Citation Nr: 0121797	
Decision Date: 08/29/01    Archive Date: 09/04/01

DOCKET NO.  95-08 529	)	DATE
	)
	)
On appeal from the
Department of Veterans Affairs Regional Office in Portland, 
Oregon


THE ISSUES

1.  The propriety of the initial 40 percent rating for low 
back strain.

2.  The propriety of the initial 20 percent rating for 
chronic muscular strain, of the right trapezius and scapular 
muscle, superimposed on congenital instability with chronic 
rotator cuff impingement and tendonitis (major).  

3.  The propriety of the initial 20 percent rating for 
chronic muscular strain, of the left trapezius and scapular 
muscle, superimposed on congenital instability with chronic 
rotator cuff impingement and tendonitis (minor).  

4.  Entitlement to an effective date earlier than June 1, 
1995, for service connection for chronic muscular strain, of 
the right trapezius and scapular muscle, superimposed on 
congenital instability with chronic rotator cuff impingement 
and tendonitis (major).  

5.  Entitlement to an effective date earlier than June 1, 
1995, for service connection for chronic muscular strain, of 
the left trapezius and scapular muscle, superimposed on 
congenital instability with chronic rotator cuff impingement 
and tendonitis (minor).  
REPRESENTATION

Appellant represented by:	Disabled American Veterans


WITNESSES AT HEARING ON APPEAL

Appellant, W. P.


ATTORNEY FOR THE BOARD

W. R. Steyn, Counsel


INTRODUCTION

The veteran had active military service from October 1985 to 
April 1989. 

This appeal arises before the Board of Veterans' Appeals 
(Board) from a July 1994 rating decision of the Department of 
Veterans Affairs (VA) Regional Office (RO) in Portland, 
Oregon, which granted the veteran service connection for a 
low back strain, and assigned a 20 percent rating effective 
April 5, 1993.  During the course of the appeal, the RO 
increased the veteran's rating for his low back strain to 40 
percent in a February 2000 decision.

The appeal also arises from a November 1996 rating decision, 
by which the RO granted service connection for chronic 
muscular strain of the right and left trapezius and scapular 
muscles with chronic rotator cuff impingement and tendonitis.  
The RO assigned a 10 percent rating for the right shoulder 
and a noncompensable rating for the left shoulder, both 
ratings effective May 2, 1996.  During the course of the 
appeal, in a February 2000 decision, the RO increased the 
veteran's ratings for his right and left shoulder muscle 
disabilities to 20 percent for each shoulder, with both 
disabilities effective June 1, 1995.  

By rating decision dated December 1999, the RO denied the 
veteran's claim of service connection for fibromyalgia on the 
basis that it was not well grounded.  Although, to date, the 
veteran has not appealed that determination, since that time, 
the Veterans Claims Assistance Act of 2000, Pub. L. No. 106-
475, 114 Stat. 2096 (2000), was enacted.  This law provides, 
among other things, that any veteran whose claim was denied 
or dismissed by VA from July 14, 1999, to November 9, 2002, 
on the basis that it was not well grounded, as that term was 
formerly used in 38 U.S.C.A. § 5107 (a) (1999), may have his 
or her claim readjudicated pursuant to the new law.  In light 
of the newly enacted statute, the veteran is hereby advised 
that if he wishes to have his claim readjudicated under the 
new law, he must affirmatively communicate that intent, and 
his request must be received by VA no later than November 9, 
2002.  Veterans Claims Assistance Act of 2000, Publ L. No. 
106-475, §  7, 114 Stat. 2096 __ (2000).


FINDINGS OF FACT

1.  In a November 1996 rating decision, the RO granted 
service connection for chronic muscular strain, of the right 
trapezius and scapular muscle, superimposed on congenital 
instability with chronic rotator cuff impingement and 
tendonitis (major), with an effective date of May 2, 1996.  

2.  The November 1996 grant of service connection included a 
grant of service connection for a neck disability.  

3.  The veteran filed a claim for service connection for neck 
and shoulder disabilities on April 5, 1993; this claim was 
still open at the time of the November 1996 rating decision.  

4.  Throughout the period from the effective date of the 
grant of service connection to the present, when the 
veteran's painful motion of the shoulders is considered, he 
has had the equivalent of limitation of motion of both arms 
between the side and shoulder level; he has not had the 
equivalent of limitation of motion of either arm to 25 
degrees from the side.  

5.  Throughout the period from the effective date of the 
grant of service connection to the present, the veteran has 
not had moderate or extensive loss of deep fasciae of the 
shoulders , or muscle substance of his shoulders, or soft 
flabby muscles.  


CONCLUSIONS OF LAW

1.  The proper effective date for service connection for 
chronic muscular strain, of the right trapezius and scapular 
muscles, superimposed on congenital instability with chronic 
rotator cuff impingement and tendonitis is April 5, 1993.  
38 U.S.C.A. § 5110 (West 1991); 38 C.F.R. § 3.400 (2000).

2.  The proper effective date for service connection for 
chronic muscular strain, of the left trapezius and scapular 
muscles, superimposed on congenital instability with chronic 
rotator cuff impingement and tendonitis is April 5, 1993.  
38 U.S.C.A. § 5110 (West 1991); 38 C.F.R. § 3.400 (2000).

2.  The criteria for the assignment of a 30 percent schedular 
evaluation for chronic muscular strain, of the right 
trapezius and scapular muscle, superimposed on congenital 
instability with chronic rotator cuff impingement and 
tendonitis (major) have been met for the entire rating 
period. 38 U.S.C.A. §§ 1155 (West 1991); 38 C.F.R. §§ 4.71 
(a), Diagnostic Code 5201; 4.73, Diagnostic Code 5301 (2000).

3.  The requirements for a rating in excess of 20 percent for 
chronic muscular strain, of the left trapezius and scapular 
muscle, superimposed on congenital instability with chronic 
rotator cuff impingement and tendonitis (minor) for any point 
during the entire rating period are not met. 38 U.S.C.A. §§ 
1155, 5107(a) (West 1991); 38 C.F.R. § § 4.1 (a), Diagnostic 
Code 5201; 4.73, Diagnostic Code 5301 (2000).  


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Background

Service medical records show that the veteran sustained an 
injury to his neck, lower back, and left shoulder in August 
1987 while working on a wire.  In September 1987, the veteran 
sustained an injury to his neck and right shoulder in a motor 
vehicle accident.  

VA treatment records from 1993 to 1994 were submitted.  In 
March 1993, the veteran received treatment for muscle spasms 
in his right shoulder blade.  He complained that he was not 
able to hold his neck straight.  

On an application for benefits received on April 5, 1993, the 
veteran field a claim for service connection for a back 
injury and a neck disability.  

In a statement received on July 15, 1993, the veteran stated 
that he had been treated at a VA hospital for severe muscle 
spasms.  

VA x-rays were submitted in July 1993.  There was a slight 
kyphosis at C2-3, but no fractures or dislocations were 
present, and bony mineralization and joint spaces were 
normal.  

The veteran underwent a VA examination in July 1993.  There 
was right costovertebral angle tenderness, and no left 
costovertebral angle tenderness.  Strength was 5/5 everywhere 
except the right lower extremity, which was 4/5.  

The veteran underwent a VA orthopedic examination in August 
1993.  He complained that all of the right side of his back, 
shoulder, and neck bothered him, as well as parts of his left 
side.  He stated that he was a driver for a produce company, 
and was enrolled in school being trained in electronics.  He 
described his accident in service, and stated, that he had 
some pain along the entire spine region from the lower 
cervical to the mid-lumbar region.  Most of the symptoms were 
consistently on the right hand side.  Regarding his neck, the 
veteran stated that he had persistent right-sided posterior 
neck pain which radiated into his occipital region, and into 
the right scapular region.  He denied any radicular symptoms 
of either upper extremity.  Examination showed that there was 
no bony or soft tissue abnormality of the neck musculature.  
There was no abnormal swelling or masses.  Range of motion 
showed rotation of 45 degrees with minimal pain.  Extension 
was 20 degrees with moderate pain of the lower cervical 
region and forward flexion was 30 degrees with moderate pain 
of the posterior neck.  The veteran was able to rotate his 
neck laterally left and right against resistance without any 
evidence of weakness.  Upper extremity neurovascular 
examination showed no deficits or evidence of radiculopathy.  
Under diagnoses, the examiner wrote that the veteran had 
recurrent muscular strain primarily on the right side of the 
neck posteriorly.  There was no evidence of cervical 
radiculopathy or evidence of neurologic deficit secondary to 
cervical distribution.  

In the veteran's July 1994 notice of disagreement (received 
on August 2, 1994), he stated that he had severe muscle spasm 
on the upper right side of his back to include his right 
shoulder at times.  

In the veteran's March 1995 substantive appeal (received on 
March 14, 1995), he stated that his original complaint was 
muscle spasm, and that his outpatient records clearly stated 
that he had received treatment for severe muscle spasms.  

The veteran was afforded a hearing before the RO in April 
1995, a transcript of which has been associated with the 
claims folder.  He described pain in his upper back and neck.  
He stated that sometimes it traveled to his neck and over to 
his shoulder and down his arm.  He testified that he was 
taking soma as a muscle relaxant.  He testified that 
sometimes the pain radiated down his arms.  He stated that he 
had used a TENS unit to stimulate the muscles.  He stated 
that he had not had physical therapy since June 1994.  He 
described muscle spasms about once or twice a week.  

The veteran underwent a VA examination for his muscles in May 
1995.  The veteran described chronic pain in his back which 
was getting worse.  He stated that he was continuing to 
experience pain in the mid-back area in the right paraspinous 
area of the upper thoracic spine.  He stated that it radiated 
up his back and down his back into his right arm and leg.  He 
indicated that this pain was always present to some degree, 
and was exacerbated by lifting, bending, and stooping.  He 
could not sit for long periods of time, and could not carry 
things in terms of heavy objects.  Coughing or sneezing 
exacerbated his pain, and he had morning stiffness to some 
degree.  He was awakened by pain at night.  He had no bowel 
or bladder symptoms, and did not have upper extremity 
weakness.  He also got associated intermittent muscle spasms 
involving the right side of his back, which increased his 
radicular symptoms.  

Examination of the spine revealed essentially normal 
curvature on examination.  There was lumbar tenderness.  
There was some mid-thoracic spine percussion tenderness.  
There was trigger point pain in the right paraspinous 
musculature in the upper thoracic spine adjacent to the 
scapula.  There was also trigger point pain in the mid right 
trapezius.  Deep tendon reflexes in the upper and lower 
extremities were equal at the biceps, triceps, knees, and 
ankles.  Range of motion revealed 70 degrees of forward 
flexion, 20 degrees of hyperextension, with lateral bending 
to 25 degrees in both directions before pain stopped the 
veteran, and rotation to 30 degrees in both directions before 
pain stopped the veteran.  Cervical spine range of motion 
revealed 30 degrees of forward flexion and hyperextension, 
lateral bending to 35 degrees in both directions, and 
rotation to 40 degrees in both directions.  Straight leg 
raising was negative.  Sensation was intact throughout to 
pinprick.  Motor testing revealed the quads, anterior tibs, 
and dorsiflexion and plantar flexion of the feet, grip, 
biceps, and triceps strength all to be 5/5.  Under diagnosis, 
the examiner wrote chronic thoracolumbar strain, with 
associated myofascial syndrome, and intermittent muscle 
spasms. 

An x-ray report from May 1995 observed that no significant 
abnormalities were seen in the thoracic or lumbar spines, and 
that minimal scoliosis was seen in the thoracic spine.  

In the veteran's February 1996 1-646, it was noted that at 
the veteran's May 1995 examination, he had trigger point pain 
in the right paraspinous musculature in the upper thoracic 
spine adjacent to the scapula, and also had noted trigger 
point pain in the mid-right trapezius area.

In a February 1996 statement (received on February 29, 1996), 
the veteran stated that he wished to file service connection 
for his mid back area.  He stated that this area of his back 
was injured in service.  

In April 1996, the RO seemed to think that the veteran's 
current appeal included his mid-thoracic area.  

In a May 1996 statement, the veteran requested that the RO 
reconsider his claim to establish service connection for 
muscle injuries to both his left and right shoulders.  

VA x-rays were submitted from June 1996 through September 
1996.  X-rays of the neck and shoulder were normal.  

VA treatment records were submitted from 1995 to 1996.  They 
show that the veteran was seen on June 1, 1995, for pain 
beginning in his right shoulder pain, and radiating to his 
right neck, and down his right arm.  Impression was 
myofascial pain.  It was noted that the veteran began 
experiencing this pain after his traumatic injury to the back 
in the 1980s.  

The veteran underwent a VA examination for his joints in 
September 1996.  His present orthopedic treatment involved 
careful activity, oral medication, exercising and a TENS 
unit.  Present comfort level allowed operating a car for 
about one hour, limited by shoulder and upper back pain.  
Walking was limited to about 10 minutes by right knee pain.  

Present orthopedic symptoms included headache, bothersome 
neck pain, bothersome pain in the trapezius and scapular 
muscle areas bilaterally, and pain in the shoulder joints.  
Shoulder pain was about 3/4 at the trapezius and scapular 
areas, and about 1/4 at the glenohumeral area.  There was pain 
in the full length of both upper extremities.  There was no 
numbness or weakness at either hand.  There was pain in the 
full length of the thoracic and lumbar spines, worse in the 
upper back. Neck motion allowed rotation of 45 degrees 
bilaterally, lateral bending of 25 degrees bilaterally, 
flexion of 30 degrees, and extension of 30 degrees.  The neck 
had some pain with these movements.  Vertical compression of 
the neck gave some posterior pain.  The neck and trapezius 
muscles were tender.  

Sensation was normal in both hands.  The ulnar nerve was 
tender at the right elbow.  Carpal tunnel signs were somewhat 
positive at the right wrist.  Shoulder motion allowed 
external rotation of 30 degrees bilaterally, internal 
rotation of 95 degrees bilaterally, forward elevation of 
160/175, and abduction of 85/150.  Pain with these movements 
was rather bothersome on the right, and mild on the left.  
With the arm abducted to 85 degrees, external rotation was 90 
degrees bilaterally and internal rotation was 60 degrees 
bilaterally.  Rotator cuff function was normal at both 
shoulder.  Both shoulders had severe muscular tenderness at 
the trapezius and scapular areas.  There was a mild 
acromioclavicular joint tenderness at both shoulders.  The 
greater tuberosity and bicipital groove were tender at the 
right shoulder.  The right shoulder had been worse than the 
left shoulder lately.  

X-rays on the date of examination showed that the cervical 
spine was within normal limits except for very slight 
congenital changes at C2-3, and C3-4.  The changes at C3-4 
involved some slight asymmetry of the joints of luschka.  The 
change at C2-3 involved a very slight kyphosis.  X-rays of 
both shoulders were normal except for acromial signs of 
chronic rotator cuff impingement.  

Under assessment, the examiner wrote that the veteran's 
continuing symptoms of the neck and trapezius muscles were 
diagnosed as chronic muscular strain superimposed on some 
slight congenital instability.  The examiner commented that 
the cervical nerve roots were alright.  The examiner 
commented that there had been some peripheral nerve 
difficulty in the upper extremities with a history of 
bilateral carpal tunnel surgery.  The examiner commented that 
the residual upper extremity symptoms were diagnosed as 
referred discomfort from the neck and shoulder area, plus 
some peripheral nerve irritation.  The examiner remarked that 
a neurologic consultation would be necessary if a definite 
status was needed regarding cervical nerve roots and/or 
peripheral nerves of the upper extremities.  

The examiner remarked that the continued trapezius and 
scapular muscle symptoms were diagnosed as chronic muscular 
strain.  The examiner remarked that the continuing 
glenohumeral joint symptoms wee diagnosed as a moderate 
chronic rotator cuff impingement and tendonitis.  The 
examiner noted that symptoms had been somewhat worse on the 
right.  The examiner observed that orthopedic symptoms were 
probably significantly increased by chronic tension and/or 
depression.  The examiner noted that the veteran denied being 
award of such problems, but that various factors indicated 
that this was probable, and that a psychiatric consultation 
would be needed if more information was needed.

The examiner stated that continued neck, shoulder, and back 
difficulties could be expected, and that the present 
conservative treatment was reasonable, and that the veteran 
needed to be somewhat careful with his activities.  The 
examiner indicated that he had reviewed the claims file.  The 
examiner also observed that the present shoulder symptoms 
represented a continuation of the problems that started in 
the military.  

In the veteran's November 1996 notice of disagreement, he 
asserted that he claimed chronic muscular strain on April 5, 
1993, and that after it was denied in July 1994, he again 
claimed his back condition to include his shoulders, which 
was denied on February 14, 1995.  

VA x-rays were submitted from March 1997, but did not include 
x-rays of the neck or shoulders.

The veteran underwent a VA examination for his joints in 
March 1998.  The veteran stated that his symptoms had 
gradually increased since September 1996.  His present 
treatment involved careful activity and oral medication.  He 
stated that his present comfort level allowed operating a car 
for about 1 hour, limited by increasing symptoms through the 
entire body.  Walking was limited to 10 minutes by low back 
and knee pain.  The veteran complained of headache, pain in 
the neck, and both trapezius muscles.  There was muscular 
pain in both scapular areas.  Both shoulder joints were 
painful.  Both upper extremities had pain in the full length.  
Both hands had pain and numbness.  Numbness involves various 
digits, not in any regular pattern.  Both hands occasionally 
felt weak.  There was chronic pain in the full length of the 
thoracic and lumbar spines, about equal at all levels.  There 
was pain anteriorly and posteriorly at both hips, mostly on 
the right.  Thigh pain was mostly on the right also.  There 
was no numbness at either lower leg.  Coughing did not cause 
any orthopedic pain.  Sleeping was rather poor.  He denied 
any surgery to the neck or back.  

Examination showed that neck motion allowed rotation 60/50.  
Lateral bending was 30/30.  Flexion was 25, and extension was 
25.  The neck had some bothersome pain with these movements.  
Vertical compression on the neck was bothersome to the neck 
and back.  The neck had muscular tenderness posteriorly, and 
there was tenderness in both trapezius muscles.  Sensation 
was diminished in the right 5th finger, but was otherwise 
alright.  Intrinsic muscle function was alright bilaterally.  
Shoulder motion was somewhat impaired.  External rotation was 
60/60.  Internal rotation was 95/95.  Forward elevation was 
135/130, and abduction was 70/80.  Both shoulders were 
painful with movement.  Both shoulders had rather severe 
tenderness in all areas, including the trapezius muscles, 
scapular muscles, and acromioclavicular joints, greater 
tuberosity areas, and bicipital grooves.  Rotator cuff 
function was alright at both shoulders.  

No x-rays were ordered for the examination, but previous x-
rays showed that the neck was within normal limits except for 
some congenital changes in the upper cervical spine.  Both 
shoulders were within normal limits except for some acromial 
signs of chronic rotator cuff impingement.  The thoracic and 
lumbar spine were normal except for some minimal scoliosis.  
The MRI study of the neck in 1993 was considered normal.  

Under assessment, the examiner wrote chronic muscular strain 
superimposed on some congenital instability.  The cervical 
nerve roots were alright.  Associated upper extremity 
symptoms were diagnosed as referred stress plus peripheral 
nerve irritation.  The examiner stated that the back symptoms 
involved the entire thoracic and lumbar spine, and were 
diagnosed as chronic muscular strain.  The lumbar nerve roots 
were alright.  The examiner also stated that chronic 
bilateral shoulder pain involved the trapezius muscle, 
scapular muscle, and glenohumeral joint areas.  Continued 
muscular symptoms were diagnosed as chronic muscular strain 
at the trapezius and scapular areas.  Continued glenohumeral 
joint pain was diagnosed as chronic rotator cuff impingement 
and tendonitis.  The examiner also stated that the orthopedic 
symptoms were probably severely increased by chronic tension 
and/or depression.  The examiner commented that the veteran 
would probably continue to have bothersome symptoms, and that 
the present conservative treatment was appropriate.  The 
examiner commented that he had reviewed the claims file.  

Regarding subjective symptoms, the examiner remarked that the 
veteran had a feeling of weakness in the upper extremities, 
back, and both knees, and had feelings of easy fatiguing in 
upper and lower extremities.  The examiner also commented 
that the veteran noticed impaired coordination through the 
entire body above the waist.  The examiner stated that a 
symbolic loss of motion to represent these symptoms would be 
a 20 percent decrease in all motions of the neck, back, and 
shoulders.

Regarding flare-ups of pain, the examiner remarked that the 
veteran had increased pain episodes occurring on a daily 
basis, and especially in the low back, which tended to 
improve with time.  The veteran tended to ignore those 
increases, which on a daily basis were associated with 
routine activities.  The examiner commented that a symbolic 
loss of motion to represent those flare-ups would be a 20 
percent decrease in the motion of the back.  

The veteran was afforded a hearing before a traveling member 
of the Board in May 2001, a transcript of which has been 
associated with the claims folder.  He described the pain in 
his back as between a 9 and a 10.  He stated that he was an 
apartment manager, but had not had a regular job since 1995.  
He described the accident in service, and indicated that it 
injured his entire back, including his neck.  

Regarding his shoulders, he stated that he had problems 
lifting his arms above his head.  He stated that he could 
lift his arms to shoulder level with pain.  He stated that 
his shoulders were about an 8 out of 10, as far as pain went.  
He stated that he took medication for his shoulders.  He 
stated that it in April 1993, it was his intent to file 
service connection to claim disability compensation for all 
disabilities resulting from the injury in 1988 in Germany.  


Analysis

Entitlement to an effective date earlier than June 1, 1995, 
for service connection for chronic muscular strain, of the 
right and left trapezius and scapular muscles, superimposed 
on congenital instability with chronic rotator cuff 
impingement and tendonitis.

The veteran has been informed of the evidence necessary to 
substantiate his claim and provided an opportunity to submit 
such evidence.  Moreover, VA has conducted reasonable efforts 
to assist him in obtaining evidence necessary to substantiate 
his claim.  The veteran was examined by the VA in connection 
with his claims.  Finally, the veteran has not identified any 
additional, relevant evidence that has not been requested or 
obtained.  The file shows that the RO has properly developed 
the evidence to the extent possible. Accordingly, there is no 
reasonable possibility that further assistance would aid in 
the substantiation of the claim.  Therefore, a remand for 
further development is not required.  38 U.S.C.A. § 5103A 
(West Supp. 2001).  

Except as otherwise provided, the effective date of an 
evaluation and award of compensation based on an original 
claim will be the date of receipt of the claim or the date 
entitlement arose, whichever is the later.  38 C.F.R. § 3.400 
(2000).  

The effective date of an award of disability compensation to 
a veteran shall be the day following the date of discharge or 
release if application is received within one year from such 
date of discharge or release.  Otherwise, in cases where the 
application is not filed until more than one year from the 
release of service, the effective date will be the date of 
receipt of claim, or the date entitlement arose, whichever is 
later. 38 U.S.C.A. § 5110 (a), (b) (1) (West 1991); 38 C.F.R. 
§ 3.400 (b) (2) (2000).  

Any communication from or action by a veteran indicating an 
intent to apply for a benefit under laws administered by VA 
may be considered an informal claim. 38 C.F.R. § 3.155 
(2000).

The veteran claims that he is entitled to an effective date 
earlier than June 1, 1995, for his service-connected chronic 
muscular strain, of the right and left trapezius and scapular 
muscles, superimposed on congenital instability with chronic 
rotator cuff impingement and tendonitis.  The RO granted 
service connection for these disabilities in a November 1996 
rating decision, with service connection being effective May 
2, 1996.   The effective date was established based on a 
statement received from the veteran on May 2, 1996, wherein 
he asked to the RO to reconsider his claim to establish 
service connection for muscle injuries to both his left and 
right shoulders.  It is noted that in a February 2000 rating 
decision, the RO changed the effective date to June 1, 1995, 
under the provisions of 38 C.F.R. § 3.157, based on VA 
outpatient treatment records documenting complaint and 
treatment for right shoulder pain on June 1, 1995.  

In the November 1996 rating decision, in its explanation 
regarding the grant of service connection, the RO explained 
that service connection for neck and right shoulder pain had 
been established as directly related to military service.  It 
is further noted that in Diagnostic Code 5322, the trapezius 
muscle is included in association with muscles in the front 
of the neck. 

In a July 1994 rating decision, the RO denied service 
connection for a neck disability.  In a statement received in 
August 1994, the veteran referred to the July 1994 rating 
decision, and stated that he had severe muscle spasms in the 
upper right side of his back to include his right shoulder, 
and that he had had shots in the upper back on several 
occasions.  This is interpreted as a notice of disagreement 
with the RO's July 1994 rating decision denying service 
connection for a neck disability.  As the RO did not issue a 
statement of the case regarding this issue (the RO did not 
address the issue of a neck or shoulder disability again 
until it granted service connection for neck and shoulder 
pain in its November 1996 rating decision) it is determined 
that the claim of service connection for a neck and shoulder 
disability had been open since the RO's July 1994 denial.  

Pursuant to the laws and regulations cited above, the 
effective date for service connection for the veteran's right 
and left shoulder disabilities should be the later date of 
either the date the veteran filed his claim for service 
connection for these disabilities, or the date entitlement 
arose, whichever is later.

The veteran filed his claim for service connection for a neck 
disability on April 5, 1993.  The medical evidence shows that 
in March 1993, the veteran was receiving treatment for muscle 
spasms in his right shoulder blade, and was complaining that 
he was not able to hold his neck straight.  As the evidence 
shows that the veteran filed his claim for service connection 
for a neck disability on April 5, 1993, and was being treated 
for his right shoulder and neck only a month prior, the 
veteran is entitled to an effective date of April 5, 1993, 
for service connection for his right and left shoulder 
disabilities.  In short, it is determined that the veteran 
has been pursuing service connection for neck and shoulders 
disabilities since April 5, 1993, the day he filed his claim 
for his neck disability.  Although the veteran's statements 
regarding these matters have not always been clear, this 
certainly seems to have been his intent all along.  In 
support of this theory, it is noted that in a May 1996 
statement, the veteran asked the RO to reconsider his claim 
to establish service connection for muscle injuries to both 
his right and left shoulders.  

Granting the veteran the benefit of the doubt, it is 
determined that the veteran is entitled to service connection 
for his right and left shoulder disabilities on April 5, 
1993, the day that he filed for service connection for his 
back and neck disorders.  


Laws and regulations regarding the veteran's service-
connected chronic muscular strain, of the right and left 
trapezius and scapular muscles, superimposed on congenital 
instability with chronic rotator cuff impingement and 
tendonitis.

The veteran claims that the initial 20 percent ratings 
assigned for his service-connected chronic muscular strains, 
of the right and left trapezius and scapular muscles, 
superimposed on congenital instability with chronic rotator 
cuff impingement and tendonitis were not proper.  The veteran 
has been informed of the evidence necessary to substantiate 
his claim and provided an opportunity to submit such 
evidence.  Moreover, VA has conducted reasonable efforts to 
assist him in obtaining evidence necessary to substantiate 
his claim.  The veteran was examined by the VA in connection 
with his claims.  Finally, the veteran has not identified any 
additional, relevant evidence that has not been requested or 
obtained.  The file shows that the RO has properly developed 
the evidence to the extent possible.  Accordingly, there is 
no reasonable possibility that further assistance would aid 
in the substantiation of the claim.  Therefore, a remand for 
further development is not required.  38 U.S.C. § 5103A (West 
Supp. 2001).  

When there is unfavorable ankylosis of scapulohumeral 
articulation and abduction is limited to 25 degrees from the 
side, then a 50 percent rating is assigned for the major 
shoulder, and a 40 percent rating is assigned for the minor 
shoulder.  When ankylosis of scapulohumeral articulation is 
intermediate between favorable and unfavorable, then a 40 
percent rating is assigned for the major shoulder, and a 30 
percent rating is assigned for the minor shoulder.  When 
ankylosis of scapulohumeral articulation is favorable and 
abduction is to 60 degrees and the veteran can reach his 
mouth and head, then a 30 percent rating is assigned for the 
major shoulder, and a 20 percent rating is assigned for the 
minor shoulder.  38 C.F.R. § 4.71 (a), Diagnostic Code 5200 
(2000).

When limitation of motion of the arm is to 25 degrees from 
the side, then a 40 percent rating is assigned for the major 
arm, and a 30 percent rating is assigned for the minor arm.  
When limitation of motion of the arm is between the side and 
shoulder level, then a 30 percent rating is assigned for the 
major arm, and a 20 percent rating is assigned for the minor 
arm.  When limitation of motion of the arm is at the shoulder 
level, then a 20 percent rating is assigned for either the 
major or minor arms.  38 C.F.R. § 4.71 (a), Diagnostic Code 
5201 (2000).  

The standard ranges of motion of the shoulder are 180 degrees 
for forward elevation (flexion) and abduction are 180 
degrees.  The standard range of motion for internal and 
external rotation is 90 degrees.   38 C.F.R. § 4.71, Plate I 
(2000).

The Court has held that VA must consider the applicability of 
regulations relating to pain.  Quarles v. Derwinski, 3 
Vet.App. 129, 139 (1992); Schafrath v. Derwinski, 1 Vet.App. 
589, 593 (1993); Hatlestad v. Derwinski, 1 Vet.App. 164, 167 
(1991).  In DeLuca v. Brown, 8 Vet. App. 202 (1995), the 
Court held that codes that provide a rating solely on the 
basis of loss of range of motion must consider 38 C.F.R. 
§§ 4.40 and 4.45 (regulations pertaining to functional loss 
of the joints due to such factors as pain, weakened movement, 
excess fatigability, and incoordination).  Therefore, to the 
extent possible, the degree of additional range of motion 
loss due to pain, weakened movement, excess fatigability, or 
incoordination should be noted, including during flare-ups.

Diagnostic Code 5301 provides the rating criteria for 
extrinsic muscles of the shoulder girdle, to include the 
trapezius, levator scapulae, and serratus magnus muscles.  
Under this code, a severe muscle injury for the dominant 
shoulder warrants a 40 percent rating, and for the non-
dominant shoulder a 30 percent rating.  A moderately severe 
injury warrants a 30 percent rating for the dominant 
shoulder, and a 20 percent rating for the non-dominant 
shoulder.  A moderate muscle injury warrants a 10 percent 
rating, for both dominant and non-dominant shoulder.  A 
slight muscle injury warrants a noncompensable rating, for 
both dominant and non-dominant shoulders. 38 C.F.R. § 4.73, 
Diagnostic Code 5301 (2000).  

During the pendency of this appeal, VA promulgated final 
regulations, which initiated VA's regulatory endeavor to 
address muscle injuries and disorders of the orthopedic 
system as separate disability categories. 62 Fed. Reg. 106, 
(June 3, 1997).  These regulations provide that, effective 
July 3, 1997, sections 4.56 and 4.73 of Title 38 C.F.R. were 
revised. Id., pp. 30238-39.  The revised regulations provide 
new criteria for evaluating the severity of muscular 
injuries, including muscular injuries evaluated under 38 
C.F.R. § 4.73, Diagnostic Code 5301 (2000), which is the code 
section currently used by the RO to rate the appellant's 
service-connected left (minor) trapezius muscle strain.  
Effective July 3, 1997, sections 4.47 through 4.54, 4.69 and 
4.72 of Title 38 C.F.R. were removed and reserved. Id., pp. 
30237, 30239.

Prior to the revision, the regulations provided, that in 
rating injuries of the musculoskeletal system, attention is 
first given to the deepest structures injured (bones, joints 
and nerves). " A through-and-through injury, with muscle 
damage, is at least a moderate injury for each group of 
muscles damaged."  Entitlement to a rating of severe grade is 
established when there is a history of "compound comminuted 
fracture and definite muscle or tendon damage from the 
missile."  Entitlement to a rating of severe grade, 
generally, is established when there is a history of 
compound, comminuted fracture and definite muscle or tendon 
damage.  However, the regulations recognize that there are 
locations, as in the wrist or over the tibia, where muscle 
damage might be minimal or damage to tendons might be 
repaired by sutures; in such cases, the requirements for a 
severe rating are not necessarily met. 38 C.F.R. § 4.72 
(prior to July 3, 1997).

Muscle injuries are classified into four general categories:  
Slight, moderate, moderately severe, and severe.  Separate 
evaluations are assigned for the various degrees of 
disability.

A moderately severe disability of the muscles anticipates a 
through-and-through or deep open penetrating wound by a small 
high velocity missile or a large low-velocity missile, with 
debridement, prolonged infection, or sloughing of the soft 
parts, and intermuscular scarring.  There should be a history 
of hospitalization for a prolonged period of treatment of the 
wound in service.  A record of cardinal symptoms, such as 
loss of power, weakness, lowered threshold of fatigue, 
fatigue-pain, impairment of coordination and uncertainty of 
movement, and evidence of unemployability because of 
inability to keep up work requirements should be considered.  
Objective findings should include entrance and exit scars 
indicating a track of a missile through one or more muscle 
groups.  Objective findings should also include indications 
on palpation of loss of deep fascia, moderate loss of muscle 
substance, or normal firm resistance of muscles compared to a 
sound side.  Tests of strength and endurance compared with 
sound side should demonstrate positive evidence of moderately 
severe loss. 38 C.F.R. § 4.56(c) (prior to July 3, 1997).

A severe muscle disability results from a through-and-through 
or deep-penetrating wound due to high velocity missile, or 
large or multiple low velocity missiles, or with shattering 
bone fracture or open comminuted fracture with extensive 
debridement, prolonged infection, or sloughing of soft parts, 
with intermuscular binding and cicatrization and service 
medical records or other evidence showing hospitalization for 
a prolonged period for treatment of the wound.  Objective 
findings may include a ragged, depressed and inherent scars 
indicating wide damage to muscle groups in missile track, 
palpation showing moderate or extensive loss of deep fasciae 
or muscle substance, or soft flabby muscles in wound area and 
abnormal swelling and hardening of muscles in contraction.  
Tests of strength, endurance, or coordinated movements 
compared with decreased muscles of the nonmajor side 
indicates severe impairment of function.  If present, the 
following are also signs of severe muscle disability:  X-ray 
evidence of minute multiple scattered foreign bodies 
indicating intermuscular trauma and explosive effect of the 
missile; adhesion of scar to one of the long bones, scapula, 
pelvic bones, sacrum or vertebrae, with epithelial filling 
over the bone rather than true skin covering in an area where 
bone is normally protected by muscle; diminished muscle 
excitability to pulsed electrical current and 
electrodiagnostic tests, visible or measurable atrophy; 
adaptive contraction of an opposing group of muscles; atrophy 
of muscle groups not in the track of the missile; induration 
or atrophy of an entire muscle following simple piercing by a 
projectile.  38 C.F.R. § 4.56(c) (prior to July 3, 1997).

Pursuant to the regulatory amendment effective July 3, 1997, 
changes were made to the schedular criteria for evaluating 
muscle injuries, as set forth in 38 C.F.R. §§ 4.55, 4.56, and 
4.72. See 62 Fed. Reg. 30237-240 (1997).  For instance, 38 
C.F.R. § 4.72 was removed and the provisions contained in 
that regulation were incorporated into the provisions of 38 
C.F.R. § 4.56.

The former provisions of 38 C.F.R. § 4.55 provided that 
muscle injuries in the same anatomical region would not be 
combined, but instead the rating for the major group would be 
elevated from moderate to moderately severe or from 
moderately severe to severe according to the aggregate 
impairment of function of the extremity.  That regulation 
also provided that two or more muscles affecting the motion 
of a single joint could be combined but not in combination 
receive more than the rating for ankylosis of that joint at 
the intermediate angle.  Additionally, that regulation 
provided that muscle injury ratings would not be combined 
with peripheral nerve paralysis ratings. 38 C.F.R. § 4.55 
(prior to July 3, 1997).

The new provisions of 38 C.F.R. § 4.55, are as follows:
(a)	A muscle injury rating will not be combined with a 
peripheral nerve paralysis rating of the same body part, 
unless the injuries affect entirely different functions.
(b)	For rating purposes, the skeletal muscles of the body 
are divided into 23 muscle groups in 5 anatomical regions: 6 
muscle groups for the shoulder girdle and arm (diagnostic 
codes 5301 through 5306); 3 muscle groups for the forearm and 
hand (diagnostic codes 5307 through 5309); 3 muscle groups 
for the foot and leg (diagnostic codes 5310 through 5312); 6 
muscle groups for the pelvic girdle and thigh (diagnostic 
codes 5313 through 5318); and 5 muscle groups for the torso 
and neck (diagnostic codes 5319 through 5323).
(c)	There will be no rating assigned for muscle groups which 
act upon an ankylosed joint, with the following exceptions:
(1)	In the case of an ankylosed knee, if muscle group XIII 
is disabled, it will be rated, but at the next lower level 
than that which would otherwise be assigned.
(2)	In the case of an ankylosed shoulder, if muscle groups I 
and II are severely disabled, the evaluation of the shoulder 
joint under diagnostic code 5200 will be elevated to the 
level for unfavorable ankylosis, if not already assigned, but 
the muscle groups themselves will not be rated.
(d)	The combined evaluation of muscle groups acting upon a 
single unankylosed joint must be lower than the evaluation 
for unfavorable ankylosis of that joint, except in the case 
of muscle groups I and II acting upon the shoulder.
(e)	For compensable muscle group injuries which are in the 
same anatomical region but do not act on the same joint, the 
evaluation for the most severely injured muscle group will be 
increased by one level and used as the combined evaluation 
for the affected muscle groups.
(f)	For muscle group injuries in different anatomical 
regions which do not act upon ankylosed joints, each muscle 
group injury shall be separately rated and the ratings 
combined under the provisions of Sec. 4.25.

The new version of 38 C.F.R. § 4.56 states:
(a) An open comminuted fracture with muscle or tendon damage 
will be rated as a severe injury of the muscle group involved 
unless, for locations such as in the wrist or over the tibia, 
evidence establishes that the muscle damage is minimal.
(b) A through-and-through injury with muscle damage shall be 
evaluated as no less than a moderate injury for each group of 
muscles damaged.
(c) 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.
(d) Under Diagnostic Codes 5301 through 5323, disabilities 
resulting from muscle injuries shall be classified as slight, 
moderate, moderately severe or severe as follows:
(3) Moderately severe disability of muscles--(i) Type of 
injury.  Through- and-through or deep-penetrating wound by 
small high velocity missile or large low- velocity missile, 
with debridement, prolonged infection, or sloughing of soft 
parts, and intermuscular scarring.
(ii) History and complaint.  Service department record or 
other evidence showing hospitalization for a prolonged period 
for treatment of wound.  Record of consistent complaint of 
cardinal signs and symptoms of muscle disability as defined 
in paragraph (c) of this section and, if present, evidence of 
inability to keep up with work requirements.
(iii) Objective findings.  Entrance and (if present) exit 
scars indicating track of missile through one or more muscle 
groups.  Indications on palpation of loss of deep fascia, 
muscle substance, or normal firm resistance of muscles 
compared with sound side.  Tests of strength and endurance 
compared with sound side demonstrative positive evidence of 
impairment.
(4) Severe disability of muscles--(i) Type of injury.  
Through-and-through or deep-penetrating wound due to high- 
velocity missile, or large or multiple low velocity missiles, 
or with shattering bone fracture or open comminuted fracture 
with extensive debridement, prolonged infection, or sloughing 
of soft parts, intermuscular binding and scarring.
(ii) History and complaint.  Service department record or 
other evidence showing hospitalization for a prolonged period 
for treatment of wound.  Record of consistent complaint of 
cardinal signs and symptoms of muscle disability as defined 
in paragraph (c) of this section, worse than those shown for 
moderately severe muscle injuries, and, if present, evidence 
of inability to keep up with work requirements.
(iii) Objective findings.  Ragged, depressed and adherent 
scars indicating wide damage to muscle groups in missile 
track.  Palpation shows loss of deep fascia or muscle 
substance, or soft flabby muscles in wound area.  Muscles 
swell and harden abnormally in contraction.  Tests of 
strength, endurance, or coordinated movements compared with 
the corresponding muscles of the uninjured side indicate 
severe impairment of function.  If present, the following are 
also signs of severe muscle disability:
(A) X-ray evidence of minute multiple scattered foreign 
bodies indicating intermuscular trauma and explosive effect 
of the missile.
(B) Adhesion of scar to one of the long bones, scapula, 
pelvic bones, sacrum or vertebrae, with epithelial sealing 
over the bone rather than true skin covering in an area where 
bone is normally protected by muscle.
(C) Diminished muscle excitability to pulsed electrical 
current in electrodiagnostic tests.
(D) Visible or measurable atrophy.
(E) Adaptive contraction of an opposing group of muscles.
(F) Atrophy of muscle groups not in the track of the missile, 
particularly of the trapezius and serratus in wounds of the 
shoulder girdle.
(G) Induration or atrophy of an entire muscle following 
simple piercing by a projectile.
(Authority: 38 U.S.C. 1155, 29 FR 6718, May 22, 1964, as 
amended at 43 FR 45349, October 2, 1978; 62 FR 30238, June 3, 
1997). 


The propriety of the initial 20 percent rating for chronic 
muscular strain, of the right trapezius and scapular muscle, 
superimposed on congenital instability with chronic rotator 
cuff impingement and tendonitis (major).

The veteran's disability has been rated on several occasions.  
Most recently, it was rated under Diagnostic Code 5201 for 
limitation of motion of the arm.  Under this code, a 30 
percent rating is assigned when limitation of motion of the 
major arm is between the side and shoulder level, and a 20 
percent rating is assigned when limitation of motion of the 
arm is at the shoulder level.  At the veteran's September 
1996 VA examination, he had forward elevation of 160 degrees, 
and abduction of 85 degrees.  At his March 1998 VA 
examination, he had forward elevation of 135 degrees and 
abduction of 70 degrees.  

Two of the four range of motion readings show range of motion 
greater than at shoulder level (criteria for a 20 percent 
rating), while the other two (70 and 85) are not at shoulder 
level, but are greater than between the side and shoulder 
level (criteria for a 30 percent rating).  However, at the 
veteran's September 1996 VA examination, the examiner 
commented that the veteran's pain with these movements was 
rather bothersome on the right, and at the veteran's March 
1998 VA examination, the examiner commented that the 
veteran's shoulder was painful with movement.  

Pursuant to DeLuca v. Brown, the evidence shows that with 
painful motion taken into account, the veteran's limitation 
of motion of the right arm is the equivalent of between the 
side and shoulder level, which is the criteria for a 30 
percent rating.  However, it is not the equivalent of 
limitation of motion of the arm to 25 degrees from the side, 
which is the criteria for a 40 percent rating.  Thus, an 
initial rating of 30 percent, but not higher, is appropriate 
when the veteran's right shoulder disability is rated under 
the limitation of motion code of Diagnostic Code 5201.  As 
the evidence does not ankylosis of the right shoulder, it is 
not appropriate to rate the veteran under Diagnostic Code 
5200.  

The veteran's disability has also been rated under Diagnostic 
Code 5301 for extrinsic muscles of the shoulder girdle.  
However, the only way that the veteran can get a higher 
initial rating than 30 percent would be if the evidence 
showed a severe muscle injury to warrant a 40 percent rating.  

At the veteran's September 1996 VA examination, the examiner 
commented that both shoulders had severe muscular tenderness 
at the trapezius and scapular areas, and there was mild 
acromioclavicular joint tenderness at both shoulders.  At the 
veteran's March 1998 VA examination, the examiner commented 
that both shoulders had rather severe tenderness in all 
areas.  However, when the veteran's right shoulder disability 
is examined under both the new and old muscle regulations, 
the evidence does not show that there is a severe muscle 
disability to warrant a 40 percent rating.  The evidence does 
not show loss of deep fascia or muscle substance.  Also, the 
evidence does not show that the muscles swell and harden 
abnormally in contraction, and the evidence does not show 
visible or measurable atrophy.  

This case does not present 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).  

In reaching the determination, consideration has been given 
to the provisions of 38 C.F.R. Parts 3 and 4, whether or not 
they were raised by the veteran, as required by Schafrath v. 
Derwinski, 1 Vet.App. 589 (1991).  Specifically, the RO 
ordered special VA examinations to determine the severity of 
the veteran's right shoulder.  The record is complete with 
records of prior medical history and rating decisions.  
Therefore, the RO and the Board have considered all the 
provisions of Parts 3 and 4 that would reasonably apply in 
this case.  

In summary, an initial rating of 30 percent, but not higher, 
for chronic muscular strain, of the right trapezius and 
scapular muscle, superimposed on congenital instability with 
chronic rotator cuff impingement and tendonitis (major) is 
appropriate, and the veteran's claim is granted to that 
extent, subject to the laws and regulations governing the 
disbursement of monetary benefits. 38 U.S.C.A. §§ 1155 (West 
1991); Veterans Claims Assistance Act of 2000, Pub. L. No. 
106-475, § 4, 114 Stat. 2096, ___ (2000) (to be codified as 
amended at 38 U.S.C. §§ 5107).  38 C.F.R. Part 4, §§ 4.40, 
4.45, 4.71, Diagnostic Codes 5003, 5257, 5260, 5261 (2000). 



The propriety of the initial 20 percent rating for chronic 
muscular strain, of the left trapezius and scapular muscle, 
superimposed on congenital instability with chronic rotator 
cuff impingement and tendonitis (minor).

When the veteran's disability is rated under Diagnostic Code 
5201 for limitation of motion of the minor arm, a 30 percent 
rating is assigned only when limitation of motion of the 
minor arm is 25 degrees from the side.  A 20 percent rating 
is assigned if limitation of motion is between the side and 
shoulder level, or at the shoulder level.  At the veteran's 
September 1996 VA examination, he had forward elevation of 
175 degrees, and abduction of 150 degrees.  At his March 1998 
VA examination, he had forward elevation of 130 degrees and 
abduction of 80 degrees.  

In this instance, 3 of the 4 range of motion measurements 
were above the shoulder level, and the other one (80) was 
almost at shoulder level.  However, the examiner at the March 
1998 VA examination commented that the shoulder was painful 
with movement.  

Pursuant to DeLuca v. Brown, the evidence shows that with 
painful motion taken into account, the veteran's limitation 
of motion of the right arm is between the side and shoulder 
level, which is the criteria for a 20 percent rating.  Since 
the range of motion findings were nowhere near 25 degrees 
from the side, the veteran's disability is not the equivalent 
of limitation of motion of the arm to 25 degrees from the 
side, which is the criteria for a 30 percent rating.  Thus, 
the initial rating of 20 percent is appropriate when the 
veteran's right shoulder disability is rated under the 
limitation of motion code of Diagnostic Code 5201.

The veteran's disability has also been rated under Diagnostic 
Code 5301 for extrinsic muscles of the shoulder girdle.  
However, the only way that the veteran can get a higher 
initial rating than 20 percent for the left shoulder would be 
if the evidence showed a severe muscle injury to warrant a 30 
percent rating.  



At the veteran's September 1996 VA examination, the examiner 
commented that both shoulders had severe muscular tenderness 
at the trapezius and scapular areas, and there was mild 
acromioclavicular joint tenderness at both shoulders.  At the 
veteran's March 1998 VA examination, the examiner commented 
that both shoulders had rather severe tenderness in all 
areas.  However, when the veteran's left shoulder disability 
is examined under both the new and old muscle regulations, 
the evidence does not show that there is a severe muscle 
disability to warrant a 30 percent rating.  Also, the 
evidence does not show loss of deep fascia or muscle 
substance.  The evidence does not show that the muscles swell 
and harden abnormally in contraction, and the evidence does 
not show visible or measurable atrophy.  

This case does not present 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).  

In reaching the determination, consideration has been given 
to the provisions of 38 C.F.R. Parts 3 and 4, whether or not 
they were raised by the veteran, as required by Schafrath v. 
Derwinski, 1 Vet.App. 589 (1991).  Specifically, the RO 
ordered special VA examinations to determine the severity of 
the veteran's left shoulder disability.  The record is 
complete with records of prior medical history and rating 
decisions.  Therefore, the RO and the Board have considered 
all the provisions of Parts 3 and 4 that would reasonably 
apply in this case.  




ORDER

Entitlement to an effective date of April 5, 1993, is granted 
for service connection for chronic muscular strain, of the 
right trapezius and scapular muscle, superimposed on 
congenital instability with chronic rotator cuff impingement 
and tendonitis.
  
Entitlement to an effective date of April 5, 1993, is granted 
for service connection for chronic muscular strain, of the 
left trapezius and scapular muscle, superimposed on 
congenital instability with chronic rotator cuff impingement 
and tendonitis.

Entitlement to an initial 30 percent evaluation for chronic 
muscular strain, of the right trapezius and scapular muscle, 
superimposed on congenital instability with chronic rotator 
cuff impingement and tendonitis (major), is granted for the 
entire rating period, subject to the law and regulations 
governing the payment of monetary benefits.

The initial 20 percent rating for chronic muscular strain, of 
the left trapezius and scapular muscle, superimposed on 
congenital instability with chronic rotator cuff impingement 
and tendonitis (minor) was proper and is maintained.


REMAND

The law requires full compliance with all orders in this 
remand.  Stegall v. West, 11 Vet. App. 268 (1998).  Although 
the instructions in this remand should be carried out in a 
logical chronological sequence, no instruction in this remand 
may be given a lower order of priority in terms of the 
necessity of carrying out the instruction completely.

Regarding the veteran's claim challenging the propriety of 
the initial 40 percent rating for low back strain, his 
disability is rated under Diagnostic Code 5292, for 
limitation of motion of the back.  He is not entitled to a 
higher rating unless the evidence shows severe intervertebral 
disc syndrome to warrant a 60 percent rating.  To date, the 
medical evidence does not show intervertebral disc syndrome.  
The veteran was afforded a VA examination in March 1998, at 
which time the examiner commented that the lumbar nerve roots 
were alright.  However, in a December 1998 VA medical report, 
the veteran was complaining of pain down both legs with 
numbness and tingling down the heels and toes.  

The duty to assist includes conducting a thorough and 
contemporaneous examination of the veteran that takes into 
account the records of prior medical treatment.  Green v. 
Derwinski, 1 Vet.App. 121 (1991).  Accordingly, based on the 
veteran's complaints in December 1998, his claim must be 
remanded in order to determine whether he has intervertebral 
disc syndrome, or whether there is some other disability 
responsible for these complaints.  It is noted that the 
veteran has been treated for and diagnosed with fibromyalgia.  

In a recent General Counsel opinion, it was determined that 
Diagnostic Code 5293 for intervertebral disc syndrome 
involved loss of range of motion because the nerve defects 
and resulting pain associated with injury to the sciatic 
nerve might cause limitation of motion of the spine.  It was 
concluded that pursuant to Johnson v. Brown, 9 Vet. App. 7 
(1996), 38 C.F.R. § § 4.40 and 4.45 must be considered when a 
disability is considered under Diagnostic Code 5293, even 
though the rating corresponds to the maximum rating under 
another Diagnostic Code pertaining to limitation of motion.  
See VAOPGCPREC 36-97 (December 12, 1997). 

Accordingly, if it is determined that the veteran has 
intervertebral disc syndrome, 38 C.F.R. § § 4.40 and 4.45 
must be considered when the RO rates the veteran's claim 
challenging the propriety of the initial 40 percent rating 
for low back strain.  

To ensure full compliance with due process requirements, the 
case is REMANDED to the RO for the following development:

1.  The RO and any physician to whom this 
case is assigned for an examination 
and/or a statement of medical opinion 
must read the entire remand, to include 
the explanatory paragraphs above the 
numbered instructions.

2.  The RO should obtain all relevant 
current medical records regarding the 
veteran's low back.  

3.  The veteran should be afforded a VA 
orthopedic examination to determine the 
nature and severity of the service-
connected low back neck disability.  Such 
tests as the examining physician deems 
necessary should be performed to include 
any neurological testing if warranted by 
the examination.  All positive findings 
should be reported.  The claims folder 
and a copy of this remand must be made 
available to the examining physician in 
conjunction with the examination so that 
he/she may review pertinent aspects of 
the appellant's medical history.

The examiner should provide answers to 
the following questions:

a.  Does the veteran have 
intervertebral disc syndrome of the 
low back?

b.  If the answer to question (a) is 
yes, does the veteran have 
persistent symptoms compatible with 
sciatic neuropathy?

c.  If the answer to question (a) is 
yes, does the veteran have 
characteristic pain and demonstrable 
muscle spasm?

d.  If the answer to question (a) is 
yes, does the veteran have absent 
ankle jerk, or other neurological 
findings appropriate to the site of 
the diseased disc?

e.  If the answer to question (a) is 
yes, does the veteran have only 
little intermittent relief from his 
intervertebral disc syndrome?

The examiner should also be asked to 
determine whether there are other 
symptoms that affect the range of motion 
and function of the lumbar spine.  The 
examiner should be asked to answer the 
following questions:

f.  Does the veteran's lumbar spine 
exhibit weakened movement, excess 
fatigability, incoordination, or 
pain on use attributable to the 
service connected disability (if 
feasible, these determinations 
should be expressed in terms of the 
degree of additional range of motion 
loss due to these symptoms.)?

g.  If the answer to question (a) is 
yes, the examiner should state 
whether any such findings together 
with the veteran's disability would 
be the equivalent of pronounced 
intervertebral disc syndrome with 
persistent symptoms compatible with 
sciatic neuropathy with 
characteristic pain and demonstrable 
muscle spasm, absent ankle jerk, or 
other neurological findings 
appropriate to the diseased disc at 
L5-S1 with only little intermittent 
relief.  

h.  Does pain significantly limit 
functional ability during flare-ups 
or when the lumbar spine is used 
repeatedly over a period of time  
(this determination should also, if 
feasible, be portrayed in terms of 
the degree of additional range of 
motion loss due to pain on use or 
during flare-ups)?

i.  If the answer to question (a) is 
yes, the examiner should provide an 
opinion as to whether the veteran's 
disability with any such findings 
would be the equivalent of 
pronounced intervertebral disc 
syndrome with only little 
intermittent relief.  

j.  Does the veteran suffer from any 
disorders for which he is not 
service-connected which might 
contribute to his numbness and 
tingling in his legs?

If the examiner can not provide answers 
to any of the requested questions, he/she 
should so state.  

5.  The RO must review the claims file 
and ensure that all notification and 
development action required by the 
Veterans Claims Assistance Act of 2000, 
Pub. L. No. 106-475 is completed.  In 
particular, the RO should ensure that the 
new notification requirements and 
development procedures contained in 
sections 3 and 4 of the Act (to be 
codified as amended at 38 U.S.C. §§ 5102, 
5103, 5103A, and 5107) are fully complied 
with and satisfied.  For further guidance 
on the processing of this case in light 
of the changes in the law, the RO should 
refer any pertinent formal or informal 
guidance provided by the Department, 
including, among others things, final 
regulations and General Counsel precedent 
opinions.  Any binding and pertinent 
court decisions that are subsequently 
issued also should be considered.  

6.  After the development requested above 
has been completed, the RO should review 
the veteran's claims folder and ensure 
that all the foregoing development has 
been conducted and completed in full.  If 
any development is incomplete, 
appropriate corrective action should be 
taken.  

7.  Upon completion of the above, the RO 
should review the evidence of record and 
enter its determination with respect to 
the veteran's claim challenging the 
propriety of the initial 40 percent 
rating for low back strain.  In the event 
that the claims are not resolved to the 
satisfaction of the appellant, the RO 
must issue a supplemental statement of 
the case, a copy of which should be 
provided the veteran, and his 
representative.  After the veteran and 
his representative have been given an 
opportunity to submit additional 
argument, the case should be returned to 
the Board for further review.  

No action is required of the veteran until he receives 
further notice.  The Board does not intimate any factual or 
legal conclusion as to any final outcome warranted in the 
appeal.

The appellant has the right to submit additional evidence and 
argument on the matter or matters the Board has remanded to 
the regional office.  Kutscherousky v. West, 12 Vet. App. 369 
(1999).

This claim must be afforded expeditious treatment by the RO.  
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 The Veterans' Benefits Improvements Act of 1994, 
Pub. L. No. 103-446, § 302, 108 Stat. 4645, 4658 (1994), 
38 U.S.C.A. § 5101 (West Supp. 2000) (Historical and 
Statutory Notes).  In addition, VBA's Adjudication Procedure 
Manual, M21-1, Part IV, directs the ROs to provide 
expeditious handling of all cases that have been remanded by 
the Board and the Court.  See M21-1, Part IV, paras. 8.44-
8.45 and 38.02-38.03.



		
	G. H. Shufelt
	Member, Board of Veterans' Appeals