Citation Nr: 1341577 Decision Date: 12/17/13 Archive Date: 12/31/13 DOCKET NO. 12-21 788 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Jackson, Mississippi THE ISSUE Entitlement to a rating in excess of 20 percent for history of dislocation of right shoulder (right shoulder disability). ATTORNEY FOR THE BOARD A. Dean, Associate Counsel INTRODUCTION The Veteran had active military service from March 1977 to October 1985. This case comes before the Board of Veterans' Appeals (Board) on appeal of a September 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Jackson, Mississippi. The Board has reviewed the physical claims file and the Virtual VA electronic claims file. FINDINGS OF FACT 1. The Veteran's right shoulder disability is not manifested by malunion or nonunion of the clavicle or scapula or recurrent episodes of dislocation with guarding of all arm movements. 2. The Veteran's right shoulder disability is manifested by x-ray evidence of arthritis with complaints of pain and resultant limitation of motion, but without ankylosis. CONCLUSIONS OF LAW 1. The criteria are not met for a schedular rating higher than 20 percent for history of dislocation of the right shoulder. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.7, 4.40, 4.45, 4.71a, Diagnostic Code (DC) 5200-5203 (2013). 2. The criteria for a separate 10 percent rating for arthritis with pain and limitation of motion of the right shoulder have been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.7, 4.40, 4.45, 4.59, 4.71a, DC 5003 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2012), and the pertinent implementing regulation, codified at 38 C.F.R. § 3.159 (2012), provide that VA will assist a claimant in obtaining evidence necessary to substantiate a claim but is not required to provide assistance to a claimant if there is no reasonable possibility that such assistance would aid in substantiating the claim. They also require VA to notify the claimant and the claimant's representative, if any, of any information, and any medical or lay evidence, not previously provided to the Secretary that is necessary to substantiate the claim. As part of the notice, VA is to specifically inform the claimant and the claimant's representative, if any, of which portion, if any, of the evidence is to be provided by the claimant and which part, if any, VA will attempt to obtain on behalf of the claimant. See also Beverly v. Nicholson, 19 Vet. App. 394, 403 (2005). The Board also notes that the United States Court of Appeals for Veterans Claims (Court) has held that the plain language of 38 U.S.C.A. § 5103(a) requires that notice to a claimant pursuant to the VCAA be provided "at the time" that, or "immediately after," VA receives a complete or substantially complete application for VA-administered benefits. Pelegrini v. Principi, 18 Vet. App. 112, 119 (2004). The record reflects that prior to the initial adjudication of the claim, the Veteran was mailed letters in June 2010, July 2010, and August 2010, and January 2011 advising him of what the evidence must show and of the respective duties of VA and the claimant in obtaining evidence. The letters also provided the Veteran with appropriate notice with respect to the disability-rating and effective-date elements of his claim. The Board also finds that the Veteran has been afforded adequate assistance in response to his claim. The Veteran's VA treatment records have been obtained and he has been afforded the appropriate VA examinations. He has not identified any outstanding evidence, to include medical records, which could be obtained to substantiate the claim. The Board is also unaware of any such evidence. As VA satisfied its duties to notify and assist the Veteran, the Board finds that there is no further action to be undertaken to comply with the provisions of 38 U.S.C.A. § 5103(a), § 5103A, or 38 C.F.R. § 3.159, and that the Veteran will not be prejudiced as a result of the Board's adjudication of his claim. Accordingly, the Board will address the merits of the claim. Legal Criteria Disability evaluations are determined by the application of the 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 military service and their residual conditions in civil occupations. 38 U.S.C.A. § 1155; 38 C.F.R. §§ 3.321(a), 4.1 (2012). It is not expected, especially with the more fully described grades of disabilities, that all cases will show all the findings specified; findings sufficiently characteristic to identify the disease and the disability therefrom are sufficient; and above all, a coordination of rating with impairment of function will be expected in all cases. 38 C.F.R. § 4.21 (2012); 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 required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. The evaluation of the same disability under various diagnoses is to be avoided. 38 C.F.R. § 4.14. 38 C.F.R. § 4.14 does not preclude the assignment of separate evaluations for separate and distinct symptomatology where none of the symptomatology justifying an evaluation under one diagnostic code is duplicative of or overlapping with the symptomatology justifying an evaluation under another diagnostic code. Esteban v. Brown, 6 Vet. App. 259, 262 (1994). Shoulder disability may be evaluated under a variety of regulations and diagnostic codes. Traumatic arthritis, substantiated by x-rays findings, is rated as degenerative arthritis. 38 C.F.R. § 4.71a, DC 5010. Degenerative arthritis established by x-ray findings will be rated on the basis of limitation of motion under the appropriate diagnostic codes 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, to be combined, not added under DC 5003. 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, DC 5003. Limitation of motion to shoulder level in the major or minor extremity warrants a 20 percent evaluation. 38 C.F.R. § 4.71a, DC 5201. Limitation of motion to midway between side and shoulder level in the major extremity warrants a 30 percent evaluation. Limitation of motion to 25 degrees from the side in the major extremity warrants a 40 percent evaluation. 38 C.F.R. § 4.71a, DC 5201. For VA purposes, normal range of shoulder motion is: forward extension (flexion) 0 to 180 degrees; shoulder abduction 0 to 180 degrees; internal rotation 0 to 90 degrees; and external rotation 0 to 90 degrees. Lifting the arm to shoulder level is lifting it to 90 degrees. See 38 C.F.R. § 4.71, Plate I. Impairment of the humerus, with recurrent dislocation of the major or minor shoulder at the scapulohumeral joint, is assigned a 20 percent evaluation with infrequent episodes of dislocation and guarding of movement only at shoulder level. A 30 percent evaluation is assigned with frequent episodes and guarding of all arm movements, if the major arm is affected. 38 C.F.R. § 4.71a, DC 5202. DC 5202 further provides a 50 percent evaluation for fibrous union of the major humerus, with a 40 percent rating for fibrous union of the minor shoulder; a 60 percent evaluation for nonunion (false flail joint) of the major humerus, with a 50 percent rating for the minor shoulder; and an 80 percent evaluation for loss of the head of the major humerus (flail shoulder), with a 70 percent rating for the minor shoulder. Id. DC 5203 provides that in cases of clavicular or scapular impairment, with dislocation, a 20 percent rating is warranted where either the major or minor arm is involved. Nonunion of the clavicle or scapula with loose movement shall be assigned a 20 percent rating, while nonunion without loose movement warrants a 10 percent evaluation. Malunion of the clavicle or scapula may be assigned a 10 percent rating, or may be rated based on impairment of function of the contiguous joint. 38 C.F.R. § 4.71a, DC 5203. Analysis In accordance with 38 C.F.R. §§ 4.1, 4.2, 4.41, 4.42 (2012) and Schafrath v. Derwinski, 1 Vet. App. 589 (1991), the Board has reviewed all evidence of record pertaining to the history of the service-connected disability. The Board has found nothing in the historical record which would lead to the conclusion that the current evidence of record is not adequate for rating purposes. The Veteran's right shoulder disability with history of dislocation is currently rated under DC 5203. He is assigned a 20 percent rating. The Veteran specifically argues that he should receive a higher 30 percent rating under DC 5202 for recurrent dislocation of the scapulohumeral joint with frequent episodes and guarding of all movement. There is no indication from the record that the Veteran has received treatment for his right shoulder disability during the appellate period. While the Veteran does receive VA treatment for other medical conditions, the only notation related to his right shoulder disability is from March 2007, where the Veteran complained that his "dislocated shoulder has started acting up." In conjunction with his claim for an increased rating, the Veteran underwent a VA examination in June 2010. At that time, right shoulder flexion was to 120 degrees and abduction was to 130 degrees. External and internal rotation were to 35 degrees and to 75 degrees respectively. There was no additional limitation following repetitive testing. The Veteran experienced a moderate degree of pain throughout the range of motion, which was exhibited by muscle guarding and grunting. There was no evidence of deformity, effusion, or crepitus. The Veteran was able to perform all basic activities of daily living independently. He was diagnosed with traumatic degenerative arthritis with history of dislocation. The Veteran also had a VA examination for his right shoulder in July 2012. At that time, right shoulder flexion was to 120 degrees with evidence of painful motion at 100 degrees. Right shoulder abduction was to 130 degrees with evidence of painful motion at 110 degrees. There was no additional limitation following repetitive testing. The examiner indicated that the Veteran had functional loss or impairment in the form of less movement than normal and pain on movement. The Veteran also had localized tenderness or pain on palpation, as well as guarding of his shoulder. For his muscle strength testing, he had normal strength in his right shoulder on abduction but active movement against some resistance on flexion. He did not have ankylosis, and tests for rotator cuff conditions were all negative. The Veteran did have a history of mechanical symptoms, to include clicking and catching of his right shoulder, as well as infrequent episodes of dislocation and guarding of movement only at shoulder level. He did not have any acromioclavicular condition or any other impairment of the clavicle or scapula. The Veteran denied having a total shoulder joint replacement or any other surgery for his right shoulder. The examiner stated that due to the Veteran's shoulder condition, there was not functional impairment of an extremity such that no effective function remains other than that which would be equally well served by an amputation with prosthesis. The examiner confirmed that imaging studies had been performed and showed findings of degenerative or traumatic arthritis of the right shoulder. He opined that the Veteran's shoulder condition did not impact his ability to work. In this case, the Board notes that the Veteran does not have scapulohumeral articulation or ankylosis; malunion of the humerus, fibrous union of the humerus, nonunion (false flail joint) of the humerus, or loss of head of (flail shoulder) the humerus; or malunion or nonunion of the clavicle or scapula. Thus, his right shoulder disability will not be rated on any of those bases. Based on the evidence of record, the current 20 percent rating for dislocation under DC 5203 is warranted. In this regard, the Board notes that the assignment of a particular diagnostic code is "completely dependent on the facts of a particular case." See 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 current diagnosis, and demonstrated symptomatology. The higher 30 percent rating for frequent episodes of dislocation and guarding of all arm movements under DC 5202 was considered, particularly in light of the Veteran's July 2011 statement where he said his shoulder "jumps out of place at leas[t] 4 times a week" and his July 2011 notice of disagreement where he claimed "currently, his shoulder becomes dislocated every other day." However, as will be explained below, the Veteran does not meet the criteria for the higher rating. The Veteran is competent to describe the original injury to his right shoulder during service and is also competent to relate the history of symptoms and treatment that he has experienced since. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005) (holding that a lay person is competent to testify as to factual matters of which he has first-hand knowledge through observation or experience). The competency of evidence differs, however, from the weight assigned to the evidence, which varies according to its credibility, probative value, and relationship to other items of evidence. See Layno v. Brown, 6 Vet. App. 465, 469 (1994) (holding that the weight and credibility of testimony, as distinguished from its competency, is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted); accord Rucker v. Brown, 10 Vet. App. 67, 74 1997); see also Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997) (holding that the Board has the "authority to discount the weight and probity of evidence in the light of its own inherent characteristics in its relationship to other items of evidence"); Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) (stating that "although interest may affect the credibility of testimony, it does not affect competency to testify."); Washington, 19 Vet. App. at 368 (noting that the witness's credibility affects the weight to be given to his testimony). In this case, the Board finds that the Veteran's alleged history of frequent dislocations is not credible. In determining whether statements submitted by a veteran are credible, the Board may consider their internal consistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant. Caluza v. Brown, 7 Vet. App. at 711, aff'd, 78 F.3d 604 (Fed. Cir. 1996) (per curiam) (table). Further, the Federal Circuit has held that while the absence of contemporaneous medical records does not, in and of itself, render lay testimony not credible, the Board may weigh the absence of contemporaneous records when assessing the credibility of lay evidence. See Buchanan, 451 F.3d at 1336 ("Nor do we hold that the Board cannot weigh the absence of contemporaneous medical evidence against the lay evidence of record."). Moreover, although the Board cannot reject a claimant's statements merely because he is an interested party, the claimant's interest may affect the credibility of his testimony when considered in light of the other factors. See Cartright, 2 Vet. App. at 25; accord Buchanan, 451 F.3d at 1337. Here, the Veteran claimed in 2011 that his right shoulder dislocated as much as every other day, yet the Veteran has not received treatment for his right shoulder. The Veteran's lay statements conflict with the more recent July 2012 VA examiner's findings, which were that the Veteran had infrequent episodes of dislocation and guarding of movement only at shoulder level. Of note, crank apprehension and relocation test was negative in July 2012, indicating no instability of the shoulder. In this regard, the Court has held that contemporaneous evidence has greater probative value than history as reported by the claimant. Curry v. Brown, 7 Vet. App. 59, 68 (1994). Because the more probative and reliable contemporaneous VA examination conflicts with the Veteran's lay statements, the Board finds that the Veteran's allegation of dislocating his shoulder every other day is not credible. Therefore, there is no credible evidence that the Veteran meets the criteria for a higher 30 percent rating for frequent episodes of dislocation of his right shoulder and guarding of all arm movements. As previously mentioned, the Veteran does not meet the criteria for a higher rating under DCs 5200-5203. However, the Board has also considered whether a separate evaluation is warranted for arthritis of the right shoulder with functional loss due to pain, weakness, fatigability, or incoordination. See 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202, 204-7 (1995). Functional loss due to pain is rated at the same level as functional loss where motion is impeded. Schafrath, 1 Vet. App. at 592. Pursuant to § 4.59, painful motion should be considered limited motion, even though a range of motion may be possible beyond the point when pain sets in. See Powell v. West, 13 Vet. App. 31, 34 (1999); Hicks v. Brown, 8 Vet. App. 417, 421 (1995). A finding of functional loss due to pain must be supported by adequate pathology and evidenced by the visible behavior of the Veteran. 38 C.F.R. § 4.40; Johnston v. Brown, 10 Vet. App. 80, 85 (1997). Moreover, although pain may cause a functional loss, pain itself does not constitute functional loss. Mitchell v. Shinseki, 25 Vet. App. 32 (2011). Rather, pain must affect some aspect of "the normal working movements of the body" such as "excursion, strength, speed, coordination, and endurance," in order to constitute functional loss. Id.; see 38 C.F.R. § 4.40. In this regard, the Veteran has been shown to have degenerative joint disease of his right shoulder. The Board notes that at his June 2010 and July 2012 VA examinations, there was objective evidence of pain following repetitive motion and the Veteran had some evidence of limitation of motion, although the limitation of motion did not reach a compensable level under DC 5201. At worst, the Veteran has had forward flexion limited to 120 degrees and abduction limited to 130 degrees, both of which are above shoulder level. However, the July 2012 examiner specifically noted that the Veteran had functional loss and/or impairment due to having less movement than normal and pain on movement. While both the June 2010 and July 2012 VA examiners declined to comment on the Veteran's estimated functional capacity during a flare-up, the Board finds that a separate 10 percent rating, but not higher, is warranted for arthritis with pain and functional impairment that the Veteran experiences as a result of his right shoulder disability. See 38 C.F.R. §§ 4.59, 4.71a, DC 5003. Consideration has been given to assigning a staged rating; however, at no time during the period in question has the disability warranted a higher schedular rating. See Hart v. Mansfield, 21 Vet. App. 505 (2007). The Board has also considered whether this case should be referred to the Director of the VA Compensation and Pension Service for extra-schedular consideration under 38 C.F.R. § 3.321(b)(1). The Rating Schedule represents as far as is practicable the average impairment of earning capacity. Ratings will generally be based on average impairment. 38 C.F.R. § 3.321(a), (b). To afford justice in exceptional situations, an extra-schedular rating can be provided. 38 C.F.R. § 3.321(b). The Court has clarified the analytical steps necessary to determine whether referral for extraschedular consideration is warranted. See Thun v. Peake, 22 Vet. App. 111 (2008). First, the RO or the Board must determine whether the evidence presents such an exceptional disability picture that the available schedular evaluations for the service-connected disabilities are inadequate. Second, if the schedular evaluations do not contemplate the Veteran's level of disability and symptomatology and are found inadequate, the RO or Board must determine whether the claimant's exceptional 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 C&P Service to determine whether, to accord justice, the Veteran's disability picture requires the assignment of an extra-schedular rating. In this case, the symptoms associated with the Veteran's right shoulder disability are not shown to cause any impairment that is not already contemplated by the rating criteria. The DCs under which these disabilities are rated contemplate pain and limited motion. See 38 C.F.R. §§ 4.40, 4.45, 4.59. Therefore, the Board finds that the rating criteria reasonably describe his disability and referral for consideration of extra-schedular ratings is not warranted in this case. ORDER Entitlement to a rating in excess of 20 percent for history of dislocation of the right shoulder is denied. Entitlement to a separate 10 percent rating, but not higher, for arthritis with pain and limitation of motion of the right shoulder is granted, subject to the laws and regulations governing the award of monetary benefits. ____________________________________________ P. M. DILORENZO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs