UNITED STATES COURT OF VETERANS APPEALS

No. 94-242

Guido DeLuca, Appellant,

v\.

Jesse Brown,

Secretary of Veterans Affairs, Appellee.

On Appeal from the Board of Veterans\' Appeals

(Argued July 31, 1995 Decided September 22, 1995 )

Susan Paczak for the appellant.

Amy S. Gordon, with whom Mary Lou Keener, General Counsel; Norman G.
Cooper, Assistant General Counsel; and Adrienne Koerber, Deputy
Assistant General Counsel, were on the brief, for the appellee.

Before NEBEKER, Chief Judge, and KRAMER and STEINBERG, Judges.

STEINBERG, Judge: The appellant, Korean conflict veteran Guido DeLuca,
appeals an October 28, 1993, Board of Veterans\' Appeals (BVA or Board)
decision denying entitlement to an increased disability rating for a
left-shoulder disorder, currently evaluated as 20% disabling. Record
(R.) at 9. Both parties filed briefs. This is the second time this case
has been before the Court. The BVA decision currently here on appeal was
issued pursuant to a May 1993 Court decision vacating a June 1991 Board
decision and remanding the matter. For the reasons that follow, the
Court will vacate the October 1993 Board decision and remand the matter
again.

I. Background

The veteran served on active duty in the U.S. Army from October 1952 to
October 1954. R. at 51. He asserts that his entire left side, including
his shoulder, was injured \"when a shell exploded near him\" during
service. Brief (Br.) at 7; see also R. at 100-01. A service medical
record (SMR) dated July 1954 records the veteran\'s complaint of
\"shrapnel\" in his foot (R. at 38), but there is no diagnosis of or
treatment for a shrapnel injury noted in his SMRs (see R. at 23-51, 100,
107, 144). In March 1984, the BVA recommended that service connection be
awarded administratively by the Veterans\' Administration (now
Department of Veterans Affairs) (VA) for \"arthralgia of the left
shoulder\". R. at 145. (\"Arthralgia\" is \"pain in a joint\",
Dorland\'s Illustrated Medical Dictionary 147 (27th ed. 1988).) A
February 1985 VA regional office (RO) decision granted service
connection for left-shoulder arthralgia, effective from February 1982,
rated 0% disabling. In an April 1987 decision, the Board granted
entitlement to a 10% disability rating for left-shoulder arthralgia,
effective from February 1982. R. at 206, 208.

A private orthopedist, Dr. Levine, in a March 1989 medical report, noted
an impression of \"scapulothoracic bursitis, left arm\", and found the
patient to be \"totally asymptomatic\" at that time. R. at 255. The
veteran also submitted an April 1989 statement from a private physician,
Dr. Scherer, who stated that when he had evaluated the veteran in
September 1988 \"he was having constant throbbing pain \[and\] was
unable to raise his left arm above his head and in fact he could only
abduct his arm at 45ø from the body\"; the physician further noted that
\"it is going to be a chronic problem and it does tend to flare \[up\]
at times although he will have some good days.\" R. at 212.

A June 1989 VA medical examination report diagnosed a \"\[f\]rozen
\[l\]eft shoulder\" and \"arthritis \[of the\] cervical spine (C 5-7)\".
R. at 218. An April 1990 VA medical examination report noted that
left-shoulder abduction was 50ø, anterior extension was 40ø, posterior
extension was 35ø, and internal rotation was \"only slightly limited\".
R. at 246. The \"impression\" was \"frozen shoulder syndrome on the
non-dominant side with some degree of psychogenic overlay\" and that
\"restricted mobility . . . was in part due to voluntary guarding.\" R.
at 247. A June 1990 VARO decision increased the left-shoulder rating to
20% disabling, effective May 1989. The BVA denied a further increase in
the rating in a June 6, 1991, decision (R. at 312), and the veteran
appealed to this Court.

In May 1993, the Court issued a memorandum decision vacating the June
1991 BVA decision and remanding the matter for \"prompt further
readjudication, consistent with this decision, on the basis of all
evidence and material of record and all applicable law and regulation\".
DeLuca v. Brown, 6 Vet.App. 321 (1993) (mem. dec.). The Court ordered
the Board to consider the application of 38 C.F.R. § 4.40 regarding
functional loss due to pain; 38 C.F.R. § 4.45 regarding weakness,
fatigability, incoordination, or pain on movement of a joint; and the
Court\'s decisions in Schafrath v. Derwinski, 1 Vet.App. 589 (1991), and
Ferraro v. Derwinski, 1 Vet.App. 326 (1991).

The October 1993 BVA decision currently here on appeal was issued
pursuant to the Court\'s May 1993 memorandum decision. The record does
not indicate that the BVA undertook any further factual development on
remand, or that the veteran submitted additional evidence or comment.
The BVA determined that §§ 4.40 and 4.45 did not provide for an
increased rating for the veteran\'s left-shoulder disability because
that disability had been rated under 38 C.F.R. § 4.71, Diagnostic Code
(DC) 5201, which \"contemplates the functional loss resulting from pain
on undertaking motion.\" R. at 12. The BVA further determined that §
4.45 did not provide for an increased rating in the instant case because
\"\[w\]eakened movement and excess fatigability usually are associated
with muscle injury\"; because \"\[i\]ncoordination is usually associated
with disease or injury affecting the peripheral nerves\"; and because
this veteran\'s disability was not associated with \"nerve injury\" or
\"muscle injury, as such, to the left shoulder girdle\". R. at 12-13.

II\. Analysis

A. 38 C.F.R. § 4.40

In its October 1993 decision, the BVA cited DC 5201, which provides the
following disability ratings for limitation of motion of the minor arm:

To 25ø from side . . . . . . . . . . . . . . . . . . . . . . 30%

Midway between side and shoulder level . . . . 20%

At shoulder level . . . . . . . . . . . . . . . . . . . . . . 20%

38 C.F.R. § 4.71, DC 5201 (1994). The Board found that no increase was
warranted in the veteran\'s 20% disability rating because the April 1990
VA examination report had indicated that his left-shoulder anterior
extension was 40ø and abduction was 50ø and these motion ranges more
closely approximated the 45ø which constitutes motion to \"\[m\]idway
between side and shoulder level\" than they did the motion range to 25ø
required for a 30% rating. R. at 10-11; see 38 C.F.R. § 4.7 (1994)
(\"Where there is a question as to which of two evaluations shall be
applied, the higher evaluation will be assigned if the disability
picture more nearly approximates the criteria required for that rating.
Otherwise, the lower rating will be assigned.\").

The regulation for musculoskeletal-system functional loss in § 4.40
provides:

Disability of the musculoskeletal system is primarily the inability, due
to damage or infection in parts of the system, to perform the normal
working movements of the body with normal excursion, strength, speed,
coordination and endurance. It is essential that the examination on
which ratings are based adequately portray the anatomical damage, and
the functional loss, with respect to all these elements. The functional
loss may be due to absence of part, or all, of the necessary bones,
joints and muscles, or associated structures, or to deformity,
adhesions, defective innervation, or other pathology, or it may be due
to pain, supported by adequate pathology and evidenced by the visible
behavior of the claimant undertaking the motion. Weakness is as
important as limitation of motion, and a part which becomes painful on
use must be regarded as seriously disabled. A little used part of the
musculoskeletal system may be expected to show evidence of disuse,
either through atrophy, the condition of the skin, absence of normal
callosity\[,\] or the like.

38 C.F.R. § 4.40 (1994) (emphasis added). The BVA stated that it was not
necessary to rate the veteran\'s pain separately under § 4.40 in the
instant case because \"where a diagnostic code, such as 5201, provides a
compensable rating for limitation of motion of a major joint, that
compensable rating contemplates the functional loss resulting from pain
on undertaking motion\" (R at 11-12), and thus, the Secretary concludes,
the Board did apply § 4.40 sufficiently (Br. at 10). In support of its
conclusion, the Board cited 38 C.F.R. § 4.14, \"Avoidance of
pyramiding\", which provides:

The evaluation of the same disability under various diagnoses is to be
avoided. Disability from injuries to the muscles, nerves, and joints of
an extremity may overlap to a great extent, so that special rules are
included in the appropriate bodily system for their evaluation. Dyspnea,
tachycardia, nervousness, fatigability, etc., may result from many
causes; some may be service connected, others, not. Both the use of
manifestations not resulting from service-connected disease or injury in
establishing the service-connected evaluation, and the evaluation of the
same manifestation under different diagnoses are to be avoided.

38 C.F.R. § 4.14 (1994).

The Board\'s and the Secretary\'s interpretation is that, because pain
can cause limitation of motion, any regulation that specifies a rating
for limitation of motion ipso facto includes a rating for pain, and thus
the application of § 4.40 in the instant case would constitute
pyramiding of ratings. The Secretary asserts that, although \"the BVA
may have been overbroad in its discussion regarding \[DCs\] involving
limitation of motion\", the Board was nevertheless correct in its
assertion that pain was considered in rating the veteran in this
particular case. Br. at 10. The Secretary cites the April 1990 VA
medical examination report which noted that the veteran\'s range of
motion was affected by \"voluntary guarding\" (R. at 247), and argues
that, \"\[c\]onsequently\", the veteran\'s \"pain was considered in
determining the appropriate evaluation for his disability\". Br. at 10.
In fact, the Board stated specifically:

In the present case, the veteran\'s complaints of pain have been
considered . . . . We note that the examiner indicated that the
veteran\'s range of motion was limited by guarding. Thus, the presence
of or anticipation of pain in the left shoulder prevented the veteran
from attaining fuller range of motion than demonstrated on examination.
The veteran\'s current award is based, in part, on his left shoulder
pain which inhibits left shoulder motion.

R. at 12.

Range of motion undoubtedly can be affected by pain in certain
situations, and a limitation of motion due to pain might indeed be
reflected in a rating under DC 5201. However, § 4.40 specifically refers
to disability due to lack of normal \"endurance\", provides for a rating
to be based on \"functional loss . . . due to . . . pain\", and states
that \"a part which becomes painful on use must be regarded as seriously
disabled\" (emphasis added). Furthermore, § 4.40 provides that \"\[i\]t
is essential that the \[rating\] examination . . . adequately portray
the . . . functional loss\" (emphasis added). The veteran has testified
under oath that his arm becomes painful on use during the winter months
and causes him to miss work (R. at 14, 235-36), and there is medical
evidence that his shoulder condition will flare up at times (R. at 212).

The April 1990 VA examination relied upon by the BVA merely recorded the
veteran\'s range of motion at that time, and did not indicate
consideration of the factors cited in § 4.40, and required by § 4.40 to
be considered and portrayed in the rating examination, as to functional
loss on use or due to flare-ups. See Voyles v. Brown, 5 Vet.App. 451,
453 (1993) (Board decision \"specifically noted the limitation of
motion\" but \"failed to make any findings as to the extent of the
appellant\'s pain on motion\" pursuant to §§ 4.40 and 4.45 (emphasis
added)); see also Ferraro, 1 Vet.App. at 330. When a medical examination
report \"does not contain sufficient detail\", the adjudicator is
required to \"return the report as inadequate for evaluation purposes.\"
38 C.F.R. § 4.2 (1994); see also Bierman v. Brown, 6 Vet.App. 125, 129
(1994) (medical examiner must \"furnish\[\], in addition to the
etiological, anatomical, pathological, laboratory\[,\] and prognostic
data required for ordinary medical classification, full description of
the effects of disability upon the person\'s ordinary activity\")
(quoting 38 C.F.R. § .10 (1994)); Schafrath, 1 Vet.App. at 595.
Accordingly, the case must be remanded for the Board to obtain a new
medical examination which complies with the requirements of §4.40, and
the medical examiner must be asked to express an opinion on whether pain
could significantly limit functional ability during flare-ups or when
the arm is used repeatedly over a period of time. See Voyles, 5 Vet.App.
at 454. Because DC 5201 provides for a rating solely on the basis of
loss of range of motion, these determinations should, if feasible, be
\"portray\[ed\]\" (§4.40) in terms of the degree of additional
range-of-motion loss due to pain on use or during flare-ups. Cf. Lathan
v. Brown, 7 Vet.App. 359, 367 (1995) (in ordering medical opinion on
remand in dependency and indemnity compensation case, VA should
\"consider the feasibility of requesting that the physician express in
percentage terms the probability that the veteran\'s service-connected
disability caused or contributed to death\").

The Court holds that DC 5201 does not subsume 38 C.F.R. §4.40, and that
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 during
flare-ups. See Schafrath, 1 Vet.App. at 592-93 (holding that BVA\'s
failure to consider § 4.40 was improper when that regulation had been
made potentially applicable through assertions and issues raised in
record); see also Quarles v. Derwinski, 3 Vet.App. 129, 139-40 (1992).

B. 38 C.F.R. § 4.45

The Court\'s May 1993 memorandum decision noted that 38 C.F.R. § 4.45
\"provides that in rating disabilities of joints, \`inquiry will be
directed to\' \`\[w\]eakened movement\', \`\[e\]xcess fatigability\',
\`\[i\]ncoordination\', and \`\[p\]ain on movement\', in addition to
limitation of motion.\" DeLuca, 6 Vet.App. at 324. The October 1993 BVA
decision declined to apply § 4.45 in the instant case on the grounds
that \"\[w\]eakened movement and excess fatigability usually are
associated with muscle injury\" and \"\[i\]ncoordination . . . is
usually associated with disease or injury affecting the peripheral
nerves of the upper extremity\", whereas the veteran\'s left-shoulder
condition \"has never been associated with muscle injury as such\" and
there was no \"nerve injury\". R. at 12-13. The Secretary adopted this
argument. See Br. at 11. The Board cited the report from Dr. Levine,
which stated that no significant atrophy of the left-shoulder girdle was
found, and the 1990 VA medical report, which \"described no weakness of
movement or excess fatigability of the left shoulder girdle
musculature.\" R. at 13. However, the 1990 VA medical report did not
specify that there was no weakness of movement or excess fatigability of
the left shoulder girdle musculature; it did not address these issues.
R. at 245-47.

The Board\'s reading of § 4.45 cannot be sustained. The plain language
of § 4.45 indicates that \"\[w\]eakened movement\", \"\[e\]xcess
fatigability\", and \"\[i\]ncoordination\" do not refer solely to muscle
and nerve conditions. First, the title of the regulation is \"The
joints\", not \"The muscles\" or \"The nerves\". Cf. 38 C.F.R. § 4.50
(\"Muscle injuries\"); 38 C.F.R. § 4.51 (\"Muscle weakness\"); 38 C.F.R.
§ 4.52 (\"Muscle damage\"); 38 C.F.R. § 4.53 (\"Muscle patterns\"); and
38 C.F.R. § 4.54 (\"Muscle groups\"). Second, the first sentence of the
regulation refers to the \"factors of disability\" of \"the joints\",
and does not refer to muscles or nerves. Third, the parenthetical in
paragraph (c) following \"\[w\]eakened movement\" refers to \"muscle
injury, disease or injury of peripheral nerves, divided or lengthened
tendons, etc.\". If \"weakened movement\" were intended to refer
exclusively to muscle or nerve disability, the regulation would not
mention \"tendons\" and would not say \"etc.\". The purpose of the list
is to indicate that muscle and nerve disabilities are merely two of the
factors that should be considered. Fourth, paragraphs (d) and (e), while
referring to \"\[e\]xcess fatigability\" and \"\[i\]ncoordination\", do
not limit their application to muscles or nerves. Accordingly, VA\'s
interpretation of its regulation, even if that interpretation predated
this litigation, see Tallman v. Brown, 7 Vet.App. 453, 463-65 (1995), is
in conflict with the plain meaning of the regulation and therefore
entitled to no deference. See Combee v. Principi, 4 Vet.App. 78, 91
(1993) (administrative agency\'s interpretation of regulation may be
entitled to deference where meaning is unclear and interpretation
\"sensibly conforms to the purpose and wording of the regulations\")
(quoting Martin v. Occupational Health and Safety Review Comm\'n, 499
U.S. 144, 151 (1991)), rev\'d on other grounds sub nom. Combee v. Brown,
34 F.3d 1039 (Fed. Cir. 1994); Combee v. Brown, 5 Vet.App. 248, 257
(1993) (Steinberg, J., dissenting) (agency interpretation of regulation
is not entitled to deference if inherently unreasonable).

Additionally, the medical records in this case do not expressly
establish that there is no involvement of muscles or nerves in the
veteran\'s disability. Therefore, it was error for the Board to so
conclude based on its own medical judgment. See Colvin v. Derwinski, 1
Vet.App. 171, 175 (1991) (\"BVA panels may consider only independent
medical evidence to support their findings\" and may not \"refut\[e\]
the expert medical conclusions in the record with \[their\] own
unsubstantiated medical conclusions\").

Consequently, in the examination ordered on remand, the medical examiner
should be asked to determine whether the left-shoulder joint exhibits
weakened movement, excess fatigability, or incoordination, and such
inquiry should not be limited to muscles or nerves. See Bierman, supra.
As noted above, these determinations should, if feasible, be expressed
in terms of the degree of additional range-of-motion loss due to any
weakened movement, excess fatigability, or incoordination. Cf. Lathan,
supra. (The Court notes that an evaluation of \"pain on movement\"
pursuant to § 4.45 would seem in this case to be duplicative of the §
4.40 requirement that pain on use must be evaluated.)

C. Applicability of Schafrath v. Derwinski

The Court\'s May 1993 decision directed the BVA to consider Schafrath,
supra. The Board decision attempted to distinguish Schafrath by stating
that in that case the veteran had complaints of pain for which he was
not being compensated because he had a noncompensable rating, whereas in
the instant case the veteran is being compensated by his current 20%
rating for his disability due to pain. The Secretary adopted this
argument. See Br. at 13. In light of the Court\'s holding that DC 5201
does not subsume 38 C.F.R. §§ 4.40 and 4.45, the Board\'s conclusion is
flawed. See Quarles, supra. On remand, the Board must consider the
application of Schafrath, Quarles, and Ferraro, all supra, to the
veteran\'s claim.

D. Reasons or Bases

The Court stated in its May 1993 decision that \"\[d\]etermination of
whether the application of sections 4.40 and 4.45 entitles the veteran
to an increased rating requires factual findings as to the extent to
which the veteran\'s left-shoulder pain and weakness cause additional
disability beyond that reflected in the measured limitation of his
left-shoulder motion.\" DeLuca, supra. The Board\'s statement of the
reasons or bases for its October 1993 decision was not adequate under 38
U.S.C. § 7104(d)(1). The Board did not explain how pain on use was
factored into its evaluation of the veteran\'s disability in terms of
limitation-of-motion equivalency under DC 5201. For example, the Board
found that the veteran\'s testimony was credible that in the winter
months his shoulder condition caused him to miss \"2 or 3 days of work a
week\". R. at 14. Yet, the Board did not explain how this impairment of
the veteran\'s employment was evaluated under DC 5201 and § 4.40. Cf. 38
C.F.R. § 4.10 (\"basis of disability evaluations is the ability . . . to
function under the ordinary conditions of daily life including
employment\"; medical examination must furnish \"full description of the
effects of disability upon the person\'s ordinary activity. . . ; person
may be too disabled to engage in employment although he or she is up and
about and fairly comfortable at home or upon limited activity\")
(emphasis added).

III\. Conclusion

Upon consideration of the record and the submissions and arguments of
the parties, the Court vacates the October 28, 1993, BVA decision and
remands the matter for expeditious further proceedings, on the basis of
all applicable law and regulation, and issuance of a readjudicated
decision supported by an adequate statement of reasons or bases, see 38
U.S.C. §§ 1310, 5107(a), 7104(d)(1), 7261; 38 C.F.R. § 4.71a; Fletcher
v. Derwinski, 1 Vet.App. 394, 397 (1991) \-- all consistent with this
opinion and in accordance with section 302 of the Veterans\' Benefits
Improvements Act, Pub. L. No. 103-446, § 302, 108 Stat. 4645, 4658
(1994) (found at 38 U.S.C. § 5101 note) (requiring Secretary to provide
for \"expeditious treatment\" for claims \"remanded\" by BVA or the
Court). See Mason v. Brown, \_\_ Vet.App. \_\_, \_\_, No. 93-1111, slip
op. at 25-26 (June 26, 1995). On remand, the appellant will be free to
submit additional evidence and argument on the remanded claim, and the
Secretary will be free to seek further development. See Quarles, 3
Vet.App. at 141. A final decision by the Board following the remand
herein ordered will constitute a new decision which, if adverse, may be
appealed to this Court only upon the filing of a new Notice of Appeal
with the Court not later than 120 days after the date on which notice of
the new Board final decision is mailed to the appellant.

VACATED AND REMANDED.