Citation Nr: 1641705 Decision Date: 10/27/16 Archive Date: 11/08/16 DOCKET NO. 09-48 663 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Indianapolis, Indiana THE ISSUES 1. Entitlement to an initial rating for residuals of a dislocated left shoulder (hereinafter "left shoulder disability") in excess of 10 percent. 2. Entitlement to service connection for bilateral heel spurs. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD T. Carter, Counsel INTRODUCTION The Veteran served on active duty in the United States Navy from July 1964 to July 1968. This case comes before the Board of Veterans' Appeals (Board) on appeal from a November 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Indianapolis, Indiana. In September 2015, the Board, in part, remanded the issues of entitlement to an initial rating for a left shoulder disability in excess of 10 percent and entitlement to service connection for bilateral heel spurs for additional evidentiary development. These issues have been returned to the Board for further appellate review. This appeal was processed using the Veterans Benefits Management System (VBMS) and Virtual VA electronic claims file. Accordingly, any future consideration of the case should take into consideration the existence of these electronic records. The issue of entitlement to service connection for bilateral heel spurs is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. Prior to October 14, 2009, the service-connected left shoulder disability was manifested by functional impairment limited by painful motion. 2. From October 14, 2009 to January 18, 2016, the service-connected left shoulder disability was manifested by limitation of arm motion at shoulder level. 3. Since January 19, 2016, the service-connected left shoulder disability has been manifested by functional impairment limited by painful motion, reduction in muscle strength during left shoulder abduction, and muscle atrophy in the left upper extremity. CONCLUSIONS OF LAW 1. The criteria for an initial rating for left shoulder disability in excess of 10 percent prior to October 14, 2009 have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.159, 3.327, 4.1, 4.3, 4.7, 4.21, 4.40, 4.45, 4.71, 4.71a, Diagnostic Codes 5203-5003 (2015). 2. The criteria for an initial rating for left shoulder disability of 20 percent, but no more, as of October 14, 2009 have been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.159, 3.327, 4.1, 4.3, 4.7, 4.21, 4.40, 4.45, 4.71, 4.71a, Diagnostic Codes 5203-5003. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS As service connection, an initial rating, and an effective date have been assigned for the service-connected left shoulder disability, the notice requirements of 38 U.S.C.A. § 5103(a) have been met. With regards to VA's duty to assist, the Veteran was assisted in obtaining identified and available evidence needed to substantive a claim to include where warranted by law, and affording the claimant VA examinations, VA medical opinions, and a hearing before the Board. 38 U.S.C.A. §§ 5103, 5103A. There is no objective or subjective evidence indicating that there has been a material change in the severity of the Veteran's service-connected left shoulder disability on appeal since he was last examined in January 2016. 38 C.F.R. § 3.327(a). The duty to assist does not require that a claim be remanded solely because of the passage of time since an otherwise adequate VA examination was conducted. VAOPGCPREC 11-95; 60 Fed. Reg. 43186 (1995). There is no evidence that additional records have yet to be requested. There was also substantial compliance with the September 2015 remand directives for this claim, as the AOJ obtained and associated with the claims file the Veteran's VA treatment records dated from January 2008 to February 2008, April 2011 to February 2015, and February 2012 to February 2016; January 2016 VA Disability Benefits Questionnaire (DBQ) examination for shoulder and arm conditions; and March 2016 Supplemental Statement of the Case. In sum, there is no evidence of any VA error in notifying or assisting him that reasonable affects the fairness of this adjudication. 38 C.F.R. § 3.159(c). Disability ratings are determined by applying the criteria set forth in 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. When reasonable doubt arises as to the degree of disability, such doubt will be resolved in the veteran's favor. 38 C.F.R. § 4.3. When entitlement to compensation has been established and a higher initial evaluation is at issue, such as for the service-connected left shoulder disability in this case, the level of disability at the time entitlement arose is of primary concern. Consideration must also be given to a longitudinal picture of a veteran's disability to determine if the assignment of separate ratings for separate periods of time, a practice known as "staged" ratings, is warranted. See Fenderson v. West, 12 Vet. App. 119 (1999). If later evidence obtained during the appeal period indicates that the degree of disability increased or decreased following the assignment of the initial rating, "staged" ratings may be assigned for separate periods of time based on facts found. Id; see also Hart v. Mansfield, 21 Vet. App. 505 (2007) (VA's determination of the "present level" of a disability may result in a conclusion that the disability has undergone varying and distinct levels of severity throughout the entire time period the increased rating claim has been pending.). Pertinent regulations do not require that all cases show all findings specified by the Rating Schedule, but that findings sufficiently characteristic to identify the disease and the resulting disability and above all, coordination of rating with impairment of function will be expected in all cases. 38 C.F.R. § 4.21. Therefore, the Board has considered the potential application of various other provisions of the regulations governing VA benefits, whether or not they were raised by the Veteran, as well as the entire history of the Veteran's disabilities in reaching its decision. Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). When evaluating musculoskeletal disabilities, VA may, in addition to applying schedular criteria, consider granting a higher rating in cases in which the claimant experiences additional functional loss due to pain, weakness, excess fatigability, or incoordination, to include with repeated use or during flare-ups, and those factors are not contemplated in the relevant rating criteria. See 38 C.F.R. §§ 4.40, 4.45; DeLuca v. Brown, 8 Vet. App. 202, 204-07 (1995). The provisions of 38 C.F.R. §§ 4.40 and 4.45 are to be considered in conjunction with the diagnostic codes predicated on limitation of motion. See Johnson v. Brown, 9 Vet. App. 7 (1996). Diagnostic Code 5010 provides that arthritis, due to trauma and substantiated by x-ray findings, is rated as degenerative arthritis. See 38 C.F.R. § 4.71a. Degenerative arthritis established by X-ray findings will be rated on the basis of limitation of motion under the appropriate diagnostic code(s) for the specific joint(s) involved. 38 C.F.R. § 4.71a, Diagnostic Code 5003. When limitation of motion of the specific joint involved is noncompensable (0 percent) under the appropriate diagnostic code, a 10 percent rating will be assigned for each major joint or group of minor joints affected by limitation of motion. Id. Diagnostic Code 5201 provides for limitation of motion (for the minor) arm to shoulder level at 20 percent, to midway between side and shoulder level at 20 percent, and to 25 degrees from side at 30 percent. See 38 C.F.R. § 4.71a. Diagnostic Code 5203 provides for (major or minor arm) impairment of clavicle or scapula with malunion at 10 percent, with nonunion without loose movement at 10 percent, with nonunion with loose movement at 20 percent, dislocation at 20 percent, or rate on impairment of function of contiguous joint. Id. When rating limitation of motion of the arm under Diagnostic Codes 5201 and 5203, a distinction is made between major (dominant) and minor extremities. In this case, review of the record reveals the Veteran reported he is right-hand dominant, hence the left arm and shoulder represents the minor extremity. Normal range of motion of the shoulder is flexion (forward elevation) from 0 degrees to 180 degrees, abduction from 0 degrees to 180 degrees, external rotation from 0 degrees to 90 degrees, and internal rotation from 0 degrees to 90 degrees. See 38 C.F.R. § 4.71, Plate I. The Veteran filed his initial claim requesting service connection for a left shoulder disability on January 25, 2005. In the November 2009 VA rating decision, service connection for left shoulder disability was granted as secondary to service-connected bronchial adenoma carcinoid type status post left pneumonectomy. The Veteran was assigned a noncompensable (0 percent) disability rating for the entire appeal period effective from January 25, 2005. See 38 C.F.R. § 4.71a, Diagnostic Code 5203-5003. During the course of this appeal, in an April 2011 VA rating decision, the AOJ increased the disability rating to 10 percent for the entire initial rating period from January 25, 2005 for painful motion based on the October 2009 VA examination for joints. Since the 10 percent disability rating is not the maximum rating available, this issue is listed on the title page accordingly. See AB v. Brown, 6 Vet. App. 35 (1993). As a result, the Board considers whether a rating in excess of 10 percent for left shoulder disability is warranted. Rating prior to October 14, 2009 After review of the pertinent evidence of record as discussed below, the Board finds that the Veteran's service-connected left shoulder disability was manifested by functional impairment limited by painful motion prior to October 14, 2009. While prior to the date of claim in January 2005, the Veteran underwent a VA general medical examination in February 2003. Following the clinical evaluation, the VA examiner noted the Veteran demonstrated full range of motion at all joints, which the Board notes to include the left shoulder. Review of VA treatment records and private treatment records prior to October 14, 2009 show ongoing reports and treatment for left shoulder pain. In a January 2006 VA Form 21-4138, the Veteran reported still having problems with his shoulder, taking medication, and awakening with shoulder pain. In a November 2007 VA Form 21-4138, he reiterated "pain in his left shoulder" and taking over-the-counter medication. No VA examination was afforded to the Veteran during this appeal period prior to October 14, 2009. Notably, the record prior to October 14, 2009, does not show limitation of motion of the shoulder to midway between the side and shoulder level or 25 degrees from the side as contemplated by a higher evaluation under Diagnostic Code 5201. Likewise, the record prior to October 14, 2009, does not show impairment of the clavicle or scapula manifested by nonunion with loss movement or dislocation as contemplated by a higher evaluation under Diagnostic Code 5203. Based on the foregoing, the Board concludes that the criteria for a rating in excess of 10 percent are not warranted prior to October 14, 2009. The 10 percent rating assigned contemplates the Veteran's painful motion in the left shoulder. Rating from October 14, 2009 After review of the pertinent evidence of record as discussed below, the Board finds that the Veteran's service-connected left shoulder disability was manifested by limitation of arm motion at shoulder level from October 14, 2009 to January 18, 2016, and has been manifested by functional impairment limited by painful motion, reduction in muscle strength during left shoulder abduction, and muscle atrophy in the left upper extremity since January 19, 2016. Upon physical evaluation at the October 14, 2009 VA examination for joints, the Veteran demonstrated abduction to 90 degrees at shoulder level and there were no changes following repetitive use testing. With respect to whether there was any additional limitation associated with weight bearing, the examiner noted that there was no weight bearing joint affected and there was no evidence of abnormal weight bearing. Upon physical evaluation at the January 2016 VA DBQ examination for shoulder and arm conditions, the Veteran demonstrated increased abduction to 95 degrees with no change following repetitive use testing. Nevertheless, the VA examiner documented, in addition to painful motion, the Veteran displayed weakened movement due to reduction in muscle strength during left shoulder abduction and muscle atrophy in the left upper extremity by 1.8 centimeters. With respect to whether there was any additional limitation associated with weight bearing, the examiner noted that there was no evidence of pain with weight bearing. Based on the foregoing, the Board concludes that the criteria for a rating of 20 percent are warranted prior to October 14, 2009. However, after review of the pertinent evidence of record as discussed below, the Board finds that the Veteran's service-connected left shoulder disability has not been manifested by ankylosis, limitation of arm motion to 25 degrees from the side, or impairment of the humerus. As such, an initial rating in excess of the currently-assigned 20 percent disability rating is not warranted as of October 14, 2009. At the October 2009 VA examination for joints, the Veteran reported the inability to sleep on his left side due to pain in the shoulder and taking over-the-counter medication twice on a daily basis. He also reported stiffness and weakness in the left shoulder that affects most daily activities, including driving, bathing, and grooming. The examiner noted current symptoms included pain, stiffness, weakness, incoordination, decreased speed, moderate flare-ups every one to two months lasting for (unspecified amount of) hours. Upon physical evaluation, he demonstrated internal rotation to 68 degrees from the side, external rotation to 32 degrees above the shoulder, abduction to 90 degrees at shoulder level, and flexion to 170 degrees above the shoulder. Following repetitive use testing, internal rotation decreased to 60 degrees from the side, external rotation increased to 50 degrees still above the shoulder, abduction remained at 90 degrees, and flexion decreased to 110 degrees still above the shoulder. At the January 2016 VA DBQ examination for shoulder and arm conditions, the Veteran reported that since the July 1979 pneumonectomy he has had pain in the left shoulder when he sleeps on left side, which will awaken him from sleep, and when he experiences cold weather. He characterized the pain as continuous, except when in a warm bath, and fluctuates in intensity. He explained that undressing is altered by removal of the left shirt sleeve as his range of motion is reduced in the left shoulder. A flare-up "feels like someone pulling it out of the socket." Upon physical evaluation, he demonstrated full internal rotation 90 degrees at the side, external rotation to 45 degrees above the shoulder, abduction to 95 degrees above the shoulder, and flexion to 100 degrees above the shoulder with no changes following repetitive use testing and no evidence of pain on weight bearing. In the April 2011 substantive appeal, VA Form 9, the Veteran reported that he has "pain in that shoulder. [He] can only lift 3 - 5 [pounds] of weight[,] can only go so far back and so far up over [his] head [and he] take[s] [Aleve] once or twice a day for pain of [his] shoulder." Moreover, VA treatment records dated from October 14, 2009 do not document the Veteran's range of motion findings of the left shoulder, but includes the Veteran's report in June 2011 for left shoulder pain on/off at bedtime, but not significant. Notably, the record prior from October 14, 2009, does not show limitation of motion of the shoulder to 25 degrees from the side as contemplated by a higher evaluation under Diagnostic Code 5201. In light of the foregoing, the Board concludes that a rating in excess of 20 percent is not met prior to October 14, 2009. Additional Considerations Ankylosis has not been shown throughout both initial appeal periods. In fact, some degree of motion has been shown in the each plane of movement by both VA examiners. See 38 C.F.R. § 4.71a, Diagnostic Code 5200. Impairment of the left humerus has not been shown at any time, as noted by each VA examiner. See 38 C.F.R. § 4.71a, Diagnostic Code 5202. Moreover, impairment of the left clavicle or scapula has not been shown at any time prior to October 14, 2009. See 38 C.F.R. § 4.71a, Diagnostic Code 5203. The Board notes that the maximum rating available under Diagnostic Code 5203 is 20 percent, hence consideration under this criteria as of October 14, 2009 is moot. Id. The Veteran also did not demonstrate limitation of left arm motion at the shoulder level or midway between the side and shoulder level at any time prior to October 14, 2009, limitation to 25 degrees from the side at any time since October 14, 2009, or functional impairment rising to meet the diagnostic criteria for a higher rating during either initial appeal period. See 38 C.F.R. §§ 4.71, Plate I, 4.71a, Diagnostic Code 5201. The Board has considered higher ratings based on the presence of additional functional loss not contemplated in the 10 and 20 percent evaluations based on the provisions of 38 C.F.R. §§ 4.40 4.45, and the holdings in DeLuca. As discussed above, the Board finds that the functional equivalent of arm limitation to shoulder level or to midway between side and shoulder level is not shown to warrant a rating higher than 10 percent prior to October 14, 2009, nor is the functional equivalent of arm limitation to 25 degrees from the side shown to warrant a rating higher than 20 percent as of October 14, 2009. See 38 C.F.R. § 4.71a, Diagnostic Code 5201. Even when considering the Veteran's reported symptomatology for the left shoulder, the Veteran's reported symptoms do not, when viewed in conjunction with the medical evidence, tend to establish additional functional loss that would warrant higher ratings for the service-connected left shoulder disability during the respective appeal periods. The Board has considered the Veteran's reported history of symptomatology related to the service-connected left shoulder disability pursuant to seeking VA compensation benefits and at private treatment sessions and VA treatment sessions and examinations. He is competent to report such symptoms and observations because this requires only personal knowledge as it comes through ones senses. Layno v. Brown, 6 Vet. App. 465, 470 (1994). However, these statements do not rise to a level of competency to identify the specific level of musculoskeletal impairment according to the appropriate diagnostic codes and relevant rating criteria. In this case, such competent evidence concerning the nature and extent of the Veteran's left shoulder disability has been provided in the medical evidence of record. As such, the Board finds these records to be more probative than the Veteran's reported worsened symptomatology. See Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991). As a result of the findings and pertinent evidence of record discussed above, the Board finds that an initial rating in excess of the currently-assigned 10 percent disability rating is not warranted prior to October 14, 2009, and an initial rating of 20 percent, but no more, is warranted as of October 14, 2009. The Board notes that the potential application of various provisions of Title 38 Code of Federal Regulations has been considered, whether or not they were raised by the Veteran. Schafrath, 1 Vet. App. at 595. In particular, the Board notes that a veteran may be awarded an extra-schedular rating under the provisions of 38 C.F.R. § 3.321(b)(1) 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. See Johnson v. McDonald, 762 F.3d 1362 (Fed. Cir. 2014). Thus, the Board considers whether higher ratings are warranted for the service-connected left shoulder disability on an extra-schedular basis. The issue of entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) was granted, effective from July 8, 2008, in a September 2008 VA rating decision. In the September 2015 decision, the Board granted an earlier effective date for the assignment of TDIU from July 1, 1999. Since TDIU has been in effective for the entire initial rating period on appeal, consideration of an extra-schedular evaluation for the Veteran's left shoulder disability is ultimately moot. The Federal Circuit stated that 38 C.F.R. § 3.321(b) fills a gap in those situations in which a veteran's overall disability picture is less than total unemployability but where the disabilities are inadequately represented. Id. ORDER An initial rating for left shoulder disability in excess of 10 percent prior to October 14, 2009 is denied; and an initial rating of 20 percent, but no more, since October 14, 2009 is granted, subject to the regulations governing the award of monetary benefits. REMAND Pursuant to the September 2015 Board remand directives, the Veteran was afforded a VA DBQ examination for foot conditions in January 2016. The examiner completed a physical examination of the Veteran's feet and rendered two contradictory medical conclusions. The examiner noted that it would be purely speculative to render a statement regarding the nature and etiology of the Veteran's heels spurs, but then proceeded to opine that it was less likely likely as not that the Veteran's began in service. As a result, unfortunately, an additional remand is needed to obtain an addendum to the January 2016 VA medical opinion for the issue of entitlement to service connection for bilateral heel spurs. When VA undertakes to provide a VA medical opinion, it must ensure that it is adequate. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). Accordingly, the case is REMANDED for the following actions: 1. Obtain an addendum medical opinion from the January 2016 VA DBQ examiner for foot conditions, or an appropriate clinician for the Veteran's bilateral heel spurs. If the examiner concludes that another examination is required, such should be provided. The entire claims file in VBMS should be made available to and be reviewed by the examiner, and it should be confirmed that such records were available for review. The VA physician must prepare an addendum opinion for the purpose of clarifying whether (a) it would be speculative to provide a medical opinion regarding the nature and etiology of the Veteran's bilateral heel spurs to in-service prolonged standing; or (b) it is less likely as not that the Veteran's bilateral heel spurs began during service or otherwise etiologically related to active service. An explanation for the opinion expressed must be provided. 2. After the development requested has been completed, the AOJ should review the medical opinion to ensure that it is in complete compliance with the directions of this REMAND. If the opinion is deficient in any manner, the AOJ must implement corrective procedures at once. 3. When the development requested has been completed, the case should be readjudicated by the AOJ on the basis of additional evidence. If the benefit sought is not granted, the Veteran should be furnished a Supplemental Statement of the Case (SSOC) and be afforded a reasonable opportunity to respond before the record is returned to the Board for further review. 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). ____________________________________________ DAVID L. WIGHT Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs