Citation Nr: 1325227 Decision Date: 08/08/13 Archive Date: 08/13/13 DOCKET NO. 05-23 768 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to an evaluation in excess of 10 percent for myofascial pain of the right shoulder girdle muscles. REPRESENTATION Appellant represented by: Texas Veterans Commission WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD Kristi L. Gunn, Counsel INTRODUCTION The Veteran served on active duty from August 1978 to November 1992. This case comes before the Board of Veterans' Appeals (Board) on appeal from an October 2004 rating decision of the Waco, Texas, Department of Veterans Affairs (VA) Regional Office (RO), which continued the 10 percent evaluation for the Veteran's service-connected myofascial pain of the right shoulder girdle muscles. In October 2009, the Veteran testified at a travel board hearing before the undersigned Acting Veterans Law Judge. A copy of the transcript is of record. A review of the Virtual VA paperless claims processing system does not reveal any additional documents pertinent to the present appeal. In April 2011, July 2012, and May 2013, the Board remanded the claim for additional development and adjudicative action. The case has been returned to the Board for further appellate review. As will be explained below, the Board has recharacterized the issue as reflected on the title page. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required. REMAND Unfortunately, a remand is required in this case. Although the Board sincerely regrets the additional delay, it is necessary to ensure that there is a complete record upon which to decide the Veteran's claim so that he is afforded every possible consideration. In an April 1993 rating decision, the RO granted service connection for bursitis of the right shoulder. A 10 percent disability evaluation under Diagnostic Code (DC) 5019 was assigned, effective November 14, 1992. The 10 percent disability evaluation was continued in September 1995, June 1997, October 1998, and June 1999 rating decisions. In June 2004, the Veteran filed an informal claim for an increased rating for his right shoulder disability. The RO again continued the current 10 percent evaluation under DC 5019 in an October 2004 rating decision. The Veteran expressed disagreement with the current 10 percent evaluation and submitted a notice of disagreement (NOD) in October 2004. Prior to the issuance of the statement of the case (SOC), the RO reassigned the 10 percent disability evaluation under DC 5021, and recharacterized the disability to myofascial pain of the right shoulder girdle muscles, formerly evaluated as bursitis, right shoulder, as reflected in a May 2005 Decision Review Officer (DRO) decision. Shortly thereafter, the RO issued a SOC in May 2005, continuing the 10 percent disability evaluation for the service-connected myofascial pain of the right shoulder girdle muscles, formerly evaluated as bursitis, right shoulder. In July 2005, the Veteran submitted his substantive appeal for the increased rating claim. Thereafter, the RO continued the 10 percent disability evaluation in April 2008 and July 2008 Supplemental Statements of the Case (SSOCs). After receipt of additional VA outpatient treatment records, the RO issued a SSOC in April 2009. Listed under "[i]ssue" was "[e]valuation of myofascial pain of the right shoulder girdle muscles (formerly evaluated as bursitis, right shoulder) currently 20 percent disabling." However, under the reasons and bases of the SSOC, the RO continued the 10 percent disability evaluation for the service-connected right shoulder disability. In April 2011, the Board characterized the issue as entitlement to an evaluation in excess of 20 percent for myofascial pain of the right shoulder girdle muscles. This recharacterization of the issue continued in SSOCs dated December 2012 and June 2013, as well as in Board remands dated July 2012 and May 2013. Based upon the review of the record, the Board finds an additional remand is warranted to clarify the proper rating for the Veteran's current myofascial pain of the right shoulder girdle muscles, formerly evaluated as bursitis, right shoulder. It appears that the RO may have mistakenly identified the Veteran's service-connected right shoulder disability being 20 percent disabling in the April 2009 SSOC when it had continually been rated as 10 percent disabling. Furthermore, there is no award letter associated with the claims file or the Veteran's virtual VA file indicating that an increased rating to 20 percent disabling had been granted. Additionally, the Board notes that the medical evidence of record suggests that a 20 percent rating may be warranted for the Veteran's service-connected right shoulder disability at some time during the pendency of the appeal. However, in order to resolve any due process concerns, the RO/AMC should clarify the Veteran's proper rating for his service-connected myofascial pain of the right shoulder girdle muscles and readjudicate the claim with the correct rating. Finally, in a May 2013 statement, the Veteran indicated that his service-connected right shoulder disability had worsened and is "worse now than ever." The Board acknowledges that the Veteran was afforded an examination assessing his right shoulder symptomatology by VA in May 2013. However, given the complicated nature of the Veteran's overall claim concerning his disability rating, the Board finds that another VA examination is necessary to fully assess the current manifestations of the service-connected right shoulder disability. Accordingly, the case is REMANDED for the following action: 1. Schedule a VA orthopedic evaluation of the Veteran's right shoulder. The VA examination must be scheduled with a different physician other than the September 2012 and May 2013 VA examiner. The claims file should be made available to and reviewed by the examiner in connection with the examination. All clinical and special test findings should be clearly reported, and findings relevant to the rating criteria should be noted. The examination should include range of motion studies. With regard to range of motion testing, the examiner should report at what point (in degrees) that pain is elicited as well as whether there is any other functional loss due to weakened movement, excess fatigability or incoordination, etc. The examiner should specifically state if there is limitation of motion of the arm at shoulder level; midway between side and shoulder level; or to 25 degrees from the side. All functional losses due to pain, etc., should be equated to additional loss of motion (beyond what is shown clinically). The examiner should also comment on any impairment of the clavicle or scapula, including dislocation, nonunion (with or without loose movement), or malunion. 2. After clarifying the proper rating for the Veteran's service-connected right shoulder girdle muscles, formerly evaluated as bursitis, right shoulder, readjudicate the issue on appeal. If the benefit sought on appeal remains denied, in whole or in part, the Veteran and his representative should be provided with a Supplemental Statement of the Case (SSOC) and be afforded reasonable opportunity to respond. The case should then be returned to the Board for further appellate review, if otherwise in order. The appellant has the right to submit additional evidence and argument on the matter or matters 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 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 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). _________________________________________________ KELLI A. KORDICH Acting 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) (2012).