Citation Nr: 1805140 Decision Date: 01/25/18 Archive Date: 02/05/18 DOCKET NO. 14-05 999 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Seattle, Washington THE ISSUES 1. Entitlement to an evaluation in excess of 10 percent for temporomandibular joint syndrome, status post left mandibular fracture, effective May 18, 2005, currently rated as 30 percent disabling effective January 15, 2013. 2. Entitlement to an evaluation in excess of 20 percent for right shoulder impingement syndrome and degenerative joint disease prior to May 18, 2005. 3. Entitlement to an evaluation in excess of 30 percent for right shoulder impingement syndrome and degenerative joint disease, on or after June 27, 2014. 4. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Appellant represented by: Aires Robinson, Agent ATTORNEY FOR THE BOARD K.M. Walker, Associate Counsel INTRODUCTION The Veteran served active duty in the United States Army from July 1972 to August 1975. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2011 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO) in Seattle, Washington. In May 2016, the Board remanded the case for further development. It has since been returned to the Board. In a November 2013 rating decision, the RO continued its 20 percent evaluation of the Veteran's right shoulder impingement syndrome and degenerative joint disease. During the pendency of the appeal, in an August 2017 rating decision by the Agency of Original Jurisdiction (AOJ), the Veteran's rating for his right shoulder impingement and degenerative joint disease was increased to 30 disabling, effective June 27, 2014. Additionally, the Veteran's TDIU claim was denied. Despite the 30 percent increased evaluation, it is generally presumed the maximum benefit by law and regulation is sought. As such, a claim remains in controversy where less than the maximum benefit available is awarded. See AB v. Brown, 6 Vet. App. 35 (1993). This appeal was processed using the Veterans Benefits Management System (VBMS) electronic claims processing systems. Accordingly, any future consideration of this Veteran's case should take into account the existence of these electronic records. The issue of TDIU is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. In a December 2014 statement from the Veteran which was confirmed in the March 2016 Appellant's Brief, prior to the promulgation of a decision, the Veteran indicated that he wanted to withdraw his appeal for the issue of entitlement to a rating in excess of 10 percent for temporomandibular joint syndrome, status post left mandibular fracture, effective May 18, 2005. 2. For the period prior to May 18, 2005, the Veteran's service-connected right shoulder impingement and degenerative joint disease was shown to be manifested by pain, functional loss, and some limitation of right arm motion. However, there is no evidence establishing the Veteran's range of right arm motion was restricted to midway between side and shoulder level. 3. For the period on or after June 27, 2014, the Veteran's service-connected right shoulder impingement and degenerative joint disease was shown to be manifested by pain, functional loss, and some limitation of right arm motion. However, there is no evidence establishing the Veteran's range of right arm motion was restricted to 25 degrees from his side. CONCLUSIONS OF LAW 1. The criteria for withdrawal of an appeal have been met for the issue of entitlement to a rating in excess of 10 percent for temporomandibular joint syndrome, status post left mandibular fracture, effective May 18, 2005. 38 U.S.C. § 7105(b)(2), (d)(5) (2012); 38 C.F.R. § 20.204 (2017). 2. For the period prior to May 18, 2005, the criteria for a rating in excess of 20 percent for the service-connected right shoulder impingement and degenerative joint disease have not been met. 38 U.S.C. § § 1155, 5107 (2012); 38 C.F.R. §§ 3.321, 4.1-4.14, 4.40, 4.45, 4.71a, Diagnostic Code 5201 (2017). 3. For the period on or after June 27, 2014, the criteria for a rating in excess of 30 percent for the service-connected right shoulder impingement and degenerative joint disease have not been met. 38 U.S.C. § § 1155, 5107 (2012); 38 C.F.R. §§ 3.321, 4.1-4.14, 4.40, 4.45, 4.71a, Diagnostic Code 5201 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Board may dismiss any appeal which fails to allege a particular error of fact or law in the determination being appealed. 38 U.S.C.A. § 7105. An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 20.204. Withdrawal may be made by the appellant or by his or her authorized representative. 38 C.F.R. § 20.204. Withdrawal of an appeal is deemed a withdrawal of the Notice of Disagreement and, if filed, the Substantive Appeal, as to all issues to which the withdrawal applies. 38 C.F.R. § 20.204(c). In a December 2014 correspondence to the RO and the March 2016 Appellant's Brief, the Veteran withdrew the appeal for the issue of entitlement to a rating in excess of 10 percent for temporomandibular joint syndrome, status post left mandibular fracture, effective May 18, 2005. The Veteran indicated that he was satisfied with the decision. In November 2013, the RO issued a rating decision increasing the evaluation of the Veteran's temporomandibular joint syndrome to 30 percent, effective January 15, 2013. Subsequently, following the withdrawal, the RO issued an August 2017 rating decision continuing evaluation of 30 percent. Despite the rating decisions, the Veteran elected to withdraw his appeal of the September 2011 rating decision and has not filed an appeal of the November 2013 or August 2017 rating decision. Thus, there remains no allegation of errors of fact or law for appellate consideration concerning those claims. Accordingly, the Board does not have jurisdiction to review the appeal of the issues, and they are dismissed. Neither the Veteran nor his representative has raised any 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 liberally 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 a duty to assist argument). There is also no objective evidence indicating that there has been a material change in the severity of the Veteran's right shoulder disability since his last VA examination. 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. Thus, there is adequate medical evidence of record to make a determination in this case, and there has been no contention otherwise. Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion with respect to the issue on appeal has been met. 38 C.F.R. § 3.159(c)(4). As noted above, the Board remanded the appeal in May 2016 for further development. The Agency of Original Jurisdiction (AOJ) was instructed to obtain outstanding records related to the Veteran's worker's compensation treatment and unemployability and afford the Veteran another VA examination. Having completed the remand directives, the Board finds that the AOJ has also complied with the remand directives. Stegall v. West, 11 Vet. App. 268 (1998). For these reasons, the Board concludes no error or issue precludes the Board from addressing the merits of this appeal. Law and Analysis Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R., Part 4. The rating schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. 38 C.F.R. § 4.7. In considering the severity of a disability, it is essential to trace the medical history of the veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41. Consideration of the whole-recorded history is necessary so that a rating may accurately reflect the elements of disability present. 38 C.F.R. § 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991). While the regulations require review of the recorded history of a disability by the adjudicator to ensure a more accurate evaluation, the regulations do not give past medical reports precedence over the current medical findings. Where entitlement to compensation has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, where the question for consideration is the propriety of the initial rating assigned, evaluation of the evidence since the effective date of the grant of service connection is required. Fenderson v. West, 12 Vet. App. 119, 125-26 (1999). Where VA's adjudication of the claim for increase is lengthy and factual findings show distinct time periods where the service-connected disability exhibits symptoms which would warrant different ratings, different or "staged" ratings may be assigned for such different periods of time. Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007); Fenderson, 12 Vet. App. at 126-27. 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 of these elements. In evaluating disabilities of the musculoskeletal system, it is necessary to consider, along with the schedular criteria, functional loss due to flare-ups of pain, fatigability, incoordination, pain on movement, and weakness. DeLuca v. Brown, 8 Vet. App. 202 (1995). The functional loss may be due to absence of part, or all, of the necessary bones, joints and muscles, or associated innervation, or other 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. Pain on movement, swelling, deformity or atrophy of disuse as well as instability of station, disturbance of locomotion, interference with sitting, standing and weight bearing are relevant considerations for determination of joint disabilities. 38 C.F.R. § 4.45. Painful, unstable, or malaligned joints, due to healed injury, are entitled to at least the minimal compensable rating for the joint. 38 C.F.R. § 4.59. In this case, the Veteran is currently assigned a 30 percent evaluation for his service-connected right shoulder impingement and degenerative joint disease, pursuant to 38 C.F.R. § 4.71a, Diagnostic Code 5201. Diagnostic Code 5201 pertains to the limitation of motion of the arm. The assignment of a particular Diagnostic Code is "completely dependent on the facts of a particular case." See Butts v. Brown, 5 Vet. App. 532, 538 (1993). One diagnostic code may be more appropriate than another based on such factors as an individual's relevant medical history, the diagnosis and demonstrated symptomatology. As set forth in more detail below, the Board has considered the assignment of other diagnostic codes, but finds no more appropriate provision. The Veteran's medical history, diagnosis, and demonstrated symptomatology indicate that application of Diagnostic Code 5201 is appropriate and his symptoms of right shoulder pain, limitation of right arm motion, and functional loss have been contemplated in assigning the current ratings for his service-connected right shoulder impingement and degenerative joint disease, under Diagnostic Code 5021. There is no probative evidence indicating that the Veteran's service-connected right shoulder disability is more closely analogous to another anatomic location or function described in the Rating Schedule, and he and his representative have not contended otherwise. The rating criteria for evaluating disabilities of the shoulder, including Diagnostic Code 5201, distinguish between the major (dominant) extremity and the minor (non-dominant) extremity. See 38 C.F.R. § 4.69. Because the record on appeal establishes that the Veteran is right-handed, the criteria for rating disabilities of the major extremity are for application. Under Diagnostic Code 5201, a 20 percent rating is assigned where motion of either arm is limited to the shoulder level. A 30 percent rating requires that motion of the major arm be limited to midway between the side and shoulder level, and a maximum 40 percent rating requires limitation of motion of the major arm to 25 degrees from the side. See 38 C.F.R. § 4.71a, Diagnostic Code 5201. In determining whether a Veteran has limitation of motion to shoulder level, it is necessary to consider reports of both forward flexion and abduction. See Mariano v. Principi, 17 Vet. App. 305, 314-16 (2003). Normal shoulder motion is defined as zero to 180 degrees of forward elevation (flexion), 0 to 180 degrees from the side of the body out to the side (abduction), and zero to 90 degrees of internal and external rotation. See 38 C.F.R. § 4.71, Plate I. In applying the facts below, the Board finds the Veteran is not entitled to an increased evaluation in excess of 20 percent prior to May 18, 2005, or in excess of 30 percent on or after June 27, 2014. In May 2005 medical letter, the Veteran is noted as having restricted range of motion in his shoulder. In August 2005, the Veteran was evaluated in connection with a worker's compensation claim involving his right shoulder. The Veteran reported experiencing clicking, popping, snapping, aching, rating and weakness in his right shoulder. The Veteran's right shoulder was evaluated in May 2007 and August 2007. In May 2007, the Veteran's forward elevation was 110 degrees and total arc of motion was 50 degrees. In August 2007, his forward elevation was 140 degrees and arc of motion was 70 degrees. In a September 2007 medical appointment, the Veteran's forward flexion was approximately 155 degrees and internal rotation was 40 degrees. Another September 2007 medical record indicated the Veteran's right shoulder was treated. The physician indicated the Veteran suffered from pain and loss of motion. During an October 2007 appointment, the Veteran's forward flexion was to 150 degrees and internal rotation was approximately 10 degrees. Also, during a November 2007 appointment, the Veteran's right shoulder elevation was 150 degrees and external rotation was 80 degrees. Lastly, in a December 2007 evaluation, the Veteran's forward flexion was 90 degrees, and external rotation was 80 degrees. During a January 2008 appointment, the Veteran's right shoulder forward elevation was to 130 degrees and external rotation was to 80 degrees. In April 2008, the Veteran's right shoulder was evaluated and he using range of motion exercises to management his condition. During a January 2009 evaluation, the Veteran's right shoulder forward flexion was 90 degrees, internal rotation 10 degrees, and external rotation was 80 degrees. In February and September 2009, the Veteran's right shoulder was evaluated. During the February 2009 appointment, the Veteran's right shoulder forward elevation was to 80 degrees and extension to 10 degrees. Additionally, abduction was 80 degrees and external rotation was to 70 degrees. A March 2010, and June 2010 nursing progress note indicated the Veteran's right shoulder pain and orthoscopic repair. During a December 2010 evaluation, the Veteran indicated that his right shoulder symptoms were worsening. During a February 2011 physical therapy consult, the Veteran had a shoulder flexion of 180 and abduction of 190 degrees. In an April 2011 physical therapy note, the Veteran was evaluated for shoulder pain. His shoulder flexion was 89 and abduction 120. During an August 2011 VA examination, the Veteran's right shoulder was evaluated. He had zero to 10 degrees posterior extension and 0-110 forward flexion. Additionally, abduction was 0-to 90 degrees. A January 2012 medical note indicated the Veteran's shoulder forward flexion was 100 degrees and external rotation was 70 degrees. During a February 2012 rehabilitation consultation, it was noted the Veteran suffered from chronic right shoulder pain due to severe glenohumeral joint arthritis. It was also noted the Veteran lacked about 15 degrees of passive internal and external rotation. An April 2012 IME reported indicated the Veteran's right shoulder flexion and abduction were 80 degrees. His internal and external rotation was 45 degrees and his extension was 20 degrees. The Veteran's claims file contains treatment records for his right shoulder from October 2013 to June 2016. However, the records simply indicate a routine and ongoing treatment of his right shoulder. The records do not contain any range of motion measurements. The Veteran was afforded a VA examination in January 2013. The Veteran reported having flare-ups that affect his ability to dress. The Veteran's right shoulder flexion was 90 degrees and abduction was 80 degrees. The examiner noted the Veteran had function loss such as less and weakened movement as well as pain on movement. Additionally, the Veteran was able to perform repetitive sets, and there was no ankylosis noted during the examination. The Veteran's shoulder pain is noted in a May 2013 medical record. A June 2013 sports medicine medical note indicated the Veteran's dominant arm was his right arm. Further, the Veteran reported his pain was consistent. It was noted the Veteran suffered from a range of motion and osteoarthritis. During an October 2013 mental health assessment, the Veteran reported having a shoulder issue that impacted his sleep quality. In February 2014, the Veteran was evaluated during a VA examination. At that time, the Veteran reported having flare-ups that affect the function of his right shoulder. His right shoulder flexion was 90 degrees, and abduction was 85 degrees. Additionally, the Veteran was able to be repetitive sets. The Veteran was found to have function loss that included less and weakened movement as well as pain on movement. Lastly, the examiner noted that the Veteran's shoulder condition impacted his work as he had difficulty lifting overhead. In June 2017, the Veteran was afforded a VA examination in connection with his right shoulder claim. The Veteran's diagnosis of a right shoulder impingement and degenerative joint disease was noted. Additionally, residuals of a right shoulder arthroscopic debridement were noted. Further, the examiner noted the condition had worsened and the Veteran experienced flare-ups that impair the function of his shoulder which limits his ability to lift, carry, or raise his arm above his head. At the time of the examination, the Veteran right shoulder flexion was 65 degrees, abduction 45 degrees, external rotation 25 degrees, and internal rotation 60 degrees. Further, it was indicated the Veteran was able to do repetitive sets. The examiner also noted the Veteran was not experiencing a flare-up on the day of the examination neither did he have any ankylosis. In considering the evidence of record under the laws and regulations as set forth above, the Board concludes that the Veteran is not entitled to an increased evaluation for his service-connected right shoulder impingement and degenerative joint disease prior to May 18, 2005. Review of claims file showed that at the time of the RO's September 2011 rating decision, the Veteran's right arm abduction was 90 degrees, which is equivalent to the Veteran's arm range of motion being limited to shoulder level. Under Diagnostic Code 5201, a 20 percent rating is assigned where motion of either arm is limited to the shoulder level. Therefore, the Board finds the Veteran is not entitled to an increased evaluation for the period prior to May 18, 2005. In considering the evidence of record under the laws and regulations as set forth above, the Board concludes that the Veteran is not entitled to an increased evaluation for his service-connected right shoulder impingement and degenerative joint disease on or after June 27, 2014. Review of the claims file revealed the Veteran's right arm range of motion was limited to 45 degrees, which is equivalent to limited motion of the arm midway between the side and shoulder level. Under Diagnostic Code 5201, a 30 percent rating is assigned where the motion of the arm is limited to between the side and shoulder level. The current evidence of record does not support a higher evaluation of 40 percent as the Veteran's right arm range of motion is not limited to 25 degrees from his side. Therefore, the Board finds the Veteran is not entitled to an increased evaluation or the period on or after June 27, 2014. With respect to both periods, the Board has carefully considered the fact that the Veteran's right shoulder disability has been manifested by symptoms which include considerable pain as well as functional loss, which includes difficulty with right arm lifting and overhead motion. These symptoms, however, have already been considered in assigning the current ratings. The Board finds that ratings in excess of those currently assigned are not warranted. Objective examinations have shown no more than slightly reduced strength. There are no anatomic deformities, atrophy, or other indicia of disuse. Additionally, repetitive motion does not decrease the range of motion of the joint. Given the objective evidence, the Board finds that the preponderance of the evidence is against the assignment of ratings in excess of those currently assigned. See DeLuca v. Brown, 8 Vet. App. 202 (1995); 38 C.F.R. §§ 4.10, 4.40, 4.45, 4.59. In reaching this decision, the Board has considered whether higher ratings could be assigned under an alternative diagnostic code. As set forth above, however, the record shows that the Veteran's service-connected right shoulder disability does not involve ankylosis (Diagnostic Code 5200), impairment of the humerus (Diagnostic Code 5202), or impairment of the clavicle and scapula (Diagnostic Code 5203). Based on the evidence of record, the Board finds that application of an alternative diagnostic code such as these is not appropriate. Neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366, 368 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record)." ORDER The appeal for the issue of entitlement to a rating in excess of 10 percent for temporomandibular joint syndrome, status post left mandibular fracture, effective May 18, 2005, is dismissed. Entitlement to an increased rating for a right shoulder impingement and degenerative joint disease, rated as 20 percent disabling effective May 18, 2005, is denied. Entitlement to an increased rating for a right shoulder impairment and degenerative joint disease, rated 30 percent disabling effective on and after June 27, 2014, is denied. REMAND The Veteran is currently service-connected for degenerative joint disease of the right knee with malunion, laxity, and effusion, temporomandibular joint syndrome, and impingement and degenerative joint disease of the right shoulder. His combined evaluation is 70 percent. However, there is no medical opinion addressing the combined effects of his service-connected disabilities. Therefore, the Board finds that a VA examination and medical opinion is needed. Accordingly, the case is REMANDED for the following action: 1. The AOJ should schedule the Veteran for a VA examination by an appropriate examiner. The ultimate purpose of the examination is to ascertain the combined impact of the Veteran's service-connected disabilities on his ability to work. If appropriate, any studies, tests, and evaluations deemed necessary by the examiner should be performed. The examiner is requested to review all pertinent records associated with the claims file. The examiner should elicit and set forth the pertinent facts regarding the Veteran's medical history, education and employment history, day-to-day functioning, and industrial capacity. The report should also indicate if there is any form of employment that the Veteran could perform, and if so, what type. A written copy of the report should be associated with the claims file. 2. After completing above action, the AOJ should conduct any other development as may be indicated by a response received as a consequence of the action taken in the preceding paragraph. 3. When the development requested has been completed, the case should be reviewed by the AOJ on the basis of the additional evidence. If the benefits sought on appeal are not granted, the appellant 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). ______________________________________________ DAVID L. WIGHT Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs