Citation Nr: 1807226	
Decision Date: 02/05/18    Archive Date: 02/14/18

DOCKET NO.  14-04 354	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs (VA) and Regional Office (RO) in Wichita, Kansas


THE ISSUE

Entitlement to an initial disability rating in excess of 20 percent for left acromioclavicular joint degenerative joint disease with instability. 


REPRESENTATION

Appellant represented by:	The American Legion


ATTORNEY FOR THE BOARD

E. Morgan, Associate Counsel



INTRODUCTION

The Veteran had active duty service from March 1982 to September 1988.

This appeal comes before the Board of Veterans' Appeals (Board) from a September 2012 rating decision from the RO in Wichita, Kansas.

The Veteran previously requested a hearing before the Board in February 2014. A Travel Board hearing was scheduled for June 24, 2015. The Veteran canceled the hearing and informed VA that she would not be attending the hearing. Thus, her hearing request is deemed withdrawn.


FINDING OF FACT

Left acromioclavicular joint degenerative joint disease with instability is more appropriately rated under Diagnostic Code 5202, which is manifested by recurrent dislocation of the scapulohumeral joint with infrequent episodes and guarding of movement at the shoulder level. 


CONCLUSION OF LAW

The criteria for an increased rating in excess of 20 percent for left acromioclavicular joint degenerative joint disease with instability have not been met. 38 U.S.C. §§ 1155, 5107(b) (2012); 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5010-5202 (2017). 



REASONS AND BASES FOR FINDING AND CONCLUSION

Neither the Veteran nor the 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 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).

Disability ratings are determined by evaluating the extent to which a service-connected disability adversely affects the ability to function under the ordinary conditions of daily life, including employment, by comparing symptomatology with the criteria set forth in the Schedule for Rating Disabilities. See 38 U.S.C. § 1155, 38 C.F.R. § 4.1. 

If two ratings are potentially applicable, the higher rating will be assigned if the disability more nearly approximates the criteria required for that rating; otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability will be resolved in favor of the veteran. See 38 C.F.R. § 4.3.

A disability rating may require re-evaluation in accordance with changes in condition. Thus, it is essential that the disability be considered in the context of the entire recorded history when determining the level of current impairment. 38 C.F.R. § 4.1. See also Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Nevertheless, where a veteran is appealing the rating for an already established service-connected condition, his/her present level of disability is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, when an appeal is based on the assignment of an initial rating for a disability, following an initial award of service connection for this disability, the rule articulated in Francisco does not apply. Fenderson v. West, 12 Vet. App. 119 (1999). Instead, the evaluation must be based on the overall recorded history of a disability, giving equal weight to past and present medical reports. Id. Staged ratings are appropriate for an increased-rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007).

The Veteran's left shoulder disability has been rated under 38 C.F.R. § 4.71a, Diagnostic Codes 5010-5201. Hyphenated diagnostic codes are used when a rating under one diagnostic code requires use of an additional diagnostic code to identify the basis for the evaluation assigned; the additional code is shown after the hyphen. 38 C.F.R. § 4.27 (2017). The Veteran is right hand dominant, therefore her left arm is evaluated as her minor arm. 

In rating the Veteran's left shoulder disability, the Board notes that under Diagnostic Code 5010, traumatic/degenerative arthritis established by x-ray findings is rated according to limitation of motion for the joint or joints involved. The Veteran's left shoulder disability is currently assigned a 20 percent rating pursuant to Diagnostic Code 5201, which pertains to limitation of motion of the arm. See 38 C.F.R. § 4.71a, Diagnostic Code 5201. 

Under Diagnostic Code 5201, a 20 percent rating is warranted for limitation of motion of the minor arm when motion is possible only to the shoulder level. When motion is to midway between the side and shoulder level, a 20 percent evaluation is assigned for the minor arm. When motion is limited to 25 degrees from the side, a 30 percent rating is assigned for the minor arm. 38 C.F.R. § 4.71a. 

Also documented in the record is evidence of dislocations of the Veteran's left shoulder. Therefore, the Board will also consider whether the Veteran is entitled to a higher rating under Diagnostic Code 5202. Under Diagnostic Code 5202, recurrent dislocation of the minor arm at the scapulohumeral joint warrants a 20 percent rating for infrequent episodes and guarding of movement only at shoulder level and for frequent episodes and guarding of all arm movements. 38 C.F.R. § 4.71a
For VA compensation purposes, the normal findings for range of motion (ROM) of the shoulder are flexion and abduction to 180 degrees, and rotation, both internal and external, to 90 degrees. 38 C.F.R. § 4.71, Plate I. 

Rating factors for a disability of the musculoskeletal system include functional loss due to pain supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion, weakness, excess fatigability, incoordination, pain on movement, swelling, or atrophy. See 38 C.F.R. §§ 4.40, 4.45; DeLuca v. Brown, 8 Vet. App. 202, 205-06 (1995). As such, in evaluating musculoskeletal disabilities, VA must determine whether pain could significantly limit functional ability during flare-ups, or when the joints are used repeatedly over a period of time. See DeLuca, 8 Vet. App. at 206. 

Under 38 C.F.R. § 4.59, painful motion is a factor to be considered with any form of arthritis; however, this regulation is not limited to disabilities involving arthritis. See Burton v. Shinseki, 25 Vet. App. 1 (2011). The U.S. Court of Appeals for Veterans Claims has held that "pain itself does not rise to the level of functional loss as contemplated by VA regulations applicable to the musculoskeletal system."  See Mitchell v. Shinseki, 25 Vet. App. 32, 38 (2011). Rather, pain may result in functional loss, but only if it limits the ability to "perform the normal working movements of the body with normal excursion, strength, speed, coordination [, or] endurance."  38 C.F.R. § 4.40.

In this case, the RO granted service connection for the Veteran's left shoulder disability in a September 2012 rating decision, effective October 2011. The Veteran's left shoulder disability was evaluated at 20 percent disabling for limited motion of her left arm at the shoulder level. The Veteran filed a notice of disagreement (NOD) in November 2012. Subsequent to the Veteran's NOD, the RO issued a statement of the case (SOC). In February 2014, the RO received the Veteran's VA Form 9 to appeal only a specific issue from the SOC to the Board. On her VA Form 9, the Veteran asserted that she warrants an increase to 30 percent disabling for her left shoulder as a result of functional loss due to pain, weakness and lack of endurance. 

In July 2012, the Veteran was afforded a VA examination for her left shoulder disability. The examiner reported that the Veteran is right hand dominant. The Veteran's left shoulder flexion was 85 degrees, and her left shoulder abduction was 85 degrees with objective pain at 85 degrees. The examiner reported that the Veteran has a history of frequent episodes of recurrent dislocation (subluxation) of the left shoulder with guarding of movements at the left shoulder level and the left arm. The examiner reported that the Veteran performed repetitive testing and after three repetitions, there was less than normal movement, weakened movement and pain on movement of the Veteran's left shoulder. The examiner noted that the left shoulder range of motion did not diminish. The Veteran reported flare-ups of the left shoulder, which in the Veteran's words, produced left shoulder discomfort with overhead activity. 

A February 2017 VAMC orthopedic consultation note shows that the Veteran had a history of recurrent left shoulder dislocations while she was in the military. The Veteran underwent reconstructive surgery of her left shoulder in military. For the last several years she had multiple dislocations. The Veteran reported that every time she had a left shoulder dislocation, she would go to a private medical center for relocation. She reported having received multiple steroid injections for increasing left shoulder pain. The Veteran reported using Flexeril for pain control. According to the Veteran, a private physician has offered her shoulder replacement surgery. A physical examination of the Veteran's left shoulder showed painful range of motion. The treating physician reported that the Veteran was very reluctant to do any motion because of the fear of dislocation. The treating physician reported that the Veteran was able to do 0 to 80 degrees of left shoulder abduction and 0 to 90 degrees of left shoulder forward flexion with pain. The physician reported that x-rays of left shoulder showed advanced traumatic arthritis. 

After review of the evidence of record in its entirety, the Board finds that the preponderance of the evidence is against an increase in the Veteran's initial disability rating for left acromioclavicular joint degenerative joint disease with instability. However, having concluded that, the Board finds that the Veteran would be more appropriately rated under Diagnostic Code 5202 for recurrent dislocation of the left shoulder. The evidence in the record is replete with the Veteran complaining of recurrent dislocations of her left shoulder. In the July 2012 VA medical examination report that provided the positive opinion between the current disability and service, the examiner specifically mentioned the current left shoulder dislocations that the Veteran experienced in service and that same symptom then. When she was treated in February 2017, the Veteran told the examiner that she continued to experience dislocations of her left shoulder. She described six dislocations in the last two years, which amounts to about three dislocations per year. For the minor arm, a 20 percent rating is warranted for infrequent and frequent dislocations of the scapulohumeral joint. Therefore, the Veteran's hyphenated Diagnostic Code should be 5010-5202. 

The Veteran is at the maximum rating for dislocation of the left shoulder. In order to be entitled to a higher rating, her limitation of motion would need to be limited to 25 degrees from the side. This limitation of motion has not been demonstrated during the appeal. For example, at the time of the July 2012 VA examination, her limitation of motion was to 85 degrees. When evaluated in February 2017, her abduction was to 80 degrees. Neither of these ranges are limited to 25 degrees from her side to warrant a 30 percent rating. 

The Board finds that separate ratings under Diagnostic Codes 5201 and 5202 are warranted. The Veteran's rating under Dignostic Code 5202 contemplates guarding of all arm movements. Thus, a separate rating based on limitation of motion would essentially doubly compensate the Veteran for the same symptomatology, i.e., decreased ability to move her arm. This would violate the law against pyramiding, which specifically states that the evaluation of the same manifestations under various diagnoses is to be avoided. See 38 C.F.R. § 4.14 .

In November 2017, the Veteran's representative submitted an informal hearing brief  (IHP) referring the Board to evidence previously submitted by the Veteran and her representatives. The representative referred the Board to the NOD, VA Form 9, and statements submitted by the Veteran's representative in February 2014 and in June 2015. The memorandum infers that the Veteran is seeking the maximum benefit available. 

The NOD and the VA Form 9, submitted by the Veteran, refer to 38 C.F.R. § 4.45 and DeLuca v. Brown, 8 Vet. App. 202 (1995) as the basis for an increase in the Veteran's left shoulder disability evaluation. The Veteran asserted that the functional loss of her ability to perform household chores or carry groceries warrant an increase her left shoulder disability evaluation. On the VA Form 9, submitted by the Veteran, she asserted that during flare-ups her left shoulder range of motion is reduced to 6 inches away from her hip. 

The Board notes that less movement than normal, weakened movement, excess fatigability, incoordination and pain on movement within 38 C.F.R. § 4.45 and DeLuca v. Brown, 8 Vet. App. 202 (1995), are already considered in Diagnostic Code 5201. The Board finds the July 2012 VA examination and February 2017 VAMC consultation note pertinent and persuasive evidence. Based on the range of motion reported in the July 2012 VA examination and in the February 2017 VAMC consultation note, the Board finds that any additional limitation of motion or functional loss caused by pain or weakness is not significant enough to conclude that the Veteran's symptoms more nearly approximated limitation of the left arm to 25 degrees from her side warranting a disability rating in excess of 20 percent under Diagnostic Code 5201. DeLuca, 8 Vet. App. at 204-07; 38 C.F.R. §§ 4.40 and 4.45. Also, the Board notes that repetitive testing was reported by the July 2012 VA examiner and the Veteran's range of motion, for her left shoulder, was not diminished though she had less movement, weakened movement and pain after repetitive testing.

The Veteran also submitted correspondence in December 2011 addressing the limitations she experiences due to her left shoulder disability. She asserted that she is unable to wash her back or reach backwards while showering. However, the Board also notes that the Veteran was able to shower while in a VAMC in-patient program without any assistance in 2015 and 2016. The Veteran also reported to VAMC treating physicians that she was able to drive to medical appointments. The Veteran reported needing to stop while driving due to light-headedness but not due to her left shoulder disability. While, the evidence of record shows that the Veteran has left shoulder disability and limitation of motion the preponderance of the evidence of record is against an increase in the Veteran's left shoulder disability evaluation. 

The Veteran submitted two buddy statements regarding her physical limitations due to her left shoulder disability. The Veteran or any other layperson is competent to report on matters observed or within his personal knowledge. See Kahana v. Shinseki, 24 Vet. App. 428, 438 (2011); Jandreau v. Nicholson, 492 F.3d 1372-1377 (Fed. Cir. 2007); and Jones v. Brown, 7 Vet. App. 134, 137-38 (1994). However, even accepting the facts in these lay statements, they do not establish that the Veteran's disability warrants a higher rating. 

In sum, the Board finds that the preponderance of the evidence is against an increase in the Veteran's left shoulder disability evaluation in excess of 20 percent. See 38 C.F.R. § 4.71a, Diagnostic Code 5201. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine is not applicable. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990).	



ORDER

Entitlement to an initial disability rating in excess of 20 percent for left acromioclavicular joint degenerative joint disease with instability is denied.




____________________________________________
A. P. SIMPSON
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs