Citation NR: 9722700 Decision Date: 06/27/97 Archive Date: 07/02/97 DOCKET NO. 92-15 476 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUES 1. Entitlement to an increased evaluation for a left shoulder disorder, currently rated as 10 percent disabling. 2. Entitlement to an increased evaluation for a left shoulder disorder, currenlty rated as 10 percent disabling. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant INTRODUCTION The veteran had active service from January 1942 to December 1964. He was also a prisoner of war during the Korean conflict. This case was originally before the Board of Veterans’ Appeals (the Board) on appeal from rating decisions that assigned a 10 percent evaluation for each shoulder disability. The Board, in July 1996, remanded these issues for further development and readjudication. The requested development was accomplished and the combined rating decision/supplemental statement of the case, issued in January 1997 continued the denial of an increased evaluation for each shoulder disorder. CONTENTIONS OF APPELLANT ON APPEAL The veteran contends that the current severity of his service connected shoulder disabilities warrants an increased evaluation in excess of the 10 percent rating currently assigned to each shoulder. 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 files. 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 evidence warrants a grant of an increased evaluation of 20 percent, but no higher, for each shoulder disability. FINDINGS OF FACT 1. All relevant available evidence necessary for an equitable disposition of the veteran’s appeal has been obtained by the RO. 2. The veteran’s bilateral shoulder disorder is manifested principally by subjective complaints of limitation of motion and painful motion above shoulder level; and objective findings of forward flexion limited to 95 bilaterally; and internal and external rotation limited to 30 bilaterally. CONCLUSIONS OF LAW 1. The criteria for an increased evaluation of 20 percent, but no higher, for a left shoulder disorder have been met. 38 U.S.C.A. §§ 1155, 5107 (West 1991 & Supp. 1996); 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.20, 4.40, 4.45, 4.71, Table I, and 4.71a, Codes 5003, 5019, 5201 (1996). 2. The criteria for an increased evaluation of 20 percent, but no higher, for a right shoulder disorder have been met. 38 U.S.C.A. §§ 1155, 5107 (West 1991 & Supp. 1996); 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.20, 4.40, 4.45, 4.71, Table I, and 4.71a, Codes 5003, 5019, 5201 (1996). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Board concedes that the veteran has presented claims which are “well-grounded” or plausible within the meaning of 38 U.S.C.A. § 5107(a). The Board is also satisfied that the duty to assist mandated by 38 U.S.C.A. § 5107(a) has been fulfilled as there is no indication of additional available evidence which would be relevant to the veteran’s claims. Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. Where there is a question as to which of two evaluations shall be applied, the higher evaluations will be assigned if the disability more closely approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Where there is a reasonable doubt as to the degree of disability, such doubt will be resolved in favor of the claimant. 38 C.F.R. §§ 3.102, 4.3. In addition, the Board will consider the potential application of the various other provisions of 38 C.F.R., Parts 3 and 4, whether or not they were raised by the appellant, as well as the entire history of the appellant’s disability in reaching its decision, as required by Schafrath v. Derwinski, 1 Vet.App. 589 (1991). The veteran’s right shoulder and left shoulder disabilities have been evaluated under Diagnostic Code (DC) 5019 for bursitis. This Code provision states that bursitis is to be evaluated under DC 5003 as for degenerative arthritis. 38 C.F.R. § 4.71a, DC 5019. DC 5003 states that degenerative arthritis established by x- ray findings will be rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint involved. When however, the limitation of motion of the specific joint or joints involved is noncompensable under the appropriate diagnostic codes, a rating of 10 percent is to be applied for each such major joint or group of minor joints affected by limitation of motion. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. 38 C.F.R. § 4.71a, DC 5003. The rating criteria for limitation of the arm is set out in DC 5201. A 20 percent evaluation is to be assigned when there is limitation of motion of the arm at shoulder level. A 30 percent evaluation is warranted for the major arm (and 20 percent for the minor arm) when limitation of motion of the arm is midway between side and shoulder level. A 40 percent evaluation is warranted for the major arm (and 30 percent for the minor arm) when limitation of motion is to 25 degrees from the side. 38 C.F.R. § 4.71a, DC 5201. Historically, the veteran was awarded service connection by rating decision, dated in June 1967, for a bilateral shoulder disorder, evaluated as bursitis, and assigned a 10 percent rating. In April 1992, the veteran’s bilateral shoulder disorder was evaluated as two separate disabilities and a 10 percent rating was assigned for bursitis of each shoulder. Consideration of the whole recorded history is necessary so that a rating may accurately reflect the elements of disability present. 38 C.F.R. § 4.2 (1996); Peyton v. Derwinski, 1 Vet.App. 282 (1991). In this case, the Board has reviewed the entire record; however, the Board finds the most recent evidence consisting of the veteran’s VA treatment records, dated from 1992 to the present, as well as the November 1996 VA examination report to be most probative of the current nature and extent of the service-connected bilateral shoulder disorder. See e.g. Francisco v. Brown, 7 Vet.App. 55 (1994). Review of the veteran’s VA outpatient treatment records since 1990 revealed that in May 1992 the veteran related a history of degenerative joint disease (DJD) in his shoulders but declined an orthopedic follow-up appointment at the time. In December 1993 a history of DJD in the shoulders was again noted and he complained that shoulder pain would wake him during the night. In 1994, he continued to complain of shoulder pain, especially on the right; the diagnosis was impingement syndrome, right shoulder. In 1995, he was diagnosed to have bilateral impingement syndrome and underwent a series of physical therapy treatments to improve arm range of motion; at commencement of treatment he had bilateral arm limitation of motion that prevented him from performing some overhead chores. At completion of the physical therapy treatment, in May 1995, the veteran’s shoulder range of motion was measured at 0 -92 flexion on the right and 0 -95 on the left; abduction of 0 -104 on the right and 0 -103 on the left; external rotation of 0 -80 on the right and 0 -86 on the left; and internal rotation of 0 50 on the right and 0 -50 on the left. The veteran was afforded a special VA orthopedic examination in November 1996 for the purpose of evaluation of his service connected shoulder disabilities. The veteran reported that he had been offered the option of surgery on both shoulders by a civilian doctor but he had not decided whether to pursue this course. He was still able to groom himself as well as put his clothes on; however, he could not perform other additional overhead activities such as reaching for anything on an upper shelf, etc. An MRI conducted in August 1991 had revealed significant degenerative joint arthritis bilaterally including the acromioclavicular joints and the glenohumeral joints. This study had also been suggestive of a complete rotator cuff tear on the right side with additional labrale pathology and questionable left-sided partial rotator cuff with no evidence of other additional intra-articular pathology. The VA examiner noted that the veteran exhibited slow but progressive range of motion during the physical examination with abduction to 160 . Forward flexion was limited to approximately 95 bilaterally. Internal and external rotation was 30 bilaterally. The diagnostic impression was: Bilateral acromioclavicular arthritis; bilateral glenohumeral arthritis; bilateral rotator cuff arthropathies. The Board finds, based on the evidence of record and the applicable laws and regulations, that an increased evaluation of 20 percent, but no higher, is warranted for each shoulder. The Board, in reaching this determination carefully considered the recent increased loss of range of motion in both shoulders as evidenced by the change in measurements from May 1995 to November 1996. Although flexion in both shoulders remained relatively the same (limited to approximately 90 in both 1995 and during the November 1996 VA examination); the veteran’s limitation of rotation in both shoulders had decreased to 30 bilaterally in November 1996. The Board believes that these measurements, especially when considered with the findings of pain with motion above shoulder level warrants an increased evaluation of 20 percent for each shoulder under the diagnostic criteria of DC 5201. The Board further finds, however, that increased evaluation, in excess of 20 percent for either shoulder, is not warranted under the diagnostic criteria of DC 5201. The Board in reaching this determination gave careful consideration to the fact that the veteran is still able to perform some above- the-shoulder functions; thus, his limitation of motion is more analogous to the required level for a 20 percent evaluation (shoulder level) than the criteria required for a higher rating under this Code. 38 C.F.R. §§ 4.71, Plate I, 4.71a, DC 5201. ORDER An increased evaluation of 20 percent, but no higher, for a left shoulder disorder is granted. An increased evaluation of 20 percent, but no higher, for a right shoulder disorder is granted. SANDRA L. SMITH Acting Member, Board of Veterans’ Appeals 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 -