Citation Nr: 1808620 Decision Date: 02/09/18 Archive Date: 02/20/18 DOCKET NO. 08-07 432 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUE Entitlement to a rating in excess of 30 percent for residuals of a right clavicle fracture. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD K. Lynch, Associate Counsel INTRODUCTION The Veteran served on active duty from February 1998 to April 2000. This matter comes before the Board of Veterans' Appeals (Board) from an August 2006 rating decision by a Department of Veterans Affairs Regional Office (RO). The Board remanded this matter for further evidentiary development in October 2011 and 2012. In August 2015, the Board decided the matter, holding that the Veteran was not entitled to a rating in excess of 20 percent for his residuals of a right clavicle fracture under either Diagnostic Code 5201 or 5203. The United States Court of Appeals for Veterans Claims (Court), the Court issued a Memorandum Decision in September 2016, vacating and remanding the Board's August 2015 denial. In April 2017, the Board granted the Veteran the maximum 30 percent rating under Diagnostic Code 5201. However, the Board further remanded the matter for a VA examination to determine if the Veteran exhibited symptoms that would entitle him to separate ratings under Diagnostic Codes 5200, 5202, 5203, and any additional diagnostic codes. The Board notes that additional evidence has been submitted since the December 2017 supplemental statement of the case without a waiver of RO review. However, review of this new evidence indicates that the evidence is either not relevant to the Veteran's claim, or is duplicative of other records that were present in the claims file at the time of the December 2017 supplemental statement of the case. As such, the Board may adjudicate the Veteran's claim. FINDINGS OF FACT 1. The Veteran does not suffer from ankylosis, such that abduction is limited to 25 degrees from one side; or is intermediate, between favorable and unfavorable; or is favorable, with abduction limited to 60 degrees, and the Veteran is able to reach his mouth and head. 2. The Veteran does not suffer from an impaired humerus, such that he has loss of head, or nonunion of false flail joint, or fibrous union recurrent dislocation at the scapulohumeral joint, or malunion of marked or moderate deformity. 3. The Veteran does not suffer from impairment of the clavicle or scapula, such as dislocation, or nonunion, or malunion. CONCLUSION OF LAW The criteria for a separate disability rating or an evaluation in excess of 30 percent for service-connected residuals of a right clavicle fracture have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5200, 5201, 5202, 5203 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION 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). VA's duty to notify was satisfied in a March 2006 letter. In its April 2016 brief to CAVC, the Veteran's representative argued that August 2006, April 2008, and April 2009 VA examinations were inadequate because they failed to provide sufficient information for the Board to determine the nature and severity of the Veteran's service-connected clavicle symptoms and the Veteran's functional impairment. In a subsequent April 2017 Board decision, the Board reviewed the prior VA examinations and considered functional loss due to pain, weakness, and during flare-ups. In light of that review, the Board assigned the Veteran a maximum 30 percent rating under Diagnostic Code 5201 for the minor arm. Further, the Board remanded the matter for a VA examination to determine if the Veteran was entitled to separate disability ratings under Diagnostic Codes 5200, 5202, and 5203. Reviewing the subsequent July 2017 VA examination, the Board finds it to be adequate. As such, VA has met its duty to assist. The Veteran and his representative have not raised any other 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 Ratings Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities. Ratings are based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. See 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 required for that rating. Otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7. In every instance where the rating schedule does not provide a zero percent evaluation for a diagnostic code, a zero percent evaluation shall be assigned when the requirements for a compensable evaluation are not met. 38 C.F.R. § 4.31. When evaluating musculoskeletal disabilities, VA must, in addition to applying schedular criteria, consider granting a higher rating in cases in which the Veteran experiences functional loss due to limited or excess movement, pain, weakness, excess fatigability, or incoordination (to include during flare-ups or with repeated use), 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. Johnson v. Brown, 9 Vet. App. 7 (1996). Disabilities of the shoulder and arm are rated under Diagnostic Codes 5200 through 5203. 38 C.F.R. § 4.71a, Diagnostic Codes 5200-5203. Normal ranges of upper extremity motion are defined by VA regulation as follows: forward elevation (flexion) from zero to 180 degrees; abduction from zero to 180 degrees; and internal and external rotation to 90 degrees. Lifting the arm to shoulder level is lifting it to 90 degrees. See 38 C.F.R. § 4.71, Plate I. Under Diagnostic Code 5200, ankylosis of the scapulohumeral articulation is when the scapula and humerus move as one piece. For the minor arm, favorable ankylosis, with abduction to 60 degrees (the ability to reach the mouth and head) is rated at 20 percent; intermediate, between favorable and unfavorable, ankylosis is rated at 30 percent; and unfavorable ankylosis of the scapulohumeral articulation with abduction limited to 25 degrees from the side warrants a 40 percent rating. Under Diagnostic Code 5201, limitation of motion of the minor arm to shoulder level warrants a 20 percent rating; limitation of motion of the minor arm midway between the side and shoulder level also warrants a 20 percent rating; and when motion is limited to 25 degrees from the side, a 30 percent rating is warranted. Under Diagnostic Code 5202, for other impairment of the humerus for the minor arm, recurrent dislocation of the humerus at the scapulohumeral joint with frequent episodes and guarding of all arm movements is rated at 20 percent; recurrent dislocation with infrequent episodes and guarding of movement only at the shoulder level is rated at 20 percent; and fibrous union of the humerus is rated at 40 percent; nonunion of the humerus is rated 50 percent; and a loss of the humerus head is rated at 70 percent. Under Diagnostic Code 5203, for impairment of the clavicle or scapula in the minor arm, a malunion or nonunion without loose movement is rated at 10 percent, and a nonunion with loose movement or for dislocation of the clavicle is rated at 20 percent. The intent of the rating schedule is to recognize painful motion with joint or particular pathology as productive of disability. It is the intention to recognize actually painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59. Pursuant to 38 C.F.R. § 4.59, painful motion should be considered limitation of 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). When 38 C.F.R. § 4.59 is raised by the claimant or reasonably raised by the record, the Board should address its applicability. See Burton v. Shinseki, 25 Vet. App. 1 (2011) (holding that the Board had failed to address painful motion and the applicability of 38 C.F.R. § 4.59 to an initial disability rating for residuals of a left shoulder injury with surgical repair). Granting service connection and assign a rating under a different Diagnostic Code for the same symptom would constitute impermissible pyramiding. 38 C.F.R. § 4.14 (2017); see also Esteban v. Brown, 6 Vet. App. 259 (1994). Analysis As an initial matter, the Board observes that the Veteran is left-handed, and his service-connected disability is on his right side. Thus, the criteria for a minor/non-dominant arm or joint apply to the service-connected residuals of a right clavicle fracture. In the April 2017 Board decision, the Veteran was granted the maximum 30 percent rating assigned for a minor arm under Diagnostic Code 5201. As noted in the decision, this 30 percent grant included consideration of pain, weakness, and flare-ups in determining the functional limitation of the minor arm. Additionally, in accordance with the April 2017 Board remand, the July 2017 VA examination assessed the Veteran's symptoms for the purpose of determining whether he was also entitled to separate ratings under Diagnostic Codes 5200, 5202, 5203, and any other additional diagnostic codes. With respect to Diagnostic Code 5200, the examiner stated that the Veteran did not suffer does not suffer from ankylosis, such that abduction is limited to 25 degrees from one side; or is intermediate, between favorable and unfavorable; or is favorable, with abduction limited to 60 degrees, and the Veteran is able to reach his mouth and head. As such, the Veteran is not entitled to a separate rating under Diagnostic Code 5200. With respect to Diagnostic Code 5202, the examiner stated that the Veteran did not suffer from an impaired humerus, such that he has loss of head, or nonunion of false flail joint, or fibrous union recurrent dislocation at the scapulohumeral joint, or malunion of marked or moderate deformity. As such, the Veteran is not entitled to a separate rating under Diagnostic Code 5202. With respect to Diagnostic Code 5203, the examiner stated that the Veteran did not suffer from impairment of the clavicle or scapula, such as dislocation, or nonunion, or malunion. However, the Veteran did test positive for right side cross-body adduction test. Nevertheless, the Board notes that there is no noted additional functional impairment associated with the adduction test under this rating criteria or any other applicable rating criteria. As such, the Veteran is not entitled to a separate rating under Diagnostic Code 5203. In sum, the evidence reflects that a 30 percent rating, and no higher, is warranted throughout the rating period. As the weight of the evidence is against the claim for a rating in excess of that already assigned, the doctrine of reasonable doubt is not for application. Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Extraschedular Consideration The Board has contemplated whether the case should be referred for extra-schedular consideration. 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). For all musculoskeletal disabilities, the rating schedule contemplates functional loss, which may be manifested by, for example, pain, decreased or abnormal excursion, strength, speed, coordination, flare-ups, or endurance. 38 C.F.R. § 4.40; DeLuca v. Brown, 8 Vet. App. 202, 205 (1995); Mitchell v. Shinseki, 25 Vet. App. 32, 37 (2011). For disabilities of the joints in particular, the rating schedule specifically contemplates factors such as weakened movement; excess fatigability; incoordination; pain on movement; swelling; deformity; instability of station; disturbance of locomotion; and interference with sitting, standing, and weight bearing. 38 C.F.R. §§ 4.45, 4.59. While the Veteran has complained of lifting and carrying with certain activities, such complaints are contemplated by the rating criteria and the provisions of 38 C.F.R. §§ 4.40, 4.45 and 4.59. The Board observes that lifting and carrying is a result of the functional loss resulting from the Veteran's service-connected residuals of a right clavicle fracture, which is contemplated by DC 5201 and 38 C.F.R. §§ 4.40, 4.45 and 4.59. However, the September 2016 CAVC Order further required the Board to consider other symptoms such as insomnia and difficulty concentrating in extraschedular analysis. The Veteran contends that he has insomnia and difficulty concentrating that are related to his service-connected residuals of a right clavicle fracture. Review of the claims file finds no additional claimed symptoms to include in the following analysis. Regarding insomnia and difficulty concentrating, in February 2009, the Veteran received service connection for depression secondary to the service-connected disability of residuals, right clavicle, status post-surgical repair. The Board observes that this 50 percent rating specifically includes consideration of symptoms of insomnia and difficulty concentration. 38 C.F.R. § 4.130. As such, the Veteran is not entitled to extraschedular consideration of these same symptoms a second time since this would constitute impermissible pyramiding. 38 C.F.R. § 4.14. Because the schedular rating criteria are adequate to rate the Veteran's residuals of a right clavicle fracture and his associated symptoms, there is no exceptional or unusual disability picture to render impractical the application of the regular schedular standards. Therefore, the Board finds that the schedular rating criteria reasonably describe the Veteran's disability level and symptomatology and the assigned schedular ratings are adequate. In the absence of exceptional factors associated with the Veteran's residuals of a right clavicle fracture, the Board finds that the criteria for submissions for assignment of an extraschedular rating pursuant to 38 C.F.R. § 3.321(b)(1) are not met. See Bagwell v. Brown, 9 Vet. App. 337 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). ORDER Entitlement to a rating in excess of 30 percent for residuals of a right clavicle fracture is denied. ____________________________________________ MICHAEL LANE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs