Citation Nr: 0003339 Decision Date: 02/09/00 Archive Date: 02/15/00 DOCKET NO. 96-37 252 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to an original evaluation in excess of 20 percent for left shoulder impingement syndrome with cervical spine degenerative disease. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD R.P. Harris, Counsel INTRODUCTION The appellant had nearly continuous active service from August 1967 to December 31, 1993 (including Southwestern Asia service in support of Operation Desert Shield/Storm). This matter originally came before the Board of Veterans' Appeals (Board) on appeal from a July 1994 rating decision by the St. Petersburg, Florida, Regional Office (RO), which, in part, granted service connection and assigned a 10 percent rating for left shoulder impingement syndrome. In May 1995, a hearing was held before a hearing officer at the RO. It is reiterated that after the Board's December 1996 remand of the issue of an increased rating for left shoulder impingement syndrome, the RO clarified, in response to the remand directives, that the left shoulder impingement syndrome was etiologically attributable to, and encompassed, cervical spine degenerative disease. Therefore, the Board reframed that issue, in essence, as entitlement to an evaluation in excess of 10 percent for left shoulder impingement syndrome with cervical spine degenerative disease. In a September 24, 1998 decision, the Board denied appellant's claims of entitlement to service connection for residuals of a right ring finger laceration, arthritis of the hands and elbows, a gastrointestinal disorder, and residuals of a left thumb dislocation, all as not well grounded; denied an evaluation in excess of 20 percent for a low back disability, classified as myofascial strain, for the period on and subsequent, to March 28, 1998; and granted an increased rating of 10 percent, but no more, for a low back disability, classified as myofascial strain, for the period prior to March 28, 1998. In that same decision, the Board granted an increased rating of 20 percent, but no more, for left shoulder impingement syndrome with cervical spine degenerative disease. Thereafter, appellant appealed the Board's September 24, 1998, decision to the United States Court of Appeals for Veterans Claims (formerly the United States Court of Veterans Appeals) (Court). In an April 14, 1999 Order, the Court granted a joint motion to (a) vacate that part of the Board's September 24, 1998, decision that denied the issue of entitlement to an evaluation in excess of 20 percent for left shoulder impingement syndrome with cervical spine degenerative disease and to remand that issue to the Board for compliance with instructions in the motion; and (b) dismiss the appellant's appeal on the remaining issues. With regards to another procedural matter, in Fenderson v. West, 12 Vet. App. 119 (1999), the Court explained that there was a legal distinction between a claim for an "original" rating and an "increased" rating claim. In light of the aforestated legal distinction in Fenderson, the Board has reframed the service-connected "increased rating" appellate issue as that delineated on the title page of this decision. REMAND As background information with regards to the appellate issue in controversy, the RO, in its July 1994 rating sheet, stated that the service medical records "indicate the veteran incurred left shoulder pain secondary to weight lifting. MRI indicated osteophytes at C5-6 and C4-5, bulging disc, neural foramina stenosis, hypertrophic facet arthritis, with mild impingement at C7-T1. On VA examination, x-rays were normal of the left shoulder. The veteran had full range of motion of the cervical spine and x-rays indicated spondylosis with narrowing at C5-6. Diagnosis was of left shoulder impingement syndrome." In the rating sheet, the RO granted service connection and assigned a rating for left shoulder impingement syndrome, coding it under Diagnostic Codes 5201- 5293; and stated that the next higher rating would "require evidence of limitation of motion of the cervical spine." Subsequently, the RO issued a Statement of the Case which set forth the provisions of Diagnostic Code 5201, which deals with limitation of arm motion, and Diagnostic Code 5293, which pertains to intervertebral disc disease. In that Statement of the Case, in the pertinent laws and regulations section, the RO stated that "in accordance with the provisions of 38 C.F.R. [§] 4.20, impingement syndrome, left shoulder is rated analogous to arm limitation of motion and degenerative disk disease." In the reasons for decision section in that Statement of the Case, the RO again stated that the next higher rating would "require evidence of limitation of motion of the cervical spine." It is reiterated that after the Board's December remand, the RO clarified and conceded that the left shoulder impingement syndrome was etiologically attributable to, and encompassed, cervical spine degenerative disease. Consequently, the Board in its September 24, 1998 decision, considered appellant's left shoulder impingement syndrome with cervical spine degenerative disease under Diagnostic Codes pertaining to the left upper extremity and cervical discogenic disease (5201, 5290, and 5293). In the joint motion for remand, cited to in the April 14, 1999 Court Order, it was stated that the Board had not provided adequate reasons or bases for its conclusion that appellant is not entitled to a separate rating for the musculoskeletal and neurologic aspects of his left shoulder impingement syndrome with cervical spine degenerative disease so as to comply with the Court's holdings in Bierman v. Brown, 6 Vet. App. 125 (1994) and Esteban v. Brown, 6 Vet. App. 259 (1994); and that in rating the service-connected disability, the Board had not adequately considered and discussed the Court's holding in DeLuca v. Brown, 8 Vet. App. 202 (1995), regarding the necessity of adequate examination reflecting the degree of limitation of motion due to pain, weakened movement, excess fatigability, or incoordination, and VAOPGCPREC 36-97 (Dec. 12, 1997), regarding the requirement that 38 C.F.R. §§ 4.40 and 4.45 be considered in determining a rating under Diagnostic Code 5293. Additionally, the joint motion for remand stated that in the event the evidentiary record does not provide sufficient information as to pain on movement, weakened movement, excess fatigability, or incoordination, additional examination might be necessary. It is the Board's opinion that since appellant was last afforded VA orthopedic and neurologic examinations in March 1998, more than a year and a half ago, he should be reexamined by the VA in order to ascertain the current severity and nature of his service-connected left shoulder impingement syndrome with cervical spine degenerative disease, including whether the left shoulder and cervical spine exhibit pain on motion, weakness, and related functional limitations, as required by DeLuca and 38 C.F.R. §§ 4.10, 4.40, 4.45. Further, additional examination is indicated in order to fully respond to the requirements of the joint motion and Court's Order. Accordingly, the remaining appellate issue is REMANDED for the following: 1. The RO should arrange appropriate examinations, such as orthopedic and neurologic, to determine the nature and current severity of the service-connected left shoulder impingement syndrome with cervical spine degenerative disease. The entire claims folder should be reviewed by the examiners prior to examinations. All indicated tests and studies should be performed, including, but not limited to, passive and active range of motion studies of the left shoulder and cervical spine expressed in degrees. The examiners should record whether the left shoulder and cervical spine exhibit weakened movement, excess fatigability, or incoordination; and if so, describe the nature and severity thereof. Any musculoskeletal and neurologic dysfunction involving the left shoulder and cervical spine should be described in detail. The examiners are requested to specify whether any painful motion of the left shoulder and cervical spine is clinically elicited, and if so, the nature, location, and intensity of the pain should be described in detail. Any objective indications of such pain should be described. The examiner should elicit information as to precipitating and aggravating factors (i.e., movement, activity), effectiveness of any pain medication or other treatment for relief of pain, functional restrictions from pain on motion, and the effect the service-connected left shoulder impingement syndrome with cervical spine degenerative disease disability has upon appellant's daily activities. The degree of functional impairment or interference with daily activities, if any, by the service-connected left shoulder impingement syndrome with cervical spine degenerative disease disability should be described in detail (e.g., any lifting restrictions). 2. The RO should contact the appellant and request any evidence he has of functional impairment of the service connected disorder, to include records of medical treatment he might have or evidence that he has missed work, or been limited at work secondary to the disorder. 3. The appellant 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). 4. The RO should readjudicate the issue of entitlement to an original evaluation in excess of 20 percent for left shoulder impingement syndrome with cervical spine degenerative disease, with consideration of applicable court precedents and statutory and regulatory provisions, including DeLuca and 38 C.F.R. §§ 4.10, 4.40, 4.45. Additionally, the RO should formally adjudicate whether appellant is entitled to separate ratings for the musculoskeletal and neurologic aspects of his left shoulder impingement syndrome with cervical spine degenerative disease. When this development has been completed, and if the benefit sought is not granted, the case should be returned to the Board for further appellate consideration, after compliance with appropriate appellate procedures, including issuance of a Supplemental Statement of the Case. No action by the appellant is required until he receives further notice. The Board intimates no opinion, either legal or factual, as to the ultimate disposition warranted in this case, pending completion of the requested development. 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. MICHAEL D. LYON Member, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 1991 & Supp. 1999), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (1999).