Citation Nr: 1814552 Decision Date: 03/13/18 Archive Date: 03/19/18 DOCKET NO. 14-10 935 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUE Entitlement to a rating in excess of 20 percent for a right shoulder disability prior to February 9, 2017, and as of April 1, 2017. REPRESENTATION Appellant represented by: Virginia Department of Veterans Services WITNESSES AT HEARING ON APPEAL Appellant and Spouse ATTORNEY FOR THE BOARD S. Layton, Counsel INTRODUCTION The Veteran served on active duty from March 27, 1990, to October 12, 1990, from February 24, 2003, to June 30, 2003; from December 7, 2003, to March 31, 2005; and from March 24, 2008, to June 29, 2008. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2012 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee for the Roanoke, Virginia RO. In November 2017, the Veteran and her spouse testified at a videoconference hearing before the undersigned. A transcript of the hearing is of record. A September 2017 RO rating decision assigned a higher 20 percent rating for the right shoulder disability. However, as a higher rating is available for the right shoulder disability, and the Veteran is presumed to seek the maximum available benefit for a disability, the claim for a higher rating remains on appeal. AB v. Brown, 6 Vet. App. 35 (1993). FINDING OF FACT Throughout the entire period of appeal, with the exception of the period for which a temporary total rating was assigned, the Veteran's right shoulder disability is manifested by no more than limitation of motion to approximately shoulder level with pain, tenderness, and degenerative joint disease. CONCLUSION OF LAW The criteria for a rating higher than 20 percent for a right shoulder disability have not been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 3.321, 4.40, 4.45, 4.71a, Diagnostic Code 5003, 5010, 5201, 5203 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION While the Board must provide reasons and bases supporting this decision, there is no need to discuss, in detail, the evidence submitted by or on behalf of the Veteran. Gonzales v. West, 218 F.3d 1378 (Fed. Cir. 2000) (Board must review the entire record, but does not have to discuss each piece of evidence). The analysis below focuses on the most salient and relevant evidence of record. The Veteran should not assume that the Board has overlooked pieces of evidence that are not explicitly discussed. Timberlake v. Gober, 14 Vet. App. 122 (2000). The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence that it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the Veteran. Equal weight is not given to each piece of evidence contained in the record. Every item of evidence does not have the same probative value. When the evidence is assembled, the Board is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Duties to Notify and Assist VA has a duty to notify a Veteran of the information and evidence necessary to substantiate a claim for VA benefits. 38 U.S.C. §§ 5103, 5103A (2012); 38 C.F.R. § 3.159 (2017). VA also has a duty to assist Veterans in the development of claims. 38 U.S.C. §§ 5103, 5103A (2012). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C. § 5103(a) (2012); 38 C.F.R. § 3.159(b) (2017); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper notice from VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will to provide; and (3) that the claimant is expected to provide. The notice should be provided prior to an initial unfavorable decision on a claim by the agency of original jurisdiction. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). The notice requirements apply to all five elements of a service-connection claim, to include (1) Veteran status; (2) existence of a disability; (3) a connection between service and the disability; (4) degree of disability; and (5) effective date of the disability. The notice should include information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Dingess v. Nicholson, 19 Vet. App. 473 (2006). Correspondence dated in July 2012 provided all necessary notification to the Veteran. VA has done everything reasonably possible to assist the Veteran with respect to the claims for benefits. 38 U.S.C. § 5103A (2012); 38 C.F.R. § 3.159(c) (2017). The service medical records have been associated with the claims file. All identified and available treatment records have been secured, which includes VA examinations and VA medical records. The duty to assist includes, when appropriate, the duty to conduct a thorough and contemporaneous examination of the veteran. Green v. Derwinski, 1 Vet. App. 121 (1991). When VA provides an examination, the examination must be adequate. Barr v. Nicholson, 21 Vet. App. 303 (2007). The Veteran has been provided VA examinations, most recently in September 2017. The examiners reviewed the claims file and medical history, and made appropriate diagnoses and opinions consistent with the remainder of the evidence of record. The Board concludes that the VA examination reports are adequate for the purpose of making a decision. 38 C.F.R. § 4.2 (2016); Barr v. Nicholson, 21 Vet. App. 303 (2007). The Board is satisfied that all relevant facts have been adequately developed to the extent possible and that no further assistance is required to comply with the duty to assist. Accordingly, the Board will proceed with a decision. Right Shoulder Disability ratings are determined by the application of VA's Schedule for Rating Disabilities, which is based on average impairment of earning capacity resulting from a service-connected disability. 38 U.S.C. § 1155 (2012); 38 C.F.R. Part 4 (2017). Where there is a question as to which of two ratings shall be applied, the higher rating 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 (2017). After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3 (2017). The Veteran's entire history is to be considered when assigning disability ratings. 38 C.F.R. § 4.1 (2017); Schafrath v. Derwinski, 1 Vet. App. 589 (1995). A claimant may experience multiple distinct degrees of disability that may result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. Hart v. Mansfield, 21 Vet. App. 505 (2007). The following analysis is undertaken with consideration of the possibility that different ratings may be warranted for different time periods. Rating a service-connected disability involving a joint rated on limitation of motion requires adequate consideration of functional loss due to pain and functional loss due to weakness, fatigability, incoordination, or pain on movement of a joint. 38 C.F.R. §§ 4.45 (2017); DeLuca v. Brown, 8 Vet. App. 202 (1995). Disability of the musculoskeletal system is primarily the inability, due to damage or infection in 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 portrays the anatomical damage, and the functional loss, with respect to these elements. In addition, the regulations state that the functional loss may be due to pain, supported by adequate pathology and evidenced by the visible behavior of the veteran undertaking the motion. Weakness is as important as limitation of motion, and a part which becomes painful on use must be regarded as seriously disabled. 38 C.F.R. § 4.40 (2017). When rating the joints, inquiry will be directed as to whether there is less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement. 38 C.F.R. § 4.45 (2017). The intent of the schedule is to recognize painful motion with joint or periarticular 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 (2017). Arthritis shown by X-ray studies is rated based on limitation of motion of the affected joint. When limitation of motion would be noncompensable under a limitation-of-motion code, but there is at least some limitation of motion, a 10 percent rating may be assigned for each major joint so affected. 38 C.F.R. § 4.71a, Diagnostic Codes 5003, 5010 (2017). Diagnostic Code 5010, for rating traumatic arthritis, directs that traumatic arthritis be rated under Diagnostic Code 5003, which states 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. 38 C.F.R. § 4.71a, Diagnostic Code 5010 (2017). The limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. 38 C.F.R. § 4.71a, Diagnostic Code 5003 (2017). In the absence of limitation of motion, X-ray evidence of arthritis involving two or more major joints or two or more minor joint groups, will warrant a rating of 10 percent. In the absence of limitation of motion, X-ray evidence of arthritis involving two or more major joint groups with occasional incapacitating exacerbations will warrant a 20 percent rating. The above ratings are to be combined, not added under Diagnostic Code 5003. Ratings for arthritis cannot be combined with ratings based on limitation of motion of the same joint. 38 C.F.R. § 4.71a, Diagnostic Code 5010, Note 1 (2017). With regard to the right shoulder disability, the Veteran has not been shown to have ankylosis of the scapulohumeral articulation. Nor is there objective evidence of impairment of the humerus, such as loss of the head of the humerus (flail shoulder), nonunion of the shoulder (flail joint), fibrous union of the humerus, recurrent dislocation of the humerus at the scapulohumeral joint, or malunion of the humerus. Accordingly, the criteria pertaining to rating those disabilities are not applicable. 38 C.F.R. § 4.71a, Diagnostic Codes 5200, 5202 (2017). Normal forward flexion of the shoulder is from 0 to 180 degrees, normal abduction is from 0 to 180 degrees, and normal internal and external rotation is from 0 to 90 degrees. Forward flexion and abduction to 90 degrees amounts to shoulder level. 38 C.F.R. § 4.71, Plate I (2017). Diagnostic Code 5201 provides for limitation of motion of the arm. The criteria in Diagnostic Code 5201 provide different ratings for the minor arm and the major arm. The Veteran has indicated in service medical records and at VA examinations that she is right-handed. Therefore, with respect to the right shoulder, the Board will apply the ratings and criteria for the major arm under the relevant diagnostic codes. The diagnostic criteria pertaining to traumatic arthritis are applicable where limitation of motion of the shoulder is noncompensable. 38 C.F.R. § 4.71a, Diagnostic Codes 5003, 5010 (2017). Under Diagnostic Code 5201, a 20 percent rating is warranted where there is limitation of motion of the major arm at shoulder level. A 30 percent rating is warranted where there is limitation of motion of the major arm to midway between the side and shoulder level. A 40 percent rating is warranted where motion of the major arm is limited to 25 degrees from the side. 38 C.F.R. § 4.71a, 5201 (2017). Service connection for a right shoulder disability was established in a January 2006 RO decision, effective April 1, 2005. The present claim for a higher rating was received in July 2012. On VA examination in August 2012, the Veteran reported experiencing flare-ups of right shoulder pain. The examiner measured right shoulder forward flexion to 140 degrees without pain. Abduction was to 130 degrees without pain. After repetitive use, flexion was to 135 degrees, and abduction was to 120 degrees. Weakened movement and excess fatigability were observed. There was localized tenderness or pain on palpation of the right shoulder joint. No ankylosis was present. The Veteran had trouble typing, and she could not perform heavy lifting. A February 2013 VA treatment record contains the Veteran's report that she was unable to lift her right arm above 90 degrees. In June 2013, a VA treatment provider found that the Veteran had right shoulder forward flexion to about 160 degrees. Adduction was to about 160 degrees. External rotation was to 30 degrees. A VA orthopedic note from December 2013 shows that the Veteran had right shoulder abduction of 120 degrees. Forward flexion was to 90 degrees. External rotation was to 30 degrees. In September 2015, the Veteran told a VA treatment provider that she had difficulty lifting her right arm above 90 degrees. A January 2016 VA treatment record shows that the Veteran had full active and passive ranges of motion for the right shoulder. On VA examination in June 2015, the examiner noted that the Veteran was right hand dominant. The Veteran stated that she could not lift objects or perform repetitive tasks. The examiner measured forward flexion of the right shoulder to 90 degrees. Abduction was to 90 degrees. External rotation was to 45 degrees. Internal rotation was to 20 degrees. After repetitive use testing, flexion was to 80 degrees, abduction was to 75 degrees, external rotation was to 40 degrees, and internal rotation was to 20 degrees. Pain was noted on examination, and there was evidence of pain with weight bearing. The examination was being conducted during a flare-up. The Veteran did not have muscle atrophy. No ankylosis was present. In September 2016, a VA treatment provider found that the Veteran's right shoulder abduction was limited to approximately 75 degrees. Flexion was limited to 90 degrees. A VA treatment record from December 2016 shows that the Veteran was only able to raise her right arm up to about 90 to 100 degrees. Abduction was to 80 to 90 degrees. External rotation was to about 20 degrees. On February 9, 2017, the Veteran underwent right shoulder surgery. A temporary total disability rating was assigned from February 9, 2017, to March 31, 2017, based on the need for surgical convalescence. An April 2017 VA treatment record shows that the Veteran had forward flexion of the right shoulder to 140 degrees. Abduction was to 120 degrees. Another treatment record from April 2017 shows that the Veteran had active abduction of the right shoulder to 120 degrees. Forward flexion was to 150 degrees. External rotation was to 45 degrees. A VA orthopedic note from September 2017 shows that the Veteran had active abduction of the right shoulder to 45 degrees. Forward flexion was to 90 degrees. There was full internal and external rotation of the shoulder. No sensory deficits were present. On VA examination in September 2017, the Veteran reported experiencing flare-ups of the right shoulder during repeated movements. The Veteran could not write or type for long periods of time. The examiner measured flexion of the right shoulder to 70 degrees. Abduction was to 65 degrees. External rotation was to 10 degrees. Internal rotation was to 50 degrees. Pain was noted on rest. There was evidence of pain with weight bearing. There was no objective evidence of crepitus. After three repetitions, flexion was to 70 degrees; abduction was to 60 degrees; external rotation was to 10 degrees; internal rotation was to 40 degrees. Pain, fatigue, and lack of endurance contributed to functional loss. The examiner specified that the current examination was being conducted during a flare-up. The Veteran did not have muscle atrophy. No ankylosis was present. No shoulder instability, dislocation, or labral pathology was suspected by the examiner. No clavicle, scapula, acromioclavicular joint or sternoclavicular joint conditions were suspected. The Veteran did not have loss of head, nonunion, or fibrous union of the humerus. The Veteran did not have malunion of the humerus. The Veteran occasionally used a sling. At the Veteran's November 2017 Board hearing, the Veteran reported experiencing flare-ups three to four times a week. She wore button-down clothes. Her husband assisted her with her jewelry and her hair. She had difficulty driving for over an hour. She had to take breaks at work to rest her arm. In the past, her workspace had been modified due to her shoulder disability. Her husband performed most of the cooking and cleaning. She had used a sling and received physical therapy. After review of all of the evidence of record, the Board finds that a rating in excess of 20 percent is not warranted at any time during the period of appeal, excepting the period for which a temporary total disability rating has previously been awarded. All examiners of record have indicated that the Veteran has been able to raise the right arm to above midway between the side and shoulder level, even with consideration of pain, fatigue, weakness, or lack of endurance following repetitive use. The evidence of record shows that at worst, the Veteran's right arm was limited to 70 degrees motion. The Board finds that the evidence does not show that the Veteran's right arm was limited to midway between side and shoulder level, or 45 degrees, even with consideration of any limitation of motion due to pain or other functionally limiting factors. The Board finds that the clinical evidence does not support the criteria for a 30 percent rating, and the Veteran's right shoulder disability most nearly approximates the criteria for a 20 percent rating. That does not end the inquiry, as the Board must consider functional loss and the impact of pain upon the disability. In this case, the medical evidence shows that the Veteran has consistently complained of pain in shoulder motion. 38 C.F.R. §§ 4.40, 4.45 (2017). However, the effect of right shoulder pain is included in the currently assigned 20 percent rating. The limitation of motion and functional loss documented in the medical records as resulting from pain, including flare-ups, is already contemplated in the disability rating now currently assigned. Moreover, although the Veteran had pain on repetitive motion, that pain did not result in limitation of motion to the level that a separate or higher rating would be warranted. There is otherwise no evidence of additional significant impairment of motor skills, muscle function, or strength attributable to the right shoulder disability beyond what is already being compensated. Consequently, the Board finds that a higher disability rating based on limitation of motion is not warranted for the right shoulder. Accordingly, the Board finds that the preponderance of the evidence is against the claim for an increased rating for a right shoulder disability. Therefore, the appeal must be denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C. § 5107 (2012); 38 C.F.R. § 3.102 (2017). Other Considerations Ordinarily, VA's Rating Schedule will apply unless there are exceptional or unusual factors which would make application of the schedule impractical. Fisher v. Principi, 4 Vet. App. 57 (1993). An extraschedular rating can be assigned based upon a finding that 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 would make impractical the application of the regular schedular standards. 38 C.F.R. § 3.321(b)(1) (2017). There is a three-step inquiry for determining whether a Veteran is entitled to an extraschedular rating. First, the Board must determine whether the evidence presents such an exceptional disability picture that the available schedular ratings for that service-connected disability are inadequate. Second, if the schedular rating does not contemplate the claimant's level of disability and symptomatology and is found inadequate, the Board must determine whether the claimant's disability picture exhibits other related factors such as those provided by the regulation as governing norms. Third, if the rating schedule is inadequate to rate a Veteran's disability picture and that picture has attendant thereto related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether, to accord justice, the Veteran's disability picture requires the assignment of an extraschedular rating. Thun v. Peake, 22 Vet App 111 (2008). The Board finds that the evidence in this case does not show an exceptional disability picture and the available schedular ratings for the service-connected right shoulder disability at issue are adequate. The rating criteria reasonably describe the Veteran's disability levels and symptomatology due to this service-connected disability. There is no competent and credible evidence of record that the Veteran has symptoms of this disability that are not considered in the rating criteria. Higher ratings are available, but the symptoms required for those higher ratings to be assigned, are not shown. Considering the variety of ways in which the rating schedule contemplates shoulder disabilities, the Board concludes that the schedular criteria reasonably describe the Veteran's disability picture. The Board finds nothing exceptional or unusual about the Veteran's disabilities because the rating criteria contemplate her symptomatology and the symptomatology shown is adequately compensated by the available rating criteria. Thun v. Peake, 22 Vet App 111 (2008). Therefore, the Board finds that referral for consideration of the assignment of an extraschedular rating for the disabilities on appeal is not warranted. 38 C.F.R. § 3.321(b)(1) (2017). ORDER Entitlement to a rating in excess of 20 percent for a right shoulder disability prior to February 9, 2017, and as of April 1, 2017, is denied. ____________________________________________ Harvey P. Roberts Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs