Citation Nr: 1340452	
Decision Date: 12/06/13    Archive Date: 12/20/13

DOCKET NO.  06-36 539	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Pittsburgh, Pennsylvania


THE ISSUES

1.  Entitlement to an initial compensable disability evaluation for the service-connected right shoulder prior to January 22, 2003.

2.  Entitlement to a separate evaluation for surgical scarring from the right shoulder surgery performed in July 2003.

3.  Entitlement to a separate evaluation for surgical scarring from the right shoulder surgery performed in July 2011.


REPRESENTATION

Appellant represented by:	Disabled American Veterans


ATTORNEY FOR THE BOARD

M. Hannan, Counsel
INTRODUCTION

The Veteran appellant served on active duty in the United States Army from March 1981 to March 2001, when he retired.  This case originally came before the Board of Veterans' Appeals (Board) on appeal from a March 2006 rating decision issued by the Pittsburgh, Pennsylvania Regional Office (RO) of the Department of Veterans Affairs (VA) that executed a December 2005 Board decision that granted service connection for a right shoulder disorder; the RO assigned a noncompensable rating, effective from April 1, 2001.

The Veteran is appealing the initial rating that was assigned.  As such, the guidance of Fenderson v. West, 12 Vet. App. 119 (1999) is for application.

After remanding the case for additional development in March 2010, the Board granted a 10 percent evaluation from January 21, 2003 onward in a decision issued in September 2012.  (A temporary total rating from July 7, 2003 to September 30, 2003 had been assigned by way of a rating decision, under the provisions of 38 U.S.C.A. § 4.29.  Another temporary total rating was assigned from July 11, 2011 to September 30, 2011.)

The Veteran appealed the Board's September 2012 decision to the United States Court of Appeals for Veterans Claims (Court).  In June 2013, the parties filed a Joint Motion for Partial Remand.  A June 2013 Order of the Court granted the Joint Motion and vacated that portion of the Board's decision that denied an initial compensable evaluation prior to January 22, 2003, and that denied entitlement to an evaluation in excess of 10 percent insofar as no separate rating was assigned for right shoulder surgical scarring.  (The Veteran did not appeal the decision to otherwise grant no more than a 10 percent rating from January 22, 2003 onward.)  The Court remanded the case for readjudication pursuant to the provisions of 38 U.S.C.A. § 7252(a).  Therefore, the Veteran's claim has been characterized as stated on the title page.

The record before the Board consists of the appellant's paper claims file and an electronic file known as Virtual VA.  Virtual VA does currently contain evidence (VA medical treatment records (CAPRI) dated between July 2010 and January 2012) and some of those records are not already included in the paper claims files.

After the most recent Supplemental Statement of the Case (SSOC) was issued in March 2012, additional evidence concerning the claims on appeal was submitted in September 2013.  This evidence consisted of VA treatment reports dated between March 2013 and July 2013.  The appellant also submitted a written waiver of initial review of that evidence by the RO.  Therefore referral to the RO of the evidence received directly by the Board is not required.  38 C.F.R. § 20.1304.

The issue of entitlement to a separate evaluation for scarring of the right shoulder associated with the July 2011 surgery is addressed in the REMAND portion of the decision below and that issue is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC.


FINDINGS OF FACT

1.  The Veteran is right-handed.

2.  Prior to January 22, 2003, the Veteran's right shoulder disability was manifested, at worst, by pain, a range of motion greater than shoulder level and no radiographic findings for arthritis.

3.  The Veteran's residual scar of the right shoulder, status post arthroscopic surgery in July 2003, is painful to palpation. 


CONCLUSIONS OF LAW

1.  The criteria for an initial disability rating of 10 percent, but not higher, for the right shoulder disability prior to January 22, 2003 have been met.  38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.7, 4.10, 4.40, 4.45, 4.59, 4.69, 4.71a, Diagnostic Codes 5003, 5200- 5203 (2013); Fenderson v. West, 12 Vet. App. 119, 126 (1999).

2.  The criteria for a 10 percent disability rating, but not higher, for a painful scar of the right shoulder, status post arthroscopic surgery in July 2003, have been met.  38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.7, 4.10, 4.14 (2013); 38 C.F.R. § 4.118, Diagnostic Code 7804 (2003). 


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I.  Duty to Notify and Assist

VA's duty to notify and assist claimants in substantiating their claims for VA benefits has been codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.159, 3.326(a).  Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his representative of any information, and any medical or lay evidence, that is necessary to substantiate the claim.  38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002).  Proper notice from VA 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, in accordance with 38 C.F.R. § 3.159(b)(1).  This notice must be provided prior to an initial unfavorable decision on a claim by the RO.  Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004).  In addition, the decision of the Court, in Dingess v. Nicholson, 19 Vet. App. 473 (2006), requires more extensive notice in claims for compensation, e.g., as to potential downstream issues such as disability rating and effective date.  

In a claim for increase, the 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 (2009).

The appellant's right shoulder claim arises from his disagreement with the initial noncompensable evaluation assigned following the grant of service connection.  The Court has held that, in cases where service connection has been granted and an initial disability rating and effective date have been assigned, the typical service-connection claim has been more than substantiated - it has been proven, thereby rendering notice under 38 U.S.C.A. § 5103(a) no longer required because the purpose that the notice is intended to serve has been fulfilled.  Dingess v. Nicholson, supra, at 491.  See also Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007).

Furthermore, to whatever extent the decision of the Court in Dingess requires more extensive notice in claims for compensation, e.g., as to potential downstream issues such as disability rating and effective date, the Board finds no prejudice to the Veteran in proceeding with the present decision.  A March 2006 letter to the Veteran from VA and the November 2006 Statement of the Case (SOC) contained the information required by Dingess.  

VA must also make reasonable efforts to assist the claimant 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(a); 38 C.F.R. § 3.159(c), (d).  Here, the veteran's service medical treatment records and his VA and private treatment records have been associated with the claims file.  In addition, the Veteran was afforded a VA medical examination in December 2000.

A medical opinion is adequate when it is based upon consideration of a veteran's prior medical history and examinations and also describes the disability in sufficient detail so that the Board's "evaluation of the claimed disability will be a fully informed one."  Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (quoting Green v. Derwinski, 1 Vet. App. 121, 124 (1991).  The December 2000 medical examination was conducted by a medical professional, and the associated report reflects review of the Veteran's right shoulder history.  The examination included reports of the symptoms for the claimed disability and demonstrated objective evaluations.  The VA examiner was able to assess and record the condition of the right shoulder disability.

The Board finds that the medical examination report was sufficiently detailed with recorded history, impact on employment and daily life, and clinical findings.  In addition, it is not shown that the examination was in any way incorrectly prepared or that the VA examiner failed to address the clinical significance of the Veteran's claimed right shoulder pathology.  Further, the VA examination report addressed the applicable criteria.  As a result, the Board finds that additional development by way of another examination would be redundant and unnecessary.  See 38 C.F.R. § 3.326 and 38 C.F.R. § 3.327 and Green v. Derwinski, supra.  Therefore, the Board concludes that the appellant was afforded an adequate examination.  Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008).

Hence, no further notice or assistance to the appellant is required to fulfill VA's duty to assist the appellant in the development of the claim.  Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002).  All relevant facts with respect to the claims addressed in the decision below have been properly developed.  Under the circumstances of this case, a remand would serve no useful purpose.  See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991) (strict adherence to requirements in the law does not dictate an unquestioning, blind adherence in the face of overwhelming evidence in support of the result in a particular case; such adherence would result in unnecessarily imposing additional burdens on VA with no benefit flowing to the veteran); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (remands which would only result in unnecessarily imposing additional burdens on VA with no benefit flowing to the veteran are to be avoided).

II.  The Merits of the Claims

In adjudicating a claim, the Board determines whether (1) the weight of the evidence supports the claim or, (2) whether the weight of the "positive" evidence in favor of the claim is in relative balance with the weight of the "negative" evidence against the claim.  The appellant prevails in either event.  However, if the weight of the evidence is against the appellant's claim, the claim must be denied.  38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990).

The law provides that disability evaluations are determined by the application of a schedule of ratings that is based upon an average impairment of earning capacity.  38 U.S.C.A. § 1155; 38 C.F.R. § 4.1.  Separate diagnostic codes identify the various disabilities.  Where there is a reasonable doubt as to the degree of disability, such doubt will be resolved in favor of the claimant.  38 C.F.R. §§ 3.102, 4.3, 4.7.  In addition, the Board will consider the potential application of the various other provisions of 38 C.F.R., Parts 3 and 4, whether they were raised by the appellant or not, as well as the entire history of the veteran's disability in reaching its decision, as required by Schafrath v. Derwinski, 1 Vet. App. 589 (1991).  

In the evaluation of service-connected disabilities, the entire recorded history, including medical and industrial history, is considered so that a report of a rating examination, and the evidence as a whole, may yield a current rating which accurately reflects all elements of disability, including the effects on ordinary activity.  38 C.F.R. §§ 4.1, 4.2, 4.10, 4.41.  In this case the evidence reviewed includes the appellant's service medical treatment records; his VA and private treatment records dated between 2001 and 2013; the report of the VA medical examination conducted in December 2000; and various written statements submitted by the appellant and his representative.

In general, when an increase in the disability rating is at issue, it is the present level of disability that is of primary concern.  See Francisco v. Brown, 7 Vet. App. 55, 58 (1994).  However, when the current appeal arose from initially assigned ratings, consideration must be given as to whether staged ratings should be assigned to reflect entitlement to a higher rating at any point during the pendency of the claim.  Fenderson v. West, 12 Vet. App. 119 (1999).  Also, staged ratings are appropriate in any increased-rating claim in which distinct time periods with different ratable symptoms can be identified.  Hart v. Mansfield, 21 Vet. App. 505 (2007).

Where there is a question as to which of two disability 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.

Normal range of motion for the shoulder is as follows:  forward elevation (flexion) to 180 degrees; abduction to 180 degrees; internal rotation to 90 degrees; and external rotation to 90 degrees.  38 C.F.R. § 4.71, Plate I.  See also Lineberger v. Brown, 5 Vet. App. 367, (1993) (pursuant to 38 C.F.R. § 4.71, Plate I, normal range of flexion (forward elevation) and abduction of the shoulder is to 180 degrees).

Ratings for functional impairment of the upper extremities depend on which extremity is the major extremity, i.e., the one predominantly used by the individual.  Only one extremity is considered to be major and a person is presumed to be right-handed unless there is evidence of left-handedness.  38 C.F.R. § 4.69.  Review of the evidence reveals that the appellant was noted to be right-handed during his December 2000 retirement medical examination.  Thus, the rating for the right shoulder is to be made on the basis of the right upper extremity being the major extremity.  

Pursuant to regulatory provisions, degenerative arthritis established by x-ray findings will be rated on the basis of limitation of motion under the appropriate Diagnostic Codes for the specific joint involved.  Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion.  Where there is x-ray evidence of arthritis and limitation of motion, but not to a compensable degree under the Diagnostic Code, a 10 percent rating is for assignment for a major joint.  38 C.F.R. § 4.71, Diagnostic Codes 5003, 5010.  The shoulder is considered a major joint.  38 C.F.R. § 4.45.

Under 38 C.F.R. § 4.40, functional loss may be due to pain, supported by adequate pathology and evidenced by the visible behavior of the claimant on motion.  Disability of the musculoskeletal system is the inability to perform normal working movement with normal excursion, strength, speed, coordination, and endurance, and that weakness is as important as limitation of motion, and that a part that becomes disabled on use must be regarded as seriously disabled.  A little used part of the musculoskeletal system may be expected to show evidence of disuse, through atrophy, for example.  38 C.F.R. § 4.40.

The provisions of 38 C.F.R. §§ 4.45 and 4.59 also contemplate inquiry into whether there is limitation of motion, weakness, excess fatigability, incoordination, and impaired ability to execute skilled movements smoothly, and pain on movement, swelling, deformity, or atrophy of disuse.  Instability of station, disturbance of locomotion, interference with sitting, standing, and weight-bearing are also related considerations.  The Court has held that diagnostic codes predicated on limitation of motion require consideration of a higher rating based on functional loss due to pain on use or due to flare-ups.  38 C.F.R. §§ 4.40, 4.45, 4.59; Johnson v. Brown, 9 Vet. App. 7 (1997); and DeLuca v. Brown, 8 Vet. App. 202, 206 (1995).  However, when the maximum rating for limitation of motion of a joint has already been assigned, a finding of pain on motion cannot result in a higher rating.  Johnson v. Brown, 9 Vet. App. 7 (1997).

The application of 38 C.F.R. § 4.59 is not limited to arthritis-related claims.  Burton v. Shinseki, 25 Vet. App. 1 (2011).  Functional loss due to pain is rated at the same level as functional loss where motion is impeded.  See Schafrath v. Derwinski, 1 Vet. App. 589, 592 (1991).  Pursuant to 38 C.F.R. § 4.59, painful motion should be considered limited motion, even though a range of motion may be possible beyond the point when pain sets in.  See Powell v. West, 13 Vet. App. 31, 34 (1999).

The evidence of record demonstrates that the appellant complained of shoulder pain in service in November 2000.  The next month, he again complained of swollen painful joints and reported that he had problems with lifting.  During his December 2000 retirement examination, the appellant was noted to exhibit spasms when performing the movement of internal rotation with the right arm.  Right shoulder abduction and internal rotation were accomplished with pain.

In August 2001, the appellant underwent an initial evaluation at a VA outpatient clinic.  The appellant complained of right shoulder pain.  On physical examination, the appellant demonstrated a full range of motion of the right upper extremity, but crepitus was observed during that range of motion testing.  A November 2001 VA orthopedic clinic note indicates that the appellant gave a history of a right rotator cuff tear with subsequent physical therapy.  The appellant also reported pain on use of his right upper extremity.  Radiographic examination of the appellant's right shoulder was accomplished that same month and revealed that the os acromiale (the joint between the scapula and acromion) was predisposed to impingement but with no other osseous, articular, or soft tissue abnormalities.  Magnetic resonance imaging (MRI) was accomplished in a private facility on January 22, 2003, and revealed the presence of very mild impingement at the acromioclavicular joint, degenerative changes, and some humeral head contusions but without a suggestion of a tear.

In summary, the evidence of record does demonstrate that the appellant has consistently complained of right shoulder pain since November 2000.  There are clinical findings of limited motion, pain on motion, spasm on motion and crepitus on motion.  In addition, the appellant's statements about his pain, pain on use, additional restrictions during flare-ups and reduced range of motion are lay assertions which may serve to support a claim by supporting the occurrence of lay-observable events or the presence of symptoms of disability subject to lay observation.  38 U.S.C.A. § 1153(a); 38 C.F.R. § 3.303(a); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence).  See also Davidson v. Shinseki, 581 F.3d 1313 (2009) (noting that a layperson may comment on lay-observable symptoms).

Another factor to consider is the degree of pain experienced by the claimant.  With increasing levels of pain, concomitantly increasing degrees of muscle spasm, weakness, atrophy, inability to function, and the like, are expected.  38 C.F.R. §§ 4.40, 4.45, 4.59.  The appellant has described his subjective complaints of worsening pain, and objective medical evidence has indicated that the appellant sought treatment for his shoulder pain.  

The Court has held that VA must analyze the evidence of pain, weakened movement, excess fatigability, or incoordination and determine the level of associated functional loss in light of 38 C.F.R. § 4.40, which requires the VA to regard as "seriously disabled" any part of the musculoskeletal system that becomes painful on use.  DeLuca v. Brown, 8 Vet. App. 202 (1995).  The provisions of 38 C.F.R. § 4.14 (avoidance of pyramiding) did not forbid consideration of a higher rating based on greater limitation of motion due to pain on use, including during flare-ups.  The Board notes that the guidance provided by the Court in DeLuca must be followed when adjudicating claims under the diagnostic codes that require consideration of limitation of motion.  Johnson v. Brown, 9 Vet. App. 7 (1996).  

The Board also notes that the intent of the Rating Schedule is to recognize painful motion with joint or periarticular pathology as productive of disability.  It is the intention to recognize actually painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint.  38 C.F.R. § 4.59.  Painful motion with joint or periarticular pathology and unstable joints due to healed injury are recognized as productive of disability entitled to at least the minimum compensable rating for the joint.  For the shoulder joint, 10 percent is the minimum rating available under either Diagnostic Code 5003 or 5203.

Examining the evidence summarized above, and giving due consideration to the provisions under 38 C.F.R. § 4.59, as well as due consideration to the provisions of 38 C.F.R. §§ 4.7, 4.10 and 4.40, the medical evidence of record shows that the appellant's orthopedic right shoulder symptomatology does approximate the schedular criteria for an evaluation of 10 percent for that disability and has done so throughout the appeal period.  The pain and functional limitations caused by the right shoulder disorder are contemplated in the evaluation for the orthopedic symptomatology of the shoulder that is represented by the 10 percent rating awarded herein.  In so holding, the Board finds that the Veteran's report of right shoulder pain and limitations are credible and consistent with the medical evidence of record. 

An evaluation in excess of 10 percent is not warranted however.  The movement of the shoulder and arm joint is covered in the regulations by Diagnostic Codes 5200 to 5203.  Under the applicable provisions, a 30 percent evaluation is warranted for favorable ankylosis of the scapulohumeral articulation of the major upper extremity.  Ankylosis is considered to be favorable when abduction is possible to 60 degrees and the individual can reach his or her mouth and head.  Ankylosis of the scapulohumeral articulation of the major upper extremity that is intermediate between favorable and unfavorable ankylosis warrants a 40 percent evaluation.  A 50 percent evaluation of the major upper extremity requires unfavorable ankylosis.  Ankylosis is considered to be unfavorable when abduction is limited to 25 degrees from the side.  38 C.F.R. § 4.71a, Diagnostic Code 5200.  In this case, no ankylosis of the right shoulder is present.

A 20 percent evaluation is warranted for limitation of motion of the major or minor arm when motion is possible only to the shoulder level.  A 30 percent evaluation is warranted for limitation of motion of the major arm when motion is possible to midway between the side and shoulder level.  A 40 percent evaluation for the major upper extremity requires that motion be limited to 25 degrees from the side.  38 C.F.R. § 4.71a, Diagnostic Code 5201.  In this case, limitation of motion of the right shoulder was demonstrated during the December 2000 VA medical examination but the appellant's right shoulder abduction was only limited to 160 degrees (out of 180).

Finally, malunion of the clavicle or scapula, or nonunion without loose movement, warrants a 10 percent evaluation on either side.  A 20 percent evaluation on either side requires nonunion with loose movement or dislocation.  These disabilities may also be rated on the basis of impairment of function of the contiguous joint.  38 C.F.R. § 4.71a, Diagnostic Code 5203.  In this case, the appellant does not have malunion or nonunion of the clavicle.

Applying the diagnostic codes, there is no objective clinical evidence of ankylosis of the right shoulder at any time.  See Massey v. Brown, 7 Vet. App. 204, 208 (1994); Pernorio v. Derwinski, 2 Vet. App. 625, 628 (1992).  Diagnostic Code 5200 is therefore not for application.  The appellant was able to raise his right arm 160 degrees, therefore limitation only to the shoulder level has not been shown and a higher rating is not warranted under Diagnostic Code 5201.  Loss of the head of the humerus (flail shoulder) has not been demonstrated, nor has nonunion of the humerus (false flail joint).  There is no clinical evidence of the existence of fibrous union.  Thus the criteria for a higher schedular rating under Diagnostic Code 5202 have not been met.  In addition, neither malunion of the clavicle or scapula, nor nonunion without loose movement, has been demonstrated in the appellant's major (right) upper extremity.  Thus the criteria for a higher schedular rating under Diagnostic Code 5203 have not been met.  Furthermore, no impairment of function of a contiguous joint has been clinically demonstrated.

Except as otherwise provided in the Rating Schedule, all service-connected disabilities, including those arising from a single entity, are to be rated separately, and then all ratings are to be combined pursuant to 38 C.F.R. § 4.25.  One exception to this general rule, however, is the anti-pyramiding provision of 38 C.F.R. § 4.14, which states that evaluation of the "same disability" or the "same manifestation" under various diagnoses is to be avoided.  In Esteban v. Brown, 6 Vet. App. 259 (1994), the Court held that the described disabilities in that case warranted 10 percent evaluations under each of three separate diagnostic codes, none of which had a rating criterion the same as another.  The Court held that the conditions were to be rated separately under 38 C.F.R. § 4.25, unless they constituted the same disability or the same manifestation under 38 C.F.R. § 4.14.  Id. at 261.  The critical element cited was "that none of the symptomatology for any one of those three conditions [was] duplicative of or overlapping with the symptomatology of the other two conditions." Id. at 262.  Therefore, the Board has also considered whether a separate evaluation would be warranted for the surgical scarring on the right shoulder from the July 2003 procedure.

Effective August 30, 2002, VA revised the rating schedule for evaluating skin disabilities.  38 C.F.R. § 4.118 (2003).  Here, because the surgery that is the basis for consideration of the scarring residuals took place in July 2003, consideration need only be given to the new rating criteria.

The Board notes that, as of October 23, 2008, revised provisions for evaluating scars were enacted.  This new regulation, however, indicates that the revised provisions are applicable only to claims received on or after October 23, 2008.  Accordingly, these revisions do not apply to the present case.  73 Fed. Reg. 54,708 (Sept. 23, 2008).  Rather, the appellant's scar will be considered solely under the criteria effective between December 4, 2002 and October 22, 2008.

Under the rating criteria in effect prior to October 23, 2008, scars, other than the head face, or neck, that are deep or that cause limited motion in an area or areas exceeding 6 square inches (39 square centimeters) warrant a 10 percent disability rating.  A 20 percent rating is warranted for area or areas exceeding 12 square inches (77 square centimeters), a 30 percent rating is warranted for an area or areas exceeding 72 square inches (465 square centimeters), and a 40 percent rating is warranted for an area or area exceeding 144 square inches (929 square centimeters).  38 C.F.R. § 4.118, Diagnostic Code 7801.  There is no clinical evidence to establish that the appellant's right shoulder surgical scarring of July 2003 exceeds six square inches.  Therefore, Diagnostic Code 7801 is not for application.

Under Diagnostic Code 7802 (as in effect prior to October 23, 2008), a 10 percent rating is warranted for: scars, other than head, face, or neck, that are superficial and that do not cause limited motion, area or areas of 144 square inches (929 sq. cm.) or greater.  This is the maximum rating available under this code.  There is no clinical evidence to establish that the appellant's right shoulder surgical scarring of July 2003 exceeds 144 square inches.  Therefore, Diagnostic Code 7802 is not for application.

Under Diagnostic Code 7803 (as in effect prior to October 23, 2008), a 10 percent rating is warranted for unstable superficial scars.  This is the maximum rating available under this code.  However, the right shoulder surgical scarring of July 2003 has not been shown to be unstable and, therefore, this Diagnostic Code is not for application.

Under Diagnostic Code 7804 (as in effect prior to October 23, 2008), a 10 percent evaluation is warranted for scars which are shown to be painful and tender on objective demonstration.  This is the maximum rating available under this code.  A December 2010 VA orthopedic surgery consultation note indicates that the appellant's well-healed surgical scar over the anterior portion of the right shoulder was tender to palpation along the incision.

Under Diagnostic Code 7805 (as in effect prior to October 23, 2008), other scars will be rated on limitation of function of the part affected.  In this case, no limitation of function has been identified in the right shoulder due to the surgical scarring of July 2003; therefore Diagnostic Code 7805 is not for application.

In addition, based upon the guidance of the Court in Hart v. Mansfield, 21 Vet. App. 505 (2007), the Board has considered whether staged rating are appropriate.  The Board has not found any variation in the appellant's right shoulder joint or surgical scar symptomatology or in clinical findings for either disability that would warrant the assignment of any staged ratings.

The Board observes that a claim for a total disability rating based on individual unemployability (TDIU) is generally part of an increased rating claim when that claim is raised by the record.  Rice v. Shinseki, 22 Vet. App. 447 (2009).  However, the Veteran has not asserted, and the record does not otherwise show, that he is unemployable due to the service-connected disability.  On the contrary, the evidence of record shows that the Veteran had been looking for work or gainfully employed throughout the period on appeal.  See, e.g., May 2002 and September 2011 VA treatment reports.  Therefore, the Board finds that entitlement to TDIU is not part of the increased rating claims currently on appeal.

Lastly, in exceptional cases an extra-schedular rating may be provided.  38 C.F.R. § 3.321.  The Court has set out a three-part test, based on the language of this VA regulation, for determining whether a Veteran is entitled to an extraschedular rating: (1) the established schedular criteria must be inadequate to describe the severity and symptoms of the claimant's disability; (2) the case must present other indicia of an exceptional or unusual disability picture, such as marked interference with employment or frequent periods of hospitalization; and (3) the award of an extraschedular disability rating must be in the interest of justice.  Thun v. Peake, 22 Vet. App. 111 (2008), aff'd, Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009).

Here, though, the Board finds that the rating criteria sufficiently contemplate the extent and severity of these service-connected disabilities at issue, including insofar as addressing the Veteran's symptoms and complaints.  With respect to the orthopedic aspect of his right shoulder claim, his primary complaint is of chronic or persistent pain and the effect this pain has on his range of motion.  But the initial 10 percent evaluation assigned herein takes this into account as described above.  In addition, with respect to the surgical scar disability of the right shoulder, the Veteran's primary complaint is that the scar is tender and painful.  Again, the initial 10 percent evaluation assigned herein takes this into account as described above.  Therefore, the rating criteria are adequate to evaluate these disabilities and referral for consideration of extra-schedular ratings is not warranted.  Bagwell v. Brown, 9 Vet. App. 237, 238-9 (1996); Floyd v. Brown, 9 Vet. App. 88, 96 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995); and VAOPGCPREC 6-96 (August 16, 1996).


ORDER

Entitlement to an initial evaluation of 10 percent , but not more, is granted for the right shoulder disability prior to January 22, 2003, subject to the law and regulations governing the payment of monetary benefits.

A separate 10 percent evaluation, but not more, is granted for the scar from the July 2003 right shoulder surgery, subject to the law and regulations governing the payment of monetary benefits.


REMAND

The Veteran was last afforded a VA right shoulder examination in April 2010.  He subsequently underwent right shoulder surgery in July 2011, but no post-surgery examination has been conducted.  Thus, there is no description of record of the surgical scarring associated with the July 2011 surgical procedure.  The Board therefore finds that the Veteran should be afforded another VA examination.  While the case is in remand status, the originating agency should also obtain any outstanding records pertinent to the Veteran's claim.  

These considerations require further investigation by medical professionals, inasmuch as the Board is prohibited from invoking its own unsubstantiated medical opinions.  See Colvin v. Derwinski, Vet. App. 171, 175 (1991).  In addition, the duty to assist includes obtaining medical records and examinations where indicated by the facts and circumstances of an individual case.  See Murphy v. Derwinski, 1 Vet. App. 78 (1990).  The Court has stated that the Board's task is to make findings based on evidence of record - not to supply missing facts.  Beaty v. Brown, 6 Vet. App. 532 (1994).  Thus, where the record before the Board is inadequate to render a fully informed decision, a remand to the RO is required in order to fulfill its statutory duty to assist the appellant to develop the facts pertinent to the claims on appeal.  Ascherl v. Brown, 4 Vet. App. 371, 377 (1993).

To ensure that VA has met its duty to assist in developing the facts pertinent to the claim remaining on appeal and to afford full procedural due process, the case is REMANDED for the following:

1.  Assure that all notification and development action required by 38 U.S.C.A. §§ 5102, 5103, and 5103A, the implementing regulations found at 38 C.F.R. § 3.159, and any other applicable legal precedent has been completed.

2.  Contact the appellant to obtain the names and addresses of all private and VA or other government medical care providers and treatment centers where he has been treated for any right shoulder complaints or associated surgical scar problems since 2011.  After securing the necessary release(s), obtain all records and information not previously secured.  All records obtained must be associated with the claims file.

3.  To the extent there is an attempt to obtain any of these records that is unsuccessful, the claims file must contain documentation of the attempts made.  The appellant and his representative must also be informed of the negative results and be given opportunity to secure the records.

4.  After completing any additional notification and/or development action deemed warranted by the record, schedule the appellant for a VA scar examination.  The claims file and any pertinent electronic evidence that is not contained in the claims file must be made available to and reviewed by the examiner.  Ensure that the examiner provides all information required for rating purposes, to include information required to rate the surgical scarring associated with the July 2011 right shoulder procedure.

5.  Upon receipt of the VA medical examination report, conduct a review to verify that all requested findings have been offered.  If information is deemed lacking, refer the report to the VA examiner for corrections or additions.  See 38 C.F.R. § 4.2.  

6.  After completing any additional notification and/or development action deemed warranted by the record, readjudicate the claim on appeal.  The readjudication must reflect consideration of all the evidence of record and be accomplished with application of all appropriate legal theories and Diagnostic Code versions; 38 C.F.R. §§ 3.321; and Hart v. Mansfield, 21 Vet. App. 505 (2007).  

7.  If the benefit sought on appeal remains denied, the appellant and his representative must be provided a Supplemental Statement of the Case (SSOC).  An appropriate period of time must be allowed for response.

The appellant is hereby notified that it is the appellant's responsibility to report for any scheduled examination and to cooperate in the development of the case, and that the consequences of failure to report for a VA examination without good cause may include denial of the claim.  38 C.F.R. §§ 3.158 and 3.655.

The appellant has the right to submit additional evidence and argument on the matter the Board has remanded.  Kutscherousky v. West, 12 Vet. App. 369 (1999).  Thereafter, the case should be returned to the Board, if in order.  The Board intimates no opinion as to the ultimate outcome of this case.  The appellant need take no action unless otherwise notified.

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. 2013).



______________________________________________
DENNIS F. CHIAPPETTA
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs