Citation Nr: 1110346 Decision Date: 03/15/11 Archive Date: 03/30/11 DOCKET NO. 05-00 374 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Oakland, California THE ISSUE Entitlement to an initial disability rating in excess of 10 percent prior to October 27, 2005, and thereafter in excess of 20 percent for right shoulder degenerative arthritis, acromioclavicular joint, with biceps tendinitis. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD P. Childers, Counsel INTRODUCTION The Veteran, who is the appellant, served on active duty from February 1997 to August 2003. This matter is before the Board of Veterans' Appeals (Board) on appeal of an October 2003 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In July 2009 the Board remanded the matter for further development. No further action to ensure compliance with the remand directive is required. Stegall v. West, 11 Vet. App. 268 (1998). The issue of entitlement to service connection for posttraumatic stress disorder has been raised by the record, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. The record shows the matter of entitlement to a total rating based on individual unemployability due to service-connected disabilities has also been raised by the record. Given that service connection is in effect for more than just the right shoulder disability at issue in this appeal, and as the Veteran's allegation of unemployability includes those other disorders, the Board finds that referral of the issue of entitlement to a TDIU, rather than adjudication, is appropriate in this case. Compare Rice v. Shinseki, 22 Vet. App. 447 (2009). FINDINGS OF FACT 1. For the period prior to September 13, 2005, the Veteran's right shoulder disability (major extremity) was manifested by full range of motion with mild pain that was not productive of significant functional impairment. 2. For the period from September 13, 2005, to October 6, 2009, the Veteran's right shoulder disability was manifested by motion limited to shoulder level, with no further functional impairment. 3. For the period since October 7, 2009, the Veteran's right shoulder disability is manifested by right shoulder motion functionally limited by pain to midway between shoulder and side. CONCLUSIONS OF LAW 1. The criteria for an initial disability rating higher than 10 percent for the period prior to September 13, 2005, for right shoulder degenerative arthritis, acromioclavicular joint, with biceps tendinitis have not been met. 38 U.S.C.A. §§ 1155, 5107(b) (West 2002 & Supp. 2010); 38 C.F.R. §§ 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5003, 5010, 5024, 5201 (2010). 2. The criteria for a disability rating of 20 percent for the period from September 13, 2005, to October 27, 2005, for right shoulder degenerative arthritis, acromioclavicular joint, with biceps tendinitis have been met. 38 U.S.C.A. §§ 1155, 5107(b) (West 2002 & Supp. 2010); 38 C.F.R. §§ 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5201 (2010). 3. The criteria for a disability rating of 20 percent for the period from October 27. 2005, to October 6, 2009, for right shoulder degenerative arthritis, acromioclavicular joint, with biceps tendinitis have not been met. 38 U.S.C.A. §§ 1155, 5107(b) (West 2002 & Supp. 2010); 38 C.F.R. §§ 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5201 (2010). 3. The criteria for a disability rating of 30 percent for the period since October 7, 2009, for right shoulder degenerative arthritis, acromioclavicular joint, with biceps tendinitis have been met. 38 U.S.C.A. §§ 1155, 5107(b) (West 2002 & Supp. 2009); 38 C.F.R. §§ 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5201 (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Veterans Claims Assistance Act of 2000 (VCAA) The VCAA amended VA's duties to notify and to assist a claimant in developing information and evidence necessary to substantiate a claim. 38 U.S.C.A. §§ 5103(a), 5103A; 38 C.F.R. § 3.159. Duty to Notify Under 38 U.S.C.A. § 5103(a), VA must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide. Also, the VCAA notice requirements apply to all five elements of a service connection claim. The five elements are: (1) Veteran status; (2) existence of a disability; (3) a connection between the Veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. Dingess v. Nicholson, 19 Vet. App. 473 (2006). In a claim for increase, the VCAA notice requirements are the type of evidence needed to substantiate the claim, namely, evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on the claimant's employment and daily life. Also, if the Diagnostic Code under which the claimant is rated contains criteria necessary for entitlement to a higher disability rating that would not be satisfied by the claimant demonstrating a noticeable worsening or increase in severity of the disability and the effect that worsening has on the claimant's employment and daily life (such as a specific measurement or test result), the VA must provide at least general notice of that requirement to the claimant. Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008). Notably, however, this case involves an appeal of the initial ratings assigned the disorders at issue. Consequently, Vazquez-Flores is inapplicable to this appeal. The VCAA notice must be provided to a claimant before the initial unfavorable adjudication by the RO. Pelegrini v. Principi, 18 Vet. App. 112 (2004). In this case the Veteran request for an increased rating stems from the rating assigned during the initial grant of service connection. Where, as here, service connection has been granted and the initial ratings have been assigned, the claims of service connection have been more than substantiated, the claims have been proven, thereby rendering 38 U.S.C.A. §5103(a) notice no longer required because the purpose that the notice was intended to serve has been fulfilled. Once the claims of service connection have been substantiated, the filing of a notice of disagreement with the RO's decision rating the disabilities does not trigger a need for additional 38 U.S.C.A. § 5103(a) notice. Therefore, further VCAA notice under 38 U.S.C.A. § 5103(a) and § 3.159(b)(1) is no longer necessary in the claims for initial higher ratings. Dingess, 19 Vet. App. 473; Dunlap v. Nicholson, 21 Vet. App. 112, 116-117 (2007); Goodwin v. Peake, 22 Vet. App. 128 (2008). Duty to Assist Under 38 U.S.C.A. § 5103A, VA must make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate a claim. The Veteran's service treatment records and VA treatment records have been associated with the claims file. In addition, the Veteran was accorded VA examinations in August 2003, October 2009, and May 2010; and the reports of these examinations are in the claims files. The Board has reviewed the examination reports and finds that they provide the types of findings requires to accuracy evaluate the right shoulder disability. The evidence on file is sufficient for a decision in this matter. As the Veteran has not identified any additional evidence pertinent to the claim and as there are no additional records to obtain, the Board concludes that no further assistance to the Veteran in developing the facts pertinent to the claims is required to comply with the duty to assist. Factual Background In August 2003, the Veteran filed a claim for service connection for shoulder instability and pain and bicep tendonitis. On VA examination in August 2003, the Veteran complained of right shoulder bicipital tendonitis, which he said flared when he lifted more than 20 pounds. Physical examination found no evidence of swelling, tenderness, or deformity. Strength was within normal limits. Range of motion was from zero to 180 degrees, on elevation and abduction, with no associated pain. Using a five-pound weight the Veteran was able to flex, extend, and abduct the right arm with no increase in pain in the right shoulder. No impairment in endurance or weakness was noted. The Veteran was diagnosed as having right shoulder bicep tendonitis with no limitation of motion. X-ray studies in August 2003 showed mild hypertrophic changes of the distal clavicle at the acromioclavicular joint, but no other abnormalities. The diagnosis was of "right shoulder with biceps tendinitis with no limitation of motion." In a rating decision dated in October 2003, service connection was granted for biceps tendinitis of the right shoulder with a noncompensable evaluation effective August 22, 2003. VA treatment records dated in November 2003 note complaints of pain over the right anterior shoulder for two years, and note that the Veteran is right handed. A routine office examination in December 2003 found full range of motion of the right shoulder with some mild pain. During an orthopedic consult in January 2004 the Veteran complained of right shoulder pain, radiating down the arm. He reported that he lifted weights and did pull-ups, and averred that his shoulder pain was worsening, but denied any swelling. The provider noted that the Veteran had large muscular shoulders. Physical examination found tenderness to palpation of the acromioclavicular joint, but there was full range of motion of the bilateral shoulders; 5/5 bilateral rotator cuff, biceps, and triceps strength; pain with biceps curl; resisted supination; intact gross sensation to light touch; positive impingement; and negative apprehension. X-ray studies showed early acromioclavicular joint arthrosis. The diagnosis was of "right shoulder pain - imping[e]ment, biceps tendinitis." In a rating decision dated in November 2004 the Veteran's service-connected right shoulder disability was restyled as "right shoulder degenerative arthritis, acromioclavicular joint, with biceps tendinitis," and a compensable rating of 10 percent was assigned effective August 22, 2003. VA treatment records dated in September 2005 note complaints of right shoulder pain with limited range of motion. Physical examination revealed significant tenderness over the biceps tendon. Range of motion was limited to 90 degrees, and the Veteran was unable to actively abduct his right shoulder greater than 90 degrees. Passive abduction was limited due to pain, and there was crepitus. VA treatment records dated in October 2005 document complaints of increasing pain in the right shoulder, and difficulty lifting up anything with his right arm and shoulder. Physical examination found limited motion of the right shoulder, with evidence of biceps tendonitis impingement as well as "probably rotator cuff pathology." The provider noted that there was significant pain with abduction at 25 degrees of vertical, and range of motion was severely limited at 90 degrees. Crepitus was noted throughout the joint, with evidence of impingement. An MRI in November 2005 revealed a tear of the anterior and superior glenoid labrum from the site of the biceps tendon insertion anteriorly; a very thin biceps tendon seen in the intra-articular location and extending to the site of the labral attachment; and remnants of a superior labral avulsion tear at the biceps tendon anchor, which the radiologist stated appeared to have extended only anteriorly with posterior labrum appearing relatively intact. The anterior glenoid labrum was not identified. There was also a cyst in the superior labrum, which may have represented a labral cyst related to a tear, and the supraspinous tendon demonstrated signs of chronic impingement and tendinitis. A complete tear of the tendon was not seen. There was fluid in the subdeltoid bursa consistent with either acute tendinitis or bursitis or an occult full thickness tear. In a rating decision dated in November 2007, the rating for the Veteran's service-connected right shoulder degenerative arthritis, acromioclavicular joint, with biceps tendinitis disability was increased from 10 percent to 20 percent effective October 27, 2005. Physical examination during a routine office consult in May 2008 found right shoulder limited range of motion with mild crepitus. A December 2008 VA treatment record notes limitation of motion of the right shoulder with moderate crepitus. In a July 2009 Board hearing the Veteran testified that his right shoulder disability had worsened since his last VA examination. On VA examination on October 7, 2009 the Veteran complained of 8 to 9/10 pain on use of the right arm, and said that he was unable to sleep on the shoulder. He denied flare-ups or use of a sling. The examiner noted that there was "massive development of both shoulders," and that the right arm was the dominant limb. Physical examination found tenderness over the biceps insertion. Range of motion testing found 50 degrees flexion and abduction; 10 degrees of extension; 15 degrees of external rotation; and 15 degrees of internal rotation. All movements were extremely painful from inception to completion, and tests for impingement were positive for both the infraspinatus as well as the subscapularis. According to the examiner, there was no additional limitation, after three repetitions, of joint function secondary to pain, fatigue, weakness, or lack of endurance. X-rays showed minimal degenerative changes at the glenohumeral joint, but the acromioclavicular joint was normal, and there were no soft tissue calcifications. The diagnosis was "chronic shoulder strain, although the most likely diagnosis is rotator cuff tear as well as possible subluxation of his biceps tendon." In May 2010 the Veteran was accorded another VA orthopedic examination. During the examination he reported that he was a power lifter and continued to lift weights. He complained of increasing shoulder pain, aggravated when doing push-ups, pull ups, and reaching above the shoulder. He reported that he was unable to push or pull, and occasionally felt a line of pain from the anteriolateral right acromion on the shoulder, down the right upper arm to the mid right arm. He denied any subluxation, dislocation, locking, or stiffness of the right glenohumeral joint, and said that he did not use any assistive devices. The examiner described the Veteran as "a mesomorphic body builder and weight lifter with multiple tattoos and bilateral large gauge nipple piercings." The examiner also noted that shoulder musculature was very well developed and defined, with no evident deltoid or rotator cuff muscle atrophy; however, range of motion was significantly decreased on the right shoulder, and the examiner queried whether there was full effort. Physical examination found active abduction to 95 degrees with a painful arc from 70 to 95 degrees; forward elevation to 100 degrees with pain at end point; passive external rotation to 45 degrees and international rotation to 70 degrees; adduction to 30 degrees with no pain; extension from 0 to 30 degrees with slight pain. The examiner added as follows: . . . he cannot internally rotate the right arm, bring his right hand to the iliac crest on the lateral right hip. He has excellent biceps strength on the right, with slight anterior right shoulder pain when flexing his right forearm against resistance. Rotator cuff strength at 70 degrees against resistance shows intact strong rotator cuff. He is tender over the anterior right shoulder at the biceps long head region, lateral to the coracoids process. Positive Hawkins and Neer signs for anterior impingement. No AC joint tenderness today or lateral acromial tenderness. Only tenderness noted over the anterior acromion, superficial the deep biceps tendon. No erythema, hyperemia, or ecchymosis about the right shoulder. Multiple bilateral shoulder and chest multicolored tattoos noted. The examiner added that there was no change in active or passive range of motion during repeat testing against resistance; and no additional losses of range of motion were observed due to painful motion, weakness, impaired endurance, incoordination, or instability. He further averred that there was no fibrous union, non-union, or loss of head of the right humerus, and concluded by again noting that the Veteran was an extremely muscular body builder with "a very well-developed shoulder and bilateral upper extremity muscles with a larger circumference on the right biceps, dominant arm, than on the left opposite biceps/arm circumference." The diagnosis was supraspinatus tendinitis with chronic impingement secondary to right biceps tendon injury; subdeltoid bursitis and/or tendinitis; and anterior and superior labral tears involving a labral avulsion at the biceps tendon anchor. Rating Principles A disability rating is determined by the application of VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. Separate diagnostic codes identify the various disabilities. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. VA has a duty to acknowledge and consider all regulations that are potentially applicable through the assertions and issues raised in the record, and to explain the reasons and bases for its conclusions. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where there is a question as to which of two evaluations shall be applied, 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. The Board will consider whether separate ratings may be assigned for separate periods of time based on facts found, a practice known as "staged ratings," whether it is an initial rating case or not. Fenderson v. West, 12 Vet. App. 119, 126-27 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). It is the defined and consistently applied policy of the Department of Veterans Affairs to administer the law under a broad interpretation, consistent, however, with the facts shown in every case. When after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability such doubt will be resolved in favor of the claimant. 38 C.F.R. § 4.3. Rating Criteria The Veteran's right shoulder disability, which is currently rated under the provisions of Diagnostic Code 5201-5201, has also been rated under Diagnostic Codes 5099-5024 and 5201-5010 during the appeal period. Under Diagnostic Code 5201, a 20 percent evaluation is warranted for limitation of motion of the arm at shoulder level. A 30 percent evaluation is warranted for limitation of motion midway between the side and shoulder level, and a 40 percent evaluation is assigned for limitation of major arm motion to 25 degrees from the side. 38 C.F.R. § 4.71a, Diagnostic Code 5201. Full range of motion of the shoulder is zero to 180 degrees or abduction and forward elevation (flexion) and zero to 90 degrees of internal and external rotation. 38 C.F.R. § 4.71, Plate I. Both Diagnostic Code 5010 (which pertains to traumatic arthritis) and Diagnostic Code 5024 (which pertains to tenosynovitis) provide for evaluation as degenerative arthritis under Diagnostic Code 5003. See 38 C.F.R. § 4.71a, Diagnostic Codes 5010, 5024. Under Diagnostic Code 5003, for degenerative arthritis established by x-ray findings, a Veteran is rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved. However, when limitation of motion of the specific joint or joints involved is noncompensable under the appropriate diagnostic codes, a rating of 10 percent is for application for each major joint or groups of minor joints affected by limitation of motion, to be combined, not added under Diagnostic Code 5003. Limitation of motion must be objective confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. For the purpose of rating disability from arthritis, the shoulder is considered a major joint. 38 C.F.R. § 4.45(f). A compensable evaluation under Diagnostic Codes 5003 and 38 C.F.R. § 4.59 (for painful motion) is warranted where arthritis is established by x- ray findings and no actual limitation of motion of the affected joints is demonstrated. Lichtenfels v. Derwinski, 1 Vet. App. 484, 488 (1991). Rating factors for a disability of the musculoskeletal system included functional loss due to pain supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion, weakened movement, excess fatigability, swelling and pain on movement. 38 C.F.R. §§ 4.40, 4.45; DeLuca v. Brown, 8 Vet. App. 202 (1995). Also with any form of arthritis, painful motion is factor to be considered. 38 C.F.R. § 4.59. Analysis The evidence for the period prior to September 2005 shows that the Veteran had full range of right shoulder motion with mild pain. In the absence of a showing of any significant functional impairment due to the mild pain, the evidence does not support a rating greater than 10 percent under any applicable diagnostic code (I.e. Diagnostic Codes 5003, 5010, 5024, 5201). On routine physical examination of the right shoulder on September 13, 2005, the Veteran demonstrated significant tenderness over the biceps tendon, range of motion limited to 90 degrees (shoulder level), crepitus, and passive abduction limited due to pain. This demonstrated a significant decrease in range of motion, and supported assignment of a 20 percent evaluation for limitation of motion of the arm at shoulder level, beginning September 13, 2005, until October 6, 2009. A rating higher than 20 percent during that period is not supported by the evidence which shows no further functional impairment. On October 7, 2009, a VA examination noted extremely painful motion limited to 50 degrees, which more nearly approximates limitation of motion midway between side and shoulder level under Diagnostic Code 5201. Although examination in 2010 showed motion to 70 degrees, the Board notes that this was not without significant pain and effort. The Board is also mindful that findings during the 2010 examination do not, alone, necessarily reflect a consistent picture, and in this regard notes prior subjective complaints and objective findings of progressively worsening symptoms. Accordingly, when considering the evidence as a whole, and as provided by 38 C.F.R. § 4.3, 4.7, the Board finds that the criteria for a rating of 30 percent have been met since October 8, 2009. Fenderson (providing for assignment of staged ratings). The criteria for the highest rating of 40 percent under Diagnostic Code 5201 are not met since there is no clinical finding even remotely suggestive of motion limited to 20 degrees from the side. The Board has also considered whether a higher rating is warranted under other schedular criteria. Although right shoulder motion is limited, the shoulder is not ankylosed, so a higher rating is not warranted under Diagnostic Code 5200. Moreover, the Veteran denied episodes of dislocation or recurrent subluxation, and the examiner averred that there was no malunion or nonunion of the humerus, so evaluation as malunion or nonunion of the humerus under Diagnostic Codes 5202, or nonunion or dislocation of the clavicle or scapula under 5203, is not warranted. The Board's above analysis specifically includes consideration of functional impairment due to pain and other factors. See 38 C.F.R. §§ 4.40 and 4.45. Extraschedular Consideration Although the Board is precluded by regulation from assigning an extraschedular rating under 38 C.F.R. § 3.321(b)(1) in the first instance, the Board is not precluded from considering whether the case should be referred to the Director of VA's Compensation and Pension Service for such a rating. The threshold factor for extraschedular consideration is a finding that the evidence presents such an exceptional disability picture that the available schedular rating for the service-connected disability is inadequate. This is accomplished by comparing the level of severity and symptomatology of the service-connected disability with the established criteria. If the criteria reasonably describe the Veteran's disability level and symptomatology, then the Veteran's disability picture is contemplated by the Rating Schedule, and the assigned schedular evaluation is, therefore, adequate, and referral for an extraschedular rating is not required. Thun v. Peake, 22 Vet. App. 111 (2008). In this case, comparing the Veteran's disability level and symptomatology of his right shoulder disability to the Rating Schedule, the degree of disability is contemplated by the Rating Schedule. In this regard, the primary manifestation of the shoulder disorder is limitation of motion, including as affected by pain. This is the manifestation specifically contemplated by the applicable diagnostic codes. The assigned schedular rating is, therefore, adequate, and no referral for an extraschedular rating is required under 38 C.F.R. § 3.321(b)(1). ORDER Entitlement to an initial disability rating greater than 10 percent for the period prior to September 13, 2005, is denied. Entitlement to a disability rating of 20 percent for the period from September 13, 2005, to October 27, 2005, for right shoulder degenerative arthritis, acromioclavicular joint, with biceps tendinitis, is granted, subject to the laws and regulations governing the award of monetary benefits. Entitlement to a disability rating greater than 20 percent for the period from October 27, 2005, to October 7, 2009, for right shoulder degenerative arthritis, acromioclavicular joint, with biceps tendinitis, is denied. Entitlement to a disability rating of 30 percent beginning October 7, 2009, for right shoulder degenerative arthritis, acromioclavicular joint, with biceps tendinitis, is granted, subject to the laws and regulations governing the award of monetary benefits. ____________________________________________ Thomas H. O'Shay Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs