Citation Nr: 1617181 Decision Date: 04/29/16 Archive Date: 05/04/16 DOCKET NO. 10-12 348 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUES 1. Entitlement to an initial rating in excess of 30 percent from September 1, 2007, to January 5, 2014, for migraine headaches. 2. Entitlement to a rating in excess of 50 percent since January 6, 2014, for migraine headaches. 3. Entitlement to an initial rating in excess of 10 percent from September 1, 2007, to January 5, 2014, for left shoulder impingement. 4. Entitlement to a rating in excess of 20 percent since January 6, 2014, for left shoulder impingement. 5. Entitlement to a total disability evaluation based on individual unemployability (TDIU) due to service-connected disabilities. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD P. Olson, Counsel INTRODUCTION The Veteran served on active duty from June 1983 to August 2007. This matter is before the Board of Veterans' Appeals (Board) following a Board remand in September 2013. This matter was originally on appeal from a January 2008 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. Jurisdiction over the claims file is currently held by the RO in Atlanta, Georgia. Although the issue of entitlement to TDIU was not certified for appeal, in Rice v. Shinseki, 22 Vet. App. 447 (2009), the United States Court of Appeals for Veterans Claims (Court) held that the issue of TDIU is part and parcel of an increased rating claim when it is raised by the record. The Board finds that the Veteran has raised the issue of entitlement to TDIU during the pendency of the appeal. Thus, the issue is properly before the Board. As the RO has not had the opportunity to determine whether the Veteran meets the criteria for a TDIU, the issue must be remanded for further development. See Bernard v. Brown, 4 Vet.App. 384, 393 (1993) (noting that "the Board's action on appeal in proceeding to decide a question that the AOJ had not decided raises the possibility that a claimant will be prejudiced by not having been afforded the full benefits of the[] procedural safeguards"). The issues of entitlement to an initial rating in excess of 30 percent from September 1, 2007, to January 5, 2014, for migraine headaches and entitlement to a TDIU are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). The claims file is now entirely in VA's secure electronic processing systems, Virtual VA and Veterans Benefits Management System (VBMS). FINDINGS OF FACT 1. Since January 6, 2014, the Veteran's service-connected migraine headache disability has been assigned a 50 percent rating, which is the maximum schedular rating authorized for headaches under Diagnostic Code 8100. Referral for extraschedular consideration is not warranted. 2. From September 1, 2007 to January 5, 2014, the Veteran's left shoulder disability was not manifested by impairment of the humerus, clavicle or scapula; limitation of arm motion at shoulder level or below, or ankylosis. 3. Since January 6, 2014, the Veteran's left shoulder disability has not been manifested by impairment of the humerus, clavicle or scapula; limitation of arm motion to 25 degrees from side, or ankylosis. CONCLUSIONS OF LAW 1. The criteria for a disability rating greater than 50 percent since January 6, 2014, for migraine headaches have not been met. 38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. §§ 3.321, 4.1, 4.7, 4.124a, Diagnostic Code 8100 (2015). 2. The criteria for an initial evaluation in excess of 10 percent from September 1, 2007 to January 5, 2014, for the Veteran's left shoulder impingement have not been met. 38 U.S.C.A. § 1155; 38 C.F.R. §§ 4.1, 4.7, 4.71a, Diagnostic Codes 5200-5203 (2015). 3. The criteria for an evaluation in excess of 20 percent since January 6, 2014, for the Veteran's left shoulder impingement have not been met. 38 U.S.C.A. § 1155; 38 C.F.R. §§ 4.1, 4.7, 4.71a, Diagnostic Codes 5200-5203. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Preliminary Matters Pursuant to the Board's September 2013 Remand, the Appeals Management Center (AMC), asked the Veteran to identify outstanding private or VA treatment for his left shoulder and migraine headache disorders and provide necessary forms for such treatment, and particularly for treatment records from the Hughston Clinic; provided the Veteran with VA examinations to determine the severity of his left shoulder and migraine headache disorders; readjudicated the Veteran's claim; and issued a Supplemental Statement of the Case. Based on the foregoing actions, the Board finds that there has been compliance with the Board's September 2013 remand. Stegall v. West, 11 Vet. App. 268 (1998). 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) (2015). As service connection, an initial rating, and an effective date have been assigned, the Board finds that the notice requirements of 38 U.S.C.A. § 5103(a) have been met. VA has also fulfilled its duty to assist the Veteran in affording VA examinations, which are adequate to rate the Veteran's claims. See Barr v. Nicholson, 21 Vet.App. 303, 311 (2007) ("[O]nce the Secretary undertakes the effort to provide an examination when developing a service-connection claim . . . he must provide an adequate one."). As noted above, pursuant to the Board's September 2013 remand, the AMC asked the Veteran to identify outstanding private or VA treatment for his left shoulder and migraine headache disorders and provide necessary forms for such treatment, particularly for treatment records from the Hughston Clinic. There is no indication in the record that the Veteran responded to this request. The Veteran underwent VA examination in January 2014 at which time he reported that he had been followed by neurology intermittently and a magnetic resonance imaging (MRI) of the brain was performed in 2013. In addition, the Veteran reported that he has been treated by Hughston Sports Medicine Clinic and had arthroscopic surgery of the shoulder in 2010 and has had multiple joint injections. However, as the Veteran did not provide the authorization form to enable VA to obtain records from Hughston Sports Medicine Clinic, VA is precluded from otherwise attempting to obtain them. Wood v. Derwinski, 1 Vet. App. 190, 193 (1991) (holding that "[t]he duty to assist is not a one-way street"). For the foregoing reasons, the Board concludes that all reasonable efforts were made by VA to obtain all available evidence necessary to substantiate the Veteran's claims as to the issues decided herein. In addition, the Veteran was provided, but declined, the opportunity to present pertinent evidence and testimony. In sum, there is no evidence of any VA error or issue in notifying or assisting the Veteran that reasonably affects the fairness of this adjudication. 38 C.F.R. § 3.159(c). Increased Ratings Disability ratings are determined by applying the criteria set forth in the VA's Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. If two evaluations are potentially applicable, the higher evaluation 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. The Veteran is appealing the original assignment of a disability evaluations following awards of service connection for migraine headaches and left shoulder impingement. As such, it is not the present level of disability which is of primary importance, but rather the entire period is to be considered to ensure that consideration is given to the possibility of staged ratings; that is, separate ratings for separate periods of time based on the facts found. Fenderson v. West, 12 Vet. App. 119 (1999). Migraine Headaches As the issue of entitlement to an initial rating in excess of 30 percent from September 1, 2007, to January 5, 2014, has been remanded for additional development, the remaining issue is whether disability rating in excess of 50 percent is warranted since January 6, 2014. Since January 6, 2014, the Veteran's migraine headaches have been rated as 50 percent disabling pursuant to Diagnostic Code 8100, which provides the maximum rating available for very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. 38 C.F.R. § 4.124a, Diagnostic Code 8100. A 50 percent rating is the maximum schedular rating for migraine headaches under Diagnostic Code 8100. There are no other diagnostic codes that are applicable. See Butts v. Brown, 5 Vet. App. 532, 538 (1993). Hence, as the Veteran has been awarded maximum schedular rating for headaches (50 percent), there is no legal basis upon which to award a higher schedular rating. Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). Although a case may be referred to the Director, Compensation Service, for consideration of an extraschedular rating, see 38 C.F.R. § 3.321(b)(1) (2015), referral requires that there be symptoms not contemplated by the rating criteria. Here, the Board finds that all headache symptoms identified by the Veteran have been specifically contemplated by the criteria for the 50 percent rating that the Veteran is already receiving. See Thun v. Shinseki, 22 Vet.App. 111, 115 (2008) ("[I]f the criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule, . . . and no referral is required."); see also Yancy v. McDonald, 27 Vet.App. 484, 494 (2016) (holding that the first Thun element compares a claimant's symptoms to the rating criteria). Consequently, the Board finds that referral pursuant to § 3.321(b)(1) is not warranted. Left Shoulder Impingement The Veteran's left shoulder impingement has been evaluated as 10 percent disabling from September 1, 2007, to January 5, 2014, and 20 percent disabling since January 6, 2014. Disabilities of the shoulder and arm are rated under 38 C.F.R. § 4.71a, Diagnostic Codes 5200 through 5203. A distinction is made between major (dominant) and minor musculoskeletal groups for rating purposes. The Veteran is reported to be right handed. Diagnostic Code 5200 rates favorable ankylosis of the scapulohumeral joint with abduction to 60 degrees, reaching the mouth and head, as 20 percent disabling for the minor arm. Intermediate ankylosis, between favorable and unfavorable, warrants a 30 percent rating for the minor arm. Unfavorable ankylosis with abduction limited to 25 degrees is assigned a 40 percent rating for the minor arm. Under Diagnostic Code 5201, limitation of motion of the shoulder to shoulder level or midway between the side and shoulder level warrants a 20 percent evaluation for the minor arm. Finally, motion no more than 25 degrees from the side warrants a 30 percent rating for the minor arm. Normal (full) range of motion of the shoulder is forward elevation (flexion) to 180 degrees; abduction to 180 degrees, external rotation to 90 degrees and internal rotation to 90 degrees. 38 C.F.R. § 4.71, Plate I. Under Diagnostic Code 5202, for impairment of the humerus in the major arm, a 20 percent rating is granted when there is malunion with moderate deformity for either arm. Malunion with marked deformity warrants a 20 percent rating for the minor arm. Also under Diagnostic Code 5202, for recurrent dislocations at the scapulohumeral joint, a 20 percent rating is granted with infrequent episodes and guarding of movement only at shoulder level for either arm. When there are frequent episodes and guarding of all arm movements, a 20 percent rating is warranted for the minor arm. Fibrous union of the major arm warrants a 40 percent rating for the minor arm. Nonunion (false flail joint) warrants a 50 percent rating for the minor arm. Loss of head of (flail shoulder) warrants a 70 percent rating for the minor arm. Under Diagnostic Code 5203 for impairment of the clavicle or scapula, a 10 percent evaluation is assigned in cases of malunion or nonunion without loose movement of the arm. A 20 percent evaluation contemplates dislocation or nonunion with loose movement of the arm. Alternatively, the disability may be rated on impairment of function of a contiguous joint. The provisions of 38 C.F.R. §§ 4.45 and 4.59 also contemplate inquiry into whether there is limitation of motion, weakness, excess fatigability, incoordination, and impaired ability to execute skilled movements smoothly, and pain on movement, swelling, deformity, or atrophy of disuse. Instability of station, disturbance of locomotion, interference with sitting, standing, and weight-bearing are also related considerations. The Court has held that diagnostic codes predicated on limitation of motion require consideration of a higher rating based on functional loss due to pain on use or due to flare-ups. 38 C.F.R. §§ 4.40, 4.45, 4.59; Johnson v. Brown, 9 Vet. App. 7 (1997); and DeLuca v. Brown, 8 Vet. App. 202, 206 (1995). The most comprehensive examinations of the Veteran's shoulders were conducted in July 2007 and January 2014. At the July 2007 VA examination, the Veteran reported weakness, being unable to lift heavy objects, stiffness, lack of range of motion, and constant crushing, burning pain of 8/10 level, which reportedly traveled to his left arm making it numb and his hand tingle. The Veteran reported that the pain could be elicited by physical activity and relieved by medication, Motrin 800 milligrams, with no side effects. The Veteran reported that any type of heavy lifting, manual labor, or sleeping on his side, made his shoulder hurt. He reported that he was unable to do any overhead work. Physical examination of the left shoulder demonstrated guarding of movement and positive impingement sign. There was no edema, effusion, weakness, tenderness, redness, heat, abnormal movement, or subluxation. Flexion was to 180 degrees with pain at 160 degrees, abduction was to 170 degrees with pain at 150 degrees, external rotation was to 90 degrees with pain at 80 degrees, and internal rotation was to 60 degrees with pain at 30 degrees. Joint function was additionally limited by pain, weakness, lack of endurance on repetitive use, but there was no additional limitation of joint motion. Neurological examination of the upper extremities revealed that motor, sensory, and reflex functions were within normal limits. Biceps and jerks were 2+. X-ray of the left shoulder was within normal limits. The Veteran was diagnosed as having status post improvised explosive device blast injury with residual of impingement. MRI was normal without arthrogram contrast. The Board finds that an evaluation higher than 10 percent is not warranted prior to January 6, 2014, for left shoulder impingement as the evidence does not demonstrate nonunion or dislocation of the clavicle or scapula, impairment of the humerus, limitation of arm motion at shoulder level or below, or ankylosis. In addition, although the examiner noted pain, weakness, lack of endurance on range of motion testing, there was no additional decrease in motion noted with repetitive use. As such, the Board finds that an initial evaluation in excess of 10 percent for the Veteran's service-connected left shoulder impingement is not warranted at any time prior to January 6, 2014. The Veteran underwent VA examination on January 6, 2014, at which time he reported that he was using Voltaren for pain relief. The Veteran described left shoulder pain occurring intermittently throughout the week with level of 2-7/10. The Veteran denied flares of pain. Physical examination demonstrated flexion to 105 degrees with pain at 105 degrees, abduction was to 90 degrees with pain at 90 degrees. There was additional limitation of left arm motion and functional loss/functional impairment due to less movement than normal, weakened movement, and pain on movement. There was pain on palpation and guarding of the left shoulder. Muscle strength testing was 4/5 on abduction but normal on flexion. Hawkins' Impingement, empty can, and cross body adduction tests were positive. The examiner indicated that there was no AC joint condition or any other impairment of the clavicle or scapula. The examiner indicated that the Veteran had pain, clicking/popping, and weakness due to arthroscopic excision of bone spurs. Although there were scars, they were not noted to be painful, unstable, or of an area greater than 39 square centimeters (6 square inches). The examiner noted that the January 2007 MRI of the left shoulder was unremarkable, that the 2008 MRI showed tendinosis but no tear as well as AC joint arthritis with undersurface spurring and tendinosis and tendinopathy, and that January 2014 x-ray of the left shoulder was normal. The examiner noted that the Veteran's left shoulder arthritis was caused by the left shoulder impingement and his military service. The examiner noted that there was no evidence of ankylosis or neurological impairment of the left shoulder on examination or impairment of the humerus, clavicle, or scapula. The Board finds that an evaluation higher than 20 percent is not warranted since January 6, 2014, for left shoulder impingement as the evidence does not demonstrate nonunion or dislocation of the clavicle or scapula, impairment of the humerus, limitation of arm motion to 25 degrees from side, or ankylosis. In addition, there was only an additional 5 degree loss of flexion noted with repetitive use. As such, the Board finds that an evaluation in excess of 20 percent for the Veteran's service-connected left shoulder impingement is not warranted since January 6, 2014. Finally, the Board accepts that the Veteran is competent to report on his functional impairment related to his left shoulder disability, including his assertions of continued pain. See, e.g., July 2008 NOD. Laypersons are without a doubt competent to report symptoms and events that they experience through their senses. See 38 C.F.R. § 3.159(a)(2); Charles v. Principi, 16 Vet. App 370, 374 (2002). Furthermore, the Board finds the Veteran's own reports of symptomatology to be credible. However, here, the Board finds that the medical findings on examination, which have taken into consideration the Veteran's lay statements as to his symptomatology, do not more nearly reflect the criteria for the next higher evaluation. Thus, the Board finds that the more probative evidence consists of that prepared by neutral, skilled professionals, and such evidence demonstrates that the currently assigned evaluations are appropriate for the Veteran's disability. The Board has considered whether a higher disability evaluation is available under any other potentially applicable provision of the rating schedule. However, a higher evaluation is not warranted based on any other provision of the rating schedule. 38 C.F.R. § 4.71a, Diagnostic Codes 5200-5203. Additional Considerations The discussion above reflects that the symptoms of the Veteran's left shoulder disability are contemplated by the applicable rating criteria. The effects of his disability, including limited motion due to symptoms such as pain, weakness, and lack of endurance have been fully considered and are contemplated in the rating schedule. See Thun, 22 Vet.App. at 115; see also Yancy, 27 Vet.App. at, 494. Thus, consideration of whether the Veteran's disability picture exhibits other related factors such as those provided by the regulations as "governing norms" is not required and referral for an extra-schedular rating is unnecessary. Thun, 22 Vet. App. at 116. Finally, pursuant to Johnson v. McDonald, 762 F.3d 1362 (Fed. Cir. 2014), a veteran may be entitled to "consideration [under 38 C.F.R. § 3.321(b) ] for referral for an extra-schedular evaluation based on multiple disabilities, the combined effect of which is exceptional and not captured by schedular evaluations." Referral for an extraschedular rating under 38 C.F.R. § 3.321(b) is to be considered based upon either a single service-connected disability or upon the "combined effect" of multiple service-connected disabilities when the "collective impact" or "compounding negative effects" of the service-connected disabilities, when such presents disability not adequately captured by the schedular ratings for the service-connected disabilities. Recently, in Yancy, the Court held that, "[a]lthough the Board must consider any combined effects resulting from all of a claimant's service-connected disabilities insofar as they impact the disability picture of the disabilities on appeal, it lacks jurisdiction to consider whether referral is warranted solely for any disability or combination of disabilities not in appellate status, just as it lacks jurisdiction to examine the proper schedular rating for a disability not on appeal." 27 Vet.App. at 496. In this case, the Veteran has not asserted, and the evidence of record has not suggested, any such combined effect or collective impact of multiple service-connected disabilities that create such an exceptional circumstance to render the schedular rating criteria inadequate. See Yancy, 27 Vet.App. at 495 (holding that "[n]othing in Johnson changed the long-standing principle that the issue of whether referral for extraschedular consideration is warranted must be argued by the claimant or reasonably raised by the record"). ORDER Entitlement to an initial rating in excess of 50 percent since January 6, 2014, for migraine headaches is denied. Entitlement to an initial rating in excess of 10 percent from September 1, 2007 to January 5, 2014, for left shoulder impingement is denied. Entitlement to an initial rating in excess of 20 percent since January 6, 2014, for left shoulder impingement is denied. REMAND At the VA examination in January 2014, the Veteran reported that he had been followed by neurology intermittently and that an MRI of the brain was performed in 2013. As it is unclear whether the Veteran was followed privately or by VA for his migraine headaches, it is the Board's opinion that the Veteran should be provided an additional opportunity to clarify this information and enable VA to obtain any VA treatment records. Bell v. Derwinski, 2 Vet. App. 611, 613 (1992) (holding that VA records are considered part of the record on appeal since they are within VA's constructive possession even if not associated with the claims folder). With respect to the issue of entitlement to a TDIU, at the January 2014 VA examination, the examiner noted that the Veteran's headache condition impacted his ability to work and noted that he had to lie down when a migraine headache occurred and he was unable to drive. The Veteran reported that he is prostrate when such migraines occur but that he worked from home periodically and his employer had made accommodations related to his headaches. The VA examiner provided an opinion that the Veteran's headaches did not preclude him from strenuous, light duty, or sedentary labor. As previously noted, if the claimant or the record reasonably raises the question of whether the Veteran is unemployable due to the disability for which an increased rating is sought, then part and parcel of that claim for an increased rating includes the issue of whether a TDIU is warranted. Rice, 22 Vet. App. at 453-54. Therefore, the AOJ should develop and adjudicate the issue of the Veteran's entitlement to a TDIU in the first instance. See Bernard, 4 Vet.App. at 393 Accordingly, the case is REMANDED for the following action: 1. The Veteran should be requested to clarify if he has received any VA or non-VA medical treatment for his migraine headaches prior to January 6, 2014, that is not evidenced by the current record. If so, the Veteran should be provided with the necessary authorizations for the release of any treatment records not currently on file. These records should then be obtained and associated with the claims folder. The Veteran should be advised that he may also submit any evidence or further argument relative to the claim at issue. 2. The AOJ should consider whether the Veteran is entitled to a TDIU under the provisions of 38 C.F.R. § 4.16, based on impairment attributable to his service-connected disabilities, in accordance with Rice, 22 Vet. App. at 447. In so doing, the RO may decide to pursue further development of the Veteran's employment history, educational and vocational attainment, or to obtain additional medical evidence or opinion, as is deemed necessary. 3. The case should be reviewed on the basis of the additional evidence. If the benefit sought is not granted in full, the Veteran and his representative should be furnished a Supplemental Statement of the Case and be afforded a reasonable opportunity to respond before the record is returned to the Board for further review. The appellant has the right to submit additional evidence and argument on the matter or matters 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). ______________________________________________ ANTHONY C. SCIRÉ, JR. Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs