of motion most nearly approximates motion of the arm limited to the shoulder level, considering flare-ups as described. This degree of limitation of motion is contemplated by the assigned rating of 20 percent. The evidence does not show that limitation of motion of his left arm more nearly approximates the limitation to 25 degrees from the side required for a higher rating. Throughout the pendency of this claim, the Veteran's left shoulder disability has been manifested by chronic pain, limited motion, some functional loss, no muscle weakness, and no decrease in his ability to perform ADLs. Again, when evaluating a disability involving a joint, adequate consideration must be given 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 also DeLuca, 8 Vet. App. 202. Even with consideration of the additional functional impairment present during flare ups and on repeated use, it is clear that the Veteran's limitation of motion does not approach that required for a higher rating. Although the Veteran has limitation of motion, the VA examiners clearly stated that the Veteran did not have ankylosis of the left shoulder, and therefore, an evaluation under Diagnostic Code 5200 would not be appropriate. 38 C.F.R. § 4.71a. The Board has considered whether the Veteran may be entitled to a rating in excess of 20 percent pursuant to Diagnostic Code 5202. First, the medical evidence of record does not show the Veteran to have malunion of the humerus. Second, although he is shown to have a history of recurrent dislocations of the scapulohumeral joint, his private physician noted that surgical intervention in 1984 had remedied this condition. Thus, the Veteran would not be entitled to a higher rating under this Diagnostic Code. VA must consider all favorable lay evidence of record. 38 USCA § 5107(b); Caluza v. Brown, 7 Vet. App. 498 (1995). Accordingly, in arriving at the determinations above the Board has considered not only the medical evidence but also the lay evidence presented by the Veteran in the form of his correspondence to VA and the statements he made to VA examiners. As a layperson, the Veteran is competent to testify in regard to the onset and continuity of symptomatology. Heuer v. Brown, 7 Vet. App. 379, 384 (1995); Falzone v. Brown, 8 Vet. App. 398, 403 (1995); Caldwell v. Derwinski, 1 Vet. App. 466 (1991). However, even affording this lay evidence full competence and credibility, such lay evidence does not support a schedular rating higher than that currently awarded. Consideration has been given to assigning a staged rating; however, at no time during the period in question has the disability warranted more than a 20 percent schedular rating. The objective evidence also reflects that the Veteran has a residual scar on the left shoulder. Thus, the Board has considered whether the Veteran is entitled to a separate compensable rating for the surgical scar on his left shoulder, but finds that he is not because the scar is not deep, unstable, or painful, and does cover an area of 144 square inches (929 sq. cm.) or greater. See 38 C.F.R. § 4.118 (2013). Notably, the Veteran reported that his seatbelt irritated his left shoulder scar; however, the September 2011 and June 2012 examinations revealed that the scar was stable and not painful. There is no indication from the clinical examinations that the scar causes limitation of function of the affected part. Moreover, limitation of motion is already considered in evaluating the overall left shoulder disability. Therefore, the Veteran's left shoulder scar does not warrant a compensable rating under any of the provisions of Diagnostic Codes 7801 to 7805. Other Considerations The Board has considered whether this case should be referred to the Director of the Compensation and Pension Service for extra-schedular consideration. In determining whether a case should be referred for extra-schedular consideration, the Board must compare the level of severity and the symptomatology of the claimant's disability with the established criteria provided in the rating schedule for disability. If the criteria reasonably describe the claimant's disability level and symptomatology, then the disability picture is contemplated by the rating schedule, the assigned evaluation is therefore adequate, and no referral for extra-schedular consideration is required. Thun v. Peake, 22 Vet. App. 111, 115 (2008). As explained above, the Veteran's left shoulder disability is primarily manifested by pain and resulting limitation of motion. His overall functional impairment is contemplated by the schedular criteria. Therefore, referral of this claim for extra-schedular consideration is not in order. The Board has also considered whether a claim of entitlement to a total rating based on unemployability (TDIU) due to the service-connected left shoulder disability has been raised. Where a veteran: (1) submits evidence of a medical disability; (2) makes a claim for the highest rating possible; and (3) submits evidence of unemployability, the requirement in 38 C.F.R. § 3.155(a) that an informal claim "identify the benefit sought" has been satisfied and VA must consider whether the veteran is entitled to a total rating for compensation purposes based on individual unemployability. See Rice v. Shinseki, 22 Vet. App. 447 (2009), citing Comer v. Peake, 552 F.3d 1362 (Fed. Cir. 2009). In this case the Veteran has not asserted, and the evidence of record does not suggest, that his left shoulder disability on appeal renders him unemployable. Accordingly, a claim for TDIU is not raised in this appeal. Finally, the Board has considered the doctrine of reasonable doubt but has determined that it is not applicable to this claim because the preponderance of the evidence is against the claim. ORDER A disability rating in excess of 20 percent for a left shoulder disability is denied. ____________________________________________ Shane A. Durkin Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs