Citation Nr: 1341389 Decision Date: 12/16/13 Archive Date: 12/31/13 DOCKET NO. 08-23 653 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Entitlement to a rating in excess of 20 percent for a left shoulder disorder. 2. Entitlement to a total disability rating based on individual unemployability (TDIU). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD T. Adams, Counsel INTRODUCTION The Veteran served on active duty from October 1960 to October 1963. This matter is on appeal from a June 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama. In April 2011, the Veteran testified at a videoconference hearing before the undersigned. A copy of the transcript of that hearing is of record. The matter was Remanded in May 2011. The issue of entitlement to a total disability evaluation based on individual unemployability is addressed in the REMAND portion of the decision below and is REMANDED to RO via the Appeals Management Center (AMC), in Washington, DC. FINDING OF FACT Considering his complaints of pain and loss of function, which a VA examiner describes as severe, the Veteran's limitation of motion of the left shoulder is analogous to limitation at 25 degrees. CONCLUSION OF LAW The criteria for a 30 percent rating, but no higher, for left shoulder disability have been met. 38 U.S.C.A. § 1155, 5103, 5103A, 5107 (West 2002); 38 C.F.R. § 3.102, 3.159, 3.321, 4.1, 4.3, 4.74.71a, Diagnostic Code 5201 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION I. Duty to Notify and Assist Proper notice from VA must inform the claimant and her representative, if any, prior to the initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ) of any information and any 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); 38 C.F.R. § 3.159(b); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002). These notice requirements apply to all five elements of a service-connection claim (Veteran status, existence of a disability, a connection between the Veteran's service and the disability, degree of disability, and effective date of the disability). Dingess v. Nicholson, 19 Vet. App. 473 (2006). Information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded must be included. Id. Prior to the initial denial of the present claim, the RO advised the Veteran of what the evidence must show to establish entitlement to an increased rating for his service-connected left shoulder disability in a notice letters sent in January and March 2006. The RO also explained what evidence VA would obtain and make reasonable efforts to obtain on the Veteran's behalf in support of his claim. The RO further described what evidence that the Veteran should provide in support of his claim. He also was notified of how VA determines disability ratings and effective dates if service connection is awarded. These letters accordingly addressed all notice elements and predated the initial adjudications by the AOJ/RO. Nothing more was required. Regarding VA's statutory duty to assist in claims development, the record reflects that VA has made reasonable efforts to obtain or to assist in obtaining all relevant records pertinent to the claims. Pertinent medical evidence associated with the claims files consists of service and VA treatment records. Neither the Veteran nor his representative throughout the course of this appeal has made the RO or the Board aware of any other evidence relevant to his appeal that needs to be obtained. The Board notes that the Veteran reports that he is receiving Social Security Administration (SSA) benefits. In this regard, the Court held in Golz v. Shinseki, 590 F.3d 1317, 1323 (Fed. Cir. 2010) that 38 U.S.C.A. § 5103A does not require VA to obtain all medical records or all SSA disability records, only those that are relevant to the Veteran's claim. The Court also stated that VA was not required to obtain records in every case in order to rule out their relevance. Rather, the standard is: as long as a reasonable possibility exists that the records are relevant to the veteran's claim, VA is required to assist the veteran in obtaining the identified records. The Veteran himself did not identify any SSA records that would be relevant to his claims. Rather, at his personal hearing, he testified that he retired on account of his age/longevity, and that disability was not a factor. Hearing Transcript at 7-8. He clearly indicated that he had not been awarded SSA disability insurance benefits. Moreover, neither the Veteran nor his representative has suggested that there would be any SSA records that would support his increased ratings claims. The Board, therefore, concludes that the record does not establish a reasonable possibility that there are such records that are relevant to these claims. A Remand to obtain these records is not warranted. The Veteran was also afforded VA examination in March 2008 and February 2012. A review of examination reports reflect that all subjective and objective findings necessary for evaluation of the Veteran's claim were observed and recorded. The examination appears to be complete and adequate. Barr v. Nicholson, 21 Vet. App. 303 (2007). In this regard, consideration has been given to assertions from the Veteran's representative that the February 2012 VA examination failed to assess loss of function or limitation of motion after repetitive motion. However, the examiner noted that repetitive motion testing was not being performed due to pain and discomfort experienced by the Veteran. Such has been considered; and, in spite of examiner's failure to make an estimation of any additional loss of motion, the finding has been used in awarding the Veteran a higher rating, which is the maximum rating assignable for limitation of motion. There is no prejudice to the Veteran. The Board recognizes that the last joints examination is now over one-year old. The mere passage of time since that examination is not reason enough, alone, to require reexamination. See Palczewski v. Nicholson, 21 Vet. App. 174 (2007). Here, there is no objective evidence indicating that there has been a material change in the severity of the Veteran's left shoulder disability since the February 2012 VA examination. The Veteran has not argued the contrary. Discussion of the Veteran April 2011 personal hearing is also warranted. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the Court held that the provisions of 38 C.F.R. § 3.103(c) (2) (2013) require that the hearing officer who chairs a hearing fulfill two duties to comply with the above regulation. These duties consist of (1) the duty to fully explain the issues, and (2) the duty to suggest the submission of evidence that may have been overlooked. The Board finds that both duties were met during the hearing. It was clear during the hearing that the Veteran had a full understanding of the issue on appeal. The undersigned Veteran's Law Judge specifically explained to the Veteran that medical evidence of worsening symptomatology would be the type of evidence helpful to his claim. The Veteran's testimony triggered the Board's decision to Remand the matter to obtain the above referenced VA examination and opinion and additional treatment records. For the above reasons, the Board finds that, consistent with Bryant, VA has complied with the duties set forth in 38 C.F.R. § 3.103 (c) (2) and that the Board can adjudicate the claim based on the current record. It must be noted that neither the Veteran nor his representative have asserted that VA failed to comply with the provisions of 38 C.F.R. § 3.103(c) (2) nor identified any prejudice in the conduct of the Board's April 2011 hearing. Based on the foregoing, the Board finds that all relevant facts have been properly and sufficiently developed in this appeal and no further development is required to comply with the duty to assist the Veteran in developing the facts pertinent to the claim adjudicated herein. VA has complied with all duties to notify and assist required under 38 U.S.C.A. § 5103A and 38 C.F.R. § 3.159. VA has also substantially complied with the Board's remand directives in further developing the Veteran's claim. Stegall v. West, 11 Vet. App. 268 (1998); Dyment v. West, 13 Vet. App. 141 (1999). II. Increased Rating Disability evaluations are determined by the application of a schedule of ratings, which is based on average impairment of earning capacity. See 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. Part 4 (2013). In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the Veteran's condition. See Schafrath v. Derwinski, 1 Vet. App. 589, 594 (2002). However, where an increase in the level of a service-connected disability is at issue, the primary concern is the present level of disability. See Francisco v. Brown, 7 Vet. App. 55 (1994). In cases in which a reasonable doubt arises as to the appropriate degree of disability to be assigned, such doubt shall be resolved in favor of the Veteran. See 38 C.F.R. § 4.3 (2013). VA must assess the level of disability from the date of initial application for service connection and determine whether the level of disability warrants the assignment of different disability ratings at different times over the life of the claim, a practice known as a "staged rating." See Fenderson v. West, 12 Vet. App 119 (1999). The Court has also held that 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). In this case, the evidence of record does not establish additional, distinct time periods in which the issue on appeal resulted in symptoms that would warrant staged ratings. Where there is a question as to 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. See 38 C.F.R. § 4.7 (2013). The assignment of a particular diagnostic code is "completely dependent on the facts of a particular case." Butts v. Brown, 5 Vet. App. 532, 538 (1993). One diagnostic code may be more appropriate than another based on such factors as an individual's relevant medical history, the diagnosis, and demonstrated symptomatology. Any change in a diagnostic code by a VA adjudicator must be specifically explained. Pernorio v. Derwinski, 2 Vet. App. 625, 629 (1992). Although all the evidence has been reviewed, only the most relevant and salient evidence is discussed below. See Gonzales v. West, 218 F.3d 1378 (Fed. Cir. 2000) (holding that the Board must review the entire record but does not have to discuss each piece of evidence). In evaluating musculoskeletal disabilities, consideration must be given to additional functional limitation due to factors such as pain, weakness, fatigability, and incoordination. See 38 C.F.R. §§ 4.40 and 4.45; DeLuca v. Brown, 8 Vet. App. 202, 206-07 (1995). The Court has held that diagnostic codes predicated on limitation of motion do not prohibit consideration of a higher rating based on functional loss due to pain on use or due to flare-ups under 38 C.F.R. §§ 4.40, 4.45, and 4.59. See Johnson v. Brown, 9 Vet. App. 7 (1996); DeLuca v. Brown, 8 Vet. App. 202, 206 (1995). However, in Mitchell v. Shinseki, 25 Vet. App. 32 (2011), the Court clarified that there is a difference between pain that may exist in joint motion as opposed to pain that actually places additional limitation of the particular range of motion. VA regulations require that a finding of dysfunction due to pain must be supported by, among other things, adequate pathology. 38 C.F.R. § 4.40 ("functional loss due to pain is to be rated at the same level as the functional loss when flexion is impeded"); see Schafrath v. Derwinski, 1 Vet. App. 589, 592 (1993). II. Increased Rating The Veteran's left shoulder disability is presently rated under Diagnostic Code (DC) 5010-5201 for limitation of motion of the shoulder. The Veteran's left arm is his minor arm. DC 5201 provides for a 20 percent rating for the minor arm when limited to shoulder level; a 20 percent rating for the minor arm when limited to midway between the side and shoulder level; and a 30 percent rating for the minor arm when limited to 25 degrees from the side. DC 5010 for traumatic arthritis provides for a compensable rating when there is limitation of motion of a joint but it is not compensable under the joint specific diagnostic code. In this case a rating under DC 5010 is not applicable as limitation of motion is compensated under DC 5201. 38 C.F.R. § 4.71, Plate I provides guidance as to normal range of motion of the shoulder as well as what is meant by limitation of the arm at the shoulder level. The images in Plate I show that normal forward elevation, or flexion, of the shoulder is from 0 to 180 degrees and that flexion to the shoulder level is 90 degrees. Normal shoulder abduction is from 0 to 180 degrees with abduction to the shoulder level being 90 degrees. Normal external rotation and internal rotation are from 0 to 90 degrees, with 0 degrees representing the shoulder level. Turning to the merits of the claim, VA treatment records include a July 2005 report which reflects normal pulses and muscle strength in the upper extremities. In September 2007, examination of the shoulders revealed mild crepitus and a normal range of motion. In June 2008, there was tenderness on elevation of the left shoulder at 60 degrees; the impression was left shoulder arthralgia and osteoarthritis. On VA joints examination in June 2008, the Veteran presented with complaints of difficulty with subluxation and greater limitation on inversion and eversion of the left shoulder. He complained of a loss of strength and range of motion in the left. Pain was rated a 7 out of 10 on the pain scale for which he took pain medication. There were no constitutional symptoms of arthritis or incapacitating episodes of arthritis. Joint symptoms included deformity on the left shoulder involving the acromioclavicular (AC) joint and shoulder, left arm, and left hand. There was also giving way, instability, pain, stiffness, weakness, and effusion. Episodes of dislocation or subluxation occurred several times a year, but less than monthly and there was no locking. Severe flare-ups occurred every 2 to 3 weeks with symptoms of warmth, redness, swelling, and tenderness. Weight-bearing was not affected. On physical examination, range of motion testing revealed active and passive flexion from 0 to 110 degrees. Abduction was from 0 to 95 degrees on active motion and from 0 to 100 degrees on passive range of motion. External rotation was from 0 to 40 degrees on active motion and from 0 to 45 degrees on passive motion Internal rotation was from 0 to 45 degrees. There was pain and guarding during testing with additional limitation of motion on repetitive testing due to pain and lack of endurance. There was evidence of recurrent shoulder dislocations with guarding of movements, but no evidence of inflammatory arthritis or joint ankylosis. A summary of general joint conditions included a bony joint enlargement, bursitis, crepitus, deformity, edema, effusion, malalignment, redness, synovitis, tenderness, tendonitis, painful movement, instability, weakness, abnormal motion, and guarding of movement. An MRI of the left shoulder indicated advanced arthritic change with narrowing of the glenohumeral joint, prominent anterior and posterior labra, and moderate degenerative changes involving the AC joint. The examiner diagnosed left shoulder severe rotator cuff, "Rim-Rent" tear; labral tear and degeneration; with glenohumeral joint degeneration with anterior humeral avulsion fracture and existing fragment likely-anterior joint space; and AC joint, traumatic arthritic degeneration, moderate. The examiner opined that the left shoulder disability prevented exercise, sports; had severe effects on chores, shopping, recreation, traveling, bathing, dressing, and grooming; and moderate effects on feeding; and mild on toileting. VA treatment records include a July 2010 report which shows that the Veteran denied any complaints of pain and indicated that he was performing home exercises. A musculoskeletal examination revealed a tear of the left rotator cuff with a full range of motion. In April 2011, the Veteran complained that his left shoulder disability had worsened. However, records dated in April and May 2011 indicate that he had a full range of motion. In April 2011, the Veteran testified that he was on daily pain medication. He stated that he could probably lift his arm up about 25 degrees [from the side] and that he has dislocated the shoulder. He experienced flare-ups which affected the way he played with his grandchildren and testified that there had been a significant change in his left shoulder disability since the 2008 VA examination. A December 2011 VA treatment record reflects that the Veteran had full active range of motion in all major joints. Pursuant to the Board's remand, the Veteran underwent a VA DBQ shoulder and arm conditions examination in February 2012 at which time he presented with a history of multiple episodes of recurrent dislocation and subluxations of the shoulder joint. He last dislocated his shoulder about three years ago, and complained of throbbing, constant pain in the left shoulder, both laterally and superiorly. He had flare-ups three times a month which lasted from one to two hours. He used topical analgesics for pain relief. Raising his arm in any direction caused increased pain, but he denied any problems with activities of daily living and required no assistive aids. He had no incapacitating episodes during the last year. Range of motion testing revealed 70 degrees forward flexion, 55 degrees abduction, and 45 degrees internal and external rotation with associated marked crepitus and pain. There appeared to be no instability, heat, or redness. There is no evidence of any ankylosis of the humerus, clavicle, or scapula. Due to the Veteran's marked discomfort, no attempt to determine loss of function after repetitive motion was made. Further examination indicated no significant ulnar nerve injury affecting the left hand based on motor function and sensory findings. X-rays of the left shoulder indicate that the Veteran had severe narrowing of the glenohumeral joint with marked deformity of the humeral head associated with aseptic necrosis. There also appeared to be loose joint bodies and osteophytes present and narrowing of the AC joint. The diagnosis was advanced and severe degenerative joint disease of the left shoulder. In response to the Board's request for an opinion concerning whether there was any impairment of the ulnar nerve associated with the Veteran's left shoulder disability, the examiner opined that based on the examination he could not find any condition of the left shoulder which would result in any neurologic deficit of the ulnar nerve in the Veteran's left hand. There was no evidence of ankylosis of the shoulder, but severe limitation of function. The examiner further opined that the Veteran would be unable to perform any activity, which required motion of the left shoulder to any significant degree and that the limitation and disabilities noted above would significantly and negatively impact his employability. Having reviewed the foregoing, a 30 rating is warranted for the service-connected left shoulder disability. The VA treatment records and examination do not show that the Veteran had limited range of motion of the left arm to 25 degrees from his side. However, as indicated in both examinations, the Veteran experiences additional loss of function due to pain and loss of endurance. Both examiners indicated such. The April 2012 examiner clearly stated that repetitive motion testing could not be attempted due to pain. He also determined that the Veteran experienced severe limitation of function of the shoulder, and that any activity requiring motion of the shoulder to any significant degree would be limited. Thus, while the examiner did not quantify this loss into an estimation of actual loss, which would be in keeping with Mitchell, the Board finds that there is sufficient evidence to find that the Veteran experiences the functional equivalent of limitation of the left shoulder to 25 degrees. Such resolves all doubt in the Veteran's favor. There is no evidence that supports the assignment of a rating greater than 30 percent, however. The 2012 examiner clearly indicated that the severe functional loss experienced by the Veteran did not rise to the level of ankylosis. The evidence of record supports this finding. There is no evidence of ankylosis much less unfavorable ankylosis with abduction limited to 25 degrees. There is likewise no evidence that the Veteran has fibrous union of the humerus, false flail joint, a flail shoulder, nonunion or recurrent dislocations of the clavicle or scapula, or recurrent dislocation at the scapulohumeral joint. Higher or separate ratings under Diagnostic Codes 5200, 5202, or 5203 is not applicable. Further, while the record reflects that in a June 2008 rating action the Veteran was assigned a separate 40 percent rating for traumatic arthritis, with flexion contractures of joints and skin, status post blast injury, of the left hand pursuant to DC 5010-8515 (which contemplates traumatic arthritis and paralysis of the median nerve), the Board has also considered whether a separate rating could be assigned for any impairment of the ulnar nerve (contemplated by DC 8516) due to the Veteran's left shoulder disability. However, as discussed above, the February 2012 VA examiner did not find evidence of any impairment of the Veteran's ulnar nerve due to his left shoulder disability. Accordingly, he is not entitled to a separate rating for any impairment of the ulnar nerve under DC 8516. 38 C.F.R. § 4.124(a) (2013). In reaching the above conclusions, the Board has also not overlooked the Veteran's statements in support of his claim. In this regard, the Veteran is competent to report on factual matters of which he has first-hand knowledge, e.g. left shoulder pain. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). However, while the Board may consider the Veteran's subjective statements regarding the severity of the disability, the Board notes that with respect to the Rating Schedule, the criteria set forth therein generally require medical expertise which the Veteran has not been shown to have. See King v. Shinseki, 700 F.3d 1339, 1344 (Fed. Cir. 2012). Furthermore, the Board finds the objective medical findings and opinions provided by the expert of record should be accorded the greater probative weight. See Guerrieri v. Brown, 4 Vet. App. 467, 473 (1993) ("the probative value of medical opinion evidence is based on the medical expert's personal examination of the patient, the physician's knowledge and skill in analyzing the data, and the medical conclusion the physician reaches . . . . As is true with any piece of evidence, the credibility and weight to be attached to these opinions [are] within the province of the [Board as] adjudicators."). The above determination is based upon consideration of applicable rating provisions. It should also be noted that there is no showing that the Veteran's disability has reflected so exceptional or unusual a disability picture as to warrant the assignment of any higher evaluation on an extra-schedular basis. See 38 C.F.R. § 3.321(b) (1). In this case, there has been no showing that the Veteran's disability picture for his left shoulder disability could not be contemplated adequately by the applicable schedular rating criteria discussed above. The criteria provide for higher ratings, but as has been explained thoroughly herein, the currently assigned rating adequately describes the severity of the Veteran's symptoms for this disability during the period of appeal, namely, pain and limitation of motion. Given that the applicable schedular rating criteria are adequate, the Board need not consider whether the Veteran's left shoulder disability picture includes such exceptional factors as periods of hospitalization and interference with employment. Referral for consideration of the assignment of a disability rating on an extraschedular basis is not warranted. See Thun v. Peake, 22 Vet. App. 111, 115-16 (2008). ORDER A 30 percent rating for left shoulder disability is granted. REMAND The Board notes that, in Rice v. Shinseki, the Court held that a TDIU claim cannot be considered separate and apart from an increased rating claim. See Rice v. Shinseki, 22 Vet. App. 447 (2009). In a December 2008 decision, the RO denied the Veteran's claim for individual employability. The Veteran did not appeal this decision. However, in February 2012, the VA examiner opined that the Veteran's left shoulder disability would significantly negatively impact his ability to be employable at that time. This February 2012 statement is new evidence that effectively re-raises the issue of entitlement to TDIU. The change in rating assigned for the Veteran's left shoulder disability may also affect the outcome of the previous denied claim for TDIU. However, the Board considering the claim in the first instance raises the risk of prejudice to the Veteran, and the appropriate course of action is to remand this aspect of his increased rating claim for a supplemental statement of the case. See 38 C.F.R. § 19.31 (2013). Accordingly, the case is REMANDED for the following actions: 1. If warranted, refer the Veteran's claim for TDIU to the Director, Compensation and Pension Service for extraschedular consideration in accordance with 38 C.F.R. § 4.16(b). This referral should include a full statement of the Veteran's service-connected disabilities, employment history, educational and vocational attainment and "all other factors having a bearing on the issue." 2. When the above development is complete, adjudicate the issue of entitlement to TDIU, including on an extra-schedular basis in accordance with 38 C.F.R. § 4.16(b), based on the Veteran's service-connected disabilities. The RO should undertake all development it deems necessary in order to properly consider this issue. If the benefit sought on appeal remains denied, the Veteran and his representative should be furnished an appropriate SSOC and provided opportunity to respond. Then, return the case to the Board for further appellate consideration, as appropriate. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). 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. 2012). ______________________________________________ MICHAEL A. HERMAN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs