Citation Nr: 0007959 Decision Date: 03/23/00 Archive Date: 03/28/00 DOCKET NO. 92-42 140 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Entitlement to an increased rating for a history of impingement of the right shoulder, status post repair (major), currently evaluated as 20 percent disabling. 2. Entitlement to an extension of a temporary total convalescence rating under the provisions of 38 C.F.R. § 4.30 beyond April 30, 1995. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Patricia A. Boston, Counsel INTRODUCTION The veteran served on active duty from December 1978 to March 1988. This appeal arises before the Board of Veterans' Appeals (Board) of the Department of Veterans Affairs (VA) from a February 1995 rating decision by the Montgomery, Alabama, Regional Office (RO), which granted a temporary total convalescent rating from November 28, 1994, to April 30, 1995, under the provisions of 38 C.F.R. § 4.30 based upon hospitalization and surgery at a VA medical facility in November 1994. This appeal also arises from a March 1998 rating action, which confirmed the schedular 20 percent evaluation in effect for a history of impingement of the right shoulder, status post repair (major). A hearing was conducted before a member of the Board sitting at Washington, D.C., in June 1998. The member of the Board who held the hearing is making the decision in this case and is the signatory to this decision. In September 1998, the Board remanded this case to the RO for additional development of the evidence. As previously stated in the September 1998, the veteran during the June 1988 hearing raised the issue of whether a timely notice of disagreement has been submitted regarding the March 1993 rating action which denied an increased rating for the right shoulder disorder. This issue is referred to the RO for appropriate action. The issue of entitlement to an increased rating for a history of impingement of the right shoulder, status post repair (major) is the subject of the remand portion of this decision. FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the veteran's appeal has been obtained. 2. Service connection is in effect a history of impingement of the right shoulder, status post repair (major), evaluated as 20 percent disabling. 3. The veteran underwent surgery for his service-connected right shoulder disability in November 1994 and convalescence is reasonably shown to have been necessitated through May 31, 1995. CONCLUSION OF LAW The criteria for an extension of a temporary total convalescent rating following surgery in November 1994, through May 31, 1995, but no longer, are met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. § 4.30 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Board notes that the veteran's claim is "well-grounded" within the meaning of 38 U.S.C.A. § 5107. That is, the Board finds that he has presented a claim, which is plausible. The Board is also satisfied that all relevant facts have been properly developed. No further assistance to the veteran is required to comply with the duty to assist mandated by 38 U.S.C.A. § 5107. 38 C.F.R. § 4.30 provides that a total disability rating (100 percent) will be assigned without regard to other provisions of the rating schedule when it is established by report at hospital discharge (regular discharge or release to non-bed care) or outpatient release that entitlement is warranted under paragraph (a) (1), (2) or (3), set forth below, effective the date of hospital admission or outpatient treatment and continuing for a period of 1, 2, or 3 months from the first day of the month following such hospital discharge or outpatient release. (A) Total ratings will be assigned under this section if treatment of a service- connected disability resulted in: (1) Surgery necessitating at least one month of convalescence (2) Surgery with severe postoperative residuals such as incompletely healed surgical wounds, stumps of recent amputations, therapeutic immobilization of one major joint or more, application of a body cast, or the necessity for house confinement, or the necessity for continued use of a wheelchair or crutches (regular weight-bearing prohibited) (3) Immobilization by cast, without surgery, of one major joint or more. (b) A total rating under this section will require full justification on the rating sheet and may be extended as follows: (1) Extensions of 1, 2 or 3 months beyond the initial 3 months may be made under paragraph (a) (1), (2) or (3) of this section. (2) Extensions of 1 or more months up to 6 months beyond the initial 6 months period may be made under paragraph (a) (2) or (3) of this section upon approval of the Adjudication Officer. Service connection is in effect for a history of impingement of the right shoulder, status post repair (major), evaluated as 20 percent disabling. The evidence shows that the veteran was hospitalized at a VA facility on November 28, 1994 for complaints of progressively worsening right shoulder pain for eleven years. The veteran reported that the pain interfered with his work as a cook. The pre-operative diagnosis was right shoulder impingement syndrome, possible rotator cuff tear. On examination, the veteran had decreased internal rotation and tender range of motion of the acromioclavicular joint with abduction greater than 30 degrees. The rotator cuff had normal strength with the exception of abduction. Examination was limited to secondary pain. There was a positive impingement sign. The neurovascular was intact. The magnetic resonance imaging (MRI) scan showed chronic changes in the supraspinatus tendon. While hospitalized, the veteran underwent an acromioplasty, distal clavicle excision and rotator cuff repair. Post- operatively, the veteran was afebrile and received forty- eight hours of antibiotics. During his period of hospitalization, he was instructed to elbow and wrist exercises and also pendulum exercises. He was also instructed not to abduct the arm greater than 20 degrees and only to allow that during pendulum exercises. This was explained to the patient in terms that he demonstrated he understood. The veteran was discharged home on December 2, 1994, with medications and that he should return for a follow up evaluation in the Orthopedic Clinic in one week. It was also noted that he would receive physical therapy starting next week at the VA. The veteran was instructed to keep a sling on at all times except when doing pendulum, elbow and wrist exercises and that he should return to the emergency room with any questions. It was noted that the veteran's entire right upper extremity was not to be used outside of prescribed physical therapy exercises for a period of four months. It was also noted that the period may be extended depending on his progression of therapy. It was emphasized again that the veteran could not use his right upper extremity for four months. The discharge diagnosis was status-post acromioplasty, distal clavicle excision, and rotator cuff repair. A VA outpatient treatment record dated on January 24, 1995, revealed that the surgical wound of the right shoulder was healed and that the veteran was doing well. The veteran was instructed to return in 6 weeks. A VA physical therapy progress report dated on February 28, 1995, noted that the veteran reported complaints of increased pain in his right shoulder and that he described a "knot" sensation in the joint. He mentioned that that his shoulder sometimes locked up and that he has to move his arm in order to "unlock it." He stated that he experienced difficulties with his activities of daily living, such as reaching over his head, raising his arm away from his side and reaching behind his back. On examination, active range of motion of the right shoulder was 100 degrees on flexion, 90 degrees on abduction, and 20 degrees on external rotation. It was noted that the goals were to increase active range of motion and that strength was being met. In a VA physical therapy progress report dated on March 3, 1995, it was noted that strength in the deltoid was greatly improved. It was noted that the veteran's complaints of locking were taken into consideration, but that this did not occur at the clinic. The veteran was instructed to return to physical therapy in approximately 2 weeks due to distance to travel. A VA outpatient treatment record dated on March 7, 1995, showed that the veteran was doing well with physical therapy. On examination, the veteran's wound of the right shoulder was well healed and his motor strength was 5/5. The diagnostic impression was status-post acromioplasty. The examiner recommended that the veteran continue physical therapy for approximately 2 months and that he return for a follow-up evaluation in approximately 2 months. The examiner stated that the veteran may return to work as tolerated. In a VA physical therapy progress report dated on April 4, 1995, it was noted that right shoulder flexion was 0 to 135 degrees; extension of the right shoulder was 0 to 47 degrees; abduction of the right shoulder was 0 to 108 degrees; adduction of the right shoulder was from 0 to 45 degrees; horizontal flexion of the right shoulder was from 0 to 30 degrees; external rotation of the right shoulder was 0 to 38 degrees; and internal rotation was 0 to 40 degrees. It was reported that range of motion was less than normal and strength was 4/5 with poor endurance and 3+'5 with internal rotation. It was also noted that the veteran appeared to be following the recommended home program and that his muscle strength improved, but he had poor endurance. His program was increased to include more repetitions with small weights and he was instructed in resistive type exercises for the cuff. The goals included increasing range of motion to within normal limits, improving strength in shoulder and cuff muscles, and improve endurance in muscles of the shoulder and cuff. The veteran was instructed to change to hot packs with interferential stimulation and continue exercise program for home for approximately 2 weeks. The physical therapist noted that the veteran was doing well for being status post surgery for approximately 4 months, which the veteran was cooperating, and she felt that the veteran will reach his goals in approximately 2 months. It recommended that the veteran continue physical therapy. A VA outpatient treatment record dated on April 13, 1995, included a diagnosis of acromioplasty and rotator cuff of the right shoulder. The examiner recommended that the veteran perform duties as cook. The examiner stated that the veteran should not lift more than 25 pounds or reach over his head with right arm for approximately 2 months. In a VA outpatient treatment record dated on May 9 ,1995, it was noted that the veteran was given a release for his job that he was able to lift 25 pounds. It was also noted that the veteran's job required him to lift approximately 100 pounds and that he was on temporary disability with VA. The examiner stated that the veteran may work with restrictions, but that he should not lift more than 25 pounds. The examiner recommended that the veteran return for another evaluation in approximately 3 months. A VA physical therapy progress report dated on May 18, 1995, notes that the veteran reported complaints of having trouble getting his arm to do everything that he wanted it to do so that he used his left arm when necessary. He complained of pain and lack of coordination. On examination, range of motion of the right shoulder was within full limits with rotation limited only. External rotation was 0 degrees to 60 degrees and internal rotation was 0 degrees to 30 degrees. Arms were 90 degrees on abduction, flexing elbows and touching the tip of his nose. Strength was 4/5 except for internal rotation, which was - 4/5. It was noted that the veteran was very cooperative; that he was following an active and resistive exercise program for the right shoulder; and that the veteran understood that he should increase the repetitions to a very high number keeping the weight. It was reported that the veteran was performing coordination exercises as a home program and that he was tested for kinesthesia, which was somewhat less than normal. The goals included increasing kinesthesia and coordination, increasing endurance of musculature of the right shoulder and maintaining range of motion. The physical therapist recommended the veteran for a two week trial of transcutaneous electrical nerve stimulation (TENS) for pain control; that the veteran continue home exercise program as outlined above; and that he return to physical therapy in two weeks for a follow-up evaluation. The rehabilitation potential was reported as good. The veteran had good range of motion limitation that may or may not be permanent due to the type of surgeries that he underwent; that his strength was good; that he was limited to lifting 25 pounds; that the endurance of the muscles about the right shoulder was poor; and that the coordination was mildly lacking about the shoulder, but that the veteran was cooperative and was expected to follow instructions. In a VA progress therapy report dated on June 1, 1995, the physical therapist noted that the veteran had received 23 physical therapy treatments of hot packs, ultrasound and massage and post surgical exercise program, and more recently TENS trial. The physical therapist stated that the veteran had made good progress and he was now ready to graduate to resistive training for strength and endurance. The physical therapist recommended that the veteran be discharged from physical therapy because he had reached the maximum benefit from physical therapy. The physical therapist stated that the veteran may benefit from kinesitherapy since they have exercise equipment for resistive training and he may also benefit from a permanent issue of a TENS unit for home program of pain control. She said that the veteran should discontinue physical therapy and hopefully start kinesitherapy. A VA outpatient treatment record dated on June 2, 1995, noted that the veteran was seen for complaints of right shoulder and right inguinale pain and that he requested a TENS unit. The examiner noted that the veteran had lost 3 pounds and that he was not in any acute distress. Another VA outpatient treatment record dated on June 2, 1995, indicated that the veteran was status post rotator cuff repair; that the veteran had received maximum benefit from physical therapy; and that kinesitherapy was recommended for home pain control with TENS unit. It was also indicated that the veteran reported complaints of right inguinale groin pain. The diagnoses included right groin spasm and status post rotator cuff. He continued to be treated at the VA for several disorders to include right shoulder complaints. In a Report of Contact dated in November 1995, it was noted that the veteran had called to see if anyone had heard anything from New Orleans regarding his request for a statement from a VA physician stating that he could lift 90 pounds so that he could go to work for the Strickland Youth Center as a cook. It was also noted that the VA physician called and said that he could not give the veteran a statement saying he could lift 90 pounds until he saw him on his next clinic visit. This information was given to the veteran on November 20, 1995. During the veteran's hearing in June 1998, he testified that he experienced pain and locking in his right shoulder and that he had difficulty bathing and performing daily tasks due to pain. He stated that he was unable to return to work as a cook for a catering service because he was unable to lift the required weight. He stated that he was hired by another organization in January 1996. A statement from a catering service dated in February 1999 notes that the veteran was employed by the company from October 1991 to May 1995. It was stated that the veteran worked as a cook at the U.S. Coast Guard Aviation Training Center Galley located in Mobile, Alabama; that the veteran was a valuable employee of his company and performed his duties very efficiently; that the veteran could not perform the duties that were outlined in his job description, specifically lifting items 30 pounds or more after his right shoulder; and that Speedy Catering had to find someone else to fill his position. To summarize, the veteran's statements and testimony describing the symptoms associated with his right shoulder disorder are considered to be competent evidence. However, this evidence must be viewed in conjunction with the objective medical evidence and the pertinent law and regulations. In this regard, the evidence shows that following the right shoulder surgery in November 1994, the veteran was involved in an extensive VA rehabilitation program. The physical therapy records show that the veteran faithfully followed his therapy regime and there was some improvement in the right shoulder condition. , On May 9, 1995, the veteran's physician stated the veteran could work with restrictions, but that he should not lift more than 25 pounds. When seen on May 18, 1995, the physical therapist recommended the veteran for a two week trial of transcutaneous electrical nerve stimulation (TENS) for pain control; that the veteran continue home exercise program as outlined above; and that the veteran return to physical therapy in two weeks for a follow-up evaluation. Accordingly, the Board concludes that with the benefit of the doubt being in favor of the veteran, he was still convalescing from the right shoulder through May 1995. As such, an extension of the temporary total convalescent rating through May 31, 1995, is warranted. 38 C.F.R. § 4.30 (1999). However, the evidence does not demonstrate that a temporary total convalescent rating beyond May 31, 1995, is warranted. When the veteran was seen on June 1, 1995, the physical therapist stated that the veteran had made good progress and that he was now ready to graduate to resistive training for strength and endurance. The physical therapist recommended that the veteran be discharged from physical therapy since he had reached the maximum benefit from physical therapy. Likewise, when see at the outpatient clinic on June 2, 1995, the VA physician also stated that the veteran had received the maximum benefit from physical therapy. The Board is aware that as of June 1995, the strength in the right upper extremity had not returned to the degree required for him to return to work as a chief in the catering business. His employer indicated that he was valuable employee but had to be left go because of the job requirements. However, the issue is when did the veteran convalesce from the actual right shoulder surgery. The Board is satisfied that convalescence was completed in May 1995. Subsequent to May 1995, the degree of disability associated with the right shoulder is contemplated the rating percentage in effect for that disorder. ORDER An extension of a temporary total convalescent rating through May 31, 1995, under the provisions of 38 C.F.R. § 4.30, is granted, subject to the laws and regulations governing the award and disbursement of monetary benefits. REMAND The veteran's contentions regarding the increase in severity of his service-connected right shoulder disability constitutes a plausible or well-grounded claim. Proscelle v. Derwinski, 2 Vet.App. 629 (1992). Therefore, the Department of Veterans Affairs (VA) has a statutory obligation to assist him in the development of his claim. 38 U.S.C.A. § 5107(a) (West 1991). A review of the statement of the case reflects that the decision being appealed is dated in January 1999. In this regard, the RO denied an increased rating for the right shoulder disorder in March 1998. During the veteran's hearing in June 1998 he stated that he was disagreeing with that decision. Thus, the decision being appealed in March 1998. The United States Court of Appeals for Veterans Claims (Court) held in DeLuca v. Brown, 8 Vet.App. 202, 205 (1995) that it is improper to assign a particular disability rating where an examination merely recorded the veteran's range of motion at the time without considering his functional loss on use or due to flare-ups. See also Schafrath v. Derwinski, 1 Vet.App. 589, 592-93 (1991). In addition, the Court has stated that 38 C.F.R. § 4.45 (1998) applies to evaluating injuries of the joints and that an examination should consider the degree of additional range-of-motion loss due to pain, weakened movement, excess fatigability and incoordination. DeLuca, 8 Vet.App. at 207. The most recent VA orthopedic examination for compensation purposes was conducted in February 1996. Since that examination the veteran has been seen for right shoulder complaints, and in October 1998 underwent arthroscopic surgery on the right shoulder at a VA facility due to impingement syndrome. In view of these facts and in order to comply with the DeLuca case the Board The evidence shows that subsequent to this examination, the veteran has been receiving frequent ongoing VA and private treatment for right shoulder pain. Accordingly, the case is REMANDED to the RO for the following development: 1. The RO should furnish the veteran the appropriate release of information forms in order to obtain copies of all VA and private medical records pertaining to current treatment for his service- connected right shoulder disability. 2. The RO should request any additional treatment records from the VA medical facilities in Jackson, Mississippi, and Mobile, Alabama (identified as "Springhill"), covering the period from March 1999 to the present. 3. The RO should schedule the veteran for a VA examination by an orthopedist to determine the nature and severity of his service-connected right shoulder disability. All necessary tests and studies, including X- rays, deemed necessary should be performed. The right shoulder should be examined for degrees of range of motion. The examiner should also be asked to note the normal ranges of motion of the right shoulder. Additionally, the examiner should be requested to determine whether the right shoulder exhibit weakened movement, excess fatigability, or incoordination attributable to the service-connected disability; and, if feasible, these determinations should be expressed in terms of the degree of additional range of motion lost or favorable or unfavorable ankylosis. Further, the examiner should be asked to express an opinion as to the degree to which pain could significantly limit functional ability during flare-ups or when used repeatedly over a period of time. The presence or absence of any other symptomatology, including instability, related to the right shoulder should also be reported. A complete rational for any opinion expressed should be included in the examination report. 4. After the development requested above has been completed to the extent possible, the RO should readjudicate the issue in appellate status, to include consideration of all pertinent rating criteria and 38 C.F.R. §§ 4.40, 4.45 and 4.59 (1999). If the benefit sought on appeal remains denied, the veteran and his representative should be furnished a supplemental statement of the case and be afforded an opportunity to respond. Thereafter, the case should be returned to the Board for appellate consideration, if otherwise in order. The Board intimates no opinion as to the ultimate outcome of this case. The veteran need take no action unless he is further informed. The veteran has the right to submit additional evidence and argument on the matter or matters the Board has remanded to the regional office. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment by the RO. 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 The Veterans' Benefits Improvements Act of 1994, Pub. L. No. 103-446, § 302, 108 Stat. 4645, 4658 (1994), 38 U.S.C.A. § 5101 (West Supp. 1999) (Historical and Statutory Notes). In addition, VBA's Adjudication Procedure Manual, M21-1, Part IV, directs the ROs to provide expeditious handling of all cases that have been remanded by the Board and the Court. See M21-1, Part IV, paras. 8.44- 8.45 and 38.02-38.03. ROBERT P. REGAN Member, Board of Veterans' Appeals