Citation Nr: 1806979 Decision Date: 02/02/18 Archive Date: 02/14/18 DOCKET NO. 10-32 130 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUES 1. Entitlement to a rating higher than 20 percent for postoperative left shoulder separation residuals. 2. Entitlement to a compensable rating until October 26, 2013, and to a rating higher than 30 percent since October 27, 2013, for left foot fracture residuals. REPRESENTATION Veteran represented by: Georgia Department of Veterans Services WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD N. Robinson, Associate Counsel INTRODUCTION The Veteran served on active duty from October 1973 to October 1977. This appeal to the Board of Veterans' Appeals (Board/BVA) originated from an April 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In an October 2013 rating decision since issued, the RO increased the Veteran's left foot disability rating from 0 to 30 percent, effective October 27, 2013. Because however that is not the maximum rating available throughout the entire period on appeal, this claim is still in dispute. But this claim now concerns whether the Veteran was entitled to a compensable rating (meaning a rating higher than 0 percent) for the initial period until October 26, 2013, and whether he has been entitled to a rating higher than 30 percent since October 27, 2013. See AB v. Brown, 6 Vet. App. 35 (1993); see also Hart v. Mansfield, 21 Vet. App. 505 (2007). In December 2014, in support of these claims, the Veteran testified at a hearing before the undersigned Veterans Law Judge of the Board. A transcript of the proceeding is of record. These claims were previously before the Board in February 2015 and April 2016, but were remanded for further development. Regrettably, the Board must again REMAND the claim for a higher rating for the left foot disability. However, the Board instead is going ahead and deciding the claim for a higher rating for the left shoulder disability. FINDING OF FACT The Veteran's service-connected left shoulder disability, including consequent functional impairment due to partial clavicle resection and limited range of motion, most closely approximates a severe muscle injury. No ankylosis or fibrous union of the humerus has been shown. CONCLUSION OF LAW The criteria are met for a higher 30 percent rating, though no greater, for the left shoulder disability. 38 U.S.C. §§ 1155, 5107(b) (2012); 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5303, 5201 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION Veterans Claims Assistance Act (VCAA) Neither the Veteran nor his representative has raised concerns with the duty to notify. See 38 U.S.C. §§ 5102, 5103, 5103A (2012); 38 C.F.R. § 3.159; see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). Regarding the duty to assist, additional treatment records were obtained and associated with the claims file on remand. The Veteran also was afforded VA compensation examinations of his left shoulder in February 2009, April 2012, and November 2015. The Board acknowledges that the examination reports do not contain separate range-of-motion findings for active and passive range of motion as contemplated by the U.S. Court of Appeals for Veterans Claims (Court's/CAVC's) holding in Correia v. McDonald. 28 Vet. App. 158 (2016). However, because the Board is grating the maximum rating available under the applicable diagnostic code, remanding the matter for an additional examination would unnecessarily delay adjudication of this claim with no resultant benefit to the Veteran. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (holding that remands that would only result in imposing additional burdens on VA, with no benefit flowing to the claimant, are to be avoided). Also, when, as here, the Veteran has the highest available rating based on restriction of motion, the provisions regarding pain in 38 C.F.R. §§ 4.40 and 4.45 and its effect on his range of motion do not apply. Johnson v. Brown, 9 Vet. App. 7, 11 (1996); Johnston v. Brown, 10 Vet. App. 80, 84-85 (1997). There also was the required compliance, certainly acceptable substantial compliance, with the Board's previous remand directives. See Stegall v. West, 11 Vet. App. 268 (1998) (where the remand orders of the Board are not complied with, the Board itself errs as a matter of law when it fails to ensure compliance); but see also D'Aries v. Peake, 22 Vet. App. 97, 105 (2008) (holding that "substantial" rather than strict or exact compliance with the Board's remand directives is required under Stegall); accord Dyment v. West, 13 Vet. App. 141, 146-47 (1999). Legal Criteria Disability ratings are based on average impairment in earning capacity resulting from a particular disability, and are determined by comparing symptoms shown with criteria in VA's Schedule for Rating Disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Separate diagnostic codes identify the various disabilities. Raters must analyze the evidence of pain, weakened movement, excess fatigability, or incoordination and determine the level of associated functional loss in light of 38 C.F.R. § 4.40, taking into account any part of the musculoskeletal system that becomes painful on use. DeLuca v. Brown, 8 Vet. App. 202 (1995). The provisions regarding pyramiding do not forbid consideration of a higher rating based on greater limitation of motion due to pain on use, including flare-ups. 38 C.F.R. § 4.14. The guidance provided by the Court in DeLuca must be followed in adjudicating claims where a rating under the diagnostic codes governing limitation of motion should be considered. However, the provisions of 38 C.F.R. §4.40 and 38 C.F.R. § 4.45 should only be considered in conjunction with the diagnostic codes predicated on limitation of motion. Johnson v. Brown, 9 Vet. App. 7 (1996). Functional loss due to pain is rated at the same level as functional loss where motion is impeded. See Schafrath v. Derwinski, 1 Vet. App. 589, 592 (1991). Pursuant to § 4.59, painful motion should be considered limited motion, even though a range of motion may be possible beyond the point when pain sets in. See Powell v. West, 13 Vet. App. 31, 34 (1999); Hicks v. Brown, 8 Vet. App. 417, 421 (1995). A finding of functional loss due to pain, however, must be supported by adequate pathology and evidenced by the visible behavior of the claimant. 38 C.F.R. § 4.40; Johnston v. Brown, 10 Vet. App. 80, 85(1997). Moreover, when evaluating the reduction of excursion due to pain, not all painful motion constitutes limited motion. See Mitchell v. Shinseki, 25 Vet. App. 32, 38-40 (2011). Pain on motion can only be characterized as limiting pain constituting functional loss when the evidence shows the pain actually affects some aspect of the normal working movements of the body such as excursion, strength, speed, coordination, or endurance. Id., at 37. In other words, pain may cause a functional loss, but pain, by itself, does not constitute a functional loss. Id., at 36. In Mitchell, the Court held that the evaluation of painful motion as limited motion only applies when limitation of motion is 0-percent disabling (noncompensable) under the applicable diagnostic code. The Court further explained that, although painful motion is entitled to a minimum 10 percent rating under Lichtenfels v. Derwinski, 1 Vet. App. 484, 488 (1991), when read together with DC 5003 regarding arthritis, it does not follow that the maximum rating is warranted under the applicable diagnostic code pertaining to range of motion simply because pain is present throughout the range of motion. See id. The Veteran contends that his left shoulder disability is more severe than reflected by his existing 20 percent rating. His disability is currently evaluated by analogy under hyphenated Diagnostic Code 5399-5303. Hyphenated diagnostic codes are used when a rating under one diagnostic code requires the use of an additional diagnostic code to identify the basis for the rating assigned; the hyphenated code in this case may be read to show that an injury to Muscle Group III of the arm was the service-connected disorder, which was also rated based upon limitation of motion of the arm. The Board will consider the Veteran's claim for an increased rating under all pertinent diagnostic codes. The rating criteria provide different ratings for the minor arm and the major arm. The Veteran has indicated that he is right-handed; therefore, the Board will apply the ratings and criteria for the minor arm since the disability involves his left shoulder rather than right. 38 C.F.R. § 4.69. Diagnostic Code 5303 concerns the intrinsic muscles of the shoulder girdle, including the pectoralis major I (clavicular) and the deltoid. For the non-dominant arm, a 20 percent disability rating is warranted for moderate or moderately severe injury. 38 C.F.R. § 4.73, Diagnostic Code 5303. A maximum 30 percent rating is warranted for severe injury. The terms "mild," "moderate," "moderately severe," and "severe" are not defined in the regulations. Rather than applying a mechanical formula, the Board must evaluate all of the evidence. 38 C.F.R. § 4.6. Although the use of these terms by VA examiners and others is evidence to be considered by the Board, it is not dispositive. All evidence must be evaluated in arriving at a decision regarding an increased rating. 38 C.F.R. §§ 4.2, 4.6. Diagnostic Code 5201 is also relevant to the analysis. Under this code, a 20 percent evaluation is provided for limitation of motion of the minor arm at shoulder level, or where there is limitation of motion midway between the side and shoulder level. A 30 percent evaluation is assigned for limitation of motion to 25 degrees from the side. 38 C.F.R. § 4.71a, Diagnostic Code 5201. When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 C.F.R. § 4.3. It is VA policy to administer the law under a broad interpretation, consistent with the facts in each case with all reasonable doubt to be resolved in favor of the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. When all of the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether instead a fair preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). Factual Background In adjudicating this claim, the Board has reviewed all of the evidence in the Veteran's record, but with an emphasis on the evidence relevant to this claim. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, certainly not in exhaustive detail, each and every piece of evidence. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (VA must review the entire record, but does not have to discuss each piece of evidence.). Rather, the Board will summarize the relevant evidence, as appropriate, and the Board's analysis will focus specifically on what the evidence shows, or does not show, regarding the claim. During his February 2009 VA examination, the Veteran reported shoulder symptoms of weakness and "giving way." He denied stiffness, swelling, lack of endurance, locking, fatigability, and dislocation. He reported painful episodes of aching and sharp shoulder pain twice weekly lasting 1-2 hours. Due to his shoulder disability, he was unable to perform heavy lifting or work above shoulder level with his left arm. The examiner noted tenderness and guarding. There was no edema, effusion, redness, heat, or subluxation. Flexion was 160 degrees with pain noted at 90 degrees. Abduction was 170 degrees with pain noted at 90 degrees. External rotation was 90 degrees; internal rotation was 70 degrees. The examiner noted that fatigue, lack of endurance, incoordination, and especially pain limited shoulder function after repetitive use; however, there was no additional loss of motion in terms of degrees. A February 2009 left shoulder x-ray report shows previous resection of the left distal clavicle. A December 2009 MRI report shows subtle tendinosis in the distal supraspinatus tendon and evidence of the Veteran's distal clavicle surgical removal. In his June 2010 substantive appeal, the Veteran stated that his shoulder rating should be increased due to tenderness and weakness, especially when lifting above his head. In a September 2011 VA treatment record, the Veteran reported chronic left shoulder pain that was controlled to where he could tolerate it. In another September 2011 VA treatment record, the clinician noted reduced range of motion in the Veteran's left shoulder, which the clinician attributed to rotator cuff pathology. During his April 2012 VA examination, the Veteran reported painful left shoulder flare-ups. On examination, his flexion was 0 to 90 degrees, and his abduction was 0 to 85 degrees. Pain prevented repetitive use testing. His functional loss included less movement than normal and painful movement. The examiner noted left shoulder guarding but no localized tenderness. There was no ankylosis. The examiner noted the Veteran's history of shoulder dislocation and tenderness of the left AC joint, and opined that his left shoulder disability caused increased pain, stiffness, and decreased range of motion. During his December 2014 Board hearing, the Veteran testified that his left shoulder symptoms include pain and weakness, and that lifting his arm above his shoulder is painful. He also described difficulty picking up items due to arm locking. During his November 2015 VA examination, the Veteran reported constant left shoulder pain and limited range of motion. He denied flare-ups. The examiner noted his history of two prior shoulder surgeries and imaging showing degenerative arthritis and partial clavicle resection. On examination, his flexion was 0 to 40 degrees. His extension was 0 to 50 degrees. His external and lateral rotations were 0 degrees. There was no additional loss of motion after repetitive testing. The examiner documented objective evidence of tenderness and pain with weight-bearing. There was no atrophy, ankylosis, instability/dislocation suspected. The examiner also noted the Veteran's history of distal clavicle resection, but found that there was no malunion or nonunion associated with this condition. Functionally, his shoulder disability limits his ability to reach overhead and lift. His strength was 4/5. In a February 2016 VA treatment record, the Veteran reported chest pain radiating to his left shoulder. The clinician assessed non-specific chest pain, most likely musculoskeletal chest wall pain and prescribed topical pain medication. In a June 2016 VA treatment record, the Veteran reported occasional throbbing left shoulder, arm, and hand pain. He denied numbness or tingling. On examination, his left shoulder had no edema, redness, tenderness, crepitus, or visible deformity. He had normal muscle strength and tone. The clinician recommended topical gel, a heating pad, and occupational therapy. A June 2016 x-ray report shows post-surgical AC joint widening consistent with prior films. There was no significant glenohumeral or acromioclavicular osteoarthritis. The radiologist noted no arthritic changes or significant changes from a March 2007 x-ray. In a July 2016 VA treatment record, the Veteran reported chronic left shoulder pain. The physician recommended continuing use of topical medication, a heating pad, and occupational therapy. An additional July 2016 treatment record shows he received occupational therapy for neck and left shoulder pain. The therapist prescribed a neck roll and advised him on better positioning for sleep. Analysis Overall, the Board finds that the evidence supports an increased rating of 30 percent owing to documented limitation of motion, pain, and associated loss of function of the left shoulder. This is evidenced by the examination findings pertaining to range-of-motion limitations, painful motion, and reduced strength, and, importantly, by the Veteran's lay statements of record emphasizing the functional limitations imposed by his left shoulder disability. The Board also has considered other potentially applicable diagnostic codes; however, the Veteran's left shoulder disability is not shown to involve any other factor that would warrant evaluation of the disability under any other provisions of the rating schedule. Ankylosis is not noted; therefore a higher rating under 5200 is not warranted. Ankylosis is stiffening or fixation of the joint as the result of a disease process, with fibrous or bony union across the joint. Dinsay v. Brown, 9 Vet. App. 79, 81 (1996) citing Dorland's Illustrated Medical Dictionary at 86 (27th ed. 1988) (Ankylosis is "immobility and consolidation of a joint due to disease, injury, or surgical procedure."); see also Coyalong v. West, 12 Vet. App. 524, 528 (1999); Lewis v. Derwinski, 3 Vet. App. 259 (1992) [citing Saunders Encyclopedia and Dictionary of Medicine, Nursing, and Allied Health at 68 (4th ed. 1987)]. Additionally, while Diagnostic Code 5202 provides for an even higher 40 percent evaluation for fibrous union of the humerus, this level of impairment is not noted in the evidence. Diagnostic Codes 5201 and 5203 for limitation of motion of the arm and impairment of the clavicle or scapula do not provide for ratings exceeding 30 percent. There also is no indication the disability would be equally well served by an amputation with full arm prosthesis. The Veteran is already in receipt of a separate rating for post-surgical scarring, so is being compensated for that. This analysis incorporates the Veteran's statements regarding the severity of his left shoulder disability. Certainly, even as a layman, he is competent to report the symptoms he experiences, such as pain and functional impairment. The Board appreciates his continued efforts to explain his symptoms and finds his statements credible. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). Extra-schedular Consideration Lastly, the Board has considered whether an extra-schedular rating for the Veteran's left shoulder disability is warranted. An extra-schedular disability rating is warranted if the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization that application of the regular schedular standards would be impracticable. 38 C.F.R. § 3.321(b)(1); Thun v. Peake, 22 Vet. App. 111,115-16 (2008). However, in this case, the evidence fails to show unique or unusual characteristics of the Veteran's left shoulder disability that would render the schedular rating criteria inadequate. The symptoms reported by the Veteran include shoulder pain, impaired range of motion, and associated functional impact. The schedular rating criteria specifically provide for ratings based on limitation of shoulder motion and functional loss including as due to pain. See 38 C.F.R. § 4.71a, Plate II; see Burton v. Shinseki, 25 Vet. App. 1, 4 (2011) (the majority of 38 C.F.R. § 4.59, which is a schedular consideration rather than an extra-schedular consideration, provides guidance for noting, evaluating, and rating joint pain). It is also noted that a January 2016 rating decision granted his claim for a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). So his inability to work in a substantially gainful capacity owing to the severity of his service-connected disabilities also already has been conceded. Thus, the assigned schedular rating is adequate and referral for consideration of an extra-schedular rating for his left shoulder disability especially under 38 C.F.R. § 3.321(b)(1) is not required. ORDER An increased disability rating of 30 percent for the Veteran's left shoulder disability is granted, subject to the statutes and regulations governing the payment of monetary benefits. REMAND As for his remaining claim, the Veteran's left foot condition is evaluated as 0-percent disabling (noncompensable) until October 26, 2013, and as 20-percent disabling since October 27, 2013, under Diagnostic Code 5284, which is the diagnostic code for foot injuries. In Yancy v. McDonald, the Veterans Court (CAVC) held that unlisted foot diagnoses may be evaluated by analogy under this diagnostic code, which assigns ratings based on the overall severity of the foot disorder. See Yancy v. McDonald, 27 Vet. App. 484 (2016). However, because the Veteran's medical records indicate he has several foot disabilities that are specifically listed, a remand is necessary to afford him a contemporaneous examination to evaluate whether these additional disabilities are related to his service and/or service-connected disabilities and whether a higher overall rating would result if his separate conditions are evaluated under their specific diagnostic codes. See Mittleider v. West, 11 Vet. App. 181 (1998) (explaining that, when it is not possible to separate the effects of the service-connected disability from a nonservice-connected condition, 38 C.F.R. §§ 3.102 and 4.3 require that VA resolve this reasonable doubt in the Veteran's favor and attribute the signs and symptoms to the service-connected disability). After determining which conditions are related to service, the examiner should provide information necessary for rating under any applicable foot diagnostic code and include a detailed discussion of the severity of the Veteran's overall foot conditions. The examiner should also, if feasible and to the extent possible, attribute the Veteran's symptoms including pain and swelling to a specific disability or disabilities. The Agency of Original Jurisdiction (AOJ) should then re-adjudicate the claim, assigning separate ratings for each identified compensable disability, if warranted AND more favorable to the Veteran. The AOJ should also ensure that any assigned staged ratings accurately reflect the timeline of any worsening of the Veteran's disability. See Hart v. Mansfield, 21 Vet. App. 505 (2007). Accordingly, this claim is REMANDED for the following action: 1. Obtain any updated VA or adequately-identified treatment records related to the Veteran's service-connected foot disabilities. 2. Then schedule the Veteran for an appropriate VA examination to assess the severity of his service-connected left foot disabilities. The claims folder and all pertinent medical records should be made available to the examiner for review. All necessary diagnostic testing should be performed. The examiner should have available for review a copy of the criteria in 38 C.F.R. § 4.71a , Diagnostic Codes 5003 and 5276-5284 and § 4.59, and the findings reported should be sufficiently detailed to allow for application of all pertinent criteria. Based on the examination and review of the claims file, the examiner should provide opinions on the following: a) Identify all of the Veteran's current left foot disabilities. In doing so, the examiner MUST specifically discuss the current diagnoses of plantar fasciitis (noted in February 2011 VA treatment record), flat feet (noted in November 2015 VA examination report), arthritis (noted in April 2012 and November 2015 VA examination reports), and retro-calcaneal spur (noted in April 2012 VA examination report). b) For all identified current left foot disabilities, state whether each is a residual of the service-connected left foot fracture. c) For any identified disability other than residuals of a left foot fracture, is it at least as likely as not that these identified disabilities had their onset in or are otherwise related to the Veteran's active service? d) For identified disabilities that are not left foot fracture residuals, is it at least as likely as not (a 50 percent or greater probability) that these identified disabilities are proximately due to, the result of, or aggravated by the Veteran's service-connected residuals of a left foot fracture? Aggravation in this context means the disability increased in severity beyond its natural progression. e) The examiner should comment on the nature and degree of reported symptoms (pain, swelling, etc.) and functional impairment and attribute these symptoms and impairment to a specific diagnosed disability or disabilities. The examiner should note whether or not the findings are affected by such factors as pain, use, periods of exacerbation, etc., and opine regarding any additional degree of disability resulting from such factors. If it is not feasible to provide this information, the examiner should so state and explain why. A detailed explanation (rationale) is requested for all opinions provided. (By law, the Board is not permitted to rely on any conclusion that is not supported by a thorough explanation. Providing an opinion or conclusion without a thorough explanation will delay processing of the claim and may also result in a clarification being requested). 3. Then readjudicate this claim in light of this and all other evidence. If this claim continues to be denied, or is not granted to the Veteran's satisfaction, send him a Supplemental Statement of the Case (SSOC) and give him and his representative opportunity to respond to it before returning the file to the Board for further appellate consideration of this claim. The Veteran has the right to submit additional evidence and argument concerning this claim the Board is remanding. Kutscherousky v. West, 12 Vet. App. 369 (1999). As a remand, this matter must be handled expeditiously. 38 U.S.C. §§ 5109B, 7112 (2012). _________________________________________________ Keith W. Allen Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs