Citation Nr: 1802979 Decision Date: 01/12/18 Archive Date: 01/23/18 DOCKET NO. 11-05 551 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New Orleans, Louisiana THE ISSUES 1. Entitlement to an initial disability rating in excess of 20 percent for the period from July 1, 2009, to June 2, 2011, for right shoulder degenerative joint disease and scapula fracture status post decompression and repair. 2. Entitlement to an increased disability rating in excess of 30 percent for the period since June 2, 2011, for right shoulder degenerative joint disease and scapula fracture status post decompression and repair. 3. Entitlement to concurrent receipt of disability compensation and military retirement pay from July 1, 2009, through May 1, 2010. REPRESENTATION Veteran represented by: Valerie Norwood, Attorney WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD S. Schick, Associate Counsel INTRODUCTION The Veteran served on active duty in the U.S. Army from November 1999 to February 2003, December 2003 to July 2004, and August 2005 to June 2009. This matter comes before the Board of Veterans' Appeals (Board) on appeal of an October 2009 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO), which granted service connection for the Veteran's right shoulder disability and assigned an initial noncompensable (zero percent) evaluation effective July 1, 2009. In December 2010, the RO granted an initial 10 percent evaluation for the Veteran's right shoulder disability effective July 1, 2009. In February 2013, the RO continued the initial evaluation of 10 percent, increased the evaluation to 20 percent effective April 16, 2010, and further increased the evaluation to 30 percent effective June 2, 2011. In September 2016, the RO increased the initial evaluation to 20 percent effective July 1, 2009, and continued the evaluation of 30 percent effective June 2, 2011. These ratings are less than the maximum benefits available, and because the Veteran is presumed to be seeking the maximum possible rating unless he indicates otherwise (and he has not indicated otherwise), the Board will continue with its adjudication of his appeal. See AB v. Brown, 6 Vet. App. 35, 39 (1993). The Veteran testified at a September 2013 Central Office hearing before the undersigned Veterans Law Judge (VLJ), and the transcript of that hearing has been associated with the claims file. In April 2014 and March 2017, the Board remanded the appeal for additional development. The case has since returned to the Board for appellate review. The issue of an earlier start date for his concurrent receipt of disability compensation and military retirement pay is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. For the entire period on appeal, the Veteran's right shoulder condition (major) has had limitation of motion midway between side and shoulder level. 2. At no time during the appeal period has the Veteran's right shoulder condition (major) been functionally limited to 25 degrees from the side. CONCLUSIONS OF LAW 1. For the entire period on appeal, the criteria for a 30 percent disability rating for a right shoulder disability have been met. 38 U.S.C. §1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.3, 4.40, 4.45, 4.71a, Diagnostic Code (DC) 5201 (2017). 2. For the entire period appeal period, the criteria for a disability rating in excess of 30 percent for a right shoulder disability have not been met. 38 C.F.R. §§ 4.1, 4.3, 4.40, 4.45, 4.71a, DC 5201 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist VA's duties to notify and assist claimants in substantiating a claim for VA benefits are found at 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (2012) and 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2017). The Veteran and his representative have not raised issues with the duty to notify or duty to assist. See Scott v McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to duty to assist argument). II. Increased Rating General Rating Criteria Disability ratings are determined by applying the criteria set forth in the VA Schedule of Rating Disabilities (Rating Schedule) and are intended to represent the average impairment of earning capacity resulting from disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the Veteran's condition. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). Staged ratings are appropriate for any rating claim when the factual findings show distinct time periods during the appeal period where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007); Fenderson v. West, 12 Vet. App. 119 (1999). When a reasonable doubt arises regarding the degree of disability, such doubt will be resolved in favor of the claimant. 38 C.F.R. § 4.3. If there is a question as to which evaluation to apply, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. The Board must determine whether a higher evaluation is warranted under any applicable diagnostic code. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). The Veteran's right shoulder condition is currently rated under the Schedule of Ratings for the musculoskeletal system 38 C.F.R. § 4.71a. The Board notes that, 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, 204-7 (1995). The provisions of 38 C.F.R. § 4.40 and 38 C.F.R. § 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). Factual Background The Veteran was afforded an April 2009 VA general medical examination. Musculoskeletal examination of the bilateral extremities revealed no joint swelling, effusion, tenderness, or laxity; no joint ankylosis; and no objective joint abnormalities. Right shoulder range of motion testing revealed flexion of zero to 180 degrees; abduction of zero to 180 degrees; internal rotation of zero to 45 degrees; and external rotation of zero to 20 degrees. The examination report indicated that there was no objective evidence of pain following repetitive motion and there were no additional limitations after three repetitions of range of motion. In his November 2009 notice of disagreement (NOD), the Veteran indicated disagreement with the April 2009 VA examination report finding that there was no objective evidence of painful motion. The Veteran asserted that he continues to suffer pain at rest and during movement and he has limited range of motion. A January 2010 private hospital clinical progress note indicated the Veteran's shoulders revealed no atrophy of the supraspinatus or infraspinatus fossa. He had active range motion. Forward elevation was at 170 degrees on the left side and 90 degrees on the right side with further passive elevation to 120 degrees, external rotation was 20 degrees on the left and 10 degrees on the right. A March 2010 operative note indicated that preoperatively, the Veteran's range of motion consisted of 10 degrees of external rotation and 90 degrees of forward elevation. Following capsular release, he had 45 degrees of external rotation and forward elevation to 170 degrees. A June 2010 private hospital and clinic note indicated that in March 2010 the Veteran had right shoulder arthroscopic capsular release, subacromal decompression, and repair surgery. The Veteran was noted as three months out from surgery and not doing very well. Symptoms included pain with any movement of the shoulder, stiff shoulder, and trouble getting his arm above his head or behind his back. A May 2011 provider note indicated that he Veteran had two right shoulder arthroscopic surgeries in 2007 and 2010, but complained of chronic right shoulder pain and atrophy. An April 2011 private treatment record indicated that the Veteran reported his right shoulder pain had been progressing, movement aggravated his pain, and pain restricted his range of motion. A June 2011 private sports medicine institute note indicated the Veteran' right shoulder pain caused him to be unable to reach a high shelf, unable to lift 19 pounds, and unable to throw a ball overhead. He reported experiencing right shoulder popping, clicking, weakness, and instability (4/10). Right shoulder range of motion testing revealed active flexion of 50 degrees with moderate pain; passive flexion of 70 degrees with moderate pain; active abduction of 40 degrees; and passive abduction of 70 degrees. A January 2012 VA orthopedic surgery consult note indicated the Veteran's right shoulder range of motion was zero to 140 degrees forward flexion and zero to 40 degrees abduction with most of his motion through scapula rotation. The Veteran submitted a September 2013 Statement in Support of Claim wherein he indicated that he experienced increasing pain on range of motion as evidenced by his medical treatment records. September 2013VA primary care notes and October 2013 VA record review notes indicated that pain in the Veteran's right shoulder was continuously present and fluctuated in intensity, with pain levels varying from level one to 10. The pain impaired abduction, flexion, and extension of the right arm. His dominant upper extremity was his right upper extremity. An August 2014 VA primary care note revealed right shoulder pain and restricted range of motion, pain impaired ability to use right upper extremity, which was his dominant upper extremity, so he often compensated with use of non-dominant (left) upper extremity. The Veteran was afforded an August 2016 VA shoulder examination and the examination report indicated diagnoses of right shoulder degenerative arthritis and fracture, scapula, status-post decompression and repair. The Veteran reported that he experiences pain with movement of his right arm. He reported that repetitive motion with his right arm causes right shoulder pain. The Veteran reported that his pain is in the posterior area of right shoulder and it extended to the joint on top of the right shoulder. The Veteran is right hand dominant. Right shoulder initial range of motion testing abnormal or outside of normal range results with flexion zero to 100 degrees out of zero to 180 degrees; abduction zero to 90 degrees out of zero to 180 degrees; and external rotation zero to 90 degrees out of zero to 90 degrees. The examination report indicated that range of motion itself contributed to functional loss explained as being unable to lift right arm greater than 100 degrees. Pain was noted on examination and caused functional loss and ranges of motion that exhibited pain were noted as flexion, abduction, and internal rotation. There was evidence of pain with weight bearing. There was no evidence of localized tenderness or pain on palpation of the joint or associated soft tissue. There was evidence of crepitus. The Veteran was able to perform repetitive use testing with at least three repetitions and there was no additional functional loss or range of motion. The Veteran was being examined immediately after repetitive use over time and pain, weakness, fatigability, or incoordination did not significantly limit functional ability with repeated use over a period of time. The Veteran did not have right side ankylosis. A right rotator cuff condition was suspected. Hawkins' Impingement Test was positive; Empty-can Test was positive; External Rotation/Infraspinatus Strength Test was positive; and Lift-off Subscapularis Test was positive. There was no shoulder instability, dislocation, or labral pathology suspected. There was no clavicle, scapula, acromioclavicular (AC) joint, or sternoclavicular joint condition suspected. There was no clavicle, scapula, acromioclavicular (AC) joint, or sternoclavicular joint condition suspected. He did not have loss of head (flail shoulder), nonunion (false flail shoulder), or fibrous union of the humerus. He did not have malunion of the humerus with moderate or marked deformity. A March 2017 VA primary care note indicated the Veteran reported right shoulder symptoms including restricted range of motion. The Veteran was afforded a September 2017 VA shoulder examination and the examination report indicated diagnoses of right shoulder degenerative arthritis and fracture, scapula, status-post decompression and repair. He reported right shoulder symptoms of constant throbbing pain in the shoulder and decreased range of motion in the shoulder. The Veteran reported no flare-ups of the shoulder or arm. The Veteran reported right shoulder functional loss or functional impairment including that he is unable to lift his right arm above shoulder height (in addition he has the same problem with his left shoulder). Right shoulder initial range of motion testing abnormal or outside of normal range results with flexion zero to 100 degrees out of zero to 180 degrees; abduction zero to 90 degrees out of zero to 180 degrees; external rotation zero to 15 degrees out of zero to 90 degrees; and internal rotation zero to 45 degrees out of zero to 90 degrees. The examination report indicated that range of motion itself contributed to functional loss described as being unable to arm over shoulder level, therefore unable to do overhead work. Pain was noted on examination and caused functional loss and ranges of motion that exhibited pain were noted as flexion, abduction, and internal rotation, external, and internal. . There was evidence of pain with weight bearing. There was no evidence of localized tenderness or pain on palpation of the joint or associated soft tissue. There was evidence of crepitus. The Veteran was able to perform repetitive use testing with at least three repetitions and there was no additional functional loss or range of motion. The Veteran did not have right side ankylosis. A right rotator cuff condition was suspected. Hawkins' Impingement Test was positive; Empty-can Test was positive; External Rotation/Infraspinatus Strength Test was positive; and Lift-off Subscapularis Test was positive. There was no shoulder instability, dislocation, or labral pathology suspected. A clavicle, scapula, acromioclavicular (AC) joint, or sternoclavicular joint condition was suspected identified as bilateral degenerative joint disease. The clavicle or scapula condition did not affect range of motion of the shoulder (glenohumeral) joint. There was no tenderness to palpitation of the AC joint. Cross-body adduction testing was positive bilaterally. He did not have loss of head (flail shoulder), nonunion (false flail shoulder), or fibrous union of the humerus. He did not have malunion of the humerus with moderate or marked deformity. The examiner remarked that there was evidence of pain on passive range of motion testing on both shoulders and there was evidence of pain when the joint was used in non-weight bearing in both shoulders. Analysis The Veteran seeks a rating in excess of 20 percent from July 1, 2009, and in excessive of 30 percent from June 2, 2011. He indicated that he continues to suffer pain at rest and during movement and has limited range of motion. See November 2009 NOD. The Veteran's right shoulder disability is currently rated pursuant to 38 C.F.R. § 4.71a, DC 5201. Under the schedule, DC 5201 is used in rating limitation of motion of the arm. His right shoulder disability is evaluated under the criteria for a major extremity because, as noted in the evidence above, he is right- handed. DC 5201 provides that limitation of motion of the arm at the shoulder level is rated 20 percent for the major shoulder and 20 percent for the minor shoulder. Limitation of motion of the arm midway between the side and shoulder level is rated as 30 percent for the major shoulder and 20 percent for the minor shoulder. Limitation of motion of the arm to 25 degrees from the side is rated as 40 percent for the major shoulder and 30 percent for the minor shoulder. 38 C.F.R. § 4.71a. Standard 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. Forward flexion and abduction to 90 degrees amounts to shoulder level. The Board notes the January 2010 private hospital clinical progress note indicated the Veteran's right shoulder had forward elevation (flexion) of 90 degrees on the right side with further passive elevation (flexion) to 120 degrees. Thus, the Board finds this evidence supports that for the period from July 1, 2009, to June 2, 2011, the Veteran's right shoulder (major) had limitation of motion of the arm midway between the side and shoulder level. Thus, for the entire period on appeal, a 30 percent evaluation for the right shoulder is warranted. However, the Board finds that for entire appeal period the preponderance of the evidence is against the assignment of a disability rating in excess of 30 percent for the right shoulder condition. A higher disability rating is not warranted under DC 5201 as right shoulder flexion or abduction has not been functionally limited to 25 degrees or less at any time during the appeal period. In fact, the Veteran's flexion and abduction of the right shoulder was consistently measured in excess of 25 degrees throughout the period on appeal. The Board accepts that the Veteran has functional impairment and pain, such as difficulty and/or pain with certain movements. See DeLuca. The Board also finds the Veteran's own reports of symptomatology to be credible. However, neither the lay nor medical evidence reflects the functional equivalent of limitation of motion nor the functional equivalent of limitation of flexion or abduction required to warrant the next higher evaluation for the period considered. The lay and medical evidence demonstrates that an evaluation of 30 percent for the entire period on appeal is appropriate for the Veteran's right shoulder condition. The Board has considered whether there is any other schedular basis for granting a higher rating other than that discussed above, but has found none. See 38 C.F.R. § 4.71(a). The Board also finds that no other DC provides a basis for assignment of a higher rating for the service-connected right shoulder disability. In this regard, the service-connected right shoulder condition is not manifested by ankylosis; did not have loss of head (flail shoulder), nonunion (false flail shoulder), or fibrous union of the humerus; and did not have malunion of the humerus with moderate or marked deformity, and DCs 5200 and 5202 are not for application. See September 2017 VA examination report. The Veteran had a clavicle, scapula, acromioclavicular (AC) joint, or sternoclavicular joint condition identified as bilateral degenerative joint disease that did not affect range of motion of the shoulder (glenohumeral) joint and DC 5203 is not for application. Id. The disability is not shown to involve any other factor that would warrant consideration of any other provision of VA's rating schedule. The Board concludes the evidence does not support the claim for a rating in excess of 30 percent for right shoulder condition and there is no reasonable doubt to be otherwise resolved. ORDER Entitlement to an initial disability rating in excess of 20 percent for the period from July 1, 2009, to June 2, 2011, for right shoulder degenerative joint disease and scapula fracture status post decompression and repair is granted. Entitlement to a disability rating in excess of 30 percent for the entire period on appeal for right shoulder degenerative joint disease and scapula fracture status post decompression and repair is denied. REMAND In a March 2017 Board remand, the Board noted that in October 2016, the RO awarded the Veteran a one-time payment for concurrent receipt of disability compensation and military retirement pay. The period covered by the award is May 1, 2010, to December 31, 2015. Later in October 2016, the Veteran filed a NOD contending entitlement to an earlier start date. However, no Statement of the Case (SOC) was issued to the Veteran in response to his timely NOD. Therefore, the Board remanded the matter in order for the RO to issue a SOC to Veteran. The Board notes that to date, it does not appear the Veteran has been provided with a SOC. Therefore, the Board must again, remand the matter in order for the RO to issue a SOC with regard to his claim for an earlier start date for his concurrent receipt of disability compensation and military retirement pay. Accordingly, the case is REMANDED for the following action: Issue a SOC regarding the Veteran's claim for an earlier start date for his concurrent receipt of disability compensation and military retirement pay. The Veteran should be informed that a timely substantive appeal will be necessary to perfect an appeal to the Board concerning this claim. Only if the Veteran perfects an appeal should claim be certified to the Board following completion of any necessary development. The Veteran and his representative have 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. §§ 5109B, 7112 (2012). ______________________________________________ MICHAEL LANE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs