Veteranclaims’s Blog

April 15, 2009

VA can’t order exam to obtain evidence against veteran, Mariano v.Principi, No. 01-467

Mariano v. Principi, 17 Vet.App. 305, 312 (2003) (Court noted that it would not be permissible for VA to undertake further development if purpose was to obtain evidence against appellant’s case)

Might also look at:
Adams v. Principi, 256 F.3d 1318 (Fed. Cir. 2001), (in which the court stated that it would be improper for the Veterans Court to remand a case to the Board to give the DVA another opportunity to develop evidence needed to satisfy an evidentiary burden it had failed to satisfy the first time, i.e., to “attempt to introduce new evidence sufficient to make up the shortfall” in the agency’s proof. Id. at 1322.”
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UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS

No. 01-467

Segundo Mariano, Appellant,

v.

Anthony J. Principi,
Secretary of Veterans Affairs, Appellee.

On Appeal from the Board of Veterans’ Appeals

(Argued May 13, 2003
Decided October 22, 2003
)

Ronald L. Smith, with whom Landon E. Overby (non-attorney
practitioner) was on the pleadings, both of Washington, D.C., for the
appellant.

Mary Flynn, with whom Tim S. McClain, General Counsel; R. Randall
Campbell, Assistant General Counsel; Joan E. Moriarty, Deputy Assistant
General Counsel; and Ari Nazarov were on the pleadings, all of Washington,
D.C., for the appellee.

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

KRAMER, Chief Judge: The appellant appeals, through counsel, a
November 17, 2000, Board of Veterans’ Appeals (Board or BVA) decision
that denied an increased disability rating for his service-connected
residuals of a gunshot wound (GSW) to the left shoulder, affecting Muscle
Group (MG) I, currently rated as 10% disabling. Record (R.) at 2, 18-22,
24. The appellant and the Secretary have filed briefs, and the appellant
has filed a reply brief. Pursuant to a Court order, the appellant has
filed a supplemental brief and the Secretary has filed a response
addressing, inter alia, (1) several questions regarding the enactment of
the Veterans Benefits Act of 2002, Pub. L. No. 107- 330, 401, 116 Stat.
2820, 2832 (VBA), and (2) whether there is any binding administrative
precedent as to the criteria for receipt of a 20% disability rating under
38 C.F.R. 4.71a, Diagnostic Code (DC) 5201 (2002). The parties also
have filed, pursuant to another Court order, supplemental memoranda
addressing the impact, if any, on this case of the Court’s recent order
in Roberson v. Principi, 17 Vet.App. 135 (2003) (per curiam order).
This appeal is timely, and the Court has jurisdiction pursuant to 38 U.S.C
. 7252(a) and 7266(a). For the reasons that follow, the Court will
affirm in part and will reverse in part and vacate in part the Board’s
decision and remand several matters for readjudication consistent with
this opinion.

I. Background
The appellant served on active duty from March 1943 to February 1946.
R. at 2, 32, 48. During that service, he was hospitalized from December 7,
1944, to December 31, 1944, as a result of a GSW to the left shoulder that
he sustained from enemy rifle fire. R. at 32, 34. (The appellant also
sustained a GSW to his right upper thigh and was hospitalized from April
1945 to June 1945. No issue with respect to that right-upper-thigh GSW is
on appeal here.) In August 1954, the appellant submitted an application
for VA compensation or pension for, inter alia, the GSW to his left
shoulder. R. at 36-38. In a March 1956 decision, a VA regional office (
RO) awarded service connection for, inter alia, the appellant’s through-
and-through GSW to the left shoulder region (minor) and assigned a 10%
disability rating under the 1945 VA Schedule for Rating Disabilities, DC
5301, effective July 6, 1954. R. at 61-62; see R. at 55-59 (June 1955 VA
medical examination report in which examiner, inter alia, identified
trapezius as muscle involved); 1945 VA Schedule for Rating Disabilities,
DC 5301 (injury to MG I of which trapezius is part). The appellant did
not appeal that RO decision.
In September 1972, the appellant in essence sought an increased
rating for his service-connected GSW to the left shoulder. R. at 67, 68-
69. On January 23, 1973, the appellant was afforded a VA medical
examination. R. at 71-75 (examiner diagnosed, inter alia, pair of scars,
left shoulder, allegedly residuals of GSW, through-and-through, with
minimal deformity, and with limitation of motion (LOM) of left shoulder
joint, with injury to MG IV). In a March 1, 1973, decision, the RO
confirmed and continued the assigned 10% rating but “modifi[ed]” the March
1956 RO decision to reflect that the appellant’s service-connected through-
and-through GSW to the left shoulder affected MG IV and was to be rated
under 38 C.F.R. 4.73, DC 5304 (1972). R. at 77-78 (noting that
disability was rated formerly under DC 5301). The appellant did not
appeal that RO decision.
On November 9, 1983, VA received private medical records (dated
August 19, 1983) relating to the appellant. R. at 80-81. Subsequently,
the appellant, on January 12, 1984, underwent a VA medical examination. R.
at 84-88 (examiner diagnosed, inter alia, left-shoulder through-and-
through GSW with injury to MG IV). In a February 23, 1984, decision, the
RO confirmed and continued the appellant’s 10% disability rating. R. at
90. The appellant appealed that RO decision (see R. at 93-95, 97-98), and
the BVA, in an April 1, 1985, decision, denied an increased disability
rating for residuals of a GSW to the left-shoulder region, MG IV (R. at
101-06).
In July 1996, the appellant sought, inter alia, an increased rating
for his service-connected left-shoulder GSW residuals. R. at 116. (At
that time, the appellant also in essence requested a rating of total
disability based on individual unemployability (TDIU)). The RO, in
September 1996, denied the appellant’s claim because he had failed to
report for a scheduled VA medical examination. R. at 124-26; see R. at
122 (noting appellant’s failure to report), 128 (October 1996 letter to VA
from appellant in which he explained his failure to report). On November
19, 1996, the appellant was afforded a VA medical examination. See R. at
131 (November 1996 letter to appellant from RO in which RO notified him
that examination in connection with his request for increased rating for
his service-connected GSW residuals was being rescheduled). In the report
of that examination, the examiner, who had been requested to assess the
residuals of the appellant’s GSW (see R. at 120, 131), identified MG I as
the muscles penetrated in the appellant’s left shoulder (R. at 133:
muscles examination report); recorded the appellant’s left-shoulder
strength as “fair to good” (R. at 135: muscles examination report), his
complaints of pain, swelling, and limited left-shoulder range of motion (
ROM) (R. at 138: bones examination report), and his ROM in his left
shoulder to be flexion 0-90°, extension 0-25°, abduction 0-75°, and
adduction 0-40° (R. at 142: joints examination report); and diagnosed the
appellant as having hypertrophic degenerative arthritis of the left
shoulder and a shoulder muscle injury but made no comment as to any
relationship between arthritis and the appellant’s GSW (R. at 135 (muscles
examination report), 143 (joints examination report); see R. at 145 (
radiographic report listing impression of hypertrophic degenerative
changes, left shoulder, and negative for fractures and metallic foreign
bodies (MFBs)); see also R. at 140 (bones examination report reflecting
diagnosis of, inter alia, no fractures)). In an April 23, 1997, decision,
the RO continued the 10% disability rating for the appellant’s service-
connected left-shoulder
through-and-through GSW, with injury to MG IV. R. at 151-54. The
appellant filed a Notice of Disagreement (NOD) as to that RO decision (R.
at 159); the RO issued to him a Statement of the Case (SOC) (R. at 164-76);
and the appellant filed a Substantive Appeal in which he, inter alia, in
essence asserted that the November 1996 VA medical examination was
inadequate (R. at 178-79).
Subsequent to receiving the appellant’s Substantive Appeal, VA
determined that the appellant should be afforded a new medical examination “
to ascertain the nature, severity, and etiology of any [left-shoulder]
disorders” and to determine the appellant’s left-shoulder functional loss.
R. at 181; see R. at 183-84. The appellant underwent that VA medical
examination on January 20, 1998. During that examination, the examiner
determined the appellant’s left-shoulder ROM to be forward flexion 0-90°,
abduction 0-130°, external rotation 0-60°, and internal rotation 0-60°.
R. at 193, 198. Further, the muscles examiner recorded the “exact muscles
injured” in the appellant’s left shoulder as MG IV and both the muscle
strength and loss of muscle function in the appellant’s left shoulder as “
moderate muscle disability.” R. at 204-05, 207-09. The VA examiner,
after noting that he had reviewed the appellant’s claims file, diagnosed
the appellant as having residuals of GSW, left shoulder (R. at 194, 199,
206, 210), and opined that “[t]here ha[d] been no progressive
deformity/deterioration of the [appellant’s service-connected]
disabilities compared to the . . . examination [of November 1996]” (R. at
206, 210). A radiographic report from that January 1998 examination
reflects an impression of minimal degenerative arthritis, left shoulder.
R. at 211.
Following the January 1998 VA medical examination, the RO issued to
the appellant a Supplemental SOC (SSOC). R. at 224-35. In August 1998,
the appellant, through his then representative, submitted to the Board
argument as to why he should be awarded an increased rating for his
service-connected left-shoulder GSW residuals, with injury to MG IV, rated
as 10% disabling; specifically, for the first time, he contended that his
service-connected left-shoulder condition “would be more correctly rated,
at this time, under [DC] 5201 (Arm, limitation of motion of: At shoulder
level (20%)[)],” based upon the January 1998 VA examination during which
his left-shoulder forward flexion was measured as 0-90°. R. at 237-38.
Later that month, the BVA, inter alia, remanded to the RO for further
development the appellant’s left-shoulder-increased-rating claim. The
Board specifically ordered, inter alia, that the appellant be afforded a
comprehensive medical examination; the appellant’s claims folder and a
separate copy of the BVA’s remand be made
available to the examiner for review before the examination; the
examiner evaluate the appellant’s GSW residuals, identify any MG
involvement, and state specifically whether there is evidence of injury to
MG I, MG IV, or both; and the examiner set out active and passive shoulder
ROMs and state whether there is evidence of any atrophy, weakness,
incoordination, fatigue, swelling, sensory impairment, bone or joint
deformity, arthritis, neurologic impairment, or other GSW residuals. If
the examination report was inadequate for rating purposes, the RO was
directed to return the report to the examiner. R. at 259-63.
Pursuant to the August 1998 BVA remand, the appellant, on December 3,
1998, underwent a VA medical examination. In the report of that
examination, the examiner recorded that he had determined the appellant’s
left-shoulder ROM to be flexion 0-120° (active), 0-130° (passive);
extension 0-30° (active), 0-40° (passive); abduction 0-110° (active), 0-
140° (passive); internal rotation 0-90° (active and passive); and
external rotation 0-70° (active and passive). R. at 273, 278. The
examiner diagnosed the appellant as having residuals, GSW, left shoulder
and arm, and opined, following his “Diagnosis: residuals, GSW, [left]
shoulder,” that the appellant has left-shoulder LOM, especially to
abduction and flexion and, therefore, “is moderately limited” in
activities involving over-head motions, such as removing a shirt; that MGs
I and IV show no gross incapacitation; and that the appellant’s “LOM is
due primarily . . . to degenerative [osteoarthritis].” R. at 276, 282.
The examiner also noted (apparently subsequent to examining the appellant
and recording his findings) that he had reviewed the appellant’s claims
file on “2/4/99.” R. at 272 (handwritten notation), 283 (same).
Subsequent to the RO, in September 1999, deferring a decision on the
appellant’s claim until the examiner “specifically state[d]” whether there
is evidence of injury to MG I, MG IV, or both (R. at 290), the examiner,
in a September 30, 1999, handwritten addendum to his previous examination
report, stated that “[t]here is only evidence . . . of [an] injury to MG I
but not [evidence of an injury] to MG IV” (R. at 276; see R. at 294).
In an October 23, 1999, decision, the RO, inter alia, continued the
10% disability rating for the appellant’s service-connected left-shoulder
GSW residuals. R. at 303-08 (listing DC as 5304- 5301); see R. at 294-99 (
October 1999 SSOC to same effect). In December 1999, the RO received
private medical records (dated August 1996) relating to the appellant;
those records reflect the examiner’s notation that the appellant had “[l]
imited [ROM and] c[ould not] lift [his arm] above
shoulder level.” R. at 313. The RO, in a May 2000 decision, again
denied the appellant’s claim. R. at 323-26; see R. at 318-20 (May 2000
SSOC to same effect).
In the November 17, 2000, Board decision on appeal, the BVA noted
that the appellant is right handed and found that, therefore, his left arm
is his minor extremity and the criteria for the nondominant extremity
would be applied. R. at 18. The BVA then found that the preponderance of
the competent evidence (the evidence) is against assignment of a higher
evaluation for residuals of a GSW to the left upper extremity. Id. As a
basis for that ultimate finding, the Board made, inter alia, the following
three preliminary findings. First, the Board found that, with respect to
the MGs in the appellant’s left shoulder, the evidence shows that the
residuals of the GSW to the left shoulder involve only MG I and not an
injury to MG IV (Preliminary Finding 1). R. at 18-19. Second, the BVA
found either that the appellant had arm motion above shoulder level (i.e.,
his arm motion was not limited to at or below shoulder level) or that, if
he had arm LOM at or below shoulder level, such LOM was due primarily to
arthritis (Preliminary Finding 2). R. at 20-21. Third, the Board found
that the evidence reveals that osteoarthritis of the left shoulder is not
a residual of the appellant’s in-service GSW in the left shoulder (
Preliminary Finding 3). R. at 21.
In making Preliminary Finding 1, the Board relied on the opinion of
the June 1955 VA examiner who specifically identified a muscle (the
trapezius) in MG I and the opinion of the December 1998 VA examiner who
also noted sole involvement of MG I. R. at 18-19. In making Preliminary
Finding 2, the Board stated that
[the appellant’s private physician, in the report of an August 1996
examination] noted that the [appellant] could not lift his arm above
shoulder level. VA examination reports also reveal that the [
appellant] has some [LOM] in the left arm. Specifically, in November
1996, forward flexion and abduction were to 90 and 75 degrees,
respectively. In January 1998, forward flexion was to 90 degrees
whereas abduction was to 130 degrees. The most recent evidence, the
December 1998 VA examination report, shows that the [appellant] was
able to lift his arm above shoulder level[, i.e., active forward
flexion was to 120 degrees and active abduction was to 110 degrees].
Such degree of motion limitation does not warrant assignment of even
a compensable evaluation under [DC] 5201. . . . A review of past
examination reports and other evidence includes both findings that
the [appellant] was and was not able to lift his arm to at least
shoulder level. However, the December 1998 VA examiner considered
the record and noted that the [appellant’s] left arm [LOM] was
primarily due to degenerative arthritis.
R. at 20-21.
In making Preliminary Finding 3, the Board considered evidence,
including x-rays, showing (1) degenerative arthritis but not linking such
to the appellant’s in-service GSW (see R. at 133-45 (November 1996 VA
examinations), 277-82 (December 1998 VA examination)) and (2) minimal
degenerative changes but no traumatic residuals (see R. at 211 (January
1998 x-ray)). R. at 20-21. Specifically, the Board stated that the
November 1996 examiner “did not relate degenerative arthritis to the [
appellant’s] in-service trauma” and that the December 1998 examiner “did
not relate [arthritis] to the [GSW].” R. at 21.
The Board denied, therefore, the appellant’s claim for an increased
disability rating for his service-connected residuals of a GSW to the left
shoulder, affecting MG I. R. at 24. The appellant timely appealed that
November 2000 Board decision to this Court.

II. Analysis
A. Preliminary Matters
In his brief, the appellant expressly limits his appeal to his left-
shoulder-GSW-residuals claim, and counsel for the appellant stated at oral
argument that, on appeal, the appellant has abandoned his claims for TDIU
and an extraschedular rating. Accordingly, the Court will consider those
claims abandoned. See Ford v. Gober, 10 Vet.App. 531, 535 (1997);
Grivois v. Brown, 6 Vet.App. 136, 138 (1994) (issues or claims not argued
on appeal are considered abandoned); Bucklinger v. Brown, 5 Vet.App. 435,
436 (1993). Counsel for the appellant also stated that the appellant was
withdrawing his argument, as put forth in his briefs, for staged ratings;
therefore, the Court will not address that argument. Further, the Court
notes that the Board expressly found and the parties do not contest that
the appellant’s left arm is his minor arm (see R. at 18; Appellant’s Brief (
Br.) at 12); therefore, the following analysis is based on the rating
criteria for the minor, or nondominant, arm (see 38 C.F.R. 4.69 (2002)).
The Secretary has prescribed regulations in 38 C.F.R. 4.40-4.73 (
2002) for assessing disability ratings for the musculoskeletal system.
The Court notes that, as the Board pointed out (R. at 9), the rating
criteria for MG injuries were changed, effective July 1997. See Schedule
for Rating Disabilities; Muscle Injuries, 62 Fed. Reg. 30,235 (June 3,
1997). For purposes of this
appeal, it appears that those 1997 amendments made no substantive changes
to the DCs for MG injuries. Compare 38 C.F.R. 4.55, 4.56 (2002), with
38 C.F.R. 4.55, 4.56 (1996).
B. December 1998 VA Examination and Stegall v. West
In its August 1998 decision, the Board specifically ordered that on
remand, inter alia, “[t]he claims folder and a separate copy of this
remand MUST be made available to the examiner for review before the
examination.” R. at 260-61. On the December 3, 1998, VA joints
examination worksheet completed on the date of the examination, the VA
examiner apparently noted “C-file to follow”; it appears that, at some
later date, the VA examiner added to that worksheet “C-file reviewed
2/4/99.” R. at 272. Therefore, the specific remand instruction that the
appellant’s claims file be made available to the VA examiner prior to the
examination was not followed.
Pursuant to Stegall v. West, the Board errs when it “fail[s] to
insure compliance” with the terms of the “remand orders of the Board or
this Court.” Stegall, 11 Vet.App. 268, 271 (1998). Here, those terms
were not satisfied, and “the Court cannot say, based on the record before
it, that the appellant here has not been harmed.” Id.; see 38 U.S.C.
7261(b)(2); Woods v. Gober, 14 Vet.App. 214, 222-23 (2000) (holding that
Stegall, supra, required remand in order for Secretary to comply with
prior remand orders). Accordingly, the Court cannot conclude that VA
complied – or even “substantially complied” – with the Board’s remand
order. Dyment v. West, 13 Vet.App. 141, 146-47 (1999), aff’d, 287 F.3d
1377 (Fed. Cir. 2002). Generally, reliance on such a noncomplying
examination in adjudication, especially where it is the principal evidence
upon which the Board relied, is not permissible. See Powell v. West, 13
Vet.App. 31, 35 (1999) (holding that Board erred in relying on inadequate
1997 examination to deny rating increase when 1995 examination, inter alia,
supported requested rating). However, the Court does not believe that the
nature of the noncompliance here renders unreliable the ROM measurements
taken regarding the appellant’s left shoulder because those measurements
involve scientific tests and are not conclusions drawn by the VA examiner
that would be affected by the examiner’s review of the claims file.
Therefore, the Court will review the Board decision on appeal based on the
assumption that the December 1998 ROM objective measurements are valid.
In contrast, the flaw in the December 1998 examination undermines any of
the examiner’s conclusions as to etiology and renders such conclusions of
questionable probative value because the examiner did not review the
claims file prior to conducting
the examination. See 38 C.F.R. 4.1 (2002) (inter alia, “[i]t is . . .
essential, both in the examination and in the evaluation of disability,
that each disability be viewed in relation to its history”).
Finally, with respect to this December 1998 VA examination, the Court
notes that it is not at all clear from the record on appeal (ROA) why VA
concluded, in light of the unrebutted evidence then of record, that it was
necessary to obtain that medical opinion. Because it would not be
permissible for VA to undertake such additional development if a purpose
was to obtain evidence against an appellant’s case, VA must provide an
adequate statement of reasons or bases for its decision to pursue further
development where such development reasonably could be construed as
obtaining additional evidence for that purpose. See 38 U.S.C. 7104(d)(1
).
C. Preliminary Finding 1
As to the appellant’s MG injury, the Board found “that the residuals
of the [GSW] to the left shoulder involve only an injury to [MG] I and not
an injury to [MG] IV.” R. at 19. To the extent that the BVA determined
that MG IV is not involved, the Board failed to address the following.
See 38 U.S.C. 7104(a), (d)(1); Charles v. Principi, 16 Vet.App. 370, 373 (
2002) (Board is required to provide written statement of reasons or bases
for findings and conclusions on all material issues of fact and law
presented on record; statement must be adequate to enable claimant to
understand precise basis for Board’s decision, as well as to facilitate
review in this Court); Weaver v. Principi, 14 Vet.App. 301, 302 (2001) (
per curiam order); Allday v. Brown, 7 Vet.App. 517, 527 (1995). First,
the Board did not consider whether the award of service connection for MG
IV is protected because it has been in effect for more than 26 years, far
longer than the 10 years required in order for service connection to be
protected under 38 U.S.C. 1159 and 38 C.F.R. 3.957 (2002). Second,
the BVA did not consider whether, based on the period between the March
1973 attribution of the 10% rating to MG IV and the October 1999 apparent
change in attribution of that 10% rating to MG I, the appellant has a
protected 10% rating for MG IV because that rating has been in effect for
more than the 20 years required under 38 U.S.C. 110 and 38 C.F.R. 3.
951(b) and 4.55(d) (2002). Third, if the MG IV injury is not protected
under those provisions, the Board failed to address the evidence that
supports the involvement of MG IV. See R. at 71-75 (examiner indicated
injury was to MG IV), 84-88 (same), 204-05 (same).
Moreover, in the process of making its MG determination, the Board
erred when it found that (1) “[t]he December 1998 VA examiner reviewed
the [appellant’s] claims file” and (2) “it does not appear that examiners
identifying [MG] IV involvement reviewed the entire claims file.” R. at
18. The former finding is incomplete because the ROA shows that the
December 1998 VA examiner reviewed the claims file two months after he
examined the appellant and recorded his findings in December 1998. See R.
at 283 (“C-file reviewed 2/4/99”). The latter finding is erroneous (see
part II.D, below) because the January 1998 VA muscles examiner listed MG
IV as the “exact muscles injured” and noted that he had reviewed the
appellant’s claims file. See R. at 204. Hence, the Court will set aside
as clearly erroneous these two BVA findings because neither has a
plausible basis in the record. See 38 U.S.C. 7261(a)(4); Pentecost and
Parker, both infra.
Accordingly, for the reasons discussed above, the Court will remand
the MG matter for the Board to conduct proper fact finding and provide an
adequate statement of reasons or bases for its decision.
D. Review of Board Factfinding
The assignment of a VA disability rating in accordance with 38 U.S.C
. 1155 based on the degree of impairment from a service-connected
disability is a factual determination. See Fleshman v. Brown, 9 Vet.App.
548, 552 (1996), aff’d, 138 F.3d 1429 (Fed. Cir. 1998); Johnson v. Brown,
9 Vet.App. 7, 9 (1996); Francisco v. Brown, 7 Vet.App. 55, 57 (1994);
Lovelace v. Derwinski, 1 Vet.App. 73, 74 (1990). Pursuant to 38 U.S.C.
7261(a)(4), as amended by VBA 401, the Court is directed to review BVA
findings of fact under a “clearly erroneous” standard. Under that
standard, the Court may not overturn a Board fact determination where
there is a “plausible basis in the record” for it. Pentecost v. Principi,
16 Vet.App. 124, 129 (2002); Parker v. Principi, 15 Vet.App. 407, 410 (
2002). Specifically, section 7261 provides in pertinent part:
(a) In any action brought under this chapter, the Court of
Appeals for Veterans Claims, to the extent necessary to its decision
and when presented, shall –

. . .

(4) in the case of a finding of material fact adverse to
the claimant made in reaching a decision in a case before the
Department with respect to benefits under laws administered by
the Secretary, hold unlawful and set aside or reverse such
finding if the finding is clearly erroneous.

(b) In making the determinations under subsection (a), the
Court shall review the record of proceedings before the Secretary and
the Board . . . pursuant to section 7252(b) of this title and shall –

(1) take due account of the Secretary’s application of
section 5107(b) of this title.
38 U.S.C. 7261(a)(4), (b)(1); see 38 U.S.C. 5107(b) (when there is
approximate balance of positive and negative evidence regarding any issue
material to determination of matter, Secretary shall give “benefit of the
doubt” to claimant). In this regard, the outcome of the Board’s
application of the section 5107(b) equipoise standard is a factual
determination that this Court reviews under the “clearly erroneous”
standard. See Roberson, 17 Vet.App. at 146 (“[The Court] is not
authorized to make the determination as to whether the evidence is in
equipoise and apply the benefit[-]of[-]the[-]doubt doctrine; the Court is
empowered only to ensure that the Secretary’s determination in that regard
is not clearly erroneous.”). Indeed, Congress, by adding section 7261(
b)(1), directed that the Court, “[i]n making the determinations under
subsection (a),” including a determination as to whether a finding of
material fact adverse to the claimant is clearly erroneous, shall take due
account of the Secretary’s application of section 5107(b)’s equipoise
standard. 38 U.S.C. 7261(b)(1); see 38 U.S.C. 7261(a)(4).
1. Preliminary Finding 3
Undertaking that mandated review in this case, the Court first will
review the Board’s factual determination that the evidence of record
preponderated in support of a finding that the appellant’s osteoarthritis
is not a residual of his service-connected GSW. In this regard, reviewing
as did the Board the reports of the appellant’s medical examinations, the
Court notes the following. First, in an August 1996 examination report,
the appellant’s private physician essentially attributed the appellant’s
left-shoulder LOM (not able to lift his arm above shoulder level) to his
service-connected GSW but was silent as to arthritis. See R. at 313-14.
Next, in the report of a November 1996 examination that was conducted in
connection with the appellant’s request for an increased rating for his
service-connected left-shoulder GSW residuals, a VA examiner, who had been
requested to assess any such residuals, attributed the appellant’s left-
shoulder LOM to degenerative arthritis but made no comment specifically as
to any relationship between the GSW and arthritis. See R. at 141- 43.
Further, during a January 1998 VA examination that was conducted pursuant
to the instruction
“to ascertain the nature, severity, and etiology” (R. at 181) of any of
the appellant’s left-shoulder disabilities, the examiner determined that
the appellant’s LOM is a residual of his service-connected GSW and, after
reviewing, inter alia, a radiographic report, determined that his service-
connected disabilities had not undergone any progressive deformity or
deterioration since the November 1996 examination. See R. at 194, 206.
Finally, in a December 1998 examination report, a VA examiner, who had
been instructed specifically by a Board remand to evaluate any GSW
residuals, opined that the appellant’s LOM is due primarily to
degenerative arthritis but was silent as to any specific relationship
between the appellant’s GSW and arthritis. See R. at 276.
This review of the examination reports of record shows that two
examiners (August 1996 and January 1998) attributed the appellant’s LOM to
his service-connected GSW residuals but were silent as to arthritis and
two examiners (November 1996 and December 1998) attributed the appellant’s
LOM to arthritis but were silent as to any relationship between the
appellant’s GSW and arthritis. As reflected by this review, there is
absolutely no medical evidence in the ROA to support the Board’s
determination that the appellant’s osteoarthritis of the left shoulder is
not a residual of his service-connected GSW; indeed, none of the medical
examination reports addressed that question. Accordingly, the Court
concludes that there is no plausible basis in the record for the BVA’s
factual determination that the evidence preponderated in support of a
finding that the appellant’s arthritis is not a residual of his service-
connected GSW. See Roberson, Pentecost, and Parker, all supra. The
Court thus holds that the Secretary’s application of the section 5107(b)
equipoise standard in reaching that factual determination was clearly
erroneous under section 7261(a)(4) and will set it aside. See 38 U.S.C.
7261(a)(4), (b)(1); Roberson, supra. The Court, however, will not
reverse that finding because there is no evidence (medical or otherwise)
in the current ROA on which any finding on such a secondary service-
connection question could be based. Certainly, that question is presented
by this record, and, on remand, the Board must, for purposes of any future
rating under DC 5201, take the steps necessary to develop the record as to
the extent, if any, to which the appellant has arthritis that is secondary
to his service-connected GSW residuals. See 38 C.F.R. 3.310(a) (2002) (
providing for secondary service connection); see also 38 U.S.C. 5103A;
38 C.F.R. 3.159(c) (2002).

2. Preliminary Finding 2
Pursuant to DC 5201, the following ratings apply to LOM of the arm:
Rating
Major Minor
5201 Arm, limitation of motion of:
To 25° from side
…………………………………………… 40
30
Midway between side and shoulder level…………. 30
20
At shoulder level
………………………………………….. 20
20
38 C.F.R. 4.71a, DC 5201; see 38 C.F.R. 4.71a, Plate I (Plate I) (
2002) (illustrating, inter alia, flexion and abduction ranges as 0-180°
with “[a]t shoulder level” as 90°). In connection with whether the
appellant had arm motion above shoulder level (i.e., his arm motion was
not limited to at or below shoulder level) or whether, if he had arm LOM
at or below shoulder level, such LOM was due primarily to arthritis, the
Board stated:
[The appellant’s private physician, in the report of an August 1996
examination] noted that the [appellant] could not lift his arm above
shoulder level. VA examination reports also reveal that the [
appellant] has some [LOM] in the left arm. Specifically, in November
1996, forward flexion and abduction were to 90 and 75 degrees,
respectively. In January 1998, forward flexion was to 90 degrees
whereas abduction was to 130 degrees. The most recent evidence, the
December 1998 VA examination report, shows that the [appellant] was
able to lift his arm above shoulder level[, i.e., active forward
flexion was to 120 degrees and active abduction was to 110 degrees].
Such degree of motion limitation does not warrant assignment of even
a compensable evaluation under [DC] 5201. . . . A review of past
examination reports and other evidence includes both findings that
the [appellant] was and was not able to lift his arm to at least
shoulder level. However, the December 1998 VA examiner considered
the record and noted that the [appellant’s] left arm [LOM] was
primarily due to degenerative arthritis.
R. at 20-21.
a. Arm motion above shoulder level
To the extent that the Board found, by a preponderance of the
evidence, that the appellant had left-arm motion above shoulder level
based solely on flexion measurements, the Court concludes that there is no
plausible basis in the record for that determination. See Roberson,
Pentecost, and Parker, all supra. In this regard, the Court notes that
there are two VA examinations that reflect at-or-below- shoulder-level
flexion measurements for the appellant (November 1996 and January 1998 –
90°) and one VA examination that reflects an above-shoulder-level flexion
measurement (December 1998 –
120°) and that it is unclear what the private physician was measuring,
further adding to the state of doubt as to this question. The Court thus
holds that the Secretary’s application of the section 5107(b) equipoise
standard in reaching any factual determination based on flexion was
clearly erroneous under section 7261(a)(4) and will reverse it. See 38 U.
S.C. 7261(a)(4), (b)(1); Roberson, supra. To the extent that the BVA
found, by a preponderance of the evidence, that the appellant had left-arm
motion above shoulder level based on abduction, the Court concludes that
there is a plausible basis in the record for that determination. See
Roberson, Pentecost and Parker, all supra. In this regard, the Court
notes that there are two VA examinations that reflect above-shoulder-level
abduction measurements for the appellant (January 1998 – 130° and
December 1998 – 110°) and one VA examination that reflects an at-or-below-
shoulder-level abduction measurement (November 1996 – 75°) and that it is
unclear what the private physician was measuring. Thus, the Court holds
that the Secretary’s application of the section 5107(b) equipoise
standard in finding arm motion above shoulder level based on abduction was
not clearly erroneous and will not set it aside or reverse it. See 38 U.S.
C. 7261(a)(4), (b)(1); Roberson, supra.
b. LOM due primarily to arthritis
To the extent that the Board found that, if the appellant had LOM at
or below shoulder level, any such LOM was due primarily to arthritis,
rather than his GSW residuals, the Court concludes that there is no
plausible basis in the record for that determination. See Roberson,
Pentecost, and Parker, all supra. Because there is medical evidence in
the ROA on this question (as opposed to the question whether the
appellant’s arthritis is a GSW residual, see ante at __, slip op. at 11-12
), the Court must examine all of that evidence of record in order to
determine whether to set aside or to reverse the Board’s determination on
this question. See 38 U.S.C. 7261(b) (directing Court, in making
determinations under section 7261(a), to “review the record of proceedings
before the Secretary and the Board”); see also Homan v. Principi, 17 Vet.
App. 1, 3-4 (2003) (per curiam order) (holding “record of proceedings”
referred to in amended section 7261(b) consists of ROA as designated by
parties and transmitted to Court pursuant to Rules 10 and 11 of Court’s
Rules of Practice and Procedure).
In this regard, in an August 1996 examination report, the
appellant’s private physician essentially attributed the appellant’s left-
shoulder LOM (not able to lift his arm above shoulder level)
to his service-connected GSW but was silent as to arthritis. See R. at
313-14. Next, in the report of a November 1996 examination, a VA examiner
did not unambiguously attribute the appellant’s LOM to any condition.
Specifically, in a muscles examination, the examiner found injury to MG I
and diagnosed the appellant with hypertrophic degenerative arthritis in
his left shoulder and a shoulder muscle injury (see R. at 133-35); in a
bones examination, the examiner recorded, inter alia, that the appellant
complained of “pain [and] swelling, limited ROM of left shoulder” (R. at
138) and diagnosed no fractures (see R. at 140); and in a joints
examination, the examiner recorded ROM measurements, diagnosed
hypertrophic degenerative arthritis in the appellant’s left shoulder, and
attributed the appellant’s left-shoulder LOM to degenerative arthritis but
made no comment specifically as to any relationship between the GSW and
arthritis (see R. at 141-43). Further, during a January 1998 VA
examination that was conducted pursuant to the instruction “to ascertain
the nature, severity, and etiology” (R. at 181) of any of the appellant’s
left-shoulder disabilities, the examiner determined that the appellant’s
LOM is a residual of his service-connected GSW. See R. at 194. Finally,
in a December 1998 examination report, a VA examiner, opined that the
appellant’s LOM is due primarily to degenerative arthritis. See R. at 276
. As to that December 1998 report, the etiology conclusion reached by
the examiner is, at best, of questionable probative value as was discussed
in part II.B, above.
A review of these examination reports indicates that two examiners (
August 1996 and January 1998) clearly attributed the appellant’s left-
shoulder LOM to his service-connected GSW residuals; one examiner (
November 1996) either attributed the appellant’s LOM to arthritis or is
ambiguous on etiology; and one examiner (December 1998) in a flawed
examination attributed the appellant’s LOM to arthritis. Therefore, the
evidence reflects two examination reports that are unambiguously favorable
to the appellant on this question; one examination report that is at best
ambiguous on this question; and one examination report that, although
unfavorable to the appellant on this question, is of questionable
probative value because the methodology was flawed. Thus, the Court
holds that the Secretary’s application of the section 5107(b) equipoise
standard in finding that any LOM at or below shoulder level experienced by
the appellant is due primarily to arthritis, rather than to his service-
connected GSW residuals, was clearly erroneous and will reverse it. See
38 U.S.C. 7261(a)(4), (b)(1); Roberson, supra.
E. Meaning of DC 5201
The question becomes, therefore, whether flexion not above shoulder
level qualifies for a 20% disability rating under DC 5201. In this regard,
although the appellant contended at oral argument that either flexion or
abduction may be used to satisfy the criterion for a 20% rating under DC
5201 and the Secretary, in response to a briefing order, contended that “
DC 5201 refers only to limitation of abduction” (Secretary’s Response (
Resp.) at 9-10), both parties agree that there appears to be no binding
administrative precedent as to the criteria for receipt of a 20%
disability rating under DC 5201 (Appellant’s Supplemental Br. at 5;
Secretary’s Resp. at 10). Further, there appear to be three possible
interpretations of DC 5201 insofar as the ROM measurement that is utilized
for a disability rating: (1) as advanced by the Secretary, LOM as
evidenced by abduction only; (2) LOM in all planes; or (3) LOM in any one
plane.
The Court holds that the Secretary’s proffered interpretation that DC
5201 is measuring abduction only is invalid for at least three reasons.
See 38 U.S.C. 7261(a)(3)(A). First, although the Secretary contends
that DC 5201 utilizes only abduction, Plate I lists, inter alia, both
abduction and flexion as shoulder-arm-motion measurements. See 38 C.F.R.
4.71a, Plate I (picturing, for shoulder, flexion, abduction, external
rotation, and internal rotation); see also 38 C.F.R. 4.71 (measurement
of ankylosis and joint motion); R. at 142 (November 1996 VA examination
report reflecting left-shoulder ROM measurements for flexion, extension,
abduction, and adduction), 193 (January 1998 VA examination report listing
forward flexion, abduction, external rotation, and internal rotation), 273 (
December 1998 VA examination report indicating ROM measured by flexion,
extension, abduction, internal rotation, and external rotation). Second,
although the immediately preceding DC (5200) explicitly refers to
abduction for two ratings under that code, DC 5201 does not explicitly
refer to any specifically identified type of ROM measurement. Compare 38
C.F.R. 4.71a, DC 5200 (2002), with 38 C.F.R. 4.71a, DC 5201. See
generally 38 C.F.R. 4.71a, DCs 5206, 5207 (2002) (both specifically
listing type of motion measured for ratings). Third, the title of DC 5201
is “Arm, limitation of motion of.” The title appears generic and does not
specify limitation based on abduction. Compare 38 C.F.R. 4.71a, DC 5201,
with 38 C.F.R. 4.71a, DC 5206 (“Forearm, limitation of flexion of”), and
38 C.F.R. 4.71a, DC 5207 (“Forearm, limitation of extension of”).
The two possible interpretations remaining, therefore, are limitation
in all planes and limitation in any one plane. Although interpretation of
whether DC 5201 must be construed to adopt the less restrictive of the two
remaining interpretations is a matter that the Court could proceed to
confront directly (see 38 U.S.C. 7261(a)(1) (scope of review); Otero-
Castro v. Principi, 16 Vet.App. 375, 380-83 (2002) (utilizing, inter alia,
dictionary and regulatory definitions and limited (albeit not entirely
clear) regulatory history as contained in Federal Register, Court
interpreted requirements of 38 C.F.R. 4.104, DC 7005, 7007 (2001), where
Secretary had failed to establish clear rating criteria)), the Court
nevertheless concludes that it is preferable for the Secretary to
undertake the initial consideration of this matter. The Court, therefore,
will put this ball squarely in the Secretary’s court and require him to
answer in the first instance, clearly and unambiguously, the questions
presented by his regulation. See Cotant v. Principi, 17 Vet.App. 116, 130 (
2003) (directing Secretary to “straighten[] out . . . complicated . . .
web” created by his regulations); McCormick v. Gober, 14 Vet.App. 39, 45 (
2000) (concluding that “remand [would] likely benefit the Court by
producing ‘a better record . . . for appellate review of the agency
decision’ and, further, may result in the ‘agency self-correct[ing] and
amend[ing] its ways[,’] which, in turn, would ‘protect agency
administrative authority’ regarding the interpretation of its own
issuances as well as ‘promote judicial efficiency'” (quoting Maggitt v.
West, 202 F.3d 1370, 1377 (Fed. Cir. 2000))); accord Gordon v. Principi,
15 Vet.App. 124, 127-28 (2001) (quoting McCormick, 14 Vet.App. at 45). In
this regard, the Court notes that it appears that it could be very
difficult for a claimant to satisfy the requirements of DC 5201 if
limitation in every plane is required. If the Secretary adopts this
interpretation, he must provide adequate support for such an
interpretation. See Brown v. Gardner, 513 U.S. 115, 118 (1994) (
interpretative doubt is to be resolved in appellant’s favor); see also
Smith v. Brown, 35 F.3d 1516, 1523 (Fed. Cir. 1994) (rules for construing
statutes apply equally to construing regulations).
Given the age of the appellant (see R. at 27 (listing appellant’s
date of birth as December 26, 1924)) and the length of time that the
appellant’s increased-rating claim has been pending (see R. at 116 (July
1996 claim for increase)), the Court expects that, within 90 days after
the date of this opinion and on the evidence currently of record, the
Board will reissue a decision as to the appellant’s increased-rating claim
. See U.S. Vet. App. R. 21 (extraordinary relief). Given this time
guideline,
judgment will be entered and mandate will issue in this case 10 days
after the date on which this opinion is issued. See U.S. Vet. App. R. 2 (
suspension of rules), 35 (motion for reconsideration), 36 (entry of
judgment), 41(a) (issuance of mandate). That time guideline does not
extend to the question of the extent, if any, to which the appellant has
arthritis that is secondary to his service-connected GSW residuals because
VA must afford the appellant a medical examination as stated in part II.D.
1, above.

III. Conclusion
Based upon the foregoing analysis, the ROA, the parties’ pleadings,
and oral argument, the November 17, 2000, Board decision is AFFIRMED in
part and is REVERSED in part and VACATED in part and several matters are
REMANDED for readjudication consistent with this opinion. On remand, the
appellant is free to submit additional evidence and argument on the
remanded claim in accordance with Kutscherousky v. West, 12 Vet.App. 369,
372-73 (1999) (per curiam order). See Kay v. Principi, 16 Vet.App.
529, 534 (2002) (stating, in case where Court remanded claim and declined
to address appellant’s additional arguments as to BVA error, that, on
remand, appellant is free to raise such arguments to Board and Board must
address those arguments). The Board shall proceed expeditiously, in
accordance with section 302 of the Veterans’ Benefits Improvements Act of
1994, Pub. L. No. 103-446, 302, 108 Stat. 4645, 4658 (found at 38 U.S.C
. 5101 note) (requiring Secretary to provide for “expeditious treatment”
of claims remanded by Board or Court).

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