Citation Nr: 1340847 Decision Date: 12/11/13 Archive Date: 12/20/13 DOCKET NO. 12-33 712 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Lincoln, Nebraska THE ISSUES 1. Entitlement to an initial evaluation in excess of 10 percent for right shoulder tendonitis. 2. Entitlement to an initial evaluation in excess of 10 percent for left shoulder tendonitis. REPRESENTATION Appellant represented by: National Association of County Veterans Service Officers WITNESSES AT HEARING ON APPEAL The Veteran, S.S. ATTORNEY FOR THE BOARD James A. DeFrank, Counsel INTRODUCTION The Veteran had active military service from August 1954 to August 1974. These matters come before the Board of Veterans' Appeals (Board) on appeal from a September 2012 rating decision issued by the Regional Office (RO) in St. Lincoln, Nebraska which, in part, granted service connection for right and left shoulder tendonitis at a 10 percent disability evaluation, effective January 11, 2012. In November 2013, the Veteran testified at a Travel Board hearing which was chaired by the undersigned Veterans Law Judge at the Lincoln RO. A transcript of the hearing has been associated with the Veteran's VA claims folder. The Board notes that, in addition to the paper claims file, there is a Virtual VA electronic claims file associated with the Veteran's claim. A review of the documents in the electronic file reveals additional evidence that will be considered by the Board in this appeal. The issues of entitlement to service connection for an acquired psychiatric disorder to include as secondary to service-connected headaches and cervical spine disability and entitlement to service connection for numbness of the hands and feet have been raised by the record, but have not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over them, and they are referred to the AOJ for appropriate action. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDINGS OF FACT 1. The Veteran's right and left shoulder disabilities have been manifested by pain and stiffness with range of motion more nearly approximating shoulder level. 3. The Veteran's right and left shoulder disabilities do not more nearly reflect arm motion limited to 25 degrees from the side; at worst the Veteran has had flexion that is functionally limited to approximately 90 degrees. CONCLUSIONS OF LAW 1. The criteria for an initial 20 percent evaluation, and no higher, for service-connected right shoulder tendonitis, have been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.3, 4.7, 4.71a, Diagnostic Code 5201-5019 (2012). 2. The criteria for an initial 20 percent evaluation, and no higher, for service-connected left shoulder tendonitis, have been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.3, 4.7, 4.71a, Diagnostic Code 5201-5019 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS 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 and 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). See also 73 Fed. Reg. 23,353-23,356 (April 30, 2008) (concerning revisions to 38 C.F.R. § 3.159). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical evidence or lay evidence that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). In accordance with 38 C.F.R. § 3.159(b)(1), proper notice 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. Notice should be sent prior to the appealed rating decision or, if sent after the rating decision, before a readjudication of the appeal. A Supplemental Statement of the Case, when issued following a notice letter, satisfies the due process and notification requirements for an adjudicative decision for these purposes. See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). The RO provided notice to the Veteran in a January 2012 letter, prior to the date of the issuance of the appealed September 2012 rating decision. The January 2012 letter explained what information and evidence was needed to substantiate a claim for service connection, as well as what information and evidence must be submitted by the Veteran, and what information and evidence would be obtained by VA. The January 2012 letter also provided the Veteran with information pertaining to the assignment of disability ratings and effective dates, as well as the type of evidence that impacts those determinations, consistent with Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Furthermore, for initial rating claims or claims for an earlier effective date, where, as here, service connection has been granted for an acquired psychiatric disorder and plantar fasciitis of the left foot and the initial ratings and effective dates have been assigned, the claim of service connection has been more than substantiated, as it has been proven, thereby rendering 38 U.S.C.A. § 5103(a) notice no longer required because the purpose that the notice was intended to serve has been fulfilled. Once a claim for service connection has been substantiated, the filing of a notice of disagreement (NOD) with the rating or the effective date of the disability does not trigger additional 38 U.S.C.A. § 5103(a) notice. See Dingess v. Nicholson, 19 Vet. App. 473, 490-491; Dunlap v. Nicholson, 21 Vet. App. 112 (2007). The record also reflects that VA has made reasonable efforts to obtain or to assist in obtaining all relevant records pertinent to the matters on appeal. Pertinent medical evidence associated with the claims file consists of service, VA treatment records and the report of a March 2012 VA examination. The March 2012 VA examination report reflects that the VA examiner reviewed the Veteran's past medical history, recorded his current complaints, conducted an appropriate evaluation of the Veteran, and rendered an appropriate diagnosis and opinion consistent with the remainder of the evidence of record. As such, the Board finds that the March 2012 VA examination report is sufficient upon which to base a decision with regard to these claims. See 38 C.F.R. § 4.2 (2012); see also Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). Also of record and considered in connection with the appeal are the various written statements provided by the Veteran and by the Veteran's representative on his behalf as well as the November 2013 hearing testimony. The Board finds that no additional RO action to further develop the record on the claims is warranted. Overall, there is no evidence of any VA error in notifying or assisting the Veteran that reasonably affects the fairness of this adjudication. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the VA shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107(b). The Board has reviewed all the evidence in the Veteran's claims file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Veteran or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claims and what the evidence in the claims file shows, or fails to show, with respect to the claims. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). General Legal Criteria Disability evaluations are determined by the application of VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4 (2012). 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 active service and their residual conditions in civil occupations. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1 (2012). Generally, the degree of disabilities specified are considered adequate to compensate for considerable loss of working time from exacerbation or illness proportionate to the severity of the several grades of disability. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.1 (2012). Separate diagnostic codes identify the various disabilities and the criteria for specific ratings. If two disability evaluations are potentially applicable, the higher evaluation will be assigned to the disability picture that more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2012). Any reasonable doubt regarding the degree of disability will be resolved in favor of the Veteran. 38 C.F.R. § 4.3 (2012). The Veteran's entire history is reviewed when making a disability determination. See 38 C.F.R. § 4.1 (2012). Where the Veteran timely appealed the rating initially assigned for the service-connected disability within one year of the notice of the establishment of service connection for it, VA must consider whether the Veteran is entitled to "staged" ratings to compensate him for times since filing his claim when his disability may have been more severe than at other times during the course of his appeal. See Fenderson v. West, 12 Vet. App. 119 (1999). Evaluation of a service-connected disability involving a joint rated on limitation of motion requires adequate consideration 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. DeLuca v. Brown, 8 Vet. App. 202, 205-206 (1995). The provisions of 38 C.F.R. § 4.40 state that disability of the musculoskeletal system is primarily the inability, due to damage or inflammation in parts of the system, to perform normal working movements of the body with normal excursion, strength, speed, coordination and endurance. Functional loss may be due to the absence of part, or all, of the necessary bones, joints and muscles, or associated structures. It may also be due to pain supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion. 38 C.F.R. § 4.40. The factors of disability affecting joints are reduction of normal excursion of movements in different planes, weakened movement, excess fatigability, swelling and pain on movement. 38 C.F.R. § 4.45. The assignment of a particular Diagnostic Code is dependent on the facts of a particular case. See Butts v. Brown, 5 Vet. App. 532, 538 (1993). In reviewing the claim for a higher rating, VA must consider which Diagnostic Code or Codes are most appropriate for application in the veteran's case and provide an explanation for the conclusion. See Tedeschi v. Brown, 7 Vet. App. 411, 414 (1995). The Veteran's left and right shoulder disabilities are rated at a 10 percent disability evaluation under Diagnostic Code 5201-5019. It is noted that the 10 percent evaluation was assigned based on painful motion under 38 C.F.R. § 4.59. Diagnostic Code 5019 indicates that bursitis should be rated based on limitation of motion of the affected parts, as arthritis, degenerative. Diagnostic Code 5003 for degenerative arthritis provides that arthritis established by x-ray findings will be rated on the basis of limitation of motion under the appropriate diagnostic code(s) for the specific joint or joints involved. When, however, the limitation of motion of the specific joint or joints involved is noncompensable under the appropriate diagnostic codes, a rating of 10 percent is for application for each such major joint or group of minor joints affected by limitation of motion. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. In the absence of limitation of motion, x-ray evidence of involvement of two or more major joints or two or more minor joint groups, with occasional incapacitating exacerbations warrants a 20 percent evaluation. X-ray evidence of involvement of two or more major joints or two or more minor joints warrants a 10 percent evaluation. See 38 C.F.R. § 4.71a, Diagnostic Code 5003. Diagnostic Code 5201 provides that limitation of motion of the arm, for the minor arm, warrants a 20 percent rating at shoulder level or midway between the side and the shoulder and a 30 percent rating when limitation of motion is to 25 degrees from the side. Under VA rating criteria, normal forward elevation (flexion) and abduction of the shoulder is from 0 degrees to 180 degrees, with 90 degrees being shoulder level; normal shoulder internal and external rotation is 0 degrees to 90 degrees, with 90 degrees being shoulder level. 38 C.F.R. § 4.71, Plate I. Factual Background and Analysis The Veteran underwent a VA examination for his shoulders in March 2012. The examiner noted that the Veteran had a diagnosis of bilateral shoulder arthritis. The Veteran reported bilateral shoulder pain for many years. He also had an injection and surgery to his shoulder 10 years ago. He was right hand dominant. He indicated that flare-ups occurred with repetitive use. Right shoulder flexion and abduction was from 0 to 140 degrees with objective painful motion beginning at 140 degrees. Left shoulder flexion and abduction was from 0 to 140 degrees with objective painful motion beginning at 140 degrees. He was able to perform repetitive use testing with 3 repetitions. After repetitive use testing, both right and left shoulder flexion and abduction was from 0 to 130 degrees with objective painful motion beginning at 130 degrees. After repetitive use, the Veteran had less movement than normal, weakened movement and pain on movement. He did not have any localized tenderness or pain on palpitation of joints/soft tissue/biceps tendon of either shoulder. He did not have guarding of either shoulder. Right and left shoulder strength was 4/5 for flexion and abduction as there was active movement against some resistance. The Veteran did not have ankylosis of the shoulder joint and his Hawkins impingement test and empty can test were negative. There was no history of mechanical symptoms such as clicking or catching. There was no history of recurrent dislocation (sublaxation) of the glenohumeral (scapulophemeral) joint. He did not have an AC joint condition or any other impairment of the clavicle or scapula. There was no tenderness on palpation of the AC joint. The cross-body abduction test was negative. X-rays demonstrated degenerative arthritis of both shoulders. His shoulder impacted his work as he had difficulty with overhead use of both of his arms. The diagnosis was moderate bilateral glenohumeral and acromioclavicular degenerative joint disease, right greater than left and high riding humeral head suggestive of chronic rotator cuff injury or tear bilaterally. At his November 2013 hearing, the Veteran testified that he could only lift his arms "breast high" or approximately 90 degrees. The Veteran also noticed that he had difficulty grasping things off of a shelf and pulling them down as well as lifting different things up. Having carefully reviewed the evidence of record, the Board finds that the preponderance of the evidence supports the assignment of an initial 20 percent disability evaluation for the right and left shoulder tendonitis disabilities. As indicated above, the evidence shows the Veteran's right and left shoulder disabilities were manifested by pain, stiffness, restricted range of motion, and additional loss of motion and pain with repetitive-use testing. The March 2012 VA examination demonstrated flexion from 0 to 130 degrees after repetitive motion. However, the Board notes that the Veteran recently testified that his left and right shoulder disabilities had worsened since this examination and his range of motion was functionally limited to roughly 90 degrees, which is at shoulder level. The undersigned, having the benefit of observing the Veteran and his demeanor during the November 2013 hearing, finds his report of symptomatology to be highly credibility. His report of symptomatology, more nearly reflects the criteria for a 20 percent evaluation as the Veteran's right and left shoulder motion is shown to be limited to about shoulder level. Clearly, the described flexion to "breast level" more nearly approximates 90 degrees (shoulder level) rather than 45 degrees (midway between side and shoulder level). Therefore, while the criteria for a 20 percent evaluation are met, the criteria for the next higher evaluation are not met. 38 C.F.R. §§ 4.7, 4.71a, Diagnostic Code 5201. The Board acknowledges that the Veteran has pain, weakened movement and less movement than normal. This is well documented in the lay and medical evidence. Furthermore, the Veteran is competent to report that his disability is worse than presently evaluated. In this regard, the Board accepts that he has functional impairment, pain and motion limited to shoulder level. See DeLuca, supra. The Board further finds that the Veteran's own reports of symptomatology to be credible. However, neither the lay nor medical evidence reflects the functional equivalent of impairment required for an initial higher evaluation in excess of 20 percent. Notably, the Veteran self-treats his symptoms with over-the-counter medications. The Board notes that muscle strength is shown as 4/5, and there is no evidence of muscle atrophy or guarding. Also, although the evidence shows that the Veteran's disability interfere with work to the extent that the March 2012 VA examiner noted that he had difficulty with overhead use of both arms, the Veteran did not report any lost time from work or significant interference with his job performance due to his left or right shoulder condition. Therefore, the Board finds that the current initial 20 percent evaluations contemplate functional impairment due to pain and restricted range of motion, as well as some interference with employment. See DeLuca, supra. The Board has considered whether higher disability evaluations may be assigned under any other potentially applicable provision of the rating schedule. However, in the absence of any lay or medical evidence for ankylosis, impairment of the humerus, or impairment of the clavicle-dislocation, nonunion, or malunion, the Board finds that there is no basis to assign higher evaluations under Diagnostic Codes 5200, 5202, and 5203. 38 C.F.R. § 4.71a, Diagnostic Codes 5200, 5202, and 5203. Thus, for all the foregoing reasons, the Board finds that an initial 20 percent, but no higher, rating for right and left shoulder tendonitis, is warranted. The Board has considered the question of whether an extraschedular rating may be appropriate for the Veteran's service-connected right and left shoulder tendonitis. See Bagwell v. Brown, 9 Vet. App. 157 (1966). Ordinarily, the VA Rating Schedule will apply unless there are exceptional or unusual factors which would render application of the schedule impractical. See Fisher v. Principi, 4 Vet. App. 57, 60 (1993). According to the regulation, an extraschedular disability rating is warranted upon a finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent period of hospitalization that would render impractical the application of the regular schedular standards. See 38 C.F.R. § 3.21(b) (1) (2012). Under Thun v. Peake, 22 Vet. App. 111 (2008), there is a three-step inquiry for determining whether a veteran is entitled to an extraschedular rating. First, the Board must first determine whether the evidence presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Second, if the schedular evaluation does not contemplate the level of disability and symptomatology and is found to be inadequate, the Board must then determine whether the claimant's disability picture exhibits other related factors such as those provided by the regulation as "governing norms." Third, if the rating schedule is inadequate to evaluate a veteran's disability picture and that picture has attendant thereto related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether, to accord justice, the veteran's disability picture requires the assignment of an extraschedular rating. The Veteran has not identified any factors which may be considered to be exceptional or unusual, and the Board has been similarly unsuccessful. There is no evidence in the medical records of an exceptional or unusual clinical picture. Further, the record does not demonstrate any other reason why an extraschedular rating should be assigned and the Veteran's symptoms are contemplated in the current 20 percent disability evaluations. Accordingly, the Board therefore has determined that referral of the case for extraschedular consideration pursuant to 38 C.F.R. § 3.321(b) (1) is not warranted. ORDER Entitlement to an initial rating of 20 percent for right shoulder tendonitis is granted, subject to the laws and regulations governing the payment of monetary benefits. Entitlement to an initial rating of 20 percent for left shoulder tendonitis is granted, subject to the laws and regulations governing the payment of monetary benefits. ____________________________________________ DAVID L. WIGHT Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs