Citation Nr: 1752532 Decision Date: 11/16/17 Archive Date: 11/22/17 DOCKET NO. 12-32 098 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Indianapolis, Indiana THE ISSUE Entitlement to a compensable rating, prior to September 21, 2012, and 10 percent thereafter for residuals of a right clavicle fracture with arthritis. REPRESENTATION Veteran represented by: AMVETS ATTORNEY FOR THE BOARD K. M. Georgiev, Associate Counsel INTRODUCTION The Veteran served on active duty from June 1988 to June 1991. This matter is before the Board of Veterans' Appeals (Board) on appeal of a December 2009 rating decision of the Indianapolis, Indiana, Regional Office (RO) of the Department of Veterans Affairs (VA), which continued a noncompensable rating for the right shoulder disability. A March 2017 rating decision granted a 10 percent increased rating from September 21, 2012. See A.B. v. Brown, 6 Vet. App. 35, 39 (1993) (the claimant is presumed to be seeking the highest possible rating for a disability unless he or she expressly indicates otherwise). TDIU is not raised as there is no indication that the Veteran is unable to work due to his right shoulder disability. Rice v. Shinseki, 22 Vet. App. 447 (2009), the Court held that a claim for a TDIU, either expressly raised by the Veteran or reasonably raised by the record, is part of the claim for an increased rating. FINDINGS OF FACT 1. Prior to September 21, 2012, the Veteran's service-connected residuals of right clavicle fracture were not manifested with malunion or nonunion of the clavicle or scapula. 2. From September 21, 2012 only, the Veteran's service-connected residuals of right clavicle fracture is manifested by limitation of arm motion, but not to the extent that there is limitation of the arm to shoulder level. It does not manifest with impairment of the humerus or clavicle, or with ankylosis. CONCLUSIONS OF LAW 1. Prior to September 21, 2012, the criteria for a compensable rating for residuals of a right clavicle fracture are not met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.159, 4.1-4.14, 4.71a, Diagnostic Code 5203 (2017). 2. As of September 21, 2012, the criteria for an increased rating in excess of 10 percent for residuals of a right clavicle fracture are not met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.159, 4.1-4.14, 4.71a, Diagnostic Codes 5201, 5003 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Veterans Claims Assistance Act of 2000 (VCAA) The notice requirements of 38 U.S.C. § 5103(a) have been met by a September 2009 letter. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007). The Board also concludes VA's duty to assist has been satisfied. The Veteran's service treatment records and VA medical records are in the claims file. Private medical records identified by the Veteran have been obtained, to the extent possible. The Veteran has not referenced outstanding records that he wanted VA to obtain or that he felt were relevant to the claim. The duty to assist also includes providing a medical examination or obtaining a medical opinion when such is necessary to make a decision on the claim. 38 C.F.R. § 3.159(c)(4)(i) (2017). The Veteran was provided several VA examinations during the course of the appeal. As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). Merits of the Right Shoulder Claim The Veteran is right hand dominant. Under Diagnostic Code 5201 for limitation of arm motion, limitation of the arm to shoulder level warrants a 20 percent rating. The criterion for a 30 percent rating, for the major extremity (the right shoulder) is limitation of the arm to midway between the side and shoulder level, that is, 45 degrees. For limitation of motion to 25 degrees from the side, the major extremity is rated at 40 percent. 38 C.F.R. § 4.71a. Under Diagnostic Code 5202, impairment of the humerus, the criteria for a 20 percent rating, the lowest rating, are malunion of moderate deformity, or recurrent dislocation at the scapulohumeral joint with infrequent episodes and guarding of movement only at shoulder level. The criteria for a 30 percent are malunion of marked deformity or recurrent dislocation at the scapulohumeral joint with frequent episodes and guarding of all arm movements. Higher ratings are awarded for findings of fibrous union, nonunion (false flail joint), and loss of the head of the humerus (flail joint). Under Diagnostic Code 5203, impairment of the clavicle, 20 percent is warranted for dislocation, 20 percent is warranted for nonunion with loose movement, 10 percent without loose movement. Malunion of the clavicle is 10 percent. Besides the criteria stated, a higher rating is available for scapulohumeral articulation, ankylosis of, under Diagnostic Code 5200. Normal range of motion in the shoulder is from 0 to 180 degrees of flexion, 0 to 180 degrees of abduction, and 0 to 90 degrees of external and internal rotation. Flexion or abduction limited to 90 degrees equates to shoulder level. 38 C.F.R. § 4.71, Plate I. When evaluating disabilities of the musculoskeletal system, 38 C.F.R. § 4.40 allows for consideration of functional loss due to pain and weakness causing additional disability beyond that reflected on range of motion measurements. See DeLuca v. Brown, 8 Vet. App. 202 (1995). Further, 38 C.F.R. § 4.45 provides that consideration also be given to weakened movement, excess fatigability and incoordination. Under DC 5003, 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. When 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 Diagnostic Code 5003. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. In the absence of limitation of motion, X-ray evidence of involvement of two or more major joints or two or more minor joint groups, warrants a 10 percent evaluation; with the addition of occasional incapacitating exacerbations, a 20 percent evaluation is warranted. 38 C.F.R. § 4.71a, DC 5003. Prior to September 21, 2012 The Veteran appeared for a VA examination in October 2009. The Veteran reported right shoulder pain which radiates down his arm and sometimes occurs with numbness. He stated that this can happen up to two to four times a day lasting for up to 10 to 20 seconds. He stated that he has mild pain on movement of his shoulder on the distal clavicular area. He denied stiffness. The Veteran denied any flare-ups of his pain other than intermittent ache while lifting or on pressure or sometimes without movement. He denied any problems in reaching above his head or to reach his hand backwards behind his head or behind his shoulder blade area. He did not report the disability causing problems in his daily activities. Objective findings reflected no evidence of malunion or nonunion. There was no pain on movement of his shoulder joint with full forward flexion and extension and internal rotation and external rotation. The Veteran was able to move his shoulder up to 180 degrees above his head and also reach his right hand in the lumbar spine area. This did not cause pain. Internal and external rotations were without any pain up to 90 degrees. There was no evidence of ankylosis of the shoulder or the acromioclavicular joint. No joint involvement was noted. The Veteran appeared for a VA examination in April 2012. The Veteran described right shoulder pain which awakens him at night. The Veteran also reported an increase in crepitation, instability and weakness with flare ups. During a flare-up intense pain results in decreased mobility and stamina for lifting pushing or pulling. He stated that he has weight limitations at the right arm with these flare-ups resulting in decreased work productivity and performance at his job. The Veteran stated that he takes prescribed narcotics for pain control and routinely visits the pain management clinic. Objective results reflected that bilateral shoulder flexion ended at 180 degrees and there was no evidence of painful motion. Bilateral abduction ended at 180 degrees and there was no evidence of painful motion. Post three repetitions reflected no additional limitation or pain. There was no functional loss found in the bilateral upper extremities. X-ray evidence found no evidence of acute fractures or dislocations. Arthritis of the right shoulder was found. Regarding functional impact, the Veteran had weight restriction at the right shoulder, reporting that he drops items from the hand with weight greater than 20 pounds resulting from intractable pain at the right shoulder during flare-ups. Based upon the evidence of record, the Veteran's service-connected right shoulder disability does not warrant a compensable rating, prior to September 21, 2012. As previously noted, in order to warrant a compensable or 10 percent rating under DC 5203, the evidence must show nonunion of the shoulder without loose movement or malunion of the shoulder. Such has not been shown in this case. As noted above, the October 2009 VA examiner found no objective findings of malunion or nonunion of the right shoulder during examination testing. As such, a compensable rating prior to September 21, 2012, is not warranted under DC 5203. A compensable rating is also not warranted under DC 5003 for arthritis. While arthritis of the right shoulder was noted at the April 2012 VA examination, the Veteran's arthritis has not been manifested by x-ray evidence showing involvement of two or major joint groups or two or more minor joint groups. Furthermore, as the Veteran's disability rating under Diagnostic Code 5203 contemplates impairment of function of a contiguous joint (i.e., limited, painful motion), a separate 10 percent disability rating for arthritis on the basis of limitation of motion would constitute pyramiding. See 38 C.F.R. § 4.14. The Board has also considered the effects of functional loss. See 38 C.F.R. §§ 4.40, 4.45 (2017); DeLuca v. Brown, 8 Vet. App. 202, 206-07 (1995). During this period, the record reflects that the Veteran had right shoulder pain, less movement than normal, and flare ups. However, the examiners of record never indicated that the Veteran's right shoulder demonstrated forward flexion or abduction was limited to shoulder level or midway between the side and shoulder level as a result of pain. The Veteran also did not experience any additional loss in range of motion as a result of repetitive use testing during the VA examinations. Consequently, the Board does not find that a higher compensable rating is warranted on the basis of functional loss. The Board has fully considered the evidence in light of the benefit-of-the-doubt rule, however, no compensable rating is warranted, prior to September 21, 2012, by the evidence of record. See 38 U.S.C. § 5.107(b) (2012); Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). As of September 21, 2012 VA treatment records dated September 21, 2012 reflected that examination of the right shoulder revealed some increased tenderness to the right acromioclavicular joint. The Veteran had some tenderness to the scapular area. He had some decrease in external rotation. Strength and sensation was intact to his right arm and hand. There was no crepitus or deformities noted. The patient did have tenderness as mentioned to the acromioclavicular joint and the scapular area on palpation during range of motion exercises. Neurovascular status to the lower extremities was intact. The Veteran appeared for a VA examination in September 2016. The Veteran reported unprovoked sharp pain the right shoulder, 3 times weekly, lasting 15-20 seconds. He reported mild loss of range of motion of right shoulder. Right shoulder range of motion was 140 degrees flexion; 160 degrees abduction; 90 degrees external rotation; and 70 degrees internal rotation, all without objective evidence of painful motion. Left shoulder range of motion was 140 degrees flexion; 160 degrees abduction; 90 degrees external rotation; and 80 degrees internal rotation, all without objective evidence of painful motion. There was no objective evidence of localized tenderness or pain on palpation of the joint or associated soft tissue; pain with weight bearing; or crepitus. The Veteran could not attain full overhead reach. The examiner noted no objective evidence of localized tenderness or pain on palpation of the joint or associated soft tissue. The Veteran was able to perform repetitive-use testing with at least three repetitions without any additional loss of function or range of motion. Pain, weakness, fatigability or incoordination did not significantly limit functional ability with repeated use over a period of time. There was no evidence of muscle atrophy or ankylosis. The examiner noted that the clavicle condition affects the range of motion of the right shoulder and there is less movement than normal in both shoulders. There was tenderness on palpation of the AC joint on the right side. Cross-body adduction test was positive on the right side. There was no malunion of the humerus with moderate or marked deformity. X-ray findings revealed degenerative changes in the right AC joint. Based upon the evidence of record, an increased rating in excess of 10 percent is not warranted as of September 21, 2012. VA treatment records dated September 21, 2012 mark the onset of some decrease in external rotation, which supports the increase from a noncompensable rating. The September 2016 VA examination indicates that the Veteran continued to experience some decreased range of motion. The evidence supports that the Veteran's right shoulder condition manifests with arthritis. Under DC 5003, considering the evidence of painful motion and limited motion, 10 percent rating is appropriate. No higher rating than 10 percent is warranted. There is no indication of limitation of the arm to shoulder level for a 20 percent rating under DC 5201. There is no evidence of impairment of the humerus, dislocation of the right shoulder or ankylosis under DCs 5200, 5202 or 5203. The Board has considered 38 C.F.R. § 4.40 which allows for consideration of functional loss due to pain and weakness causing additional disability beyond that reflected on range of motion measurements. See DeLuca v. Brown, 8 Vet. App. 202 (1995). The Board finds a rating of 10 percent from September 21, 2012 adequate to encompass the Veteran's reports of pain and limited motion of the right shoulder. The Veteran's description of symptoms does not support that he suffers from symptoms beyond what is contemplated by the ratings criteria, as discussed above. The Board has fully considered the evidence in light of the benefit-of-the-doubt rule; however, no increased rating is warranted by the evidence of record. See 38 U.S.C. § 5.107(b) (2012); Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). ORDER Entitlement to a compensable rating, prior to September 21, 2012, and 10 percent thereafter for residuals of a right clavicle fracture with arthritis, is denied. ____________________________________________ KRISTI L. GUNN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs