Citation Nr: 0003770 Decision Date: 02/14/00 Archive Date: 02/15/00 DOCKET NO. 97-10 348 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to an evaluation in excess of 30 percent for service-connected residuals of a right shoulder injury with limitation of motion. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD P. A. Kultgen, Associate Counsel INTRODUCTION The veteran had active service from June 1974 to January 1976. This matter is before the Board of Veterans' Appeals (Board) on appeal of a May 1996 rating decision from the Waco, Texas, Department of Veterans Affairs (VA) Regional Office (RO), which continued a 20 percent evaluation for service-connected residuals of a right shoulder injury with limitation of motion. By rating decision in January 1997, the RO granted an increased evaluation of 30 percent for the veteran's service-connected right shoulder disability, effective October 5, 1995. FINDING OF FACT The veteran's right shoulder disability is manifested by limitation of motion to shoulder level, with complaints of pain, weakness, and stiffness. CONCLUSION OF LAW The criteria for an evaluation in excess of 30 percent for service-connected residuals of a right shoulder injury with limitation of motion have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §§ 4.40, 4.45, 4.71a, Diagnostic Codes 5201 (1999). REASONS AND BASES FOR FINDING AND CONCLUSION I. Factual Background In September 1981, the veteran filed an initial claim for VA benefits for residuals of a shoulder injury. By rating decision in May 1982, the RO granted service connection for a right shoulder injury with limitation of motion with a 20 percent evaluation, effective from September 2, 1981. In October 1995, the veteran requested that her claim be reopened for consideration of an increased evaluation for service-connected right shoulder disability. A VA outpatient treatment record in September 1994 noted complaints of chronic bilateral shoulder pain since a motor vehicle accident in 1975. The veteran stated that the pain had increased over the previous two weeks. The VA physician reported that active range of motion in the right shoulder was limited by pain, but full passive range of motion was noted. Tenderness over the bicipital tendon was shown. In her notice of disagreement, received in November 1996, the veteran stated that her shoulder pain prevented her from combing her hair and putting clothing on over her head. She reported that her shoulders hurt constantly and she could not take pain pills. A VA examination was conducted in December 1996. The examiner noted that the veteran was right handed. The veteran reported constant pain and stiffness in the right shoulder. The examiner noted that the veteran would not move her right shoulder away from her side actively, and any attempt to move the shoulder passively revealed resistance. The veteran was able to move the shoulder from her a side a few degrees to remove her upper body clothing for the examination. No muscle atrophy of the supraspinatus, infraspinatus, deltoid or pectoralis major muscles was found. The examiner stated that atrophy would be expected in one with ankylosis or severe shoulder injury, but no atrophy was visualized by the examiner. No swelling, discoloration, deformity or local or focalized tenderness was shown, although some non-specific generalized tenderness was noted. The examiner provided an impression of residuals of right shoulder injury with limited range of motion. The examiner stated that range of motion was unratable, as the veteran inhibited her motion. The examiner indicated that the veteran's pain had a moderate effect on the function of her right shoulder. The examiner further stated that he believed that there was a strong psychogenic component to the veteran's pain and inhibited shoulder movement. X-ray examination of the right shoulder was normal. A VA examination was conducted in January 1998. The veteran reported intermittent flare-ups of her shoulder condition during bad weather, with reduced ability to move her shoulder. She stated that, although she could reach above her head, she could not hold the arm in that position. Range of motion testing revealed abduction of 90 degrees, external rotation of 90 degrees, and internal rotation of 60 degrees. The examiner could not define any weakness of the right upper extremity as compared to the left. X-ray examination of the right shoulder was normal. The examiner stated that he doubted there was an increasing problem with the right shoulder, and the examination did not provide specific information that led him to a diagnosis other than "painful shoulder." II. Analysis In general, an allegation of increased disability is sufficient to establish a well-grounded claim seeking an increased rating. Proscelle v. Derwinski, 2 Vet. App. 629, 632 (1992). In the instant case, there is no indication that there are additional records, which have not been obtained and which would be pertinent to the present claims. Thus, no further development is required in order to comply with VA's duty to assist mandated by 38 U.S.C.A. § 5107(a). Disability evaluations are determined by the application of VA's Schedule for Rating Disabilities (Schedule), 38 C.F.R. Part 4 (1999). The percentage ratings contained in the Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and the residual conditions in civil occupations. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1 (1999). In determining the disability evaluation, the VA has a duty to acknowledge and consider all regulations which are potentially applicable based upon the assertions and issues raised in the record and to explain the reasons and bases for its conclusion. Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). Governing regulations include 38 C.F.R. §§ 4.1, 4.2, which require the evaluation of the complete medical history of the veteran's condition. Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise the lower rating will be assigned. 38 C.F.R. § 4.7 (1999). All benefit of the doubt will be resolved in the veteran's favor. 38 C.F.R. § 4.3 (1999). The Board recognizes that the United States Court of Appeals for Veterans Claims (known as the United States Court of Veterans Appeals prior to March 1, 1999) (hereinafter, "the Court"), in DeLuca v. Brown, 8 Vet. App. 202 (1995), held that where evaluation is based on limitation of motion, the question of whether pain and functional loss are additionally disabling must be considered. 38 C.F.R. §§ 4.40, 4.45 (1999). The provisions contemplate inquiry into whether there is crepitation, limitation of motion, weakness, excess fatigability, incoordination and impaired ability to execute skilled movement smoothly, and pain on movement, swelling, deformity, or atrophy of disuse. Instability of station, disturbance of locomotion, and interference with sitting, standing, and weight-bearing are also related considerations. Id. Under the Schedule, limitation of arm motion to the shoulder level warrants a 20 percent evaluation. Limitation of motion midway between the side and shoulder level warrants a 30 percent evaluation for the major arm. Limitation of motion to 25 degrees from the side warrants a 40 percent evaluation for the major arm. 38 C.F.R. § 4.71a, Diagnostic Code 5201. The VA examination in January 1998 showed arm motion to 90 degrees, or shoulder level. Full passive range of motion was noted on outpatient treatment record in September 1994. Active motion was noted to be limited at that time. The only evidence of record of limitation of motion to 25 degrees from the side was the VA examination in December 1996, at which time the examiner indicated that the veteran refused to move her arm at all except for a few degrees of motion in removing her clothing. The examiner stated that muscle atrophy would be expected in one manifesting such severe shoulder limitation, but no muscle atrophy, swelling, discoloration, deformity, or localized tenderness was noted on the veteran's right shoulder. The Board finds that the evidence preponderates against an evaluation in excess of 30 degrees for the veteran's service-connected right shoulder disability, as her motion is not limited to 25 degrees from the side. The Board has considered both the veteran's complaints and the reports of VA examiners, but finds that the evidence preponderates against an evaluation in excess of 30 percent for service-connected right shoulder disability on the basis of functional limitation under DeLuca, 8 Vet. App. 202. The Board notes that the VA examiner in December 1996 noted that the function of the veteran's shoulder was moderately affected by pain. The veteran's complaints of pain, weakness, and stiffness do not create a disability picture analogous to the limitation of motion required for an evaluation in excess of 30 percent. ORDER Entitlement to an evaluation in excess of 30 percent for service-connected residuals of a right shoulder injury with limitation of motion is denied. John E. Ormond, Jr. Member, Board of Veterans' Appeals