Citation Nr: 1341380 Decision Date: 12/16/13 Archive Date: 12/31/13 DOCKET NO. 08-06 774 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUE Entitlement to an increased rating in excess of 20 percent for impingement syndrome of the left shoulder with traumatic arthritis. REPRESENTATION Veteran represented by: The American Legion WITNESSES AT HEARING ON APPEAL Veteran and [redacted] ATTORNEY FOR THE BOARD J. Honan, Associate Counsel INTRODUCTION The Veteran, who is the Appellant, served on active duty from July 1968 to January 1971. This matter is before the Board of Veterans' Appeals (Board) on appeal of a rating decision from January 2007 by a Department of Veterans Affairs (VA) Regional Office (RO). In February 2009, the Veteran appeared at a hearing before the undersigned Veterans Law Judge. A transcript of the hearing is of record. In October 2009 and June 2011, the Board remanded the case for further evidentiary development, which has been completed. Stegall v. West, 11 Vet. App. 268 (1998). FINDING OF FACT Throughout the appellate period, impingement syndrome of the left shoulder with traumatic arthritis has been manifested by: complaints of pain that worsens in cold weather; clinical findings showing limitation of motion of the shoulder, with flexion limited to 90 degrees and abduction limited to 100 degrees; and X-rays indicating traumatic arthritis. There was no evidence of impairment of the humerus, clavicle, or scapula, and no evidence of ankylosis of the scapulohumeral articulation. CONCLUSION OF LAW The criteria for a rating higher than 20 percent for impingement syndrome of the left shoulder with traumatic arthritis have not been met. 38 U.S.C.A. § 1155; 5107(b) (West 2002); 38 C.F.R. §§ 4.40, 4.45, 4.59, 4.69, 4.71, 4.71a, Diagnostic Codes 5010, 5201 (2013). The Veterans Claims Assistance Act of 2000 (VCAA) The VCAA, codified in part at 38 U.S.C.A. §§ 5103, 5103A, and implemented in part at 38 C.F.R § 3.159, amended VA's duties to notify and to assist a claimant in developing information and evidence necessary to substantiate a claim. Duty to Notify Upon receipt of a complete or substantially complete application, VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. VA must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide. In a claim for an increased rating, the VCAA notice requirements are for 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. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009) (interpreting 38 U.S.C.A. § 5103(a) as requiring generic claim-specific notice and rejecting Veteran-specific notice as to effect on daily life and as to the assigned or a cross-referenced Diagnostic Code under which the disability is rated). The VCAA notice, as required by 38 U.S.C.A. § 5103(a), must be provided to a claimant before the initial unfavorable adjudication by the RO. Pelegrini v. Principi, 18 Vet. App. 112, 119 (2004). The RO provided pre-adjudication VCAA notice by letter in November 2006. As for the content and the timing of the VCAA notice, the documents complied with the specificity requirements of Quartuccio v. Principi, 16 Vet. App. 183, 186-87 (2002) (identifying evidence to substantiate a claim and the relative duties of VA and the claimant to obtain evidence); of Charles v. Principi, 16 Vet. App. 370, 374 (2002) (identifying the document that satisfies VCAA notice). See Pelegrini v. Principi, 18 Vet. App. 112, 119-120 (2004) (pre-adjudication VCAA notice); of Dingess v. Nicholson, 19 Vet. App. 473, 484-86 (2006) (notice of the elements of the claim); and of Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009) (evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on employment). Duty to Assist Under 38 U.S.C.A. § 5103A, VA must make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate a claim. The RO has obtained the Veteran's VA treatment records. The Veteran's disability records from the Social Security Administration were obtained in December 2007. The Veteran was afforded VA examinations in December 2006 and July 2011. In March 2008, the Veteran's representative argued that the VA examination conducted in December 2006 was inadequate because the VA examiner did not have access to the Veteran's claims file. During the subsequent VA examination in July 2011, the examiner addressed this concern and explicitly confirmed review of the Veteran's claims file. Neither the Veteran nor his representative has argued, and the record does not reflect, that the July 2011 examination was inadequate for rating purposes. Barr v. Nicholson, 21 Vet. App. 303, 307 (2007); 38 C.F.R. § 3.159(c)(4). As the July 2011 examination report is based on review of the Veteran's history and described the disability in sufficient detail so that the Board's review is a fully informed one, the examination is adequate to decide the claim. See Stefl v. Nicholson, 21 Vet. App. 120, 124-25 (2007) (holding that an examination is considered adequate when it is based on consideration of the appellant's prior medical history and examinations and also describes the disabilities in sufficient detail so that the Board's evaluation of the disability will be a fully informed one). Further, although the VA examination report from December 2006 did not indicate review of the claims file, it nevertheless described the Veteran's current disability picture in sufficient detail and is therefore relevant in determining disability level for that period. The Board previously remanded the case in October 2009 and in June 2011. As the development has been completed, no further action to ensure compliance with the Board's remand directives is required. Stegall v. West, 11 Vet. App. 268 (1998). As there is no indication of the existence of additional evidence to substantiate the claim, the Board concludes that no further assistance to the Veteran in developing the facts is required to comply with the duty to assist. REASONS AND BASES FOR FINDING AND CONCLUSION Principles for Rating Disabilities A disability rating is determined by the application of VA's Schedule for Rating Disabilities (Rating Schedule). The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. Separate Diagnostic Codes identify the various disabilities. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. If there is a question of which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. The Board will consider whether separate ratings may be assigned for separate periods of time based on facts found, a practice known as "staged ratings," whether it is an initial rating case or not. Fenderson v. West, 12 Vet. App. 119, 126-27 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). In claims for VA benefits, VA shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107(b); see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Rating Criteria A disability of the musculoskeletal system is primarily the inability, due to damage or infection in parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination and endurance. Functional loss may be due to the absence or deformity of structures or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by the visible behavior in undertaking the motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. 38 C.F.R. § 4.40. With respect to joints, in particular, the factors of disability reside in reductions of normal excursion of movements in different planes. Inquiry will be directed to more or less than normal movement, weakened movement, excess fatigability, incoordination, pain on movement, swelling, deformity, or atrophy of disuse. 38 C.F.R. § 4.45. The intent of the Rating Schedule is 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. Under Diagnostic Code 5010, arthritis due to trauma, substantiated by X-ray findings, is rated as degenerative arthritis. Pursuant to Diagnostic Code 5003, degenerative arthritis established by X-ray findings is rated on the basis of limitation of motion under the appropriate diagnostic code for the specific joint or joints involved. When there is arthritis with at least some limitation of motion, but to a degree which would be noncompensable under a limitation-of-motion code, a 10 percent rating will be assigned for each affected major joint or group of minor joints. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. 38 C.F.R. § 4.71a, Diagnostic Code 5003. Diagnostic Code 5201, relating to limitation of motion of the arm, provides a minimum rating of 20 percent disabling where motion of the arm is limited to shoulder level, that is, to 90 degrees of flexion or abduction. Limitation of motion of the minor extremity to midway between the side and shoulder level, that is, to 45 degrees of flexion or abduction, also warrants a 20 percent rating. Limitation of motion of the minor extremity to 25 degrees from the side warrants a 30 percent rating (i.e. the maximum rating possible for the minor extremity under this Diagnostic Code). 38 C.F.R. § 4.71a, Diagnostic Code 5201. Normal ranges of motion of the shoulder are flexion (forward elevation) from zero degrees to 180 degrees, abduction from zero degrees to 180 degrees, external rotation from zero degrees to 90 degrees, and internal rotation from zero degrees to 90 degrees. 38 C.F.R. § 4.71, Plate I. Facts and Analysis The Veteran's service-connected left shoulder disability involves the minor or non-dominant extremity. In December 2006, the Veteran was afforded a VA joints examination. The Veteran complained of daily sharp pains depending on the use of his arm, especially with overhead activities, as well as an increase in pain with cold weather. The Veteran denied flare-ups. He stated that he used a left shoulder brace for severe pain. He reported that his activities of daily living have been affected in that he has difficulty washing his hair or putting on shirts due to the shoulder pain. A physical examination of the left shoulder revealed abduction to 100 degrees, adduction to 10 degrees, extension to 20 degrees, flexion to 90 degrees, internal rotation to 40 degrees, and external rotation to 35 degrees, all with end-of-range pain present. The examiner found that the range of motion measurements were not additionally limited following repetitive use. In February 2009, the Veteran testified that he received treatment every three to six months for his left shoulder, which consisted of receiving prescriptions for pain medications. The Veteran also stated that he had difficulty dressing himself, driving, and was in constant pain. He reported flare ups during the winter that caused severe pain. VA records show that the Veteran received kinesiotherapy from approximately November 2006 to May 2008. In July 2011, the Veteran was afforded an additional VA joints examination. The examination report confirmed complete review of the Veteran's claims file. The Veteran reported left shoulder pain that was sharp and burning at times but did not interfere with sleep. He denied any instability, but reported pain with overhead activity (such as reaching things from his cabinets). He also reported weakness and difficulty lifting certain objects with his left arm, including a cup and anything heavier. He stated that his pain worsened in the winter and in cold weather. As for functional impairment, the Veteran reported difficulty with activities of daily living, specifically with getting dressed and any lifting around the house. He reported flare ups during cold weather, and stated that they occurred anywhere from daily to every few days. The Veteran used assistive devices for walking, including a cane and walker. The physical examination of the left shoulder indicated well-healed surgical incisions. The Veteran was tender to palpation diffusely over the left shoulder and specifically anteriorly. His range of motion for the left shoulder included abduction to 110 degrees, forward flexion to 90 degrees, external rotation to 10 degrees, and internal rotation to 30 degrees. All range of motion measurements indicated pain at the end ranges, but were not additionally limited following repetitive use. The examiner reported a nontender biceps tendon and nontender AC joint. He reported that the Veteran had a positive cross arm test and was stable to anterior and posterior testing. He found the Veteran's supraspinatus strength to be 4/5. The examiner reported that radiographs of the Veteran's left shoulder demonstrated posttraumatic arthritis. He diagnosed posttraumatic arthritis, impingement syndrome, and large rotator cuff tear and calcific tendinitis of the left shoulder. The Veteran has been service-connected for impingement syndrome of the left shoulder with traumatic arthritis, rated as 20 percent disabling, since April 2000. The Veteran is already receiving the highest rating possible (i.e. 20 percent) under Diagnostic Code 5010, arthritis due to trauma, substantiated by X-ray findings. (In this case, the only major joint affected is the Veteran's left shoulder.) In order to substantiate a schedular evaluation in excess of 20 percent under Diagnostic Code 5201, limitation of motion of the arm, the evidence must establish that the Veteran's non-dominant left arm exhibits limitation of motion to 25 degrees from the side. 38 C.F.R. § 4.71a, Diagnostic Code 5201. A review of the pertinent evidence shows that flexion of the left shoulder has been limited to 90 degrees, at most, even taking into account limitation resulting from pain. Likewise, abduction has only been limited to 100 degrees. (The adduction, external rotation, and internal rotation measurements are inapplicable under Diagnostic Code 5201.) The flexion and abduction metrics clearly do not approximate limitation of motion of the left arm to 25 degrees from the side. This has been true throughout the course of this appeal. Fenderson, supra. For these reasons the claim must be denied. In considering the DeLuca factors, the evidence of record does not establish that the Veteran has pain, fatigability, incoordination, and other such symptoms that are not already contemplated by the current 20 percent evaluation. In this regard, the Board has considered the Veteran's consistent complaints of pain throughout this appeal, and the fact that he is competent to report such symptoms. Ultimately, the Board finds the most probative evidence of record regarding the degree of functional impairment resulting from pain and other symptoms to be the specific clinical findings of the VA examiners. Here, the 20 percent disability rating assigned already contemplates the degree to which motion is limited by pain. Although the Board has considered other relevant diagnostic codes to determine if they would avail the Veteran of a higher disability rating, the other diagnostic codes are either inapplicable or would not afford the Veteran a higher rating. See 38 C.F.R. 4.71a, Diagnostic Codes 5200, 5202, and 5203; see also Butts v. Brown, 5 Vet. App. 532, 538 (1993) (choice of diagnostic code should be upheld if it is supported by explanation and evidence). There is no competent evidence of ankylosis of scapulohumeral articulation, thus rendering Diagnostic Code 5200 inapplicable. With respect to Diagnostic Code 5202, there is no sign that the Veteran's humerus is impaired, thus rendering this diagnostic code likewise inapplicable. Moreover, as 20 percent is the maximum evaluation provided under Diagnostic Code 5203, and the diagnostic code clearly contemplates evaluation based upon limitation of motion, it would constitute pyramiding for the Board to separately consider this code. 38 C.F.R. § 4.14. The Veteran's current 20 percent disability rating is higher than the minimum compensable rating for the shoulder, so 38 C.F.R. § 4.59 cannot serve as a basis for further increase. There are no other applicable Diagnostic Codes. In conclusion, the Board finds that the preponderance of the evidence is against the Veteran's claim for a higher rating for impingement syndrome of the left shoulder with traumatic arthritis at any time during the appellate period. Extraschedular Consideration Although the Board is precluded by regulation from assigning an extraschedular rating under 38 C.F.R. § 3.321(b)(1) in the first instance, the Board is not precluded from considering whether the case should be referred to the Director of VA's Compensation and Pension Service for a rating. The threshold factor for extraschedular consideration is a finding that the evidence presents such an exceptional disability picture that the available schedular ratings for that service-connected disability are inadequate. This is accomplished by comparing the level of severity and symptomatology of the service-connected disability with the established criteria. If the criteria reasonably describe the disability level and symptomatology, then the disability picture is encompassed by the Rating Schedule, and the assigned schedular rating is, therefore, adequate and referral for an extraschedular rating is not required. Thun v. Peake, 22 Vet. App. 111, 115 (2008), aff'd sub nom. Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). Here, the rating criteria under Diagnostic Codes 5010 and 5201, applying 38 C.F.R. §§ 4.40, 4.45, 4.59, and 4.71, reasonably encompass the Veteran's disability level and symptomatology. The Veteran has reported daily pain, which increases in cold weather, difficulty with overhead activities such as washing hair, putting on shirts, and driving, as well as weakness and difficulty lifting certain objects. Diagnostic Code 5010 (arthritis due to trauma), rated under Diagnostic Code 5003 (degenerative arthritis) contemplates evidence of painful motion, and the 20 percent rating in particular considers occasional exacerbations that are incapacitating. Moreover, the limitation of motion contemplated by Diagnostic Code 5201 implicitly includes difficulty with overhead activities and lifting objects. The Veteran does not experience any symptomatology not already encompassed in the Rating Schedule. Therefore, referral for extraschedular consideration for the service-connected disability of impingement syndrome of the left shoulder with traumatic arthritis is not required under 38 C.F.R. § 3.321(b)(1). Total Disability Rating for Compensation Based on Individual Unemployability The record reflects that the Veteran retired in 2001. The Veteran does not assert and the evidence of record does not reasonably raise a claim for a total disability rating. See Rice v. Shinseki, 22 Vet. App. 447 (2009) (holding that a request for a total disability rating based on individual unemployability, whether expressly raised by the veteran or reasonably raised by the record, is not a separate claim for benefits). ORDER A rating higher than 20 percent for impingement syndrome of the left shoulder with traumatic arthritis is denied. ____________________________________________ George E. Guido Jr. Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs