Citation Nr: 1504944 Decision Date: 02/03/15 Archive Date: 02/09/15 DOCKET NO. 12-26 613 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Albuquerque, New Mexico THE ISSUES 1. Entitlement to an initial rating in excess of 10 percent for service-connected right shoulder degenerative joint disease. 2. Entitlement to an initial rating in excess of 10 percent for service-connected right distal fibula fracture residuals in the right ankle. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Mike A. Sobiecki, Associate Counsel INTRODUCTION The Veteran served on active duty from March 1984 to May 1989. This matter is before the Board of Veterans' Appeals (Board) on appeal of a September 2010 rating decision of the Boise, Idaho, Regional Office (RO) of the Department of Veterans Affairs (VA). FINDINGS OF FACT 1. The Veteran's service-connected right shoulder disability manifests in symptoms that result in limitation of motion at shoulder level. 2. The Veteran's service-connected right distal fibula fracture residuals in the right ankle result in functional limitation approximating marked limitation of motion in the ankle. CONCLUSIONS OF LAW 1. The criteria for an initial rating of 20 percent for service-connected right shoulder degenerative joint disease have been met. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 3.102, 4.1-4.14, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes (DCs) 5003-5201 (2014). 2. The criteria for an initial rating of 20 percent for service-connected right distal fibula fracture residuals in the right ankle have been met. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 3.102, 4.1-4.14, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes (DCs) 5262-5271 (2014). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist The appeal arises from a disagreement with the initially assigned disability rating after service connection was granted. Once a decision awarding service connection, a disability rating, and an effective date has been made, section 5103(a) notice is no longer required because the claim has already been substantiated. VA still has a duty to provide assistance to substantiate a claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c). The Veteran's service treatment and personnel records have been obtained. Post-service VA treatment records have also been obtained. The Veteran has not indicated, and the evidence of record does not show, that he is in receipt of benefits from the Social Security Administration. The Veteran was provided a VA medical examination in August 2010. The examination report is sufficient evidence for deciding the claim. The report is adequate as it is based upon consideration of the Veteran's prior medical history and treatment records, describes the disability in sufficient detail so that the Board's evaluation is a fully informed one, and contains a reasoned explanation. Thus, VA's duty to assist has been met. Ratings Claims Disability ratings are determined by applying a schedule of ratings based on average impairment of earning capacity. Separate Diagnostic Codes (DCs) identify the various disabilities. 38 U.S.C.A. § 1155; 38 C.F.R., Part 4. Each disability must be viewed in relation to its history, and the limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. § 4.1. Further, examination reports are to be interpreted in light of the whole recorded history, and each disability must be considered from the point of view of the appellant working or seeking work. 38 C.F.R. § 4.2. The Board will consider whether separate ratings may be assigned for separate periods of time based on facts found, a practice known as staged ratings, whether it is an initial rating case or not. Fenderson v. West, 12 Vet. App. 119, 126-27 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Right Shoulder Disability The Veteran is currently assigned an initial 10 percent rating for his service-connected right shoulder disability pursuant to DC 5010. Here, the Board finds that a rating pursuant to DC 5201 (for arm, limitation of motion) is more appropriate. See 38 C.F.R. § 4.20. The Board has considered the implications of the change in Diagnostic Codes and recognizes that any change in a diagnostic code by VA must be specifically explained. Pernorio v. Derwinski, 2 Vet. App. 625 (1992). In changing the Diagnostic Code under which the Veteran's right shoulder disability is evaluated, the Board notes that, in Murray v. Shinseki, 24 Vet. App. 420 (2011), the Court held that a VA medical examination showing that the symptoms upon which a disability rating was based are no longer present cannot act to reduce that disability rating if it has been in effect for more than 20 years, and thus protected by regulation. 38 C.F.R. § 3.951(b). Additionally, the Court held that change of DCs under which Veteran's disability was rated was error where the change effectively reduced to zero a disability rating which had been in effect for more than 20 years, and thus protected by regulation. Id. In the instant case, the Veteran's 10 percent rating under Diagnostic Code 5010 has been in effective since April 14, 2010, i.e., less than 20 years, and therefore, is not protected. As such, Murray is inapplicable in the instant case. The Board is also cognizant of the Federal Circuit's holding in Read v. Shinseki, 651 F.3d 1296 (Fed. Cir. 2011), which pertains to a claim involving muscle groups. The Federal Circuit held that a change in determination of situs of Veteran's disability from one muscle group to another, for purposes of determining the correct diagnostic code, did not sever service connection of the disability, as such would violate the statute protecting service connection of disabilities. In this regard, the Federal Circuit noted that specific situs of disability was identified for the first time, disability was not tied to a particular muscle group but to Veteran's inability to perform certain acts, and determination that his wound was incurred in connection with military service was not changed. See also 38 U.S.C.A. §§ 101(16), 1159; VAOPGCPREC 50-91 (Mar. 29, 1991) (holding that 38 U.S.C. § 359 (the previous codification of 38 U.S.C. § 1159 ) does "not prohibit the redesignation of an existing service connected rating to accurately reflect the actual anatomical location of the injury or disease resulting in the Veteran's disability, provided the redesignation does not result in the severance of service connection for the disability in question"). Therefore, as the Board's change in Diagnostic Code pertaining to the evaluation of the Veteran's service-connected right shoulder disability does not sever service connection and, rather, more appropriately captures the nature of his disability, the Board finds that is proper. Furthermore, the Veteran is not prejudiced by this action as it affords him the opportunity for a higher schedular rating than the maximum 10 percent rating available pursuant to DC 5010. The Veteran's right shoulder disability will be evaluated under the criteria of 38 C.F.R. § 4.71a, DCs 5200-5203, which distinguish between the major (dominant) and minor (non-dominant) extremity. The Veteran is shown to be right handed so the criteria and ratings for the major extremity apply. A shoulder disability may be rated based on limitation of motion of the arm pursuant to DC 5201. As it pertains to the major extremity, a 20 percent rating is assigned for limitation of motion at shoulder level, a 30 percent rating is assigned for limitation of motion midway between side and shoulder level, and a 40 percent rating is assigned for limitation of motion to 25 degrees from the side. 38 C.F.R. § 4.71a, DC 5201. Normal range of motion (ROM) of the arm is abduction and forward flexion from zero to 180 degrees each, and internal and external rotation zero to 90 degrees each. See 38 C.F.R. § 4.71a, Plate I. Ratings higher than 10 percent are also available when there is ankylosis of the scapulohumeral articulation (DC 5200), impairment of the humerus (DC 5202) or impairment of the clavicle as shown by malunion or nonunion (DC 5203), but the Veteran is not shown to have such conditions. The Veteran underwent a VA examination in August 2010. The Veteran reported off-and-on pain and stiffness in his right shoulder on lifting and repetitive motion of his right arm. He reported flare-ups in pain-and stiffness which precipitate due to repetitive use; pushing, pulling, and lifting heavy articles; and reaching above his head. The pain and stiffness experienced during flare-ups result in additional impairment of the shoulder joint. On examination, forward flexion was to 160 degrees, internal rotation to 70 degrees, external rotation to 70 degrees, and abduction to 130 degrees. There was crepitus over the acromioclavicular joint on range of motion. There was no pain on motion or change on repetitive motion. Apprehension and stress testing were negative for instability and the Veteran was able to reach his pants' pockets bilaterally. In his April 2011 notice of disagreement, the Veteran reported that if he uses his hand above his head for any length of time, his arm goes to sleep and burns and feels like it has no blood circulation at all. VA treatment records reveal that, since July 2011, the Veteran has been prescribed pain medication to relieve his symptoms. The Board finds that the evidence of record demonstrates that the Veteran's right shoulder degenerative joint disease most closely approximates a 20 percent rating pursuant to DC 5201 for limitation of motion of the arm at the shoulder level. On examination, testing revealed limitations in forward flexion, abduction, and external rotation, however in all three cases the ROM extended well above shoulder level. Internal rotation of the shoulder was also only slightly limited in its ROM. (The entire ROM for internal rotation is below shoulder level). Accordingly, a minimum 20 percent rating pursuant to DC 5201 is not warranted on the basis of objective ROM measurements. The Board finds, however, that a 20 percent rating is warranted on the basis of functional loss due to pain and stiffness during flare-ups which cause additional disability beyond that reflected in the Veteran's ROM measurements. See DeLuca v. Brown, 8 Vet. App. 202 (1995); see also 38 C.F.R. §§ 4.40, 4.45. The Veteran has provided credible reports that he experiences an increase in impairment during flare-ups. Resolving reasonable doubt in his favor, the Board finds that his right shoulder disability is manifested by a limitation of motion of the arm at the shoulder level. See 38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 3.102, 4.3, 4.7. An initial 20 percent rating pursuant to DC 5201 is warranted. The criteria for the next higher rating, 30 percent, have not been met at any point during the rating period on appeal. Objective testing revealed ROM that extended well above the shoulder level. Even considering additional disability caused by flare-ups, there is no evidence that the Veteran's arm is limited in motion from midway between his side and shoulder level. In sum, the evidence supports a 20 percent rating, but no higher, for the right shoulder disability under DC 5201 for limitation of motion in the arm. The Board has considered whether the Veteran's claim warrants referral for consideration of an extraschedular rating. See 38 C.F.R. § 3.321(b). The Board notes that for all musculoskeletal disabilities, the rating schedule contemplates functional loss, which may be manifested by, for example, decreased or abnormal excursion, strength, speed, coordination, or endurance. 38 C.F.R. § 4.40; Mitchell v. Shinseki, 25 Vet. App. 32, 37 (2011). For disabilities of the joints in particular, the rating schedule specifically contemplates factors such as weakened movement; excess fatigability; pain on movement; disturbance of locomotion; and interference with sitting, standing, and weight bearing. 38 C.F.R. §§ 4.45, 4.59; Mitchell, 25 Vet. App. at 37. In summary, the schedular criteria for musculoskeletal disabilities contemplate a wide variety of manifestations of functional loss. Accordingly, the Board finds that all findings and impairment (limitation of motion, functional limitation, pain and stiffness, crepitus, and a burning sensation) associated with the service-connected disability at issue are encompassed by the schedular criteria for the rating assigned. As the Veteran's disability picture is contemplated by the rating schedule, the assigned schedular evaluations for the service-connected right shoulder (and, as explained below, the right ankle) are adequate, both individually and in the aggregate. See Johnson v. McDonald, 762 F.3d 1362 (Fed. Cir. 2014). Thus, referral for consideration of an extraschedular rating is not necessary. See Thun v. Peake, 22 Vet. App. 111 (2008). Right Distal Fibula Fracture Residuals in the Right Ankle The Veteran is currently assigned an initial 10 percent rating for his service-connected right distal fibula residuals in the right ankle pursuant to DC 5271-5262. DC 5262 provides a 20 percent disability rating for impairment of the tibia and fibula with moderate knee or ankle disability; a 30 percent disability rating is warranted when there is impairment of the tibia and fibula with marked knee or ankle disability. 38 C.F.R. § 4.71a, DC 5262. An ankle disability may be rated based on limitation of motion pursuant to DC 5271. A maximum 20 percent rating is assigned for marked limitation of motion. Normal ROM for the ankle is plantar flexion from zero to 45 degrees and dorsiflexion from zero to 20 degrees. See 38 C.F.R. § 4.71a, Plate II. Ratings higher than 10 percent are also available for ankylosis of the ankle (DC 5270), ankylosis of the subastragalar or tarsal joint (DC 5272), malunion of os calcis or astragalus (DC 5273), and for an astragalectomy (DC 5274), but the Veteran is not shown to have such conditions. The words "slight," "moderate," and "severe" are not defined in the VA Schedule for Rating Disabilities. Rather than applying a mechanical formula, the Board must evaluate all of the evidence, to the end that its decisions are "equitable and just." 38 C.F.R. § 4.6. It should also be noted that use of terminology such as "severe" by VA examiners and others, although an element of evidence to be considered by the Board, is not dispositive of an issue. All evidence must be evaluated in arriving at a decision regarding an increased rating. 38 C.F.R. §§ 4.2, 4.6. The Veteran underwent a VA examination in August 2010. He reported that he experiences pain in his right ankle and leg after walking 3 blocks or standing for greater than thirty minutes. He avoids running, cannot jump or jog, is unable to drive long trips, and squatting and climbing stairs causes discomfort. On examination, dorsiflexion was to 15 degrees, plantar flexion was to 35 degrees, inversion was to the full 30 degree range of motion, and eversion was to 10 degrees. On all tests, there was no painful motion or change on repetitive motion. The Veteran presented a normal gait with no callosities or unusual shoe wear patterns that would indicate abnormal weight bearing. There was no ankylosis. There was no malunion or nonunion. X-rays were also performed. They demonstrated mild deformity of the distal fibula likely representing prior trauma. An os trigonum was present. There was no acute fracture or dislocation, and no soft tissue abnormality. There was normal mineralization. The examiner diagnosed a healed fracture of the right distal fibula with residual pain in the right ankle and right leg. In his April 2011 notice of disagreement, the Veteran stated that his right ankle also locks-up and has problems on repetition. The Board finds that the evidence of record demonstrates that the Veteran's right fibula residuals most closely approximate a 20 percent rating pursuant to DC 5271 for marked limitation of motion in the right ankle. Upon examination, the Veteran's ankle did reveal limitation in motion. His plantar flexion was limited to 35 degrees (45 degree range of motion when normal) and dorsiflexion was limited to 15 degrees (20 degree range of motion when normal). The Board also finds the Veteran to be competent and credible in describing his symptoms of locking-up and problems on repetition. See Jandreau v. Nicholson, 492 F.3d 1372 at n. 4 (Fed. Cir. 2007). The Veteran has also provided a credible report of functional loss of his right ankle due to pain causing additional disability beyond that reflected in his range of motion measurements. See DeLuca v. Brown, 8 Vet. App. 202 (1995); see also 38 C.F.R. §§ 4.40, 4.45. He can only walk a few blocks and cannot stand longer than 30 minutes. He cannot jump or jog, he avoids running, is unable to drive on long trips, and squatting and climbing stairs is difficult. In reconciling the lay and medical evidence of record, the Board finds that, when resolving reasonable doubt in the Veteran's favor, his disability most closely approximates the criteria for a 20 percent rating for marked limitation of motion in the right ankle. See 38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 3.102, 4.3, 4.7. The criteria for the next higher rating, 30 percent, have not been met at any point during the rating period on appeal. Under the DCs for the ankle, only DC 5270 provides for a disability rating greater than 20 percent; however, it is not for application as the Veteran's disability is not manifested by ankylosis. Ratings in excess of 20 percent are also available under DC 5262 when there is marked ankle disability, but only in cases where there is also malunion of the tibula or fibula. However, the August 2010 VA examination report reflects that there is evidence of only a healed fracture of the right distal fibula with residual pain in the right ankle and right leg with no evidence of malunion. Because there is no evidence of malunion, a rating in excess of 20 percent is not warranted under DC 5262. In sum, the evidence supports an initial 20 percent rating, but no higher, for the right distal fibula fracture residuals in the right ankle. The Board has considered whether the Veteran's claim warrants referral for consideration of an extraschedular rating. See 38 C.F.R. § 3.321(b). The Board notes that for all musculoskeletal disabilities, the rating schedule contemplates functional loss, which may be manifested by, for example, decreased or abnormal excursion, strength, speed, coordination, or endurance. 38 C.F.R. § 4.40; Mitchell v. Shinseki, 25 Vet. App. 32, 37 (2011). For disabilities of the joints in particular, the rating schedule specifically contemplates factors such as weakened movement; excess fatigability; pain on movement; disturbance of locomotion; and interference with sitting, standing, and weight bearing. 38 C.F.R. §§ 4.45, 4.59; Mitchell, 25 Vet. App. at 37. In summary, the schedular criteria for musculoskeletal disabilities contemplate a wide variety of manifestations of functional loss. Accordingly, the Board finds that all findings and impairment (limitation of motion, functional limitation, pain, locking-up, difficulty on repetition) associated with the disability at issue are encompassed by the schedular criteria for the rating assigned. As the Veteran's disability picture is contemplated by the rating schedule, the assigned schedular evaluations for the service-connected right ankle (and, as explained above, the right shoulder) are adequate, both individually and in the aggregate. See Johnson v. McDonald, 762 F.3d 1362 (Fed. Cir. 2014). Therefore, referral for consideration of an extraschedular rating is not necessary. See Thun v. Peake, 22 Vet. App. 111 (2008). Finally, the issue of entitlement to a total disability rating based on individual unemployability (TDIU) is not raised by the record because the Veteran does not contend, and the evidence does not show, that his service-connected right shoulder and ankle disabilities render him unable to obtain and maintain substantially gainful employment. See Rice v. Shinseki, 22 Vet. App. 447 (2009). ORDER An initial rating of 20 percent for service-connected right shoulder degenerative joint disease is granted. An initial rating of 20 percent for service-connected right distal fibula fracture residuals in the right ankle is granted. ____________________________________________ M. N. HYLAND Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs