Citation Nr: 1601397 Decision Date: 01/13/16 Archive Date: 01/21/16 DOCKET NO. 13-33 555 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Lincoln, Nebraska THE ISSUE Entitlement to a rating in excess of 20 percent for service-connected status post right shoulder rotator cuff repair (right shoulder disability). REPRESENTATION Veteran represented by: The American Legion WITNESSES AT HEARING ON APPEAL The Veteran and his spouse ATTORNEY FOR THE BOARD A. MacDonald, Associate Counsel INTRODUCTION The Veteran had active service from December 1989 to March 1995. This appeal comes to the Board of Veterans' Appeals (Board) from an August 2012 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). In May 2015, the Veteran appeared and provided testimony before the undersigned Veterans Law Judge (VLJ). A transcript of that hearing is associated with the claims file. 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. At the May 2015 hearing, the Veteran was advised that his VBMS file contained additional evidence received by the RO after the most recent supplemental statement of the case was issued. There is no need to remand his case, however, since he waived his right to have the evidence reviewed by the RO in the first instance. Hearing Transcript at 16-17. FINDINGS OF FACT 1. The motion of the Veteran's right arm was not limited to midway between side and shoulder level at any point prior to November 1, 2012. 2. The motion of the Veteran's right arm was limited to midway between side and shoulder level for the period between November 1, 2012 and June 14, 2013. 3. The motion of the Veteran's right arm was not limited to midway between side and shoulder level at any point after June 15, 2013. CONCLUSIONS OF LAW 1. The criteria for an initial rating in excess of 20 percent for service-connected right shoulder disability were not met prior to November 1, 2012. 38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes (DCs) 5200-5203 (2015). 2. A rating not to exceed 30 percent for service-connected right shoulder disability is granted from November 1, 2012 to June 14, 2013. 38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes (DCs) 5200-5203 (2015). 3. The criteria for a rating in excess of 20 percent for service-connected right shoulder disability have not been met at any point after June 15, 2013. 38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes (DCs) 5200-5203 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran is seeking an increased rating for his service-connected right shoulder disability. 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. 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. 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. 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. The Board notes that while the regulations require review of the recorded history of a disability by the adjudicator to ensure an accurate evaluation, the regulations do not give past medical reports precedence over the current medical findings. Where an increase in the disability rating is at issue, the present level of the veteran's disability is the primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). It is also noted that staged ratings are appropriate for an increased rating claim whenever the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007). Throughout the period on appeal, the Veteran has been assigned a 20 percent rating under DC 5201-5203 for his right shoulder disability. Under VA regulations, normal shoulder rotation is forward flexion/elevation and abduction to 180 degrees with internal rotation to 90 degrees bilaterally. 38 C.F.R. § 4.71, Plate I. Furthermore, the evidence reflects the Veteran is right-handed, and therefore his right shoulder is the major, or dominant, shoulder. 38 C.F.R. § 4.69. Under VA regulations, a 20 percent rating for major shoulder is warranted for * Limitation of motion to shoulder level * Infrequent recurrent dislocation of the humerus at the scapulohumeral joint with guarding of movement only at shoulder level * Moderate malunion deformity of the humerus * Nonunion with loose movement or dislocation of the clavicle or scapula A higher 30 percent rating is warranted for: * Favorable ankylosis with abduction to 60 degrees * Arm motion limited to midway between side and shoulder level * Frequent recurrent dislocation of the scapulohumeral joint with guarding of all arm movements * Malunion with marked deformity of the humerus A 40 percent rating is warranted for: * Intermediate ankylosis * Arm motion limited to 25 degrees from side * Fibrous union of humerus In July 2012, the Veteran was provided with a VA examination. During this examination, the Veteran reported he experienced an increase in pain, and subsequent difficulty sleeping, during the past several months. He was scheduled to have surgery later that month to address his increasing symptoms. During the pre-surgery examination, he demonstrated flexion and abduction to 70 degrees, even after repetitive use. Therefore, the Veteran was able to raise his arm in excess of midway between side and shoulder level, the criteria associated with a higher rating, and an increased rating prior to his July 2012 surgery is not warranted. The Veteran then underwent right rotator cuff repair surgery in July 2012. Following his surgery, he was assigned a temporary total disability rating for July 2012 through October 2012 for convalescence under 38 C.F.R. § 4.30. Because the Veteran was assigned a temporary total disability rating during this period, no higher rating is available. Therefore, no further discussion of this period is needed. In November 2012, the Veteran was again assigned a 20 percent rating for his right shoulder disability. However, as well be discussed, the evidence reflects the Veteran's right shoulder disability warranted a temporary, staged rating for 30 percent. In October 2012, the Veteran's right shoulder disability was evaluated following his surgery. Although he demonstrated flexion to 90 degrees, or shoulder level, with assistance, without assistance he only demonstrated 60 degrees of flexion and 45 degrees of abduction. Therefore, while he was able to demonstrate some forward elevation in excess of midway between sides and shoulder level without assistance, his independent abduction movement was limited to midway between side and shoulder level. Furthermore, in a March 2013 written statement the Veteran stated he was unable to raise his shoulder to mid-way or higher. VA regulations provide that any reasonable doubt should be resolved in the Veteran's favor. See 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. Accordingly, and affording all benefit of the doubt to the Veteran, the Board finds the Veteran was only able to lift his arm to approximately midway between his side and shoulder level following his surgery, and met the criteria associated with a higher, 30 percent rating. Because the Veteran was able to raise his arm well above 25 degrees, even without help, a rating in excess of 30 percent was not warranted. Therefore, a higher 30 percent rating is granted effective November 1, 2012. To this limited extent, the Veteran's appeal is granted. Subsequent medical evidence reflects the Veteran's right shoulder disability continued to improve, and therefore was best approximated by the currently assigned 20 percent rating. On June 15, 2013, the Veteran was provided with a VA examination. During the exam, the Veteran demonstrated pain-free flexion to 150 degrees, and pain-free abduction to 100 degrees, even after repetitive use. Because he demonstrated pain-free range of motion well in excess of raising his arm to shoulder level, a rating in excess of 20 percent is not warranted effective the date of the examination. During the exam, the Veteran did report he experienced flare-ups. In an addendum the examiner opined that pain and weakness during these flare-ups could further limit functional ability, however the examiner was not able to determine any additional degree of loss because he was not present during the Veteran's reported flare-ups. The claims file has been carefully reviewed, but does not include any description of the Veteran's additional impairment, if any, during flare-ups of his right shoulder disability. Instead, during his May 2015 hearing, the Veteran stated he was able to move his arm to shoulder level. Hearing Transcript at 21. Therefore, although the evidence reflects the Veteran experiences flare-ups, the evidence does not establish he met the criteria associated with a rating in excess of 20 percent during these period of flare-ups. Instead, subsequent range of motion testing consistently reflected the Veteran was able to raise his arm well beyond midway between side and shoulder level. For example, during March 2014 VA treatment the Veteran demonstrated 120 degrees of forward flexion and 80 degrees of abduction without pain. Accordingly, he was able to raise his arm to shoulder level without pain. Therefore, a continued rating not to exceed 20 percent is warranted. Finally, the evidence does not establish the Veteran experienced ankylosis or dislocation or malunion of the humerus at any point during the period on appeal. Instead, during the July 2012 and June 2013 VA examinations, the examiners specifically noted no ankylosis. Therefore, higher ratings based on these symptoms are not warranted. Based on all the foregoing, an initial rating in excess of 20 percent is denied. Affording all benefit of doubt to the Veteran, a temporary staged rating not to exceed 30 percent is warranted from November 1, 2012 to June 14, 2013. To this limited extent his appeal is granted. However, from the period of June 15, 2013 through the present a rating in excess of 20 percent is denied. The Board has also considered whether referral for consideration of an extraschedular rating is warranted, noting that if an exceptional case arises where ratings based on the statutory schedules are found to be inadequate, consideration of an "extra-schedular" evaluation commensurate with the average earning capacity impairment due exclusively to the service-connected disability or disabilities will be made. 38 C.F.R. § 3.321(b)(1). The Court has held that the determination of whether a claimant is entitled to an extraschedular rating under § 3.321(b) is a three-step inquiry. Thun v. Peake, 22 Vet. App. 111 (2008). 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. If the criteria reasonably describe the veteran's disability level and symptomatology, then the veteran's disability picture is contemplated by the rating schedule and no referral is required. If the criteria do not reasonably describe the veteran's disability level and symptomatology, a determination must be made whether the veteran'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"). See id. Throughout the period on appeal the Veteran has reported experiencing consistent and "tremendous" pain in his right shoulder. During his hearing, he reported that as a result of this pain he could no longer work at his prior career of construction, and now was only able to work a lower-paying part-time job as a cab driver. He stated that as a result of his economic loss, he was forced to move residences, and his children now live with their mother. The Board is sympathetic to the Veteran's reports of pain and resulting economic loss. However, painful motion is specifically considered by the schedular criteria. 38 C.F.R. §§ 4.40, 4.59. In this case, the Board has only considered the Veteran's pain-free motion in assigning the schedular criteria above, and the temporary increased rating assigned was granted, in part, due to his additional functional impairment caused by pain. Therefore, the Veteran's reports of right shoulder pain are specifically contemplated by the schedular criteria, and do not constitute an exceptional disability picture. Furthermore, the Veteran has not asserted that the collective or combined effect of his service-connected disabilities constitutes an exception disability picture. Johnson v. McDonald, 762 F.3d 1362, 1365-66 (Fed. Cir. Aug. 6, 2014). Accordingly, the schedular rating criteria adequately describes the Veteran's disability picture, and no referral for extra-schedular consideration is warranted. Finally, the Board has also considered whether an inferred claim for a total disability rating based on individual unemployability (TDIU) under Rice v. Shinseki, 22 Vet. App. 447 (2009) has been raised. As discussed above, in this case the Veteran has asserted that he was forced to leave his prior job due to pain associated with his right shoulder disability. However, on several occasions the Veteran has been invited by the VA to file a claim for TDIU if he so wished, but declined to do so. For example, in a September 2013 letter the VA noted the Veteran reported he was forced to leave his prior job due to his right shoulder disability, advised the Veteran on his ability to file a claim for TDIU, and enclosed the appropriate form. During his May 2015 hearing, the undersigned VLJ also advised the Veteran that he could file a claim for TDIU. However, to date the Veteran has not submitted any indication of an intention to file for TDIU, or any documentation of his employment history. Furthermore, during his May 2015 hearing he testified that he was now working again as a cab driver, albeit only part-time. Therefore, although the claims file includes some suggestion of loss of employment and wages due to his right shoulder disability, in the factual and legal circumstances of this case, the Board declines to apply Rice and take jurisdiction over a TDIU claim, and, instead REFERS the Veteran to the RO should he wish to complete the necessary paperwork to file a claim. Duties to Notify and Assist Under applicable criteria, VA has certain notice and assistance obligations to veterans. See 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). Notice must be provided to a veteran before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim for VA benefits and must: (1) inform the veteran about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the veteran about the information and evidence that VA will seek to provide; and (3) inform the veteran about the information and evidence the veteran is expected to provide. Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II). With respect to service connection claims, a section 5103(a) notice should also advise a veteran of the criteria for establishing a disability rating and effective date of award. Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 486 (2006). In the present case, required notice was provided by a letter dated in June 2012, which informed the Veteran of all the elements required by the Pelegrini II Court prior to initial AOJ adjudication. The letter also informed the Veteran how disability ratings and effective dates were established. Under these circumstances, the Board finds that the notification requirements of the VCAA have been satisfied as to both timing and content. As to VA's duty to assist, 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). Service treatment records and post-service VA medical records have been obtained. In a September 2012 written statement, the Veteran indicated he had not received any relevant private medical treatment, and during his May 2015 hearing the Veteran stated he had no records with the Social Security Administration. In May 2015, the Veteran was provided with a hearing before the undersigned VLJ. In Bryant v. Shinseki, the United States Court of Appeals for Veterans Claims (Court) held that 38 C.F.R. 3.103(c)(2) requires that the VLJ who conducts a hearing fulfill two duties to comply with the regulation. 23 Vet. App. 488 (2010). They consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. In this case, the VLJ fully explained the issue on appeal. The Veteran was assisted at the hearing by an accredited representative from The American Legion, and the VLJ and the representative asked questions regarding the nature and etiology of the Veteran's claimed right shoulder disability, specifically regarding current severity. In addition, the VLJ sought to identify any pertinent evidence not currently associated with the claims file, and specifically inquired as to oustanding medical records. No such pertinent evidence was identified by the Veteran or his representative. Neither the Veteran nor his representative has asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2) or identified any prejudice in the conduct of the Board hearing. As such, the Board finds that, consistent with Bryant, the VLJ complied with the duties set forth in 38 C.F.R. § 3.103(c)(2), and that any error in notice provided during the Veteran's hearing constitutes harmless error. The Veteran was also provided with two VA examinations, the reports of which have been associated with the claims file. The Board finds the VA examinations were thorough and adequate, and provided a sound basis upon which to base a decision with regard to the Veteran's claim. The VA examiners personally interviewed and examined the Veteran, including eliciting a history from him, and provided the information necessary to evaluate his disability. Furthermore, neither the Veteran nor his representative has voiced any issue with the adequacy of the examinations. As discussed, VA has satisfied its duties to notify and assist, and additional development efforts would serve no useful purpose. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). Because VA's duties to notify and assist have been met, there is no prejudice to the Veteran in adjudicating this appeal. ORDER Entitlement to an initial rating in excess of 20 percent for a right shoulder disability prior to November 1, 2012 is denied. An increased rating of 30 percent is granted for a right shoulder disability from November 1, 2012 to June 14, 2013, subject to the laws and regulations governing the award of monetary benefits. Entitlement to a rating in excess of 20 percent for a right shoulder disability from June 15, 2013 to the present is denied. ____________________________________________ MICHELLE L. KANE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs