BVA9501191 DOCKET NO. 93-07 419 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to an increased rating for chronic bicipital tendinitis of the right shoulder, currently evaluated 10 percent disabling. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD William Harryman, Counsel INTRODUCTION The veteran had active service from January 1952 to December 1971. This case came before the Board of Veterans’ Appeals (Board) on appeal from a rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida, which denied an increase to more than 10 percent disabling for the veteran’s right shoulder disability. CONTENTIONS OF APPELLANT ON APPEAL It is contended by and on behalf of the veteran that he has periodic swelling and pain on any right shoulder motion, both of which have increased in severity, and which, therefore, warrant an evaluation greater than the currently assigned 10 percent rating. He maintains that a rating of 40 percent is warranted DECISION OF THE BOARD The Board, in accordance with the provisions of 38 U.S.C.A. § 7104 (West 1991), 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 an increased rating to 20 percent for his right shoulder disability is warranted. FINDING OF FACT Chronic bicipital tendinitis of the right shoulder is manifested by painful motion and periodic swelling and by limitation of forward flexion to 170 degrees, of abduction to 165 degrees, of internal rotation to 65 degrees, and of external rotation to 60 degrees; there is X-ray evidence of soft tissue calcification consistent with calcific tendinitis and slight to moderate degenerative disease of the glenohumeral joint. CONCLUSION OF LAW Chronic bicipital tendinitis of the right shoulder is 20 percent disabling and no more according to the applicable criteria. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §§ 3.321, 4.1, 4.2, 4.7, 4.10, 4,20, 4.40, 4.45, 4.59, 4.71, Codes 5099-5024, 5003, 5201 (1993). REASONS AND BASES FOR FINDINGS AND CONCLUSION At the outset, the Board finds that the veteran has met his burden of submitting evidence sufficient to justify a belief by a fair and impartial individual that his claim is well grounded; that is, the claim is not implausible. See Murphy v. Derwinski, 1 Vet.App. 78, 81 (1990). Additionally, there is no indication that there are additional, pertinent records which have not been obtained. Accordingly, there is no further duty to assist the veteran in developing the claim, as mandated by 38 U.S.C.A. § 5107(a). Factual background The service medical records reflect that the veteran was seen on numerous occasions during the last year of service for complaints of pain in his right shoulder. On his separation examination, he was noted to have chronic, mild right shoulder bicipital tendinitis. On his claim form in 1979, the veteran indicated that he had been treated for arm and shoulder problems in 1974- 75; no records of that treatment are of record, however. Service connection for chronic, mild bicipital tendinitis of the right shoulder was granted by a rating decision in 1979, and a noncompensable evaluation was assigned. Although the veteran has indicated that he received service department treatment for his right shoulder from 1981, records from that period are apparently not available. However, service department medical records dated from August 1986 to March 1992 reflect no complaints or abnormal clinical findings relative to his right shoulder. The veteran’s first VA compensation examination was conducted in March 1992. At that time, the veteran stated that he had received medication and physical therapy for his shoulder while in service. He indicated that the pain had periodically recurred since leaving service, with development of pain on elevating his arms. He reported that, in 1987 or 1988, he had received physical therapy and heat therapy at a service department facility, and that he had lost about three weeks of work at that time. His present complaints were of pain in both shoulders with difficulty elevating his arms above his head. The pain was more or less constant. The veteran indicated that he could take only Tylenol for the pain, since he had a stomach disorder. On examination, there was tenderness over the greater tuberosity of both shoulders. No deformity or swelling of the joints was noted. He was able to forward flex the right shoulder to 170 degrees and to abduct the joint to 165 degrees. Internal rotation was possible to 65 degrees, and external rotation was accomplished to 60 degrees. X-rays of the right shoulder revealed a small soft tissue calcification which was noted to be consistent with a diagnosis of calcific tendinitis. Also noted was slight to moderate degenerative disease of the glenohumeral joint. No other abnormalities were reported. The examiner’s impression was "[h]istory compatible with peritonitis [possibly a reference to peritendinitis] of the right shoulder. Rule out arthritic changes." A personal hearing was conducted at the RO in November 1992. The veteran testified that he had no lifting power, and that the higher he tried to lift anything, the more it hurt. He also stated that he woke up in pain every day. He reported that he took salicylate medication for the pain. The veteran testified that the pain had "very much" increased in severity and that he had considerable loss of motion in the shoulder. He noted that he had last been seen in the service department outpatient clinic in August 1992, but that the record of that visit was apparently lost in the transfer of his records to another service department facility. He indicated that he had requested more pain medication for his shoulder during that visit. The veteran reported that his pain and inability to lift anything above his head had had an adverse effect on his work as a Department of Corrections officer. He gave testimony to the effect that motion of his right arm was limited at shoulder level. Service medical records indicate that the veteran is right- handed. Analysis In general, disability evaluations are assigned by applying a schedule of ratings which represent, as far as can practicably be determined, the average impairment of earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Such evaluations involve consideration of the level of impairment of the veteran’s ability to engage in ordinary activities, to include employment, as well as an assessment of the effect of pain on those activities. 38 C.F.R. §§ 4.10, 4.40, 4.45, 4.59. Where there is a question as to which of two evaluations should be applied, 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. Although regulations require that, in evaluating a given disability, that disability be viewed in relation to its whole recorded history, 38 C.F.R. §§ 4.1, 4.2, the present level of disability is of primary concern. Francisco v. Brown, No. 93-76, slip op. at 5 (U.S. Vet. App. Sept. 27, 1994). In evaluating the veteran’s claim, all regulations which are potentially applicable through assertions and issues raised in the record have been considered, as required by Schafrath v. Derwinski, 1 Vet.App. 589 (1991). The veteran’s tendinitis is rated analogously to tenosynovitis, 38 C.F.R. § 4.20 (1993), which is rated on limitation of motion of the affected part, as degenerative arthritis. Codes 5003, 5024. Under Code 5003, a 10 percent rating will be assigned for a major joint affected by limitation of motion due to degenerative arthritis, where the limitation of motion is noncompensable under the appropriate diagnostic code. Limitation of motion of the major arm to shoulder level warrants a 20 percent evaluation; this is the minimum compensable rating under this diagnostic code. For a 30 percent rating, motion must be limited to midway between the side and shoulder level. Assignment of a 40 percent rating, the rating sought by the veteran, requires that motion of the major arm be limited to 25 degrees from the side. Code 5201. The Board would point out that the veteran’s hearing testimony in most respects does not conflict to any great degree with the 1992 VA examination report. The veteran reported periodic swelling of the shoulder which was not noted by the VA examiner. The degree of swelling, however, is not specifically one of the criteria used for rating a shoulder disability, although it is pertinent in evaluating limitation of motion. See 38 C.F.R. Part 4, Code 5003. The veteran's account of pain on elevation is consistent with the history of recurrent pain related to the examiner and consistent with the findings of tenderness and slight to moderate degenerative joint disease. However, the veteran's testimony to the effect that he has loss of motion of the right arm above shoulder level is inconsistent with, and less probative than, the specific range of motion findings demonstrated on objective examination. The report of the 1992 VA compensation examination shows that, although the veteran reported pain on elevation of his arm above his shoulder, he could reach well above shoulder level in both forward flexion and abduction. See 38 C.F.R. § 4.71, Plate I. Therefore, under the provisions of Code 5201, the criteria for a compensable evaluation have not been met, and the criteria for the 40 percent evaluation likewise are not met. Accordingly, an increased rating for the veteran’s right shoulder disability cannot be granted on this basis. The provisions of 38 C.F.R. § 4.59, however, state that painful joints due to healed injury are entitled to at least the minimum compensable rating for the joint. The evidence is clear that the veteran does have painful motion of his right shoulder. Although the record does not demonstrate specific injury to the right shoulder, the painful motion and joint pathology noted in the regulation are present in this case. Thus, the Board finds that the regulation's intended purpose should be considered in this case, along with the provisions of 38 C.F.R. §§ 3.321(b)(1), 4.7, concerning the assignment of extraschedular evaluations and the higher of two evaluations. Since a 20 percent evaluation is the minimum compensable rating based on limitation of motion due to a major shoulder joint, the Board finds that the record supports assignment of a 20 percent rating for the right shoulder disability on an extraschedular basis, using the regulatory principles outlined in 38 C.F.R. §§ 3.321, 4.7 as guidance. However, the clinical evidence in this case shows only mildly limited range of motion of the right shoulder joint, when compared to the normal ranges described at 38 C.F.R. § 4.71, Plate I, in addition to painful motion and tenderness, but without other documented functional impairment. Therefore, a rating in excess of 20 percent is not warranted, under either the schedular or extraschedular criteria. In determining whether a claimed benefit is warranted, VA must determine 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. 38 U.S.C.A. § 5107(a); Gilbert v. Derwinski, 1 Vet.App. 49 (1990). In this case, the Board finds that the record is in equipoise, with the objective findings of substantial ranges of right arm motion effectively counterbalanced by the veteran's complaints of painful motion and swelling and the resulting interference with his employment duties. Thus, the Board finds that the evidence supports an increase to 20 percent, but no more, in the rating for his right shoulder disability. ORDER An increased rating to 20 percent for chronic bicipital tendinitis of the right shoulder is granted, subject to the law and regulations governing the award of monetary benefits. D. C. SPICKLER Member, Board of Veterans’ Appeals (CONTINUED ON NEXT PAGE) The Board of Veterans’ Appeals Administrative Procedures Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, ___ (1994), 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), 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 (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.