Citation Nr: 0001997 Decision Date: 01/27/00 Archive Date: 02/02/00 DOCKET NO. 94-26 050 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Los Angeles, California THE ISSUE Entitlement to an evaluation in excess of zero percent for bursitis of the right shoulder. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Siobhan Brogdon, Counsel INTRODUCTION The veteran served on active duty from November 1988 until March 1991. This appeal comes before the Department of Veterans Affairs (VA) Board of Veterans' Appeals (Board) from a rating decision of July 1991 from the Los Angeles, California Regional Office (RO). That determination granted service connection for bursitis of the right shoulder, and assigned a noncompensable evaluation, effective from March 11, 1991. This case was remanded by the Board in July 1996 and is once again before the signatory Member for appropriate disposition. FINDINGS OF FACT 1. Prior to August 6, 1992, the service-connected right shoulder bursitis was manifested by pain, including on use, numbness, tingling and weakness, productive of functional impairment comparable to no more than limitation of motion of the arm at shoulder level. 2. Since August 6, 1992, the service-connected right shoulder bursitis has been manifested by subjective complaints of pain productive of no objectively demonstrated functional impairment. CONCLUSIONS OF LAW 1. The criteria for a 20 percent disability rating for right shoulder bursitis between March 11, 1991 and April 2, 1992, and between June 1, 1992 and August 5, 1992 have been met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §§ 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5019, 5201 (1999); Fenderson v. West, 12 Vet. App. 119, 126 (1999); DeLuca v. Brown, 8 Vet. App. 202, 206 (1995). 2. The criteria for a compensable rating for right shoulder bursitis, from August 6, 1992, have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §§ 3.655, 4.71a, Diagnostic Codes 5019, 5201 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS As noted above, the July 1991 rating decision appealed was the initial rating decision granting service connection for right shoulder bursitis. In instances in which the veteran disagrees with the initial rating, staged ratings are to be considered in order to reflect the changing level of severity of a disability during this period. Fenderson v. West, 12 Vet. App. 119 (1999). Under the applicable laws and regulations, disability evaluations are determined by applying the criteria set forth in the VA's Schedule for Rating Disabilities (Rating Schedule), found in 38 C.F.R. Part 4. The Board attempts to determine the extent to which the veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, and the assigned rating is based, as far as practicable, upon the average impairment of earning capacity in civil occupations. 38 U.S.C.A. § 1155; 38 C.F.R. §§ 4.1, 4.10 (1999). In evaluating disability ratings of the musculoskeletal system, functional loss must be considered. "The functional loss...may be due to pain, supported by adequate pathology and evidenced by the visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion and a part which becomes painful on use must be regarded as seriously disabled." 38 C.F.R. § 4.40 (1999). If the disability involves a joint, consideration must be given to whether there is less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement, swelling, deformity or atrophy of disuse. 38 C.F.R. § 4.45 (1999). In DeLuca v. Brown, 8 Vet. App. 202, 206 (1995), the United States Court of Appeals for Veterans Claims (Court) held that a rating determination under a diagnostic code which provides for a rating solely on the basis of loss of range of motion, should be portrayed "in terms of the degree of additional range-of-motion loss due to pain on use or during flare-ups." Bursitis is rated, as degenerative arthritis, on the basis of limitation of motion of the affected parts. 38 C.F.R. § 4.171a, Diagnostic Code 5019. 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 or joints involved. When the limitation of motion of the specific joint or joints involved is noncompensable under the appropriate diagnostic codes, an evaluation of 10 percent is applied for each major joint or group of minor joints affected by limitation of motion. These 10 percent evaluations are combined, not added, under diagnostic code 5003. 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, Diagnostic Code 5003 (1999). A 20 percent evaluation is warranted for limitation of motion of the major arm when motion is possible to the shoulder level. A 30 percent evaluation requires that motion be limited to midway between the side and shoulder level. 38 C.F.R. § 4.171a, Diagnostic Code 5201. FACTS As noted above, service connection has been established for the disability at issue effective from March 11, 1991, the day following the veteran's discharge from service. Upon initial post service VA examination in May 1991, the appellant complained of right shoulder pain. Motion of the right arm included abduction, anterior flexion, external rotation and internal rotation to 180, 180, 45 and 90 degrees, respectively. Medical reports dated in March 1992 were received from R. D. Ferkel, M.D., who indicated that the appellant reported increased right shoulder symptomatology including intermittently severe pain aggravated by overhand motion and playing sports. It was noted that he had trouble sleeping on this right side and was taking anti-inflammatories for swelling. Some numbness and tingling were reported. Physical examination disclosed slight-to-minimal atrophy of the right shoulder compared to the left. Impingement tests I and II were positive, and supraspinatus and drop arm tests revealed pain and weakness. Forward flexion and abduction were to 180 degrees, each. External and internal rotation were each 80 degrees. Strength was 4+/5 in all planes. Neurovascular status was intact and X-rays disclosed no abnormal findings. Assessments of right impingement of the shoulder, and rule out a right rotator cuff tear, were rendered. The veteran underwent multiple operative procedures of the right shoulder in April 1992. The record reflects that he was granted a temporary total (100 percent) convalescence evaluation under the provisions of 38 C.F.R. § 4.30 (paragraph 30) from April 3, 1992 to May 31, 1992. Private clinical records show follow-up evaluation was performed in April 1992, after surgery, when the veteran had general range of motion without pain. It was noted that Codman exercises were performed without pain and that neurovascular status was intact. The surgical wounds were observed to be well healed. In June 1992, it was reported that the impingement tests were negative and strength was 4/5. There was no evidence of instability. It was felt that he needed a lot more work with rehabilitation but that he had not done much physical therapy. It was determined that the appellant was temporarily totally disabled for his job with UPS. On August 6, 1992, it was found that the veteran had fully recovered, had no pain or problems, had full range of motion with normal strength and no evidence of instability, and that he could return to work without restrictions. The veteran's treating physician, Dr. Ferkel, wrote in November 1996 that he had not seen the appellant after he was released to full duty effective August 6, 1992. It was stated that the veteran was fully recovered and was not disabled the last time he had seen him. Dr. Ferkel submitted an identical letter in January 1999 when requested by the RO to provide a more current clinical update on the appellant's right shoulder status. Pursuant to a Board remand of July 1996, the veteran was scheduled for a VA orthopedic examination in January 1997 but failed to report. As evidenced by a Report of Contact dated in February 1997, he later called to say that he had been ill. It was noted at that time that he requested that his examination be rescheduled. The record reflects that the appellant was given opportunities to report for VA orthopedic examinations in May 1997 and August 1997. However, he did not report for any of those scheduled VA examinations and no explanation was given for his failure to appear. There is no indication in the record that he did not receive notification of the VA examinations or that correspondence sent to him was returned. The veteran most recently declined to appear for VA a examination scheduled in March 1999 despite being specifically advised as to the importance of reporting for VA examinations and the consequences in letters to him dated in June and July 1998. In this regard, the Board finds that the duty to assist the appellant has been fully complied with to the extent feasible. However, the duty to assist is not a one-way street. See Wamhoff v. Brown, 8 Vet. App. 517, 522 (1996); Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). See also Olson v. Principi, 3 Vet. App. 480, 483 (1992). The veteran must take some responsibility in helping to develop his claim. When a claimant fails to report for an examination scheduled in conjunction with an original compensation claim, the claim shall be rated based on the evidence of record. 38 C.F.R. § 3.655(b) (1999). Analysis Prior to August 6, 1992 The Board observes that upon review of the clinical record in light of Fenderson, it is found that the veteran was shown to have a 50 percent reduction in external rotation, and also complained of right shoulder pain upon VA examination in May 1991. Evidence of a symptomatic right shoulder, including numbness, tingling and pain resulting in activity restrictions was also documented in private clinical records dated in March 1992, prior to surgery on April 3, 1992. It is thus found that right shoulder symptoms were indicative of functional loss comparable to no more than limitation of motion of the arm at shoulder level, occasioned by pain, from the date of service discharge. Consequently, that Board finds that a 20 percent disability evaluation is warranted for the disability at issue from March 11, 1991 until April 2, 1992, with consideration of DeLuca. As noted previously, after the appellant underwent surgery in April 1992, he was awarded a temporary total convalescence rating for the period from April 3, 1992 to May 31, 1992. Although the record reflects that he was found to have full range of motion after his operation, the right shoulder continued to be symptomatic to some extent, as strength was noted to be decreased in June 1992, and that he needed additional therapy. It is demonstrated that it was not until August 6, 1992 that the veteran was determined to be fully recovered. Under the circumstances the Board is of the opinion that a 20 percent evaluation was also warranted between the period of June 1, 1992 and August 5, 1992. Therefore, resolving doubt in favor of the veteran, the Board concludes that the disability picture between March 11 1991 and April 2, 1992 and between June 1, 1992 and August 5, 1992 more nearly approximates the criteria for a 20 percent "staged" rating under Diagnostic Code 5019 for the dates cited above. 38 U.S.C.A. §§ 1155, 5107(a); 38 C.F.R. §§ 3.321, 38 C.F.R. § 4.71a, Diagnostic Code 5019 (1998); Fenderson. From August 6, 1992 The Board observes that although the veteran now maintains that the symptoms associated with his service-connected right shoulder disorder warrant a compensable evaluation, the preponderance of the evidence is against a finding that there has been clinical demonstration that the required criteria have been met. His treating physician, Dr. Ferkel, wrote in November 1996 and January 1999 that he had not seen the appellant since August 1992; that he was fully recovered at that time and had been released to full duty without restrictions. Although the veteran states that he now has right shoulder pain, there is no clinical evidence of record which corroborates his assertions of compensable disability because he failed to comply with the RO's requests to be examined on multiple occasions between 1997 and 1999. Consequently, there is no contemporaneous clinical evidence which shows any functional loss associated with the right shoulder. Although the appellant's representative has requested that the case be remanded in order to schedule him for another VA examination, the Board points out that he has been afforded a number of opportunities in this respect, and there is no indication in the record that he would appear if given another opportunity. Moreover, the appellant himself is always free to reopen his claim for an increased rating in this regard, and to express his willingness to report for a VA examination. As such, the preponderance of the evidence is against a compensable rating for the service-connected right shoulder disability from August 6, 1992. ORDER A rating of 20 percent between March 11, 1991 and April 2, 1992 and between June 1, 1992 and August 5, 1992 for right shoulder bursitis is granted, subject to controlling regulations governing the payment of monetary awards. An evaluation in excess of zero percent from August 6, 1992 for right shoulder bursitis is denied. U. R. POWELL Member, Board of Veterans' Appeals