Citation Nr: 1342820	
Decision Date: 12/26/13    Archive Date: 01/07/14

DOCKET NO.  09-00 265A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Roanoke, Virginia


THE ISSUES

1.  Whether new and material evidence has been received to reopen a claim of entitlement to service connection for a stomach disorder.

2.  Entitlement to service connection for a stomach disorder.

3.  Entitlement to service connection for a low back disability.  

4.  Entitlement to an increased rating for a right shoulder disability, currently rated as 30 percent disabling (excluding periods of total temporary disability pursuant to 38 C.F.R. § 4.30).

5.  Entitlement to an increased rating for a left shoulder disability, currently rated as 30 percent disabling (excluding periods of total temporary disability pursuant to 38 C.F.R. § 4.30).

6.  Entitlement to special monthly compensation (SMC) under 38 U.S.C.A. § 1114(s) prior to April 9, 2010.  


REPRESENTATION

Appellant represented by:	Disabled American Veterans


ATTORNEY FOR THE BOARD

C. D. Simpson, Counsel


INTRODUCTION

The Veteran had active duty service from November 1979 to June 1981.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from February 1998, January 2008, and January 2011 rating decisions by the Regional Office (RO) of the Department of Veterans Affairs (VA) in Roanoke, Virginia.  

In June 2004, the Board granted a 30 percent rating for each shoulder and remanded the claims for increased ratings for bilateral shoulder disabilities and a stomach disorder for additional notification and development.  These claims now return to the Board.  The Board finds a January 1999 substantive appeal sufficient to perfect an appeal for the claimed stomach disorder, something the Board should not have overlooked in its 2004 decision.  

The Veteran subsequently perfected appeals for an earlier effective date for SMC under 38 U.S.C.A. § 1114(s) and service connection for a low back disability and these issues will also be considered in the instant decision.

The Board also notes that 38 C.F.R. § 3.156(a) which defines new and material evidence was amended in 2001, and that amendment applies to claims to reopen filed on or after August 29, 2001.  See 66 Fed. Reg. 45620 (2001).  However, that amendment does not apply as the appellant's claim to reopen was filed in July 1997.

The Veteran's electronic folder in the Virtual VA paperless claims processing system includes the Informal Hearing Presentation and updated VA treatment records.  The RO considered the updated VA treatment records in an August 2012 Supplemental Statement of the Case.  

The Veteran submitted additional evidence in September 2013.  He waived his right to review by the agency of original jurisdiction (AOJ) in an October 2013 Informal Hearing Presentation.  38 C.F.R. § 20.1304(c).  

(The decision below reopens the claim of service connection for a stomach disorder.  The underlying question of service connection is addressed in a remand that follows the decision below.  The question of an earlier effective date for award of SMC under 38 U.S.C.A. § 1114(s) is deferred pending the AOJ's decision on the stomach claim.)


FINDINGS OF FACT

1.  By an October 1984 decision, the Board denied the Veteran's claim for service connection for a stomach disorder.  The Veteran did not submit new and material evidence within a year of the denial.

2.  Evidence added to the record since the October 1984 decision, when viewed in conjunction with the evidence previously of record, is so significant that it must be considered in order to fairly decide the merits of the underlying claim for service connection for a stomach disorder.

3.  The Veteran does not have a low back disability attributable to his military service.

4.  The Veteran is right hand dominant.

5.  The Veteran's right shoulder disability is manifested by limitation of motion of the arm to midway between side and shoulder level; limitation of motion of the arm to 25 degrees from the side, ankylosis, fibrous union, nonunion or loss of head of the humerus is not demonstrated.

6.  The Veteran is in receipt of the highest schedular rating for loss of motion for the non-dominant arm; ankylosis, fibrous union, nonunion or loss of head of the humerus is not demonstrated.


CONCLUSIONS OF LAW

1.  The October 1984 Board decision denying service connection for a stomach disorder is final.  38 U.S.C.A. § 7104(b) (West 2002); 38 C.F.R. § 20.1100 (2013). 

2.  The evidence received since the October 1984 Board decision is new and material; the claim for service connection for a stomach disorder is reopened.  38 U.S.C.A. §§ 5108, 7104(b) (West 2002); 38 C.F.R. § 3.156 (2001).

3.  The Veteran does not have a low back disability that is the result of disease or injury incurred in or aggravated during active military service.  38 U.S.C.A. §§ 1131, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2013).

4.  The criteria for a disability rating in excess of 30 percent for a right shoulder disability have not been met.  38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.1-4.7, 4.14, 4.40, 4.45, 4.71a, Diagnostic Codes (DCs) 5200 to 5203 (2013).

5.  The criteria for a disability rating in excess of 30 percent for a left shoulder disability have not been met.  38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.1-4.7, 4.14, 4.40, 4.45, 4.71a, DCs 5200 to 5203 (2013).



REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I.  Duty to Notify and Assist

The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance.  38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2013); 38 C.F.R §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013).  They also require VA to notify the claimant and the claimant's representative 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 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.  (With respect to the petition to reopen, this portion of the claim is granted, so further discussion of the VCAA compliance on the question of reopening is not necessary.)  

The VCAA notice requirements apply to all five elements of a service connection claim.  These are:  (1) veteran status; (2) existence of a disability; (3) a connection between an appellant's service and the disability; (4) degree of disability; and (5) effective date of the disability.  Dingess v. Nicholson, 19 Vet. App. 473 (2006). 

With regard to claims for increased disability ratings for service-connected disabilities, the law requires VA to notify the claimant that, to substantiate a claim, the claimant was must provide, or ask VA to obtain, medical or lay evidence demonstrating a worsening or increase in severity of the disability.  38 U.S.C.A. 
§ 5103(a); 38 C.F.R. § 3.159(b); Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008), vacated and remanded sub nom. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009).  The claimant must be notified that, should an increase in disability be found, a disability rating will be determined by applying relevant Diagnostic Codes, which typically provide for a range in severity of a particular disability from noncompensable to as much as 100 percent (depending on the disability involved), based on the nature of the symptoms of the condition for which disability compensation is being sought, their severity and duration.  Finally, the notice must provide examples of the types of medical and lay evidence that the Veteran may submit (or ask the VA to obtain) that are relevant to establishing entitlement to increased compensation.  However, the notice required by section 5103(a) need not be specific to the particular Veteran's circumstances; that is, VA need not notify a Veteran of the specific diagnostic codes that are to be considered.  Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009).

Letters dated in December 2006, May 2008, December 2008, April 2009, June 2009, June 2010, and September 2010 together apprised the Veteran of what the evidence must show to establish entitlement to the benefits, what evidence and/or information was already in the RO's possession, what additional evidence and/or information was needed from the Veteran, what evidence VA was responsible for getting, and what information VA would assist in obtaining on the Veteran's behalf.  The May 2008 letter informed the Veteran that an increase in his shoulder disabilities may be shown by physical and clinical evaluation results and statements from individuals who are able to describe from their knowledge and personal observations the manner in which the disability has worsened.  The December 2008, April 2009, June 2009, June 2010, and September 2010 letters also notified the Veteran of the criteria for assigning a disability rating and an effective date.  See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006).  Although some of these letters were not received prior to the initial adjudications, the Veteran had an opportunity to submit information and evidence in light of these notices prior to the multiple subsequent adjudications by the RO with the most recent being the August 2012 supplemental statement of the case.  This course of corrective action satisfies VA's notice requirements.  See Mayfield v. Nicholson, 499 F.3d 1317 (Fed. Cir. 2007).  A remand for additional notification about how to substantiate the claims is not necessary.  

The VCAA also requires VA to make reasonable efforts to help a claimant obtain evidence necessary to substantiate his claim.  38 U.S.C.A. § 5103A; 38 C.F.R. 
§ 3.159(c), (d).  This "duty to assist" contemplates that VA will help a claimant obtain records relevant to his claim, whether or not the records are in Federal custody, and that VA will provide a medical examination or obtain an opinion when necessary to make a decision on the claim.  38 C.F.R. § 3.159(c)(4). 

VA obtained the Veteran's service treatment records and all of the identified relevant post-service VA and private treatment records.  He submitted updated Richmond VA Medical Center and private medical records in September 2013.  He had a January 2010 VA examination for his claimed back disability.  He also had May 2009 and May 2012 VA shoulder examinations to assess the severity of his service-connected bilateral shoulder disability.  There is no indication that the Veteran's service-connected shoulder disabilities have worsened since the May 2012 VA examination.  

The record reflects substantial compliance with the June 2004 remand.  See Stegall v. West, 11 Vet. App. 268 (1998); D'Aries v. Peake, 22 Vet. App. 97, 105 (2008) (it is only substantial compliance, rather than strict compliance, with the terms of a remand that is required).  The current record includes:  multiple updated VCAA notice letters, May 2009 and May 2012 VA shoulder examinations, issuance of an August 2010 statement of case for the issue of reduction of a total evaluation for an adjustment disorder, further development of the appeal for service connection for a stomach disorder, and January 2013 decision from the Compensation and Pension Director denying an extraschedular rating for the bilateral shoulder disabilities.  Although the AOJ did not send a specific letter requesting the Veteran to identify his medical treatment history for his shoulders since 2002, the record contains numerous subsequent notice letters requesting that the Veteran identify or submit medical records in his possession.  Review of the record does not in any way suggest there are outstanding pertinent medical records pertaining to either shoulder since 2002.  The AOJ re-adjudicated the claims in August 2012.  

Accordingly, the Board is satisfied that the duty-to-assist requirements under 38 U.S.C.A. § 5103A and 38 C.F.R. § 3.159(c) have been satisfied. 

II.  New and Material Evidence

Prior final decisions of the Board may be reopened upon the receipt of evidence which is new and material.  38 U.S.C.A. §§ 5108, 7104(b) (West 2002).  New and material evidence means evidence not previously submitted to agency decision makers which bears directly and substantially upon the specific matter under consideration, which is neither cumulative nor redundant, and which by itself or in connection with evidence previously assembled is so significant that it must be considered in order to fairly decide the merits of the claim.  38 C.F.R. § 3.156(a) (2001); see also Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998). 

The definition of new and material evidence was amended in August 2001.  However, the amended definition of new and material evidence only applies to a claim to reopen received on or after August 29, 2001.  66 Fed. Reg. 45,620 (Aug. 29, 2001).  Because the Veteran's claim was received by the RO prior to that date, in July 1997, the amended definition of new and material evidence is not applicable to the Veteran's claim to reopen.

In determining whether new and material evidence has been received, VA must initially decide whether evidence associated with the claims file since the prior final denial is, in fact, new.  This analysis is undertaken by comparing newly received evidence with the evidence previously of record.

The provisions of 38 U.S.C.A. § 5108 require a review of all evidence submitted by or on behalf of a claimant since the last final denial on any basis to determine whether a claim must be reopened.  See Evans v. Brown, 9 Vet. App. 273, 282-83 (1996).  For purposes of the "new and material" analysis, the credibility of the evidence is presumed.  Justus v. Principi, 3 Vet. App. 510, 512-513 (1992).

Briefly, the Board notes that the claims folder includes a September 1986 RO rating decision maintaining the previous denial of reopening.  However, it does not appear that the Veteran was ever informed of this decision.  Hence, the last final prior denial is the October 1984 Board decision.  38 U.S.C.A. § 5104; 38 C.F.R. § 3.104.

The evidence available at the last final prior adjudication by the Board includes service treatment records, November 1982 RO hearing transcript, private medical records, and VA treatment records.  They document occasional complaints of stomach illness, both during and after service.  Reports also indicate that the stomach disorders were related to anxiety.  (Dr. J.R. September 1982 letter; September 1982 Veteran report). 

Since October 1984, numerous additional medical records concerning gastrointestinal illness have been associated with the record.  Notably, an October 1987 letter by Dr. J.R. suggests that the Veteran's intermittent abdominal pain is related to his service-connected psychiatric disability.  In January 1999, the Veteran stated that he experienced stomach discomfort and anxiety immediately after separation.  He had to watch his diet and use over-the-counter medication for stomach relief.  He continued to have stomach sensitivities since service.  He was also informed during service that his stomach symptoms were related to anxiety.  More recent medical records include occasional complaints of stomach illness, but primarily focus on various orthopedic and psychiatric treatment.  

The evidence added to the record since October 1984 is plainly new.  The various symptoms related to stomach illness or disorders are readily observable, and the Veteran is competent to report on them.  Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007).  For purposes of determining whether new and material evidence has been submitted, he is presumed credible.  Justus, 3 Vet. App. at 512-513.  Thus, there is credible evidence of a continuity of stomach disorders beginning in service with medical records documenting episodes of stomach illness.  

The petition to reopen a previously denied claim for service connection for a stomach disorder is granted.  The underlying service connection claim is addressed in the remand section below.  

III.  Service Connection-Low Back

Service connection may be established for a disability resulting from disease or injury incurred in, or aggravated by, active military service.  38 U.S.C.A. § 1131 (West 2002); 38 C.F.R. §§ 3.303, 3.304 (2013).  In general, service connection requires:  medical evidence of a current disability; medical or, in certain circumstances, lay evidence of incurrence or aggravation of a disease or injury in service; and medical evidence of a nexus between the claimed in-service injury or disease and the current disability.  Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table); 38 C.F.R. § 3.303.  

For chronic disabilities listed under 38 C.F.R. § 3.309(a), which includes arthritis, an alternative method of establishing the second and third Shedden/Caluza element is through a demonstration of continuity of symptomatology.  Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013); Barr v. Nicholson, 21 Vet. App. 303 (2007); see also Clyburn v. West, 12 Vet. App. 296, 302 (1999).  A presumption of service incurrence or aggravation exists for specifically identified chronic disabilities, such as arthritis, if manifested to a compensable degree with a year of separation from service.  38 C.F.R. §§ 3.307, 3.309.  As detailed below, arthritis has not been demonstrated within a year of separation, so the presumption is not beneficial to the Veteran.  Id. 

Service connection may also be granted for a disease first diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service.  38 C.F.R. § 3.303(d).

The United States Court of Appeals for the Federal Circuit has held that "[l]ay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional."  Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) ("[T]he Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence").  

Although the Veteran is competent in certain situations to identify a simple condition, he is not competent to provide evidence as to more complex medical questions.  See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007); see also Waters v. Shinseki, 601 F.3d 1274 (Fed. Cir. 2010).  Once evidence is determined to be competent, the Board must determine whether such evidence is also credible.  Layno v. Brown, 6 Vet. App. 465, 469 (distinguishing between competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted")).

In relevant part, 38 U.S.C.A. 1154(a) (West 2002) requires that VA give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim for disability benefits.  Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009).  When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant.  38 U.S.C.A. § 5107(b).

Service treatment records (STRs) include an entry mistakenly dated December 1975 showing that the Veteran had back pain beginning a day earlier.  The examiner assessed muscle spasm.  A February 1980 note reflects that the Veteran complained about "pulling" his back after lifting an object.  He had sharp, piercing pain.   After clinical examination, the examiner assessed mild muscle strain.   STRs, dated in April 1980, reflect that the Veteran complained about left-sided low back pain.  He recalled having trauma to his chest during a basketball game approximately a month prior.  He complained about increasing left-sided low back pain upon twisting motion.  A February 1981 entry shows that he had a left-sided back pain episode.  The examiner assessed back muscle spasm.  In a March 1981 note, the Veteran complained about left shoulder pain, but an assessment of low back strain was given.  

On his May 1981 Report of Medical History for separation, the Veteran denied having or ever having recurrent back pain.  The contemporaneous clinical examination reflects that his spine was clinically examined and deemed to be normal.  

Private medical records from December 1982 show that the Veteran complained about back pain moving to his left side.  He was assessed as having lumbar strain.  Notes from September 1984 list "vague" complaints about back pain.  In August 1985, he complained about low back strain.  He had a negative straight leg raise test and his reflexes were normal.  

Private medical records from October 1985 reflect that the Veteran injured his back from a fall at work.  An entry from March 1986 includes complaints of a tender back and from June 1986 notes complaints of middle back pain associated with flu symptoms.  

In April 1987, he reported a history of back pain lasting three days and X-rays were taken.  The images showed his back to be normal.  He had numbness in the right paravertrbral area and positive straight leg raise test.  The examiner diagnosed low back strain. 

In May 2000, Dr. M.S. submitted a letter.  He noted that the Veteran had a history of back pain beginning in 1997 or 1998.  Recent MRI findings were reviewed.  The Veteran currently had mild L5 radiculopathy and desired to have conservative treatment.  Subsequent private and VA medical records reflect that he had periodic treatment for chronic back pain.  Notably, in February 2007, he had a lumbar fusion.  

The Veteran was afforded a VA lumbar spine examination in January 2010 with review of the claims folder.  He reported injuring his back during basic training.  In service, he used a heat pad, physical therapy, and medication for treatment.  After service, he had intermittent back pain.  However, in 1999 his back pain started to last longer.  He really began to notice it when he started driving a truck for work and had to remove items from the truck.  Then, his back began to hurt all the time.  He recalled having a back surgery and reported his current treatment was injections.  The examiner noted that he had L3-4 discetomy with fusion in 2007.  The Veteran denied any associated urological or neurological symptoms.  Rather, he complained about constant low back pain.  Clinical examination showed that the Veteran had a normal gait.  He did not have any abnormal spinal curvatures.  His back muscles were normal and he exhibited full strength upon testing.  He had normal reflexes and a good range motion without pain.  He was able to heel and toe walk without difficulty.  He could also dress and undress without problems.  X-rays confirmed surgical changes at L4 and L5.  The examiner provided a negative medical opinion.  He explained that the Veteran had a muscle strain in service.  He believed it was unlikely to be related to the current disability (large central disc protrusion at L3-4 and facet disease at L4-5 with ligamentous hypertrophy).  He believed the current disability is the result of aging.  He noted that the Veteran did not have any spinal abnormalities at his separation examination.  He also noted that the Veteran did not receive regular medical treatment for back pain until 2000 and reported a 2-3 year history of back pain.  

More recent VA treatment records show that the Veteran continues to receive treatment for back pain.

The Veteran contends service connection is warranted for a low back disability.  His reports of readily observable symptomatology and VA treatment records satisfy the element of current disability.  STRs document several instances of lumbar strain.  

The Veteran asserts that there is a nexus to service.  He is competent to detail his history of back pain.  See Layno, 6 Vet. App. at 469; see Jandreau, 492 F.3d at 1377.  However, the Board must determine the probative value of his reports.  See Owens v. Brown, 7 Vet. App. 429 (1995); Gabrielson v. Brown, 7 Vet. App. 36 (1994).  In the evaluation of evidence, VA adjudicators may properly consider internal inconsistency, facial plausibility and consistency with other evidence submitted on behalf of the Veteran.  Caluza v. Brown, 7 Vet. App. 498, 510-511 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996) (per curiam) (table); see Madden v. Brown, 125 F. 3d 1447, 1481 (Fed. Cir. 1997); (the Board has the "authority to discount the weight and probative value of evidence in light of its inherent characteristics in its relationship to other items of evidence.").  

The Veteran reports having a continuity of symptomatology for back pain beginning in service.  Such reports conflict with his denial of recurrent back pain in his May 1981 Report of Medical History.  His statements given to Dr. M.S. in May 2000 and the January 2010 VA examiner also conflict with his reports of chronic back pain beginning in service.  He has consistently demonstrated that he has been well able to report for medical treatment, relate his medical history to clinicians, and contact VA.  Notably, he did not identify back pain as a problem when he filed service connection claims immediately after separation and again in July 1997.  Buczynski v. Shinseki, 24 Vet. App. 221, 224 (2011) (silence in medical records may be relevant evidence that symptoms were not present if the record would normally have recorded such symptoms).  Given the above record, the Board does not consider the Veteran credible in his reports of having had chronic back pain that began in service.  Id; Caluza, 7 Vet. App. at 510-511.

The competent medical evidence is limited to the January 2010 VA examination.  By "competent medical evidence" is meant in part that which is provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions.  38 C.F.R. § 3.159(a). 

The Board finds the negative assessment given by the January 2010 VA examiner persuasive.  The January 2010 VA examiner reviewed the claims folder, interviewed the Veteran, and conducted a clinical examination.  He provided a negative opinion with an adequate explanation.  The rationale is plausible and consistent with the record.  He provided reasons for not believing the Veteran's report of chronicity beginning in service.  The Board considers it persuasive evidence against a nexus to service.  Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008).

In summary, when all of the evidence of record is considered, the evidence weighs against a nexus to service.  The Veteran is shown to have back pain and strains in service; however, the record does not show that the in-service problem was chronic or that he now has a chronic back disability related to the in-service problems.  

For the foregoing reasons, the Board finds that the preponderance of the evidence is against the claim of service connection for a back disability.  In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine; however, because the preponderance of the evidence is against the Veteran's claim of service connection, that doctrine is not helpful to the Veteran.  See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Ortiz v. Principi, 274 F.3d 1361, 1365 (Fed. Cir. 2001).

IV.  Increased Ratings--Shoulders

Disability evaluations are determined by the application of the Schedule for Rating Disabilities, which allows for ratings based on the average impairment of earning capacity resulting from a service-connected disability.  38 U.S.C.A. § 1155; 38 C.F.R. Part 4.  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. 

In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of a veteran's condition. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991).  However, where an increase in the level of a service-connected disability is at issue, the primary concern is the present level of disability.  Francisco v. Brown, 7 Vet. App. 55 (1994). Nevertheless, the Board acknowledges that a claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made.  Hart v. Mansfield, 21 Vet. App. 505 (2007).  The analysis in this decision is therefore undertaken with consideration of the possibility that different ratings may be warranted for different time periods. 

The Board must consider a Veteran's pain, swelling, weakness, and excess fatigability when determining the appropriate evaluation for a disability using the limitation-of-motion diagnostic codes.  38 C.F.R. §§ 4.40, 4.45; see Johnson v. Brown, 9 Vet. App. 7, 10 (1996).  The Court interpreted these regulations in DeLuca v. Brown, 8 Vet. App. 202 (1995), and held that all complaints of pain, fatigability, etc., shall be considered when put forth by a Veteran.  In accordance with this requirement, the Veteran's reports of pain have been considered in conjunction with the Board's review of the limitation-of-motion diagnostic codes.  See also Mitchell v. Shinseki, 25 Vet. App. 32 (2011).

However, the evaluation of the same disability under various diagnoses is to be avoided.  38 C.F.R. § 4.14 (2013).  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).

The Veteran's service-connected right shoulder dislocation with osteoarthritic changes status post surgery and left shoulder recurrent dislocation with arthritis status post surgery have been evaluated under Diagnostic Code (DC) 5201 for limitation of motion of the arm.  Limitation of motion of the shoulder is evaluated under Diagnostic Code 5201 for limitation of motion of the arm.  A 30 percent rating is assigned when motion of the major arm is limited to midway between the side and shoulder level.  A 40 percent rating is assigned when motion of the major arm is limited to 25 degrees from the side.  38 C.F.R. § 4.71a,  DC 5201.  The evidence shows that the Veteran is right handed.

Under Code 5202, recurrent dislocation of at the scapulohumeral joint with infrequent episodes, and guarding of movement only at shoulder level or malunion with moderate deformity warrants a 20 percent rating.  For the major arm, a 30 percent rating is warranted for recurrent dislocation of at the scapulohumeral joint with frequent episodes and guarding of all arm movements or malunion with marked deformity.  Id. 

Under Code 5203, a 10 percent rating is warranted for clavicle or scapula, impairment of: malunion of or for nonunion of without loose movement.  A 20 percent (maximum) rating is warranted if there is nonunion of with loose movement, or if there is dislocation of the clavicle or scapula.  Impairment of the clavicle or scapula may also be rated based on the impairment of function of the contiguous joint.  Id.

Additional schedular ratings aside from limited motion and dislocation for shoulder disabilities are limited.  See 38 C.F.R. § 4.71a, DC 5200-5203.  They pertain to instances where the ankylosis, humerus impairment resulting in loss of head, nonunion or fibrous union.  

The Board notes that normal range of motion of the shoulder is set forth in 38 C.F.R. § 4.71, Plate I.  Normal forward elevation, or flexion, is from 0 to 180 degrees.  Normal shoulder abduction is also from 0 to 180 degrees.  Normal external rotation and internal rotation are from 0 to 90 degrees.

In September 1996, the Veteran underwent an open distal claviculectomy and acromioplasty of the left shoulder.  The postoperative assessment was acromioclavicular joint arthritis impingement syndrome bursitis with scarring and fibrosis with no evidence of a full thickness rotator cuff tear.  

Private medical records from January and February 1997 reflect that the Veteran had recently injured his shoulders during an altercation.  Clinical examination showed a markedly reduced movement for the right shoulder with external rotation to 45 degrees.  Neurological signs were normal.  He had a defect at the junction of the middle and anterior portions of the deltoid with some crepitation under the area.  The examiner diagnosed right shoulder joint disease and diminished range of motion and left shoulder mild bursitis and partial deltoid minimal detachment.  

Private operative report from October 1997 reveals that the Veteran had a right shoulder arthroscopic anterior capsular release and arthroscopic acromioplasty with distal clavicle resection.  The postoperative diagnosis was right shoulder anterior capsular contracture status post anterior capsular repair and acromioclavicular (AC) joint degenerative joint disease.  A postoperative note from November 1997 showed that the Veteran had good muscle tone through his arm with somewhat of a winging scapula.  Right shoulder flexion was to 140 degrees and abduction was to 135 degrees.  External rotation was severely restricted to 10 degrees.  Internal rotation was to 40 degrees.  All movements were painful with crepitus.  Muscle strength of 3-/5 was found.  He was recommended for physical therapy type exercise to increase his function.  

Another private operative report from March 1998 reflected that the Veteran had a left capsulorrhaphy, revision of distal clavicle, resection and revision acromioplasty, and sub-acromial debridement.  An operative diagnosis of left shoulder instability with AC joint tenderness and impingement status post distal clavicle resection and acromioplasty was listed.

The Veteran had a VA shoulder examination in October 1998.  The examiner recited the relevant treatment history.  Currently, the Veteran reported clicking and popping of his left shoulder.  He stated that he could not gain any strength in either shoulder.  Clinical examination showed the Veteran to have a good posture and normal gait.  He had crepitus in his left shoulder.  He complained about pain posterior to the scapular area.  Left shoulder flexion was to 120 degrees; external rotation was to 45 degrees; and abduction was to 120 degrees.  He also had crepitus in his right shoulder.  Right shoulder flexion was to 120 degrees; abduction to 80 degrees; and external/internal rotation were both to 30 degrees.  X-rays of the right shoulder showed spurring of the inferior aspect of the joint space and narrowing of the glenohumeral joint.  Left shoulder X-ray images suggested calcific tendonitis.  The AC joint was poorly defined.  Possible surgical resection of the acromial portion of the AC joint was noted.  The examiner diagnosed status post surgical repair of both shoulders with recurrent dislocations, and marked limitation of motion for both shoulders.  

In March 1999, the Veteran had a left shoulder arthroscopy, open subacromial decompression, and open deltoid repair.  The diagnosis was left shoulder impingement; deltoid tear.  

VA reexamined the Veteran in December 1999.  The examiner recited the pertinent medical history, including three surgeries on the right shoulder and five surgeries on the left shoulder.  He was advised to have a joint replacement for his left shoulder.  Currently, both shoulders were painful, even after recent left shoulder surgery.   Clinical examination showed the Veteran to have a good build and posture.  Gait was normal.  Right shoulder had 16 centimeter (cm) by 2.5 cm unsightly, deep, tender scar on his right shoulder.  He had some atrophy to his deltoid muscles.  Another scar was 2 cm by 0.25 cm on the anterior right shoulder.  Right shoulder flexion was to 150 degrees with pain and abduction to 128 degrees with pain.  Right shoulder internal rotation was to 43 degrees with pain and external rotation was to 47 degrees with pain.  Left shoulder had crepitus.  He had atrophy of deltoid muscle causing a 0.5 cm depression on the top of the left shoulder.  He had full left shoulder flexion, abduction, and internal rotation with pain.  External rotation was to 80 degrees.  The examiner further commented that pain starts at initial function and continues.  It ceased after testing.  He reviewed X-ray studies.  He diagnosed status post surgical repair both shoulders with metallic screws remaining in place in the right shoulder and mild atrophy of both deltoid muscles.  

In February 2000, the Veteran had right shoulder arthroscopy.  The surgeon commented that the right shoulder had been stable, but the Veteran has experienced persistent pain and degenerative changes resulting in significant loss of motion.  

Private medical records from November 2001 include X-rays showing significant right shoulder glenohumeral osteoarthritis with distal clavicle excision.  X-rays of the left shoulder revealed distal clavicle excision without osteoarthritis.  The physician recommended arthroscopy capsular release, open AC interval plasty, and superior spur removal for the right shoulder.  He recommended open revision acromioplasty, AC interval plasty, and deltoid repair.  

The Veteran underwent another right shoulder arthroscopy in May 2002.  The diagnosis was right frozen shoulder, right shoulder impingement syndrome, and acromioclavicular osteoarthritis.  The Veteran had VA physical therapy following the surgery.  

VA reexamined the Veteran's right shoulder in January 2003.  The examiner recited the pertinent treatment history.  The Veteran reported that his postoperative right shoulder was tender and had anterior looseness.  He had 6-8/10 pain.  He felt weakness, but denied stiffness, swelling, heat, or redness.  He had instability/giving way, fatigability, and lack of endurance.  He denied locking.  He did not wear a brace.  He denied dislocation or subluxation.  Clinical examination showed a deformity consisting of a drop off of 2 cm at the AC joint area.  He had tenderness, but crepitus and swelling were not observed.  Right shoulder flexion was to 135 degrees, abduction to 114 degrees, and internal and external rotation to 70 degrees.  Pain was associated with all motions.  Anterior right shoulder had 6 cm by 1.5 cm unsightly tender scar and 15 cm by 1 cm unsightly tender scar.  Posterior right shoulder had a 4 cm by 1.5 cm unsightly tender scar.  Neurological examination of both upper extremities was normal.  The examiner reviewed December 1999 X-rays.  Current X-rays revealed mild secondary osteoarthritis involving the right glenohumeral joint without change when compared to prior study.  The final diagnosis was status post surgical repair right shoulder with previous metallic screw removed, obvious physical deformity of 2 cm shoulder drop off at the distal clavicle and mild degenerative joint disease shown on X-ray.  

Private medical records from March 2003 reflect that the Veteran was doing well after right shoulder surgery.  He had nearly a full range of motion and could exercise.  He recommended a left shoulder arthroscopy.  

Private surgery records from February 2004 show that the Veteran had a left shoulder labral tear, impingement syndrome, deltoid tear, and acromioclavicular joint instability.  He underwent an arthroscopy.  

A private work status note from October 2004 reflects that the Veteran had a left shoulder contusion.  He was limited to lifting between 15 and 20 lbs to his waist and no lifting above shoulder height.  He could not engage in pushing or pulling activities, nor could he reach above his chest with his left arm.  

Private medical records from November 2004 include left shoulder X-rays.  They showed left distal clavicle excision.  The glenohumeral was unremarkable.  The Veteran exhibited a full range of motion.  The examiner believed the Veteran overstrained his shoulder at work and recommended future caution.   

Private medical records from November 2006 reflect that the Veteran had left shoulder pain.  Left shoulder X-ray was negative for glenohumeral arthritis.  The examiner commented that the left shoulder had remained the same for the past two years.  However, the Veteran had a severe symptomatic flare-up, which was probably synovitis and maybe an arthropathy.  He recommended physical therapy and anti-inflammatory medicine as conservative measures.  

VA reexamined the Veteran's left shoulder in January 2007.  The examiner did not have the claims folder, but noted February 2004 operative records.  For the left shoulder, the Veteran endorsed having deformity, giving way, instability, pain, stiffness, weakness, and incoordination.  He denied decreased speed of motion, dislocation (subluxation), locking episodes, effusions, or flare-ups.  He had warmth and redness.  He did not use any assistive devices.  The examiner assessed the Veteran as having painful movement of the left shoulder.  Right shoulder flexion, abduction, external and internal rotations were all full.  Left shoulder flexion and abduction were to 170 degrees without pain.  External rotation was to 80 degrees with pain beginning at 75 degrees.  Internal rotation was full without pain.  X-rays were taken.  The examiner diagnosed residual left clavicle and acromion resection with mild degenerative joint disease and no functional impairment.  

Private physical therapy records from June to August 2007 reflect that the Veteran had persistent pain in his left shoulder interfering with sleep.  Upon completion, the Veteran stated that his left shoulder had not improved from physical therapy.  Mid range and overhead lifting were limited by his left shoulder disability.  Left shoulder flexion was to 122 degrees.  Abduction was to 170 degrees.  External rotation was to 45 degrees with pain beginning.  Internal rotation was to 75 degrees.  Strength was mostly 4/5 with abduction as 3+/5.  He had good core stabilization upon treadmill walking.  The physical therapist assessed that the Veteran had difficulty accepting limitations due to left shoulder pain and recommended vocational rehabilitation.  

Private medical records, dated in October 2007, show that the Veteran had persistent pain in his left shoulder, especially with overhead activities.  He had 120 degrees left shoulder flexion and abduction, but it was very painful.  Strength testing was not completed due to pain.  Sensory examination of the left arm was normal.  Motor testing of the left arm showed 5/5 strength.  No skin abnormalities were found.  MRI confirmed small rotator cuff tear.  The examiner assessed left shoulder pain consistent with rotator cuff tear and recommended physical therapy.  

VA orthopedic notes from October 2008 reflected that the Veteran had greater disability in his right shoulder as opposed to his left.  He had recurrent right shoulder dislocation.  He experienced increased discomfort, particularly with adduction of the arm.  He denied subluxation or recurrent dislocation of the (left) shoulder.  He denied any neurovascular problems in either arm.  Clinical examination showed a full range of motion for both shoulders with increased pain for the right shoulder on full abduction, external rotation of the glenohumeral region.  Sensory and motor examinations were normal for both arms.  X-rays of the right shoulder revealed degenerative change in the glenohumeral region.  The examiner diagnosed degenerative arthritis secondary to recurrent dislocation of the right shoulder and subacromial bursitis with possible small rotator cuff tear of the left shoulder.  He recommended steroid injections for pain relief.  

The Veteran returned to the VA orthopedic clinic in November 2008.  His primary complaint was pain in the subacromial region laterally in both shoulders.  Glenohumeral pain had improved.   The examiner noted a recent private MRI study showed bilateral rotator cuff tears.  Range of motion of both shoulders was to 100 degrees with fair to good strength against resistance in all planes of motion.  Increased pain was noted against resistance of both shoulders with the left being greater than the right.  Sensory and motor examinations were normal.  The Veteran did not have tenderness over the AC joints.  The examiner diagnosed bilateral rotator cuff tears with impingement of both shoulders.  

VA orthopedic clinic records from January 2009 show the Veteran complaining of recurrent pain in both shoulders.  It had been gradual in onset.  Clinical examination showed tenderness of the right shoulder.  He had good strength against resistance in all planes of motion and full range of motion of the shoulder.  Sensory and motor examinations were normal.  The examiner assessed trigger point of the left posterior superior spine of the scapula as well as glenohumeral arthritis of the right shoulder.  He recommended steroid injections of the right shoulder and spine of the scapula.  

VA reexamined the Veteran's right shoulder in January 2009.  The examiner recited the pertinent medical history.  For his right shoulder, the Veteran endorsed giving way, pain, stiffness, and weakness.  He denied deformity, instability, incoordination, decreased speed of motion, dislocation (subluxation), locking episodes, and effusions.  He also had redness.  He denied flare-ups or using assistive devices.  Clinical examination showed full bilateral shoulder flexion, abduction, and external rotation.  Bilateral internal rotation was limited to 80 degrees.  The examiner noted objective evidence of pain following repetitive motion, but no other additional limitations after repetition.  Ankylosis was not observed.  The examiner commented that the Veteran could dress and undress without difficulty.  He did not observe muscle atrophy.  He assessed very good muscle strength in the right arm.  His range of motion was slow and controlled.  X-rays showed surgical and degenerative changes.  The examiner diagnosed degenerative changes of right shoulder with preserved range of motion.  He described the symptoms as right shoulder dislocation with osteoarthritis.

VA primary care records from March 2009 reflect that the Veteran did not have any significant changes in his chronic health problems.  No discomfort was observed at rest.  Clinical evaluation of the right arm showed fair to good range of motion.  The examiner assessed right arm pain and history of degenerative joint disease of the right shoulder.  An addendum shows that the Veteran contacted the primary care clinic with complaints of right shoulder achiness and intermittent tingling/numbing.  The examiner reviewed cervical spine X-ray images and stated that it was not an urgent problem.    

VA reexamined the Veteran for both shoulders in May 2009.  The examiner did not have the claims folder, but had access to pertinent medical records and recited them for background purposes.  The Veteran stated that he was right hand dominant.  Clinical examination showed the Veteran to have guarding of all movements.  Right shoulder flexion was to 160 degrees.  Left shoulder flexion was to 105 degrees.  Right abduction was to 85 degrees.  Left abduction was to 110 degrees.  Right internal rotation was to 50 degrees.  Left internal rotation and bilateral external rotation all were to 45 degrees.  The examiner observed pain during motion, but did not provide further specification.  She noted that there was pain after repetitive motion, but no additional limitations.  Ankylosis was not observed.  She reviewed X-rays from 2003 and 2007.  She diagnosed bilateral shoulder traumatic arthritis of glenohumeral joints, winged scapula on right.  

Private medical records from June 2009 reflect that the Veteran complained about intermittent right shoulder pain for many years.  He denied instability.  Recent physical therapy had been mildly beneficial.  He had numerous steroid injections in his right shoulder.  For his left shoulder, he had a history of dislocation without any recent episodes.  Again, physical therapy was minimally beneficial.  Clinical examination of the left shoulder showed crepitus.  Neurovascularly he was intact distally with no obvious deformity.  As relevant, forward flexion was to 100 degrees, abduction to 90 degrees, and external rotation was to 20 degrees.  He exhibited full passive flexion and abduction.  Right shoulder did not present an obvious deformity.  He was neurovascularly intact.  He had crepitus.  As relevant, he had right shoulder flexion and abduction to 100 degrees.  External rotation was to 30 degrees.  X-rays of the left shoulder did not reveal any acute bony abnormality, while on the right shoulder significant joint space narrowing was found.  The examiner noted 2007 MRI confirming left rotator cuff tear.  He diagnosed right shoulder severe glenohumeral degenerative joint disease and left shoulder rotator cuff tear.  

In December 2009, the Veteran underwent a left shoulder arthroscopy.  He was found to have massive irreparable rotator cuff tear and biceps tendinopathy with subluxation.  He had VA PT for postoperative recovery in January, February, and March 2010.  When he initially presented to PT, he reported mild soreness of his left shoulder, loss of strength, loss of motion, and general decrease in overall function.  He improved his motion during PT, but continued to have limited strength.    

In April 2010, the Veteran stated that he needed an updated VA examination in light of his recent August 2004 surgery.  He contended his claim included consideration of an extraschedular rating.

The Veteran had a VA orthopedic consultation for his left shoulder in May 2010.  The examiner described the Veteran as having irreparable rotator cuff capsular injury with severe neurologic and muscle wasting.  Private orthopedists associated with the University of Virginia recommended tendon transfer surgery and/or total shoulder replacement.  Clinical examination showed "extreme atrophy" in the supraspinatus and infraspinatus.  The Veteran exhibited weakness in the subscapula and rotator cuff.  He was able to move his left shoulder to neutral with pain and no strength.  He also had no strength in his left shoulder forward flexion or rotation.  The right shoulder had pain with elevation and rotation.  The examiner commented that there were obvious arthritis in the right shoulder.  X-rays showed minimal degenerative changes at the glenohumeral joint of the left shoulder.  However, it revealed absence in the distal clavicle and signs of high-riding humeral head consistent with rotator cuff and capsular deficiency.  The examiner diagnosed irreparable rotator cuff and capsular injury, left shoulder with muscle atrophy and degenerative joint disease of the glenohumeral head of the right shoulder.  He submitted a referral for outside surgical consultation as indicated by the private orthopedists.  

VA psychiatric notes from May 2010 also reference the Veteran complaining about left shoulder pain.  He expressed frustration over accepting physical limitations in domestic activities posed by his left shoulder disability.  Specifically, he cited changing automobile oil, home repairs, and mowing his lawn.  He was able to sleep.  

In June 2010, the Veteran had another private orthopedic consultation.  He complained about bilateral shoulder pain with the left being greater than the right.  He described daily pain, but denied that it interfered with sleep.  He denied any neurological symptoms.  He reported periscapular and neck pain.  Clinical examination showed atrophy in both shoulder girdles.  He exhibited "active range of motion of up to 150 degrees" in both shoulders.  External rotation was to 40 degrees and internal rotation was to low back.  He demonstrated full strength in both arm muscles and 2+ pulses.  However, his left arm was significant for deficiencies in his supraspinatus and subscapularis.  In his right arm, he had no deficiencies in his "cup."  The examiner reviewed recent X-rays showing diffuse glenohumeral osteoarthritic changes consistent with post capsulorrhaphy osteoarthritis for the right shoulder.  On the left, he had AC athrosis and proximal migration of his humeral head, but without gross glenohumeral arthritic changes.  The examiner diagnosed bilateral shoulder pain right from glenohumeral arthritis and left from rotator cuff tear.  The Veteran declined right shoulder arthroplasty although the examiner believed it would ultimately be necessary.  For the left shoulder, the examiner commented that the Veteran had "superb" motion and reasonably good strength.  Hence, he did not recommend tendon transfer and advised continued conservative treatment.  He gave the Veteran pain relief injections for both shoulders.  

In July 2010, the Veteran revisited the VA orthopedic clinic.  He expressed frustration over his shoulder pain and pain management therapy.  After discussion with the Veteran, the VA orthopedist agreed that a total shoulder arthroplasty was the only orthopedic treatment option left.  The alternative was primary care pain management.  

Private PT records from August 2010 show that the Veteran believed his recent pain relief measures from injections were unhelpful.  He had increasing pain, particularly with his left arm, that interfered with sleep and lifting his arms.  The therapist assessed a 35 percent disability scale score with 100 representing complete inability to perform daily activities.  Clinical examination showed the Veteran to have marked atrophy of the left shoulder girdle with scapular winging when attempting to elevate his left arm.  Right shoulder flexion was to 130 degrees.  Left shoulder flexion was to 110 degrees with significant scapular weakness observed.  Right abduction was to 125 degrees and left abduction to 90 degrees.  Internal rotation right shoulder went to posterior hip, but with great difficulty.  External rotation right shoulder reached the bottom of the neck and left shoulder to thoracic spine.  Notably, passive internal rotation was to 15 degrees, right and 26 degrees, left.  Passive external rotation was to 43 degrees, right and 50 degrees, left.  Strength was poor for both shoulders with the left upper trapezius particularly inhibited.  Internal rotation, flexion, and abduction for both shoulders were 4-/5.  The right shoulder was appreciably more irritable during rotation, and the left shoulder had visible sulcus sign in the presence of inferior capsular instability.  The examiner recommended alternative sleeping positions.  He assessed progressive increase in pain and disability in the presence of marked shoulder dysfunction.  He gave a guarded outlook for the Veteran's ability to complete his culinary training.  

A September 2010 note reflects that the Veteran was discharged from PT due to his failure to attend.   

VA primary care records from October 2010 show that the Veteran had 7/10 pain in his neck and shoulders.  He described constant dull, numb, aching pain, which was aggravated by arm lifting and shoulder movement.  However, during clinical examination, the examiner commented that there was "no discomfort" at rest.  The examiner assessed chronic pain due to cervical spinal stenosis, rotator cuff tendinopathy.  He noted that shoulder surgery was expected to take place soon.  

VA mental health treatment notes from December 2010 show that the Veteran left culinary school due to shoulder pain.  

In March 2011, the Veteran had acupuncture therapy for chronic pain in his low back and shoulders.  The following month he requested pain medication renewal for his low back and shoulders.  He visited the emergency room in May 2011 with complaints of muscle spasms in his back, shoulders, and neck.  Clinical examination was unremarkable and he was discharged with medication and scheduled for a primary care follow-up consultation.  

VA PT notes from June 2011 show that the Veteran received a hemi-arm sling for his left shoulder.  It was necessary to support the left arm for daily activities.  The Veteran did not have a problem placing or removing the sling.  

The Veteran revisited the VA orthopedic clinic in October 2011.  The examiner noted a history of 6 right shoulder and 7 left shoulder surgeries.  The Veteran continued to have problems lifting with his left shoulder and was concerned about the recent recommendations for additional surgery.  Clinical examination showed the skin on his left shoulder to be intact with multiple surgical scars.  He exhibited left shoulder flexion to 110 degrees and abduction to 80 degrees with 3-4/5 strength.  Internal rotation was to the seam of his pants and external rotation was to 10 degrees.  Right shoulder flexion was to 100 degrees and abduction was to 60 degrees.  For both shoulders, internal rotation was to the seam of his pants and external rotation was to 10 degrees.  The examiner diagnosed left shoulder massive rotator cuff tear and degenerative joint disease for both shoulders.  He was instructed to bring images at his next consultation for further evaluation.  

At his next VA orthopedic consultation in October 2011, he complained of bilateral shoulder pain.  He was not interested in surgery.  He requested pain relief injections.  Physical examination findings were similar to those in the prior October 2011 orthopedic consultation with 3/5 strength for the right shoulder and 3-4/5 strength for the left shoulder.  The examiner reviewed the May 2010 private X-rays brought by the Veteran.  Right shoulder had a distal clavicle resection and glenohumeral arthritis and some calcific tendonitis.  Left shoulder had narrowing of joint space with no superior migration of the head.  The examiner diagnosed left shoulder massive rotator cuff tear and right shoulder glenohumeral arthritis.  He provided pain relief injections.  

VA orthopedic clinic notes from November 2011 showed that the pain relief injections lasted a few days before chronic pain returned.  He had difficulty sleeping.  He was taking Lortab and other medication for mood regulation.  He described rolling over on his left shoulder and feeling like something "slipped" inside of it.  It had been painful since then.  He continued to be leery about surgery.  Clinical examination showed attempted range of motion in his left shoulder to be painful.  His left shoulder was tender to palpation and exquisitely tender over bicep tendon.  However, he was neurovasularly intact.  His right shoulder had flexion to 100 degrees and abduction to 80 degrees with 4/5 strength.  External rotation was to 10 degrees with 3/5 strength.  The examiner continued the October 2011 diagnoses and added left shoulder bicep tendonitis.  He referred the Veteran to the Richmond VA for a shoulder replacement consultation and provided pain relief injections for both shoulders.    

VA Richmond treatment records from December 2011 show that the Veteran had right shoulder active forward flexion and abduction to 80 degrees with full strength.  He had minimal internal rotation.  The examiner commented that his right rotator cuff appear intact.  Left shoulder showed an unspecified range of motion to 90 degrees.  He had external rotation to 10 degrees and minimal internal rotation with 3/5 strength.  He had a positive empty-can test, mildly positive impingement signs, and a negative Yergason sign.  X-rays showed significant glenohumeral arthritis on the right shoulder and minimal glenohumeral arthritis on the left shoulder.  He had mild bilateral AC osteoarthritis.  The examiner explained the surgical options for each shoulder.  

VA primary care records from March 2012 show that the Veteran's chief complaint was shoulder pain.  Upon clinical examination, the Veteran was able to abduct both shoulders to 90 degrees.  The examiner maintained the previous orthopedic clinic diagnoses for the shoulders.  

The Veteran had his most recent VA shoulder examination in May 2012.  He reported that his left shoulder was worse in pain and function than his right shoulder.  The examiner noted the Veteran to be right handed.  The Veteran had flare-ups when lifting objects, especially with his left shoulder.  Accordingly, he significantly limited his activities.  Both right and left shoulder flexion were to 110 degrees with pain beginning at 90 degrees.  Right shoulder abduction was to 90 degrees with endpoint pain.  Left shoulder abduction was to 80 degrees with endpoint pain.  The Veteran was unable to perform repetitive testing.  The examiner identified functional impairment from less motion, excess fatigability, pain, and atrophy of the left arm.  She commented that pain upon palpation and guarding were observed for both shoulders.  The Veteran had full strength in the right shoulder, but 4/5 strength in left shoulder abduction and forward flexion.  Ankylosis was not observed.  He had positive Hawkins' Impingement Test for both shoulders and Empty-can test for the left shoulder.  He had negative infraspinatus strength test.  The examiner was unable to perform a Lift-off subscapularis test.  She reported that there was a history of recurrent dislocation (subluxation) of the glenohumeral (scapulohumeral) joint.  She cited infrequent episodes for the left shoulder and guarding of movement at shoulder level for both shoulders.  The examiner assessed left shoulder dislocation.  She was unable to perform the Crank apprehension (instability) or Cross-body adduction (acromioclavicular joint) testing.  She noted the Veteran's reported surgical history and later remarked that the findings had not changed since May 2009.  She recited recent January and February 2012 X-rays showing full thickness rotator cuff repair and severely retracted complete tear of the left supraspinatus tendon.  The examiner diagnosed post-operative right shoulder dislocation with osteoarthritic changes and full thickness rotator cuff tear and left shoulder recurrent dislocation status post surgery with arthritis and complete tear of the left supraspinatus tendon.  

At his next consultation in May 2012, he was evaluated for a reverse total left shoulder replacement.  Clinical examination showed him to have active range of motion to 110 degrees for the left shoulder with pain.  The examiner commented that the Veteran was difficult to examine.  However, he noted his bilateral upper extremities were distally neurovascularly intact.  MRI of the left shoulder confirmed massive retracted full thickness rotator cuff tear.  The examiner limited his left shoulder options as to either continue PT or have a reverse total shoulder arthroplasty.  The Veteran wanted to continue PT for the time being.  VA clinical notes from August and September 2012 reflect that PT was unsuccessful, but the Veteran was not ready to proceed with surgery.

In December 2012, the Veteran continued to have poor pain control.  Range of motion was similar to prior findings with pain noted.  He desired left shoulder surgery.   X-rays were taken which showed post distal clavicular resection and mild to moderate glenohumeral osteoarthritis.    

In January 2013, the Director of Compensation Services evaluated the increased rating claims and denied an extraschedular rating for either service connected shoulder disability.  

A February 2013 MRI revealed severely retracted complete tear of the left supraspinatus tendon.  

The Veteran had a private surgical consultation in March 2013.  The left shoulder revealed well healed scarring with some atrophy.  He had 4/5 weakness.  He agreed to undergo a reverse total shoulder arthroplasty on his left shoulder.  He was scheduled for surgery in August 2013.  


(i) Right shoulder (major extremity)

The Veteran is currently in receipt of a 30 percent rating under DC 5201 for his right shoulder based upon loss of motion.  38 C.F.R. § 4.71a, DC 5201.  He contends that a higher and/or additional rating is warranted for his right shoulder disability.  

At the outset, the Board notes that multiple examinations of the Veteran's right shoulder include diagnoses of right shoulder dislocation with osteoarthritis changes and full thickness rotator cuff tear.  Right shoulder diagnoses and clinical examinations do not show ankylosis of scapulohumeral articulation or fixed position of the right shoulder (38 C.F.R. § 4.71a, DC 5200).  They also do not reflect objective evidence of fibrous union of the humerus, nonunion of the humerus (false flail joint), or loss of head of the humerus (flail shoulder) (38 C.F.R. § 4.71a, Diagnostic Code 5202).  Hence, ratings under DC 5200 and portions of DC 5202 are not applicable.  38 C.F.R. § 4.71a, DCs 5200, 5202.  

A rating in excess of 30 percent under the currently assigned DC 5201 is limited to loss of motion from 25 degrees from the side for major (right) arm.  See 38 C.F.R. § 4.71a, 5201; 38 C.F.R. § 4.71a, Plate 1.  Numerous clinical examinations throughout the claims period show right shoulder flexion and abduction noticeably greater than 25 degrees from his side, even when functional loss is accounted for.  (See VA examination reports from October 1998, December 1999, January 2003, January 2007, January 2009, May 2009, and May 2012; Private medical reports from November 1997, March 2003, November 2004, June 2009, June 2010, and August 2010; VA treatment records from November 2008,  October 2011, November 2011, and March 2012).  The Board observes that vague assessments of significantly restricted motion were given in February 1997, February 2000, and from January to March 2010.  Since the numerous detailed range-of-motion studies above weigh against findings necessary for the next highest rating criteria, these vague assessments do not provide a basis for an increased rating.  

The Board has considered the Veteran's reports of functional impairment due to pain, weakness, and fatigability, among others, in right shoulder movement.  Notably, he has on occasion exhibited diminished strength (3 or 4 on a 5 point scale) for his right shoulder.  (See Private medical records from October 1997, August 2010; VA treatment records dated in October 2011and November 2011).  Nonetheless, on other occasions, he has demonstrated full strength.  (See VA treatment records from October and November 2008; January 2009; Private medical records June 2010; VA examinations from December 1999, January 2009, and May 2012).  In short, there are varying findings of right shoulder strength.  Viewed in light of range-of-motion studies demonstrating noticeably more motion than 25 degrees from the side, the Board declines to assign a higher rating for functional impairment due to weakness and pain.  38 C.F.R. § 4.71a, Plate 1; DeLuca, 8 Vet. App. at 206 -07; 38 C.F.R. §§ 4.40 and 4.45.  Consequently, a rating in excess of 30 percent based upon right shoulder functional impairment is not warranted under the currently assigned DC 5201.  Id.; 38 C.F.R. § 4.71a, DC 5201.  

The right shoulder muscle weakness and December 1999 finding of deltoid atrophy could alternatively be rated for shoulder muscle injuries under 38 C.F.R. § 4.73, DC 5301-5304 as opposed to loss of shoulder motion .  DC 5301 provides a 40 percent rating for severe muscle injury for the (major) shoulder.  In this case, the Veteran has retained some range of motion in his right shoulder, albeit with functional impairment due to weakness, pain, among others.  As discussed above, he has exhibited at most 3/5 weakness and also greater to full muscle strength on other occasions.  The Board does not consider the clinical findings to approximate a severe shoulder muscle injury and an alternative rating pursuant to DC 5301 would not be helpful to the Veteran.  38 C.F.R. § 4.73, DCs 5301-5304.  

An additional, separate rating for right shoulder muscle injury under DCs 5301-5304 is not warranted.  38 C.F.R. §§ 4.40, 4.45, 4.71a, DC 5201; 4.73, DCs 5301-5304.  The record contains a December 1999 finding of right deltoid atrophy, June 2010 report of shoulder girdle atrophy, and numerous instances of weakened motion.  (December 1999 VA examination report; see Private medical records from October 1997, June 2010, August 2010; VA treatment records dated in October 2011and November 2011).  However, there has been no showing of a muscle injury of the right shoulder that would warrant greater than a 30 percent rating.  The December 1999 examiner assessed the right deltoid muscle impairment as mild.  The June 2010 assessment is vague.  Additional clinical records do not suggest that any right shoulder muscle injury is greater than slight.  A compensable rating for right shoulder muscle injury is not warranted.  38 C.F.R. § 4.73, DCs 5301-5304.

Symptoms contemplated under DCs 5202 or 5203 for recurrent dislocation at the scapulohumeral joint and malunion/ nonunion of the clavicle or scapula, respectively, could potentially warrant a higher rating.  See Yonek v. Shinseki, 722 F.3d 1355 (Fed. Cir. 2013); Burton v. Shinseki, 25 Vet. App. 1, 6 (2011); Cullen v. Shinseki, 24 Vet. App. 74, 84 (2010); 38 C.F.R. §§ 4.14, 4.71, DCs 5202, 5203 (2013).  On occasion, the Veteran has been assessed as having recurrent dislocation of his right shoulder and guarding.  (October 1998, May 2009 VA examinations; VA treatment records from October 2008).  These reports do not specify the joint or muscles involved and their frequency.  Notably, he has also denied having right shoulder dislocations.  (VA examination reports from January 2003 and January 2009).  The Board finds the assessments of right shoulder dislocation to be intermittent and conflicting.  Most recently, the May 2012 VA examiner noted a history of dislocation (subluxation) at the glenohumeral joint (scapulohumeral) joint, but only noted infrequent episodes which occur with the left shoulder.  She described guarding of movement at shoulder level for both shoulders.  Given that the May 2013 examiner only attributed history of dislocation with infrequent episodes to the left shoulder, her comments are not sufficient to support a rating higher than already assigned in light of the additional evidence.  

In sum, the Board finds the evidence of dislocation to be conflicting.  The May 2009 and May 2012 VA examiners' reports of guarding right shoulder motion are not sufficient to warrant a rating in absence of a clear finding of right scapulohumeral joint dislocation.  Accordingly, a higher rating under DC 5202 or 5203 for the right shoulder dislocation is not warranted.  38 C.F.R. §§ 4.14, 4.71, DCs 5202, 5203.  

In summary, a rating in excess of 30 percent for a right shoulder injury is denied.  38 C.F.R. § 4.71a, DC 5201.  The Board has considered all other potentially applicable provisions of 38 C.F.R. Parts 3 and 4, whether or not they have been raised by the Veteran, as required by Schafrath, supra. The Board has found no section that provides a basis upon which to assign a higher or additional disability rating for the Veteran's right shoulder disability.  (As noted above, the criteria for rating muscle injury and dislocation also turn on the effect on arm motion, which means that separate ratings would violate the rule against pyramiding.  38 C.F.R. § 4.14.)

(ii)  Left shoulder (minor extremity)

The Veteran is currently in receipt of a 30 percent rating under DC 5201 for his left shoulder based upon loss of motion.  38 C.F.R. § 4.71a, DC 5201.  He contends that a higher and/or additional rating is warranted for his left shoulder disability.  

At the outset, the Board notes that multiple examinations of the Veteran's left shoulder include diagnoses of recurrent dislocation status post surgery with arthritis and complete tear of the left supraspinatus tendon.  Left shoulder diagnoses and clinical examinations do not show ankylosis of scapulohumeral articulation or fixed position of the right shoulder (38 C.F.R. § 4.71a, DC 5200).  They also do not reflect objective evidence of fibrous union of the humerus, nonunion of the humerus (false flail joint), or loss of head of the humerus (flail shoulder) (38 C.F.R. § 4.71a, Diagnostic Code 5202).  Hence, ratings under DC 5200 and portions of DC 5202 are not applicable.  38 C.F.R. § 4.71a, DCs 5200, 5202.  

Again, the Veteran is currently in receipt of a 30 percent rating pursuant to DC 5201 for loss of motion in the minor (left) arm to 25 degrees from the side.  See 38 C.F.R. § 4.71a, 5201; 38 C.F.R. § 4.71a, Plate 1.  This is the maximum schedular rating under DC 5201 for the minor arm and further consideration of this DC would serve no useful purpose.  Id.

As an alternative, the Board has considered the left shoulder under the muscle injury criteria.  38 C.F.R. § 4.73, DCs 5301-5304.  Similar to DC 5201, ratings for the non-dominant arm are limited to 30 percent.  Compare id. and 38 C.F.R. § 4.71a, 5201.  An alternative rating under the muscle injury DCs would not be helpful to the Veteran.  See id.  

Clinical assessments following the December 2009 left shoulder surgery suggest a left shoulder muscle injury.  A VA examiner noted mild deltoid muscle atrophy in December 1999, but no further findings of atrophy or muscle impairment were made until after his most recent left shoulder surgery in December 2009.  Following the December 2009 surgery, clinicians began reporting left shoulder muscle atrophy.  (May 2010 VA treatment records, June and August 2010 private medical records, May 2012 VA examination report).  In May 2010, extreme atrophy of the supraspinatus and infraspinatus muscles was observed.  Evaluations from June and August 2010 reflect notable deficiencies in supraspinatus and marked atrophy of left shoulder girdle, respectively.  Meanwhile, the May 2012 VA examiner noted general atrophy from disuse as a functional impairment for the left shoulder and specifically noted atrophy in the left scapula.  Most recently, a March 2013 private consultation showed continued left shoulder atrophy with 4/5 strength.   

DC 5304 is assigned for injuries of the intrinsic muscles of the shoulder girdle, specifically supraspinatus; infraspinatus, and teres minor; subscapularis; and coracobrachialis.  38 C.F.R. § 4.73, DC 5304.  For the non-dominant arm, a 10 percent rating is warranted for a moderate injury and a 20 percent rating is warranted for a moderately severe or severe injury.  Id. Again, the Veteran is right-handed, and his left upper extremity is non-dominant.  Atrophy was initially noted on the December 1999 VA examination report.  The examiner described mild deltoid muscle atrophy.  Given the clinical description of mild, the Board does not the find the report to warrant a higher rating for moderate muscle injury.  Id. 

The assessments given in May, June, and August 2010 to show a moderate muscle injury to the left supraspinatus and infraspinatus muscles.  These findings of disability appeared soon after the December 2009 left shoulder surgery and have continued.  (See generally January, February, March, and August 2010 physical therapy notes; May 2010 VA treatment records; March 2013 private medical records).  A moderately severe injury is not shown as the Veteran has maintained a fair amount of strength (4-/4 and 4/ 5) in his left shoulder.  Id.  Nevertheless, as noted above, the criteria for rating muscle injury also turn on the effect on arm motion, which means that separate ratings would violate the rule against pyramiding.  38 C.F.R. § 4.14.  There is no indication that muscle injury would warrant higher than the 30 percent already assigned.

Similar to the right shoulder, the record includes symptoms contemplated under DCs 5202 or 5203 for recurrent dislocation at the scapulohumeral joint and malunion/ nonunion of the clavicle or scapula, respectively, that could potentially warrant a higher rating for the left shoulder.  See Yonek, 722 F.3d 1355; Burton, 25 Vet. App. at 6; Cullen, 24 Vet. App. at 84; 38 C.F.R. §§ 4.14, 4.71, DCs 5202, 5203 (2013).  The Veteran has been assessed as having recurrent dislocation of his left shoulder on occasion.  (October 1998 and May 2012 VA examinations).  However, he has also denied left shoulder dislocation (VA treatment records from October 2008, Private medical records from June 2009).  The May 2012 VA examiner described infrequent episodes of recurrent dislocation (subluxation) of the glenohumeral (scapulohumeral) joint.  She also observed guarding at shoulder level.  Viewing her reports most favorably to the Veteran, the Board will consider them indicative of recurrent dislocation at the scapulohumeral joint with guarding to meet the DC 5202 criteria.  38 C.F.R. § 4.71a, DC 5202.  This would warrant a 20 percent rating under DC 5202 for recurrent dislocation of at scapulohumeral joint with infrequent episodes, 38 C.F.R. § 4.71a, DC 5202; however, as previously noted, these criteria in part turn on the effect on arm movements, which is the basis for the already assigned 30 percent.  Consequently, an increased rating may not be assigned.  38 C.F.R. § 4.14.  

The Board has considered all other potentially applicable provisions of 38 C.F.R. Parts 3 and 4, whether or not they have been raised by the Veteran, as required by Schafrath, supra. The Board has found no section that provides a basis upon which to assign a higher or additional disability rating for the Veteran's left shoulder disability.  

(iii) Extraschedular rating considerations

The Veteran asserts that his shoulder disabilities warrant an extraschedular rating.  38 C.F.R. § 3.321(b).  The Veteran has a complex disability picture for both shoulder disabilities.  It is suggestive of marked interference with employment and necessitated hospitalization from multiple operations.   Accordingly, the increased rating claims were referred to the Director of Compensation Services.  In January 2013, the Director issued a denial accompanied by a November 2012 memorandum.  The Board does not have authority to review the January 2013 decision, and the claims for extraschedular ratings remain denied per the Director's decision.  

To explain further, the United States Court of Appeals for the Federal Circuit (Federal Circuit) addressed such a matter when it reviewed and affirmed the Court's Thun decision.  Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009).  Significantly, the Federal Circuit's Thun decision was also subsequent to the Court's decision in Anderson v. Shinseki, 22 Vet. App. 423 (2009), where the United States Court of Appeals for Veterans Claims concluded that there was no restriction on the Board's ability to review the denial of an extraschedular rating.  The Federal Circuit expressly stated that "only the Under Secretary [for Benefits] and the [C & P] Director have the authority to award an extra-schedular rating."  Thun, 572 F.3d at 1370.  The Federal Circuit found that, at a minimum, the ROs and the Board were intended to play some role in evaluating a claim for an extra-schedular rating.  Id.  However, "[p]ermitting the regional offices and the Board to issue a 'field station submission' in which they recommended extra-schedular consideration still reserves to the Under Secretary and the Director the ultimate authority to 'approve' those recommendations based on whether the Veteran should receive an extra-schedular rating 'to accord justice.'"  Id. (emphasis added).

The Federal Circuit, in fact, stated that the Court held that "while the Under Secretary for Benefits and the Director of the Compensation and Pension Service are the only individuals authorized to assign an extra-schedular rating, [ROs] and the Board of Veterans' Appeals may conduct initial screening of disability claims and may refer . . . only those claims that meet two of the three regulatory criteria for extra-schedular consideration."  Thun, 572 F.3d at 1367 (citing Thun, 22 Vet. App. at 111).  Lastly, the Federal Circuit stated that its interpretation did not restrict the opportunity for judicial review."  If the regional office or the Board makes factual findings adverse to the claimant with regard to the extra-schedular claim, those findings will be reviewable by the Veterans Court . . . just as would be the case if those findings were made by the Under Secretary or the Director."  Thun, 572 F.3d at 1371.

In sum, with respect to the assignment of an extra-schedular rating, only the Under Secretary for Benefits and the C & P Director have been delegated the authority to award the extra-schedular rating.  Thun, 572 F.3d at 1370.  In the appellant's case, because the Director has made a decision, the Board has no further authority to review that decision.  


ORDER

New and material evidence has been received to reopen a claim of service connection for a stomach disorder; to this limited extent, the appeal of this issue is granted. 

Service connection for a low back disability is denied.

A rating in excess of 30 percent for a right shoulder disability is denied. 

A rating in excess of 30 percent for a left shoulder disability is denied.


REMAND

The Veteran's assertion that he has had a continuity of stomach disorders beginning in service that are also related to his service connected psychiatric disorder is presumed credible.  Service treatment records document several instances where he reported stomach pain.  Notably, in February 1981 he reported stomach pain associated with anxiety.  A VA examination is needed to adjudicate this claim as detailed below.  38 U.S.C.A. §5103A(d); McLendon v. Nicholson, 20 Vet. App. 79 (2006).

(Given that any potential award of service connection for a stomach disability and rating therefor may affect entitlement under 38 U.S.C.A. § 1114(s), the question of an earlier effective date for the award of SMC under 38 U.S.C.A. § 1114(s) is deferred.)

Accordingly, the case is REMANDED for the following action:

1.  Obtain all pertinent (related to stomach disability) VA treatment records after June 2012 and associate them with the claims folder.  Efforts to obtain these records must continue until it is determined that the further efforts would be futile.  In the event requested records cannot be located, documentation of the search efforts must be reflected in the claims folder with notice to the Veteran and his representative.  

Request that the Veteran identify any pertinent private treatment records.  Furnish appropriate authorization for the release of private medical records.  

If the Veteran fails to furnish any necessary releases for private treatment records, he should be advised to obtain the records and submit them to VA. 

2.  After associating any newly generated medical records with the claims folder, schedule the Veteran for a VA stomach examination.  The claims file, to include a copy of this remand, and any pertinent records in Virtual VA/VBMS efolders, must be made available for review of the Veteran's pertinent medical history.  A clinical examination with any indicated testing must be performed. 

The examiner must identify all current stomach diagnoses since July 1997.  Given the lengthy claims period from July 1997, the examiner should consider a "current" stomach disorder to include any disorder that was diagnosed during any portion of the claim period and later resolved. 

For each diagnosis, he/she must state whether it is at least as likely as not (50 percent probability or greater) related to the Veteran's period of active service from November 1979 to June 1981.  He/she is instructed to review service treatment records from August 1980 and January through June 1981, which document reports of stomach symptoms.   

The examiner must also indicate whether it is at least as likely as not (50 percent probability or greater) that any current stomach disorder has been caused by or made worse by service-connected psychiatric disability.  

The examiner must provide a complete rationale for each opinion-causation and aggravation.  The examiner is advised that the Veteran is competent to report his symptoms and history, and such history in the record must be specifically acknowledged and considered in formulating any opinions.  If the examiner rejects the Veteran's contentions, the examiner should provide a reason for doing so and cannot solely rely on an absence of contemporaneous medical treatment.  

3.  The AOJ shall review the examination report to ensure that it contains the information and opinions requested in this remand and are otherwise complete.

4.  The AOJ should re-adjudicate the stomach disability claim and consider whether an earlier effective date for award of SMC is warranted.  If a benefit sought remains denied, the AOJ shall issue a supplemental statement of the case. After the Veteran is given an opportunity to respond, the case shall be returned to the Board.

The appellant has the right to submit additional evidence and argument on the matters the Board has remanded.  Kutscherousky v. West, 12 Vet. App. 369 (1999).

This case must be afforded expeditious treatment.  The law requires that all claims that are remanded by the Board 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. 2013).



________________________________
MARK F. HALSEY
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs