MUSCLE GROUP III - INTRINSIC MUSCLES OF SHOULDER GIRDLE

MICHAEL PAPPAS · 2019 · Case ID: A19002192

MIXED

Summary

The veteran, who served from August 1996 to August 2000, appeals the denial of an initial disability rating in excess of 20 percent for a pectoralis major muscle transfer (claimed as removal of pectoral muscle) and the remand of his TDIU claim. The Board reviewed the evidence concerning the pectoralis major muscle transfer, which is currently rated at 20 percent disabling under Diagnostic Code 5303, analogous to a muscle group III injury. The veteran sought an increased rating, arguing for 30 percent disabling for moderately severe symptoms. The Board considered two VA examinations, one in May 2018 and another in June 2018. The May examination noted loss of motion, weakened movement, and fatigability, but the June examination, which specifically addressed muscle group III, found only some impairment of muscle tonus and consistent loss of power, but not at a more severe level. The Board found the June examination more probative, noting only two cardinal signs of muscle injury: lowered threshold of fatigue and loss of power. Given the absence of objective medical evidence of more than two cardinal signs, the Board concluded the schedular criteria were adequate and denied the increased rating, finding the disability approximated a 20 percent rating for moderately severe impairment. Extraschedular consideration was also denied as the disability picture was not exceptional. The TDIU claim was remanded for further development.

Rationale

Evidence did not support symptoms beyond moderately severe impairment.; June 2018 VA exam found only some impairment of muscle tonus and loss of power.; Absence of objective medical evidence for more than two cardinal signs of muscle injury.

Special Benefit

TDIU

Diagnostic Code

5303

Docket No.

190327-6876

Full Decision Text

Citation Nr: A19002192
Decision Date: 10/24/19 Archive Date: 10/23/19

DOCKET NO. 190327-6876
DATE: October 24, 2019

THE ISSUE

1. Entitlement to an initial disability rating in excess of 20 percent for pectoralis major muscle transfer (claimed as removal of pectoral muscle), to include extraschedular consideration.

2. Entitlement to a total disability rating based upon individual unemployability due to service-connected disabilities (TDIU).

ORDER

Entitlement to an initial disability rating in excess of 20 percent for pectoralis major muscle transfer (claimed as removal of pectoral muscle), to include extraschedular consideration, is denied.

REMANDED

Entitlement to a TDIU is remanded.

FINDING OF FACT

Throughout the appeal period, the Veteran's pectoralis major muscle transfer manifested at most moderately severe symptoms, to include consistent loss of power, lowered threshold of fatigue, and some impairment of muscle tonus.

CONCLUSION OF LAW

The criteria for an initial disability rating in excess of 20 percent for pectoralis major muscle transfer of the left side have not been met or approximated. 38 U.S.C. §§ 1155, 5103, 5103A, 5107(b); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.2, 4.3, 4.6, 4.7, 4.10, 4.73, Diagnostic Code 5303.

REASONS AND BASES FOR FINDING AND CONCLUSION

On August 23, 2017, the President signed into law the Veterans Appeals Improvement and Modernization Act, Pub. L. No. 115-55 (to be codified as amended in scattered sections of 38 U.S.C.), 131 Stat. 1105 (2017), also known as the Appeals Modernization Act (AMA). This law creates a new framework for Veterans dissatisfied with VA's decision on their claim to seek review. The Board is honoring the Veteran's choice to participate in VA's test program, RAMP, the Rapid Appeals Modernization Program.

The Veteran served on active duty from August 1996 to August 2000.

The Veteran selected the Higher-Level Review lane when he submitted the RAMP election form. Accordingly, the February 2019 RAMP rating decision considered the evidence of record as of the date VA received the RAMP election form. The Veteran timely appealed this RAMP rating decision to the Board and requested direct review of the evidence considered by the Agency of Original Jurisdiction (AOJ). To this point, as the Veteran elected to participate in RAMP in the higher-level review appeal lane based upon the evidence already submitted to VA as of the date of the Veteran's election, the Board is prohibited from seeking additional evidence on behalf of the Veteran.

The Board has reviewed all of the evidence in the Veteran’s claims file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Veteran or obtained on his behalf be discussed in detail. Rather, the Board’s analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-130 (2000).

In December 2016, the Veteran's submitted a letter raising the issue of entitlement to TDIU. As the issue has not been adjudicated by the RO, it must be remanded for development. Rice v. Shinseki, 22 Vet. App. 447 (2009).

The issue of entitlement to TDIU is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ).

Entitlement to an initial disability rating in excess of 20 percent for pectoralis major muscle transfer (claimed as removal of pectoral muscle), is denied.

As a preliminary note the February 2019 RAMP rating decision contained the favorable finding of some impairment of muscle tonus and lower threshold of fatigue when compared to the sound side.

Entitlement to an initial disability rating in excess of 20 percent for pectoralis major muscle transfer (claimed as removal of pectoral muscle), is denied.

As a preliminary note the February 2019 RAMP rating decision contained the favorable finding of some impairment of muscle tonus and lower threshold of fatigue when compared to the sound side.

As a result of a surgical procedure in January 2018, the Veteran has sustained several disabilities of his left shoulder. The Veteran has been service connected for muscle atrophy of the left forearm associated with pectoralis major muscle transfer and a scar of the left pectoral muscle associated with pectoralis major muscle transfer since May 2018. The Veteran has also been service connected for a status post left shoulder arthroscopy with limitation of motion and pain and is rated separately for that disability. Additionally, while the Board notes that the Veteran is currently seeking service connection for several other disabilities associated with the January 2018 left shoulder surgery (See August 2008 Correspondence), the only issue currently before the Board is the evaluation of the Veteran’s service-connected pectoralis major muscle transfer Group III shoulder muscles, which, the Veteran feels should be rated as 30 percent disabling. See March 2019 Statement in Support of Claim.

The Veteran asserts that he is entitled an initial evaluation in excess of 20 percent for his pectoralis major muscle transfer (claimed as removal of pectoral muscle).

The Veteran's pectoralis major muscle transfer is currently evaluated as 20 percent disabling, effective May 18, 2018 under 38 C.F.R. § 4.73, Diagnostic Code 5303. The rating schedule does not provide a specific diagnostic code for pectoralis major muscle transfer, so the Veteran's pectoralis major muscle transfer has been rated analogously under Diagnostic Code 5303 for an injury to Muscle Group III, the intrinsic muscles of shoulder girdle: (1) pectoralis major; (2) deltoid. 38 C.F.R. § 4.73, Diagnostic Code 5303.

Under Diagnostic Code 5303, a slight injury warrants a noncompensable evaluation. For the dominant arm, DC 5303 provides for a 20 percent evaluation for moderate symptoms, a 30 percent evaluation for moderately severe symptoms, and a 40 percent evaluation for severe symptoms. For the non-dominant arm, DC 5303 provides for a 20 percent evaluation for moderate, or moderately severe symptoms, and a 30 percent evaluation for severe symptoms. 38 C.F.R. § 4.73, DC 5303.

Disability of a muscle group is based on impaired joint motion and its ability to perform its full work. Principal symptoms are weakness, fatigability, coordination, swelling, deformity, and atrophy. The principal factors are impairment of delicate coordination, strength of scar bound muscles, and lowering of fatigue threshold. Skin scars are incidental and negligible but allow for envisaging the whole track of the missile, including any bony or nerve involvement. It is the deep intra-and inter-muscular scarring that is disabling. Through-and-through or other wounds of the deep structure almost invariably cause scarring so that muscles pull against other muscles causing incoordination and loss of strength. Prolonged exertion brings about fatigue and pain, thus interfering with function. 38 C.F.R. §§ 4.47, 4.48, 4.49, 4.50, 4.51, 4.54. For VA rating purposes, the cardinal signs and symptoms of muscle disability are loss of power, weakness, lowered threshold of fatigue, fatigue-pain, impairment of coordination, and uncertainty of movement. 38 C.F.R. § 4.56 (c).

The Board observes that the words "slight," "moderate," and "severe" are not defined in the rating schedule; rather than applying a mechanical formula, VA must evaluate all the evidence to the end that its decisions are equitable and just. 38 C.F.R. § 4.6 (2018). It should also be noted that use of terminology such as "slight" and "moderate" by VA examiners or other physicians, although an element of evidence to be considered by the Board, is not dispositive of an issue. All evidence must be evaluated in arriving at a decision regarding an increased rating. 38 C.F.R. §§ 4.2, 4.6.

In May 2018, the Veteran underwent a VA examination. The Veteran reported a decrease range of motion and strength in his left arm. The VA examiner noted loss of motion, weakened movement, excess fatigability, incoordination, impaired ability to execute skilled movements smoothly, pain on movement, deformity and
4.6 (2018). It should also be noted that use of terminology such as "slight" and "moderate" by VA examiners or other physicians, although an element of evidence to be considered by the Board, is not dispositive of an issue. All evidence must be evaluated in arriving at a decision regarding an increased rating. 38 C.F.R. §§ 4.2, 4.6.

In May 2018, the Veteran underwent a VA examination. The Veteran reported a decrease range of motion and strength in his left arm. The VA examiner noted loss of motion, weakened movement, excess fatigability, incoordination, impaired ability to execute skilled movements smoothly, pain on movement, deformity and atrophy of use in the left side. The examiner found that muscle weakness from chronic nerve palsy was present during flare ups, but not associated with limitation of motion. The Veteran showed 4/5 forward flexion muscle strength and 3/5 abduction muscle strength in the left shoulder. The examiner found scars. However, the examiner did not indicate which results corresponded with specific muscle groups. Additionally, the examiner did not indicate the frequency and severity of the cardinal signs and symptoms of the Veteran’s muscle disabilities.

In June 2018, the Veteran was afforded another VA examination to more clearly define and determine the extent of his left shoulder disabilities. The Veteran reported his current symptoms of loss of power. The examiner noted that the Veteran’s dominate side was his right side and that the disability affected his non-dominant side. Upon objective evaluation, the VA examiner identified muscle group III of the left side as the muscle group involved. The VA examiner found a scar but did not note that it had an effect on substance or function. The Examiner noted that the Veteran had some impairment of muscle tonus. The examiner found that the Veteran suffered consistent loss of power in his left side muscle group III. Muscle group III strength was graded at 5. Muscle atrophy was noted. Based on the Veteran's history of left long thoracic nerve palsy resulting in scapular winging, and a pectoralis major transfer to the scapula, the VA examiner continued the Veteran's diagnosis for pectoralis major muscle transfer. The VA examiner determined that the Veteran's muscle injuries did not impact his ability to work.

Based on a careful review of the clinical and subjective evidence, the Board finds that the Veteran's pectoralis major muscle transfer disability picture more closely approximates a rating of 20 percent for moderately severe impairment caused by pectoralis major muscle transfer of the left side under Diagnostic Code 5303. The Board also considers that the most probative piece of medical evidence is the June 2018 VA examination, because it specifically addresses the Veteran’s muscle group III disability. The Veteran has displayed only two cardinal signs or symptom of muscle disability in muscle group III. The first is a lowered threshold of fatigue, noted in the February 2019 RAMP rating decision. The second symptom was loss of power noted by the June 2018 VA examiner. While the June 2018 VA examiner noted loss of power that was consistent in frequency and severity, the examiner indicated that it was not “consistent at a more severe level” and noted normal muscle strength in muscle group III.

The Board has considered whether the next higher rating, 30 percent under Diagnostic Code 5303, may be assigned for severe symptoms on the non-dominant side. However, in view of the essential absence of objective medical evidence of more than two cardinal signs of muscle injury or other pathology, severe impairment of the muscle group involved is not supported. Therefore, the Board concludes that throughout the appeal period, the Veteran's pectoralis major muscle transfer of the left side more closely approximates the rating of 20 percent for moderately severe impairment.

Extraschedular Consideration

The Board has also considered whether referral for an extraschedular rating is warranted for the Veteran's pectoralis major muscle transfer disability. The threshold factor for extraschedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate.

Therefore, initially, there must be a comparison between the level of severity and symptomatology of the Veteran's service-connected disability with the established criteria found in the Rating Schedule for that disability. If the criteria reasonably describe the Veteran's disability level and symptomatology, then the Veteran's disability picture is contemplated by the Rating Schedule, the assigned schedular evaluation is, therefore, adequate, and no referral is required. Thun v. Peake, 22 Vet. App. 111, 115 (2008).

If the criteria do not reasonably describe the claimant's disability level and symptomatology, a determination must be made whether the claimant's exceptional disability picture exhibits other related factors such as those provided by the regulation as "governing norms."
, initially, there must be a comparison between the level of severity and symptomatology of the Veteran's service-connected disability with the established criteria found in the Rating Schedule for that disability. If the criteria reasonably describe the Veteran's disability level and symptomatology, then the Veteran's disability picture is contemplated by the Rating Schedule, the assigned schedular evaluation is, therefore, adequate, and no referral is required. Thun v. Peake, 22 Vet. App. 111, 115 (2008).

The Board finds that the schedular criteria are adequate to rate the Veteran's pectoralis major muscle transfer disability for the entire period on appeal. In other words, the Veteran does not have any symptoms from his service-connected right pectoralis major muscle transfer disability that is unusual or are different from those contemplated by the schedular rating criteria. The Board notes that the Diagnostic Code 5303 is broad and encompasses a variety of symptoms in its ratings schedule. For these reasons, the Board finds that the schedular rating criteria in this case are adequate to rate the Veteran's pectoralis major muscle transfer disability for the entire period on appeal, and remand for extraschedular consideration is not required.

Based on the foregoing, the Board finds that the preponderance of the evidence is against the award of a disability rating in excess of 20 percent for the pectoralis major muscle transfer disability. As such, the benefit-of-the-doubt doctrine is inapplicable. 38 C.F.R. § 4.3. For these reasons, the claim is denied.

REASONS FOR REMAND

As the Veteran has raised the issue of TDIU in an August 2018 letter, the issue is remanded for initial evidentiary development and adjudication. Rice v. Shinseki, 22 Vet. App. 447 (2009).

Accordingly, the case is REMANDED for the following action:

1. Notify the Veteran of his, and the VA's, duties to notify and assist him in the development of his claim of entitlement to a TDIU. The Veteran must complete the appropriate form in association with filing his claim.

2. The RO should make all reasonable efforts to obtain all medical and/or treatment records related to the Veteran's service-connected disabilities since May 2018. If identified records are not ultimately obtained, the Veteran should be notified pursuant to 38 C.F.R. § 3.159 (e). All obtained records should be associated with the claims file.

3. The RO must ask the Veteran for the names and addresses for all employers for whom he has worked since service. Then the AOJ must ask each employer/former employer for copies of the Veteran's employment records, including, but not limited to, employment applications, attendance records, reasons for any absences, medical records and the reports of any pre-employment examinations; job descriptions; reports of job training; reports of job performance; reports of duty limitations or job changes and the reasons for such limitations or changes; reports of workman's compensation claims or claims for other disability benefits; reports of vocational rehabilitation or job retraining; counseling statements; reports of union involvement; and reports of termination and any associated severance pay.

If the employer/former employers do not have such documents, request that the employer/former employers provide a statement on business letterhead stationary addressing the foregoing concerns.

The RO must also request that the Veteran provide any employment records his possession which addresses the foregoing concerns.

A failure to respond or a negative reply to any request must be noted in writing and associated with the claims folder.

Efforts to obtain records of the veteran's employment with any federal agency must continue until it is determined that they do not exist or that further attempts to obtain them would be futile. The non-existence or unavailability of such records must be verified by each Federal department or agency from whom they are sought. If records of the Veteran's employment with a private employer are unavailable, notify the Veteran of that fact in accordance with the provisions of 38 U.S.C. § 5103A (b); 38 C.F.R. § 3.159 (e).

(Continued on next page.)

4. Once the foregoing development is complete, the RO should adjudicate the issue of entitlement to TDIU. If the benefits sought on appeal are not granted, the Veteran must be furnished a SSOC and afforded an opportunity to respond. Thereafter, if in order
that further attempts to obtain them would be futile. The non-existence or unavailability of such records must be verified by each Federal department or agency from whom they are sought. If records of the Veteran's employment with a private employer are unavailable, notify the Veteran of that fact in accordance with the provisions of 38 U.S.C. § 5103A (b); 38 C.F.R. § 3.159 (e).

(Continued on next page.)

Michael A. Pappas

Veterans Law Judge

Board of Veterans’ Appeals

Attorney for the Board R. E. Geary, 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.

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