Citation Nr: 1421793 Decision Date: 05/14/14 Archive Date: 05/21/14 DOCKET NO. 08-23 847 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Huntington, West Virginia THE ISSUE Entitlement to a rating in excess of 10 percent for a left shoulder disability. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD N. Holtz, Associate Counsel INTRODUCTION The Veteran had active service from January 1987 to January 1991. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2007 rating decision of the Huntington, West Virginia, Regional Office (RO) of the Department of Veterans Affairs (VA). The matter was previously before the Board in September 2011, at which time the appeal was remanded. In May 2009, the Veteran testified during a hearing before a Decision Review Officer (DRO) at the RO. In March 2011, the Veteran testified during a hearing before the undersigned at the RO. Transcripts of these proceedings are associated with the record. The Board previously referred the issue of entitlement to service connection for a right shoulder disability, as secondary to status post left shoulder dislocation, to the Agency of Original Jurisdiction (AOJ), but the record suggests that no action has been taken to date regarding this claim. Additionally, correspondence in VBMS indicates nonadjudicated claims for service connection for sleep apnea, as secondary to service-connected sinusitis/bronchitis, and entitlement to an increased rating for bilateral hearing loss. As these claims are not presently in appellate status, the Board does not have jurisdiction over them, and they are referred to the AOJ for appropriate action. 38 C.F.R. § 19.9(b) (2013). The Board additionally notes that two other pending claims have been identified in the VBMS record, those being for entitlement to service connection for renal cancer and a neurological condition, both related to claimed as due to exposure to contaminated water at Camp Lejeune, North Carolina. Per a February 2014 letter, these claims are presently being separately developed by the Louisville, Kentucky RO, due to their nature; as the claims have been recognized and are in development, the Board identifies the claims for purposes of clarity of record, but will not refer them at this time. FINDINGS OF FACT 1. The Veteran is left-handed. 2. Throughout the period on appeal, the Veteran's left shoulder disability has been manifested by range of shoulder motion limited to shoulder level (90 degrees), but not further limited to midway between his side and shoulder level; there is additionally not evidence of ankylosis, impairment of the humerus, or malunion of the clavicle or scapula. CONCLUSION OF LAW The criteria for a rating of 20 percent, but no higher, for a left shoulder disability have been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.159, 3.321, 4.1, 4.2, 4.3, 4.7, 4.14, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5200-5203 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION VA's Duties to Notify and Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2013). In a claim for increase, the VCAA requires only generic notice as to the type of evidence needed to substantiate the claim, namely, evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on employment, as well as general notice regarding how disability ratings and effective dates are assigned. Vazquez-Flores v. Shinseki, 580 F.3d 1270, 1277 (2009). Such notice was provided to the Veteran in July 2006. VA's duty to assist the Veteran in the development of the claim includes assisting him in the procurement of service treatment records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Board finds that all necessary development has been accomplished. See Bernard v. Brown, 4 Vet. App. 384 (1993). The claims file contains the Veteran's service treatment records, as well as post-service reports of VA treatment and examination. Notably, the representative argued in March 2014 that the most recent VA examination, conducted in October 2011, was "stale" for rating purposes. In making this argument, the representative did not suggest that the shoulder disability had worsened, but only that too much time had passed. While the Board is sympathetic, the mere passage of time, without evidence of worsening, is an insufficient basis for seeking a new examination. See Palczewski v. Nicholson, 21 Vet. App. 174, 182-83 (2007). The Veteran's statements in support of the claim are of record, including testimony provided at a March 2011 Travel Board hearing before the undersigned. The Board hearing focused on the elements necessary to substantiate his increased rating claim and the Veteran, through his testimony and his representative's statements, demonstrated that he had actual knowledge of the elements necessary to substantiate the claim for benefits. As such, the Board finds that, consistent with Bryant v. Shinseki, 23 Vet. App. 488 (2010), the undersigned Veterans Law Judge complied with the duties set forth in 38 C.F.R. § 3.103(c)(2) (2013), and that the Board can adjudicate the claim based on the current record. The Board has carefully reviewed the Veteran's statements and the medical evidence of record, and concludes that no available outstanding evidence has been identified. No further assistance to the appellant is required. 38 C.F.R. § 3.159(c). Increased Ratings Disability evaluations are determined by evaluating the extent to which a veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing his symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Rating Schedule). 38 U.S.C.A. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10. Where entitlement to compensation already has been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). In claims for increased rating VA must consider that a claimant may experience multiple distinct degrees of disability, resulting in different levels of compensation, from the time the increased rating claim is filed to the time a final decision is made. Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007). In evaluating disabilities of the musculoskeletal system, it is necessary to consider, along with the schedular criteria, functional loss due to flare-ups of pain, fatigability, incoordination, pain on movement, and weakness. DeLuca v. Brown, 8 Vet. App. 202 (1995). Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. 38 C.F.R. § 4.40. Pain on movement, swelling, deformity or atrophy, instability, disturbance of locomotion, interference with sitting, standing and weight bearing are relevant considerations for determination of joint disabilities. 38 C.F.R. § 4.45. Painful, unstable, or malaligned joints, due to healed injury, are entitled to at least the minimal compensable rating for the joint. 38 C.F.R. § 4.59. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107; 38 C.F.R. § 4.3; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). The Veteran seeks an increased rating for his left shoulder disability. He is left-hand dominant. Presently, his shoulder disability is rated under 38 C.F.R. § 4.71a, Diagnostic Code 5203, which addresses impairment of the clavicle or scapula. This diagnostic code does not differentiate based on which extremity is dominant, and provides for a 10 percent rating for malunion, or nonunion without loose movement, and a 20 percent rating for nonunion with loose movement, or dislocation. The shoulder could be potentially rated under Diagnostic Code 5201 as well, which addresses limitation of motion of the arm. Pursuant to this code, a 20 percent rating applies for limitation of motion of the "major" (dominant) arm at shoulder level. A 30 percent rating is warranted for limitation to midway between the side and shoulder level, and a 40 percent rating applies for limitation of motion of the to 25 degrees from the side. 38 C.F.R. § 4.71a, Diagnostic Code 5201. The law provides that even if a veteran has limitation of shoulder motion in separate planes (i.e., abduction and flexion), he is limited to only a single disability rating for each shoulder that is disabled. Yonek v. Shinseki, 722 F.3d 1355, 1358 (Fed. Cir. 2013). As there is no evidence of impairment of the humerus (Diagnostic Code 5202), or ankylosis of the scapulohumeral articulation (5200), those codes will not be discussed. At a November 2006 examination, the Veteran denied symptoms of instability, stiffness, weakness, dislocation or subluxation, locking, or effusion of the left shoulder. He did experience shoulder pain, but the shoulder did not suffer from flares. The disability impacted the Veteran's ability to lift and carry items at work. Physical examination revealed flexion to 130 degrees, with pain at 130 degrees, and without additional loss of motion on repetitive use. Abduction of the shoulder was to 110 degrees, with pain at that point, and no additional loss of motion on repetition. External rotation was to 70 degrees, and internal rotation was to 80 degrees, both unchanged due to pain or repetitive use. There was no evidence of loss of bone, shoulder dislocations, inflammatory arthritis, or ankylosis. X-rays showed the humeral head to be in a normal anatomic position, and disclosed no significant degenerative changes. The examiner diagnosed left supraspinatus tendonopathy. An accompanying November 2006 MRI report confirmed the diagnosis, identifying either tendonopathy or a partial tear of the supraspinatus. In an August 2008 statement, the Veteran indicated that he could not raise his arm higher than shoulder level. He is competent to identify such symptomatology. Layno v. Brown, 6 Vet. App. 465, 470 (1994). An August 2008 private MRI indicated that the Veteran had acromioclavicular (AC) joint arthropathy, but no full thickness tear of the rotator cuff tendon. There was small joint effusion, and mild tendonopathy of the distal rotator cuff tendon. An accompanying report of physical examination indicated weakness to external rotation resistance in the shoulder, but without global instability or any crepitation. X-rays showed some minor degeneration of the AC joint, and no evidence of gross instability, gross elevation of the humerus, or any gross calcification at the site. The Veteran had no neurological complaints. A second VA examination was provided in May 2009. The Veteran informed the examiner that his work environment required lifting heavy sacks of mail, hurting his shoulder. He described pain, tenderness, and decreased joint speed, but denied instability, stiffness, weakness, incoordination, dislocation or subluxation, locking, and effusion. The Veteran indicated that he had missed one week of work over the previous year due to shoulder symptomatology. On physical examination, the examiner found no evidence of ankylosis. The Board will not consider the range of motion measurements taken at this examination. In addition to the fact that they do not support the Veteran's claim, as the Board noted in the September 2011 remand, the report is inadequate, as it documented painful motion, but failed to indicate at what point painful motion began. See DeLuca, 8 Vet. App. at 204-07. The Veteran stated in his June 2009 RO hearing that he could not raise his arm to shoulder level, and that he was limited to a point "two to three" inches short of 90 degrees. At his March 2011 hearing, the Veteran indicated that he experienced some "impingement" in his shoulder, in that his arm goes numb. One time, the shoulder dislocated, approximately a year prior to the hearing. Generally, he tried to work with his non-dominant right arm to compensate for his left side. He acknowledged needing to miss work due to his shoulder, but generally could not afford to call in; rather, he would go to work for a period of time, then request to go home. Most recently, VA provided the Veteran a third examination, in October 2011. Physical examination of the left shoulder documented flexion to 120 degrees, but with pain beginning at 90, and abduction to 100 degrees, also with pain at 90. Repetitive motion resulted in 120 degrees of flexion and 100 degrees of abduction. Functional impairment of the shoulder after repetitive use included less movement than normal, weakened movement, excess fatigability, incoordination, and pain. His muscle strength was 4/5 on the left in both abduction and flexion. There was no suggested history of recurrent dislocation of the scapulohumeral joint. The examiner noted AC joint degeneration, based on x-rays. The Veteran identified flare-ups during cold weather, which caused increased pain, and made him use his left arm less. Regarding the impact on his employment, the Veteran again indicated that he had difficulty using his arm to lift heavy containers of mail, and that doing so resulted in sharp pain. The Board finds that a higher rating is warranted based on limitation of motion of the left shoulder. As of August 2008, the Veteran competently reported that his range of motion was limited at the shoulder level. The October 2011 examination confirmed that the Veteran's range of motion, including when considering the effects of painful motion, was limited to 90 degrees, on both flexion and abduction. Under Diagnostic Code 5201, such findings are appropriately rated at 20 percent. A higher, 30 percent rating under 5201 is not appropriate based on the evidence of record, because the weight of the probative evidence demonstrates that the range of motion of the shoulder was not limited to midway between the side and shoulder level. The Board notes the Veteran's assertion in June 2009 that his arm range of motion was two or three inches short of 90 degrees. While the Veteran is competent to identify lost motion, he is not competent to identify the specific amount of lost motion. Such measurements are properly performed with a goniometer. 38 C.F.R. § 4.46. Additionally, the Board finds the objective testing of the October 2011 examiner to be more probative than the Veteran's lay reports, as the examination was performed in a controlled setting, and because of the examiner's experience in measuring range of motion. The Board has considered whether staged ratings would be appropriate, but has determined that they are not. Hart, 21 Vet. App. at 509-10. The higher, 20 percent rating more approximately addresses the level of disability throughout the appellate period. While abduction was slightly greater than 90 degrees at the November 2006 examination, it was not significantly so (110 degrees). Interpreting the examination reports together into a consistent picture, the 20 percent rating is warranted throughout the period on appeal. 38 C.F.R. § 4.2. The Board finds that the rating under Diagnostic Code 5201 is more appropriate than the current rating under Diagnostic Code 5203, as there is no evidence of dislocation, nonunion, or malunion of the clavicle or scapula. 38 C.F.R. § 4.71a, Diagnostic Code 5203. The evidence shows a diagnosis of degenerative joint disease of the acromioclavicular joint; that diagnosis does not, however, suggest malunion, nonunion, or dislocation of the clavicle or scapula. Id. The Board also notes that ratings based on degenerative joint disease specifically include consideration of limitation of motion. See 38 C.F.R. § 4.71a, Diagnostic Code 5003. As the Veteran is being granted a separate, higher rating under Diagnostic Code 5201 based on limitation of motion, a separate rating for degenerative joint disease Diagnostic Code 5203 based on findings of degenerative joint disease, would constitute pyramiding. 38 C.F.R. § 4.14. The Board has also considered whether the Veteran's shoulder disability presents an exceptional or unusual disability picture as to render impractical the application of the regular schedular standards such that referral to the appropriate officials for consideration of extra-schedular ratings is warranted. See 38 C.F.R. § 3.321(b)(1) (2013); Bagwell v. Brown, 9 Vet. App. 337, 338-39 (1996). In this case there are no exceptional or unusual factors with regard to the Veteran's shoulder disability. The threshold factor for extra-schedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluation for that service-connected disability is inadequate. See Fisher v. Principi, 4 Vet. App. 57, 60 (1993) (holding that the "rating schedule will apply unless there are 'exceptional or unusual' factors which render application of the schedule impractical."). Here, the rating criteria reasonably describe the Veteran's disability level and symptomatology, and provide for consideration of greater disability and symptoms than currently shown by the evidence. There is no suggestion that the Veteran has required periods of hospitalization. While he has suffered pain due to the shoulder limitations that interfere with his occupation, he has been able to maintain his employment, and has not missed significant periods of work. Further, the disability rating is considered sufficient to address a "considerable loss of working time." 38 C.F.R. § 4.1. Thus, his disability picture is contemplated by the rating schedule, and the assigned schedular evaluation is, therefore, adequate. See Thun v. Peake, 22 Vet. App. 111, 115 (2008). Consequently, referral for extra-schedular consideration is not warranted. As the Veteran has maintained employment, the issue of entitlement to a total disability rating due to individual unemployability is not raised under Rice v. Shinseki, 22 Vet. App. 447 (2009) and Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001). ORDER Entitlement to a 20 percent rating, and no higher, for a left shoulder disability is granted, subject to the laws and regulations governing the payment of monetary benefits. ____________________________________________ CHERYL L. MASON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs