Citation Nr: 0007379 Decision Date: 03/20/00 Archive Date: 03/23/00 DOCKET NO. 96-30 958 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Seattle, Washington THE ISSUES 1. Entitlement to an increased rating for right (major) shoulder bursitis, currently evaluated as 10 percent disabling. 2. Entitlement to an increased rating for lumbar strain, currently evaluated as 10 percent disabling. REPRESENTATION Veteran represented by: The American Legion ATTORNEY FOR THE BOARD C. Lawson, Counsel INTRODUCTION The veteran served on active duty from November 1990 to February 1995. The Department of Veterans Affairs (VA) Regional Office (the RO) granted service connection for right shoulder bursitis and lumbar strain in June 1995, and assigned each disability a 10 percent rating, effective from February 1995. The veteran duly appealed the matters of the appropriate level of compensation for each disability to the Board of Veterans' Appeals (the Board). The RO denied service connection for right and left knee disability in June 1995 and advised the veteran of his right to appeal. Those decisions were not appealed. Accordingly, those issues are not before the Board. 38 U.S.C.A. § 7104 (West 1991). FINDINGS OF FACT 1. The veteran has mild pain and discomfort at the extremes of full planar ranges of motion of his right shoulder. There is no X-ray evidence of arthritis. He is able to elevate his right arm beyond the shoulder level. 2. The veteran's service-connected right shoulder disability does not present an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization. 3. The veteran has a full or nearly full range of motion of his lumbar spine with minimal discomfort; muscle spasm on extreme forward bending and unilateral loss of spine motion in a standing position are not present. 4. The veteran's service-connected lumbar spine disability does not present an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization. CONCLUSIONS OF LAW 1. The criteria for a disability rating in excess of 10 percent for right shoulder bursitis have not been met. 38 U.S.C.A. § 1155 (West 1991); 38 C.F.R. §§ 3.321, 4.31, 4.40, 4.45, 4.71, 4.71a, Diagnostic Codes 5003, 5019, 5201 (1999). 2. The criteria for a disability rating in excess of 10 percent for lumbar strain have not been met. 38 U.S.C.A. § 1155 (West 1991); 38 C.F.R. §§ 3.321, 4.71a, Diagnostic Codes 5292, 5295 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Preliminary matters - well groundedness of the claims/duty to assist/standard of proof As an initial matter, the Board notes that the veteran's claims are well grounded within the meaning of 38 U.S.C.A. § 5107(a). When a veteran is awarded service connection for a disability and appeals the RO's rating determination as to the level of compensation assigned, the claim continues to be well grounded as long as the claim remains open and the rating schedule provides for a higher rating. See Shipwash v. Brown, 8 Vet. App. 218, 224 (1995). Once a claim has been determined to be well grounded, VA has a duty to assist the veteran with the development of evidence to support the claim. 38 U.S.C.A. § 5107(a). The veteran's representative has contended that a remand is warranted for a physical examination of the veteran. The Board disagrees, however, for two reasons. First, the evidence of record is adequate to rate the veteran. There are two VA examination reports for the right shoulder that are adequate for rating purposes, as can be seen from a comparison of the information they contain with the rating criteria. With respect the lumbar spine, a February 1997 VA outpatient treatment report concerning his back is adequate for rating purposes. See 38 C.F.R. § 3.326(b). The physician who evaluated the veteran's back in early February 1997 found all normal clinical findings, including those specific to the rating criteria for Diagnostic Codes 5292 and 5295, and 38 C.F.R. §§ 4.40 and 4.45. The veteran has not subsequently reported additional increase in the severity of the back disability or different back symptoms. The Board is aware that the RO scheduled another examination in 1999. Such examination was not required, however. The provisions of 38 C.F.R. § 3.327 indicate that reexaminations are to be required if evidence indicates that there has been a material change in a disability or that the current rating may be incorrect. The Board does not see the facts in this case as fitting these criteria. Moreover, the veteran failed without good cause to report for the scheduled VA examination. See 38 C.F.R. § 3.655(b) (1999) (in original claim situation, rate the claim based on evidence of record if the veteran has failed to appear for a VA examination). There is no evidence of record which indicates that the veteran failed to receive the notice of the scheduled examination, so it can be presumed that the veteran received notice and that VA discharged any and all notice duty it had to him. See Mason v. Brown, 8 Vet. App. 44 (1995); Saylock v. Derwinski, 3 Vet. App. 394 (1992); Ashley v. Derwinski, 2 Vet. App. 306, 309 (1992). If the veteran did not in fact receive the notice, it was because he failed to keep VA abreast of his whereabouts. The record reflects that a November 1999 RO memo reported that, without any success, the RO had tried to find a phone number for the veteran in the two towns where there had been record addresses, and that the American Legion had tried to locate him also. The United States Court of Appeals for veterans claims (the Court) has noted that "it is the burden of the veteran to keep the VA apprised of his whereabouts. If he does not do so, there is no burden on the part of the VA to turn up heaven and earth to find him." Hyson v. Brown, 5 Vet. App. 262, 265 (1993). The Board is satisfied that all relevant facts have been properly developed. Moreover, there is no indication that there are additional records which would aid in its decision. The Board concludes that the record is complete and there is no further duty to assist the veteran in developing his claim under 38 U.S.C.A. § 5107(a). Once the evidence has been assembled, it is the Board's responsibility to evaluate the evidence. See 38 U.S.C.A. § 7104. When there is an approximate balance of evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107(b). In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the United States Court of Veterans Appeals stated that "a veteran need only demonstrate that there is an "approximate balance of positive and negative evidence' in order to prevail." To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. Pertinent law and regulations Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity in civil occupations. 38 U.S.C.A. § 1155; 38 C.F.R. § 3.321(a). The Board is required to adjudicate claims for increased ratings in light of the rating criteria provided by the VA Schedule for Rating Disabilities, 38 C.F.R. Part 4. See Massey v. Brown, 7 Vet. App. 204, 208 (1994). Separate diagnostic codes identify the various disabilities. In DeLuca v. Brown, 8 Vet. App. 202 (1995), the United States Court of Appeals for Veterans Claims held that in evaluating a service-connected disability involving a joint rated on limitation of motion, the Board erred in not adequately considering functional loss due to pain under 38 C.F.R. § 4.40 and functional loss due to weakness, fatigability, incoordination or pain on movement of a joint under 38 C.F.R. § 4.45. The Court in DeLuca held that Diagnostic Codes pertaining to range of motion do not subsume 38 C.F.R. §§ 4.40 and 4.45 (1999), and that the rule against pyramiding set forth in 38 C.F.R. § 4.14 (1999) does not forbid consideration of a higher rating based on a greater limitation of motion due to pain on use, including use during flare-ups. The Board notes that disability of the musculoskeletal system is the inability to perform normal working movement with normal excursion, strength, speed, coordination, and endurance, that weakness is as important as limitation of motion, and that a part which becomes disabled on use must be regarded as seriously disabled. 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 to be considered in evaluating the degree of disability, but a little-used part of the musculoskeletal system may be expected to show evidence of disuse, through atrophy, the condition of the skin, absence of normal callosity, or the like. 38 C.F.R. § 4.40. The provisions of 38 C.F.R. § 4.45 contemplate inquiry into whether there is crepitation, limitation of motion, weakness, excess fatigability, incoordination, impaired ability to execute skilled movements smoothly, 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. It is the intention of the rating schedule to recognize actually painful, unstable, or malaligned joints, due to healed injury, as at least minimally compensable. If a service-connected disability presents an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical the application of the regular schedular standards, an extraschedular evaluation commensurate with the average earning capacity impairment may be assigned. 38 C.F.R. § 3.321(b)(1). Entitlement to an increased rating for right shoulder bursitis Factual background The evidence of record indicates that the veteran's right upper extremity is his dominant, or major, extremity. A January 1995 service medical record indicates that the veteran injured his right shoulder. He had a full active range of motion of the shoulder. The assessment was right shoulder subacromial bursitis. A February 1995 service medical record indicates that the veteran had a full active range of motion and 5/5 motor strength. On service evaluation later in February 1995, X-rays were reported to reveal no displacement of the acromioclavicular joint or of the glenohumeral joint. The assessment was a partial tear of the coracohumeral joint. The veteran was told to rest and not to do overhead work, pushups, or lifting of over 15 pounds with the right arm. The veteran left service in February 1995 and filed a claim for service connection. A VA physical examination was completed in April 1995. The veteran complained of right shoulder pain since January 1995. He reported that he still had pain on rotation of the shoulder joint and that it was exacerbated with lifting. Clinically, the veteran's posture was good. Muscle strength was 5/5 in the upper extremities. Abduction of the shoulders was from zero to 180 degrees, with complaints of pain at the extreme of the maneuvers. The veteran complained of pain on internal rotation of the right shoulder when its rotation approached 85 to 90 degrees, but no pain on external rotation of the right shoulder. There was a palpable click in the region of the acromioclavicular joint on rotation. The assessment was persistent right shoulder pain since January 1995. X-rays of the right shoulder were normal. As noted in the Introduction, service connection for right shoulder bursitis was granted by the RO in June 1995. A 10 percent disability rating was assigned under 38 C.F.R. § 4.71a, Diagnostic Code 5019. On VA evaluation in February 1997, the veteran complained of right shoulder pain. He stated that occasionally with one assistant, he would hold a piece of 120 pound sheetrock above his head while it was secured in place. He denied fine motor deficits such as with eating and writing. Clinically, his right shoulder had a full range of motion and good strength and normal distal neurovascular findings, and the shoulder was non-tender. The assessment was chronic intermittent right shoulder strain. Body mechanics and as needed ice, heat, and use of Motrin(r) were discussed with the veteran weight loss, and he was advised to see the physical medicine and rehabilitation service. A VA orthopedic examination was conducted in February 1997. At that time, the veteran indicated that he had not kept appointments with the physical medicine and rehabilitation service in 1996 because of work responsibilities and that he had been discharged from those clinics as a no-show. He denied losing any work due to the right shoulder. He stated that since filing his claim, he had had an unremitting right shoulder pressure sensation without any pain-free intervals except for at night. Clinically, he was an athletic appearing, extremely well muscled man in no apparent distress. His grip strength was intact and symmetric bilaterally. Active range of motion testing of the right shoulder revealed that forward elevation and abduction were preserved, with motion from zero to 180 degrees without discomfort or deficits. Elbow flexion was from zero to 145 degrees with out discomfort. Passively, shoulder motion was also from zero to 180 degrees and symmetric. The veteran had mild right glenohumeral discomfort with abduction from 170 to 180 degrees. There was mild right-sided glenohumeral crepitus with forward elevation and abduction of the shoulder. Joint line and bony landmarks in the shoulders were without tenderness or deformity. There was no relative motion of the glenohumeral joint or acromioclavicular joint with vigorous stress testing. There was no relative acromioclavicular clicking sensation as had been documented previously in 1995. The assessment was right shoulder bursitis after traumatic injury in 1995, with exacerbation of this condition in the veteran's present duties as a sheetrocker. X-rays were normal. Pertinent law and regulations Bursitis is rated as degenerative arthritis. 38 C.F.R. Part 4, Diagnostic Code 5019. Degenerative arthritis is rated based upon limitation of motion of joints affected. 38 C.F.R. Part 4, Diagnostic Code 5003. Limitation of motion of the major arm at the shoulder level warrants a 20 percent rating. 38 C.F.R. Part 4, Diagnostic Code 5201. In every instance where the minimum schedular evaluation requires residuals and the schedule does not provide a no percent evaluation, a no percent evaluation will be assigned when the required residuals are not shown. 38 C.F.R. § 4.31. Analysis The RO has rated the veteran's right shoulder disability as 10 percent disabling under Diagnostic Code 5019. The note for Diagnostic Code 5019 indicates that it is to be rated based upon limitation of motion. Diagnostic Code 5201 permits a 20 percent rating for the right shoulder disability if it prevents arm movement beyond the shoulder level. In this case, the evidence clearly shows that the veteran has right arm elevation and abduction well beyond the shoulder level, which is to 90 degrees. See 38 C.F.R. § 4.71, Table I (1999). The veteran's forward elevation and abduction are to 180 degrees, according to the February 1997 VA examination report, and this constitutes motion. Accordingly, Diagnostic Code 5201 does not permit a compensable rating. Next for consideration is the matter of an increased rating pursuant to 38 C.F.R. §§ 4.40 and 4.45. In this case, the evidence clearly shows some pain on motion. Clinically, pain has only been demonstrated at the extremes of abduction and internal rotation, and that was at the time of the April 1995 VA examination. The pain was not described as excruciating or as any type of pain which is towards that end of the continuum. On VA examination in February 1997, only mild discomfort with the extreme of abduction was observed and the veteran had a full planar range of motion. Moreover, the April 1995 VA examination report shows that the veteran has 5/5 muscle strength in his shoulder, and the February 1997 VA examination report described the veteran as being extremely well muscled. The provisions of 38 C.F.R. §§ 4.40 indicate that impairment of function due to pain can be expected to be demonstrated by atrophy, weakness, incoordination or the like. In this case no such manifestations have been demonstrated. Only mild discomfort was noted to be experienced by the veteran at the extremes of motion on VA examination in February 1997. He has almost a full planar motion range before he experiences mild discomfort at its extremes, and he is described as very muscular and having 5/5 strength in his upper extremities. The Board concludes that a 10 percent rating would adequately compensate the veteran for the mild degree of functional impairment shown. There is no evidence that the functional impairment demonstrated, if any, approaches the level at which a 20 percent rating could be demonstrated (i.e. equivalent to limitation of motion of the arm above shoulder level). Accordingly, for the reasons and bases expressed above, the Board concludes that the preponderance of the evidence is against the assignment of a disability rating in excess of the currently assigned 10 percent. Entitlement to an increased rating for lumbar strain Factual background Service medical records reveal treatment for low back pain. In February 1992, the veteran complained of lower back pain for two weeks after lifting. He complained that bending and lifting caused discomfort. Clinically, he had a decreased range of motion with discomfort. The assessment was possible low back strain. On VA orthopedic examination in April 1995, the veteran complained of back pain which tended to be worse with lifting. Clinically, he could walk back and forth well. His posture was good. He had an exaggerated lordosis and a mild scoliosis. He could flex his lumbar spine to 90 degrees without discomfort and extend it beyond 30 degrees. He could right and left flex the spine beyond 30 degrees and rotate it to 55 degrees right and left with only minimal discomfort in the lower spine. There was no spasm in the back. The assessment was lumbar pain, possibly related to lordosis. X-rays of the lumbar spine revealed partial lumbarization of S1 and a mild scoliosis in the upper lumbar spine, the latter possibly positional in nature. In the June 1995 RO rating decision, a 10 percent disability rating was assigned for lumbar strain under 38 C.F.R. § 4.71a, Diagnostic Code 5295. On VA evaluation in February 1997, the veteran complained of lower back pain and spasm for two or three years, and that it was worsening. Clinically, his back had a full range of motion and was nontender. The assessment was low back strain. Body mechanics and as needed ice, heat, Motrin(r), and physical therapy were prescribed. Pertinent law and regulations Lumbosacral strain with characteristic pain on motion warrants a 10 percent rating. Lumbosacral strain with muscle spasm on extreme forward bending and unilateral loss of lateral spine motion in a standing position warrants a 20 percent rating. 38 C.F.R. § 4.71, Diagnostic Code 5295. When there is slight limitation of motion of the lumbar spine, a 10 percent rating is warranted. When there is moderate limitation of motion of the lumbar spine, a 20 percent rating is warranted. Diagnostic Code 5292. Words such as "slight", "moderate" and "severe" are not defined in the VA Schedule for Rating Disabilities. Rather than applying a mechanical formula, the Board must evaluate all of the evidence to the end that its decisions are "equitable and just". 38 U.S.C.A. § 7104; 38 C.F.R. 4.6 (1998). Analysis The RO has assigned the veteran a 10 percent rating under Diagnostic Code 5295. The Code provides for a 10 percent rating when there is characteristic pain on motion, and a 20 percent rating when there is muscle spasm on extreme forward bending and unilateral loss of lateral spine motion. The veteran was able to laterally bend his lumbar spine beyond 30 degrees bilaterally with only minimal discomfort and could flex his lumbar spine to 90 degrees without discomfort at the time of the April 1995 VA examination, and he had a full range of motion on VA outpatient treatment in February 1997. The evidence does not show that the veteran has muscle spasm on extreme forward bending or unilateral loss of spine motion in a standing position. As such, the provisions of Diagnostic Code 5295 do not permit an increased rating. The Board has given consideration to evaluating the veteran's service-connected disability under a different Diagnostic Code. The Board notes that the assignment of a particular Diagnostic Code is "completely dependent on the facts of a particular case." See Butts v. Brown, 5 Vet. App. 532, 538 (1993). One Diagnostic Code may be more appropriate than another based on such factors as an individual's relevant medical history, the current diagnosis and demonstrated symptomatology. Any change in a Diagnostic Code by a VA adjudicator must be specifically explained. See Pernorio v. Derwinski, 2 Vet. App. 625, 629 (1992). The provisions of Diagnostic Code 5292 do not permit an increased rating. As noted above, a 20 percent rating under Diagnostic Code 5292 requires moderate limitation of motion of the lumbar spine. The medical evidence, in particular the February 1997 VA outpatient treatment record, shows that the veteran has a full range of motion of the lumbar spine. The Board has also considered whether an evaluation in excess of 10 percent is warranted on the basis of functional loss due to pain under 38 C.F.R. § § 4.40 and 4.45. However, the veteran's complaints of pain have already been contemplated in the criteria of Diagnostic Code 5295. See Johnson v. Brown, 9 Veteran. App. 7, 11 (1996); DeLuca v. Brown, 8 Vet. App. 202, 206-07 (1995). More specifically, the veteran's reported back pain does not result in loss of motion of the lumbosacral spine. As discussed above, the veteran reported that he had back pain; however, on range of motion testing during the most recent VA evaluation, no pain was reportedly elicited. In short, the clinical evidence on file does not demonstrate that current low back disability results in loss of normal excursion, strength, speed, coordination, or endurance, or that it causes swelling, deformity, instability, disturbance of locomotion, or atrophy of disuse, weakness, fatigability, or pain with motion sufficient to support an increased rating. See Spurgeon v. Brown, 10 Vet. App. 194 (1997). As noted above, the most recent evaluation of the back resulted in essentially normal findings. Accordingly, the Board concludes that a preponderance of the evidence is against the claim; the veteran remains most appropriately evaluated at the 10 percent rate under Diagnostic Code 5295. Extraschedular consideration Under Floyd v. Brown, 9 Vet. App. 88, 95 (1996), the Board cannot make determinations as to extraschedular evaluations in the first instance. However, in June 1997, the RO considered the extraschedular criteria for the both the right shoulder and lumbar spine disability. The assignment of an extraschedular rating was rejected because, in the words of the RO, "the evidence available for review fails to establish any unusual disability picture to warrant referral to the Chief Benefits Director or the Director, Compensation and Pension Service for extraschedular consideration." Therefore, the matter of extraschedular disability ratings is before the Board. Ordinarily, the Rating Schedule will apply unless there are exceptional or unusual factors which would render application of the schedule impractical. See Fisher v. Principi, 4 Vet. App. 57, 60 (1993). According to the regulation, an extraschedular disability rating is warranted upon a finding that "the case 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). The Board finds that there is no evidence of record to show that either disability markedly interferes with employment or affects the veteran's employability in ways not contemplated by the ratings now assigned under the Rating Schedule. The veteran is able to squat without a problem, can hold a piece of 120 pound sheetrock up with an assistant while it is being fastened, is very muscular, and skipped VA treatment so he could work. He has not presented unusual disability pictures showing marked interference with employment due to his right shoulder or lumbar spine disability. Furthermore, there is no evidence to indicate that either disability affects his earning capacity by requiring frequent hospitalizations. There in no evidence of hospitalization after service. Fenderson The Board notes that a claim placed in appellate status by disagreement with the original or initial rating award, as is the case here with respect to each of the two claims at issue, remains an "original claim" and is not a new claim for increase. Fenderson v. West, 12 Vet. App. 119 (1999). In such cases, separate compensable evaluations must be assigned for separate periods of time if such distinct separately compensable periods are shown by the competent evidence of record during the pendency of the appeal, a practice known as "staged" ratings. Id. at 126. In this case, the Board is unable to identify any distinct period since February 1995 when more than a 10 percent rating is warranted for each disability at issue. ORDER Entitlement to a disability rating in excess of 10 percent for right shoulder strain is denied. Entitlement to a disability rating in excess of 10 percent for lumbar spine strain is denied. Barry F. Bohan Member, Board of Veterans' Appeals