Citation Nr: 1340587 Decision Date: 12/09/13 Archive Date: 12/20/13 DOCKET NO. 08-22 535 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Huntington, West Virginia THE ISSUE Entitlement to an increased disability rating for residuals of a fracture of the left scapula with limitation of motion, currently evaluated as 20 percent disabling. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD R. Dodd, Associate Counsel INTRODUCTION The Veteran served on active duty from September 1971 to April 1973. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2007 rating decision by the Department of Veterans Affairs (VA) Regional office in Huntington, West Virginia. This case was previously before the Board in March 2010. At that time, the Board remanded the claim to the Appeals Management Center (AMC) in Washington, DC for additional development. That development having been completed, this case is once again before the Board. A review of the Virtual VA paperless claims processing system revealed a copy of a brief by the Veteran's representative. In Rice v. Shinseki, 22 Vet. App. 447 (2009), the United States Court of Appeals for Veterans Claims (Court) held that a total rating based on individual unemployability (TDIU) claim is part of an increased rating claim when such claim is raised by the record. As of this writing, this issue has not been raised by the Veteran or the record. FINDINGS OF FACT 1. The Veteran is right handed, therefore, his residuals of a fracture of the left scapula with limitation of motion are considered to affect a minor extremity. 2. Prior to April 14, 2010, the Veteran was not shown to have ankylosis, a limitation of motion of the left arm to 25 degrees from the side or less, a fibrous union of the humerus, non-union of the humerus, or loss of the head of the humerus in any period pertinent to this appeal. 3. As of April 14, 2010, residuals of a fracture of the left scapula have been manifested by significant limitation of motion and chronic pain, resulting in significant functional impairment. CONCLUSIONS OF LAW 1. Prior to April 14, 2010, the criteria for a disability rating in excess of 20 percent for residuals of a fracture of the left scapula with limitation of motion are not met. 38 U.S.C.A. § 1155, 5103(a), 5103A, 5107(b) (West 2002 & Supp. 2012); 38 C.F.R. § 3.102, 3.159, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5201 and 5202 (2013). 2. As of April 14, 2010, the criteria for a disability rating of 30 percent for residuals of a fracture of the left scapula with limitation of motion are met. 38 U.S.C.A. § 1155, 5103(a), 5103A, 5107(b) (West 2002 & Supp. 2012); 38 C.F.R. § 3.102, 3.159, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5201 and 5202 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION VCAA Under the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.102, 3.159, 3.326(a) (2013). Proper notice from VA must inform the claimant of any information and medical or lay 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. 38 U.S.C.A. § 5103(a); Quartuccio v. Principi, 16 Vet. App. 183, 186-87 (2002). This notice must be provided prior to an initial RO decision on a claim. Mayfield v. Nicholson, 444 F.3d 1328, 1333 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112, 119 (2004). VCAA notice requirements apply to all five elements of a service connection claim, including: (1) veteran status; (2) existence of a disability; (3) a connection between the veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 486 (2006). In a claim for an increased evaluation, the VCAA requirement is generic notice: the type of evidence needed to substantiate the claim, which consists of 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). Defective timing or content of VCAA notice is not prejudicial to a claimant if the error does not affect the essential fairness of the adjudication, such as where (1) the claimant demonstrates actual knowledge of the content of the required notice; (2) a reasonable person could be expected to understand from the notice what was needed; or (3) a benefit could not have been awarded as a matter of law. Sanders v. Nicholson, 487 F.3d 881, 889 (Fed. Cir. 2007), rev'd on other grounds, Shinseki v. Sanders/Simmons, 556 U.S. (2009). Defective timing may be cured by a fully compliant notice letter followed by a readjudication of the claim. Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). By letters dated in January 2007, May 2008, and March 2010, the RO/AMC advised the Veteran of the evidence needed for claim substantiation and explained what evidence VA would obtain or assist in obtaining and what information or evidence the claimant was responsible for providing. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). The letters apprised the Veteran of the downstream disability rating and effective date elements for claims, as required under Dingess v. Nicholson, 19 Vet. App. 473 (2006). The claim was readjudicated in a July 2008 statement of the case (SOC) and September 2010 supplemental statement of the case (SSOC). The Board finds that VA's duty to notify has been met. VA's duty to assist the Veteran has also been satisfied. 38 U.S.C.A. § 5103A(b), (c); 38 C.F.R. § 3.159(c)(1)-(3). The Veteran's service treatment records and VA outpatient treatment records have been obtained and associated with the claims file. The duty to assist also includes making as many requests as are necessary to obtain relevant records from a Federal department or agency, including, but not limited to, VA medical records and relevant Social Security Administration (SSA) records. 38 C.F.R. § 3.159(c)(2); Golz v. Shinseki, 590 F.3d 1317, 1321-23 (Fed. Cir. 2010). VA provided the Veteran with adequate medical examinations in February 2007 and April 2010. The examinations were adequate because they contained a history obtained from the Veteran and thorough examinations relevant to the applicable rating criteria. They also addressed the functional effects caused by the Veteran's disability. There is no indication in the record that additional evidence relevant to the issue decided herein is available and not part of the claims file. See Pelegrini, 18 Vet. App. at 121-22. The Board finds that the duty to assist has been met. Also, the Board finds that there has been substantial compliance with the directives of the March 2010 Remand, as the requested VA outpatient treatment records were obtained and a new concurrent VA examination with x-rays was conducted. See Stegall v. West, 11 Vet. App. 268, 271 (1998); Dyment v. West, 13 Vet. App. 141, 146-47 (1999). Legal Criteria Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Schedule), found in 38 C.F.R. Part 4 (2013). The Schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1 (2013). In resolving this factual issue, only the specific factors as enumerated in the applicable rating criteria may be considered. See Massey v. Brown, 7 Vet. App. 204, 208 (1994); Pernorio v. Derwinski, 2 Vet. App. 625, 628 (1992). In considering the severity of a disability, it is essential to trace the medical history of the veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41 (2013). Consideration of the whole-recorded history is necessary so that a rating may accurately reflect the elements of any disability present. 38 C.F.R. § 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Although the regulations do not give past medical reports precedence over current findings, the Board is to consider the veteran's medical history in determining the applicability of a higher rating for the entire period in which the appeal has been pending. Powell v. West, 13 Vet. App. 31, 34 (1999). Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary concern. Francisco v. Brown, 7 Vet. App. 55 (1994). The Veteran's residuals of a fracture of the left scapula with limitation of motion is rated as 20 percent disabling under the diagnostic code for limitation of motion of the arm and other impairment of the humerus. 38 C.F.R. § 4.71a, Diagnostic Codes 5201 and 5202. All evaluations are based upon a consideration of the Veteran's left extremity as minor one, as he is noted as right-hand dominant. A 20 percent evaluation is warranted for a limitation of motion of the arm at shoulder level or midway between side and shoulder level; or a malunion with moderate or marked deformity; or recurrent dislocation at the scapulohumeral joint with infrequent or frequent episodes and guarding of arm movements at the shoulder level or all arm movements. Id. A 30 percent evaluation is warranted for a limitation of motion of the arm to 25 degrees or less from the side. Id. A 40 percent evaluation is warranted for a fibrous union of the humerus. Id. A 50 percent evaluation is warranted for a non-union of the humerus. Id. A 70 percent evaluation is warranted for a loss of the head of the humerus. Id. Additionally, if a Veteran is shown to have ankylosis of the scapulahumeral articulation, higher evaluations may be warranted. 38 C.F.R. § 4.71a, Diagnostic Code 5200. Ankylosis is defined as when the scapula and humerus move as one piece. Id. A 20 percent evaluation is warranted for ankylosis that is favorable, with abduction to 60 degrees and an ability to reach the mouth and head. Id. A 30 percent evaluation is warranted for ankylosis that is intermediate between favorable and unfavorable. Id. A 40 percent evaluation is warranted for ankylosis that is unfavorable with abduction limited to 25 degrees or less from the side. Id. In evaluating musculoskeletal disabilities, the VA must determine whether pain could significantly limit functional ability during flare-ups, or when the joints are used repeatedly over a period of time. See DeLuca v. Brown, 8 Vet. App. 202, 206 (1995). Under 38 C.F.R. § 4.59, painful motion is a factor to be considered with any form of arthritis; however 38 C.F.R. § 4.59 is not limited to disabilities involving arthritis. See Burton v. Shinseki, 25 Vet. App. 1 (2011). The Court also has recently held, that "pain itself does not rise to the level of functional loss as contemplated by VA regulations applicable to the musculoskeletal system." Mitchell v. Shinseki, 25 Vet. App. 32, 38 (2011). Rather, pain, may result in functional loss, but only if it limits the ability "to perform the normal working movements of the body with normal excursion, strength, speed, coordination [, or] endurance." Id., quoting 38 C.F.R. § 4.40. Background The Veteran contends that his residuals of a fracture of the left scapula with limitation of motion are more severe than contemplated by an evaluation of 20 percent. To this effect, the Veteran has stated that his condition causes pain during movement, to which he has to restrict both occupational and activities of daily living. He has further indicated in his July 2008 VA Form 9 that he has to take injections every 6 months for treatment. A review of the Veteran's VA outpatient treatment records reveals that he has continually received treatment for his painful left shoulder disability. In February 2007, the Veteran was administered a VA examination. The Veteran reported weakness in abduction and forward elevation of the left arm, shoulder joint. The course of the Veteran's condition since onset in service was stable. The examiner determined that the Veteran was right-hand dominant and noted observable symptoms of pain, stiffness, and weakness. Range of motion testing revealed active and passive flexion of 180 degrees with pain at 100 degrees. Upon additional repetitions, range of motion decreased to 100 degrees. Active external and internal rotation was 90 degrees with no pain and no decrease upon repetition. Crepitus was noted upon movement. Muscle strength testing revealed 4/5 for abduction and forward elevation of the left shoulder. The left shoulder was noted as asymmetrical appearing 1 inch higher on the left than the right. X-rays revealed impressions of scapular deformity of uncertain character and moderate acromioclavicular joint arthrosis. The Veteran was diagnosed with post-traumatic deformity of the left scapula and post-traumatic acromioclavicular joint arthrosis of the left. Effects on occupation were noted as no significant effects. There were moderate effects on chores, exercise, sports, and recreation; mild effects on bathing, dressing, and grooming; and no effects on traveling, feeding, and toileting. It was also noted that the Veteran had weakness lifting the left arm above the head and that it would be pure speculation to state that the functional impairment would be due to flare-ups. In July 2007, the Veteran sought occupational therapy for his left shoulder pain. Range of motion testing revealed a flexion of 160 degrees, abduction of 140 degrees, extension within normal limits, and internal and external rotation of 90 degrees. Strength testing revealed 3/5 for the left shoulder. Crepitus was present as well as pain. There was tenderness over the anterior joint line. In August 2007, the Veteran was seen for complaints of pain in the left shoulder. Range of motion testing revealed limitation of motion in all directions as well as anterior pain. He was diagnosed with an impingement of the left shoulder. In September 2007, the Veteran was seen for complaints of pain in his left shoulder. Imaging revealed a rotator cuff tear. The Veteran requested and received an injection which provided partial relief of pain. In March 2008, the Veteran was seen for left shoulder pain, which had been previously relieved by injection therapy, but was currently hurting again. Tenderness was noted to the anterior lateral joint line. The Veteran was administered an injection with good partial relief of pain. In June 2009, the Veteran was seen for complaints of persistent pain, for which he was receiving no relief. Imaging was conducted and revealed a rotator cuff tear. Range of motion testing revealed a flexion of 75 degrees with minimal pain, 75 to 85 degrees with severe pain, and the ability to hold against resistance at 85 degrees. The Veteran also had an abduction of 85 degrees with pain and 80 to 85 degrees that was very painful. External rotation was 30 degrees and internal rotation was 60 degrees. The treatment provider recommended surgery. On April 14, 2010, the Veteran was provided with an additional VA examination. The Veteran reported limitation of motion since onset in service and pain any time he tries to move the left arm. The examiner noted guarding with all movement, which he stated verified the Veteran's claims of pain. The pain was described as a grinding type of pain with a severity of 5 to 6 on a scale of 1 to 10. The course since onset was noted as progressively worse and the Veteran reported receiving steroid injections that had a fair response. The examiner noted observable symptoms of deformity, giving way, stiffness, weakness, decreased motion, tenderness, crepitus, pain at rest, and daily subluxation occurring several times per day. Range of motion testing revealed 85 degrees of flexion, 85 degrees of abduction, 45 degrees of internal rotation, 45 degrees of external rotation. Pain was noted with active motion and repetition. No further loss of motion was noted with repetition. No ankylosis was found. X-rays revealed an impression of degenerative arthropathy and post-traumatic scapular deformity that was grossly stable. There was also interval development of narrowing of the subacromial space, compatible with rotator cuff pathology. Additional imaging revealed a complete tear of the supraspinatus with extension into the supraspinatus/infraspinatus confluence, medial tendon retraction, and muscular atrophy. The Veteran was diagnosed with traumatic arthritis of the left shoulder, complete tear of the supraspinatus with extension into the supraspinatus/infraspinatus confluence, medial tendon retraction, and muscular atrophy, post-traumatic scapular deformity, and surgical scars of the left shoulder/scapula. It was noted that there were significant effects on the Veteran's occupation. The Veteran's disability prevents participation in sports; has severe effects on exercise; moderate effects on chores, shopping, recreation, dressing, and grooming; mild effects on feeding, bathing, toileting, and driving; and no effects on traveling. The examiner noted that it would be pure speculation to express additional limitation due to a flare-up. Analysis Based on the above, the Board finds that the Veteran's residuals of a fracture of the left scapula with limitation of motion only meet the criteria for a 20 percent prior to April 14, 2010. In order to warrant the next higher evaluation, the evidence must show that he has ankylosis, a limitation of motion of the left arm to 25 degrees from the side or less, a fibrous union of the humerus, non-union of the humerus, or loss of the head of the humerus. Because the medical evidence of record has not at any time during the pertinent appeals period shown the presence of any symptoms other than his limitation of motion of 85 degrees of flexion, 85 degrees of abduction, 45 degrees of internal rotation, 45 degrees of external rotation, pain upon motion and repetition, daily subluxation, and guarding of all movements, the Board finds that the Veteran is not entitled to an evaluation in excess of 20 percent for his condition, as the criteria in the Schedule already contemplate these symptoms for that current evaluation. As of April 14, 2010, however, the residuals of a fracture of the left scapula have been manifested by significant limitation of motion and progressive, chronic pain, observable symptoms of deformity, giving way, stiffness, weakness, decreased motion, tenderness, crepitus, pain at rest, and daily subluxation occurring several times per day, all resulting in significant functional impairment. The Board finds that a 30 percent evaluation more closely contemplates the extent of the disability in question, as of April 14, 2010, the date of the most recent VA examination. Consideration has also been given regarding whether the schedular evaluations are inadequate, thus requiring that the RO refer a claim to the Chief Benefits Director or the Director, Compensation and Pension Service, for consideration of 'an extra-schedular evaluation commensurate with the average earning capacity impairment due exclusively to the service-connected disability or disabilities. 38 C.F.R. § 3.321(b)(1); Barringer v. Peake, 22 Vet. App. 242, 243-44 (2008). In this regard, the schedular evaluations in this case are not inadequate. Ratings in excess of those assigned are provided for certain manifestations of the service-connected residuals of a fracture of the left scapula with limitation of motion, but the evidence reflects that those manifestations are not present. The diagnostic criteria adequately describe the severity and symptomatology of the Veteran's residuals of a fracture of the left scapula with limitation of motion. Furthermore, the Board takes notice of the Veteran's complaints of daily pain and finds that he is competent to testify as to the severity of the symptomatology associated with his pain during and after service. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Additionally, his statements are presumed credible, as his complaints of pain have remained consistent in both his lay testimony and the medical record. However, painful motion is already contemplated in the current evaluation by the rating schedule, as guarding movements noted in the evaluations under diagnostic code 5202 are suggestive of such pain. Therefore, the Veteran's current ratings appropriately contemplate the scope of his complaints. Further, the Veteran does not contend, and the evidence of record does not suggest, that his left shoulder disability has caused him to miss work or has resulted in any hospitalizations. The Board finds, therefore, that the service-connected left shoulder disability does not result in marked interference with employment or frequent periods of hospitalization. 38 C.F.R. § 3.321(b)(1). Thus, even if his disability picture was exceptional or unusual, referral would not be warranted. ORDER Entitlement to a disability rating greater than 20 percent for residuals of a fracture of the left scapula with limitation of motion prior to April 14, 2010, is denied. Entitlement to a disability rating of 30 percent for residuals of a fracture of the left scapula with limitation of motion as of April 14, 2010, is granted, subject to the law and regulations governing the payment of monetary benefits. ____________________________________________ WAYNE M. BRAEUER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs