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Please Explain - I Need An Expert On Degenerative Arthritis


carlie

Question

After reading the regs below will someone try to explain to me how it's possible for VA to grant diagnostic code 5019 - Bursitis at 0 %.

The way I understand this reg. it would have to award a 10 % minimum, even if the LOM is noncompensable.

Thanks, carlie

5003 Arthritis, degenerative (hypertrophic or osteoarthritis):

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 (DC 5200 etc.). When however, the limitation of

motion of the specific joint or joints involved is

noncompensable under the appropriate diagnostic codes, a

rating of 10 pct is for application for each such major joint

or group of minor joints affected by limitation of motion, to

be 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. In the absence of limitation of motion, rate as

below:

With X-ray evidence of involvement of 2 or more major joints 20

or 2 or more minor joint groups, with occasional

incapacitating exacerbations...............................

With X-ray evidence of involvement of 2 or more major joints 10

or 2 or more minor joint groups............................

Note (1): The 20 pct and 10 pct ratings based on X-ray

findings, above, will not be combined with ratings based on

limitation of motion.

Note (2): The 20 pct and 10 pct ratings based on X-ray

findings, above, will not be utilized in rating conditions

listed under diagnostic codes 5013 to 5024, inclusive.

5004 Arthritis, gonorrheal.

5005 Arthritis, pneumococcic.

5006 Arthritis, typhoid.

5007 Arthritis, syphilitic.

5008 Arthritis, streptococcic.

5009 Arthritis, other types (specify).

With the types of arthritis, diagnostic codes 5004 through

5009, rate the disability as rheumatoid arthritis.

5010 Arthritis, due to trauma, substantiated by X-ray findings:

Rate as arthritis, degenerative.

5011 Bones, caisson disease of: Rate as arthritis, cord

involvement, or deafness, depending on the severity of

disabling manifestations.

5012 Bones, new growths of, malignant 100

Note: The 100 percent rating will be continued for 1 year

following the cessation of surgical, X-ray, antineoplastic

chemotherapy or other therapeutic procedure. At this point,

if there has been no local recurrence or metastases, the

rating will be made on residuals.

5013 Osteoporosis, with joint manifestations.

5014 Osteomalacia.

5015 Bones, new growths of, benign.

5016 Osteitis deformans.

5017 Gout.

5018 Hydrarthrosis, intermittent.

5019 Bursitis.

5020 Synovitis.

5021 Myositis.

5022 Periostitis.

5023 Myositis ossificans.

5024 Tenosynovitis.

The diseases under diagnostic codes 5013 through 5024 will be

rated on limitation of motion of affected parts, as

arthritis, degenerative, except gout which will be rated

under diagnostic code 5002.

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Carlie- I see this a little differently-

I guess I read it as -if no LOM affected then 0%.

I sure could be wrong-

Would these claims help you:

http://www.va.gov/vetapp98/files4/9837390.txt

this vet gets 20% for bursitis in each shoulder but was denied increase-

http://www.va.gov/vetapp97/files3/9721173.txt

The decision however reflects how they are looking at diagnostic codes for bursitis:

"According to 38 C.F.R. Part 4, Code 5019 (1996), bursitis is

rated as degenerative arthritis on the basis of limitation of

motion of the affected parts. Under the applicable criteria,

limitation of motion of the arm (major or minor) to

approximately shoulder level (90 degrees) warrants a 20

percent disability evaluation; a 30 (major arm) or 20 (minor

arm) percent evaluation is applicable for motion of the arm

limited to midway between the side and shoulder level. 38

C.F.R. Part 4, Code 5201 (1996)."

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Berta, This is the sentence that confuses me.

carlie

When however, the limitation of

motion of the specific joint or joints involved is

noncompensable under the appropriate diagnostic codes, a

rating of 10 pct is for application for each such major joint

or group of minor joints affected by limitation of motion, to

be combined, not added under diagnostic code 5003

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Guest fla_viking

Dear Carlie

I read it several times. I cant understand it either. but it seems like they are trying to limit the way you add up there ratings. Maybe take the 0% and try to up it. The VA low balls everyone.

Terry higgins

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Carlie

That comment in 4.71a refers only to 5003, to which it is attached. Bursitis is one of those areas where the VA can do whatever it wants, as there is NO definition and no award criteria.

Your lucky you got it SC, I've been trying for 5 years. Now that you are SC, you should NOD it for an increase. Your best bet is for LOM.

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Mr. Walter,

So good to see you are still with us. Are you ever going to be able to begin your blog ?

As to this post - I remain confused, as the regs. state 5019 - Bursitis is to be rated as Arthritis Degenerative

which IS 5003. FYI, I did not even actually apply for Bursitis, I applied for a shoulder injury from active duty

on my original claim in 1978 - they awarded it as Bursitis - direct SC at zero %, in 2003 -- go figure.

thanks for sticking around,

carlie

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Dear Carlie

I read it several times. I cant understand it either. but it seems like they are trying to limit the way you add up there ratings. Maybe take the 0% and try to up it. The VA low balls everyone.

Terry higgins

I may be mistaken, But this looks like it is interperted as to the Spine and each vertebrate is a joint so the VA is getting out of paying for each separate issue if a person has more than 1 Vertabrate effected by arthritis.

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This is what I have found out from my experience: the VA rates the spine in segments: cervical and thoracolumbar spine or ankylosis of the entire spine. The spine is consided a group of minor joints affected by limitation of motion. Degenerative disk disease is arthritis, so you don't get more for that. Range of motion is the KEY here. Or, proving incapacitating episodes, For purposes of evaluations under diagnostic code 5243, an incapacitating episode is a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician.

Hope this helps.

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Here's a case that grants the 10 %.

carlie

Citation Nr: 0416655

Decision Date: 06/24/04 Archive Date: 06/30/04

DOCKET NO. 93-19 531A ) DATE

)

)

On appeal from the

Department of Veterans Affairs Regional Office in Seattle,

Washington

THE ISSUES

1. Entitlement to an initial evaluation in excess of 10

percent for bursitis of the right shoulder with degenerative

joint disease.

2. Entitlement to an initial evaluation in excess of 10

percent for bursitis of the right elbow.

REPRESENTATION

Appellant represented by: Veterans of Foreign Wars of

the United States

WITNESS AT HEARING ON APPEAL

The veteran

ATTORNEY FOR THE BOARD

L. Spear Ethridge, Counsel

INTRODUCTION

The veteran had active duty from June 1980 to June 1992.

This matter comes before the Board of Veterans' Appeals

(Board) on appeal from a March 1993 rating decision by the

Seattle, Washington, Regional Office (RO) of the Department

of Veterans Affairs (VA), that granted service connection for

bursitis of the right shoulder and bursitis of the right

elbow, and assigned a zero percent evaluation for each

disability.

The case was previously before the Board in July 1996,

September 1997, and July 2003, at which times it was remanded

for further development. Such development having been

completed, these two remaining claims are again before the

Board for appellate review. In the interim, increased

ratings, from zero to 10 percent, were assigned in a March

1997 rating decision for chronic bursitis of the right

shoulder and chronic bursitis of the right elbow.

FINDINGS OF FACT

1. The veteran's service-connected right shoulder disorder

is productive of no current findings of bursitis, symptoms

of, and x-ray confirmation for, early acromiclavicular joint

arthritis, tightness with overhead flexion, and no objective

observations of restricted motion, painful motion, weakened

movement, excess fatigability or incoordination; and with

subjective complaints of pain and flare-ups.

2. The veteran's service-connected right elbow disorder is

presently manifested by no limitation of elbow motion,

including as a result of pain and dysfunction, no current

medical evidence of bursitis, and subjective complaints of

elbow pain with normal corresponding x-rays of the right

elbow.

CONCLUSIONS OF LAW

1. The criteria for a rating in excess of 10 percent for

right shoulder bursitis with degenerative joint disease have

not been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R.

§§ 4.7, 4.71a, Diagnostic Codes 5003, 5019, 5201 (2003).

2. The criteria for a rating in excess of 10 percent for

right elbow bursitis have not been met. 38 U.S.C.A. § 1155;

38 C.F.R. §§ 4.1, 4.71a, Diagnostic Codes 5019, 5206, 5213

(2003).

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Duty to notify and assist

On November 9, 2000, the Veterans Claims Assistance Act of

2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (2000) was

enacted. The VCAA redefines VA's obligations with respect to

its duty to assist the claimant with the development of facts

pertinent to a claim and includes an enhanced duty to notify

the claimant as to the information and evidence necessary to

substantiate a claim for VA benefits. This change in the law

is applicable to all claims filed on or after the date of

enactment of the VCAA or filed before the date of enactment

and not yet final as of that date. 38 U.S.C.A. §§ 5100,

5102, 5103, 5103A, 5106, 5107, 5126.

In this case, all relevant facts have been properly developed

in regard to the veteran's claims, and no further assistance

is required in order to comply with VA's statutory duty to

assist him with the development of facts pertinent to these

two claims on appeal. See 38 U.S.C.A. § 5103A; 38 C.F.R.

§ 3.159. Much of the development in this case was prompted

by the Board's remands in July 1996, September 1997, and July

2003. Specifically, the RO has obtained records

corresponding to medical treatment reported by the veteran

and has afforded him multiple VA examinations addressing his

service-connected right shoulder and right elbow disorders.

A VA medical opinion regarding the severity of each disorder

was provided in October 2002.

Also, the Board is satisfied that VA's duty to notify the

veteran of the evidence necessary to substantiate his claims

has been met. The RO informed him of the need for such

evidence in a July 19, 2001 letter, as well as in the

discussions in the rating decisions, statements and

supplemental statements of the case, and the Board's prior

remands. By the July 2001 letter, the RO notified the

veteran of exactly which portion of that evidence (if any)

was to be provided by him and which portion VA would attempt

to obtain on his behalf. See Quartuccio v. Principi, 16 Vet.

App. 183 (2002). Although the RO has not specifically asked

him to submit all evidence in his possession pertaining to

the claims, any such error is harmless, as he stated in

August 2003 that he had no additional evidence to submit.

The Board further notes that the United States Court of

Appeals for Veterans Claims' (Court's) decision in Pelegrini

v. Principi, 17 Vet. App. 412 (2004) held, in part, that a

VCAA notice, as required by 38 U.S.C.A. § 5103(a), must be

provided to a claimant before the initial unfavorable agency

of original jurisdiction (AOJ) decision on a claim for VA

benefits. The Board is aware that the appealed rating

decision, in March 1993, preceded the RO's July 19, 2001 VCAA

notice, as well as the enactment of the VCAA. Subsequent to

that notice, however, the RO readjudicated the veteran's

claims in a July 31, 2003 Supplemental Statement of the Case.

Consequently, the veteran has been provided with every

opportunity to submit evidence and argument in support of his

claims and to respond to VA notices. As noted above, in a

correspondence received in August 2003, the veteran stated

that he had no further argument or additional information to

provide, and asked that his case be returned to the Board.

Therefore, the Board finds that any defect with respect to

the VCAA notice requirement in this case constituted harmless

error and should not preclude consideration of this appeal at

the present time. See also Conway v. Principi, 353 F.3d

1369 (Fed. cir. 2004).

Factual background

Service medical records show that the veteran had a right

shoulder injury with repair to the acromiclavicular joint

prior to service. In service, he had complaints of pain with

use, and x-ray evidence in July 1990 showed bursitis of the

acromiclavicular joint. A May 1992 examination showed full

range of motion right shoulder. Following service

separation, VA examination in January 1993 showed shoulder

pain, probably on the basis of periarthritis with no loss of

motion.

Service medical records also show that the veteran had

chronic, bilateral elbow pain with a diagnosis of bursitis of

the right elbow. At VA examination in May 1992, the veteran

reported current right elbow pain. Examination revealed no

current swelling and normal range of motion.

In a March 1993 rating decision, service connection was

granted for degenerative joint disease, bursitis, right

shoulder, and a zero percent disability was assigned,

effective July 1, 1992, the day following the veteran's

separation from service. Service connection was also granted

for bursitis of the right elbow, and a zero percent

disability rating was assigned, also effective the day

following service separation.

Private medical records dated in August 1993 show treatment

for the veteran's complaints of pain in the right shoulder

and right elbow. Right shoulder abduction was from 30 to 150

degrees with pain.

At his personal hearing in September 1993, the veteran

testified that he had swelling of the right elbow. He, in

essence, stated that he had limitation with his right arm due

to his right shoulder disability.

At VA examination in October 1993, the veteran complained of

right shoulder pain on a daily basis. He said that he could

no longer exert the shoulder. There was full range of motion

of the shoulder with some discomfort on extremes of

abduction, and posterior rotation and flexion. There was

also mild crepitus on rotation with discomfort. The veteran

had good strength of the musculature of the shoulder. The

assessment was status post right acromiclavicular separation

in 1974 with surgery at that time; with progressive problems

with shoulder pain since 1987, suggestive of a mild early

degenerative process or mild chronic inflammatory process,

with full range of motion and no crepitus or tenderness. X-

rays revealed minimal residual deformity.

With respect to the right elbow, the veteran complained of

chronic aching, usually following exertion. There was full

range of motion of the elbow with some tenderness over the

olecranon and some thickening of the soft tissue, with no

swelling. The assessment was chronic elbow pain, considered

a chronic exertional bursitis. X-rays revealed no

abnormality.

At VA examination in January 1997, the veteran had constant,

burning pain, aggravated by overhead activity or driving for

more than 20 minutes at a time. The pain interfered with

overhead work activity on a continuous basis. He could do

his work, but it slowed him down. Range of motion of the

right shoulder was flexion to 280 degrees, extension to 70

degrees, abduction to 180 degrees, internal rotation to 60

degrees, external rotation to 80 degrees, and adduction to 30

degrees. Muscle development and strength was normal. There

was minimal to mild tenderness to palpation in the shoulder

and elbow, and no radiculopathy. There was no objective

evidence of additional loss of range of motion due to

weakness, pain, excess fatigability, or incoordination. The

veteran stated that he had not had any elbow symptoms for the

past month. His right elbow pain did not interfere with his

work. The veteran was employed as an electrician and

plumber. The examiner stated that the veteran's right

shoulder bursitis slowed his ability to work overhead, but

did not preclude it.

In a March 1997 rating decision, the disability ratings were

increased from zero to 10 percent, effective July 1, 1992.

Private treatment records dated through October 1997 showed

continued right shoulder pain and an assessment of

acromiclavicular arthritis.

At VA examinations in December 1999, neurological findings

showed mild subjective decreased pinprick over the proximal

right upper extremity as compared to the left, and decreased

temperature sense over the right as compared to the left.

Objective parameters were normal and range of motion of all

joints, including the right shoulder was excellent. There

was no tenderness to palpation of the joints or muscles, and

pain manifested with movement of the right shoulder and

resistance to sustained opposing force in the shoulder

muscles during the strength testing. The examiner found no

primary neurological basis for the veteran's complaints, and

his problems were deemed to be mechanical and musculoskeletal

in nature. Symptoms were not inconsistent with shoulder

bursitis. Specifically, shoulder flexion was to 45 degrees

and the veteran was able to raise his arms above his head

with the elbows extended, with a mild degree of right

shoulder discomfort. Shoulder abduction was to 120 degrees,

Anterior to posterior range of motion of the shoulder was 180

degrees. Elbow extension was to 180 degrees.

In June 2000, Dr. Langrock indicated that the veteran had

chronic acromiclavicular arthritis of his right shoulder.

His examination revealed that the veteran had difficulty

elevating his shoulder on 150 degrees because of

acromiclavicular joint stiffness and compromised internal

range of motion due to acromiclavicular arthritis. It was

noted that the veteran had had received physical therapy to

his right shoulder from January 2000 until February 2000, and

that his range of motion with internal and external rotation

improved with that therapy. His acromiclavicular joint

arthritis did not improve during physical therapy, consistent

with what Dr. Langrock believed to be permanent disability

related to the veteran's injury.

The private treatment records showing the veteran's physical

therapy are also of record. In a June 2000 discharge note,

it was noted that the veteran had met the therapy goals with

treatment plan of soft tissue mobilization, therapeutic

exercise for stretching and light strengthening and use of

modalities. Treatment was for the right elbow, and continued

with cortisone shots in 2001.

At VA examination in October 2002, the veteran was evaluated

by an orthopedic surgeon who reviewed the claim folder. The

veteran reported stiffness and pain, with flare-ups in the

right shoulder. The veteran worked as a general maintenance

person doing plumbing, electrical and carpentry work. He

denied having any time lost due to his right shoulder

disability. He reported increased discomfort in the right

shoulder with overhead and driving. He took the medication

Ibuprofen for the right shoulder pain. He also reported

right elbow pain daily.

Physical examination revealed that here was mild tenderness

to the right lateral shoulder by the greater tuberosity, and

no tenderness anteriorly, posteriorly, or over the

acromiclavicular joint of the right shoulder. There was a 4

inch, nontender, healed oblique surgical scar skin over the

acromiclavicular joint. Range of motion showed right

shoulder flexion to 175 degrees. There was a feeling of

tightness at 135 degrees, but he could further flex to 175

degrees. Active and passive flexion of both shoulders was

the same at 175 degrees. Extension actively and passively

was 45 degrees for the right shoulder. Internal rotation was

85 degrees for the right shoulder. With circumduction, there

was mild feeling of crepitus in the area of the

acromiclavicular joint right shoulder but no apparent pain

and no grimacing. With respect to the right elbow, there was

full range of motion from 0 degrees of extension to 135

degrees of flexion. Supination was to 85 degrees without

pain. There was no tenderness of the elbow.

Neurological evaluation revealed that biceps and triceps

reflexes were mildly diminished bilaterally. There was no

weakness to grip strength or intrinsic muscles strengthening

of either hand. It was noted that the veteran was right

handed. There was no numbness noted to light touch over the

shoulders, arms or forearms.

In the discussion section, the examiner stated the following:

There is no evidence of bursitis of the right elbow or

bursitis of the right shoulder at this time. He has

symptoms suggestive of rotator cuff degeneration of

the right shoulder and degenerative arthritis of the

acromiclavicular joint of the right shoulder....I do

not find signs of olecranon bursitis at this time. He

does not tolerate pressure of the skin over the

olecranon bursa....I do not note any grimacing with

active or passive motion of the veteran's shoulders or

elbows. No demonstrable atrophy is noted of the right

arm or the right forearm. Right arm and forearm

circumference measurements are larger than the left

(he is right handed). There are no skin changes

indicative of disuse related to the service-connected

disabilities. The veteran did not complain of any

pain on examination of the right elbow nor palpation

nor the right elbow olecranon bursa or lateral elbow

on examination today. The veteran has a feeling of

tightness to the right shoulder but there is no

restriction of motion (flexion 175 degrees

bilaterally), no restriction of extension, no

restriction of internal or external rotation, and not

restriction of abduction (175 degrees bilaterally).

No restriction to adduction (30 degrees bilaterally).

A feeling of tightness in the right shoulder by the

acromiclavicular joint with adduction of the right

shoulder but there is no restriction of motion.

I did not find any evidence of weakened movement,

excess fatigability or incoordination. The veteran

describes painful right shoulder with prolonged

overhead use, but I do not note painful motion or any

grimacing with shoulder exam today. The veteran does

not describe any specific flare-ups either of his

shoulder....

Further x-rays examination of the right shoulder and right

elbow were ordered to assess for arthritis. In the

corresponding report, dated in October 2002, right shoulder

acromiclavicular joint arthritis was noted. The elbow x-rays

were interpreted as normal.

Legal analysis

Disability ratings are determined by applying the criteria

set forth in VAs Schedule for Rating Disabilities (Rating

Schedule). Ratings are based on the average impairment of

earning capacity. Individual disabilities are assigned

separate diagnostic codes. See 38 U.S.C.A. § 1155; 38

C.F.R. § 4.1. 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 required for that rating. Otherwise, the lower

rating will be assigned. See 38 C.F.R. § 4.7.

The veteran is contesting the disability evaluations that

were assigned following the grant of service connection in

1993. This matter therefore is to be distinguished from one

in which a claim for an increased rating of a disability has

been filed after a grant of service connection. The Court

has observed that in the latter instance, evidence of the

present level of the disability is of primary concern,

Fenderson v. West, 12 Vet. App. 119, 126 (1999) (citing

Francisco v. Brown, 7 Vet. App. 55 (1994)), and that as to

the original assignment of a disability evaluation, VA must

address all evidence that was of record from the date the

filing of the claim on which service connection was granted

(or from other applicable effective date). See Fenderson, 12

Vet. App. at 126-127. Accordingly, the evidence pertaining

to an original evaluation might require the issuance of

separate, or "staged," evaluations of the disability based

on the facts shown to exist during the separate periods of

time. Id. In this case, the Board agrees with the current

disability evaluations of 10 percent, respectively, for

bursitis of the right shoulder with degenerative arthritis,

and bursitis of the right elbow, and that the 10 percent

evolutions are warranted from the day following service

separation. As indicated further below, no increased rating,

at any stage of this appeal, is warranted for either

disability.

The service connected right shoulder and elbow disabilities

are rated 10 percent disabling under Diagnostic Code 5019 for

bursitis. The right is the major joint. Diagnostic Code

5019 bursitis, instructs that the disability will be rated on

limitation of motion of the affected part as degenerative

arthritis. 38 C.F.R. Part 4, § 4.71a, Diagnostic Code 5019

(2003).

Diagnostic code 5003, degenerative arthritis, requires rating

according to the limitation of motion of the affected joints,

if such would result in a compensable disability rating. 38

C.F.R. § 4.71a, Diagnostic Code 5003 (2003). When the

limitation of motion of the specific joint or joints involved

is noncompensable under the appropriate diagnostic codes, a

rating of 10 percent is assigned for each such major joint or

group of minor joints affected by limitation of motion, to be

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 (2003).

The veteran's right shoulder may be rated under Diagnostic

Code 5201 for limitation of motion of the arm (shoulder).

The condition is currently rated as 10 percent disabling, and

a 20 percent rating contemplates the major arm being limited

to shoulder level. A 30 percent rating contemplates

limitation of the major arm to midway between side and

shoulder level, while a 40 percent rating requires limitation

to 25 degrees from the side. 38 C.F.R. § 4.71a, Diagnostic

Code 5201 (2003).

The preponderance of the evidence is against the veteran's

claim for an increased rating for his service connected right

shoulder. The evidence of record shows that the veteran has

subjective complaints of right shoulder pain, with use

overhead. There are no current objective findings of

bursitis, and there is x-ray confirmation of acromiclavicular

joint arthritis. The veteran has full and excellent range of

motion for the right shoulder, with no objectively observed

painful motion, no weakened movement, no excess fatigability,

and no incoordination. This level of disability is

contemplated by the 10 percent rating currently assigned. As

such, he does not warrant an increased rating. 38 C.F.R.

§ 4.71a, Diagnostic Code 5201 (2003).

The Board has considered all applicable diagnostic criteria

in determining whether an increased evaluation is warranted.

There is, however, no evidence of favorable ankylosis of

scapulohumeral articulation, with abduction to 60 degrees and

the ability to reach the mouth and head (30 percent under

Diagnostic Code 5200); or either recurrent dislocation of the

humerus with frequent episodes and guarding of arm

movements, or malunion of the humerus with marked deformity

(both warranting a 30 percent evaluation under Diagnostic

Code 5202). There have been no complaints or objective

findings of dislocation or nonunion of the clavicle or

scapula. See 38 C.F.R. § 4.71a, Diagnostic Code 5203. Nor

are there any neurological residuals that have been

associated with the veteran's service-connected right

shoulder disorder. See 38 C.F.R. § 4.124a. In sum, the

preponderance of the evidence is against the claim for a

rating higher than 10 percent for right shoulder bursitis.

The Rating Schedule provides ratings for limitation of

flexion of the major forearm when flexion is limited to 110

degrees (0 percent), 100 degrees (10 percent), 90 degrees (20

percent), 70 degrees (30 percent), 55 degrees (40 percent) or

45 degrees (50 percent). 38 C.F.R. § 4.71a, Diagnostic Code

5206 (2003). Compensable ratings are assigned for limitation

of extension of the major forearm when extension is limited

to 60 degrees (10 percent), 75 degrees (20 percent), 90

degrees (30 percent), 100 degrees (40 percent) or 110 degrees

(50 percent). 38 C.F.R. § 4.71a, Diagnostic Code 5207.

Normal elbow extension and flexion is from 0 to 145 degrees.

38 C.F.R. § 4.71 (Plate I) (2003).

The Rating Schedule provides ratings for limitation of

pronation of the forearm of the major upper extremity if

motion is lost beyond the last quarter of the arc and the

hand does not approach full pronation (20 percent), and for

motion lost beyond the middle of the arc (30 percent). 38

C.F.R. § 4.71a, Diagnostic Code 5213. Normal pronation is

from 0 to 80 degrees and normal supination is from 0 to 85

degrees. 38 C.F.R. § 4.71 (Plate I).

Based upon the evidence of record, the Board finds that a

rating in excess of the currently assigned 10 percent for

right elbow bursitis is not warranted. There is no evidence

of any limitation of right elbow motion, including as a

result of pain or dysfunction. In fact, as with the right

shoulder, the most recent VA examiner found no bursitis of

the right elbow (no tenderness), and normal x-rays of the

right elbow. The veteran has full and unrestricted range of

motion of the right elbow, and supination of the forearm was

80 degrees without apparent pain. Physical therapy in 2000

and 2001 for the elbow was successful. The veteran has

subjective complaints of pain. The sum of the veteran's

symptoms does not equate to the criteria for a 20 percent

evaluation. In sum, the preponderance of the evidence is

against the claim for a rating higher than 10 percent for

right elbow bursitis.

The Court held in DeLuca v. Brown, 8 Vet. App. 202 (1995),

that, in evaluating a service-connected disability involving

a joint, 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 found that diagnostic codes pertaining to range of

motion do not subsume 38 C.F.R. § 4.40 and § 4.45, and that

the rule against pyramiding set forth in 38 C.F.R. § 4.14

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 DeLuca criteria has been

considered for the veteran's right shoulder and elbow

disabilities. However, they would not result in a higher

evaluations for the veteran in this case, because the veteran

is receiving the appropriate schedular evaluation, even

considering his complaints of pain and limitation. Objective

evidence, in fact, shows that he does not have functional

loss due to pain, weakness or fatigability. In short, the

evidence of record is consistent with the evaluations noted,

and no more, for the veteran's service-connected right

shoulder and right elbow disabilities.

In reaching this determination, the Board acknowledges that

VA is statutorily required to resolve the benefit of the

doubt in favor of the veteran when there is an approximate

balance of positive and negative evidence regarding the

merits of an outstanding issue. That doctrine, however, is

not applicable in this case because, again, the preponderance

of the evidence is against the veteran's claims. See Gilbert

v. Derwinski, 1 Vet. App. 49, 55 (1990); 38 U.S.C.A.

§ 5107(;).

Lastly, the Board has based its decision in this case upon

the applicable provisions of Rating Schedule. The veteran

has submitted no evidence showing that his service-connected

right shoulder and right elbow disabilities have markedly

interfered with his employment status beyond that

interference contemplated by the assigned evaluations, and

there is also no indication that these disorders have

necessitated frequent periods of hospitalization during the

pendency of this appeal. The veteran is employed and has

lost no time from work due to his service-connected

disabilities. As such, the Board is not required to remand

this matter to the RO for the procedural actions outlined in

38 C.F.R. § 3.321(B)(1), which concern the assignment of

extra-schedular evaluations in "exceptional" cases. See

Bagwell v. Brown, 9 Vet. App. 337, 338-39 (1996); Floyd v.

Brown, 9 Vet. App. 88, 94-95 (1996); Shipwash v. Brown, 8

Vet. App. 218, 227 (1995).

ORDER

A higher evaluation for bursitis of the right shoulder with

degenerative joint disease, currently rated as 10 percent

disabling, is denied.

A higher evaluation for bursitis of the right elbow,

currently rated as 10 percent disabling, is denied.

____________________________________________

P. M. DILORENZO

Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs

YOUR RIGHTS TO APPEAL OUR DECISION

The attached decision by the Board of Veterans' Appeals (BVA or Board) is

the final decision for all issues addressed in the "Order" section of the

decision. The Board may also choose to remand an issue or issues to the

local VA office for additional development. If the Board did this in your

case, then a "Remand" section follows the "Order." However, you cannot

appeal an issue remanded to the local VA office because a remand is not a

final decision. The advice below on how to appeal a claim applies only to

issues that were allowed, denied, or dismissed in the "Order."

If you are satisfied with the outcome of your appeal, you do not need to do

anything. We will return your file to your local VA office to implement

the BVA's decision. However, if you are not satisfied with the Board's

decision on any or all of the issues allowed, denied, or dismissed, you

have the following options, which are listed in no particular order of

importance:

? Appeal to the United States Court of Appeals for Veterans Claims

(Court)

? File with the Board a motion for reconsideration of this decision

? File with the Board a motion to vacate this decision

? File with the Board a motion for revision of this decision based on

clear and unmistakable error.

Although it would not affect this BVA decision, you may choose to also:

? Reopen your claim at the local VA office by submitting new and

material evidence.

There is no time limit for filing a motion for reconsideration, a motion to

vacate, or a motion for revision based on clear and unmistakable error with

the Board, or a claim to reopen at the local VA office. None of these

things is mutually exclusive - you can do all five things at the same time

if you wish. However, if you file a Notice of Appeal with the Court and a

motion with the Board at the same time, this may delay your case because of

jurisdictional conflicts. If you file a Notice of Appeal with the Court

before you file a motion with the BVA, the BVA will not be able to consider

your motion without the Court's permission.

How long do I have to start my appeal to the Court? You have 120 days from

the date this decision was mailed to you (as shown on the first page of

this decision) to file a Notice of Appeal with the United States Court of

Appeals for Veterans Claims. If you also want to file a motion for

reconsideration or a motion to vacate, you will still have time to appeal

to the Court. As long as you file your motion(s) with the Board within 120

days of the date this decision was mailed to you, you will then have

another 120 days from the date the BVA decides the motion for

reconsideration or the motion to vacate to appeal to the Court. You should

know that even if you have a representative, as discussed below, it is your

responsibility to make sure that your appeal to Court is filed on time.

How do I appeal to the United States Court of Appeals for Veterans Claims?

Send your Notice of Appeal to the Court at:

Clerk, U.S. Court of Appeals for Veterans Claims

625 Indiana Avenue, NW, Suite 900

Washington, DC 20004-2950

You can get information about the Notice of Appeal, the procedure for

filing a Notice of Appeal, the filing fee (or a motion to waive the filing

fee if payment would cause financial hardship), and other matters covered

by the Court's rules directly from the Court. You can also get this

information from the Court's web site on the Internet at

www.vetapp.uscourts.gov, and you can download forms directly from that

website. The Court's facsimile number is (202) 501-5848.

To ensure full protection of your right of appeal to the Court, you must

file your Notice of Appeal with the Court, not with the Board, or any other

VA office.

How do I file a motion for reconsideration? You can file a motion asking

the BVA to reconsider any part of this decision by writing a letter to the

BVA stating why you believe that the BVA committed an obvious error of fact

or law in this decision, or stating that new and material military service

records have been discovered that apply to your appeal. If the BVA has

decided more than one issue, be sure to tell us which issue(s) you want

reconsidered. Send your letter to:

Director, Management and Administration (014)

Board of Veterans' Appeals

810 Vermont Avenue, NW

Washington, DC 20420

VA

FORM

JUN

2003

(RS)

4597

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1

CONTINUED

Remember, the Board places no time limit on filing a motion for

reconsideration, and you can do this at any time. However, if you also plan

to appeal this decision to the Court, you must file your motion within 120

days from the date of this decision.

How do I file a motion to vacate? You can file a motion asking the BVA to

vacate any part of this decision by writing a letter to the BVA stating why

you believe you were denied due process of law during your appeal. For

example, you were denied your right to representation through action or

inaction by VA personnel, you were not provided a Statement of the Case or

Supplemental Statement of the Case, or you did not get a personal hearing

that you requested. You can also file a motion to vacate any part of this

decision on the basis that the Board allowed benefits based on false or

fraudulent evidence. Send this motion to the address above for the

Director, Management and Administration, at the Board. Remember, the Board

places no time limit on filing a motion to vacate, and you can do this at

any time. However, if you also plan to appeal this decision to the Court,

you must file your motion within 120 days from the date of this decision.

How do I file a motion to revise the Board's decision on the basis of clear

and unmistakable error? You can file a motion asking that the Board revise

this decision if you believe that the decision is based on "clear and

unmistakable error" (CUE). Send this motion to the address above for the

Director, Management and Administration, at the Board. You should be

careful when preparing such a motion because it must meet specific

requirements, and the Board will not review a final decision on this basis

more than once. You should carefully review the Board's Rules of Practice

on CUE, 38 C.F.R. 20.1400 -- 20.1411, and seek help from a qualified

representative before filing such a motion. See discussion on

representation below. Remember, the Board places no time limit on filing a

CUE review motion, and you can do this at any time.

How do I reopen my claim? You can ask your local VA office to reopen your

claim by simply sending them a statement indicating that you want to reopen

your claim. However, to be successful in reopening your claim, you must

submit new and material evidence to that office. See 38 C.F.R. 3.156(a).

Can someone represent me in my appeal? Yes. You can always represent

yourself in any claim before VA, including the BVA, but you can also

appoint someone to represent you. An accredited representative of a

recognized service organization may represent you free of charge. VA

approves these organizations to help veterans, service members, and

dependents prepare their claims and present them to VA. An accredited

representative works for the service organization and knows how to prepare

and present claims. You can find a listing of these organizations on the

Internet at: www.va.gov/vso. You can also choose to be represented by a

private attorney or by an "agent." (An agent is a person who is not a

lawyer, but is specially accredited by VA.)

If you want someone to represent you before the Court, rather than before

VA, then you can get information on how to do so by writing directly to the

Court. Upon request, the Court will provide you with a state-by-state

listing of persons admitted to practice before the Court who have indicated

their availability to represent appellants. This information is also

provided on the Court's website at www.vetapp.uscourts.gov.

Do I have to pay an attorney or agent to represent me? Except for a claim

involving a home or small business VA loan under Chapter 37 of title 38,

United States Code, attorneys or agents cannot charge you a fee or accept

payment for services they provide before the date BVA makes a final

decision on your appeal. If you hire an attorney or accredited agent within

1 year of a final BVA decision, then the attorney or agent is allowed to

charge you a fee for representing you before VA in most situations. An

attorney can also charge you for representing you before the Court. VA

cannot pay fees of attorneys or agents.

Fee for VA home and small business loan cases: An attorney or agent may

charge you a reasonable fee for services involving a VA home loan or small

business loan. For more information, read section 5904, title 38, United

States Code.

In all cases, a copy of any fee agreement between you and an attorney or

accredited agent must be sent to:

Office of the Senior Deputy Vice Chairman (012)

Board of Veterans' Appeals

810 Vermont Avenue, NW

Washington, DC 20420

The Board may decide, on its own, to review a fee agreement for

reasonableness, or you or your attorney or agent can file a motion asking

the Board to do so. Send such a motion to the address above for the Office

of the Senior Deputy Vice Chairman at the Board.

VA

FORM

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2003

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