Citation Nr: 1601986 Decision Date: 01/19/16 Archive Date: 01/27/16 DOCKET NO. 09-39 738 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUES 1. Entitlement to a rating in excess of 20 percent for the left (minor) shoulder degenerative joint disease (DJD). 2. Entitlement to service connection for a neck disorder, to include as secondary to the service-connected left shoulder DJD. ATTORNEY FOR THE BOARD J. Ragheb, Associate Counsel INTRODUCTION The Veteran had active service from April 1944 to May 1946. A November 2007 rating decision granted service connection for left shoulder DJD and assigned a 20 percent rating effective February 7, 2007. In February 2008, the Veteran disagreed with the effective date assigned for the left shoulder disability. See February 2008 VA Form 9. In an April 2008 statement, he withdrew the claim for an earlier effective date for the left shoulder disability. In a February 2012 statement, he asserted that he should receive a 20 percent rating for the left shoulder disability retroactive to 1964. If he is intending to file a claim for an earlier effective date for the left shoulder disability, he should file such claim with specificity with the RO. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2015). 38 U.S.C.A. § 7107(a)(2) (West 2014). The issue of service connection for a neck disorder is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). FINDING OF FACT A left shoulder disability is manifested by subjective complaints of limitation of motion; objective findings include pain-free motion of the left arm more than 25 degrees from side throughout the period on appeal. CONCLUSION OF LAW The criteria for a rating in excess of 20 percent for left (minor) shoulder DJD have not been met. 38 U.S.C.A. §§ 1155, 5103(a), 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.321, 4.1, 4.2, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes (DCs) 5010, 5200-5203 (2015). REASONS AND BASES FOR FINDING AND CONCLUSION Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. Where there is a question as to which of two separate evaluations shall be applied, the higher evaluation will be assigned if the disability more closely approximates the criteria required for that particular rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability, such doubt will be resolved in favor of the veteran. 38 C.F.R. § 4.3. While a veteran's entire history is reviewed when assigning a disability rating, where service connection has already been established and an increase in the rating is at issue, it is the present level of disability that is of primary concern. Francisco v. Brown, 7 Vet. App. 55 (1994). In determining the present level of a disability for any increased rating claim, the Board must consider the application of staged ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007). In other words, where the evidence contains factual findings that demonstrate distinct time periods in which the service-connected disability exhibited diverse symptoms meeting the criteria for different ratings during the course of the appeal, the assignment of staged ratings would be necessary. The Veteran is seeking an increased rating for his left shoulder disability. Throughout the period on appeal, the left shoulder disability has been assigned a 20 percent rating under DC 5010-5201. Under DC 5201, limitation of motion of the minor shoulder provides a 20 percent rating is warranted for arm motion limited to shoulder level or midway between the side and shoulder level. A maximum 30 percent rating is warranted for arm motion limited to 25 degrees from side. Additional diagnostic codes provide ratings for the shoulder based on ankylosis (DC 5200), impairment of the humerus (DC 5202), or impairment of the clavicle or scapula (DC 5203). The evidence reflects that the Veteran is right handed; accordingly, his left shoulder disability will be rated as impairment of the minor shoulder under VA regulations. 38 C.F.R. § 4.69. Additionally, the regulations provide that normal range of motion for the shoulder is from 0 to 180 degrees for flexion and abduction, and internal rotation to 90 degrees both up and down. 38 C.F.R. § 4.71, Plate I. DC 5010 is for arthritis due to trauma, substantiated by X-ray findings and provides for rating as degenerative arthritis. DC 5003 provides that degenerative arthritis established by X-ray findings will be rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved (DC 5200, etc.). When however, the limitation of motion of the specific joint or joints involved is noncompensable under the appropriate diagnostic codes, a rating of 10 percent is for application for each such major joint or group of minor joints affected by limitation of motion, to be combined, not added under DC 5003. In this case, the left shoulder disability is rated based on compensable limitation of motion under DC 5201. Accordingly, DCs 5003 and 5010 are not for application. 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 the affected joints. The intent of the rating schedule is to recognize painful motion with joint or periarticular 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. 38 C.F.R. § 4.59. The Board finds that the evidence does establish that left arm motion was limited to 25 degrees from side at any point during the period on appeal. Instead, during the August 2009 VA examination, the Veteran demonstrated pain-free left shoulder flexion to 100 degrees, abduction to 100 degrees, internal rotation to 50 degrees, and external rotation to 80 degrees, even after repetitive use. During the June 2013 VA examination, he demonstrated pain-free left shoulder flexion to 90 degrees, abduction to 60 degrees, internal rotation to 90 degrees, and external rotation to 70 degrees, even after repetitive use. Therefore, the medical evidence reflects that he consistently demonstrated pain-free motion of the left arm more than 25 degrees from side. In an October 2009 VA treatment record, the Veteran asserted that he had difficulty moving his shoulder. As a lay person, he is considered to be competent to report what comes to him through his senses, such as experiencing limited motion of his left arm. Layno v. Brown, 6 Vet. App. 465 (1994). However, to the extent that he was asserting difficulty with moving his left shoulder upon all range of motion, his lay description is contradicted by the medical evidence, even including more recent testing, as discussed above. Instead, during medical evaluation he consistently demonstrated range of motion of his left arm more than 25 degrees from side. The Board places more probative value on the objective evidence of record rather than on his subjective complaints. Therefore, the objective evidence does not establish the Veteran met the criteria associated with a higher 30 percent rating based on limitation of motion at any point during the period on appeal. The Board has also considered whether separate or higher ratings are warranted under the other diagnostic codes related to shoulder. However, the evidence does not establish that the Veteran experienced ankylosis, impairment of the humerus, or impairment of the clavicle or scapula at any point during the period on appeal. Instead, the most recent June 2013 examiner indicated there was no impairment of the humerus, clavicle, or scapula, and no ankylosis of the left shoulder. Therefore, the criteria for a separate or higher rating under alternative diagnostic codes have not been met. 38 C.F.R. § 4.71a, DC 5200, 5202-03. Next, the Board has also considered whether referral for extraschedular consideration is required. 38 C.F.R. § 3.321(b)(1). However, in this case, the medical evidence fails to show anything unique or unusual about the Veteran's left shoulder disability that would render the schedular criteria inadequate. The Veteran's main symptoms were complaints of pain and limited motion with crepitation (similar to pain), symptoms which were specifically contemplated in the schedular ratings that were assigned. In this regard and consistent with the reasoning presented above, the rating schedule is adequate, even in regard to the collective and combined effect of all of the Veteran's service connected disabilities, and that referral for extraschedular consideration is not warranted under the circumstances of this case. Johnson v. McDonald, 762 F.3d 1362, 1365-66 (Fed. Cir. Aug. 6, 2014). Next, 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. In this case, the Veteran filed an expressed claim for TDIU. The record reflects that a September 2013 rating decision denied a TDIU. In November 2013, the Veteran disagreed with the TDIU denial, and in May 2015, the RO issued a statement of the case denying a TDIU. He did not perfect an appeal as to the TDIU issue; accordingly, it is not before the Board on appeal. Finally, as provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist veterans in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 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). In the present case, required notice was provided by a letter dated in August 2009, which informed the Veteran of all the elements required by the Pelegrini II Court as stated above prior to initial AOJ adjudication. Under these circumstances, the notification requirements of the VCAA have been satisfied as to both timing and content. As to VA's duty to assist, 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). VA and private treatment records have been obtained, as have service treatment records. The Veteran was also provided with VA examinations, the reports of which have been associated with the claims file. The VA examiners personally interviewed and examined the Veteran, including eliciting a history from him, and provided the information necessary to evaluate his disability. Therefore, the VA examinations were thorough and adequate, and provided a sound basis upon which to base a decision with regard to the claim. 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 A rating in excess of 20 percent for left shoulder DJD is denied. REMAND With respect to the remaining issue of service connection for a neck disorder, the record reflects that the Veteran underwent a VA examination in June 2013, which appears to show internal inconsistencies. Specifically, the VA examiner indicated that the Veteran was not diagnosed with a cervical spine condition; however, the VA examiner later indicated that X-ray evidence documented arthritis (degenerative joint disease) of the cervical spine. The VA examiner then opined that a cervical spine disorder was not proximately due or the result of the service-connected left shoulder disability reasoning, in part, that the Veteran did not have traumatic arthritis of the neck but had degenerative disc disease. Separately, in a March 2008 letter, Dr. J.K. opined that it was plausible that the Veteran may have suffered a neck injury from the type of head trauma he sustained in an in-service truck accident. Based on these inconsistencies, a remand is needed for clarification. Accordingly, the case is REMANDED for the following actions: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). Expedited handling is requested.) 1. Schedule the Veteran for an examination regarding his neck disorder. Consistent with the factual and medical evidence, the examiner is asked to address the following questions: * Does the Veteran have cervical spine degenerative disc disease, degenerative joint disease, or any other cervical spine disability? * If the Veteran has a cervical spine disability, is it at least as likely as not (50 percent or greater) that his cervical spine disability began during, or was otherwise caused by, active service, including the in-service truck accident? * Is it as likely as not (50 percent or greater) that the service-connected left shoulder disability caused the cervical spine disability? * Is it as likely as not (i.e., probability of 50 percent or more) that the service-connected left shoulder disability aggravated (permanently worsened in severity) the cervical spine disability? The examiner should provide a detailed rationale for all opinions given. If it is the examiner's opinion that there is aggravation, the examiner should identify the baseline level of severity of the cervical spine disability prior to onset of worsening, or by the earliest medical evidence created at any time between onset of worsening and receipt of medical evidence establishing the current level of severity. 2. After completing the foregoing, readjudicate the appeal. If the appeal remains denied, provide the Veteran with a supplemental statement of the case and allow an appropriate time for his response. The Veteran 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). ______________________________________________ L. HOWELL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs