Citation Nr: 1823977 Decision Date: 04/19/18 Archive Date: 04/26/18 DOCKET NO. 12-30 953 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for a left shoulder disorder. 2. Entitlement to an evaluation in excess of 10 percent for right shoulder degenerative joint disease. REPRESENTATION Veteran represented by: The American Legion ATTORNEY FOR THE BOARD M. Showalter, Associate Counsel INTRODUCTION The appellant is a Veteran who served on active duty from December 1967 to November 1969. These matters are before the Board of Veterans' Appeals (Board) on appeal from July 2010 and June 2011 rating decisions of the St. Petersburg, Florida Department of Veterans Affairs (VA) Regional Office (RO). In the July 2010 rating decision, the RO denied service connection for a left shoulder disorder. In the June 2011 rating decision, the RO granted service connection for right shoulder degenerative joint disease and assigned a noncompensable evaluation effective November 8, 2010. In a May 2017 rating decision, the RO granted a 10 percent evaluation for the Veteran's right shoulder degenerative joint disease effective November 8, 2010. As that did not constitute a grant of the full benefit sought on appeal, the claim for increase remains before the Board. See AB v. Brown, 6 Vet. App. 35 (1993). This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C. § 7107(a)(2) (2012). FINDINGS OF FACT 1. The Veteran has a left shoulder diagnosis of mild degenerative changes of the left acromioclavicular joint. 2. The Veteran suffered a shoulder injury in service. Service treatment records (STRs) from March 1969 show that the Veteran was put on light duty after an auto accident. It was noted at the time that the Veteran's physical capacity was limited after he had suffered "rib fractures and shoulder separation." Clinical notes show that the Veteran was diagnosed with a "fracture of upper limb with fracture of ribs; of clavicle, right through distal portion, and fracture of 1st and 2nd ribs posteriorly on the left side." It was also noted that the Veteran had a suspected dislocation of his left shoulder. 3. The Veteran has provided competent and credible reports that his left shoulder symptoms began in service and have continued since service until the present. VA treatment records confirm that the Veteran has consistently reported left shoulder pain that has persisted since service. VA treatment notes from February 2011 show that the Veteran stated he had discomfort related to his left shoulder "on and off" since service. In that month, physicians noted that the Veteran's shoulder pain began in 1968 and became worse approximately three years ago. 4. An April 2017 VA negative linkage opinion cannot be assigned significant probative value because the examiner failed to consider the Veteran's competent and credible reports that his left shoulder pain has persisted for decades after service. Additionally, the examiner failed to consider VA treatment records, which show that the Veteran reported left shoulder pain for several years and reported that the original onset of his pain had been in 1968. 5. In May 2011, the Veteran's right shoulder flexion was 0 to 170 degrees and his abduction 0 to 150 degrees. In April 2017, the Veteran's right shoulder had flexion of 0 to 160 degrees and abduction of 0 to 140 degrees. The Veteran had motion beyond shoulder level for the entire period on appeal. CONCLUSIONS OF LAW 1. The criteria for service connection for a left shoulder disorder have been met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2017). 2. A disability rating in excess of 10 percent for the Veteran's right shoulder degenerative joint disease is not warranted. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.3, 4.7, 4.10, 4.40, 4.71a, Diagnostic Code (DC) 5010, 5201 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duty to Notify and Assist The VCAA, in part, describes the VA's duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2017). The VCAA applies to the instant claims. The notice requirements have been met. VA's duty to notify was satisfied by letters dated April and November 2010. See 38 U.S.C. § 5102, 5103, 5103A; 38 C.F.R. § 3.159. Those letters notified the Veteran of the information needed to substantiate and complete claims, including notice of information that he was responsible for providing and of the evidence that VA would attempt to obtain. Regarding the duty to assist, the Veteran's service treatment records (STRs) and relevant post-service treatment records have been obtained. The agency of original jurisdiction (AOJ) arranged for appropriate VA examinations which were held in May 2011 and April 2017. The Board finds that the clinical findings and informed discussion of the history and cause of the Veteran's shoulder disabilities in the examinations are sufficient for rating purposes. See Stefl v. Nicholson, 21 Vet. App. 120, 123-24 (2007); Barr v. Nicholson, 21 Vet. App. 303, 310-11 (2007); Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 299-300 (2008). The Board also finds that there has been substantial compliance with the prior November 2016 remand. See Stegall v. West, 11 Vet. App. 268 (1998). An examination was held pursuant to that remand in April 2017. The Veteran has not identified any available, outstanding records that are relevant to the claims decided herein. Since the Board concludes that VA has fulfilled the duty to assist the Veteran in this case, there is no error or issue that precludes the Board from addressing merits of this appeal. The Board finds that the record as it stands includes adequate, competent evidence to allow the Board to decide the matter on appeal, and that no further evidentiary development is necessary. See generally 38 C.F.R. § 3.159(c)(4). Neither the Veteran nor the representative has 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). VA's duty to assist is met and, accordingly, the Board will address the merits of the remaining claim. Legal Criteria In general, disability evaluations are determined by the application of a schedule of ratings, which is based on the average impairment of earning capacity caused by a given disability. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability more closely approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3. Disabilities of the shoulder and arm are rated under rating criteria that contemplate ankylosis of scapulohumeral articulation (DC 5200), limitation of motion of the arm (DC 5201), other impairment of the humerus (DC 5202), or impairment of the clavicle or scapula (DC 5203). 38 C.F.R. § 4.71a. Because the Veteran does not have impairment of the clavicle, scapula, humerus, or ankylosis, the Board will focus on the remaining rating criteria listed under DC 5201. Under DC 5201, limitation of motion of the major arm at the shoulder level (i.e, motion limited to 90 degrees) provides a 20 percent rating. Limitation of motion midway between the side and the shoulder level (i.e., motion limited from 45 to 90 degrees), is assigned a 30 percent evaluation. A maximum 40 percent evaluation is warranted for the major arm when limitation of motion is limited to 25 degrees from the side. 38 C.F.R. § 4.71 (2017). Limitation of motion of the minor arm at the shoulder level provides a 20 percent rating. Limitation of motion midway between the side and the shoulder level, is assigned a 20 percent evaluation. A maximum 30 percent evaluation is warranted for the minor arm when limitation of motion is limited to 25 degrees from the side. Id. When an evaluation of a disability is based on limitation of motion, the Board must also consider, in conjunction with the other applicable diagnostic code, 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. 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. A finding of functional loss due to pain must be supported by adequate pathology and evidenced by the visible behavior of the claimant. 38 C.F.R. § 4.40; Johnston v. Brown, 10 Vet. App. 80, 85 (1997). Separate ratings may be assigned for separate periods of time based on facts found, a practice known as "staged ratings." Fenderson v. West, 12 Vet. App. 119, 126-27 (1999). The determination as to whether these requirements are met is based on an analysis of all the evidence of record and an evaluation of its credibility and probative value. Baldwin v. West, 13 Vet. App. 1 (1999); 38 C.F.R. § 3.303(a). Factual Background VA treatment records from April 2010 show that the Veteran reported right shoulder pain. Physicians at the time noted that the Veteran had a "good range of motion." VA treatment notes from January 2011 show that the Veteran had right shoulder tenderness and limited range of motion. VA treatment notes from February 2011 show that the Veteran's upper right extremity had a normal range of motion. In March 2011, the Veteran had a corticosteroid injection to alleviate his painful right shoulder symptoms. In a May 2011 examination, the Veteran stated he had intermittent right shoulder pain. The examiner found that there were no recurrent right shoulder dislocations, abnormal weight bearing, or objective evidence of pain on range of motion testing. At that time the Veteran's right shoulder flexion was 0 to 170 degrees, his abduction 0 to 150 degrees, his internal rotation 0 to 70 degrees, and his external rotation 0 to 90 degrees. There was no ankylosis noted. In his notice of disagreement dated August 2011 the Veteran stated that he has pain on motion "on a daily basis." In correspondence dated November 2012, the Veteran stated that he had pain in his shoulder when he was not using his shoulder, when he was moving his shoulder, and had pain during the range of motion testing during his shoulder examinations. In an April 2017 examination, the Veteran reported intermittent mild pain in his right shoulder, specifically "when the weather is changing and its cold." He said that his pain began "many years ago," though the examiner stated that the Veteran could not specify when. The examiner noted that the Veteran's dominant hand was his right hand. Range of motion testing of the Veteran's right shoulder showed that he had a flexion of 0 to 160 degrees, abduction of 0 to 140 degrees, external rotation of 0 to 70 degrees, and internal rotation of 0 to 70 degrees. The examiner found there was evidence of weight bearing pain and the Veteran had full right shoulder muscle strength, but found no evidence of shoulder instability or ankylosis. The examiner noted that the Veteran's right shoulder disability affected his ability to perform heavy physical activities that required heavy lifting, but did not affect his sedentary occupational capability. Analysis First, the Board notes that the Veteran is right-handed, meaning that the Board will provide ratings appropriate under the "major" criteria under the applicable DC. Further, the Veteran's right shoulder disability does not cause impairment of the clavicle, scapula, humerus, or cause ankylosis. As stated above, the Board will focus on the remaining rating criteria listed under DC 5201, which provides evaluations based on limitation of motion. While the record shows that the Veteran has had some limitation of motion of his right arm, at no point throughout the period on appeal has the record shown that his right arm is limited to 90 degrees (or at shoulder level), which would allow for a 20 percent evaluation under DC 5201. In May 2011, the Veteran's right shoulder flexion was 0 to 170 degrees and his abduction 0 to 150 degrees, showing he had motion beyond the shoulder level. In April 2017, the Veteran's right shoulder had flexion of 0 to 160 degrees and abduction of 0 to 140 degrees, again showing motion beyond 90 degrees. VA treatment records note limitation of motion at various points, but do not provide evidence that his right arm was limited to 90 degrees at any point. Therefore, there is no evidence in the record that would allow the Board to provide a 20 percent evaluation under DC 5201. Pursuant to DeLuca, the Board has also considered whether the Veteran's weakness, pain, incoordination, and/or fatigability of his right shoulder disability warrant a higher rating. DeLuca, 8 Vet. App. at 206. However, there is no medical evidence appearing in the record to suggest that flare-ups in the Veteran's right shoulder disability or repetitive use of his right arm would cause the degree of functional limitation that would warrant a rating in excess of 10 percent. Accordingly, the Board concludes that the Veteran's right shoulder disability has been no higher than 10 percent disabling on the VA Rating Schedule throughout the entire rating period on appeal. The preponderance of the evidence is against the claim for an increased rating and, accordingly, the doctrine of equipoise (the "benefit of the doubt") does not apply. The Board is grateful to the Veteran for his honorable service. (CONTINUED ON NEXT PAGE) ORDER Service connection for a left shoulder disorder is granted. Entitlement to an evaluation in excess of 10 percent for right shoulder degenerative joint disease is denied. ______________________________________________ VICTORIA MOSHIASHWILI Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs