Citation Nr: 1820320 Decision Date: 04/04/18 Archive Date: 04/16/18 DOCKET NO. 14-35 064 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Louisville, Kentucky THE ISSUES 1. Entitlement to an increased evaluation for right shoulder anterior dislocation with subsequent surgical capsular shift and post-operative ankylosis, to include the propriety of reduction of the disability rating from 40 percent to 20 percent, effective August 1, 2014. 2. Entitlement to an increased evaluation for right shoulder scar, to include the propriety of reduction of the disability rating from 10 percent to noncompensable, effective August 1, 2014. WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD E. Miller, Associate Counsel INTRODUCTION The Veteran served on active duty from May 2006 to April 2007. These matters are before the Board of Veterans' Appeals (Board) on appeal from a May 2014 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Louisville, Kentucky. In October 2015, the Veteran testified at a Board hearing via videoconference facilities before the undersigned Veterans Law Judge (VLJ). A transcript of that hearing is associated with the electronic claims file. FINDINGS OF FACT 1. There has been material improvement in the Veteran's right shoulder disability that will be maintained under the ordinary conditions of life 2. There has been material improvement in the Veteran's right shoulder scar that will be maintained under the ordinary conditions of life. 3. For the time period on appeal, the right (major) shoulder disability has not manifested in limitation of motion to midway between the side and shoulder, or shown evidence of frequent dislocations with guarding of all arm movements. 4. The Veteran has a single service-connected right shoulder scar that is not unstable or painful. CONCLUSIONS OF LAW 1. The reduction of the rating for right shoulder disability from 40 percent to 20 percent, effective August 1, 2014, was proper. 38 U.S.C. § 5107(West 2014); 38 C.F.R. §§ 3.105, 3.344 (2017). 2. The reduction of the rating for right shoulder scar from 10 percent to noncompensable, effective August 1, 2014, was proper. 38 U.S.C. § 5107(West 2014); 38 C.F.R. §§ 3.105, 3.344 (2017). 3. The criteria for an increased rating beyond 20 percent disabling for the right (major) shoulder disability have not been met. 38 U.S.C. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.40, 4.45, 4.59, 4.71a (& Plate I), DC 5201, 5202 (2017). 4. The criteria for a compensable rating for a right shoulder scar have not been met. 38 U.S.C. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.118, DC 7804 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran has challenged the propriety of the initial rating reduction of the service-connected right shoulder disability and right shoulder scar. She has also contested the adequacy of the 20 percent evaluation assigned subsequent to the reduction for the right shoulder disability, and the noncompensable rating for the right shoulder scar, which are separate matters, all considered herein. I. Duty to Notify and Assist Neither the Veteran nor her 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 a duty to assist argument). II. Propriety of Reduction The provisions of 38 C.F.R. § 3.105(e) allow for the reduction in evaluation of a service-connected disability when warranted by the evidence, but only after following certain procedural guidelines. The RO must issue a rating action proposing the reduction and setting forth all material facts and reasons for the reduction. The veteran must then be given 60 days to submit additional evidence and to request a predetermination hearing. Then a rating action will be taken to effectuate the reduction. 38 C.F.R. § 3.105(e). The effective date of the reduction will be the last day of the month in which a 60-day period from the date of notice to the veteran of the final action expires. 38 C.F.R. § 3.105(e), (i)(2)(i) (2017). The law provides that where a rating reduction was made without observance of law, although a remand for compliance with that law would normally be an adequate remedy, in a rating reduction case the erroneous reduction must be vacated and the prior rating restored. Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). The RO must find the following in order to reduce an evaluation: (1) based on a review of the entire record, the examination forming the basis for the reduction is full and complete, and at least as full and complete as the examination upon which the rating was originally based; (2) the record clearly reflects a finding of material improvement; and (3) it is reasonably certain that the material improvement found will be maintained under the ordinary conditions of life. 38 C.F.R. § 3.344(a); Kitchens v. Brown, 7 Vet. App. 320 (1995). In Brown v. Brown, the Court determined that the provisions of 38 C.F.R. § 3.344(a) only apply where the rating to be reduced has continued for five years or more. 5 Vet. App. 413, 416-19 (1993). Nevertheless, the Court noted that 38 C.F.R. §§ 4.10, which provides that "[t]he basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment," and 4.2, which provides that "[e]ach disability must be considered from the point of view of the veteran working or seeking work," apply generally to all rating reductions. Id. at 421. Hence, the Court concluded that "in any rating-reduction case not only must it be determined that an improvement in a disability has actually occurred but also that that improvement actually reflects an improvement in the veteran's ability to function under the ordinary conditions of life and work." Id. (emphasis added). When a veteran's disability rating is reduced by a RO without following the applicable regulations, the reduction is void ab initio. See Greyzck v. West, 12 Vet. App. 288, 292 (1999). In this case, service connection for a right shoulder disability was established in a February 2010 rating decision, in which the RO assigned a 30 percent rating effective December 19, 2008; a 100 percent convalescence rating effective July 6, 2009; and a 40 percent rating from October 1, 2009. In the same decision, the RO granted service connection for a right shoulder scar with an evaluation of 10 percent from July 6, 2009. By way of a September 2013 rating decision and associated correspondence dated in that same month, the Veteran was notified of the proposed reduction in her service-connected right shoulder disability and right shoulder scar. The actual reduction was subsequently effectuated by a May 2014 rating decision with an effective date of August 1, 2014. The Board finds that the evidence does not indicate, and the Veteran does not contend, that the relevant notice requirements in effectuating the reduction have not been met in this case. The Board notes that the Veteran's evaluations were in effect for fewer than five years at the time of the effectuation of the May 2014 rating decision. Therefore, the provisions of 38 C.F.R. § 3.344(a) and (b), which govern the reduction of protected ratings in effect for five years or more, do not apply in this case, but instead 38 C.F.R. § 3.344(c) is applicable. With regard to the merits of the reductions, the Veteran was afforded a VA examination in August 2013, the results of which prompted the issuance of the September 2013 rating reduction proposal. The examination for the right shoulder disability and associated scar was an in-person examination. The examiner reviewed the Veteran's medical treatment history, inquired about the effects of the Veteran's right shoulder on ordinary life, and indicated a material improvement in the disability. The February 2010 VA examination of the Veteran's right shoulder, which is the examination on which the original rating decision for service connection was based, was also an in-person examination during which the examiner reviewed the Veteran's medical treatment history, inquired about the effects of the disability on her ordinary life, and examined the Veteran's disability according to the VA standards for examinations of that type. Thus, the Board finds that the August 2013 VA examination for the right shoulder disability was at least as full and complete as the February 2010 examination upon which the rating was originally based, clearly reflects a finding of material improvement; and documented reasonable certainty that the material improvement found will be maintained under the ordinary conditions of life. As for the Veteran's right shoulder scar, the Veteran was not afforded a separate examination for scarring for the original rating decision. The right shoulder disability VA examination in February 2010 noted a right shoulder scar that was "not claimed," but was "vertically linear 7 cm, well healed, slightly tender, intact, superficial." The Veteran's August 2013 VA right shoulder examination noted the scar, and the Veteran was provided a separate VA examination for the scar during which the examiner reviewed the Veteran's medical treatment history, inquired about the effects of the scar on her ordinary life, and examined the Veteran's scar according to the VA standards for examinations of that type. Thus, the Board finds that the August 2013 VA examination for the right shoulder scar was at least as full and complete as the February 2010 examination upon which the rating was originally based, clearly reflects a finding of material improvement; and documented reasonable certainty that the material improvement found will be maintained under the ordinary conditions of life. Accordingly, the Board finds that the reductions in this case to a 20 percent disability rating for the service-connected right shoulder disability and to a noncompensable disability rating for a right shoulder scar effective August 1, 2014, were proper. 38 C.F.R. § 3.105. III. Increased Rating The Veteran contends that her right shoulder disability, rated at 20 percent, and her right shoulder scar, rated as noncompensable, merit a higher rating evaluation. After a thorough review of the record, the Board finds that increased ratings for the right shoulder disability and right shoulder scar are not warranted. Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities (Rating Schedule), which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155 (West 2014); 38 C.F.R. § 4.1 (2017). The basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. 38 C.F.R. § 4.10. If there is a question as to which evaluation to apply to the Veteran's disability, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. When reasonable doubt arises as to the degree of disability, such doubt will be resolved in the Veteran's favor. 38 C.F.R. § 4.3. In general, all disabilities, including those arising from a single disease entity, are rated separately, and all disability ratings are then combined in accordance with 38 C.F.R. § 4.25. Pyramiding, the evaluation of the same disability, or the same manifestation of a disability, under different diagnostic codes, is to be avoided when rating a veteran's service-connected disabilities. 38 C.F.R. § 4.14. Pertinent regulations do not require that all cases show all findings specified by the Rating Schedule, but that findings are sufficiently characteristic to identify the disease and the resulting disability and coordination of rating with impairment of function. 38 C.F.R. § 4.21. Therefore, the Board has considered the potential application of various other provisions of the regulations governing VA benefits, whether or not they were raised by the Veteran, as well as the entire history of her disability in reaching its decision. Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). In considering the severity of a disability, it is essential to trace the medical history of the veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41 (2017). Consideration of the whole-recorded history is necessary so that a rating may accurately reflect the elements of any disability present. 38 C.F.R. § 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Although the regulations do not give past medical reports precedence over current findings, the Board is to consider the veteran's medical history in determining the applicability of a higher rating for the entire period in which the appeal has been pending. Powell v. West, 13 Vet. App. 31, 34 (1999). In general, evaluation of a service-connected disability involving a joint rated on limitation of motion requires adequate consideration of functional loss due to pain under 38 C.F.R. § 4.40 and functional loss due to weakness, fatigability, incoordination or pain on movement of a joint under 38 C.F.R. § 4.45. See DeLuca v. Brown, 8 Vet. App. 202 (1995). The provisions of 38 C.F.R. § 4.40 state that disability of the musculoskeletal system is primarily the inability, due to damage or inflammation in parts of the system, to perform normal working movements of the body with normal excursion, strength, speed, coordination and endurance. Functional loss may be due to the absence of part, or all, of the necessary bones, joints and muscles, or associated structures. It may also be due to pain supported by adequate pathology and evidenced by visible behavior of the Veteran undertaking the motion. See 38 C.F.R. § 4.40. The factors of disability affecting joints are reduction of normal excursion of movements in different planes, weakened movement, excess fatigability, swelling and pain on movement. See 38 C.F.R. § 4.45. a. Right Shoulder Disability The Veteran is currently rated at 20 percent for a right shoulder disability under DC 5003-5202. For the reasons set forth below, the Board finds that a 20 percent disability evaluation most approximates the Veteran's condition. The Board notes, for background, that the Veteran was previously rated for both a right shoulder recurrent dislocation disability and a right shoulder arthritis disability. The RO corrected its dual rating evaluation of the Veteran's right shoulder condition in a May 2015 rating decision, eliminating the additional separate compensable rating for arthritis. The Board will consider not only the criteria of the currently assigned diagnostic codes, but also the criteria of other potentially applicable diagnostic codes. The normal range of motion of the shoulder for flexion and abduction is from 0 degrees at the side to 180 degrees overhead. 38 C.F.R. § 4.71, Plate I (2017). Shoulder level is at 90 degrees, and exactly midway between the side and shoulder level is at approximately 45 degrees. The right shoulder, shown throughout the record to be the major extremity, is currently rated under DC 5003-5202. For the major extremity, DC 5202 provides for a 20 percent rating for moderate deformity, and 30 percent for marked deformity, of malunion of the humerus; for recurrent dislocation of the scapulohumeral joint, 20 percent for infrequent episodes with guarding of movement at shoulder level, and 30 percent for frequent episodes and guarding of arm at all movements; 50 percent for fibrous union of the humerus; 60 for false flail joint of the humerus; and 80 percent for loss of head (flail shoulder). 38 C.F.R. § 4.71a, DC 5202. Under DC 5201, a 20 percent rating is assigned for limitation of the minor or major arm to shoulder level. If there is limitation of the shoulder midway between side and shoulder level, a 30 percent rating is assigned for the major arm. If the limitation is 25 degrees from the side, a 40 percent rating is assigned for the major arm. Id. In determining whether a veteran has limitation of motion to shoulder level, it is necessary to consider reports of forward flexion and abduction. See Mariano v. Principi, 17 Vet. App. 305, 314-16 (2003); see also 38 C.F.R. § 4.71, Plate I. Ankylosis of the scapulohumeral articulation is addressed under DC 5200. 38 C.F.R. § 4.71a. Finally, impairment of the scapula is addressed under DC 5203. Id. Degenerative arthritis is rated under DC 5003. Traumatic 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. See 38 C.F.R. § 4.71a, DC 5003. Note (1) states that the 20 and 10 percent ratings based on X-ray findings will not be combined with ratings based on limitation of motion. The Veteran's increased rating claim arises out of the Notice of Disagreement dated May 2014 in response to the reduction of the right shoulder disability discussed earlier in this decision. The Veteran was afforded a VA examination in August 2013, on which the reduction proposed by the RO was based. The examiner noted that the Veteran's shoulder was painful, but the Veteran had not experienced any more dislocations since the shoulder surgery in 2009. The Veteran's right shoulder showed a range of motion to 150 degrees on flexion with pain at 130 degrees, and abduction to 130 degrees with pain at 110 degrees. The range of motion was the same after repetitive motion testing. The examiner noted that functional loss was due to pain on movement and less movement than normal. There was no localized tenderness or pain on palpation of the right shoulder. There was guarding of movement at shoulder level, as a result of the history of previous dislocations. Muscle strength was five out of five on testing. There was no ankylosis of the glenohumeral articulation joint. The tests for rotator cuff syndrome were negative. Referenced imaging studies showed arthritis of the right shoulder joint. The Veteran reported needing to take work breaks when the shoulder developed stiffness. The Veteran was afforded a VA examination for the right shoulder in April 2015. The examiner reviewed the Veteran's history and noted that she has right shoulder pain, and that her right shoulder disability affects certain aspects of her daily life such as opening jars or driving a manual shift vehicle, as well as pain if she sleeps on that shoulder. The Veteran's right shoulder showed a range of motion to 130 degrees on flexion, and 115 degrees on abduction, with pain on movement, but no additional function loss after repetitive motion testing. Muscle strength was four out of five on testing. There was no ankylosis of the glenohumeral articulation joint. The Veteran tested positively for suspicion of rotator cuff issue on all four tests. There was guarding of movement at shoulder level, as a result of history of previous dislocations. There was no suspicion of clavicle, scapula, acromioclavicular (AC) joint or sternoclavicular joint conditions. There was no flail shoulder, false flail shoulder, or fibrous union, or malunion of the humerus. Referenced imaging studies showed arthritis of the right shoulder joint. The Veteran was afforded a VA examination for the right shoulder disability in January 2018. The examiner reviewed the Veteran's history and noted that she has right shoulder pain, and that her right shoulder disability affects certain aspects of her daily life such as opening jars or other rotation movements with her upper right arm. The Veteran reported no functional loss but has to modify some movement. The Veteran's right shoulder showed a range of motion to 150 degrees on flexion, and 120 degrees on abduction, with pain on movement, but no additional function loss after repetitive motion testing. Muscle strength was five out of five on testing. There was no ankylosis of the glenohumeral articulation joint. The Veteran tested positively on one test for suspicion of rotator cuff condition, and negatively on three tests. There was no suspicion of clavicle, scapula, acromioclavicular (AC) joint or sternoclavicular joint conditions. There was no flail shoulder, false flail shoulder, or fibrous union, or malunion of the humerus. The examiner noted the Veteran would be precluded from physically demanding work related to the right shoulder disability. As to the appropriate Diagnostic Code, the Veteran's right shoulder disability has not shown ankylosis of scapulohumeral articulation (DC 5200), impairment of the clavicle or scapula (DC 5203); as such these DCs are not applicable in the current case. The Veteran's right shoulder disability has shown limitation of motion; however, under DC 5201, to warrant a rating in excess of 20 percent, the shoulder must be limited to movement midway between the side and the shoulder for a 30 percent rating, which has not been documented. Under DC 5202, which is currently applied to the Veteran's right shoulder disability, the Veteran is rated at 20 percent for infrequent dislocation episodes of the scapulohumeral joint with guarding of movement at shoulder level. A 30 percent rating for this disability is not warranted as the evidence shows that the Veteran no longer has episodes of dislocation, whereas frequent episodes and guarding of all movements are required for the 30 percent rating in this category. The Veteran's right shoulder disability has not been shown to have malunion, fibrous union, false flail joint, or flail joint, of the humerus or right shoulder, which would be required for a higher disability rating. Thus these other rating categories under DC 5202 are not applicable in this case. The Board finds that the 20 percent rating for the Veteran's right shoulder disability based on infrequent dislocation episodes of the scapulohumeral joint with guarding of movement at shoulder level is the most appropriate rating evaluation. The Board finds that a rating in excess of 20 percent is not warranted for the right shoulder disability. The Board has considered the doctrine of reasonable doubt. However, as the preponderance of the evidence is against an evaluation in excess of 20 percent for the Veteran's right shoulder disability, the doctrine is not for application. Gilbert v. Derwinski, 1 Vet. App. 49, 56 (1990). b. Right Shoulder Scar The Veteran is currently rated at a noncompensable level for a right shoulder scar under DC 7804. 38 C.F.R. § 4.118. The Veteran contends that her right shoulder scar merits a compensable evaluation rating. For the reasons set forth below, the Board finds that a noncompensable disability evaluation most approximates the Veteran's condition. At the August 2013 VA examination, the examiner noted that the Veteran's scar was stable, well healed, slightly tender, but not painful. The scar was measured as a vertically linear 7 centimeter scar. The Veteran was afforded a VA examination for scars in April 2015. The 8 centimeter scar was on the right shoulder, not the head, face, or neck. The scar was not unstable or painful or due to burns. The examiner noted that the scar does not result in dysfunction, but is visible if the Veteran wears sleeveless shirts, and referred to the scar as disfiguring. The Veteran was afforded a VA examination in January 2018 for the right shoulder disability. The examiner noted that the right shoulder scar was stable, not painful, healed, and was not tender. The scar measured 8 centimeters by 0.02 centimeters. The applicable disability ratings for evaluating scars are as follows. Diagnostic Code 7800 provides for evaluation of scars of the head, face, or neck. As the evidence of record does not show that the Veteran has a scar of the head, face, or neck, this DC is not applicable. DC 7801 provides for the evaluation of scars not of the head, face, or neck, that are deep and nonlinear. The evidence of record does not show that the Veteran's scar is deep and nonlinear, thus DC 7801 is not applicable. DC 7802 provides for the evaluation of scars not of the head, face, or neck, that are superficial and nonlinear. The evidence of record does not show that the Veteran's scar is nonlinear, thus DC 7802 is not applicable. The current version of the Schedule does not include Diagnostic Code 7803. Diagnostic Code 7804 provides a 10 percent rating for one or two scars that are unstable or painful; a 20 percent rating is warranted for three or four scars that are unstable or painful; and a 30 percent rating is warranted for five or more scars that are unstable or painful. 38 C.F.R. § 4.118, Diagnostic Code 7804 (2017). An unstable scar is one where, for any reason, there is frequent loss of covering of skin over the scar. Id. at Note 1. If one or more scars are both unstable and painful, VA is to add 10 percent to the evaluation that is based on the total number of unstable or painful scars. Id. at Note 2. The competent medical evidence of record for the appeal period documents that the Veteran's right shoulder scar is a single scar that is stable and not painful. The Veteran has also contended that her scar is disfiguring because the scar is visible when she wears sleeveless shirts. For purposes of evaluation of under 38 C.F.R. § 4.118, the eight characteristics of disfigurement are: a scar that is five or more inches, or thirteen centimeters, in length; a scar that is at least one-quarter of an inch, or 0.6 centimeters, wide at the widest part; surface contour of the scar that is elevated or depressed on palpation; a scar that is adherent to underlying tissue; skin that is hypo- or hyper-pigmented in an area exceeding six square inches, or 39 square centimeters; skin texture that is abnormal (irregular, atrophic, shiny, scaly, etc.) in an area exceeding six square inches, or 39 square centimeters; underlying soft tissue that is missing in an area exceeding six square inches, or 39 square centimeters; and skin that is indurated and inflexible in an area exceeding six square inches, or 39 square centimeters. 38 C.F.R. § 4.118, Diagnostic Code 7800, Note 1. The Veteran's scar does not meet the criteria for disfigurement. The scar measured 8 centimeters by 0.02 centimeters at the January 2018 VA examination. The Board has considered the doctrine of reasonable doubt. However, as the preponderance of the evidence is against a compensable evaluation rating for the Veteran's right shoulder scar, the doctrine is not for application. Gilbert v. Derwinski, 1 Vet. App. 49, 56 (1990). ORDER The reduction in rating evaluation from 40 percent to 20 percent for right shoulder anterior dislocation with subsequent surgical capsular shift and post-operative ankylosis, effective August 1, 2014, was proper. The reduction in rating evaluation from 10 percent to a noncompensable rating for a right shoulder scar, effective August 1, 2014, was proper. Entitlement to a rating in excess of 20 percent for a right shoulder disability is denied. Entitlement to a compensable rating for a right shoulder scar is denied. ____________________________________________ DAVID L. WIGHT Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs