Citation Nr: 1421310 Decision Date: 05/12/14 Archive Date: 05/21/14 DOCKET NO. 10-22 402 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUES 1. Prior to March 8, 2012, entitlement to a rating in excess of 10 percent for limitation of motion of the right arm/degenerative joint disease (DJD) of the right shoulder (right shoulder disability). 2. Beginning March 8, 2012, entitlement to a rating in excess of 30 percent for right shoulder disability. REPRESENTATION Veteran represented by: Oklahoma Department of Veterans Affairs WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD L. Jeng, Counsel INTRODUCTION The Veteran served on active duty from November 1959 to March 1967. This case comes before the Board of Veterans' Appeals (the Board) on appeal from a November 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma. In July 2011, the Veteran presented testimony in a videoconference hearing before the undersigned. A copy of the transcript has been associated with the claims folder. In February 2012, the Board remanded this matter for further development which has been completed, and the case has been returned to the Board for appellate consideration. During the pendency of the appeal, in a March 2012 rating decision, the Appeals Management Center (AMC) increased the disability evaluation for the right shoulder disability to 30 percent disabling effective March 8, 2012. Since the AMC did not assign the maximum disability rating possible, the appeal for a higher disability evaluation remains before the Board. AB v. Brown, 6 Vet. App. 35 (1993) (noting that where a claimant has filed a notice of disagreement as to an RO decision assigning a particular rating, a subsequent RO decision assigning a higher rating, but less than the maximum available benefit does not abrogate the pending appeal). The Board has reviewed the documents in both the paper claims file and the electronic claims file in rendering this decision. FINDING OF FACT For the entire period on appeal, the Veteran's right shoulder disability has been manifested by dislocation and guarding, as well as pain and limitation of motion greater than 25 degrees from the side. CONCLUSIONS OF LAW 1. Prior to March 8, 2012, the criteria for a rating of 30 percent, but not higher, for the Veteran's right shoulder disability have been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.71, 4.71a, Diagnostic Codes 5003, 5299-5201, 5202 (2013). 2. Beginning March 8, 2012, the criteria for a rating in excess of 30 percent for the Veteran's right shoulder disability have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.71, 4.71a, Diagnostic Codes 5003, 5299-5201, 5202 (2013). REASONS AND BASES FOR FINDING AND CONCLUSIONS Stegall Considerations As noted above, the Board remanded this matter in February 2012. The Board specifically instructed the RO to obtain outstanding VA treatment records, schedule the Veteran for an orthopedic examination, and to readjudicate the claim. Subsequently, outstanding VA treatment records were associated with the claims folder, the Veteran was afforded an examination in March 2012, and his claim was readjudicated in a March 2012 supplemental statement of the case. Thus, there is compliance with the Board's remand instructions. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (noting that where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance). Duties to Notify and Assist In correspondence dated in October 2008, prior to the November 2008 rating decision, the RO satisfied its duty to notify the Veteran under 38 U.S.C.A. § 5103(a) (West 2002) and 38 C.F.R. § 3.159(b) (2013), known as the Veterans Claims Assistance Act of 2000 (VCAA). Specifically, the RO notified the Veteran of: information and evidence necessary to substantiate the claim; information and evidence that VA would seek to provide; and information and evidence that the Veteran was expected to provide. The letter informed the Veteran that in order to establish a higher rating for his right shoulder disability, the evidence would need to show that his disability had increased in severity. Additionally, the letter also notified the Veteran of the process by which disability ratings and effective dates are established. Dingess v. Nicholson, 19 Vet. App. 473 (2006). VA has done everything reasonably possible to assist the Veteran with respect to his claim for benefits in accordance with 38 U.S.C.A. § 5103A (West 2002) and 38 C.F.R. § 3.159(c) (2013). All identified and available treatment records have been secured. The Veteran's post-service medical records are in the claims folder. Furthermore, the Veteran was provided VA examinations throughout the appeal, most recently in March 2012. Review of the examination reports reflect that the examiners reviewed the Veteran's past medical history, recorded his current complaints, conducted appropriate evaluations of the Veteran, and rendered appropriate diagnoses and opinions consistent with the remainder of the evidence of record and with sufficient information to evaluate the disability on appeal. Additionally, the Veteran has not stated nor is there evidence indicating that there has been a material change in the severity of the disability since he was last examined in March 2012. See 38 C.F.R. § 3.327(a) (2013). The duty to assist does not require that a claim be remanded solely because of the passage of time since an otherwise adequate VA examination was conducted. See VAOPGCPREC 11-95 (April 7, 1995). The Board concludes that the examination reports of record are adequate for purposes of rendering a decision in the instant appeal. See 38 CF.R. § 4.2 (2013); see also Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Veteran and his representative have not contended otherwise. 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) (2013); Barr, 21 Vet. App. at 312. Also, as noted above, the Veteran presented testimony in a videoconference hearing before the undersigned Acting Veterans Law Judge. In this regard, in Bryant v. Shinseki, 23 Vet. App. 488 (2010), the United States Court of Appeals for Veterans Claims (Court) held that 38 C.F.R. § 3.103(c)(2) requires that the RO official or Veterans Law Judge who conducts a hearing fulfill two duties to comply with this regulation. These duties consist of: (1) fully explaining the issues and (2) suggesting the submission of evidence that may have been overlooked. This was done during the July 2011 hearing before the Board. Additionally, VA obtained the relevant evidence and information needed to adjudicate this claim for a higher rating for the right shoulder disability. Neither the Veteran nor his representative has asserted that VA has failed to comply with 38 C.F.R. § 3.103(c)(2) , nor have they identified any prejudice in the conducting of the Board hearing. Thus, the duties to notify and assist have been met. Analysis The Veteran essentially contends that his service-connected right shoulder disability is more disabling than contemplated by the prior 10 percent disability evaluation assigned prior to March 8, 2012, and 30 percent disability evaluation thereafter. Disability evaluations are determined by the application of a schedule of ratings, which is based on the average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. Each disability must be viewed in relation to its history, with an emphasis on the limitation of activity imposed by the disabling condition. Medical reports must be interpreted in light of the whole recorded history, and each disability must be considered from the point of view of the veteran working or seeking work. Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. See 38 U.S.C.A. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.7. While the Veteran's entire history is reviewed when assigning a disability evaluation, 38 C.F.R. § 4.1, where service connection has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. Francisco v. Brown, 7 Vet. App. 55 (1994). The Court has held that in determining the present level of a disability for any increased evaluation claim, the Board must consider the application of staged ratings. See Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). In other words, where the evidence contains factual findings that demonstrate distinct time periods in which the service-connected disability exhibited diverse symptoms meeting the criteria for different ratings during the course of the appeal, the assignment of staged ratings would be necessary. The assignment of a particular diagnostic code is "completely dependent on the facts of a particular case." See Butts v. Brown, 5 Vet. App. 532, 538 (1993). One diagnostic code may be more appropriate than another based on such factors as an individual's relevant medical history, the 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). The Veteran is currently evaluated under Diagnostic Codes 5299-5201 (limitation of motion of the shoulder). See 38 C.F.R. § 4.27 (unlisted disabilities requiring rating by analogy will be coded first the numbers of the most closely related body part and "99"). However, as the medical evidence of record shows that the Veteran's right shoulder disability is manifested primarily by pain, dislocation, and guarding, the Board finds that rating his right shoulder disability based on impairment of the humerus under Diagnostic Code 5202 to be more appropriate in this case. The Board observes that the Veteran's right upper extremity is his major extremity. See 38 C.F.R. § 4.69 (a distinction is made between major (dominant) and minor musculoskeletal groups for rating purposes, and only one extremity is to be considered major). Under Diagnostic Code 5202, a 20 percent rating is warranted for malunion of the humerus of either upper extremity with moderate deformity, or with marked deformity of the minor upper extremity, or for infrequent episodes of recurrent dislocation of the scapulohumeral joint of either upper extremity with guarding of movement only at the shoulder level, or with frequent episodes of recurrent dislocation of the minor upper extremity with guarding of all arm movements. A 30 percent rating requires malunion of the major humerus with marked deformity or frequent episodes of recurrent dislocation with guarding of all arm movements. A 40 percent rating requires fibrous union of the minor humerus. A 50 percent rating requires fibrous union of the major humerus, or nonunion (a false, flail joint) of the minor humerus. A 60 percent rating requires nonunion (a false, flail joint) of the major humerus. A 70 percent rating requires loss of the head of the minor humerus (flail shoulder). An 80 percent rating requires loss of the head of the major humerus (flail shoulder). 38 C.F.R. § 4.71a. In this regard, a October 2009 VA examination report noted that there was guarding of movement of the right shoulder without edema, effusion, weakness, tenderness, redness, heat, or subluxation. The examiner noted recurrent dislocation of the right shoulder. A September 2010 private examination report showed that the AC (acromioclavicular) joint and clavicle were separated, weakness in the right shoulder, and dislocation of the right shoulder. A September 2010 VA examination report noted that the Veteran denied episodes of dislocation or subluxation. On evaluation, the Veteran's right shoulder pain was evidenced by guarding. Additionally, a March 2012 VA examination report noted that the Veteran had guarding of the right shoulder. On specific tests for rotator cuff conditions, the Veteran tested positive on Hawkins' impingement test (possibly signifying rotator cuff tendinopathy or tear), empty-can test (possibly indicating rotator cuff pathology), external rotation/infraspinatus strength test (possibly indicating infraspinatus tendinopathy or tear). It was noted that there was a history of mechanical symptoms, a history of recurrent dislocation of the glenohumeral (scapulohumeral) joint characterized by infrequent episodes of guarding of movement only at shoulder level. Additionally, crank apprehension and relocation test was positive possibly indicating shoulder instability. The examiner noted that the Veteran did not have an AC joint condition or any other impairment of the clavicle or scapula. Based on the relevant evidence, the Board notes that there is a discrepancy as to whether the Veteran's clavicle joint is involved with his disability. The private examiner specifically identified that joint as being involved, while the most recent VA examiner found that the joint was not involved. See 38 C.F.R. § 4.71a, Diagnostic Code 5203. In any case, to afford the Veteran all benefit of the doubt (the highest evaluation under Diagnostic Code 5203 is 20 percent), the Board finds that a 30 percent evaluation under Diagnostic Code 5202 is warranted for the entire period on appeal. Although the September 2010 VA examiner noted that the Veteran denied episodes of dislocation, on all other evaluations prior to and after that evaluation, dislocation of the shoulder was noted. Furthermore, guarding has been noted throughout the record. Accordingly, as recurrent dislocation of the right shoulder and guarding throughout the appeal has been demonstrated, an evaluation of 30 percent, but not higher, is warranted. There is no indication of fibrous union of the right humerus to warrant an evaluation in excess of the 30 percent disability evaluation. The Board has also considered the Veteran's disability under other applicable codes. Under Diagnostic Code 5201, limitation of motion to shoulder level in the major extremity warrants a 20 percent evaluation. Limitation of motion to midway between the side and shoulder level warrants a 30 percent evaluation in the major extremity. Limitation of motion to 25 degrees from the side warrants a 40 percent evaluation for the major extremity. 38 C.F.R. § 4.71a, Diagnostic Code 5201. Normal range of motion for the shoulder is defined as follows: forward elevation (flexion) to 180 degrees; abduction to 180 degrees; internal rotation to 90 degrees; and external rotation to 90 degrees. 38 C.F.R. § 4.71, Plate I. The evaluation of a service-connected disability involving a joint rated on limitation of motion requires adequate consideration of functional loss due to pain under 38 C.F.R. § 4.40 and functional loss due to weakness, fatigability, incoordination or pain on movement of a joint under 38 C.F.R. § 4.45. See DeLuca v. Brown, 8 Vet. App. 202 (1995). The basis of disability evaluations is the ability of the body as a whole to function under the ordinary conditions of daily life, including employment. See 38 C.F.R. § 4.10. Disability of the musculoskeletal system is primarily the inability to perform the normal working movements of the body with normal excursion, strength, speed, coordination and endurance. 38 C.F.R. § 4.40. Consideration is to be given to whether there is less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, pain on movement, swelling, deformity, atrophy of disuse, instability of station, or interference with standing, sitting, or weight bearing. 38 C.F.R. § 4.45. The relevant evidence of record includes the October 2008 VA examination report showing right shoulder flexion to 170 degrees, abduction to 180 degrees, external rotation to 90 degrees, and internal rotation to 80 degrees all with pain beginning at the end points. The September 2010 private examination report noted that right shoulder range of motion was 106 degrees of flexion, 44 degrees of extension, 77 degrees of abduction, 26 degrees of adduction, 33 degrees of internal rotation, and 41 degrees of external rotation. The November 2010 VA examination report showed right shoulder flexion to 160 degrees with pain at 160 degrees, abduction to 120 degrees with pain at 100 degrees, external rotation to 80 degrees, and internal rotation to 85 degrees with pain at 85 degrees. Most recently, the March 8, 2012, VA examination report noted right shoulder flexion to 140 degrees with pain at 135 degrees, and abduction to 110 degrees with pain at 105 degrees. Based on the evidence of record, the Board finds that the Veteran's right shoulder disability has not resulted in limitation of motion to 25 degrees from the side to warrant a 40 percent evaluation. At his most limited, he was able to flex to 106 degrees In DeLuca, the Court held that VA's review of a service-connected musculoskeletal disability must include an assessment of the functional impairment caused by that disability. See 38 C.F.R. §§ 4.40, 4.45 (2013). The Board has therefore taken into consideration the provisions of 38 C.F.R. §§ 4.40 and 4.45. In this case, the October 2008 examination report noted that the joint function was additionally limited after repetitive use by pain and pain had the major functional impact but was not additionally limited by fatigue, weakness, lack of endurance and incoordination. There was no additional limitation in degree. In November 2010, following repetition there was no decrease in function secondary to pain, fatigue, weakness, or lack of endurance. The March 2012 VA examination report noted that the Veteran was able to perform repetitive use testing with three repetitions with flexion ending at 135 degrees and abduction stopping at 105 degrees. His functional loss/impairment included less movement than normal, weakened movement, pain on movement, and atrophy of disuse. Although the Board has considered the Veteran's assertions of pain, it is important to emphasize that the rating schedule does not provide a separate rating for pain. See Spurgeon v. Brown, 10 Vet. App. 194 (1997). Thus, even when considering the Veteran's complaints of pain, the criteria for a higher rating based on the Veteran's range of motion for the right shoulder are not approximated and higher evaluations are not warranted on this basis. As to other possible rating criteria, the medical evidence of record does not demonstrate that the Veteran's disability manifests in ankylosis of scapulohumeral articulation. As such, Diagnostic Code 5200 is not applicable in this case. Furthermore, the medical evidence does not demonstrate any muscle atrophy, weakness, or wasting. Thus, the rating schedule and Diagnostic Codes pertaining to muscle injuries outlined in 38 C.F.R. § 4.73 are also not applicable. Likewise, there are no neurological manifestation to warrant evaluation under 38 C.F.R. § 4.124a. In sum, a 30 percent evaluation, but not higher, for the entire period on appeal is warranted for the Veteran's right shoulder disability. Other Considerations In making this decision, the Board has fully considered the lay assertions of record. In this regard, a layperson is competent to report on his current symptomatology. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (noting that a Veteran is competent to report on that of which he or she has personal knowledge). Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the 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. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77. Competency of evidence differs, however, from the weight and credibility assigned to evidence. The former is a legal concept determining whether testimony may be heard and considered by the trier of fact, while the latter is a factual determination that addresses the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) (stating that "although interest may affect the credibility of testimony, it does not affect competency to testify"). In determining whether statements submitted by a veteran are credible, the Board may consider internal consistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant. Caluza v. Brown, 7 Vet. App. 498 (1995). The Board has not overlooked the Veteran statements with regard to the severity of his right shoulder disability. He is competent to report on factual matters of which he has firsthand knowledge; and the Board finds that these reports concerning symptomatology have been credible. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). The Board notes, with respect to the Rating Schedule, where the criteria set forth therein require medical expertise which the Veteran has not been shown to have, the objective medical findings and opinions provided by the Veteran's examination reports have been accorded greater probative weight. Furthermore, evaluation of the shoulder disability is predominately based on clinical findings taken by medical measurements/observations. The Board has also considered whether the Veteran is entitled to a greater level of compensation on an extraschedular basis. Ordinarily, the VA Schedule will apply unless there are exceptional or unusual factors which would render application of the schedule impractical. See Fisher v. Principi, 4 Vet. App. 57, 60 (1993). According to the regulation, an extraschedular disability rating is warranted based upon a finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization that would render impractical the application of the regular schedular standards. See 38 C.F.R. § 3.321(b) (1) (2013). An exceptional case is said to include such factors as marked interference with employment or frequent periods of hospitalization as to render impracticable the application of the regular schedular standards. See Fanning v. Brown, 4 Vet. App. 225, 229 (1993). Under Thun v. Peake, 22 Vet App 111 (2008), there is a three-step inquiry for determining whether a veteran is entitled to an extraschedular rating. First, the Board must determine whether the evidence presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Second, if the schedular evaluation does not contemplate the Veteran's level of disability and symptomatology and is found inadequate, the Board must determine whether the Veteran's disability picture exhibits other related factors such as those provided by the regulation as "governing norms." Third, if the rating schedule is inadequate to evaluate a veteran's disability picture and that picture has attendant thereto related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether, to accord justice, the Veteran's disability picture requires the assignment of an extraschedular rating. With respect to the first prong of Thun, the evidence in this case does not show such an exceptional disability picture that the available schedular evaluations for the service-connected disability is inadequate. A comparison between the level of severity and symptomatology of the Veteran's shoulder disability with the established criteria shows that the rating criteria reasonably describes the Veteran's disability levels and symptomatology. The Veteran's complaints of dislocation, guarding, pain, weakness, heat, giving way, tingling, and lack of endurance and fatigability are specifically contemplated in the criteria for evaluating shoulder disabilities. The criteria practicably represent the average impairment in earning capacity resulting from the Veteran's disability. See 38 C.F.R. § 4.1. In short, the rating criteria reasonably describe the Veteran's disability levels and symptomatology. The Board, therefore, has determined that referral of this case for extraschedular consideration pursuant to 38 C.F.R. 3.321(b) (1) is not warranted. Finally, the Board is cognizant of the ruling of the Court in Rice v. Shinseki, 22 Vet. App. 447 (2009). In Rice, the Court held that a claim for a total rating based on unemployability due to service-connected disability (TDIU), either expressly raised by the Veteran or reasonably raised by the record involves an attempt to obtain an appropriate rating for a disability and is part of the claim for an increased rating. In this case, the Veteran has not specifically argued, and the record does not otherwise reflect, that his disability renders him totally unemployable. Accordingly, the Board concludes that a claim for TDIU has not been raised. The Veteran certainly may raise this claim in the future, should he choose to do so. ORDER Prior to March 8, 2012, entitlement to a rating of 30 percent, but not higher, for right shoulder disability is allowed, subject to the regulations governing the award of monetary benefits. Beginning March 8, 2012, entitlement to a rating in excess of 30 percent for right shoulder disability is denied. ____________________________________________ A. C. MACKENZIE Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs