Citation Nr: 1806886 Decision Date: 02/02/18 Archive Date: 02/14/18 DOCKET NO. 14-06 510 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUE Entitlement to a disability rating in excess of 10 percent for residuals of a right clavicle injury to include limitations of the right shoulder. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Michael Duffy, Associate Counsel INTRODUCTION The Veteran served on active duty from March 1999 to July 2004. This appeal comes to the Board of Veterans' Appeals (Board) from a May 2012 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). In a December 2013 rating decision, the service-connected disability was assigned a 10 percent rating effective February 9, 2012, the date of the Veteran's claim for an increased rating. The Board observes that additional evidence was received after the last adjudication of the claim in the December 2015 supplemental statement of the case, including VA examinations and VA treatment records. However, a review of those records reflects that the VA examinations and VA treatment records are not pertinent to the issue on appeal. Accordingly, the Board may proceed with adjudication of the matter on appeal without obtaining a waiver. 38 C.F.R. § 20.1304. FINDINGS OF FACT 1. The preponderance of the evidence shows that the Veteran's residuals of a right clavicle injury manifested as pain, arthritis, reduced range of motion, and loss of function in the right shoulder. 2. The preponderance of the evidence is against a finding that the Veteran's range of motion in his right shoulder was affected by ankylosis or limitation of movement at the shoulder level or below (90 degrees or less). CONCLUSION OF LAW The criteria for a disability rating in excess of 10 percent for residuals of a right clavicle injury have not been met. 38 U.S.C. §§ 1101, 1110, 1113 (2012); 38 C.F.R. §§ 4.3, 4.7, 4.71a Diagnostic Codes (DCs) 5003, 5200-5203; 38 C.F.R. § 4.73 DC 5302. REASONS AND BASES FOR FINDINGS AND CONCLUSION Entitlement to a Disability Rating in Excess of 10 Percent for Residuals of a Right Clavicle Injury to Include Limitations of the Right Shoulder 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 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 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). Rating Principles Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule) and are intended to represent the average impairment of earning capacity resulting from disability. Disabilities must be reviewed in relation to their history. Where there is a question as to which of two evaluations apply, the Board assigns the higher of the two where the disability picture more nearly approximates the criteria for the next higher rating. See 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.7, 4.10; Schafrath v. Derwinski, 1 Vet. App. 589 (1991). A veteran may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. Accordingly, separate ratings may be assigned for separate periods of time based on the facts found, which is a practice known as "staged" ratings. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Pyramiding, that is the evaluation of the same disability or the same manifestation of a disability under different diagnostic codes (DCs), is to be avoided when evaluating a veteran's service-connected disability. 38 C.F.R. § 4.14. Separate disability ratings may be assigned for distinct disabilities resulting from the same injury so long as the symptomatology for one condition was not "duplicative of or overlapping with the symptomatology" of the other condition. See Esteban v. Brown, 6 Vet. App. 259, 262 (1994). 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 required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. It is the defined and consistently applied policy of the Department of Veterans Affairs to administer the law under a broad interpretation, consistent, however, with the facts shown in every case. When after careful consideration of all procurable and assembled data, 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. 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). Although pain may cause functional loss, pain itself does not constitute functional loss. Rather, pain must affect some aspect of "the normal working movements of the body," such as "excursion, strength, speed, coordination, and endurance," in order to constitute functional loss. Mitchell v. Shinseki, 25 Vet. App. 32, 38-43 (2011) (quoting 38 C.F.R. § 4.40). 38 C.F.R. § 4.59 requires that VA examinations include joint testing for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint. Correia v. McDonald, 28 Vet. App. 158 (2016). In general, disabilities of the clavicle, shoulder, and arm are rated under 38 C.F.R. § 4.71a, DCs 5200 through 5203. When rating based on impairment of the shoulder joints, a distinction is made between major (dominant) and minor musculoskeletal groups for rating purposes. 38 C.F.R. § 4.69. Under VA rating criteria, normal forward elevation (flexion) and abduction of the shoulder is from 0 degrees to 180 degrees, with 90 degrees being shoulder level; normal shoulder internal and external rotation is 0 degrees to 90 degrees, with 90 degrees being shoulder level. 38 C.F.R. § 4.71, Plate I. DC 5203 provides ratings for the major (dominant) and minor (non-dominant) shoulder. Under DC 5203, a 10 percent rating is assigned for malunion of the clavicle or scapula or for nonunion of the clavicle or scapula without loose movement (in either shoulder). A maximum 20 percent rating is assigned for nonunion of the clavicle or scapula with loose movement or for dislocation of the clavicle or scapula (in either shoulder). See 38 C.F.R. § 4.71a, DC 5203. DC 5203 also allows a disability to be rated based on impairment of function of the contiguous joint. When a joint is affected by arthritis, DC 5003 provides that 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 however, 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. In the absence of limitation of motion, a 10 percent rating is assigned with X-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups. A 20 percent rating is assigned with X-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups, with occasional incapacitating exacerbations. Under DC 5201, limitation of motion at shoulder level (e.g., flexion to 90 degrees) in the major or minor extremity warrants a 20 percent rating. Limitation of motion to midway between side and shoulder level (e.g., flexion between 25 to 90 degrees) in the minor extremity warrants a 20 percent rating and a 30 percent rating in the major extremity. Limitation of motion to 25 degrees from the side in the minor extremity warrants a 30 percent rating a 40 percent rating in the major extremity. 38 C.F.R. § 4.71a, DC 5201. Injuries to the muscles of the shoulder girdle and arm are contemplated under 38 C.F.R. § 4.73, DCs 5301-5306. A compensable rating contemplates injury and functional impairment of at least a moderate severity. Analysis In this case, the Veteran's residuals of a right clavicle injury are rated at 10 percent as of the date of receipt of his claim for an increased disability rating. See December 2013 Statement of the Case; Veteran's February 2012 Supplemental Claim for Compensation (stating the claim as one for an increased evaluation for the right clavicle fracture and residuals thereof). The Veteran's current disability rating of 10 percent takes into account the Veteran's limitation of motion due to pain caused by degenerative arthritis as well as impingement of the contiguous right shoulder joint, which is related to the clavicle injury. See December 2015 Supplemental Statement of the Case. The period under review by the Board begins with the date of receipt of the Veteran's claim for an increase in his disability rating except in cases where the evidence would support a finding that the increase was factually ascertainable during the year prior to filing. See 38 U.S.C. § 5110(b); 38 C.F.R. § 3.400(o)(2); VAOPGCPREC 12-98 (Sept. 23, 1998); Harper v. Brown, 10 Vet. App. 125 (1997). If the increase occurred more than one year prior to the claim, the increase is the effective the date of the claim. See Gaston v. Shinseki, 605 F.3d 979 (Fed. Cir. 2010). As a preliminary matter, as the Veteran noted on his January 2014 Appeal to Board of Veterans' Appeals form, his most severe symptoms including nonunion of a clavicle fracture were addressed in part by surgery many years prior to the filing of the February 2012 claim for an increased evaluation. See September 2003 Operation Report from 48th Medical Group, RAF Lakenhealth. In a March 2006 rating decision, the Veteran was granted entitlement to service connection for residuals of a right clavicle fracture with an evaluation of 0 percent effective July 7, 2004 (the day after the Veteran's discharge from active duty service). The Veteran never appealed the March 2006 rating decision, and the evidence of record does not show that an increase in the Veteran's disability was factually ascertainable within the year prior to the receipt of his February 2012 claim for an increased disability rating. Therefore, the period at issue in this case begins in February 2012. The Veteran was afforded a VA examination in April 2012, which contains findings consistent with no more than 10 percent rating under applicable diagnostic criteria. The April 2012 examiner noted that the Veteran had a history of a right clavicle fracture and experienced moderate achy pain, which was aggravated by lying on his right side or by cold wet weather. The pain occurred daily and lasted hours. It was associated with reduced range of motion in the right shoulder. Painful flexion was measure at 160 degrees and abduction at 170 degrees. Testing in regard to the functional effects of pain, weakness, incoordination, and fatigability to include on repetitive use indicated that the Veteran's functional range of motion extended beyond the shoulder level. Strength was 5/5 with no ankylosis. In November 2015, VA afforded the Veteran an examination of his residuals of a right clavicle injury to include limitations of the right shoulder. As the examiner noted that the Veteran is right handed, residuals affecting the right shoulder are rated according to the major group criteria. The examiner noted that the Veteran has right shoulder impingement syndrome and degenerative arthritis associated with his history of a right clavicle fracture. The examiner noted that the Veteran had increased pain and decreased range of motion in the right shoulder especially with external rotation and while performing overhead tasks. Range of motion testing of the right shoulder on examination revealed 130 degrees flexion, 100 degrees abduction, 35 degrees external rotation, and 65 degrees internal rotation. Strength was 5/5 in the right shoulder with no atrophy or ankylosis. The examiner noted that the Veteran had pain with weight bearing and tenderness or pain over the capsule and posterior AC. The November 2015 examiner opined that pain, weakness, fatigability, or incoordination significantly limit the functional abilities in the Veteran's right shoulder with flare-ups and repeated use over time. Pain was provoked by special maneuvers and the Veteran did not wish to perform repetitions due to significant pain. However, neither the VA examiner nor the treatment records indicate that the frequency, duration, and severity of such flare-ups more nearly approximate a reduction in range of motion at the shoulder level (90 degrees) or below. The primary functional limitations identified by the examiner and the Veteran are an inability to do heavy lifting and overhead tasks due in part to arthritis, which the Board finds is contemplated by the a rating of 10 percent under DC 5003 (a reduction in range of motion to 110 degrees would otherwise be noncompensable under the applicable diagnostic criteria noted above). The Board affords probative weight to the VA examinations as they were conducted by competent medical professionals who considered the pertinent evidence of record including objective examination findings, the Veteran's statements, and the Veteran's treatment history. Moreover, the Board finds there is no evidence of record from a competent source indicating that the Veteran's limitations of the right clavicle and shoulder more nearly approximated the rating criteria for a rating in excess of 10 percent during the period at issue (e.g. flexion or abduction limited to 90 degrees or less). The Board considered the Veteran's contention that his clavicle and shoulder disabilities should have been rated under 38 C.F.R. § 4.73, DC 5302 for a moderately severe injury and functional impairment of the muscles of the clavicle and shoulder. See Veteran's January 2014 Appeal to Board of Veterans' Appeals. However, the pertinent evidence relating to the period at issue including the VA examinations noted above shows 5/5 muscle strength and no atrophy. There is no competent medical evidence of record of a current compensable disability of the muscles including injury or functional impairment of a moderate degree during the period at issue. While the Veteran is competent to report his observable symptoms, the Veteran lacks the medical training necessary to objectively assess muscle strength, function, and atrophy under applicable diagnostic standards. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); see also Layno v. Brown, 6 Vet. App. 465, 470-472 (1994). Accordingly, the Board finds that the preponderance of the competent and credible evidence is against a finding that the Veteran's disability picture more nearly approximates a rating in excess of 10 percent under diagnostic criteria applicable to the muscles. The Board also notes that on the Veteran's January 2014 substantive appeal form, the Veteran stressed that the Board should consider that his disability picture for his right shoulder injury was more severe in the past than it is today. In particular, the Veteran noted that his medical records show that there was a delay between the time of his injury in January 2003 and the time of surgery in September 2003. The Veteran noted he developed severe callous formation, loss of sensation, limited movement, and malunion of the clavicle fracture. However, as there is no evidence of dislocation or nonunion with loose movement of the right clavicle during the period at issue, the Board finds that the evidence of record does not support a rating in excess of 10 percent under DC 5203. See, e.g., November 2015 VA right clavicle and shoulder examination; April 2012 VA right clavicle and shoulder examination. On the January 2014 substantive appeal form, the Veteran also asserted he has continuing nerve damage and decreased muscle use of his right arm and shoulder. He noted metal hardware in his clavicle caused him pain and limited the use of his right shoulder, especially when he tries to lift or carry anything with the right arm. In regard his claim for neurological impairment, the Veteran was awarded separate ratings for neurological impairments of the extremities after the filing of his substantive appeal. See April 2017 rating decision; January 2014 Appeal to Board of Veterans' Appeals (noting the neck symptoms). Neurological impairments were ultimately found to be associated with the Veteran's service-connected cervical spine disability, and the Veteran did not appeal the ratings for neurological impairment. See also December 2017 Informal Hearing Presentation. The Board notes that the Veteran is service connected and rated at 0 percent for scaring of the right shoulder, but the Veteran did not appeal the rating for the scarring. See January 2014 Appeal to Board of Veterans' Appeals; December 2013 Statement of the Case. In contrast, on the January 2014 appeal form, the Veteran explicitly limited the scope of the appeal to the rating for the right clavicle fracture residuals. In light of the above, the Board finds that the preponderance of the evidence is against the Veteran's claim for an increased disability rating. Therefore, a rating in excess of 10 percent for residuals of a right clavicle injury to include limitations of the right shoulder must be denied. ORDER Entitlement to a disability rating in excess of 10 percent for residuals of a right clavicle injury to include limitations of the right shoulder is denied. ____________________________________________ S. HENEKS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs