Citation Nr: 1606445	
Decision Date: 02/19/16    Archive Date: 03/01/16

DOCKET NO.  09-41 372	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Chicago, Illinois


THE ISSUE

Entitlement to an increased rating for the residuals of a rotator cuff injury of the left (minor) shoulder with impingement syndrome and degenerative arthritis (left shoulder disability), currently rated as 20 percent disabling. 


REPRESENTATION

Appellant represented by:	Vietnam Veterans of America


ATTORNEY FOR THE BOARD

E. Tamlyn, Counsel



INTRODUCTION

The Veteran served on active duty from December 1962 to 1964, and later completed Army National Guard service.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2007 rating decision issued by the Department of Veterans Affairs Regional Office (RO) in Chicago, Illinois. In that decision, the RO continued the 20 percent rating. 

This claim was remanded by the Board in March 2012 and August 2013. In March 2014, the Board denied an increased rating for the left shoulder disability greater than 20 percent disabling. The Veteran appealed the decision to the United States Court of Appeals for Veterans Claims (Court). In February 2015, pursuant to a Joint Motion for Remand, the Court vacated the March 2014 decision and remanded the matter to the Board for action consistent with the Joint Motion. In July 2015, the Board remanded the claim for a new VA examination. 


FINDING OF FACT

For the time period on appeal, the left (minor) shoulder has not manifested by limitation of motion to 25 degrees from the Veteran's side.


CONCLUSION OF LAW

The criteria for an increased rating beyond 20 percent disabling for the left (minor) shoulder disability have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.40, 4.45, 4.59, 4.71a (& Plate I), Diagnostic Codes (DCs) 5003, 5200-5203 (2015). 


REASONS AND BASES FOR FINDING AND CONCLUSION

VCAA

In a February 2007 letter, the RO satisfied its duty to notify the Veteran under 38 U.S.C.A. § 5103(a) (West 2014) and 38 C.F.R. § 3.159(b) (2015). The RO notified the Veteran of: information and evidence necessary to substantiate the claim; information and evidence that VA would seek to provide; and information and evidence that the he was expected to provide. The Veteran was informed of the process by which initial disability ratings and effective dates are assigned, as required by Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). 

The "duty to assist" contemplates that VA will help a claimant obtain records relevant to the claim, whether or not the records are in Federal custody, and that VA will provide a medical examination when necessary to make a decision on the claim. 38 C.F.R. § 3.159 (2015). VA has done everything reasonably possible to assist the Veteran with respect to his claim for benefits in accordance with 38 U.S.C.A. § 5103A (West 2014) and 38 C.F.R. § 3.159(c) (2015). Relevant service treatment and other medical records have been associated with the claims file. The Veteran was given a VA examination in August 2015, which is fully adequate as it fully addressed rating criteria, included file review, and shows compliance with Mitchell v. Shinseki, 25 Vet. App. 32 (2011) and DeLuca v. Brown, 8 Vet. App. 202 (1995). The Board finds there is enough evidence to proceed with the adjudication of the case as the evidence describes all functional impairment. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). 

The Board finds that there has been substantial compliance with the last remand. See Stegall v. West, 11 Vet. App. 268 (1998). The duties to notify and to assist have been met. 


Increased rating

When rating a service-connected disability, the entire history must be borne in mind. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2014). 

Where, as in the present case, entitlement to compensation has already been established and increase in disability rating is at issue, present level of disability is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). The Board will consider entitlement to staged ratings to compensate for times since filing the claim when the disability may have been more severe than at other times during the course of the claim on appeal. Hart v. Mansfield, 21 Vet. App. 505 (2007). 

Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of the facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159(a)(2) (2015). 

For disabilities evaluated on the basis of limitation of motion, VA is required to apply the provisions of 38 C.F.R. §§ 4.40, 4.45, pertaining to functional impairment. The Court has instructed that in applying these regulations VA should obtain examinations in which the examiner determined whether the disability was manifested by weakened movement, excess fatigability, incoordination, or pain.  Such inquiry is not to be limited to muscles or nerves. These determinations are, if feasible, be expressed in terms of the degree of additional range-of-motion loss due to any weakened movement, excess fatigability, incoordination, flare-ups, or pain. DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Johnston v. Brown, 10 Vet. App. 80, 84-5 (1997); 38 C.F.R. § 4.59 (2006).

The normal range of motion of shoulder for flexion and abduction is from 0 degrees at the side to 180 degrees over head. 38 C.F.R. § 4.71, Plate I (2015). Shoulder level is at 90 degrees, and exactly midway between the side and shoulder level is at approximately 45 degrees.  

The left shoulder, shown throughout the record to be the minor extremity, is currently rated under DC 5201. Under DC 5201, a 20 percent rating is assigned for limitation of the minor or major arm to shoulder level. If there is limitation of the shoulder midway between side and shoulder level a 20 percent rating is also assigned for the minor arm, but a 30 percent rating is assigned for the major arm. If the limitation is 25 degrees from the side, a 30 percent rating is assigned for the minor arm; 40 percent for the major arm. Id. In determining whether a veteran has limitation of motion to shoulder level, it is necessary to consider reports of forward flexion and abduction. See Mariano v. Principi, 17 Vet. App. 305, 314-16 (2003); see also 38 C.F.R. § 4.71, Plate I. 

Ankylosis of the scapulohumeral articulation is addressed under DC 5200 and other impairment of the humerus is covered under 5202. 38 C.F.R. § 4.71a. Finally, impairment of the scapula is addressed under DC 5203. Id. However, the record does not show such DCs are relevant for the Veteran's left shoulder disability. 

Degenerative arthritis is rated under DC 5003. Traumatic 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. See 38 C.F.R. § 4.71a, DCs 5003. Note (1) states that the 20 and 10 percent ratings based on X-ray findings will not be combined with ratings based on limitation of motion. 

The Veteran filed his claim in January 2007, stating his disability had worsened. Reviewing records up to one year prior to that time does not show a limited motion to 25 degrees from the Veteran's side.(see August 2006 VA psychiatry record and September 2006 and December 2006 VA orthopedic records). A February 2007 orthopedic record noted range of motion as follows, "with significant pain in the impingement arc." 


L shoulder
Forward flexion
120/180
Abduction
120/180

The Veteran had a VA examination in March 2007.  He reported continuous left shoulder pain, weakness and stiffness. He also reported redness, fatigability and lack of endurance. The Veteran reported that, on a normal basis, he could not lift his arm more than 80 degrees. The Veteran reported that his range of motion decreased to 45 degrees with flare-ups. 

Upon physical examination, ranges of motion values (with pain) in degrees were as follows: 

L shoulder
Forward flexion
0-120/180
Abduction
0-110/180
External rotation
0-10/90
Internal rotation
0-10/90

He also had extension to 30 degrees, with pain at 30 degrees and adduction to 30 degrees with pain at 30 degrees. Motor strength in the upper extremities was 5/5, except for left hand grip, which was 4/5. Sensation and deep tendon reflexes were intact. There was tenderness to palpation around the shoulder joint. The examiner noted that diagnostic testing showed a partial tear with separation of the supraspinatus muscle from the glenoid labrum. The examiner diagnosed a left shoulder condition, partial tear, with separation of the supraspinatus muscle. The VA examiner noted that ranges of motion during active, passive, and three repetitive motions were the same. The VA examiner indicated that there was no additional functional impairment due to pain, weakness, fatigability, incoordination or flare-ups. There were no assistive devices. There were no incapacitating episodes or radiation of pain and no neurologic findings or effects on usual occupation or daily activities.

Other range of motion measurements taken in the VA orthopedic treatment records do not show forward flexion or abduction at or below 45 degrees (See May and July 2007 VA orthopedic records). In May 2007 he stated he wanted surgery due to pain, but by July he cancelled it stating that his shoulder pain had improved (see July 2007 VA orthopedic record). 

Some VA neurology records showed the Veteran was also being evaluated for cervical spine radiculopathy (see January and December 2010 VA neurology records). However, the ranges of motion recorded also did not show forward flexion or abduction at or below 45 degrees. He did continue treatment for decreased range of motion for the shoulder (see September 2011 and 2012 VA records). 

The Veteran had a VA examination in September 2013. The Veteran reported flare-ups that impacted the function of the left shoulder. He further reported that the flare-ups caused occasional pain. Upon physical examination, ranges of motion values (with pain) in degrees were as follows: 


L shoulder
Forward flexion
0-140/180
Abduction
0-140/180

There was no additional loss of range of motion with repetitive use testing. The examiner noted functional loss and functional impairment of the shoulder and arm. The functional loss included less movement than normal and pain on movement of the shoulder. 

The examiner noted that there was localized tenderness of the shoulder with palpation. There was no guarding of the shoulder. Muscle strength of the shoulder was 5/5 with abduction and 5/5 with forward flexion of the shoulder. The examiner indicated that the Veteran did not have ankylosis of the shoulder joint. The Hawkins impingement test and empty can test were positive for the left shoulder. The external rotation/ infraspinatus strength test and lift-off subscapsularis test were negative. The examiner noted that there was tenderness of the acromioclavicular (AC) joint. The cross-body adduction test was negative. The examiner indicated that there were no other pertinent physical findings related to the noted conditions.
The VA examiner opined that the Veteran's shoulder disability equates to limitation of motion of the arm at the shoulder level. The VA examiner indicated that there was no impairment of the clavicle or scapula, dislocation, nonunion or malunion.

In August 2015, the file was again reviewed and the examiner noted the Veteran had left shoulder impingement syndrome as well as glenohumeral joint osteoarthritis. His dominant hand was on the right. Functional loss consisted of loss of range of motion. It was measured as follows. (Passive range of motion was the same as active.)


L shoulder
Forward flexion
0-100/180
Abduction
0-100/180
External rotation
0-60/90
Internal rotation
0-60/90

Pain noted on examination and caused functional loss in flexion and abduction. There was no evidence of pain with weight-bearing or objective evidence of localized tenderness or pain on palpation of the joint or associated soft tissue. There is no objective evidence of crepitus. There was no additional functional loss or range of motion after three repetitions. The Veteran was able to perform repetitive use testing. There were no other contributing factors of disability. Strength was 5/5; there was no atrophy. There was also no ankylosis. 

Testing confirmed a rotator cuff problem. There was no instability, dislocation or labral pathology. No clavicle, scapula, AC joint or sternoclavicular joint condition was suspected. There were no humerus impairments. He did not use assistive devices. There was no additional increased pain, weakness, fatigability, or incoordination that could significantly limit functional ability during flare-ups, or when the joint is used repeatedly over a period of time. 

In reviewing the record, the Board does not find where the left arm has been limited to 25 degrees from the Veteran's side. As a result, no increase may be found under DC 5201. Because the Veteran is rated under a limitation of motion code, no further increased rating may be found under DC 5003 (the arthritis code). 38 C.F.R. § 4.71a. 

Here, the Board finds that the 2015 VA examiner appropriately determined there was no additional functional loss of range of motion of the shoulder during flare ups. See Mitchell, 25 Vet. App. 32; DeLuca, 8 Vet. App. 202; 38 C.F.R. § 4.59. The examiner also explicitly stated there was no evidence of pain with weight-bearing (see February 2015 Joint Motion). 

The Board finds the Veteran's statements describing the symptom of pain of his service-connected left shoulder are generally competent. 38 C.F.R. § 3.159(a)(2). To the extent that his statements are consistent with the clinical evidence of record, the Board finds the Veteran credible. Pain alone does not constitute functional loss under VA regulations that evaluate disabilities based upon loss of motion. Mitchell, 25 Vet. App. at 38. Where there is a conflict regarding the exact range of motion loss, such as at the 2007 VA examination where the Veteran reported his range of motion decreased to 45 degrees with flare ups, the Board relies on the examination findings as they are recorded in a way to best capture accurate measurement. See, 38 C.F.R. § 4.46 (2015). (In any case, such a range of motion would not result in an increased rating here under 38 C.F.R. § 4.71a, DC 5201.) 

The Board has contemplated whether the case should be referred for extraschedular consideration. An extraschedular disability rating is warranted if the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization that application of the regular schedular standards would be impracticable. 38 C.F.R. § 3.321(b)(1). 

In Thun v. Peake, 22 Vet. App. 111, 115-16 (2008), the Court explained how the provisions of 38 C.F.R. § 3.321 are applied. First, it must be determined whether the evidence presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. The Court indicated that there must be a comparison between the level of severity and symptomatology of the claimant's service-connected disability with the established criteria found in the rating schedule for that disability. Under the approach prescribed by VA, if the criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule, the assigned schedular evaluation is, therefore, adequate, and no referral is required. Id. 

Here, the Board finds the rating schedule adequately addresses the symptoms of the service-connected left shoulder disability, as described above. For example, the evidence shows the Veteran has decreased range of motion in the left shoulder. Such impairment is accounted for in the schedule. 38 C.F.R. § 4.71a. As such, the Board finds that the rating schedule is adequate to evaluate the Veteran's disability picture and no further analysis is necessary. Thun, 22 Vet. App. at 115-16. 

Finally, the Board notes that under Johnson v. McDonald, 762 F.3d 1362 (Fed. Cir. 2014), a Veteran may be awarded an extraschedular rating based upon the combined effect of multiple conditions in an exceptional circumstance where the evaluation of the individual conditions fails to capture all the service-connected disabilities experienced. In this case, however, after applying the benefit of the doubt under of Mittleider v. West, 11 Vet. App. 181 (1998), there are no additional service-connected disabilities that have not been attributed to a specific service-connected condition. Accordingly, this is not an exceptional circumstance in which extraschedular consideration may be required to compensate the Veteran for a disability that can be attributed only to the combined effect of multiple conditions. 

The Board has concluded that the evidence of record shows a rating of 20 percent is warranted for the entire time period on appeal. Hart, 21 Vet. App. 505. The reasonable doubt rule is not for application and the claim is denied. See 38 U.S.C.A. § 5107(b) (West 2014); 38 C.F.R. § 3.102 (2015) (stating any reasonable doubt is to be resolved in favor of the Veteran). 


ORDER

A rating in excess of 20 percent for the residuals of a rotator cuff injury of the left shoulder, with impingement syndrome and degenerative arthritis, is denied.



____________________________________________
ERIC S. LEBOFF
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs