Citation Nr: 1815146 Decision Date: 03/09/18 Archive Date: 03/19/18 DOCKET NO. 06-21 778 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Seattle, Washington THE ISSUE Entitlement to a disability evaluation in excess of 20 percent prior to January 19, 2011 and in excess of 30 percent thereafter, for a right shoulder rotator cuff tear with probable labral tear (hereinafter, right shoulder disability). REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD R. I. Sims, Associate Counsel INTRODUCTION The Veteran served on active duty from June 1968 to June 1971, December 1973 to May 1979, and October 1981 to March 1993. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2005 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Seattle, Washington that denied an increased disability rating. During the pendency of the appeal, the Veteran's disability evaluation was increased from ten percent to thirty percent. This appeal has previously been before the Board, most recently in December 2010, when it was remanded to conduct additional development, obtain a VA examination, and ensure compliance with a July 2009 Board Remand Order. The Board finds that its remand instructions have been substantially complied with, and the Board will proceed in adjudicating the Veteran's claim. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (noting that when the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance); see also D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); Dyment v. West, 13 Vet. App. 141, 146-47 (1999). FINDINGS OF FACT 1. Prior to January 19, 2011, at worst, the Veteran's right shoulder disability demonstrated flexion functionally limited by pain to 90 degrees, and abduction functionally limited by pain to 75 degrees. 2. Since January 19, 2011, the Veteran's right shoulder disability demonstrated flexion and abduction functionally limited by pain to 40 degrees. CONCLUSION OF LAW The criteria for a disability evaluation in excess of 20 percent prior to January 19, 2011 and in excess of 30 percent thereafter, for a right shoulder disability have not been met. 38 U.S.C. §§ 1155, 5107 (2012), 38 C.F.R. §§ 3.102, 3.321, 4.1, 4.2, 4.40, 4.45, 4.59, 4.69, 4.71, 4.71a, Diagnostic Code 5201 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duties to Notify and Assist Under applicable criteria, VA has certain notice and assistance obligations to claimants. See 38 U.S.C. §§ 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). In this case, required notice was provided, and neither the Veteran, nor his representative, has either alleged, or demonstrated, any prejudice with regard to the content or timing of VA's notices or other development. See Shinseki v. Sanders, 129 U.S. 1696 (2009). Thus, adjudication of his claim at this time is warranted. With respect to the duty to assist, the Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159(c). The Veteran's service treatment records, VA treatment records, and private treatment records have been obtained, to the extent available. The Veteran chose not to present testimony at a Board hearing. The Veteran was afforded two VA examinations in connection with his claim. The Veteran, through his representative, asserts the most recent VA examination (conducted July 2011) is too old to allow the Board to make a fully informed decision and thus his appeal is not ready for review. The Board notes that the duty to assist includes, when appropriate, conducting an examination when the evidence of record does not reflect the current state of the Veteran's disability. Green v. Derwinski, 1 Vet. App. 121 (1991); Schafrath v. Derwinski, 1 Vet. App. 589 (1991); 38 C.F.R. § 3.327(a) (2016). The duty to assist does not require that a claim be remanded solely because of the passage of time since an otherwise adequate examination was conducted. VAOPGCPREC 11-95. In this case, the Board finds that the evidence of record sufficiently reflects the current disability. Specifically, the record includes medical treatment records and statements from the Veteran that address the severity of his disability. Additionally, a January 2014 VA examination is of record. Though the examination is not specific to the right shoulder, it includes objective findings related to the right shoulder. Further, there has been no assertion from the Veteran or his representative that his condition has worsened since the January 2011 VA examination, rather that he was improperly rated based on such examination. The existing medical evidence of record is therefore adequate for the purpose of rendering a decision in the instant appeal. 38 C.F.R. § 4.2 (2017); Barr, 21 Vet. App. 303 (2007). The Board finds that there is no further action to be undertaken to comply with the provisions of 38 U.S.C. § 5103(a), § 5103A, or 38 C.F.R. § 3.159, that the record includes adequate, competent evidence to allow the Board to decide this matter, and that the Veteran will not be prejudiced as a result of the Board's adjudication of his claim. II. Increased Rating In March 2005, the Veteran filed an increased rating claim. At the time of filing, the Veteran's right shoulder disability was rated as 10 percent disabling. The Veteran's 10 percent rating was continued and he timely appealed. The Veteran's disability rating was increased to 20 percent effective March 2005 and the Veteran continued pursuing his appeal. After a Board remand and VA examination, the Veteran's disability rating was increased to 30 percent effective January 2011. The Veteran asserts that the 30 percent disability rating is insufficient to address the limitations he experiences from his right arm disability. Disability ratings are determined by applying a schedule of ratings that is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R., Part 4. Each disability must be viewed in relation to its history and the limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. § 4.1. Examination reports are to be interpreted in light of the whole recorded history, and each disability must be considered from the point of view of the appellant working or seeking work. 38 C.F.R. § 4.2. Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § 4.7. The shoulder and arm are rated under the Schedule of Ratings for the Musculoskeletal System. 38 C.F.R. § 4.71a, Diagnostic Codes 5200-5203. When rating disabilities of the shoulder and arm, a distinction is made between major (dominant) and minor (non-dominant) musculoskeletal groups. See 38 C.F.R. § 4.71a, Diagnostic Codes 5200-5203. Handedness for the purpose of a dominant rating is determined by the evidence of record or by testing on VA examination, and only one hand shall be considered dominant. See 38 C.F.R. § 4.69 (2017). Here, the evidence shows that the Veteran is right-hand dominant, his right upper extremity is his major extremity for rating purposes. Limitation of motion of the major (dominant) arm is rated as follows: Limitation of motion at shoulder level warrants a 20 percent evaluation. Limitation of motion midway between the side and up to shoulder level warrants a 30 percent evaluation. Limitation of motion to 25 degrees from the side warrants a maximum 40 percent rating. 38 C.F.R. § 4.71a, Diagnostic Codes 5201. A July 2005 VA examination indicates the Veteran experienced slightly impaired range of motion (ROM) in the right shoulder. ROM functionally limited by pain was 150 degrees of flexion, 90 degrees of abduction, and 90 degrees of external and internal rotation. The examiner noted that joint function was additionally limited by pain, fatigue, weakness, and lack of endurance, with pain having the most significant functional impact. There was no additional limitation of motion due to repetitive use or incoordination. X-ray findings were noted as within normal limits. Based on the Veteran's statements functional impairment was described as the inability to bend the shoulder or arm without pain, causing overuse of left arm. The Veteran was noted to experience an inability to fully reach up with the arm and burning in the shoulder with extended or heavy use. Private treatment records from 2005 to 2006 indicate the Veteran's condition progressed from one characterized by increased pain with unchanged ROM, to a notation of a rotator cuff injury and some right shoulder neuropathy (possibly associated with cervical disc disease). August 2009 treatment records indicate the Veteran experienced ROM to 95 degrees of flexion. Additionally, he was noted to demonstrate guarding and tenderness. A January 2010 VA examination indicates the Veteran experienced significantly reduced ROM since his previous examination. ROM functionally limited by pain was 90 degrees of flexion, 90 degrees of abduction, and 45 degrees of external rotation, and 40 degrees of internal rotation. Repetitive use testing caused pain, guarding, spasm, increased fatigue, and weakness with all degrees of movement, but ROM was unchanged, other than abduction, which was reduced to 75 degrees. The Veteran was noted to demonstrate guarding with ROM testing. Additionally, he was noted to complain of constant pain, flare-ups with any lifting, and loss of approximately one-third of his strength. A January 2011 VA examination is also of record. The Veteran was noted to have extremely limited ROM. His ROM functionally limited by pain was 80 degrees of flexion, 80 degrees of abduction, 50 degrees of external rotation, and 70 degrees of internal rotation. Repetitive motion testing indicated fatigue, weakness, and lack of endurance. Repetitive motion testing also indicated decreased ROM by 50 percent in all areas. April 2012 treatment records indicate the Veteran experienced ROM functionally limited by pain to 160 degrees of flexion and abduction, 50 degrees of external rotation, and "internal rotation to T7." At that time, he was noted to have mild right shoulder pain that was worsened by overhead activity, lifting, and side-lying. August 2012 treatment records indicate the Veteran demonstrated the same ROM as April 2012. At that time, he was noted to participate in an at-home exercise program for the past several months that provided relief from symptoms, particularly pain. A January 2014 VA examination is also of record. Upon examination, the Veteran demonstrated ROM functionally limited by pain at 80 degrees of flexion, 90 degrees of abduction, 60 degrees of external rotation, and 40 degrees of internal rotation. There was no additional limitation of motion due to repetitive use. There was no ankylosis or instability. The Veteran was noted to experience less movement than normal, excess fatigability, and pain on movement. During the relevant appeal period, the Veteran's right shoulder was evaluated as 20 percent disabling, effective March 2005 and 30 percent disabling January 2011. The Board notes that other diagnostic codes for shoulder disabilities provide for ratings above 20 percent. However, there is no evidence or contention by the Veteran, or his representative, of right shoulder ankylosis (Diagnostic Code 5200), impairment of the humerus (Diagnostic Code 5202), impairment of the clavicle or scapula (Diagnostic Code 5203). Therefore, these Diagnostic Codes will not be applied. See Butts v. Brown, 5 Vet. App. 532, 538 (1993). The Board will evaluate the Veteran's right shoulder disability under Diagnostic Code 5201, as it provides the most favorable ratings. When an evaluation of a disability is based on limitation of motion, the Board must also consider any additional functional loss the Veteran may have sustained by virtue of other factors as described in 38 C.F.R. §§ 4.40 and 4.45. DeLuca v. Brown, 8 Vet. App. 202, 206 (1995). Such factors include more or less movement than normal, weakened movement, excess fatigability, incoordination, pain on movement, swelling, and deformity or atrophy of disuse. 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). The evidence does not support a disability rating in excess of 20 percent for the Veteran's right shoulder prior to January 2011. Taking into account functional loss due to painful motion, fatigue, weakness, and lack of endurance, the Veteran retained motion at shoulder level. He experienced, at worst, 90 degrees of flexion and abduction. A 30 percent disability rating requires motion limited to midway between the side and shoulder level. Prior to January 2011, the evidence of record does not indicate this level of impairment. Since January 2011, the evidence supports a 30 percent disability rating, but no higher. Taking into account functional loss due to painful motion, fatigue, weakness, and lack of endurance, the Veteran experienced motion midway between the side and shoulder level. He experienced, at worst, 40 degrees of flexion and abduction after repetitive use testing. A 40 percent disability rating requires motion limited to 25 degrees from the side. At no time does the evidence of record indicate the Veteran experienced such limited motion. The Board acknowledges statements from the Veteran indicating his daily activities have been affected by his right shoulder disability. Specifically, the Veteran reports significant difficulty with household chores, personal hygiene, outdoor recreation, intimate relations, and sleep. The Veteran has consistently reported shoulder pain and limitation of daily activities. He certainly possesses the competency to report what comes to him through his senses, one of which is reporting on the severity of his symptoms and limitations. See Layno v. Brown, 6 Vet. App. 465 (1994); Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007). The Veteran's complaints are found to be credible. However, the Veteran's statements alone do not support a higher disability rating. The Veteran's pain along with other factors that impair his range of motion and affect the working movements of his body have been considered. These types of limitations have been accounted for in the above findings and the disability rating criteria. Of note, the Veteran's range of motion alone has never been sufficient to support a 30 percent rating as range of motion in excess of 45 degrees of flexion or abduction has not been shown. Only when factors such as pain, weakness, stiffness, fatigability, and lack of endurance are taken into account was a higher rating supported. While the Veteran does experience significant limitations from his right shoulder disability, he has also retained some range of motion and has demonstrated periods of improvement and increased functioning. Accordingly, a higher schedular disability rating is not warranted for any period on appeal. The Board notes that this claim was remanded for the Director of Compensation and Pension to consider whether an extra-schedular evaluation was warranted. Ultimately, the Director found that an extraschedular rating was not warranted for the Veteran's right shoulder. The Board may now also consider the issue. Of note, the Veteran's representative has not argued that an extraschedular rating is warranted in his most recent brief. Here, the Board finds that the regular schedular standards as applied in this case adequately compensate the Veteran for his overall shoulder disability, and that the grant of an extra-schedular evaluation is not warranted. Here, the Veteran's shoulder disability causes reduced range of motion with flare-ups of pain, but these have been taken into account and are considered in the application of the relevant criteria in the rating schedule. Likewise the Veteran has reported difficulty lifting, but this too is contemplated in the discussion of the Deluca factors. Essentially, the Board was tasked with determining not just the range of motion on passive motion, but how functionally limited the right shoulder was. Based on these factors, the Veteran's schedular rating was increased, but the Board has not found a basis to assign an extraschedular rating. That is, the Board concludes that the schedular rating criteria adequately contemplate the Veteran's right shoulder related symptomatology. (CONTINUED ON NEXT PAGE) ORDER A disability evaluation in excess of 20 percent prior to January 19, 2011 and in excess of 30 percent thereafter for a right shoulder rotator cuff tear with probable labral tear (hereinafter, right shoulder disability) is denied. ____________________________________________ MATTHEW W. BLACKWELDER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs