Citation Nr: 1423014 Decision Date: 05/21/14 Archive Date: 05/29/14 DOCKET NO. 10-47 585 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Salt Lake City, Utah THE ISSUES 1. Entitlement to an initial rating in excess of 10 percent for right shoulder impingement syndrome with strain. 2. Entitlement to an initial rating in excess of 10 percent for left shoulder impingement syndrome with strain. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Alicia R. Bordewyk INTRODUCTION The Veteran served on active duty from February 1985 to February 2009. This case comes before the Board of Veterans' Appeals (Board) on appeal from an April 2009 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Salt Lake City, Utah, which, in pertinent part, granted service connection for the right and left shoulder disabilities, with the initial rating of 10 percent assigned to each. This appeal was processed using the Veterans Benefits Management System (VBMS) and Virtual VA paperless claims processing system. Accordingly, any future consideration of this appellant's case should take into consideration the existence of this electronic record. FINDINGS OF FACT 1. Throughout the entire period on appeal, the right shoulder disability has manifested by painful motion without ankylosis, limitation of arm motion to shoulder level or lower, or other impairment of the humerus or clavicle/scapula. 2. Throughout the entire period on appeal, the left shoulder disability has manifested by painful motion without ankylosis, limitation of arm motion to shoulder level or lower, or other impairment of the humerus or clavicle/scapula. CONCLUSIONS OF LAW 1. The criteria for an increased rating in excess of 10 percent for right shoulder impingement syndrome with strain have not been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.20, 4.40, 4.45, 4.71a Diagnostic Codes 5024, 5201, 5202, 5203 (2013). 2. The criteria for an increased rating in excess of 10 percent for left shoulder impingement syndrome with strain have not been met. 38 U.S.C.A. § 1155; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.20, 4.40, 4.45, 4.71a Diagnostic Codes 5024, 5201, 5202, 5203. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2013) redefined VA's duty to assist a Veteran in the development of a claim. VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013). This appeal arises from disagreement with the initial evaluation following the grant of service connection. The courts have held that once service connection is granted, the claim is substantiated, additional VCAA notice is not required, and any defect in the notice is not prejudicial. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). 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 has obtained the Veteran's service treatment records. He has not reported any other treatment or identified any missing records. Additionally, the Veteran was provided VA examinations in January 2009 and January 2011 to evaluate the current severity of the bilateral shoulder disability. The Board finds that the medical opinion evidence is adequate as it is based on thorough physical examination and review of the Veteran's statements and contains clear findings. Stefl v. Nicholson, 21 Vet. App. 120 (2007); Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); 38 C.F.R. § 3.159(c)(4). For the reasons set forth above, the Board finds that VA has complied with the VCAA's notification and assistance requirements. The appeal is thus ready to be considered on the merits. 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 (2013). In evaluating a disability, the Board considers the current examination reports in light of the whole recorded history to ensure that the current rating accurately reflects the severity of the condition. The Board has a duty to acknowledge and consider all regulations that are potentially applicable. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). The medical as well as industrial history is to be considered, and a full description of the effects of the disability upon ordinary activity is also required. 38 C.F.R. §§ 4.1, 4.2, 4.10. 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. See 38 C.F.R. § 4.7 (2013). In view of the number of atypical instances it is not expected, especially with the more fully described grades of disabilities, that all cases will show all the findings specified. Findings sufficiently characteristic to identify the disease and the disability therefrom, and above all, coordination of rating with impairment of function will, however, be expected in all instances. 38 C.F.R. § 4.21 (2013). 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. Although a rating specialist is directed to review the recorded history of a disability in order to make a more accurate evaluation, see 38 C.F.R. § 4.2, the regulations do not give past medical reports precedence over current findings. Francisco v. Brown, 7 Vet. App. 55 (1994). Staged ratings are, however, appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. The relevant focus for adjudicating an increased rating claim is on the evidence concerning the state of the disability from the time period one year before the claim was filed until VA makes a final decision on the claim. Hart v. Mansfield, 21 Vet. App. 505 (2007). 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; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). The Veteran contends that his right and left shoulder disabilities are more severe than rated. His disabilities are rated under 38 C.F.R. § 4.71a, Diagnostic Code 5024 for tenosynovitis, and Diagnostic Code 5201, for limitation of motion of the shoulder. Diseases evaluated under Diagnostic Code 5024 are rated by limitation of motion of the affected part. See 38 C.F.R. § 4.71a. Under Diagnostic Code 5201, ratings in excess of 10 percent are warranted for limitation of motion of the minor arm at shoulder level or midway between the side and shoulder level or lower. At the outset, the Board notes that there is no medical evidence, nor has the Veteran reported, ankylosis of either shoulder or nonunion, malunion, fibrous union, or dislocation of either shoulder. As such, Diagnostic Codes 5200 (ankylosis), 5202 (other impairment of the humerus), and 5203 (other impairment of the clavicle/scapula) are not for application in this case. Therefore, under all other potentially applicable rating criteria, the Veteran will only be entitled to an increased rating if his disability is manifested by limitation of right or left shoulder motion to shoulder level or lower. See 38 C.F.R. § 4.71a, Diagnostic Code 5201. Unfortunately, the evidence does not demonstrate such limitation of motion of either shoulder. Service treatment records do not include any evidence regarding range of motion measurements. A January 2009 VA examiner found flexion in the right shoulder to 150 degrees and in the left shoulder to 160 degrees, both with pain at the end. Bilaterally, abduction was possible to 180 degrees with pain beginning at 130 degrees, external rotation was to 80 degrees with pain at 60 degrees, and internal rotation to 80 degrees without pain. There was no change or additional limitation of motion with repetitive testing or due to weakness, fatigue, incoordination, or flare-ups. Reflexes were normal and symmetrical bilaterally and strength, muscle tone and bulk were normal bilaterally. In January 2011, a new VA examination revealed bilateral flexion to 170 degrees with pain beginning at 140 degrees, bilateral abduction to 150 degrees with pain at 110 degrees, external rotation to 90 degrees without pain, and internal rotation to 80 degrees with pain at the end. Although the Veteran reported flare-ups which involved increased pain and weakness, he also stated that he did not experience any additional loss of range of motion in either shoulder as a result of such flare-ups. The examiner found that there was no change or additional limitation of motion with repetitive testing or due to such functional factors as weakness, fatigue, incoordination, or flare-ups. The examination revealed no deformity, normal reflexes, strength, muscle tone, and bulk, and normal sensory findings. At no time throughout the period on appeal has the Veteran reported or been found to have arm motion limited to shoulder level or below. Both VA examiners found flexion, abduction, and external rotation to be well above shoulder level, even when considering functional factors such as pain, weakness, and flare-ups and even with repetitive testing. As such, the Board finds that an increased schedular rating in excess of 10 percent is not warranted. In exceptional cases an extraschedular rating may be provided. 38 C.F.R. § 3.321 (2013). The threshold factor for extraschedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Therefore, initially, there must be a comparison between the level of severity and symptomatology of the claimant's service- connected disability with the established criteria found in the rating schedule for that disability. Thun v. Peake, 22 Vet. App. 111 (2008). Under the approach prescribed by VA, 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. In the second step of the inquiry, however, if the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, the RO or Board must determine whether the claimant's exceptional disability picture exhibits other related factors such as those provided by the regulation as "governing norms." 38 C.F.R. 3.321(b)(1). (related factors include "marked interference with employment" and "frequent periods of hospitalization"). When the rating schedule is inadequate to evaluate a claimant's disability picture and that picture has 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 for completion of the third step-a determination of whether, to accord justice, the claimant's disability picture requires the assignment of an extraschedular rating. Id. The Board finds that the rating criteria contemplate the Veteran's disability. His bilateral shoulder disability manifested by symptoms such as painful motion, fatigue, and weakness of the shoulder and muscles. These manifestations are contemplated in the rating criteria. The rating criteria are, therefore, adequate to evaluate the Veteran's disability and referral for consideration of extraschedular rating is, therefore, not warranted. Moreover, the Board notes that there have been no reported or documented hospitalizations due to the Veteran's service-connected disability. Accordingly, the Board concludes that the preponderance of the evidence is against the claim, and it is, therefore, denied. In arriving at the decision to deny the claim, the Board has considered the applicability of the benefit-of-the-doubt rule enunciated in 38 U.S.C.A. § 5107(b). However, as there is not an approximate balance of evidence, that rule is not helpful to the Veteran. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990); Ortiz v. Principi, 274 F. 3d 1361 (Fed. Cir. 2001). ORDER Entitlement to an increased initial rating in excess of 10 percent for right shoulder impingement syndrome with strain is denied. Entitlement to an increased initial rating in excess of 10 percent for left shoulder impingement syndrome with strain is denied. ____________________________________________ J. A. MARKEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs