Citation Nr: 21010628 Decision Date: 02/25/21 Archive Date: 02/25/21 DOCKET NO. 13-32 748 DATE: February 25, 2021 ORDER Entitlement to a rating in excess of 10 percent, prior to May 31, 2018, for residuals of left clavicle fracture and post-operative status rotator cuff repair (hereinafter referred to as “left clavicle disability”) is denied. Entitlement to a rating in excess of 20 percent, prior to March 5, 2019, for left clavicle disability is denied. Entitlement to a rating of 30 percent, but not higher, beginning March 5, 2019, for left clavicle disability is granted. REMANDED Entitlement to a clothing allowance is remanded. FINDINGS OF FACT 1. For the period prior to May 31, 2018, the Veteran’s left clavicle disability manifested as painful motion, but not limitation of motion at the shoulder level. 2. For the period prior to March 5, 2019 the Veteran’s left clavicle disability manifested as limitation of motion midway between side and shoulder level, but not to 25 degrees from side. 3. For the period beginning March 5, 2018, the Veteran’s left clavicle disability manifested as limitation of motion from 25 degrees from side, but not unfavorable ankylosis of the left side. CONCLUSIONS OF LAW 1. For the period prior to May 31, 2018, the criteria for a disability rating higher than 10 percent for the Veteran’s left clavicle disability have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1 4.2, 4.7, 4.40, 4.45, 4.59, 4.71a, DC 5203-5201. 2. For the period prior to March 5, 2019, the criteria for a disability rating higher than 20 percent for the Veteran’s left clavicle disability have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1 4.2, 4.7, 4.40, 4.45, 4.59, 4.71a, DC 5203-5201. 3. For the period beginning March 5, 2019, the criteria for a disability rating of 30 percent, but no higher, for the Veteran’s left clavicle disability has been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1 4.2, 4.7, 4.40, 4.45, 4.59, 4.71a, DC 5203-5201. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 1983 to August 1987. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a June 2010 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In March 2019, the Veteran testified at a hearing before a Veterans Law Judge (VLJ) who is now retired; the hearing transcript is of record. In January 2021, the Board informed the Veteran that the Veterans Law Judge who conducted the hearing was retired and indicated that he was entitled to another hearing. The Veteran did not request a second Board hearing and thus the Board will proceed with the consideration of his claims. This case was previously before the Board. In January 2020, the Board remanded the issue of a higher evaluation for the Veteran’s left clavicle disability to the RO for further evidentiary development. Specifically, to afford the Veteran with a new VA examination. The Veteran attended a VA examination in February 2020. Following the requested development, a supplemental statement of the case (SSOC) was issued in August 2020. Notably, the Veteran’s rating was increased to 30 percent effective February 11, 2020, the date of his most recent VA examination, in an August 2020 rating decision based on the findings from said examination. Given the above, a review of the record reflects compliance with the Board’s directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Additionally, the Veteran filed a September 2016 Notice of Disagreement (NOD) regarding the issue of entitlement to a clothing allowance. There has not been a Statement of the Case (SOC) issued on this issue. As such, this issue will be addressed in the Remand section of this decision. Increased Rating Disability ratings are determined by applying the criteria set forth in the VA’s Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. 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. In determining the severity of a disability, the Board is required to consider 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 the Veteran’s disability. 38 C.F.R. §§ 4.1, 4.2; Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). If the disability more closely approximates the criteria for the higher of two ratings, the higher rating will be assigned; otherwise, the lower rating is assigned. 38 C.F.R. § 4.7. It is not expected that all cases will show all the findings specified; however, findings sufficiently characteristic to identify the disease and the disability therefrom and coordination of rating with impairment of function will be expected in all instances. 38 C.F.R. § 4.21. In deciding this appeal, the Board has considered whether separate ratings for different periods of time, based on the facts found, are warranted, a practice of assigning ratings referred to as “staging the ratings.” See Fenderson v. West, 12 Vet. App. 119 (1999). 1. Left Clavicle Disability The Veteran’s left clavicle disability has been evaluated pursuant to DC 5203-5201. Hyphenated diagnostic codes are used when a rating under one DC requires use of an additional DC to identify the basis for the evaluation assigned. The additional code is shown after the hyphen. 38 C.F.R. § 4.27. The first four digits, 5203 in this case, is the DC for the disability. The second four digits after the hyphen, 5201 in this case, is the DC used to rate the residuals of that disability. Thus, the Veteran’s impairments of the left clavicle (DC 5203) have been rated based on limitation of motion (DC 5201). He is rated as 10 percent disabling prior to May 31, 2018, 20 percent prior to February 11, 2020, and 30 percent thereafter. Disabilities and injuries of the shoulder are evaluated under Diagnostic Codes 5200, 5201, 5202 and 5203. See 38 C.F.R. § 4.71 (a). The evidence establishes the Veteran is right-handed, so his right shoulder is rated for impairment of the major upper extremity and the left shoulder is rated for the impairment of the minor upper extremity. For the Veteran to obtain the next higher rating of 40 percent for his left shoulder (minor extremity—the Veteran is right hand dominant), the evidence must show: Unfavorable ankylosis, abduction limited to 25 degrees from the side (DC 5200). In this regard, as the evidence does not demonstrate any ankyloses and there is no identified impairment of the humerus during any period on appeal, Diagnostic Codes 5200 and 5202 are inapplicable. As such, an increased rating cannot be assigned under Diagnostic Codes 5200 or 5203. 38 C.F.R. § 4.71a, DCs 5200 and 5202. Period prior to May 31, 2018 The Veteran attended a VA examination in February 2010. The Veteran’s range of motion testing showed left shoulder flexion to 180 degrees, abduction to 180 degrees, external rotation to 70 degrees, and internal rotation to 90 degrees. The Veteran reported pain, but the examiner noted there was no objective evidence of pain with motion. A bump over the left clavicle was found and noted to probably be from a non-perfect clavicle healing with no tenderness over the area. The Veteran was diagnosed with mild deformity of the left clavicle, left arm numbness, and left shoulder pain, status post rotator cuff surgery. The Veteran attended a VA examination in May 2011. The Veteran’s range of motion testing showed left shoulder flexion to 170 degrees, abduction to 170 degrees, external rotation to 80 degrees, and internal rotation to 90 degrees. There was objective evidence of pain with active motion. Following repetitive motion testing, the range of motion was flexion to 160 degrees, abduction to 160 degrees, external rotation to 70 degrees, and internal rotation to 90 degrees. The examiner provided a diagnosis of mild degenerative arthritis, angulated healed mid clavicular fracture and muscle strain, chronic/mild/posterior scalene muscle. The Veteran attended a VA examination in April 2013. The examiner confirmed the prior diagnosis from the May 2011 examination. The Veteran’s range of motion testing showed left shoulder flexion to 115 degrees and abduction to 110 degrees. There was objective evidence of pain with active motion. No additional limitations were noted following repetitive motion. The Veteran attended a VA examination in May 2016. The Veteran reported shoulder flare-ups which were worse at night if he rolled over on to his left shoulder. The pain wakes him at night. He is unable to lift more than 10 pounds, although it is painful to lift any weight with his left arm at all. The Veteran’s range of motion testing showed left shoulder flexion to 90 degrees, abduction to 90 degrees, external rotation to 80 degrees, and internal rotation to 80 degrees. All ranges of motion exhibited pain on exam. There weas evidence of localized tenderness or pain along supraspinatus. The Veteran was not examiner immediately after repetitive use over time, and the examiner noted that the examination is neither medically consistent or inconsistent with the Veteran’s statements describing functional loss with repetitive use overtime. The examiner stated that they were unable to say without mere speculation whether pain, weakness, fatiguability, or incoordination significantly limits functional ability with repeated use overtime as the Veteran was not examined after repetitive use. The examination was not conducted during a flare up, and the examination is neither medically consistent or inconsistent with the Veteran’s statements describing functional loss during flare-ups. The examiner stated that they were unable to say without mere speculation whether pain, weakness, fatiguability, or incoordination significantly limits functional ability with flare-ups as the Veteran was not examined during a flare-up. No ankylosis of the left side was noted. The Veteran was noted to have a left shoulder rotator cuff condition. He had a positive Hawkins’ Impingement Test and a negative Empty-can Test. He was unable to perform the External Rotation/Infraspinatus Strength Test and the Lift-off Subscapularis Test. The examiner noted that the Veteran’s is unable to do jobs that involve lifting more than 5-10 pounds or overhead lifting activities. Applying the relevant criteria, the Board finds that prior to May 31, 2018, the date of the VA examination which showed a worsening of the Veteran’s left clavicle disability, a rating higher than 10 percent is not warranted. In this regard, there is no evidence of nonunion of the clavicle or scapula with loose movement, or for dislocation of the clavicle or scapula with regard to the left shoulder, which warrant a 20 percent rating under DC 5203. Nor is there any evidence of limitation of motion at shoulder level which warrants a 20 percent rating under DC 5201. This examination was adequate, to include range of motion during flare-ups. Accordingly, a rating higher than 10 percent prior May 31, 2018 is not warranted under DC 5203 or DC 5201. As discussed, higher ratings pursuant to DCs 5200 and 5202 are inappropriate as the evidence does not demonstrate any ankyloses and there is no identified impairment of the humerus; thus, they are inapplicable. The Board acknowledges that the Veteran contends that his service-connected left clavicle disability warrants a higher evaluation. In determining the actual degree of disability, however, contemporaneous medical records and an objective examination by a health professional are more probative of the degree of the Veteran’s impairment. This is particularly so where the rating criteria require analysis of the clinically significant symptoms and objectively measurable criteria, like range of motion. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). The Board finds that the medical opinions of this Veteran, who lacks medical training, are not competent evidence of the clinical significance of his symptoms. Id. Based on the above, the Board finds that an evaluation in excess of 10 percent for the Veteran’s left clavicle disability for the period prior to May 31, 2018 is not warranted. There is no reasonable doubt to be resolved as to this issue. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. Period prior to March 5, 2019 The Veteran attended a VA examination in May 2018. The Veteran reported shoulder flare-ups describing them similarly to that of the May 2016 examination. The Veteran’s range of motion testing showed left shoulder flexion to 90 degrees, abduction to 90 degrees, external rotation to 80 degrees, and internal rotation to 70 degrees. All ranges of motion exhibited pain on exam. There was evidence of pain with weight bearing. There weas evidence of localized tenderness or pain described as mild discomfort on the top of the left shoulder. The Veteran was able to perform repetitive use testing with no additional loss of range of motion. The examination was not conducted during a flare up, but the examiner stated that examination is medically consistent with the Veteran’s statements describing functional loss during flare-ups, noting that pain, weakness, fatiguability, or incoordination does not significantly limit functional ability with flare-ups. No ankylosis or muscle atrophy of the left side was noted. The Veteran was noted to have a left shoulder rotator cuff condition. He had a positive Hawkins’ Impingement Test and a negative Empty-can Test. He was unable to perform the External Rotation/Infraspinatus Strength Test and the Lift-off Subscapularis Test. No shoulder instability. The Veteran was noted to have a clavicle condition, specifically history of left clavicle fracture. Cross-body adduction test was positive on the left side. The examiner noted that there is evidence of pain on passive range of motion testing and when the joint is used in non-weight bearing. The opposing joint is undamaged and medically feasible to test said joint. The Veteran attended a VA examination in November 2018. The Veteran reported shoulder flare-ups describing them as baseline pain 6/10 in the left shoulder and 3-4/10 in the left hand. They are triggered by random movements and lifting weight above 7 pounds. He can lift a gallon of milk but cannot hold it long. The Veteran’s range of motion testing showed left shoulder flexion to 140 degrees, abduction to 140 degrees, external rotation to 60 degrees, and internal rotation to 90 degrees. The Veteran complained of pain in the left shoulder above 90-degree forward flexion and abduction level. There was pain on external rotation of the left shoulder beyond 60 degrees. Pain was noted and causes functional loss on flexion, abduction, and external rotation. There was evidence of localized tenderness or pain along the left glenohumeral joint. The Veteran was able to perform repetitive use testing with additional functional loss of flexion to 90 degrees, abduction to 90 degrees, external rotation to 60 degrees, and internal rotation to 90 degrees. The examination was not conducted during a flare up, but the examiner stated that examination is medically consistent with the Veteran’s statements describing functional loss during flare-ups, described in terms of range of motion as flexion to 90 degrees, abduction to 90 degrees, external rotation to 60 degrees, and internal rotation to 90 degrees. No ankylosis of the left side was noted. The Veteran was noted to have a left shoulder rotator cuff condition. He had a positive Hawkins’ Impingement Test, positive Empty-can Test, positive External Rotation/Infraspinatus Strength Test, and positive Lift-off Subscapularis Test. No shoulder instability. The Veteran was noted to have a clavicle condition, specifically history of left clavicle fracture. Cross-body adduction test was positive on the left side. The examiner noted that the Veteran would only tolerate lifting more than 10 pounds with the left non-dominant hand on an occasional basis. Applying the relevant criteria, the Board finds that prior to March 5, 2019, the date of the Veteran’s Board hearing, a rating higher than 20 percent is not warranted. In this regard, there is no evidence of limitation of motion to 25 degrees from side to warrant 30 percent rating under DC 5201. Accordingly, a rating higher than 20 percent prior March 5, 2019 is not warranted under DC 5201. As discussed, higher ratings pursuant to DCs 5200 and 5202 are inappropriate as the evidence does not demonstrate any ankyloses and there is no identified impairment of the humerus; thus, they are inapplicable. The Board acknowledges that the Veteran contends that his service-connected left clavicle disability warrants a higher evaluation. In determining the actual degree of disability, however, contemporaneous medical records and an objective examination by a health professional are more probative of the degree of the Veteran’s impairment. This is particularly so where the rating criteria require analysis of the clinically significant symptoms and objectively measurable criteria, like range of motion. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). The Board finds that the medical opinions of this Veteran, who lacks medical training, are not competent evidence of the clinical significance of his symptoms. Id. Based on the above, the Board finds that an evaluation in excess of 20 percent for the Veteran’s left clavicle disability for the period prior to March 5, 2019 is not warranted. There is no reasonable doubt to be resolved as to this issue. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. Period beginning March 5, 2019 The Veteran testified at his Board hearing on March 5, 2019. The Veteran described that his symptoms had gotten worse, and that he could barely use his left arm, stating that there was no function to it. His range of motion was self-described as very bad and very weak. Pursuant to this testimony, the Board remanded the Veteran’s claim for a new VA examination. The Veteran attended a VA examination in February 2020. The Veteran’s range of motion testing showed left shoulder flexion to 30 degrees, abduction to 30 degrees, external rotation to 25 degrees, and internal rotation to 30 degrees. There was pain on all ranges of motion tested. There was evidence of localized tenderness or pain in the antero-lateral shoulder with a severity of 9/10. The Veteran was in too much pain to perform repetitive motion testing, but the examiner estimated additional functional loss after repetitive motion to be flexion to 25 degrees, abduction to 25 degrees, external rotation to 20 degrees, and internal rotation to 20 degrees. The examination was not conducted during a flare up, but the examiner stated that functional loss during flare-ups could be described in terms of range of motion as flexion to 25 degrees, abduction to 25 degrees, external rotation to 20 degrees, and internal rotation to 20 degrees. No ankylosis of the left side was noted. The Veteran was noted to have a left shoulder rotator cuff condition but was unable to perform any of the associated tests. No shoulder instability. The Veteran was noted to have a clavicle condition, specifically history of left clavicle fracture. Cross-body adduction test was positive on the left side. The examiner noted that the Veteran cannot lift or carry loads and cannot raise his left arm above the shoulder. The AOJ increased the Veteran’s disability rating to 30 percent effective the date of the February 2020 examination. The Boards finds that the Veteran’s testimony at his hearing on March 5, 2019 is consistent with the findings of the February 2020 examiner, and as such, the Veteran’s increase to 30 percent shall be effective the date of his Board hearing. This is the highest evaluation allowed under the law for limitation of motion of the Veteran’s minor extremity arm. See 38 C.F.R. §§ 4.69, 4.71a. Again, higher ratings pursuant to DCs 5200 and 5202 do not apply as the evidence does not demonstrate any ankyloses and there is no identified impairment of the humerus; thus, they are inapplicable. The Board acknowledges that the Veteran contends that his service-connected left clavicle disability warrants a higher evaluation. In determining the actual degree of disability, however, contemporaneous medical records and an objective examination by a health professional are more probative of the degree of the Veteran’s impairment. This is particularly so where the rating criteria require analysis of the clinically significant symptoms and objectively measurable criteria, like range of motion. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). The Board finds that the medical opinions of this Veteran, who lacks medical training, are not competent evidence of the clinical significance of his symptoms. Id. Based on the above, the Board finds that an evaluation in excess of 30 percent for the Veteran’s left clavicle disability for the period beginning March 5, 2019 is not warranted. There is no reasonable doubt to be resolved as to this issue. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. REASONS FOR REMAND 2. Entitlement to a clothing allowance is remanded. The Veteran submitted a timely Notice of Disagreement in September 2016 with an August 2016 administrative decision denying entitlement to a clothing allowance, but a Statement of the Case has not yet been issued. A remand is required for the AOJ to issue a SOC. 38 C.F.R. § 20.200; Manlincon v. West, 12 Vet. App. 238, 240-41 (1999). The matters are REMANDED for the following action: Send the Veteran and his representative a SOC that addresses the issue of entitlement to a clothing allowance. If the Veteran perfects an appeal, the issue should be returned to the Board for further appellate consideration. L. ANDERSEN Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Katie Poe, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.