Citation Nr: 1753710	
Decision Date: 11/22/17    Archive Date: 12/01/17

DOCKET NO.  12-12 870	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina


THE ISSUES

1.  Entitlement to higher staged initial ratings for left shoulder arthritis and rotator cuff tendonopathy, rated 10 percent prior to May 30, 2016, and 20 percent from May 30, 2016.

2. Entitlement to higher staged initial ratings for lumbosacral strain, rated 10 percent prior to May 30, 2016, and 20 percent disabling from May 30, 2016.  

3. Entitlement to higher staged initial ratings for right knee strain with shin splints, rated noncompensable prior to May 30, 2016, and 10 percent from May 30, 2016.  

4.  Entitlement to a higher staged initial rating for radiculopathy of the right lower extremity, rated 20 percent effective from May 30, 2016.

5.  Entitlement to a higher staged initial rating for radiculopathy of the left lower extremity, rated 20 percent effective from May 30, 2016.

6.  Entitlement to a higher initial rating for right knee instability, rated 10 percent effective from May 30, 2016


REPRESENTATION

Appellant represented by:	Andre L. Batson, Attorney


ATTORNEY FOR THE BOARD

Anthony Flamini, Counsel


INTRODUCTION

The Veteran served on active duty from September April 1987 to April 2007.

These matters come before the Board of Veterans' Appeals (Board) on appeal from an April 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina, which granted entitlement to service connection and assigned initial ratings for the disabilities at issue on appeal, each effective from May 29, 2008.

In January 2015 and April 2017, the Board remanded the matters for additional development.  Specifically, the April 2017 Remand directed that the RO obtain all pertinent updated VA treatment records and then schedule the Veteran for VA examinations to determine the ranges of motion in active motion, passive motion, weight-bearing, and nonweight-bearing for the shoulders, low back, and knees.  Pursuant to the Board's Remand, updated VA treatment records were associated with the claims file in August 2017 and the Veteran was scheduled for additional VA examinations in July 2017, although he failed to report to these examinations.  As such, the Board finds that there has been substantial compliance with its previous remand directives.  See Stegall v. West, 11 Vet. App. 268 (1998); D'Aries v. Peake, 22 Vet. App. 97 (2008) (holding that only substantial, and not strict compliance with the terms of a remand request, is required).

Pursuant to the January 7, 2015 Board remand which included a request for reexamination of the Veteran to include to assess the service-connected low back and right knee disabilities at issue on appeal, a RO rating decision in July 2016 granted additional separate service connection for radiculopathy of the right lower extremity, and assigned a 20 percent initial rating effective from May 30, 2016, granted additional separate service connection for radiculopathy of the left lower extremity, and assigned a 20 percent initial rating effective from May 30, 2016, and granted additional separate service connection for right knee instability, and assigned a 10 percent initial rating, effective from May 30, 2016.  As such matters are part and parcel of the original appeal for higher initial ratings for service-connected lumbosacral strain, and right knee strain with shin splints, and such action does not represent a complete grant of the benefit sought, the matters are before the Board for appellate consideration.

The issues of entitlement to higher staged initial ratings for lumbosacral strain, right knee strain with shin splints, radiculopathy of the right lower extremity, radiculopathy of the left lower extremity, and right knee instability, are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ).


FINDINGS OF FACT

1. Prior to May 30, 2016, the Veteran's left shoulder arthritis and rotator cuff tendonopathy were manifested by pain productive of limitation of range of motion, at worst, of forward elevation to 130 degrees and abduction to 110 degrees.

2.  From May 30, 2016, the Veteran's left shoulder arthritis and rotator cuff tendonopathy were manifested by pain productive of limitation of range of motion, at worst, of forward elevation to 85 degrees and abduction to 80 degrees.



CONCLUSIONS OF LAW

1. The criteria for an initial disability rating in excess of 10 percent for left shoulder arthritis and rotator cuff tendonopathy, prior to May 30, 2016, have not been met.  38 U.S.C.A. §§ 1155, 5103A, 5107 (West 2014); 38 C.F.R. § 4.71a, Diagnostic Code 5201 (2017).

2.  The criteria for an initial disability rating in excess of 20 percent for left shoulder arthritis and rotator cuff tendonopathy, from May 30, 2016, have not been met.  38 U.S.C.A. §§ 1155, 5103A, 5107 (West 2014); 38 C.F.R. § 4.71a, Diagnostic Code 5201 (2017).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I.  The Duty to Notify and the Duty to Assist

Pursuant to the Veterans Claims Assistance Act of 2000 (VCAA), VA has duties 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 and 3.326(a); see also Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006).  The Veteran's filing of a notice of disagreement as to the initial ratings assigned does not trigger additional notice obligations under 38 U.S.C.A. § 5103(a).  38 C.F.R. § 3.159(b)(3) (2016).  Rather, the Veteran's appeal as to the initial rating assignment here triggers VA's statutory duties under 38 U.S.C.A. §§ 5104 and 7105, as well as regulatory duties under 38 C.F.R. § 3.103.  As a consequence, VA is only required to advise the Veteran of what is necessary to obtain the maximum benefit allowed by the evidence and the law.  This has been accomplished here, as the Veteran was issued a copy of the rating decision on appeal, and a statement of the case which set forth the relevant diagnostic codes for rating the disability at issue, and included a description of the rating formulas for all possible schedular ratings under these diagnostic codes.

With respect to the duty to assist, the Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the appellant.  See Bernard v. Brown, 4 Vet. App. 384 (1993).  The claims file contains the Veteran's service treatment records, as well as post-service reports of VA treatment.  Moreover, his statements in support of the claims are of record.  VA examinations with respect to the issues on appeal were obtained in March 2009, February 2012, and May 2016.  38 C.F.R. § 3.159(c)(4).  When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate.  Barr v. Nicholson, 21 Vet. App. 303, 312 (2007).  The Board finds that the examination reports obtained in this case are adequate, as they provided detailed descriptions of the Veteran's service-connected symptomatology which were sufficient for rating purposes.  The Veteran failed to report to subsequent VA examinations scheduled in July 2017 without showing good cause or explaining why he missed these examinations.  While VA has a statutory duty to assist the Veteran in developing evidence pertinent to a claim, the Veteran also has a duty to assist and cooperate with the VA in developing evidence; the duty to assist is not a one-way street.  See Wood v. Derwinski, 1 Vet. App. 190 (1991).  Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion with respect to the issues on appeal has been met.  38 C.F.R. § 3.159(c)(4). 

For the above reasons, no further notice or assistance to the Veteran is required to fulfill VA's duty to assist him in the development of the issues on appeal considered on the merits herein.  Smith v. Gober, 14 Vet. App. 227 (2000), aff'd, 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002).
II.  Increased Rating Claims

II.  Legal Considerations

Disability ratings are determined by the application of VA's Schedule for Rating Disabilities (Rating Schedule), which is based on the average impairment of earning capacity.  Separate diagnostic codes identify the various disabilities.  38 U.S.C.A. 
§ 1155; 38 C.F.R. Part 4 (2017).  Pertinent regulations do not require that all cases show all findings specified by the Rating Schedule, but findings sufficient to identify the disease and the resulting disability, and above all, coordination of the rating with impairment of function will be expected in all cases.  38 C.F.R. § 4.21 (2017); see also Mauerhan v. Principi, 16 Vet. App. 436 (2002). 

Disability of the musculoskeletal system is primarily the inability, due to damage or infection in the parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance.  It is essential that the examination on which ratings are based adequately portray the anatomical damage and the functional loss with respect to all these elements.  The functional loss may be due to absence of part, or all, of the necessary bones, joints, and muscles, or associated structures, or to deformity, adhesions, defective innervation, or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion.  Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled.  38 C.F.R. §§ 4.40, 4.45 (2014); see also DeLuca v. Brown, 8 Vet. App. 202, 206-07 (1995).  Painful, unstable, or malaligned joints, due to healed injury, are entitled to at least the minimum compensable rating for the joint.  38 C.F.R. § 4.59 (2017).  The factors involved in evaluating and rating disabilities of the joints include weakness; fatigability; incoordination; restricted or excess movement of the joint; or pain on movement.  38 C.F.R. § 4.45.

The primary concern in a claim for an increased evaluation for service-connected disability is the present level of disability.  Although the overall history of the disability is to be considered, the regulations do not give past medical reports precedence over current findings.  Francisco v. Brown, 7 Vet. App. 55, 58 (1994).  However, when an appeal is based on the assignment of an initial rating for a disability, following an initial award of service connection for that disability, the rule articulated in Francisco does not apply.  Fenderson v. West, 12 Vet. App. 119 (1999).  Instead, the evaluation must be based on the overall recorded history of a disability, giving equal weight to past and present medical reports.  Id.  In all claims for an increased disability rating, VA has a duty to consider the possibility of assigning staged ratings. See Hart, 21 Vet. App. 505.

Left Shoulder AC Joint Separation

The Veteran's left shoulder arthritis and rotator cuff tendonopathy (previously characterized as acromioclavicular (AC) joint separation) has been rated under Diagnostic Code 5201 for limitation of motion of the arm.  The records reflects that the Veteran is left hand dominant.  Diagnostic Code 5201 provides a 20 percent rating when motion of the major arm is limited to shoulder level (90 degrees).  A 30 percent rating is warranted when motion of the major arm is limited to midway between the side and shoulder level (45 degrees), and a 40 percent rating is provided when motion of the major arm is limited to 25 degrees from the side.  38 C.F.R. § 4.71a, Diagnostic Code 5201.  Normal ranges of motion of the shoulder are flexion (forward elevation) from zero degrees to 180 degrees, abduction from zero degrees to 180 degrees, external rotation from zero degrees to 90 degrees, and internal rotation from zero degrees to 90 degrees.  38 C.F.R. § 4.71, Plate I (2017).

The Veteran is currently assigned a 10 percent rating for his service-connected left shoulder disability prior to May 30, 2016, and a 20 percent rating from May 30, 2016.  Upon review, the Board finds that a higher staged initial rating is not warranted for either period.  First, the evidence does not show the Veteran's range of motion was limited to midway between the side and shoulder level at any time during the appeal period.  See 38 C.F.R. § 4.71a, Diagnostic Code 5201.  At the time of his March 2009 VA examination, the Veteran's ranges of motion were limited to 130 degrees of forward elevation, 110 degrees of abduction, 90 degrees of internal rotation, and 85 degrees of external rotation.  The limitation of motion was secondary to pain.  There was no fatigue, weakness, or lack of endurance, and repetitive motion did not increase the loss in range of motion.  At the time of the February 2012 VA examination, left shoulder flexion and abduction were both limited to 180 degrees, with no objective evidence of painful motion.  He was able to perform repetitive use testing with three repetitions, after which time left shoulder flexion and abduction were both limited to 110 degrees.  The Veteran did not have any functional loss and/or functional impairment of the shoulder and arm, although he did exhibit guarding of the left shoulder and tenderness upon palpation of the left AC joint.  At the time of his May 2016 VA examination, the Veteran's ranges of motion were limited to 85 degrees of forward elevation, 80 degrees of abduction, 40 degrees of internal rotation, and 35 degrees of external rotation, with pain exhibited during all ranges of motion and with weight bearing.  These limited ranges of motion contributed to functional loss while pushing, pulling, lifting, and carrying.  The Veteran was able to perform repetitive use testing with at least three repetitions, with no additional loss of function or range of motion after three repetitions.  There was also objective evidence of crepitus and localized tenderness or pain on palpation of the joint or associated soft tissue.  

The Board has considered whether the Veteran's left shoulder disability resulted in a level of functional loss greater than that already contemplated by the assigned staged initial ratings during the appeal period.  DeLuca, 8 Vet. App. at 206; 38 C.F.R. §§ 4.40, 4.45.  In March 2009, there was no fatigue, weakness, or lack of endurance, and repetitive motion did not increase the loss in range of motion.  In February 2012, he was able to perform repetitive use testing with three repetitions, after which time left shoulder flexion and abduction were both limited to 110 degrees, which still does not meet the criteria for a higher evaluation.  The Veteran did not have any functional loss and/or functional impairment of the shoulder and arm.  In May 2016, although the Veteran's limited ranges of motion contributed to functional loss while pushing, pulling, lifting, and carrying (which is already contemplated by the 20 percent evaluation), he was still able to perform repetitive use testing with at least three repetitions, with no additional loss of function or range of motion after three repetitions.  Even taking DeLuca criteria into consideration, at no time prior to May 30, 2016, was motion of the left arm limited to 90 degrees or less; and at no time since May 30, 2016, was motion of the left arm limited to 45 degrees or less.  As such, the Board finds the evidence does not reflect functional loss for the purposes of 38 C.F.R. §§ 4.40 and 4.45 that is not already contemplated by the assigned ratings, and determines that staged ratings in excess of 10 percent prior to May 30, 2016, and in excess of 20 percent from May 30, 2016, are not warranted.

The Board has also considered whether a higher disability rating or separate disability rating is warranted under other Diagnostic Codes.  See 38 C.F.R. § 4.71a, Diagnostic Codes 5200, 5202, 5203 (2017).  However, treatment records and examination reports do not demonstrate ankylosis of the scapulohumeral articulations or impairment of the clavicle, scapula, or humerus.  

III.  Extraschedular Consideration

The Board has also considered whether the Veteran is entitled to referral for extraschedular consideration for his service-connected left shoulder disability.  Thun v. Peake, 22 Vet. App. 111 (2008).  If there is an exceptional or unusual disability picture, the Board must consider whether the disability picture exhibits other factors such as, marked interference with employment and frequent periods of hospitalization.  Id. at 115-116.  When those two elements are met, the appeal must be referred for consideration of the assignment of an extraschedular rating to the Chief Benefits Director or the Director, Compensation and Pension Service.  38 C.F.R. § 3.321(b)(1) (2017).  

Here, the applicable rating criteria more than reasonably describe the Veteran's disability and symptomatology.  The Veteran has not submitted evidence indicating that his disability or the difficulties flowing from his service-connected disabilities constitute "such an exceptional or unusual disability picture . . . as to render impractical the application of the regular schedular standards."  38 C.F.R. § 3.321(b) (2017).  Musculoskeletal symptoms such as decreased range of motion, pain, stiffness, and weakness are clearly contemplated and provided for in the assigned ratings.  

Further, the Board observes that higher schedular ratings are available under the applicable diagnostic codes, but the facts do not indicate that the Veteran's left shoulder disability warrants higher ratings.  Thus, the Veteran's disability picture is contemplated by the rating schedule, and the assigned schedular evaluations are adequate.  See Thun, 22 Vet. App. at 115.  As the rating criteria reasonably describe the Veteran's disability levels and symptomatology, it is not necessary to consider whether his disabilities cause marked interference with employment or periodic hospitalizations.  38 C.F.R. § 3.321(b) (2017).

The Board notes that under Johnson v. McDonald, 762 F.3d 1362 (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.  However, in this case, 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.

Finally, the Board is cognizant of the ruling of the Court in Rice v. Shinseki, 22 Vet. App. 447 (2009).  In Rice, the Court held that a claim for a total rating based on unemployability due to service-connected disability (TDIU), either expressly raised by the Veteran or reasonably raised by the record involves an attempt to obtain an appropriate rating for a disability and is part of the claim for an increased rating.  In this case, the Veteran has not alleged that he cannot work because of his service-connected left shoulder disability, and the medical evidence does not show that he cannot work because of his service-connected left shoulder disability.  Accordingly, the Board concludes that a claim for TDIU has not been raised.  


ORDER

Entitlement to an initial disability rating in excess of 10 percent for left shoulder arthritis and rotator cuff tendonopathy prior to May 30, 2016, is denied.

Entitlement to an initial disability rating in excess of 20 percent for left shoulder arthritis and rotator cuff tendonopathy from May 30, 2016, is denied.


REMAND

The Board notes that, in evaluating the service-connected low back disability, any associated objective neurologic abnormalities, (including radiculopathy), are to be evaluated separately under an appropriate diagnostic code.  38 C.F.R. § 4.71a, Diagnostic Codes 5235-5243 (2017).  Additionally, VA's General Counsel has held that knee arthritis and instability may be rated separately under Diagnostic Codes 5003 and 5257, while cautioning that any such separate rating must be based on additional disabling symptomatology.  VAOPGCPREC 23-97, 62 Fed. Reg. 63,604 (1997); VAOPGCPREC 9-98, 63 Fed. Reg. 56,704 (1998).  Further, the General Counsel has held that separate ratings under 38 C.F.R. § 4.71a, Diagnostic Code 5260 (limitation of flexion of the leg) and Diagnostic Code 5261 (limitation of extension of the leg), may be assigned for disability of the same joint.  VAOGCPREC 9-2004; 69 Fed. Reg. 59990 (2004).  

As noted above, during the pendency of the appeal for higher initial ratings for service-connected lumbosacral strain and right knee strain with shin splints, a July 2016 rating decision granted additional separate service connection for radiculopathy of the right lower extremity, and assigned a 20 percent initial rating effective from May 30, 2016, granted additional separate service connection for radiculopathy of the left lower extremity, and assigned a 20 percent initial rating effective from May 30, 2016, and granted additional separate service connection for right knee instability, and assigned a 10 percent initial rating, effective from May 30, 2016.  Such matters are part and parcel of the original appeal for higher initial ratings for service-connected lumbosacral strain, and right knee strain with shin splints, and such action does not represent a complete grant of the benefits sought.  However, a supplemental statement of the case as to the matters, to include applicable Diagnostic Codes for separately rating the additional disabilities, has not been issued to the Veteran or his representative.  

As the separate ratings assigned for radiculopathy of the right and left lower extremities, and for right knee instability, are part and parcel of, and inextricably intertwined with, the issues of entitlement to higher initial ratings for service-connected lumbosacral strain, and right knee strain with shin splints, in order to avoid piece-meal litigation, Board adjudication of the issues of entitlement to higher initial ratings for service-connected lumbosacral strain, and right knee strain with shin splints, will be deferred pending completion of the action requested below.  

Accordingly, the case is REMANDED for the following action:

1.  Issue the Veteran and his representative a supplemental statement of the case as to the issues of entitlement to higher initial ratings for service-connected lumbosacral strain, and right knee strain with shin splints, which reflects the July 2016 rating decision award of additional separate service connection, and assignment of initial ratings, for radiculopathy of the right and left lower extremities, and for right knee instability.  All applicable Diagnostic Code criteria must be outlined and discussed.  The Veteran and his representative should be afforded the appropriate period to respond.

2.  Thereafter, all issues on appeal should be returned to the Board for appellate consideration, unless otherwise indicated by the appellant.

The Veteran has the right to submit additional evidence and argument on the 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. §§ 5109B, 7112 (West 2014).


____________________________________________
U. R. POWELL
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs