Citation Nr: 1827698 Decision Date: 05/02/18 Archive Date: 05/14/18 DOCKET NO. 11-30 872 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Newark, New Jersey THE ISSUES 1. Entitlement to a compensable rating for a right shoulder disability prior to August 31, 2017; and in excess of 20 percent thereafter. 2. Entitlement to a compensable rating for a right fifth toe disability. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD T. Jiggetts, Associate Counsel INTRODUCTION The Veteran served on active duty from May 2004 to January 2009. This case comes before the Board of Veterans' Appeals (Board) on appeal from an August 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in New York, New York. In that rating decision, the RO, among other things, granted service connection for a right shoulder disability (right shoulder chronic pain syndrome with mild limited internal rotation) and a right fifth toe disability (acute transverse linear impacted fracture of the proximal phalanx of the right fifth toe), and assigned a noncompensable rating for each. The Veteran appealed. In October 2014, when this appeal first came to the attention of the Board, as pertinent here, the Board remanded the case for further development, to include obtaining VA examinations for the Veteran's right shoulder disability and right fifth toe disability. In September 2017, after affording the Veteran new VA examinations, the RO readjudicated the claim and issued a Supplemental Statement of the Case (SSOC) that increased the rating for the Veteran's right shoulder disability to 20 percent effective August 31, 2017 (the date of the new VA examination); and, denied an increase in the disability rating for the right fifth toe disability. As the disability ratings assigned do not represent a total grant of benefits sought on appeal, the claim for an increase remains before the Board. AB v Brown, 6 Vet. App. 35, 39 (1993). The appeal has been returned to the Board, and the Board will now proceed with appellate review. FINDINGS OF FACT 1. Prior to August 31, 2017, the Veteran's right shoulder disability was manifested by right shoulder flexion to 180 degrees; and, abduction to 180 degrees. 2. From August 31, 2017 onward, the Veteran's right shoulder disability is manifested by right shoulder flexion to 90 degrees; and, abduction to 180 degrees. 3. The Veteran's right fifth toe disability has no current symptoms. CONCLUSIONS OF LAW 1. Prior to August 31, 2017, the criteria for a compensable rating for a right shoulder disability have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.21, 4.71a, Diagnostic Codes 5201 (2017). 2. From August 31, 2017 onward, the criteria for a rating in excess of 20 percent for a right shoulder disability have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.21, 4.71a, Diagnostic Codes 5201 (2017). 3. The criteria for a compensable rating for a right fifth toe disability have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.21, 4.71a, Diagnostic Codes 5284 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. The Veterans Claims Assistance Act of 2000 The VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his representative of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C. § 5103 (a); 38 C.F.R. § 3.159 (b); 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 seek to provide; and (3) that the claimant is expected to provide in accordance with 38 C.F.R. § 3.159 (b)(1). This notice must be provided prior to an initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ). Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). Here, the RO sent correspondence throughout the appeals process, but specifically in May 2009, that informed the Veteran of what evidence was needed to establish the benefit sought, of what VA would do or had done, and of what evidence the Veteran should provide. In addition, the May 2009 letter informed the Veteran of how disability ratings and effective dates are assigned. The Board finds that any defect with regard to the timing or content of the notice to the Veteran is harmless because of the thorough and informative notices provided throughout the adjudication and because the Veteran had a meaningful opportunity to participate effectively in the processing of the claim, with an adjudication of the claim by the RO subsequent to receipt of the required notice. There has been no prejudice to the Veteran, and any defect in the timing or content of the notices has not affected the fairness of the adjudication. See Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006) (specifically declining to address harmless error doctrine); see also Dingess v. Nicholson, 19 Vet. App. 473 (2006). Thus, VA has satisfied its duty to notify the Veteran. VA must also make reasonable efforts to assist the Veteran in obtaining evidence necessary to substantiate a claim for the benefits sought unless no reasonable possibility exists that such assistance would aid in substantiating the claim. This duty includes assisting with the procurement of relevant records, including pertinent treatment records, and providing an examination when necessary. See 38 U.S.C. § 5103A; 38 C.F.R. § 3.159. The evidence of record contains the Veteran's service treatment records, lay statements of the Veteran, as well as post-service treatment from VA treatment providers. Also of record are a June 2009 VA examination, a July 2009 VA examination, and an August 2017 VA examination. In light of the foregoing, the Board concludes that the VA's duties to the Veteran have been fulfilled. As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this case, the Board finds that any such failure is harmless. See Newhouse v. Nicholson, 497 F.3d 1298 (Fed. Cir. 2007). II. Legal Criteria & Analysis 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 Veteran 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 Board notes that while the regulations require review of the recorded history of a disability by the adjudicator to ensure an accurate evaluation, the regulations do not give past medical reports precedence over the current medical findings. Where an increase in the disability rating is at issue, the present level of the Veteran's disability is the primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). It is also noted that staged ratings are appropriate for any increased rating claim whenever the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007); Fenderson v. West, 12 Vet. App. 119, 126 (1999). The Board has thoroughly reviewed all the evidence in the Veteran's claims file. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, all the evidence submitted by the Veteran or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the 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 and on what this evidence shows, or fails to show, on the claim. The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the appellant). 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 provide reasons for rejecting any evidence favorable to the Veteran. Equal weight is not accorded to each piece of evidence contained in the record; not every item of evidence has the same probative value. When all the evidence is assembled, VA 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. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Right Shoulder Disability The Veteran's right shoulder disability has been rated pursuant to the criteria of Diagnostic Code 5201, as set forth in 38 C.F.R. § 4.71a. Under Diagnostic Code 5201, the major shoulder is rated as follows: a 20 percent rating is warranted for limitation of motion to shoulder level (i.e. 90 degrees); a 30 percent rating is warranted for motion limited midway between the side and shoulder level (i.e. less than 90 degrees but more than 25 degrees shoulder motion); and a 40 percent rating is warranted for motion limited to 25 degrees or less from the side. 38 C.F.R. § 4.71a, Diagnostic Code 5201. Here, the Veteran's right shoulder is his dominant or major shoulder. Normal ranges of motion of the shoulder are flexion (forward elevation) from 0 degrees to 180 degrees; abduction from 0 degrees to 180 degrees; external rotation from 0 degrees to 90 degrees; and, internal rotation from 0 degrees to 90 degrees. 38 C.F.R. § 4.71, Plate I. In assessing the severity of limitation of shoulder motion, it is necessary to consider both forward flexion and abduction. See Mariano v. Principi, 17 Vet. App. 305, 317-18 (2003). Turning now to the issue before the Board, the Veteran seeks a compensable disability rating for his right shoulder disability prior to August 31, 2017; and in excess of 20 percent thereafter, for his right shoulder disability. Because of this staged rating, the Board will review each period of appeal separately. Prior to August 31, 2017 Treatment records from the Northport VAMC reflect the Veteran complained of right shoulder pain. A February 2009 record reflects the Veteran had intermittent right shoulder pain, currently no pain, has been to physical therapy, and was advised to continue home exercises. A June 2011 record reflects a diagnosis of pain in right shoulder with overhead activities. Upon examination there was no deformity, no swelling, and limited range of motion secondary to pain (actual measurements not listed). An MRI showed anterior glenoid labral tear. Therapy was the recommended treatment. At a June 2009 VA examination, the Veteran reported pain in his right shoulder when he was in service in 2007; that the pain was relieved with physical therapy; and that he has occasional tightness and pain when reaching back. The examiner noted the Veteran reported he never takes any pain medication; he has no medical doctor visits; no specific orthopedic treatment was recommended; and that he reports using a hammer in construction work as a carpenter, where he feels discomfort and tenderness. Upon examination, the examiner noted there was no physical abnormality, swelling, deformity, subluxation, dislocation, or muscle atrophy. Right shoulder flexion and abduction were to 180 degrees. Upon repetitive motion testing, the Veteran did not demonstrate any increased pain, increased limitation of motion, or additional limitation of restriction of motion in the right shoulder. The Veteran was diagnosed with right shoulder chronic pain symdrome with mild limited internal rotation. X-rays were scheduled for the next day, but the examiner noted the Veteran did not come the next day for x-rays, and when contacted, the Veteran never responded as of the date the report was released. A July 2009 examination report from a physician at the Northport VAMC reflects a general examination of the Veteran was conducted. The written report reflects a diagnosis of right shoulder pain syndrome. Range of motion measurements were not included in the written report. Post service treatment records from the New York VAMC are also associated with the Veteran's claim's file. A May 2013 record reflects the Veteran reports he had an MRI of shoulder done in the past, had already had therapy for his shoulder, and declined any further therapy or treatment at this time. A January 2014 record reflects the Veteran denied any significant shoulder discomfort. Upon review of the relevant medical evidence prior to August 31, 2017, the Board finds that the Veteran's symptoms are consistent with the noncompensable rating currently assigned, based on the degree of flexion and abduction, which were reported in the normal range of 180 degrees when measured during the June 2009 examination. To obtain a higher rating for the Veteran's right shoulder disability, it is necessary to show motion limited to shoulder level (90 degrees) for a 20 percent rating. For this period, however, the Veteran's flexion and abduction were no worse than 180 degrees. Thus, the Board finds that a compensable rating is not warranted for the Veteran's right shoulder disability at any point prior to August 31, 2017. The Board also finds that a review of the contemporaneous medical records shows no evidence of a more severe condition in the right shoulder. Treatments for the Veteran's right shoulder during the period prior to August 31, 2017 only show complaints of pain and some loss of range of motion. However, no objective testing during treatment shows range of motion lower than that represented in the VA examinations of record. As such, the Board finds that the symptoms associated with the service-connected right shoulder have not more nearly approximated the criteria for an evaluation in excess of 0 percent under Diagnostic Code 5201 for this period. In addition, the Board has considered whether a higher evaluation would be warranted under another potentially applicable diagnostic code. However, there is no medical evidence of ankylosis of the scapulohumeral articulation resulting in abduction to 60 degrees (Diagnostic Code 5200) or any impairment of the humerus (Diagnostic Code 5202). Accordingly, the Board finds that the preponderance of the evidence is against the assignment of a compensable rating for a right shoulder disability prior to August 31, 2017, and the claim is denied. 38 U.S.C. §5107(b) (2012); 38 C.F.R. §3.102 (2017); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). From August 31, 2017 Onward At an August 2017 VA examination, the Veteran reported almost no symptoms of pain in his right shoulder until early 2017, when he started having a gradual increase in right shoulder pain. Upon examination, the examiner noted there was no muscle atrophy and no ankylosis. Right shoulder flexion was 90 degrees; and, abduction was 180 degrees. The examiner noted the Veteran was diagnosed with right rotator cuff tendonitis in 2011; and, a right labral tear, including SLAP (superior labral anterior-posterior lesion) in 2011. Upon review of the relevant medical evidence from August 31, 2017 onward, the Board finds that the Veteran's symptoms are consistent with the 20 percent rating currently assigned, based on the degree of flexion, which was recorded as 90 degrees in the August 2017 exam. To obtain a higher rating for the Veteran's right shoulder disability, it is necessary to show motion limited midway between the side and shoulder level (i.e. less than 90 degrees but more than 25 degrees shoulder motion) for a 30 percent rating. For this period, however, the Veteran's flexion was no worse than 90 degrees; and his abduction was no less than 180 degrees. Thus, the Board finds that a rating higher than 20 percent is not warranted for the Veteran's right shoulder disability at any point from August 31, 2017 onward. The Board also finds that a review of the contemporaneous medical records shows no evidence of a more severe condition in the right shoulder. Treatments for the Veteran's right shoulder during the period from August 31, 2017 onward only show complaints of pain and some loss of range of motion. However, no objective testing during treatment shows range of motion lower than that represented in the August 2017 VA examination of record. As such, the Board finds that the symptoms associated with the service-connected right shoulder disability have more nearly approximated the criteria for a 20 percent evaluation under Diagnostic Code 5201 for this period. In addition, the Board has considered whether a higher evaluation would be warranted under another potentially applicable diagnostic code. However, there is no medical evidence of ankylosis of the scapulohumeral articulation resulting in abduction to 60 degrees (Diagnostic Code 5200) or any impairment of the humerus (Diagnostic Code 5202). Accordingly, the Board finds that the preponderance of the evidence is against the assignment of a rating in excess of 20 percent for a right shoulder disability from August 31, 2017 onward, and the claim is denied. 38 U.S.C. §5107(b) (2012); 38 C.F.R. §3.102 (2017); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Right Fifth Toe Disability The Veteran's acute transverse linear impacted fracture of the proximal phalanx of the right fifth toe (right fifth toe disability) has been rated pursuant to the criteria of Diagnostic Code 5284, as set forth in 38 C.F.R. § 4.71a. Under Diagnostic Code 5284, a severe foot injury warrants a 30 percent rating; a moderately severe foot injury warrants a 20 percent rating, and a moderate foot injury warrants a 10 percent rating. VA treatment records from Northport VAMC, Bronx VAMC, New York HHS, East Orange VAMC, and Lyons VMAC reflect no complaint of right fifth toe pain or any other foot disability. At an August 2017 VA examination, the Veteran had no current complaint of right fifth toe pain. The examiner noted the Veteran does not have a current diagnosis associated with any claimed condition, to include the right fifth toe disability. The examiner opined that although the Veteran had a right fifth toe injury in service, it healed, and there was no pain or further treatment. Upon examination, the examiner states the Veteran had a normal examination, with no pain, no swelling, no deformity, no previous surgery, no flare-ups, no scars, and no functional loss of the right lower extremity attributable to the claimed condition. Upon consideration of the medical evidence in this case, it is clear that the Veteran does not have any current symptoms of a right fifth toe disability, or any other foot injury. There is simply no evidence of record documenting any symptoms of a right fifth toe disability at any point during the appeal period. Therefore, the Board finds that a compensable rating for a right fifth toe disability must be denied. ORDER Entitlement to a compensable rating for a right shoulder disability prior to August 31, 2017, and in excess of 20 percent thereafter, is denied. Entitlement to a compensable rating for a right fifth toe disability is denied. ____________________________________________ CAROLINE B. FLEMING Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs