Citation Nr: 1418728 Decision Date: 04/28/14 Archive Date: 05/06/14 DOCKET NO. 10-28 560 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUE Evaluation of residuals of a resection of the left clavicle and acromioplasty with degenerative joint disease, currently rated as 10 percent disabling. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Appellant ATTORNEY FOR THE BOARD Hallie E. Brokowsky, Counsel INTRODUCTION The Veteran served on active duty from June 1984 to October 1990. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio. The Virtual VA claims file has been reviewed. There are no documents pertaining to the Veteran in the Veterans Benefits Management System. This case was previously remanded by the Board in August 2011, wherein it was remanded for a hearing before a VLJ of the Board; the Veteran was afforded a hearing before the undersigned in February 2012. The Veteran's claim was returned to the Board. However, the Board found that additional development, including an additional VA examination, was necessary prior to adjudication of the issue on appeal, as listed above, and remanded the Veteran's claim in April 2012. The requested VA examination was provided in May 2012; an additional supplemental statement of the case (SSOC) was issued in November 2012. See Stegall v. West, 11 Vet. App. 268 (1998) (holding that a remand by the Board confers on a veteran, as a matter of law, the right to compliance with the remand orders). The Veteran's claim has been returned to the Board FINDING OF FACT Residuals of a resection of the left clavicle and acromioplasty with degenerative joint disease most closely approximates nonunion without loose motion, with pain. He retains functional use of the arm above shoulder level. CONCLUSION OF LAW The criteria for a disability rating in excess of 10 percent for residuals of a resection of the left clavicle and acromioplasty with degenerative joint disease, are not met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.2, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5203 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION Duties 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. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013). The United States Court of Appeals for Veterans Claims (Court) issued a decision in the appeal of Dingess v. Nicholson, 19 Vet. App. 473 (2006), which held that the notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim, including the degree of disability and the effective date of an award. Those five elements include: (1) veteran status; (2) existence of a disability; (3) a connection between a veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. In this case, the agency of original jurisdiction (AOJ) issued a notice letter, dated in January 2009, to the Veteran. This letter explained the evidence necessary to substantiate the Veteran's claim an for increased rating, as well the legal criteria for entitlement to such benefits. The letter also informed him of his and VA's respective duties for obtaining evidence. The AOJ decision that is the basis of this appeal was decided after the issuance of an initial, appropriate VCAA notice. As such, there was no defect with respect to timing of the VCAA notice. See Pelegrini v. Principi, 18 Vet. App. 112 (2004). VA also has a duty to assist a veteran with the development of facts pertinent to the appeal. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c). This duty includes the obtaining of "relevant" records in the custody of a Federal department or agency under 38 C.F.R. § 3.159(c)(2), as well as records not in Federal custody (e.g., private medical records) under 38 C.F.R. § 3.159(c)(1). VA will also provide a medical examination if such examination is determined to be "necessary" to decide the claim. 38 C.F.R. § 3.159(c)(4). The claims file contains the Veteran's available service treatment records, reports of post-service treatment, and the Veteran's own statements in support of his claim. The Veteran was afforded VA examinations responsive to the claim for an increased rating. The examination reports contain all the findings needed to rate the Veteran's service-connected residuals of a resection of the left clavicle and acromioplasty with degenerative joint disease, including history and clinical evaluation. The Board has reviewed the examination reports, and finds that they are adequate for the purpose of deciding the issue on appeal. The Veteran's appeal for a higher evaluation is distinguished from the facts in Proscelle v. Derwinski, 2 Vet. App. 629, 633 (1992), where no VA examination was provided during the rating claim, and a veteran specifically stated that his disability "has increased in severity [such] that I rate a higher disability," constituting at least both some assertion by the veteran and some evidence of worsening of disability since the last VA examination. Proscelle, 2 Vet. App. at 632. The Veteran, at the February 2012 hearing before the undersigned, asserted that his left shoulder disability worsened, and he was afforded another VA examination in May 2012. Since that VA examination, however, he merely asserts entitlement to a higher disability evaluation for the rating period on appeal. The Veteran has not submitted evidence of worsening, and the evidence of record, including the medical evidence reflecting on the severity of the disability on appeal, does not suggest that this disability worsened since the most recent VA examination, or since the most recent VA treatment records. As there is no evidence of worsening since the last VA examination, a remand for a new VA examination is not warranted, and is not required by the VCAA. See Palczewski v. Nicholson, 21 Vet. App. 174, 182 (2007) (mere passage of time does not require VA to provide a new medical examination); VAOPGCPREC 11-95 (interpreting that a new examination is appropriate when there is an assertion of an increase in severity since the last examination). The Veteran has been afforded adequate examinations on the issue decided herein. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). Additionally, the Veteran has not alleged that any examination is inadequate to decide the claim being adjudicated herein, so the examinations are presumed to have been adequate. See Sickels v. Shinseki, 643 F.3d 1362 (Fed. Cir. 2011) (holding that the Board is entitled to presume the competence of a VA examiner and the adequacy of the opinion). Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion has been met. 38 C.F.R. § 3.159(c)(4). The Board also observes that the undersigned VLJ, at the Veteran's February 2012 hearing, clarified the issues and explained the concept of an increased rating claim and the evaluation process. Potential evidentiary defects were identified and the file was left open to provide an opportunity to submit additional evidence. The actions of the Judge supplement VCAA and complies with 38 C.F.R. § 3.103. The Board has reviewed the Veteran's statements and medical evidence of record and concludes that there is no outstanding evidence with respect to the Veteran's claim. For these reasons, the Board finds that the VCAA duties to notify and assist have been met. Disability Evaluations Disability evaluations are determined by application of the criteria set forth in the VA's Schedule for Rating Disabilities, which is based on average impairment in earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. An evaluation of the level of disability present must also include consideration of the functional impairment of the Veteran's ability to engage in ordinary activities, including employment. 38 C.F.R. § 4.10. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3. Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary concern. Francisco v. Brown, 7 Vet. App. 55 (1994). Separate evaluations may be assigned for separate periods of time based on the facts found. In other words, the evaluations may be staged. Staged ratings are appropriate for any rating claim when the factual findings show distinct time periods during the appeal period where the service-connected disability exhibits symptoms that would warrant different ratings. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Here, the disability has not materially changed and uniform evaluations are warranted. In addition, when assessing the severity of a musculoskeletal disability that is rated on the basis of limitation of motion, VA must also consider the extent that the veteran may have additional functional impairment above and beyond the limitation of motion objectively demonstrated, such as during times when symptoms are most prevalent ("flare-ups") due to the extent of any pain (and painful motion), weakness, premature or excess fatigability, and incoordination. See DeLuca v. Brown, 8 Vet. App. 202, 204-7 (1995); see also 38 C.F.R. §§ 4.40, 4.45, 4.59. In this case, the Veteran was granted service connection for residuals of a resection of the left clavicle and acromioplasty with degenerative joint disease in an October 1990 rating decision; at that time, the Veteran's left shoulder was rated as 10 percent disabling, effective June 11, 1990, pursuant to Diagnostic Code 5203. The Veteran filed a claim for an increased disability evaluation December 9, 2008, and in a June 2009 rating decision, the RO continued the Veteran's 10 percent disability evaluation, but found that the Veteran's residuals of a resection of the left clavicle and acromioplasty with degenerative joint disease was more appropriately evaluated under Diagnostic Code 5003. The Board observes that the assignment of a particular diagnostic code is "completely dependent on the facts of a particular case." Butts v. Brown, 5 Vet. App. 532, 538 (1993). One diagnostic code may be more appropriate than another based on such factors as an individual's relevant medical history, the diagnosis and demonstrated symptomatology. Any change in a diagnostic code by a VA adjudicator must be specifically explained. See Pernorio v. Derwinski, 2 Vet. App. 625, 629 (1992). However, the Board observes that the Veteran's 10 percent disability evaluation for his residuals of a resection of the left clavicle and acromioplasty with degenerative joint disease became protected during the course of the appeal. His 10 percent rating was in effect for 20 years effective June 11, 2010. See 38 C.F.R. § 3.951(b) ("A disability which has been continuously rated at or above any evaluation of disability for 20 or more years for compensation purposes under laws administered by the Department of Veterans Affairs will not be reduced to less than such evaluation except upon a showing that such rating was based on fraud."). In Murray v. Shinseki, 24 Vet. App. 420 (2011), the Court found that, if a veteran has a protected rating under a specific diagnostic code, VA cannot reclassify the disability by assigning the same evaluation under a different diagnostic code if the effect is to reduce the protected rating, even while maintaining the same evaluation based on different manifestations of the disability. Therefore, the Board will consider the Veteran's residuals of a resection of the left clavicle and acromioplasty with degenerative joint disease is rated as 10 percent disabling pursuant to the provisions of 38 C.F.R. § 4.71a, DC 5203. Normal ranges of motion of the shoulder are flexion (forward elevation) from 0 degrees to 180 degrees, abduction from 0 degrees to 180 degrees, external rotation from 0 degrees to 90 degrees, and internal rotation from 0 degrees to 90 degrees. 38 C.F.R. § 4.71, Plate I (2013). Diagnostic Code 5203 provides ratings for impairment of the clavicle or scapula. Malunion of the clavicle or scapula is rated as 10 percent for the major shoulder and 10 percent for the minor shoulder. Nonunion of the clavicle or scapula without loose movement is rated as 10 percent for the major shoulder and 10 percent for the minor shoulder; nonunion of the clavicle or scapula with loose movement is rated as 20 percent for the major shoulder and 20 percent for the minor shoulder. Dislocation of the clavicle or scapula with loose movement is rated as 20 percent for the major shoulder and 20 percent for the minor shoulder. Diagnostic Code 5203 provides an alternative rating based on impairment of function of a contiguous joint. 38 C.F.R. § 4.71a. In this case, documents of record establish that the Veteran is left handed; the Veteran reported that his dominant hand is his left hand at the March 2009 and May 2012 VA examinations. See 38 C.F.R. § 4.69 (2013). After a review of the lay and medical evidence, the Board finds that the Veteran's disability picture more nearly approximates his current 10 percent disability rating. The evidence shows that, throughout the rating period on appeal, the Veteran does not have nonunion of the clavicle with loose movement or dislocation of the clavicle. A February 2009 VA orthopedic consultation indicated that x-rays showed a prior distal clavicle resection. According to the March 2009 VA examination report, the Veteran had range of motion to at least 160 degrees flexion, 160 degrees abduction, extension to 45 degrees, external rotation to 70 degrees, and internal rotation to 90 degrees, without evidence of weakness, instability, fatigue, lack of endurance, or incoordination. Likewise, at the May 2012 VA examination, the Veteran had range of motion to 145 degrees flexion and abduction, without weakness, fatigue, deformity, or incoordination. The Veteran reported pain and there was tenderness of acromioclavicular joint, but there was no guarding or decreased muscle strength. Testing for any rotator cuff conditions was negative, and there was no instability of the joint; x-rays showed a 2.4cm gap at the acromioclavicular joint, without fracture or dislocation. Furthermore, the available VA treatment records for the period on appeal do not show any treatment for the left shoulder, other than complaints of pain. Here, the lay and medical evidence are very similar. The appellant is post-operative status and has a gap of the distal clavicle. However, there is no lay or medical evidence of loose movement. We find credible his reports of pain and limitation of motion. However, even the credible lay evidence establishes that he retains functional use above shoulder level. DeLuca. Furthermore, DC 5203 establishes that a separate evaluation may not be assigned for impairment of function of the contiguous joint. In sum, if alternatively rated on the basis of limited function or limited motion, he would remain 10 percent disabled. The fact that he has pain or increasing pain does not warrant a higher evaluation unless that pain actually limits motion or functional use. The evidence also shows the Veteran did not have ankylosis of the scapulohumeral articulation or nonunion, fibrous union, or loss of the head of the humerus. Likewise, as previously discussed, there is no limitation of motion of the left arm to shoulder level. As such, the Board is precluded from assigning a disability rating in excess of 10 percent for residuals of a resection of the left clavicle and acromioplasty with degenerative joint disease, under Diagnostic Codes 5200, 5201, or 5202. Moreover, although the Veteran has a surgical scar, the Board notes that the May 2012 VA examiner found that the scar was not painful or unstable, and was not greater 39 square centimeters. As such, the Veteran is not entitled to a separate, compensable disability evaluation for a scar. See 38 C.F.R. § 4.118, Diagnostic Codes 7804-7805. The Board has also considered whether he has additional functional loss - beyond that objectively shown - due to his pain, or because of weakness, premature or excess fatigability, incoordination, etc. See DeLuca v. Brown, 8 Vet. App. 202 (1995), citing 38 C.F.R. §§ 4.40, 4.45, and 4.59. However, the fact that the Veteran experienced pain, even if experienced throughout the range of motion, does not by itself warrant a higher rating under the diagnostic codes providing ratings for limitation of motion. The March 2009 and May 2012 VA examiners noted that joint function of the left shoulder was not additionally limited, after repetitive use, by fatigue, weakness, lack of endurance, or incoordination, despite complaints of pain. See Mitchell v. Shinseki, 25 Vet. App. 32 (2011). Therefore, the lay and medical evidence demonstrates that the Veteran's symptoms do not result in additional functional limitation to a degree that would support a rating in excess of the current, 10 percent disability rating. Extraschedular Considerations As to consideration of referral for an extraschedular rating, such consideration requires a three-step inquiry. See Thun v. Peake, 22 Vet. App. 111 (2008), aff'd sub nom. Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). The first question is whether the schedular rating adequately contemplates the Veteran's disability picture. Thun, 22 Vet. App. at 115. If the criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule, the assigned schedular evaluation is, therefore, adequate, and no referral is required. If the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, then the second inquiry is whether the claimant's exceptional disability picture exhibits other related factors such as those provided by the regulation as governing norms. If the Veteran's disability picture meets the second inquiry, then the third step is to refer the case to the Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether an extraschedular rating is warranted. The discussion above reflects that the symptoms of the Veteran's residuals of a resection of the left clavicle and acromioplasty with degenerative joint disease are fully contemplated by the applicable rating criteria. As shown above, the criteria include symptoms, which were addressed in the VA examination reports and which provided the basis for the disability ratings that were assigned for the period on appeal. In any event, the evidence does not reflect, for the period on appeal, that there has been marked interference with employment, frequent hospitalization, or that the Veteran's symptoms have otherwise rendered impractical the application of the regular schedular standards. The Veteran alleged that that he should be entitled to an increased evaluation for his residuals of a resection of the left clavicle and acromioplasty with degenerative joint disease, but he did not indicate that he had to miss any time from work due to his left shoulder. Therefore, referral for consideration of an extraschedular rating for the Veteran's residuals of a resection of the left clavicle and acromioplasty with degenerative joint disease is not warranted. 38 C.F.R. § 3.321(b)(1). In the absence of exceptional factors associated with residuals of a resection of the left clavicle and acromioplasty with degenerative joint disease, the Board finds that the criteria for submission for assignment of an extraschedular rating for the rating period on appeal pursuant to 38 C.F.R. § 3.321(b)(1) are not met. See Bagwell v. Brown, 9 Vet. App. 337 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). ORDER An evaluation in excess of 10 percent for residuals of a resection of the left clavicle and acromioplasty with degenerative joint disease is denied. ____________________________________________ H. N. SCHWARTZ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs