Citation Nr: 1547167 Decision Date: 11/06/15 Archive Date: 11/13/15 DOCKET NO. 07-29 096 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUES 1. Entitlement to an initial disability rating in excess of 10 percent for right shoulder bursitis. 2. Entitlement to an initial disability rating in excess of 20 percent for right shoulder bursitis. REPRESENTATION Appellant represented by: Military Order of the Purple Heart of the U.S.A. ATTORNEY FOR THE BOARD R. Williams, Counsel INTRODUCTION The Veteran served on active duty from March 1977 to March 2005. This matter came to the Board of Veterans' Appeals (Board) from a July 2005 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO), which granted service connection for right shoulder bursitis and assigned a noncompensable rating, effective April 1, 2005. In March 2010, the Board, in pertinent part, denied entitlement to an initial compensable rating for right shoulder bursitis. The Veteran filed a timely appeal to the United States Court of Appeals for Veterans Claims (Court). In a July 2011 Order, the Court, in pertinent part, remanded this issue for action consistent with a Joint Motion for Partial Remand (JMPR). This matter was remanded by the Board in January 2012. In a January 2012 rating decision, the RO increased the disability rating for the right shoulder bursitis to 10 percent, effective April 1, 2005. In September 2012, the Board denied entitlement to an initial rating in excess of 10 percent. The Veteran filed a timely appeal to the Court. In an April 2014 Memorandum Decision, the Court vacated and remanded the claim for action consistent with the Memorandum Decision. Subsequently, the Board remanded the claim for an adequate VA examination that assesses the current nature and severity of his service-connected right shoulder disability. This appeal was processed using the VBMS paperless claims processing system. Accordingly, any future consideration of this Veteran's case should take into consideration the existence of this electronic record, in addition to the Veteran's Virtual VA paperless claims file. The issue of entitlement to an initial disability rating in excess of 20 percent for right shoulder bursitis is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. The Veteran is right handed. 2. Manifestations of the Veteran's service-connected right shoulder bursitis include passive flexion to an average of 90 degrees and inability to do overhead lifting during flare-ups. CONCLUSION OF LAW The criteria for a 20 percent rating for right shoulder bursitis have been met. 38 U.S.C.A. § 1155 , 5107 (West 2014); 38 C.F.R. §§ 3.321, 4.1, 4.40, 4.45, 4.71a, Diagnostic Code 5201 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSION 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 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2014). Such notice must include notice that a disability rating and an effective date for the award of benefits will be assigned if there is a favorable disposition of the claim. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006); 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107; 38 C.F.R. §§ 3.159, 3.326; see also Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004). VA has met its duty to notify and assist the Veteran in this case. In this case, notice was provided to the Veteran in April 2005, prior to the July 2005 rating decision. The Veteran was notified of the evidence necessary to substantiate a claim of service connection and VA and the Veteran's respective duties for obtaining evidence. The Veteran's claim arises from his disagreement with the initial evaluation following the grant of service connection. Courts have held that once service connection is granted, the claim is substantiated, additional notice is not required and any defect in the notice is not prejudicial. See Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). Based on the foregoing, no further development is required with respect to the duty to notify. In any event, further VCAA notice was sent to the Veteran in June 2006 and January 2012, and the claim has been readjuicated, most recently in the January 2015 supplemental statement of the case. Thus, the Board concludes that VA satisfied its duties to notify the Veteran. VA has made reasonable efforts to obtain relevant records adequately identified by the Veteran. Specifically, the information and evidence that have been associated with the claims file include the Veteran's service treatment records, private treatment records, VA examination reports, and lay statements. The Veteran was provided with VA examinations in May 2005, August 2009, February 2012, and January 2015. The VA examiners had the opportunity to review the Veteran's case file, examine him and provide thorough details as to the Veteran's disability. The Board notes that in the April 2014 Memorandum decision, it was determined that the Board failed to provide adequate reasons and bases for its finding that the February 2012 VA examination was adequate for rating purposes. To the extent that any prior VA examination was inadequate, the subjective complaints and objective findings contained in those examination are still relevant to the claim. Additionally, in accordance with the April 2014 Memorandum decision, the Board remanded the claim in November 2014 to request available private treatment records and obtain VA treatment reports, and a new VA examination, to include range of motion testing in active and passive and explanation of testing result from the prior VA examination reports. A January 2015 VA examination report has been obtained and the VA examiner noted that the shoulder is not a weightbearing joint and they have no standardized weights for use in that clinic. The Board concludes that that the Board's remand orders have been substantially complied with. See Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (remand not required under Stegall v. West, 11 Vet. App. 268 (1998), where the Board's remand instructions were substantially complied with), aff'd, Dyment v. Principi, 287 F.3d 1377 (Fed. Cir. 2002). Because this decision constitutes a partial grant of the benefits sought on appeal and remand of additional potential benefits, no further discussion regarding VCAA notice or assistance duties is required. Disability Rating Laws and Regulations Disability ratings are determined by applying a schedule of ratings that is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C.A. § 1155; 38 C.F.R., Part 4 (2015). 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 (2015). 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 Veteran working or seeking work. 38 C.F.R. § 4.2 (2015). 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. 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability will be resolved in favor of the Veteran. 38 C.F.R. § 4.3. However, the evaluation of the same disability under various diagnoses, known as pyramiding, is to be avoided. 38 C.F.R. § 4.14. Where, as in this case, the question for consideration is the propriety of the initial ratings assigned, evaluation of the all evidence and consideration of the appropriateness of staged ratings is required whenever the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. See Fenderson v. West, 12 Vet. App. 119, 126 (1999). 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). Functional loss may be due to pain, supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion. 38 C.F.R. § 4.40 (2015). Weakened movement, excess fatigability, incoordination, pain on movement, swelling, deformity, or atrophy of disuse are relevant factors in regard to joint disability. 38 C.F.R. § 4.45 (2015). With any form of arthritis, painful motion is an important factor of disability, the facial expression, wincing, etc., on pressure or manipulation, should be carefully noted and definitely related to affected joints. Muscle spasm will greatly assist the identification. The intent of the schedule is to recognize painful motion with joint or particular pathology as productive of disability. It is the intention to recognize actually painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. Crepitation either in the soft tissues such as the tendons or ligaments, or crepitation within the joint structures should be noted carefully as points of contact which are diseased. Flexion elicits such manifestations. The joints involved should be tested for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with the range of the opposite undamaged joint. 38 C.F.R. § 4.59 (2015). The Veteran is right handed. Accordingly, all disability ratings assigned for his service-connected right shoulder bursitis involve the rating of his major upper extremity. The Veteran's service-connected right shoulder disability (bursitis) is rated under Diagnostic Code 5201-5019 as 10 percent disabling. The rating schedule provides that bursitis should be rated on the limitation of motion of the affected part. 38 C.F.R. § 4.71a, Diagnostic Code 5019 (2015). Limitation of motion of the shoulder joint is rated under Diagnostic Code 5201. 38 C.F.R. § 4.71a. A 20 percent rating for arm motion limited at the shoulder level, major. A 30 percent rating contemplates limitation of motion of the major arm to shoulder level or to midway between side and shoulder level. A 40 percent rating is warranted for limitation of motion of the arm to 25 degrees from the side. 38 C.F.R. § 4.71a, Diagnostic Code 5201. The normal range of motion of the shoulder joint is from 0 degrees to 180 degrees, with 90 degrees being at shoulder level. 38 C.F.R. § 4.71, Plate I (2015). In rendering a decision on appeal the Board must also analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to 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) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). Lay assertions may serve to support a claim for service connection by establishing the occurrence of observable events or the presence of disability or symptoms of disability subject to lay observation. 38 U.S.C.A. § 1154(a) (West 2014); 38 C.F.R. § 3.303(a); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F. 3d 1331, 1336 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence). Lay evidence can be competent and sufficient to establish a diagnosis or etiology when (1) a lay person is competent to identify a medical condition; (2) the lay person 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 (Fed. Cir. 2009). When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the veteran. See 38 U.S.C.A. §5107 (West 2015); 38 C.F.R. § 3.102 (2015). The Board has reviewed all of the evidence in the Veteran's VBMS/Virtual VA claims file. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence of record. Indeed, the Federal Circuit has held that the Board must review the entire record, but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Therefore, the Board will summarize the relevant evidence where appropriate, and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, as to the Veteran's claim. Analysis The Veteran contends that a higher rating is warranted for his service-connected right shoulder disability. The Board notes review of the entirety of the VA outpatient treatment records on file, the VA examination reports of record, and the lay statements of the Veteran. The Veteran was afforded a VA examination in May 2005. The Veteran reported constant pain on a daily basis and that he is not able do any pushups or lifting when the pain is significant. The Veteran has no prosthetic implant and no incapacitation. He has reported missing work about 40 times over the prior year. The Veteran had flexion to 180 degrees, abduction to 180 degrees, external rotation to 90 degrees and internal rotation to 90 degrees. The range of motion was not further limited by pain, fatigue, weakness, lack of endurance or incoordination. There was no ankylosis. The Veteran was afforded another VA examination in August 2009. The examiner had the opportunity to review the Veteran's case file. The examiner noted that the right shoulder was not deformed, did not give way and showed no instability, stiffness or weakness. The examiner noted pain, fatigue and decreased speed of joint motion. The Veteran's right shoulder had flexion to 155 degrees, right abduction to 160 degrees, internal rotation to 75 degrees and external rotation to 90 degrees. The examiner noted objective evidence of pain with active motion and repetitive motion. There was no additional limitation after three repetitions. The examiner noted that the right shoulder bursitis has significant effects on his daily life by precluding sports and recreational activities. The Veteran also reported pain at work. The Veteran underwent another VA examination in February 2012. At that time, he reported burning pain, sharp pain, and discomfort from the right shoulder to elbow. He stated that he avoids lifting above the shoulder height or weights. The Veteran reported flare-ups amounting to sharp pain lasting three days. At least once a month it gets bad. Flexion was to 180 degrees with no objective evidence of painful motion. Abduction was to 150 degrees with no objective evidence of painful motion. He was able to perform repetitive use testing with three repetitions with no changes. He did not have any functional loss and/or functional impairment of the shoulder and arm. He did not have localized tenderness or pain on palpation of joints/soft tissue/biceps tendon. There was no guarding of the shoulder or ankylosis of the glenohumeral articulation. Muscle strength testing was normal and there was no history of mechanical symptoms. Hawkins' improvement test, Crank apprehension and relocation test, and Cross-body adduction test were positive. He did not have impairment of the clavicle or scapula. There was no tenderness on palpation of the AC joint. There was no degenerative or traumatic arthritis documented. The Veteran underwent a recent VA examination in January 2015. At that time, the diagnoses included shoulder impingement syndrome, and acromioclavicular joint arthritis. The Veteran stated that his right shoulder is painful. He described constant aching. He also reported that occasionally, the pain increases, causing more pain, ulnar forearm numbness, paresthesias in the fourth and fifth fingers, and decreased grip. Additionally, the Veteran complained of right scapular pain when he has increased discomfort and functional loss or impairment of overhead use. Upon examination, flexion was to 140 degrees. Abduction was to 110 degrees. External and internal rotation were to 90 degrees. The examiner noted that the range of motion contributes to functional loss in that there are limited overhead views. It was also noted that pain exhibited in flexion and abduction causes functional loss. The Veteran was able to perform repetitive use testing demonstrating no additional functional loss or range of motion after three repetitions. The examiner also stated that the examination supports the Veteran's statements describing functional loss with repetitive use over time. It was noted that pain significantly limits functional ability with flare-ups. The examiner noted additional contributing factors including less movement than normal due to ankylosis, adhesions, etc. Muscle strength was normal (5 out of 5) for right shoulder flexion and abduction, and there was no muscle atrophy. The Hawkins' improvement test, Empty-can test, and Lift-off subscapularis test were all negative. Mild right acromioclavicular joint crepitus was noted and there was tenderness on palpation of the AC joint. Cross-body adduction test was negative. There were no conditions or impairments of the humerus noted. The examiner indicated that the Veteran has concomitant right cubital tunnel syndrome and that the Veteran's glenohumeral joint does not produce significant pain, and averages 90 degrees of flexion and 20 degrees of extension, with 90 degrees each of internal and external rotation, and no decrease with repetition. There were no scars and no use of assistive devices. Degenerative arthritis was documented on imaging studies showing mild acromiclavicular degenerative changes and no major glenohumeral degenerative changes. He concluded that the Veteran's shoulder disability impacted the Veteran's ability to perform any type of occupational task in lifting, especially over the shoulder level. VA treatment records also reflect that the Veteran has complained of shoulder pain and had been treated with Tramadol and Tylenol Based on the VA examination reports detailed above, the Veteran's service-connected right shoulder bursitis has been manifested by forward flexion as low as 140 degrees with pain beginning at 100 degrees, abduction to 130 degrees with pain beginning at 100 degrees, and x-ray evidence of arthritis. Although these findings do not warrant the assignment of a compensable disability rating based upon limitation of motion under Diagnostic Code 5201, the January 2015 VA examiner indicated that passive range of motion of the right glenohumeral joint does not produce significant pain and averages 90 degrees of flexion. The Veteran has consistently reported problems with overhead lifting, especially during flare-ups, which equates to a range of motion limited to shoulder level. Although additional limitation in motion after three repetitions has not been shown; the Veteran's range of motion was noted to be limited by pain. Additionally, the January 2015 VA examiner noted that the examination supports the Veteran's statements describing functional loss with repetitive use over time. In light of the passive range of motion finding of flexion to 90 degrees and the Veteran's statement indicating limitations of overhead lifting, the Board finds that a 20 percent rating is warranted for the Veteran's right shoulder bursitis. In granting a 20 percent rating for the right shoulder bursitis, the Board does not reach the question of whether a rating in excess of the 20 percent is warranted. The question of whether a higher rating may be assigned for the right shoulder disability is addressed in the Remand section below and is remanded for additional development. An inferred claim for a total disability rating based on individual unemployability (TDIU) under Rice v. Shinseki, 22 Vet. App. 447 (2009), has been considered. The Veteran has not alleged that he has been unable to secure or follow substantially gainful employment due to his left shoulder disability and the Board finds that the issue of entitlement to a TDIU has not been reasonably raised by the record or by the Veteran. ORDER A 20 percent rating for right shoulder bursitis is granted. REMAND While the prior examinations have indicated that ankylosis is not present, the January 2015 VA examiner stated that the Veteran has less movement than normal due to ankylosis, adhesions, etc. Additionally, no response was given regarding the separate question specifically addressing ankylosis. The Board notes that the Veteran's representative has specifically stated that a 30 percent rating is warranted. The physician did not indicate during the physical findings section of his statement that the Veteran's humerus and scapula moved as one piece. Prior examinations did not find ankylosis, and ankylosis was not diagnosed in any prior treatment records. As such, on remand, the Veteran should be provided a VA examination to address whether his right shoulder is ankylosed. Accordingly, the case is REMANDED for the following actions: 1. The Veteran must be scheduled for another VA joints examination. The entire claims file must be made available to and reviewed by the examiner. All appropriate tests and studies must be accomplished, and all clinical findings must be reported in detail. The examiner should address the Veteran's limitation of motion in connection with his right shoulder disorder. The examiner should address whether the Veteran has ankylosis of the scapulohumeral articulation (the scapula and humerus move as one piece). The examiner should also assess the extent and impact of any pain and weakness, specifically addressing whether any pain exhibited during range of motion studies functionally limits the Veteran's ability to perform normal movements. With regard to range of motion testing, the examiner must report at what point (in degrees) pain is elicited (including repetitive testing), as well as whether there is any other functional loss due to pain, weakened movement, excess fatigability or incoordination, etc. All functional losses affecting the right shoulder must be equated to additional loss of motion (stated in degrees beyond any loss of motion shown clinically). 2. If the benefit sought remains denied, furnish to the Veteran and his representative an appropriate supplemental statement of the case and afford him the appropriate time period for response before the claims file is returned to the Board for further appellate consideration. The appellant has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014). ______________________________________________ K. J. ALIBRANDO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs