Citation NR: 9721173 Decision Date: 06/17/97 Archive Date: 06/30/97 DOCKET NO. 95-30 870 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New Orleans, Louisiana THE ISSUES 1. Entitlement to an increased disability evaluation for bursitis of the left shoulder, currently evaluated as 20 percent disabling. 2. Entitlement to an increased disability evaluation for bursitis of the right shoulder, currently evaluated as 20 percent disabling. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD D. Jeffers, Associate Counsel INTRODUCTION The veteran served on active duty in the United States Army from May 1943 to January 1946, and from November 1957 to May 1965. This appeal arose from a February 1995 rating decision of the New Orleans, Louisiana, Department of Veterans Affairs (VA), Regional Office (RO), which denied entitlement to a disability rating in excess of 20 percent for bursitis of the left shoulder, and granted an increased rating to 10 percent for bursitis of the right shoulder. In June 1995, the veteran submitted a claim for service connection for posttraumatic stress disorder (PTSD). Later that month, the veteran presented at a personal hearing, at which time he offered testimony on the increased rating issues. The veteran also filed a substantive appeal (VA Form 9) as to the bursitis issues. In August 1995, the hearing officer denied entitlement to an increased rating for bursitis of the left shoulder, granted an increased rating to 20 percent for bursitis of the right shoulder, and granted service connection for PTSD, assigning a 10 percent rating. A Supplemental Statement of the Case (SSOC) as to the bursitis issues was also issued in August 1995. The veteran was informed that his case was being transferred to the Board on December 17, 1996. A review of the records discloses that in the April 1997 Informal Hearing Presentation, the veteran’s representative has raised the issue of entitlement to service connection for PTSD. As noted above, the hearing officer previously granted service connection for PTSD by decision issued in August 1995, and assigned a 10 percent rating, effective February 2, 1997. Consequently, the undersigned hereby refers this issue back to the RO for whatever disposition it deems necessary. In addition, it is also noted that on March 20, 1997, the Board received a letter from the veteran, with attachments and waiver of initial RO consideration, which appears to raise a claim of entitlement to service connection for a chronic skin disorder secondary to Agent Orange exposure. As this issue has not been properly developed for review by the Board and does not appear to be inextricably intertwined with the issues on appeal, it is hereby referred to the RO for appropriate disposition. See 38 C.F.R. §§ 19.37(b), 20.1304 (1996). CONTENTIONS OF APPELLANT ON APPEAL The veteran contends, in essence, that his bursitis of the left and right shoulders is far more disabling than their respective disability evaluations suggest. He maintains that he suffers from constant pain, and has problems working overhead. Therefore, he believes that he is entitled to the benefits sought. DECISION OF THE BOARD The Board, in accordance with the provisions of 38 U.S.C.A. § 7104 (West 1991 & Supp. 1996), has reviewed and considered all of the evidence and material of record in the veteran's claims file. Based on its review of the relevant evidence in this matter, and for the following reasons and bases, it is the decision of the Board that the preponderance of the evidence is against the veteran’s claims of entitlement to disability evaluations in excess of 20 percent for service- connected bursitis of the left and right shoulders. FINDINGS OF FACT 1. The veteran testified that he is right handed. 2. The veteran’s bursitis is primarily manifested by limitation of motion beyond 45 degrees in the left shoulder and beyond 90 degrees in the right shoulder. CONCLUSIONS OF LAW 1. The criteria for a disability evaluation in excess of 20 percent for bursitis of the left shoulder have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 1991 & Supp. 1996); 38 C.F.R. Part 4, including §§ 4.1, 4.2, 4.7, 4.10, 4.40, 4.71, Codes 5019, 5201 (1996). 2. The criteria for a disability evaluation in excess of 20 percent for bursitis of the right shoulder have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 1991 & Supp. 1996); 38 C.F.R. Part 4, including §§ 4.1, 4.2, 4.7, 4.10, 4.40, 4.71, Codes 5019, 5201 (1996). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The veteran’s claims of entitlement to disability evaluations in excess of 20 percent for bursitis of the left and right shoulders are well grounded within the meaning of 38 U.S.C.A. § 5107(a). That is, he has presented claims which are plausible. Generally, claims for increased evaluations are considered to be well grounded. A claim that a condition has become more severe is well grounded where the condition was previously service-connected and rated, and the claimant subsequently asserts that a higher rating is justified due to an increase in severity since the original rating. Proscelle v. Derwinski, 2 Vet.App. 629, 632 (1992). Under the applicable criteria, disability evaluations are determined by the application of a schedule of ratings which is based on the average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C.A. § 1155 (West 1991 & 1996); 38 C.F.R. Part 4 (1996). When a question arises as to which of two evaluations shall be assigned, the higher evaluation 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 (1996). VA also has a duty to acknowledge and consider all regulations which are potentially applicable based upon the assertions and issue raised in the record and to explain the reasons used to support the conclusion. Schafrath v. Derwinski, 1 Vet.App. 589 (1991). These regulations include, but are not limited to, 38 C.F.R. § 4.1, that requires that each disability be viewed in relation to its history and that there be an emphasis placed upon the limitation of activity imposed by the disabling condition, and 38 C.F.R. § 4.2 which requires that medical reports be interpreted in light of the whole recorded history, and that each disability must be considered from the point of view of the veteran working or seeking work. 38 C.F.R. § 4.10 states that, in cases of functional impairment, evaluations are to be based upon lack of usefulness, and medical examiners must furnish, in addition to etiological, anatomical, pathological, laboratory and prognostic data required for ordinary medical classification, full description of the effects of the disability upon a person’s ordinary activity. This evaluation includes functional disability due to pain under the provisions of 38 C.F.R. § 4.40. See also DeLuca v. Brown, 8 Vet.App. 202, at 204-206, 208 (1995). These requirements for the evaluation of the complete medical history of the claimant’s condition operate to protect claimants against adverse decision based upon a single, incomplete or inaccurate report and to enable VA to make a more precise evaluation of the disability level and any changes in the condition. A review of the record included the veteran’s service medical records (SMRs) which show that he was treated on occasion for bursitis during his periods of active duty. The veteran was given a final discharge from service in May 1965. Following a July 1978 VA examination, the RO granted service connection for bursitis of the left shoulder, and granted a 20 percent disability rating. The RO also granted service connection for bursitis of the right shoulder, and assigned a noncompensable disability rating. In February 1995, the RO denied entitlement to an increased rating for bursitis of the left shoulder, but granted an increased rating to 10 percent for bursitis of the right shoulder. The veteran offered his contentions at a personal hearing in June 1995. Following VA examination in July 1995, the hearing officer issued an August 1995 decision, which denied entitlement to an increased rating for bursitis of the left shoulder and granted an increased rating to 20 percent for bursitis of the right shoulder. Initially, it is noted that 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. According to 38 C.F.R. Part 4, Code 5019 (1996), bursitis is rated as degenerative arthritis on the basis of limitation of motion of the affected parts. Under the applicable criteria, limitation of motion of the arm (major or minor) to approximately shoulder level (90 degrees) warrants a 20 percent disability evaluation; a 30 (major arm) or 20 (minor arm) percent evaluation is applicable for motion of the arm limited to midway between the side and shoulder level. 38 C.F.R. Part 4, Code 5201 (1996). Where entitlement to compensation has been already established and an increase in disability is at issue, the present level of disability is of primary concern. Francisco v. Brown, 7 Vet.App. 55 (1994). The veteran was afforded VA orthopedic and neurologic examinations in July 1995. Orthopedic examination revealed that range of motion of the shoulders was limited. Abduction of the right shoulder was achieved to 70 degrees, with 90 degrees of flexion, 45 degrees of extension and 90 degrees of internal rotation. The veteran was also able to abduct, flex, extend and internally rotate his left shoulder to 45 degrees, respectively. The examiner further noted that external rotation of the right shoulder was achieved to 70 degrees; however, the veteran did not come to neutral and remained in an internal rotation mode of 40 degrees. The veteran also had tenderness in and about the shoulders, with minimal, if any, crepitation on motion; the left shoulder had more crepitation that the right. X-rays revealed severe osteopenia of the shoulder bones, with a normal contour of the femoral heads and joints. The orthopedic diagnosis was bursitis of the shoulders. Neurologic examination revealed that the veteran was ambulatory, fully alert and oriented to place, person and situation. Evaluation of the language functions showed no impairment of receptive or expressive language areas. Cognitive functioning was in the fairly average range. Cranial nerve evaluation showed no deficit. Motor system evaluation showed normal muscle strength in both legs, proximally and distally. There was some bilateral handgrip weakness, but the examiner commented that it appeared to be mostly due to disabling and deforming arthritis rather than ant neurological injury. The veteran also had some weakness at the bilateral, proximal upper extremities, but the examiner commented that this appeared to be secondary to a shoulder problem (bursitis) rather than any other neurologic injury. Sensory evaluation showed no particular dermatomal pattern or sensory level. Deep tendon reflexes were symmetrical. The examiner also noted that there was no significant impairment of gait or coordination. The neurologic diagnoses were peripheral neuropathy, possible of the axonal type secondary to aging and probable alcohol use, bursitis of both shoulders, and bilateral hand deformities secondary to arthritis. The neurologic examiner commented that it appeared that the major problem that the veteran experiences is weakness and limitation of motion at the shoulders and in both hands, which is secondary to bursitis and arthritis. There was no significant neurological damage seen from the veteran’s old back injury. The veteran did, however, have minimal complaints and signs of peripheral neuropathy. When all the evidence is assembled, the Board is then responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether the preponderance of the evidence is against the claim, in which case the claim is denied. See 38 U.S.C.A. § 5107(b) (West 1991 & Supp. 1996); 38 C.F.R. § 3.102 (1996); and Gilbert v. Derwinski, 1 Vet.App. 49, 55 (1990). In the instant case, the preponderance of the evidence is against the veteran’s claims of entitlement to disability evaluations in excess of 20 percent for bursitis of the left and right shoulders. The veteran testified that he is right-handed. The RO assigned a 20 percent evaluation for bursitis of the left shoulder (minor arm) based on the veteran’s limitation of motion of the left arm midway between his side and shoulder (abduction and flexion limited to 45 degrees), and a 20 percent bursitis of the right shoulder (major arm) based on the veteran’s limitation of the right arm at shoulder level (abduction limited to 70 degrees and flexion limited to 90 degrees). See 38 C.F.R. § 4.71, Plate I (1996). While the veteran also shown to manifest some weakness of the bilateral, proximal upper extremities on neurologic examination, this disability was related to the veteran’s bursitis rather than to any other neurologic injury. In addition, x-rays of the shoulders do not mention the presence of any ankylosis, or impairment of the humerus, clavicle or scapula. Clearly, the evidence of records does not support entitlement to 30 percent disability ratings. Rather, it shows that the veteran’s 20 percent disability ratings adequately compensated him for his limitation of motion, weakness, osteopenia and crepitation of the left and right shoulders. Therefore, it is found that entitlement to disability ratings in excess of 20 percent for bursitis of the left and right shoulders is denied. Moreover, application of the extraschedular provisions is also not warranted in this case. 38 C.F.R. § 3.321(b) (1996). There is no objective evidence that these service- connected disabilities present such exceptional or unusual disability pictures, with such factors as marked interference with employment or frequent periods of hospitalization, as to render impractical the application of the regular schedular standards. Hence, referral by the RO to the Chief Benefits Director of VA’s Compensation and Pension Service, under the above-cited regulation, was not required. See Bagwell v. Brown, 9 Vet.App. 337 (1996). ORDER An increased disability evaluation for bursitis of the left shoulder is denied. An increased disability evaluation for bursitis of the right shoulder is denied. C. P. RUSSELL Member, Board of Veterans' Appeals (Continued on the next page) 38 U.S.C.A. § 7102 (West Supp. 1996) permits a proceeding instituted before the Board to be assigned to an individual member of the Board for a determination. This proceeding has been assigned to an individual member of the Board. NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West 1991 & Supp. 1996), a decision of the Board of Veterans' Appeals granting less than the complete benefit, or benefits, sought on appeal is appealable to the United States Court of Veterans Appeals within 120 days from the date of mailing of notice of the decision, provided that a Notice of Disagreement concerning an issue which was before the Board was filed with the agency of original jurisdiction on or after November 18, 1988. Veterans' Judicial Review Act, Pub. L. No. 100-687, § 402, 102 Stat. 4105, 4122 (1988). The date which appears on the face of this decision constitutes the date of mailing and the copy of this decision which you have received is your notice of the action taken on your appeal by the Board of Veterans' Appeals. - 2 -