Citation Nr: 1430686 Decision Date: 07/08/14 Archive Date: 07/15/14 DOCKET NO. 01-00 928 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to an increased rating on an extra-schedular basis for the service-connected right shoulder disability, described as residuals, partial subluxation, right sternoclavicular joint with traumatic arthritis, evaluated as 20 percent disabling prior to April 14, 2005, and as 40 percent disabling from that date. 2. Entitlement to an effective date earlier than April 14, 2005, for the grant of an increased rating of 40 percent for the service-connected right shoulder disability, described as residuals, partial subluxation, right sternoclavicular joint with traumatic arthritis on an extra-schedular basis. REPRESENTATION Appellant represented by: Texas Veterans Commission WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Stanley Grabia Counsel INTRODUCTION The Veteran had active service from September 1977 to February 1979. These matters come before the Board of Veterans' Appeals (Board) on appeal from a June 2000 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas, which in pertinent part, denied entitlement to a disability rating greater than 20 percent for the service-connected right shoulder disability. By rating decision in August 2005, the RO increased the right shoulder disability rating to 40 percent, effective April 14, 2005. The Veteran appealed the effective date of this rating. In May 2006, a Board hearing was held before an Acting Veterans Law Judge (AVLJ), and a transcript of that hearing is of record. However, the AVLJ who conducted the hearing has since left the Board. In July 2012, the Board sent a letter to the Veteran informing him of this fact and giving him the opportunity to testify at another hearing. The letter specifically instructed the Veteran that if he did not respond within 30 days from the date of the letter, the Board would assume that he did not want another hearing. To date, the Veteran has not responded. The Board in February 2008 denied entitlement to a disability rating greater than 20 percent for the right shoulder disability prior to April 14, 2005; and a disability rating greater than 40 percent, since April 14, 2005. The Board however remanded entitlement to an increased rating on an extra-schedular basis for the right shoulder disability, evaluated as 20 percent disabling prior to April 14, 2005, and as 40 percent disabling from that date. The issue is characterized to reflect that only extra-schedular consideration is before the Board. In October 2011, November 2012, and October 2013 the Board remanded the issue of entitlement to an increased rating on an extra-schedular basis for the right shoulder disability. In addition the Board deferred the claim of entitlement to an effective date earlier than April 14, 2005, for the grant of an increased rating of 40 percent for the service-connected right shoulder disability. FINDINGS OF FACT 1. In May 2012 and January 2014, the Director of Compensation and Pension (C&P) Service determined that an increased rating on an extra-schedular basis for the service-connected right shoulder disability, evaluated as 20 percent disabling prior to April 14, 2005, and as 40 percent disabling from that date was not warranted. 2. An extra-schedular rating of 40 percent for the right shoulder disability was warranted effective August 30, 2004 to afford justice; no other extraschedular ratings are required to afford justice in the Veteran's case. CONCLUSIONS OF LAW 1. Except as specified in the next paragraph, an increased rating on an extra-schedular basis for the service-connected residuals, partial subluxation, right sternoclavicular joint with traumatic arthritis, evaluated as 20 percent disabling prior to April 14, 2005, and as 40 percent disabling from that date was not warranted on an extra-schedular basis. 38 U.S.C.A. § 5110 (West 2002); 38 C.F.R. §§ 3.400 (2013); Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). 2. The criteria for assignment of an effective date of August 30, 2004, for a 40 percent rating for the service-connected residuals, partial subluxation, right sternoclavicular joint with traumatic arthritis have not been met on an extra-schedular basis. 38 U.S.C.A. §§ 5101(a), 5110, 5111 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.1, 3.4(b) (1), 3.321, 3.151(a), 3.400 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duty to Notify and Assist 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 the 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, and 3.326(a) (2013). Under the VCAA, VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; (3) that the claimant is expected to provide; and (4) must request that the claimant provide any evidence in his possession that pertains to the claim. Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004); see 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). The United States Court of Appeals for Veterans Claims (Court) has also held that the VCAA 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. Those five elements include: 1) Veteran status; 2) existence of a disability; 3) a connection between the Veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Adequate VCAA notice in an increased rating claim requires that the claimant be told that to substantiate a claim the claimant must provide, or ask VA to obtain, medical or lay evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on the claimant's employment; that should an increase in disability be found, a disability rating will be determined by applying relevant diagnostic codes; and the notice must also provide examples of the types of medical and lay evidence that the claimant may submit (or ask VA to obtain) that are relevant to establishing entitlement to increased compensation. Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008); vacated and remanded in part Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009). Here, the Veteran was sent letters in March 2003, October 2003, and March 2005 that provided information as to what evidence was required to substantiate the claim and of the division of responsibilities between VA and a claimant in developing an appeal. The letters also explained what type of information and evidence was needed to establish a disability rating and effective date. Complete notice was not issued to the Veteran prior to the adverse determination on appeal. However, fully compliant notice was issued later, and the claims were thereafter readjudicated most recently in a February 2014 supplemental statement of the case (SSOC). Thus, any timing deficiency has here been appropriately cured. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). Accordingly, no further development is required with respect to the duty to notify. The VCAA also requires VA to make reasonable efforts to help a claimant obtain evidence necessary to substantiate his claims. 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). The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). The claims file contains the service treatment records, as well as all available post-service reports of VA and private treatment and examination. Opinions from the Director of Compensation and Pension Service were obtained in May 2012 and January 2014. Moreover, his statements in support of the claims are of record, including testimony provided at the May 2006 hearings before a Veterans Law Judge. The Board has carefully reviewed such statements and concludes that no available outstanding evidence has been identified. The Board has also perused the medical records for references to additional treatment reports not of record, but has found nothing to suggest that there is any outstanding evidence pertinent to the Veteran's claims. VA examinations were conducted in August 1999, May 2002, and April 2005; and a May 2009 examination included findings referable to the right shoulder. The examiners considered accurate histories, the examination reports set forth detailed findings in a manner that contain the findings necessary rate the disability on an extra-schedular basis. There is no indication of a change in the disability since the last examination. Subsequently dated treatment records do not demonstrate such a change. The Veteran has not argued, and the record does not reflect, that these examinations were inadequate for rating purposes. 38 C.F.R. § 3.159(c) (4); Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). In sum, the Board finds that the duty to assist and duty to notify provisions of the VCAA have been fulfilled and no further action is necessary under the mandates of the VCAA. In October 2011, November 2012, and October 2013 the Board remanded the issue of entitlement to an increased rating on an extra-schedular basis for the right shoulder disability. In addition the Board deferred the claim of entitlement to an effective date earlier than April 14, 2005, for the grant of an increased rating of 40 percent for the service-connected right shoulder disability. The Board finds there has been substantial compliance with the October 2013 remand, which requested the VA Director of Compensation determination now in the file. See Stegall v. West, 11 Vet. App. 268, 271 (1998). The United States Court of Appeals for Veterans Claims has interpreted the provisions of 38 C.F.R. § 3.103(c)(2) as imposing two distinct duties on VA employees, including Board personnel, in conducting hearings: The duty to explain fully the issues and the duty to suggest the submission of evidence that may have been overlooked. Bryant v. Shinseki, 23 Vet. App. 488 (2010) (per curiam). At the Veteran's hearing the issues were identified, including the evidence needed to substantiate the claim. There was a discussion of possible evidence that could substantiate the claims. The discussion lead to repeated remands to obtain evidence that could substantiate the claims. II. Increased ratings on an extra-schedular basis Ratings shall be based as far as practicable, upon the average impairments of earning capacity with the additional proviso that the Secretary shall from time to time readjust this schedule of ratings in accordance with experience. To accord justice, therefore, to the exceptional case where the scheduler ratings are found to be inadequate, the Under Secretary for Benefits or the Director, Compensation and Pension Service, upon field station submission, is authorized to approve an extra-schedular rating commensurate with the average earning capacity impairment due exclusively to the service-connected disability or disabilities. The governing norm in these exceptional cases is 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 as to render impractical the application of the regular scheduler standards. 38 C.F.R. § 3.321(b) (2013). In Thun v. Peake, 22 Vet. App. 111 (2008), the Court addressed at length the extra-schedular provisions of 38 C.F.R. § 3.321(b). The Court held that the determination of whether a claimant is entitled to an extra-schedular rating is a three-step inquiry. Id. at 115. The Court has held that neither the RO nor the Board is permitted to assign an extra-schedular rating in the first instance; rather, the matter must initially be referred to those officials who possess the delegated authority to assign such a rating. Floyd v. Brown, 9 Vet. App. 88, 95 (1996)). The Board may review determinations of the Director of C&P. Anderson v. Shinseki, 22 Vet. App. 423, 427 (2008), In a memorandum dated in January 2014, the Director of C&P determined that the Veteran was not entitled to a disability rating greater than 20 percent for the right shoulder disability prior to April 14, 2005; and a disability rating greater than 40 percent, effective April 14, 2005 on an extra-schedular basis. The Director noted that the Veteran underwent a social and industrial survey in December 2011. He reported that he had been working at a VA Medical Center since 1997 on a fulltime basis as a nursing assistant. He described difficulty maintaining employment due to his drinking, physical problems including neck, shoulder, and back pain. This limited his ability to pull and lift due to his right schoulder and neck. The social worker stated that it appeared the Veteran's service connected conditions, as well as his neck and back pain significantly impacted his ability to work as a nursing assistant. It appeared that his neck, carpal tunnel syndrome, and thoracic outlet syndrome would interfere with his ability to lift, turn, bathe, and transport patients. The Veteran reported one surgery in 1989 for a 1st rib resection secondary to thoracic outlet syndrome. At a May 2009 VA examination he reported missing 2 days of work in 2008 due to exacerbation of bilateral shoulder pain after lifting a large patient at work. He reported no restricted duties at work due to his right arthritis. The ROM of the right shoulder was noted to be on a physical therapy worksheet, which was not in the claims file. There was no incoordination, weakness, fatigue, or decreased motion after repetitive testing, and no significant functional deficits of the right shoulder were noted. An October 2007 pain clinic notation revealed an inarticular injection with some relief. A December 2007 neurological consultation revealed weakness in the right triceps. Following review of an MRI showing 2 levels of cervical spine compression a discectomy was recommended. During his May 2006 Travel Board, the Veteran reported 2 injections for pain, one in 2004 and one just prior to the Travel Board hearing. He also took medication and attended physical therapy sessions. The medical evidence prior to April 14, 2005 revealed only sporadic treatment for arthritis. The 2004 medical evidence revealed no significant evidence of loss of motion. All the evidence dated prior to April 2005 revealed only mild functional restrictions. An April 2005 physical therapy note included range of motion findings for both shoulders. Flexion was to 70 degrees; Abduction was to 86 degrees; external rotation was to 28 degrees; internal rotation was to 58 degrees; and extension was to 15 degrees. The therapist recommended that the Veteran request lighter duty or transfer to a nursing position requiring less lifting. The Director of Compensation Services noted that the Veteran had been working for VAMC since 1997 and continued to work full time. The available evidence did not show that he was placed on light duty at any time in the past due to right shoulder arthritis. He consistently reported that his neck, back, and alcohol use caused difficulty with employment. Service connection was not established for his cervical spine, lumbar spine, or alcohol related problems. The evidence did not reveal any hospitalization, surgical procedures, or frequent emergency treatment for the right shoulder condition. The evidence does not reveal any significant difficulty performing his nursing duties. There was no evidence showing that the condition prevents him from performing his current job or other work. There was no evidence of any significant time period lost from work due to the right shoulder arthritis. The record did not demonstrate that the symptomatology consistently associated with the service connected right shoulder condition has not been wholly contemplated by the criteria utilized to assign the ratings. Entitlement to an extra-schedular rating for any time period for the right shoulder condition was not established. Evidence does not show that the Veteran's right shoulder condition interferes with his regular employment in the past, and he continues to work without special accommodations. While there is case law providing guidance as to when to refer a case for extra-schedular consideration; there is essentially no precedent that provides guidance as to when, or how, an extra-schedular rating should be granted once referral has been accomplished. The regulation provides only that extra-schedular ratings are granted when necessary to "afford justice." 38 C.F.R. § 3.321(b). In the instant case there is no evidence that an extra-schedular rating is necessary to afford justice, except as discussed below. The Veteran is receiving compensation that contemplates pain, functional impairment and considerable time lost from work. 38 C.F.R. § 4.1, 4.40, 4.45, 4.59 (2013). He has been able function in his full time employment for many years and carry out the activities of daily living. He has experienced some difficulties in these endeavors, but is being compensated. He has not pointed out any injustice in his schedular compensation. Absent evidence of an injustice, an extra-schedular rating is not warranted. III. Earlier Effective Dates The effective date of an award of increased compensation shall be the earliest date as of which it is ascertainable that an increase in disability had occurred, if application is received within one year from such date. 38 U.S.C.A. § 5110(b) (2); see also 38 C.F.R. § 3.400(o); cf. 38 C.F.R. § 3.157. If the increase occurred more than one year prior to the claim, the increase is effective the date of claim. If the increase occurred after the date of claim, the effective date is the date of increase. 38 U.S.C.A. § 5110(b) (2); Harper v. Brown, 10 Vet. App. 125 (1997); 38 C.F.R. § 3.400(o); VAOPGCPREC 12-98 (1998). The Board has previously determined that an earlier effective date was not warranted on a schedular basis. In determining whether an increase was factually ascertainable during the year prior to receipt of an increased rating claim, the Board will review the entirety of the evidence of record. Hazan v. Gober, 10 Vet. App. 511, 520 (1997) (also holding that for effective date purposes, the claim must be the application on the basis of which the rating was awarded); Washington v. Gober, 10 Vet. App. 391, 393 (1997) ("The fact that the appellant had previously submitted claim applications, which had been denied, is not relevant to the assignment of an effective date based on a current application."); Wright v. Gober, 10 Vet. App. 343, 346-47 (1997) (holding that an application that had been previously denied could not preserve an effective date for a later grant of benefits based on a new application). Historically, by rating action in September 1979 service connection was granted for partial subluxation, right sternoclavicular joint with traumatic arthritis. A 20 percent rating was assigned effective from February 24, 1979. By rating action in November 1990 the 20 percent rating was decreased to 10 percent effective from February 1, 1981. By rating action in September 1998 the 10 percent rating was increased to 20 percent effective from August 18, 1998. The claim for an increased rating was reopened in February 2000. By rating action in June 2000 the claim for an increased rating was denied. By rating action in August 2005 the 20 percent rating was increased to 40 percent effective from April 14, 2005, the date of a VA examination which revealed an increase in the Veteran's right shoulder disability. In September 2005, the Veteran disagreed with the April 14, 2005 effective date of the increased rating. The Veteran has asserted that the effective date for his 40 percent rating should be assigned back to the February 2000 date of the increased ratings claim or earlier. (See September 2005 Written Statements from the Veteran). Based on the procedure history explained above, the date of the increased rating claim filed by the Veteran is February 2000. The next issue is whether the increased disability was factually ascertainable prior to the April 14, 2005 VA examination. Initially, the RO assigned an effective date of April 14, 2005 for a 40 percent rating, the date of the most recent VA examination at that time. Because the Veteran's claim had been pending since at least the year before the February 2000 claim; there is no question that the claim was pending prior to the assigned effective dated for the 40 percent rating. The critical question is when was it ascertainable that an increase occurred? In this case, the Veteran essentially asserts that his right shoulder had been bothering him at the same level and/or worse since he filed his increased ratings claim or earlier; and he is competent to make that report. The September 1979 rating decision, which granted service connection for a right shoulder disorder and assigned an initial 20 percent rating effective February 24, 1979, is final. 38 U.S.C.A. § 7105(c) (West 2002); 38 C.F.R. § 3.156(b) (2013). The competent evidence also does not support the Veteran's assertions regarding a worsening of his service-connected right shoulder disorder, at least prior to August 30, 2004. On that date the Veteran was seen at VA and reported increasing pain in both shoulders, right worse than left, which was affecting his activities of daily living, sleep and work. It shows that, prior to this date, the Veteran's service-connected right shoulder disability was manifested by, at worst, mild to moderate symptoms. Contrary to the Veteran's assertions, the VA examination results and extensive VAMC treatment records do not show that his service-connected right shoulder disorder had worsened. At the April 14, 2005 VA examination, the right shoulder range of motion measurements were forward flexion of 30 degrees, active/ passive or with resistance. Repeated and resisted motion was essentially met with complaints of pain but no more or less ROM. There was no effusion, redness, or atrophy of muscles and the right sternoclavicular joint appeared normal on inspection. This clearly meets the criteria for a 40 percent rating. The previous VA examination in May 2002, had revealed the right shoulder range of motion measurements were forward flexion of 120 degrees. This did not meet the criteria for the previously assigned 20 percent rating. In this case, to afford justice, the Board is granting the 40 percent rating effective August 30, 2004. Prior to that date an increase was not ascertainable and treatment records did not reflect an increase in symptoms. ORDER An increased rating on an extra-schedular basis for the service-connected right shoulder disability, described as residuals, partial subluxation, right sternoclavicular joint with traumatic arthritis, evaluated as 20 percent disabling prior to April 14, 2005, and as 40 percent disabling from that date is denied. An effective date of August 30, 2004, for the grant of an increased rating of 40 percent for the service-connected right shoulder disability, described as residuals, partial subluxation, right sternoclavicular joint with traumatic arthritis on an extra-schedular basis is granted. ____________________________________________ Mark D. Hindin Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs