Citation Nr: 1754206	
Decision Date: 11/28/17    Archive Date: 12/07/17

DOCKET NO.  09-14 372	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs (VA) Regional Office (RO) in Detroit, Michigan


THE ISSUES

1.  Entitlement to a higher initial disability rating in excess of 20 percent for left shoulder tendinopathy.

2.  Entitlement to service connection for a nerve disorder of the left shoulder or arm, to include as secondary to the service-connected left shoulder tendinopathy. 


REPRESENTATION

Appellant represented by:	Military Order of the Purple Heart of the U.S.A.


ATTORNEY FOR THE BOARD

S. Moore, Associate Counsel


INTRODUCTION

The Veteran, who is the appellant, served on active duty from September 1986 to October 1987.  The instant matter is a Veterans Benefit Management System (VBMS) appeal.  The Board has reviewed both the VBMS and the "Virtual VA" files so as to insure a total review of the evidence.  

The matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2008 rating decision from the RO in Detroit, Michigan, which granted service connection for left shoulder tendinopathy and assigned a 10 percent initial disability rating, effective October 2, 2007, the date the claim for service connection was received.  In Fenderson v. West, 12 Vet. App. 119 (1999), the U.S. Court of Appeals for Veterans Claims (Court) directed that a similar appeal of the initial rating assigned following a grant of service connection was specifically not a claim for an increased disability rating.  

On the April 2009 substantive appeal, the Veteran declined a hearing before the Board as to the issue on appeal.  As such, the Board finds that there is no hearing request pending at this time.  38 C.F.R. § 20.703 (2017).  

This matter was previously remanded by the Board in December 2012, August 2015, and January 2017 for further development.  In the most recent January 2017 decision, the Board remanded the issue of entitlement to a higher initial rating for the service-connected left shoulder tendinopathy, to include whether a separate compensable rating is warranted for left shoulder nerve damage, to the RO for the following actions: 1) provide a new VA examination of the shoulders with range of motion testing specified in 38 CFR § 4.59 and Correia v. McDonald, 28 Vet. App. 158 (2016), or provide an explanation as to why such testing is not necessary or could not be performed; 2) obtain outstanding VA treatment records; and 3) obtain a VA medical opinion as to whether the Veteran has a neurological impairment of the left shoulder or arm, and, if so, the nerve group involved, and whether the neurological impairment is a manifestation of the service-connected left shoulder tendinopathy or is at least as likely as not related to the in-service injury.  

As a result of the requested development, outstanding VA treatment records have been associated with the claim file.  Additionally, in March 2017,  the VA examiner provided range of motion testing of the left shoulder in active motion, weight-bearing, and nonweight-bearing, and explained that passive range of motion testing was deferred as not medically appropriate due to the risk of increasing pain that was noted during active motion; these measures and assessments complied with the Board's remand requirements (38 CFR §  4.59 and Correia).  As such, there has been partial compliance with the January 2017 Board decision, and substantial compliance sufficient to now rate the left shoulder disability.  

A discussion of the RO's compliance with the January 2017 Board remand as it regards the neurological impairment or nerve condition is included in the Remand section of this decision.  The question of service connection for a nerve disorder, to include as secondary to the service-connected left shoulder tendinopathy, is not intertwined with the issue of rating left shoulder tendinopathy disability because the question regarding a nerve disorder is one of secondary service connection that does not involve any of the schedular rating criteria used to rate the shoulder disability.  If service connection for a nerve disorder is established, even as secondary to the service-connected left shoulder disability, the nerve disability will be rated separately from the service-connected left shoulder disability using the schedular rating criteria for rating nerves, and will not involve rating the same limitation of motion or pain that limits motion of the left shoulder that the left shoulder is rated on.  See 38 C.F.R. § 4.14 (2017).  As these issues are not intertwined, even if adjudicated to have a common etiology, the Board is remanding the issue of service connection for a nerve disorder.  See Locklear v. Shinseki, 24 Vet. App. 311 (2011) (bifurcation of a claim generally is within VA's discretion); Tyrues v. Shinseki, 
23 Vet. App. 166, 178-79 (2009), aff'd, 631 F.3d 1380 (Fed. Cir. 2011) (holding that it is permissible to bifurcate a claim and to adjudicate the distinct theories of entitlement separately).

Following the January 2017 Board remand, in a July 2017 rating decision, the Appeals Resource Center assigned an initial disability rating of 20 percent for the service-connected left shoulder tendinopathy, effective October 2, 2007, the date the claim for service connection was received.  Because the Appeals Resource Center did not assign the maximum disability rating possible, the appeal for a higher initial rating for left shoulder tendinopathy remains before the board.  See A.B. v. Brown, 6 Vet. App. 35 (1993) (noting that where a claimant filed a notice of disagreement as to a RO decision assigning a particular evaluation, a subsequent RO decision assigning a higher rating, but less than the maximum available benefits does not abrogate the pending appeal).

The issue of entitlement to service connection for a nerve disorder of the left shoulder or arm, to include as secondary to the service-connected left shoulder tendinopathy, is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ).


FINDING OF FACT

For the entire initial rating period on appeal from October 2, 2007, the service-connected left shoulder tendinopathy has not been manifested by limitation of motion of the arm approximating 25 degrees from the side.


CONCLUSION OF LAW

The criteria for a disability rating in excess of 20 percent for the service-connected left shoulder tendinopathy have not been met or more nearly approximated for any part of the initial rating period from October 2, 2007.  38 U.S.C. §§ 1155, 5103, 5103A, 5107(b) (2012); 38 C.F.R. §§ 3.159, 3.321, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5201 (2017).



REASONS AND BASES FOR FINDING AND CONCLUSION

Duties to Notify and Assist

The Veterans Claims and Assistance Act of 2002 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance.  38 U.S.C. §§ 5102, 5103, 5103A, 5107, 5126 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.326(a) (2017).  Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim and of the relative duties of VA and the claimant for procuring that evidence.  38 U.S.C. § 5103 (a); 38 C.F.R. § 3.159(b).  Such notice should also address VA's practices in assigning disability evaluations and effective dates for those evaluations.  See Dingess/Hartman v. Nicholson, 
19 Vet. App. 473 (2006).  Notice should be provided to a claimant before the initial unfavorable AOJ decision on a claim.  38 C.F.R. § 3.159(b)(1); Pelegrini v. Principi, 18 Vet. App. 112, 120 (2004); see also Mayfield v. Nicholson, 19 Vet. App. 103, 110 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006).

As the appeal for a higher initial rating for the service-connected left shoulder tendinopathy arises from the Veteran's disagreement with the initial rating following the grant of service connection, no additional notice is required.  The United States Court of Appeals for the Federal Circuit (Federal Circuit) and the Court have held that, once service connection is granted, the claim is substantiated, additional notice is not required, and any defect in notice is not prejudicial.  Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007); 38 C.F.R. § 3.159(b)(3)(i) (no duty to provide VCAA notice upon receipt of a notice of disagreement); VAOPGCPREC 8-2003 (in which the VA General Counsel interpreted that separate notification is not required for "downstream" issues following a service connection grant, such as initial ratings and effective dates).

With regard to the duty to assist, VA has made reasonable efforts to obtain relevant records and evidence with respect to the issue of entitlement to an initial rating in excess of 20 percent for left shoulder tendinopathy, adjudicated herein.  Specifically, the information and evidence that has been associated with the claims file includes service treatment records, private treatment records, VA treatment records, relevant VA examination reports, and the Veteran's written statements.

The VA has provided examinations of the shoulder and arm in August 2008, March 2015, and March 2017.  The VA examination reports are of record.  To that end, when VA undertakes to either provide an examination or to obtain an opinion, it must ensure that the examination or opinion is adequate.  Barr v. Nicholson, 21 Vet. App. 303, 312 (2007).  The record reflects that, when considered together, the VA examination reports reflect that the VA examiners reviewed the claims file, performed physical examination and diagnostic testing, interviewed the Veteran about past and present symptomatology and functional impairment of the left shoulder, and reported on the relevant rating criteria.  

Based on the foregoing, the Board finds that all relevant facts have been properly and sufficiently developed in this appeal, and no further development is required to comply with the duty to assist in developing the facts pertinent to the appeal.  In view of the foregoing, the Board will proceed with appellate review.

Initial Disability Rating for Left Shoulder Tendinopathy

Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule) found in 38 C.F.R. Part 4. 38 U.S.C. § 1155.  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. 

Where there is a question as to which of two disability ratings shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned.  38 C.F.R. § 4.7.  It is the defined and consistently applied policy of VA 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.

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 rating 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.  It is possible for a veteran to have separate and distinct manifestations from the same injury which would permit rating under several diagnostic codes; however, the critical element in permitting the assignment of several ratings under various diagnostic codes is that none of the symptomatology for any one of the conditions is duplicative or overlapping with the symptomatology of the other condition.  Esteban v. Brown, 
6 Vet. App. 259, 261-62 (1994).

When an unlisted condition is encountered it will be permissible to rate under a closely related disease or injury in which not only the functions affected, but the anatomical localization and symptomatology are closely analogous.  Conjectural analogies will be avoided, as will the use of analogous ratings for conditions of doubtful diagnosis, or for those not fully supported by clinical and laboratory findings.  Nor will ratings assigned to organic diseases and injuries be assigned by analogy to conditions of functional origin.  38 C.F.R. § 4.20.

When rating disabilities of the musculoskeletal system, 38 C.F.R. § 4.40  allows for consideration of functional loss due to pain and weakness causing additional disability beyond that reflected on range of motion measurements.  DeLuca v. Brown, 8 Vet. App. 202 (1995).  Further, 38 C.F.R. § 4.45 provides that consideration also be given to decreased movement, weakened movement, excess fatigability, incoordination, and pain on movement, swelling, and deformity or atrophy of disuse.  Painful motion is considered limited motion at the point that pain actually sets in.  See VAOPGCPREC 9-98.

With any form of arthritis, painful motion is an important factor of disability, the facial expression, wincing, etc., on pressure or manipulation, should be carefully noted and definitely related to affected joints.  Muscle spasm will greatly assist the identification.  Sciatic neuritis is not uncommonly caused by arthritis of the spine. The intent of the schedule is to recognize painful motion with joint or periarticular pathology as productive of disability.  It is the intention to recognize actually painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint.  Crepitation either in the soft tissues such as the tendons or ligaments, or crepitation within the joint structures should be noted carefully as points of contact which are diseased.  Flexion elicits such manifestations.  The joints involved should be tested for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with the range of the opposite undamaged joint.  38 C.F.R. § 4.59

Additionally, painful motion is an important factor of disability, and joints that are actually painful, unstable, or malaligned, due to healed injury, should be entitled to at least the minimum compensable rating for the joint.  38 C.F.R. § 4.59.  Although pain may cause a functional loss, pain itself does not constitute functional loss.  Pain must affect some aspect of "the normal working movements of the body" such as "excursion, strength, speed, coordination, and endurance," in order to constitute functional loss.  See Mitchell v. Shinseki, 25 Vet. App. 32 (2011).

The Veteran asserts that the left shoulder tendinopathy disability symptoms more closely resemble the criteria for a rating in excess of 20 percent from October 2, 2007.  Specifically, during the March 2017 VA examination, the Veteran report that the left shoulder condition results in daily aching, throbbing, and constant pain that he rates as 4 to 5 at rest (on a scale of 0 to 10), and flare-ups of pain rated at 9 to 10 with overuse, described as pushing, pulling, or doing overhead work.  No surgery has been required on the left shoulder.  See March 2017 VA examination. 

The Veteran is in receipt of 20 percent initial disability rating for the left shoulder (minor extremity) under Diagnostic Code 5201 for the entire period on appeal from October 2, 2007.  The Veteran has been granted the minimum compensable rating for functional loss due to painful motion of the shoulder pursuant to 38 C.F.R. § 4.59.  Under Diagnostic Code 5201, limitation of an arm at the shoulder level warrants a 20 rating whether it is the major or minor extremity.  When motion is limited to midway between the side and shoulder level, a 20 percent rating is warranted for the minor extremity.  When motion is limited to 25 degrees from the side, a 30 percent rating is warranted for the minor extremity.  38 C.F.R. § 4.71a.  The Veteran is right hand dominant.  See March 2017 VA examination.

Normal ranges of shoulder flexion and abduction are from 0 to 180 degrees, and external and internal rotation are from 0 to 90 degrees.  See 38 C.F.R. § 4.71, Plate I (2017).  In determining whether a veteran has limitation of motion to shoulder level, it is necessary to consider forward flexion and abduction.  See Mariano v. Principi, 17 Vet. App. 305, 314-316 (2003).

After a review of all the lay and medical evidence, the Board finds that, for the entire initial rating period on appeal from October 2, 2007, the weight of the evidence demonstrates that service-connected left shoulder tendinopathy has not been manifested by limitation of motion of the arm approximating 25 degrees from the side.  The most relevant evidence during the early period includes a July 2007 Functional Capacity Evaluation report from St. Francis Hospital, which reflects that the Veteran reported left shoulder pain and crepitus with a medical history of a left shoulder injury in service.  Passive range of motion testing of the left shoulder showed flexion to 160 degrees, abduction to 150 degrees, external rotation to 82 degrees, and internal rotation to 75 degrees.  Physical demands were classified at the light to light/medium exertional level.

At the July 2008 VA examination, range of motion testing of the left shoulder reflected 130 degrees of flexion with pain beginning at 80 degrees in active and passive motion, 140 degrees of abduction with pain beginning at 80 degrees in active and passive motion, 80 degrees of external rotation, and 30 degrees of internal rotation.  The VA examiner assessed left shoulder crepitus with and palpable clicking over the medial aspect of left shoulder blade, tenderness, painful movement, warmth, and weakness.  The VA examiner did not discern deformity, giving way, instability, episodes of dislocations or subluxations, or effusion.  The VA examiner also did not assess additional limitation of motion on repetitive use, abnormal weight-bearing, inflammatory arthritis, or joint ankylosis.  Further, a July 2008 x-ray of the left shoulder obtained in internal and external rotation was deemed normal with no evidence of fracture, dislocation, arthritis, or additional abnormality.  The VA examiner diagnosed left shoulder tendinopathy and assessed that the occupational effects included decreased mobility, problems with lifting and carrying, difficulty reaching, and decreased strength in the upper extremity due to pain.

At the March 2015 VA examination, range of motion testing of the left shoulder was noted to be abnormal, with flexion to 170 degrees, abduction to 170 degrees, external rotation to 90 degrees and internal rotation to 90 degrees.  The VA examiner assessed functional loss in flexion and abduction due to pain, as pain and discomfort were reported when raising the left arm above the head; however, the Veteran was able to perform repetitive use testing, described as at least three repetitions, with no evidence of additional functional loss or range of motion.  Pain, weakness, fatigability, and incoordination did not significantly limit functional ability with repeated use over a time period.  Additionally, the VA examiner did not assess pain on weight-bearing, localized tenderness or pain on palpation of the effected joint, crepitus, atrophy, or reduction in strength of the left shoulder on examination.

At the March 2017 shoulder and arm VA examination, the VA examiner also reported pain with motion that contributed to functional loss in the left shoulder; nevertheless, range of motion testing of the left shoulder revealed flexion to 120 degrees, abduction to 100 degrees, external rotation to 60 degrees, and internal rotation to 25 degrees.  The VA examiner reported evidence of pain and tenderness with weight bearing and observed the Veteran change position frequently at rest to relieve discomfort; however, no additional functional loss was observed with repetitive use of the left shoulder.  Additionally, the VA examiner observed 5/5 (full or normal) muscle strength in left shoulder flexion and abduction with no evidence of muscle atrophy, ankylosis, or shoulder instability.  The VA examiner diagnosed degenerative arthritis of the left shoulder in addition to the service-connected left shoulder tendinopathy disability, as updated imaging of the left shoulder revealed mild acromioclavicular joint degenerative changes.  See March 2017 VA Medical Center report.  However, the mild degenerative changes presented no additional functional impact, as the VA examiner assessed a negative cross body abduction test, no related tenderness on palpation of the acromioclavicular joint, and no effect on range of motion of the shoulder joint.  As a result of the examination, the VA examiner opined that the left shoulder disability limits the ability to perform tasks such as repetitive overhead work and pushing or pulling with the left upper extremity.  

An April 2017 orthopedic consultation report from Iron Mountain VA Medical Center reflects that the Veteran attributed the current left shoulder pain to an in-service injury; however, the Veteran managed the left shoulder disability with Ibuprofen twice a day and using light weights at home.  Examination of the upper extremities revealed four out of five strength and a positive sign of impingement on the left; however, there was no deformity or atrophy in either shoulder, and there was near full range of motion in both shoulders, with the exception of external rotation, which was slightly decreased on the left. 

The Board has considered whether a higher disability rating is warranted on the basis of functional loss due to pain or due to weakness, fatigability, incoordination, or pain on movement of a joint under 38 C.F.R. §§ 4.40 , 4.45, and 4.59.  See also DeLuca.  In this case, there is no question that the left shoulder disability has caused pain, weakness secondary to pain, and crepitus, which has restricted overall motion; however, as noted above, even taking into account any additional functional limitation due to pain, the left shoulder disability has not been manifested by limitation of motion approximating 25 degrees from the side, which is the criteria for a rating of 30 percent for limitation of motion of the minor extremity.   

The record reflects an isolated occurrence functional loss of flexion and abduction to 80 degrees due to pain, which is near shoulder level (i.e., 90 degrees).  See August 2008 VA examination.  However, for the initial rating period from October 2, 2007, the evidence has generally reflected flexion ranging from 120 degrees to 170 degrees, and abduction ranging from 100 degrees to 170 degrees, all of which are above shoulder level.  See July 2007 private treatment record, March 2015 and March 2017 VA examination reports, and April 2017 VA treatment record.  As such, the record has generally reflected noncompensable limitation of motion, which has been rated 20 percent for painful motion.  38 C.F.R. § 4.59.  Of note, when the Veteran submitted the substantive appeal in April 2009, the Veteran did not specifically disagree with the initial rating of service-connected left shoulder tendinopathy assigned by the RO, but only appealed the RO's failure to adjudicate a claim for a nerve condition as secondary to the left shoulder condition (which could also be described as a disagreement that a separate compensable rating for a nerve disorder was not granted).  

Additionally, the Board has considered whether any other diagnostic code would provide a higher initial rating for the left shoulder disability.  As lay and medical evidence shows no ankylosis of the scapulohumeral articulation, the Board finds that Diagnostic Code 5200 does not apply to rating the Veteran's left shoulder disability.  38 C.F.R. § 4.71a; see also August 2008, March 2015, and March 2017 VA examination reports. 

Diagnostic Code 5202 provides ratings based impairment of the humerus.  As the lay or medical evidence shows no deformity of the humerus, recurrent dislocation of the humerus at the scapulohumeral joint, fibrous union, nonunion, or loss of head of the humerus, the Board finds that Diagnostic Code 5202 does not apply. 
38 C.F.R. § 4.71a; see also August 2008, March 2015, and March 2017 VA examination reports.  Diagnostic Code 5203 provides ratings based on impairment of the clavicle or scapula.  As the lay and medical evidence shows no malunion, nonunion, or dislocation of the clavicle or scapula, or impairment of function of the contiguous joint, the Board finds that Diagnostic Code 5203 is not an appropriate code to rate the left shoulder disability.  38 C.F.R. § 4.71a; see also August 2008, March 2015, and March 2017 VA examination reports.  In addition, a 10 percent rating is the maximum rating provided under Diagnostic Code 5003 for one major joint (left shoulder).  38 C.F.R. § 4.71a.

Extraschedular Referral Consideration

The Board had also considered whether referral for an extraschedular rating is warranted for the service-connected left shoulder tendinopathy during the relevant period on appeal.  Ratings shall be based as far as practicable upon the average impairments of earning capacity with the additional proviso that the Secretary shall from time to time readjust this schedule of ratings in accordance with experience.  To accord justice, therefore, to the exceptional case where the schedular ratings are found to be inadequate, the Under Secretary for Benefits or the Director, Compensation and Pension Service, upon field station submission, is authorized to approve on the basis of the criteria set forth in this paragraph an extraschedular rating commensurate with the average earning capacity impairment due exclusively to the service-connected disability or disabilities.  The governing norm in these exceptional cases is: A finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical the application of the regular schedular standards.  38 C.F.R. § 3.321(b)(1) (2017).

The United States Court of Appeals for Veterans Claims (Court) has clarified that there is a three-step inquiry for determining whether a veteran is entitled to an extraschedular rating.  Thun v. Peake, 22 Vet. App. 111, 115 (2008).  Initially, the Board must determine whether the evidence presents such an exceptional disability picture that the available schedular ratings for the service-connected disability are inadequate.  See Yancy v. McDonald, 27 Vet. App. 484 (2016); Doucette v. Shulkin, 28 Vet. App. 366 (2017) (holding that either the veteran must assert that a schedular rating is inadequate or the evidence must present exceptional or unusual circumstances); Sowers v. McDonald, 27 Vet. App. 472, 478 (2016) ("[t]he rating schedule must be deemed inadequate before extraschedular consideration is warranted").  Second, if the schedular rating does not contemplate the veteran's level of disability and symptomatology and is found inadequate, the Board must determine whether the veteran's disability picture exhibits other related factors such as marked interference with employment and frequent periods of hospitalization.  Thun, 22 Vet. App. at 116.  Third, if the first two Thun elements have been satisfied, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether, to accord justice, the veteran's disability picture requires the assignment of an extraschedular rating.  Thun at 116.  In other words, the first element of Thun compares a veteran's symptoms to the rating criteria, while the second element considers the resulting effects of those symptoms; if either prong is not met, then referral for extraschedular consideration is not appropriate.  Yancy, 27 Vet. App. at 494-95.

With respect to the first prong of Thun, the evidence in the instant appeal does not establish such an exceptional disability picture as to render the schedular criteria inadequate to rate the left shoulder disability.  The Board finds that all the symptomatology and impairment caused by the left shoulder tendinopathy is specifically contemplated by the schedular rating criteria, and no referral for extraschedular consideration is required.  The Veteran's left shoulder disability has been manifested by symptoms of painful motion, weakness, limitation including due to pain, crepitus, and use of pain medication.  The schedular rating criteria specifically provide ratings for painful arthritis (Diagnostic Code 5003, 38 C.F.R. § 4.59), limitation of motion (Diagnostic Code 5201), including motion limited to orthopedic factors such as pain, weakness, and fatigue (38 C.F.R. §§ 4.40, 4.45, 4.59, DeLuca), that are incorporated into the schedular rating criteria.  The left shoulder pain managed by pain medication is adequately contemplated by the assigned 20 percent disability rating for limitation of motion that is caused by painful motion.  38 C.F.R. §§ 4.40, 4.45, 4.59, DeLuca.  In this case, comparing the disability level and symptomatology and impairment of the left shoulder disability to the rating schedule, the degree of disability throughout the entire period under consideration is contemplated by the rating schedule and the assigned rating is, therefore, adequate.

The schedule is intended to compensate for average impairments in earning capacity resulting from service-connected disability in civil occupations. 
38 U.S.C. § 1155.  "Generally, the degrees of disability specified [in the rating schedule] are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability."  38 C.F.R. § 4.1.  In this case, the symptoms and functional impairment reported by the Veteran as to the initial rating issue on appeal are specifically contemplated by the criteria discussed above, including the functional limitations and the effects on daily life. 

According to Johnson v. McDonald, 762 F.3d 1362 (Fed. Cir. 2014), a veteran may be entitled to "consideration [under 38 C.F.R. § 3.321 (b)] for referral for an extra-schedular evaluation based on multiple disabilities, the combined effect of which is exceptional and not captured by schedular evaluations."  Referral for an extraschedular rating under 38 C.F.R. § 3.321 (b) is to be considered based upon either a single service-connected disability or upon the "combined effect" of multiple service-connected disabilities when the "collective impact" or "compounding negative effects" of the service-connected disabilities, when such presents disability not adequately captured by the schedular ratings for the service-connected disabilities.  In this case, the Veteran has not asserted, and the evidence of record has not suggested, any such combined effect or collective impact of multiple service-connected disabilities that create such an exceptional circumstance to render the schedular rating criteria inadequate.  In this case, there is neither allegation nor indication that the collective impact or combined effect of more than one service-connected disability presents an exceptional or unusual disability picture to render inadequate the schedular rating criteria.

Comparing the Veteran's disability level and symptomatology of the service-connected disabilities to the rating schedule, the degree of disability throughout the entire period under consideration is contemplated by the rating schedule and the assigned ratings are, therefore, adequate.  Absent any exceptional factors associated with the left shoulder disability, the Board finds that the criteria for submission for assignment of an extraschedular rating pursuant to 38 C.F.R. § 3.321(b)(1) are not met.  See Bagwell v. Brown, 9 Vet. App. 337 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995).

Finally, in adjudicating the current appeal for higher ratings, the Board has not overlooked the Court's holding in Rice v. Shinseki, 22 Vet. App. 447 (2009), which held that a claim for a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) may be part of an a rating issue when the TDIU claim is either expressly raised by a veteran or reasonably suggested by the record.  In this case, as distinguished from the facts in Rice, the Veteran reported at the August 2008 and March 2017 VA examinations being employed in sedentary jobs and doing administrative work.  In addition, the Veteran has not contended being unemployable because of service-connected disabilities, and the other evidence of record does not suggest unemployability; thus, the Board finds that Rice is inapplicable in this case to raise a TDIU claim because neither the Veteran nor the evidence suggests unemployability due to service-connected disabilities.  


ORDER

An initial disability rating for the service-connected left shoulder tendinopathy in excess of 20 percent from October 2, 2007 is denied. 


REMAND

Service Connection for Nerve Disorder of Left Shoulder or Arm

The Board finds it necessary to remand for further development the issue of entitlement to service connection for a nerve condition of the left shoulder or arm, to include as secondary to the service-connected left shoulder tendinopathy.  The October 2007 claim reflects the Veteran's contention that nerve damage is related to a left shoulder disability.  In October 2008, the Veteran expressed disagreement that the September 2008 rating decision did not address the claimed nerve damage.  The April 2009 substantive appeal reflects that the Veteran again raised the question service connection or separate compensable rating of nerve damage as secondary to left shoulder tendinopathy.  

In a September 2007 statement, Dr. C.S.O., a private physician, wrote that he has treated the Veteran for chronic left shoulder pain since May 2007, during which time a May 2007 x-ray of the left shoulder showed an old avulsed fracture of the inferior aspect of the left glenoid.  Additionally, Dr. C.S.O. wrote that clinical data showed discrepancy in upper extremity strength with significantly less power in the left arm.  

In a March 2009, Dr. C.S.O wrote that the Veteran has lasting left shoulder muscle weakness consistent with nerve damage in that shoulder that is likely due to a brachial plexus injury presumed to have occurred in-service.  Service treatment records reflect diagnosis of, and treatment of left shoulder arthralgia, chronic strain of the left shoulder, and myofascial pain syndrome of the perivertebral muscle of the dorsal spine, left; however, a March 1987 electromyogram of the C5-8 myotomes, including the serratus anterior, rhomboid and mid-trapezius muscles, revealed no evidence of acute or chronic neuropathic changes.  October 1986 and July 2008 x-rays of the left shoulder were normal.  See October 1986, December 1986, March 1987 and June 1987 service treatment records; see also August 2008 VA examination report.  VA treatment records from 2007 through 2014 reflect complaints of neck pain associated with physical activities.  A March 2015 VA examination report regarding the cervical spine reflects diagnosis of cervical strain, which is not service connected. 

While the Veteran has raised an issue as nerve damage secondary to the service-connected left shoulder disability, the Veteran is not presently service connected for a nerve condition, either as directly related to in-servic injury or as secondary to the service-connected left shoulder tendinopathy.  In the January 2017 remand, the Board, in pertinent part, directed the AOJ to provide a new VA examination with an opinion as to "whether the Veteran has a neurological impairment of the left shoulder and, if so, to identify the nerve group involved, and the current level of impairment."  The Board further directed that the VA examiner should "opine whether the neurological impairment is a manifestation of the Veteran's service connected left shoulder tendinopathy, or whether it is at least as likely as not (i.e. probability of 50 percent of greater) related to her in-service injury."  Further, the Board advised that the examiner should specifically address the September 2007 and March 2009 letter opinions from Dr. C.S.O.

In March 2017, VA provided a peripheral nerve examination.  During the March 2017 VA examination, the Veteran reported a history of a left shoulder injury in service that led to chronic pain in the lower neck, upper back, and left shoulder.  The Veteran also reported pain associated with tingling and burning that shoots into the left shoulder.  The VA examiner diagnosed neuralgia paresthesia of the posterior left shoulder and assessed mild incomplete paralysis of the left upper radicular group (5th and 6th cervicals).  The VA examiner opined that the peripheral nerve condition had no functional impact on the ability to work, noting evidence of normal objective findings despite symptoms of tingling and numbness in the upper back and posterior shoulder.  

A review of the March 2017 VA examination report does not reflect that the VA examiner provided the requested etiology opinion with regard to the nerve condition or adequately addressed the substance of September 2007 and March 2009 private statements from Dr. C.S.O., as requested in the January 2017 Board Remand.  While the VA examiner in March 2017 diagnosed a neurological impairment of the left shoulder and identified the nerve group involved, the VA examiner did not provide an opinion as to whether the neurological impairment is related to the left shoulder tendinopathy or otherwise related to an in-service injury.  The VA examiner only provided an opinion regarding the functional impact of the neurological impairment, which provides no insight into the etiology of the nerve disorder.  Further, the VA examiner only noted that Dr. C.S.O. documented a possible past brachial plexus injury with reported symptoms in service, without providing any rationale as to the relevance of Dr. C.S.O.'s statement, including an assessment of whether the evidence does show a brachial plexus injury in service, and does not address the September 2007 statement in light of the VA examiner's findings and the record as a whole.  

Accordingly, the case is REMANDED for the following action:

1.  The AOJ should refer the claims file to an appropriate examiner, preferably the examiner who conducted the March 2017 VA examination, for an opinion concerning the presence and etiology of any neurological impairment.


2.  The examiner is asked to offer the following opinions:

A) Does the Veteran currently have a diagnosed nerve disorder of the left shoulder or left arm?  Please discuss the finding of neuralgia paresthesia of the posterior left shoulder. 

B)  Is it  as likely as not (i.e., probability of 50 percent or greater) that any current diagnosed nerve disorder, including, if diagnosed, neuralgia paresthesia of the posterior left shoulder, is related to an in-service injury.

C) Is it  as likely as not (i.e., probability of 50 percent or greater) that any current diagnosed nerve disorder, including, if diagnosed, neuralgia paresthesia of the posterior left shoulder, is caused by the service-connected left shoulder tendinopathy disability? 

D) Is it  as likely as not (i.e., probability of 50 percent or greater) that any current diagnosed nerve disorder, including, if diagnosed, neuralgia paresthesia of the posterior left shoulder, is worsened in severity beyond a normal progression by the service-connected left shoulder tendinopathy disability? 

The examiner should provide a rationale for the opinion that specifically addressed the relevance of the September 2007 and March 2009 statements from Dr. C.S.O. in light of the other evidence of record.  Additionally, the examiner should consider the etiology of the nerve condition in light of pertinent medical history regarding the service-connected left shoulder tendinopathy, as well as any other non-service-connected condition that may be etiologically related to the nerve condition, to include the non-service connected cervical strain.  

The Veteran has the right to submit additional evidence and argument on the matter or matters the Board has remanded.  Kutscherousky v. West, 12 Vet. App. 369 (1999).  This claim must be afforded expeditious treatment.  The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner.  See 38 U.S.C. §§ 5109B, 7112 (2012).





______________________________________________
J. PARKER
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs

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