Citation Nr: 1132522 Decision Date: 09/02/11 Archive Date: 09/12/11 DOCKET NO. 03-23 774 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUE Entitlement to an increased rating for a right shoulder disorder. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD E. Woodward Deutsch, Associate Counsel INTRODUCTION The Veteran served on active duty from September 1956 to July 1979. This matter comes before the Board of Veterans' Appeals (Board) from a November 2001 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO), which denied an increased rating for a right shoulder disorder, then rated as 10 percent disabling under the diagnostic criteria governing traumatic arthritis and limitation of motion. 38 C.F.R. § 4.71a, Diagnostic Codes 5010-5201 (2010). A December 2003 RO rating decision increased the Veteran's right shoulder rating from 20 percent disabling, effective December 6, 2003; and a December 2009 rating decision further increased that rating to 30 percent disabling, effective September 5, 2009. In a March 2006 decision, the Board denied the Veteran's claim for additional compensation for his right shoulder disorder. The Veteran appealed that decision to the United States Court of Appeals for Veterans Claims, which issued a December 2006 Order remanding the right shoulder claim to the Board for readjudication in accordance with a Joint Motion for Remand. In April 2010, the Board remanded the Veteran's claim for additional development. Thereafter, the RO issued a March 2011 rating decision granting a separate 10 percent rating for residuals of a right bicep tear. 38 C.F.R. § 4.73, Diagnostic Code 5305 (2010). However, as that award did not represent a total grant of benefits sought on appeal, the claim for increase for the right shoulder has remained before the Board. AB v. Brown, 6 Vet. App. 35 (1993). This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2010). 38 U.S.C.A. § 7107(a)(2) (West 2002). The appeal is REMANDED to the RO via the Appeals Management Center in Washington, D.C. REMAND Although the Board regrets the additional delay, further development is needed prior to the disposition of the Veteran's claim. Pursuant to the Board's April 2010 remand, the Veteran was afforded an October 2010 VA examination to address the severity of his right shoulder disorder. At that time, he complained of progressively worsening right shoulder symptoms arising from a 1972 combat injury, which he had sustained after parachuting out of an aircraft that had been shot down by the Viet Cong. In terms of current symptoms, the Veteran expressly denied any numbness, tingling, or distal motor dysfunction associated with his right shoulder disorder. However, he reported that his service-connected disability was productive of chronic right shoulder pain, which he rated as an 8 on a scale of 1 to 10. The Veteran also complained of frequent painful flare-ups, which occurred in response to certain activities, such as sleeping, overhead lifting, and walking for prolonged periods. Additionally, he reported that his right shoulder pain limited his ability to perform personal grooming and household chores and also interfered with work as a tree farmer. The Veteran denied any use of orthotic devices to treat his right shoulder symptoms, but acknowledged that he relied on daily doses of over-the-counter medication and intermittent physical therapy and cortisone injections to manage those symptoms. He also stated that he had previously undergone a September 2009 operation to remove a ganglion cyst from his right shoulder, but denied any other surgical intervention for that service-connected disability. On physical examination, the Veteran exhibited tenderness to palpation over the acromioclavicular and sternoclavicular joints, biceps tendon, greater and lesser tuberosities, and parascapular area. On range of motion testing, he displayed forward flexion and abduction to 70 degrees, actively, and 95 degrees, passively, with passive internal rotation to 35 degrees and passive external rotation to 45 degrees. The VA examiner noted that, while the Veteran's ranges of motion were unchanged after three repetitions, he demonstrated "significant irritability" on repetitive motion. That examiner also noted that the Veteran's overall ranges of motion were limited by pain and that it was "conceivable that pain could [further] limit function as described, particularly after utilizing the shoulder all day." 38 C.F.R. §§ 4.40, 4.45 (2010); DeLuca v. Brown, 8 Vet. App. 202 (1995). However, the examiner added that it was "not conceivable to interpret any of this in terms of additional limitation of motion" as "these matters c[ould] not be determined with any degree of medical certainty." In addition to the aforementioned orthopedic symptoms, the October 2010 VA examination yielded X-rays findings of severe right shoulder glenohumeral arthritis and rotator cuff tear arthropathy. Additional clinical findings included trapezial atrophy and diminished muscle strength, manifested by positive Speed's, Yergason's, and cross shoulder adduction tests, and "significantly irritable" Neer and Hawkins impingement signs. As the Veteran's representative observed in a March 2011 statement, the October 2010 VA examiner declined to make specific findings that were requested in the Board's April 2010 remand. Specifically, the October 2010 examiner failed to comment on whether the Veteran's service-connected right shoulder disorder impacted both Muscle Groups VI and VI, as suggested in a prior December 2003 examination, and whether any of the symptoms of each affected muscle group overlapped. The October 2010 examiner was also unresponsive to the Board's request for findings regarding whether the level of disability associated with each affected muscle group could be considered moderate, moderately severe, or severe. Nor did that examiner provide a discussion as to the presence or absence of cardinal signs and symptoms of muscle disability, including loss of power, weakness, lowered threshold of fatigue, fatigue pain, impairment of coordination, and uncertainty of movement. In addition to omitting the aforementioned findings, the October 2010 VA examiner failed to specify whether the surgical incision scar, observed across the Veteran's superior and anterior deltopectoral regions, was unstable or superficial in nature, or productive of any limitation of motion. Also, while that examiner noted that sensory and pulse testing were negative for any radial, ulnar, and medial nerve abnormalities, the examiner did not indicate that any advanced neurological tests, such as electromyography (EMG) or nerve conduction velocity studies, had been administered. VA medical records dated after the October 2010 examination show that, in March 2011, the Veteran complained of worsening right shoulder pain and requested a referral for additional cortisone injections at the VA orthopedic clinic in Memphis, Tennessee. The Veteran's VA treating provider noted that he would provide the requested referral. However, no subsequent VA medical records have been associated with the claims folder. As it therefore appears that there may be additional VA medical records that are pertinent to the issue on appeal, those records should be obtained on remand. 38 C.F.R. § 3.159(c)(2) (2010); Bell v. Derwinski, 2 Vet. App. 611 (1992). A remand is also warranted to afford the Veteran a new VA examination with respect to his claim. VA's duty to assist includes a duty to provide a medical examination or obtain a medical opinion where it is deemed necessary to make a decision on the claim. 38 U.S.C.A. § 5103A(d) (West 2002); 38 C.F.R. § 3.159(c)(4) (2010); Robinette v. Brown, 8 Vet. App. 69 (1995). When available evidence is too old for adequate rating of the Veteran's current condition, VA's duty to assist includes providing a new examination. Weggenmann v. Brown, 5 Vet. App. 281 (1993). Although the Veteran's October 2010 VA examination is not overly stale, the Board finds that the subsequent clinical evidence tends to show that his service-connected right shoulder symptoms may have worsened since that examination. Additionally, the October 2010 VA examiner did not fully comply with the Board's April 2010 remand instructions or reconcile the findings with other pertinent evidence of record with respect to the degree of muscle impairment associated with the Veteran's right shoulder disorder. A remand by the Board confers on the Veteran, as a matter of law, the right to compliance with the terms of that remand. Stegall v. West, 11 Vet. App. 268 (1998). Accordingly, the Board finds that, on remand, the Veteran should be afforded a VA examination that includes specific findings regarding Muscle Groups V and VI, the presence or absence of cardinal signs and symptoms of muscle disability, and whether the overall impairment of each affected muscle group is moderate, moderately severe, or severe, as contemplated by the VA rating schedule. 38 C.F.R. § 4.73, Diagnostic Codes 5305, 5306 (2010). Next, in light of the evidence of scarring associated with the Veteran's right shoulder disorder, the Board finds that the new VA examination should include findings that are responsive to the criteria for rating scars that were in effect both prior to and after August 30, 2002. 67 Fed. Reg. 49,590-96 (July 31, 2002); 67 Fed. Reg. 58,448 (September 16, 2002). The Board acknowledges that, during the pendency of this appeal, the criteria for rating scars were again revised, effective October 23, 2008. However, those amendments only apply to applications for benefits received on or after October 23, 2008. 73 Fed. Reg. 54, 708 (Sept. 23, 2008). While a Veteran can request a review under these new clarified criteria, the Veteran in this case has not specifically requested such a review. Moreover, the Board finds that the new VA examination should also include EMG and nerve conduction velocity studies, which were not performed at the time of the October 2010 VA examination. Furthermore, that new VA examination should expressly consider the Veteran's right shoulder disability in the context of its history and, thus, include a review of all pertinent evidence in his claims folder. 38 C.F.R. § 4.1 (2010). Additionally, while the October 2010 VA examiner noted that prolonged use of the Veteran's right shoulder could conceivably result in additional functional impairment, that examiner declined to specify the degree of such impairment. Consequently, the Board considers that examiner's finding to be inherently speculative in nature and, thus, of limited probative value. Tirpak v. Derwinski, 2 Vet. App. 609 (1992); Swann v. Brown, 5 Vet. App. 229 (1993); Bostain v. West, 11 Vet. App. 124 (1998); Obert v. Brown, 5 Vet. App. 30 (1993). Accordingly, the Board finds that, on remand, the Veteran should be afforded a VA examination that specifically describes any pain, weakened movement, excess fatigability, or incoordination resulting from the Veteran's right shoulder disorder and specifies any such functional impairment in terms of the degree of additional range of motion loss. 38 C.F.R. §§ 4.40, 4.45 (2010); DeLuca v. Brown, 8 Vet. App. 202 (1995). Finally, the Board finds that the Veteran's service-connected disability warrants consideration of an extraschedular rating. Under the applicable VA regulations, a case may be submitted to the Under Secretary for Benefits of the Director of Compensation and Pension Service for the potential authorization of an extraschedular evaluation based upon a finding that the service-connected disorder presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization that would render impractical the application of the regular schedular standards. 38 C.F.R. § 3.321(b)(1) (2010). There must be sufficient evidence showing that a Veteran's disability picture is not contemplated by the rating schedule in order for the case to be referred for a determination of whether the assignment of an extraschedular rating is warranted. Thun v. Peake, 22 Vet. App. 111 (2008). In light of the aforementioned clinical and lay evidence, it appears that the schedular criteria may not be adequate with respect to the Veteran's right shoulder disorder. Accordingly, on remand, the Veteran should be afforded the opportunity to demonstrate exceptional factors such as marked interference with employment or frequent periods of hospitalization as to render impracticable the application of the regular schedular standards. Fanning v. Brown, 4 Vet. App. 225 (1993). The RO should then consider whether there are any factors that would warrant referral to the Under Secretary for Benefits or the Director, VA Compensation and Pension Service for assignment of extraschedular rating under the provisions of 38 C.F.R. § 3.321 (2010). Accordingly, the case is REMANDED for the following actions: This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2010). Expedited handling is requested. 1. Obtain and associate with the claims folder all medical records from the VA Medical Center and the VA Orthopedic Clinic in Memphis, Tennessee, dated from March 2011 to the present. 2. After the above development has been completed, schedule the Veteran for a VA examination for the purpose of ascertaining the current nature and severity of his service-connected right shoulder disability. The claims folder should be reviewed by the examiner, and the examination report should note that review. The examiner should provide a rationale for any opinion expressed and reconcile that opinion with all pertinent evidence of record, including the October 2010 VA examination report and the subsequent VA medical records showing treatment for right shoulder problems. Specifically, the VA examiner's opinion should address the following: a) Set forth all current complaints, findings, and diagnoses pertaining to the Veteran's right shoulder disability. b) Provide range of motion and repetitive range of motion findings of the right shoulder, expressed in degrees. c) Describe any pain, weakened movement, excess fatigability, or incoordination resulting from the Veteran's right shoulder disability. 38 C.F.R. §§ 4.40, 4.45 (2010); DeLuca v. Brown, 8 Vet. App. 202 (1995). d) State whether the Veteran's right shoulder disability is manifested by any painful flare-ups, and, if so, the frequency and duration of such flare-ups. e) Specify whether any flare-ups of the Veteran's right shoulder disability are accompanied by any additional limitation of motion. Any determination should be portrayed in terms of the degree of additional range of motion loss. f) Specify whether the Veteran's service-connected right shoulder disability is manifested by injury to Muscle Group VI and, if so, whether there is overlapping Muscle Group V and VI symptomatology. Reconcile all findings with the December 2003 examination report. g) Identify whether any additional muscle groups are affected by the Veteran's service-connected right shoulder disability, to include whether there is more than one muscle group involved in the same anatomical region. 38 C.F.R. § 4.55(e) (2010). h) State whether the overall degree of injury to each affected muscle group would be considered moderate, moderately severe, or severe. In so doing, the examiner should specifically state whether or not each of the cardinal signs and symptoms of a muscle disability is shown, including loss of power, weakness, lowered threshold of fatigue, fatigue pain, impairment of coordination, and uncertainty of movement. i) State whether the Veteran's service-connected right shoulder disability is manifested by any neurological impairment, and, if so, which nerves are involved, and the extent of the impairment. The diagnostic criteria applicable to nerve impairment distinguish the types of paralysis as complete or incomplete. Under incomplete paralysis, the degree of paralysis is further divided into the categories of mild, moderate, and severe. With those categories in mind, classify any right shoulder neurological pathology, distinguishing among the categories and using the results of all pertinent testing of record. Conduct all necessary sensory, reflex, and motor testing, to specifically include EMG or nerve conduction velocity studies. Explain, in terms meaningful to a layperson, the base line results of those tests versus the results obtained for the Veteran. Explain the meaning of any abnormal results obtained. j) Note whether the Veteran's right shoulder disability is productive of scarring and specify the size of any scar and whether it causes limitation of motion, or is unstable or superficial. k) Discuss whether the Veteran's right shoulder disability is productive of any additional functional impairment. l) State what impact, if any, the Veteran's right shoulder disability has on his activities of daily living, including his ability to obtain and maintain employment. 38 C.F.R. § 4.10 (2010). Specify whether that service-connected disability is productive of marked interference with employment or frequent periods of hospitalization. 3. Then, readjudicate the claim for increased rating for a right shoulder disorder, considering all applicable rating criteria, including the diagnostic codes pertaining to arthritis, limitation of motion, muscle disabilities, peripheral nerve disorders, and scars. 38 C.F.R. §§ 4.71a, 4.73, 4.118, 4.124a, Diagnostic Codes 5010-5201, 5305, 5306, 7801-7805 (in effect both prior to and after August 30, 2002, and prior to October 23, 2008), 8510-8530. Also consider whether there are any factors that would warrant referral to the Under Secretary for Benefits or the Director, VA Compensation and Pension Service for assignment of extraschedular rating under the provisions of 38 C.F.R. § 3.321. If any aspect of the decision remains adverse to the Veteran, issue a supplemental statement of the case that notifies the Veteran of the applicable rating criteria. Allow the appropriate time for response. Then, return the case to the Board. The appellant has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. 38 U.S.C.A. §§ 5109B, 7112 (2010). ______________________________________________ Harvey P. Roberts Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2010).