Citation Nr: 1341027	
Decision Date: 12/12/13    Archive Date: 12/20/13

DOCKET NO.  12-08 055	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Houston, Texas


THE ISSUE

Entitlement to an initial compensable rating (evaluation) for dorsal scapular nerve disability of the right shoulder (nerve disability).


REPRESENTATION

Appellant represented by:	Texas Veterans Commission


ATTORNEY FOR THE BOARD

L. Buchs, Associate Counsel






INTRODUCTION

The Veteran, who is the appellant in this case, had active service from August 1986 to December 1993, November 2001 to November 2002, December 2003 to April 2005, and June 2006 to August 2007.

This appeal comes before the Board of Veterans' Appeals (Board) from a May 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas, which granted, in pertinent part, service connection for dorsal scapular nerve disability of the right shoulder with an evaluation of 0 (zero) percent effective December 2, 2010.  The Board has reviewed the physical claims file and both the Veterans Benefits Management System (VBMS) and "Virtual VA" files so as to insure a total review of the evidence.

As the Veteran has disagreed with the initial rating assigned following the grant of service connection for dorsal scapular nerve disability of the right shoulder, the Board has characterized this issue as one of entitlement to higher initial disability rating.  See Fenderson v. West, 12 Vet. App. 119, 126 (1999).


FINDINGS OF FACT

During the entire rating period, the Veteran's dorsal scapular nerve disability of the right shoulder manifested at worst as subjective pain and numbness with no objective sensory deficits on pin prick test; motor weakness of 4/5 at C3 and C4; biceps jerk 2 plus and triceps jerk 2 plus; no pathologic reflexes; and normal cutaneous reflexes. 


CONCLUSION OF LAW

Resolving reasonable doubt in the Veteran's favor, the criteria for an initial 10 percent disability rating, but no higher, for dorsal scapular nerve disability of the right shoulder are met.  38 U.S.C.A. §§ 1155, 5107(West 2002); 38 C.F.R. §§ 4.3, 4.7, 4.124a, Diagnostic Code 8719.


REASONS AND BASES FOR FINDING AND CONCLUSION

Duties to Notify and to Assist

As provided by 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, 5126 (West 2002 & Supp. 2012); 38 C.F.R. § 3.102, 3.159, 3.326(a) (2013).

The Veteran's appeal for a compensable initial rating arises from disagreement with the initial evaluation following the grant of service connection for dorsal scapular nerve disability of the right shoulder.  The United States Court of Appeals for the Federal Circuit (Federal Circuit) and the Unites States Court of Appeals for Veterans Claims (Court) have held that, once service connection is granted the claim is substantiated, additional notice is not required, and any defect in notice is not prejudicial.  Hartman v. Nicholson, 483 F.3d 1131 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007); 38 C.F.R. § 3.159(b)(3)(i) (no duty to provide VCAA notice upon receipt of a notice of disagreement); VAOPGCPREC 8-2003 (in which the VA General Counsel interpreted that separate notification is not required for "downstream" issues following a service connection grant, such as initial rating and effective date).

The Board finds that all necessary development has been accomplished.  VA has made reasonable efforts to assist the Veteran in obtaining evidence necessary to substantiate his claim.  38 U.S.C.A. § 5103A.  VA has obtained service records and VA treatment records.  The Veteran has been afforded examinations for compensation purposes in December 2007 and in December 2010.  When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate.  Barr v. Nicholson, 21 Vet. App. 303, 312 (2007).  The Veteran contends the December 2010 examination was "not complete"; however, at both examinations the Veteran's history was taken and a complete examination with clinical measures was conducted.  Conclusions reached based on neurological findings and diagnoses given were consistent with the examination reports.  Therefore, the Board finds that the examinations obtained in December 2007 and December 2010 are adequate for rating purposes.  

Significantly, the Veteran has not identified, and the record does not otherwise indicated, any additional existing evidence that is necessary for a fair adjudication of the claim that has not been obtained.  No further notice or assistance to the Veteran is required to fulfill VA's duty to assist.

Disability Rating Laws and Regulations

Disability ratings are determined by evaluating the extent to which a veteran's service-connected disability adversely affects the veteran's ability to function under the ordinary conditions of daily life, including employment, by comparing the symptomatology with the criteria set forth in the Rating Schedule.  38 U.S.C.A. § 1155; 38 C.F.R. §§ 4.1, 4.2 (2013).  In order to evaluate the level of disability and any changes in severity, it is necessary to consider the complete history of a veteran's disability.  Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991); 38 C.F.R. §§ 4.3, 4.7.

Diagnostic Codes 8510 - 8719 address the ratings for paralysis of the peripheral nerves affecting the upper extremities, neuritis, and neuralgia.  Diagnostic Codes 8519, 8619, and 8719 provide ratings for paralysis, neuritis, and neuralgia of the long thoracic nerve.  Neuritis and neuralgia are rating as incomplete paralysis.  Disability ratings of 0, 10, and 20 are warranted, respectively, for mild, moderate, and severe incomplete paralysis of the long thoracic nerve.  A disability rating of 30 percent for the major and 20 percent for the minor is warranted for complete paralysis of the long thoracic nerve.  38 C.F.R. § 4.124a.

In rating diseases of the peripheral nerves, the term "incomplete paralysis" indicates a degree of lost or impaired function substantially less than the type of picture for complete paralysis given with each never, whether due to varied level of the nerve lesion or to partial regeneration.  When the involvement is wholly sensory, the rating should be for the mild, or at most, the moderate degree.  38 C.F.R. § 4.124a.

Words such as "severe," "moderate," and "mild" are not defined in the Rating Schedule.  Rather than applying a mechanical formula, VA must evaluate all evidence, to the end that decisions will be equitable and just.  38 C.F.R. § 4.6 (2013).  Although the use of similar terminology by medical professionals should be considered, it is not dispositive of an issue.  Instead, all evidence must be evaluated in arriving at a decision regarding a request for an increased disability rating.  38 U.S.C.A. § 7104 (West 2002); 38 C.F.R. §§ 4.2, 4.6.

Nerve Rating Analysis

The Veteran's right shoulder nerve disability was initially evaluated as noncompensable (i.e., zero percent disabling) under the criteria found at 38 C.F.R. § 4.124a, Diagnostic Code 8719.  Upon review of the rating schedule, the Board finds no alternative diagnostic code under which it would be more appropriate to evaluate the disability.  The December 2010 examiner identified the dorsal scapular nerve as the peripheral nerve most likely involved with the Veteran's service-connected cervical intervertebral disc syndrome.  The dorsal scapular nerve is not specifically identified in the Rating Schedule; however, Diagnostic Codes 8519, 8619, and 8719 describe paralysis, neuritis, and neuralgia of the long thoracic nerve, which frequently shares a common trunk with the dorsal scapular nerve and similarly affects the shoulder.

After review of all the lay and medical evidence, the Board finds that during the entire initial rating period, the Veteran's nerve disability of the right shoulder manifested at worst as subjective pain and numbness with no objective sensory deficits on pin prick test; motor weakness of 4/5 at C3 and C4; biceps jerk 2 plus and triceps jerk 2 plus; no pathologic reflexes; and normal cutaneous reflexes.

At a December 2007 examination for compensation purposes, the Veteran reported shoulder stiffness and weakness with activity.  He complained of "squeezing, aching, sharp, sticking" pain "occur[ing ]five times per week and each time last[ing] for two hours" in his neck, shoulders, and legs.  The Veteran indicated the pain was at level eight and could be elicited by physical activity and stress.  The Veteran's pain was relieved by rest and medication.

Upon physical examination in December 2007, the examiner found no evidence of radiating pain on movement from the cervical spine and no evidence of spasm.  Motor function of the right upper extremity was within normal limits.  Sensory function was within normal limits.  The right upper extremity reflexes revealed biceps jerk two plus and triceps jerk two plus.

At the December 2010 examination for compensation purposes, the Veteran complained of constant, severe pain located on the neck that traveled to both shoulders.  He also reported stiffness, paresthesia, numbness, and pain "exacerbated by physical activity and stress," which can be relieved by rest and medication.

Upon physical examination in December 2010, the examiner found no evidence of radiating pain from the cervical spine to the right shoulder or spasm.  No sensory deficits were found from C3-C8 during a pin prick test.  Motor weakness in the right upper extremity at C3 and C4 was 4/5.  The right upper extremity revealed biceps jerk 2 plus and triceps jerk 2 plus.  The Veteran's cutaneous reflexes were normal and no pathologic reflexes were present.

Although there is no clinical evidence of radiating pain to the right shoulder, the Veteran reported such pain, and described the pain as constant and severe.  He also reported numbness and weakness from activity.  The Board finds that the Veteran is both competent and credible in these statements.  Layno v. Brown, 6 Vet. App. 465, 469 (1994).  The December 2010 examiner found that while the Veteran's reflexes were normal, he had mild motor weakness (4/5) in his right upper extremity.  Resolving reasonable doubt in the Veteran's favor, the Board finds that the Veteran's right shoulder nerve disability shows no more than moderate manifestation.  As such, the Board finds that a 10 percent evaluation for moderate nerve disability of the right shoulder is warranted.

As the current evidence shows that the Veteran's right shoulder nerve disability is manifested by subjective pain and numbness, and objective mild motor weakness, the Board finds that the weight of the lay and medical evidence does not demonstrate severe incomplete or complete paralysis and that the preponderance of evidence throughout the period weighs against finding that an initial rating in excess of 10 percent is warranted.  38 C.F.R. §§ 4.3, 4.7.

Extraschedular Consideration

The Board has considered whether referral for an extraschedular evaluation is warranted.  In exceptional cases an extraschedular rating may be provided.             38 C.F.R. § 3.321.  The threshold factor for extraschedular consideration is finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate.  Therefore, initially, there must be a comparison between the level of severity and symptomatology of the claimant's service-connected disability with the established criteria found in the rating schedule for the disability.  Under the approach prescribed by VA, if the criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule, the assigned schedular evaluation is, therefore, adequate, and no referral is required.  Thun v. Peake, 22 Vet. App. 111 (2008).

In this case, the Board does not find any symptoms or functional impairment that is not already encompassed by the rating schedule.  The Veteran's manifestations of nerve disability of the right shoulder, subjective pain and numbness with objective mild motor weakness, are accounted for under the schedular rating criteria at 38 C.F.R. § 4.124a.  The schedular rating criteria provide ratings based on paralysis, neuritis, and neuralgia (nerve pain).  The schedular criterion of paralysis includes the symptoms of numbness and motor weakness.  For these reasons, the Board finds that the schedular rating criteria are adequate to rate the Veteran's nerve disability of the right shoulder, and referral for consideration of extraschedular rating is not necessary.  38 C.F.R. § 3.321(b)(1).



ORDER

An initial 10 percent rating, and no more, for dorsal scapular nerve disability of the right shoulder is granted, subject to the laws and regulations governing the payment of monetary awards.



____________________________________________
K. J. ALIBRANDO
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs