BVA9507669 
DOCKET NO.  91-41 107     )       DATE
          )
          )

On appeal from the decision of the
Department of Veterans Affairs Regional Office in Portland,
Oregon

THE ISSUES

1.  Entitlement to an increased evaluation for residuals of a
fracture of the left acromion with impingement syndrome and
scars, with chronic injury to the left deltoid muscle, currently
evaluated as 10 percent disabling.

2.  Entitlement to a compensable evaluation for a scar of the
left anterior ilium.

REPRESENTATION

Appellant represented by: The American Legion

WITNESS AT HEARING ON APPEAL

Appellant

ATTORNEY FOR THE BOARD

A. K. Mulroy, Associate Counsel

INTRODUCTION

The veteran had active service from January 1985 to January 1988.

He was originally granted service connection for status post
left acromion fracture post operative bone graft and for a
scar of the left anterior ilium donor site, both of which
were determined to be noncompensable, by the Portland,
Oregon, Regional Office (hereinafter the RO), in a decision
dated in October 1989.  The veteran appealed the ratings as
insufficient.  In a decision dated in March 1990, the RO
recharacterized the shoulder disability as residuals of a
left acromion fracture, post operative bone graft with
impingement syndrome and scars, and continued the
noncompensable evaluation.  The veteran, in a statement
received in March 1990, continued his appeal, and
specifically requested an increased evaluation for the scar
on his shoulder.

The RO, in a decision dated in February 1991, increased the
left acromion fracture disability to 10 percent due to the
tender scar, and continued the noncompensable evaluation for
the donor site scar.  In a decision dated in February 1992,
the Board of Veterans Appeals (hereinafter the Board)
remanded the case for additional development.  Subsequently,
in a decision dated in July 1993, the Board granted service
connection for a chronic neck disorder in the form of
calcification of the ligamentum nuchae, and for chronic left
deltoid muscle injury, and remanded the case for
readjudication of the increased evaluation claim in light of
the Board's grants of service connection.  In a decision
dated in July 1994, the RO incorporated the chronic deltoid
muscle injury as an element of the left acromion residuals,
and continued the 10 percent evaluation for that disability.

The Board notes that the RO, in its July 1994, rating
decision also denied service connection for a fracture of the
transverse process of the cervical spine.  (The Board notes
that the RO previously, in an October 1989, rating decision,
denied service connection for a "neck condition.")  By letter
dated in August 1994, the RO notified the veteran of its
denial of service connection for a fracture of the transverse
process of the cervical spine.  However, because the record
before the Board does not reflect that the veteran initiated
an appeal from this determination, this issue is not properly
before the Board.

The veteran is represented by the American Legion.

REMAND

The RO has characterized the veteran's left shoulder disability
as residuals of a fracture of the left acromion, postoperative
bone graft with impingement syndrome and scars, with chronic
injury to the left deltoid muscle, and has assigned a 10 percent
disability evaluation on the basis of tenderness of the scars.
The veteran, however, contends that the scars on his left
shoulder are painful, and that he has had weakness and loss of
mass of his left deltoid muscle.  Consequently, he requests
separate ratings for these components of his left acromion
fracture residuals.

In Brady v. Brown, 4 Vet.App. 203, 206 (1993), the U.S. Court of
Veterans Appeals (Court) interpreted 38 U.S.C. § 1155 as
implicitly containing the concept that the rating schedule may
not be employed as a vehicle for compensating a claimant twice
(or more) for the same symptomatology; such a result would
overcompensate the claimant for the actual impairment of his
earning capacity and would constitute pyramiding.  Section 4.14
of title 38, Code of Federal Regulations (1994), mandates the
avoidance of pyramiding, i.e., evaluation of the same disability
under various diagnoses.  However, the Court, in Esteban v.
Brown, 6 Vet.App. 259 (1994), held that it is possible for a
veteran to have separate and distinct manifestations from the
same injury permitting different disability ratings, where the
symptomatology of the conditions is distinct and separate.  "The
critical element is that none of the symptomatology for any one
of these three conditions is duplicative of or overlapping with
the symptomatology of the other two conditions."  Id. at 262.

In light of the veteran's arguments and Esteban, the Board has
reviewed the applicable provisions of 38 C.F.R. Part 4, and
concludes that, in this instance, separate ratings would not
conflict with 38 C.F.R. § 4.14 as the symptomatology for any one
of the condition is not duplicative or overlapping with the
symptomatology of the other two conditions.  Specifically, the
veteran's complaints and medical findings regarding residuals of
his left acromion fracture include, but are not limited to, pain
and stiffness of his left shoulder and limitation of motion.
Complaints and findings relating to his deltoid muscle include
loss of strength and loss of muscle mass.  Complaints and
findings regarding the scars include disfigurement and tenderness
to touch.  In light of the preceding finding, the case should be
remanded so that the RO may review the record and determine the
appropriate rating to be assigned for each of the separate
disabilities of residuals of a left acromion fracture including
impingement syndrome, chronic injury to the left deltoid muscle,
and scars of the left shoulder.

A decision on the claim for entitlement to an increased
evaluation for a scar of the left anterior ilium is deferred
pending the additional development requested herein.

Accordingly, the case is REMANDED to the RO for the following
development:

1.        The veteran should be asked to provide
the names and addresses of all health care
providers from whom he has sought treatment
for his left shoulder symptomatology since
1990.  After obtaining the necessary
authorizations, the RO should obtain the
actual clinical records of the veteran's
treatment.

2.  The RO should readjudicate the
assignment of disability evaluations in
light of the Board's conclusion that
separate ratings are warranted for the
veteran's residuals of a left acromion
fracture including impingement syndrome,
chronic injury to the left deltoid muscle,
and scars of the left shoulder.

When the above development has been completed, the case should
again be reviewed by the originating agency.  If the decision
remains adverse to the veteran, he and his representative should
be furnished a Supplemental Statement of the Case and should be
afforded a reasonable period to respond.  Thereafter, subject to
current appellate procedures, the case should be returned to the
Board for further appellate consideration, if appropriate.

The veteran need take no action until he is further informed.  The
purpose of this REMAND is to obtain clarifying information and to
ensure due process and no inference should be drawn regarding the
final disposition of the claim.

          CONSTANCE B. TOBIAS
          Member, Board of Veterans' Appeals

The Board of Veterans' Appeals Administrative Procedures
Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, ___
(1994), permits a proceeding instituted before the Board to be
assigned to an individual member of the Board for a
determination.  This proceeding has been assigned to an
individual member of the Board.

Under 38 U.S.C.A. § 7252 (West 1991), only a decision of the
Board of Veterans' Appeals is appealable to the United States
Court of Veterans Appeals.  This remand is in the nature of a
preliminary order and does not constitute a decision of the Board
on the merits of your appeal.  38 C.F.R. § 20.1100(b) (1994).