Citation Nr: 0002997 Decision Date: 02/07/00 Archive Date: 02/10/00 DOCKET NO. 98-01 699 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUES 1. Entitlement to an increased evaluation for chronic dislocation of the right shoulder, with limitation of motion and brachial plexus compression neuropathy of the right upper extremity, currently evaluated as 70 percent disabling. 2. Entitlement to an automobile or adaptive equipment. REPRESENTATION Appellant represented by: Vietnam Veterans of America ATTORNEY FOR THE BOARD James A. Frost, Counsel INTRODUCTION The veteran served on active duty from March 1970 to August 1970. This appeal to the Board of Veterans' Appeals (Board) arises from rating decisions in May 1996 and February 1997 by the Department of Veterans Affairs (VA) Regional Office (RO) in Chicago, Illinois. FINDINGS OF FACT 1. The veteran's right shoulder subluxates on a recurring basis; range of motion is restricted to approximately 25 degrees from the side. 2. The veteran's right upper extremity is affected by more than moderate incomplete paralysis of all radicular groups. 3. The veteran has not lost the use of his right hand. CONCLUSIONS OF LAW 1. The criteria for entitlement to a separate evaluation of 40 percent for chronic dislocation of the right shoulder, with limitation of motion, have been met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. § 4.71a, Diagnostic Codes 5201, 5202 (1999). 2. The criteria for entitlement to an evaluation of 70 percent for brachial plexus compression neuropathy of the right upper extremity have been met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §§ 4.7, 4.124a, Diagnostic Code 8513 (1999). 3. The criteria for entitlement to an automobile or adaptive equipment have not been met. 38 U.S.C.A. §§ 3902, 5107 (West 1991); 38 C.F.R. § 3.808 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS When a veteran alleges that a service-connected disability has increased in severity, a claim for an increased disability evaluation is well grounded. Proscelle v. Derwinski, 2 Vet. App. 629, 632 (1992). The Board therefore finds that the veteran's claim of entitlement to an increased evaluation for disabilities of the right upper extremity is well grounded. The Board is also satisfied that all relevant facts have been properly developed. No further assistance to the veteran is required to comply with the duty to assist the veteran mandated by 38 U.S.C.A. § 5107(a). Disability evaluations are determined by application of a schedule of ratings which is based on average impairment of earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. Separate diagnostic codes identify the various disabilities and the criteria for specific ratings. When there is a question as to which of two disability evaluations shall be applied, the higher evaluation will be assigned if the disability picture presented more nearly approximates the criteria for that rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. In the veteran's case, by rating action in March 1996, the RO assigned one evaluation of 70 percent for all disabilities for the right upper extremity. Previously, separate ratings had been in effect for orthopedic and neurological disabilities of the right upper extremity. The evaluation of the same disability or manifestation under various diagnoses ("pyramiding") is to be avoided. 38 C.F.R. § 4.14. However, unless diagnostic codes provide that certain conditions may not be rated separately, a claimant's conditions are to be rated separately unless they constitute the 'same disability' or the 'same manifestation' under 38 C.F.R. § 4.14. See Esteban v. Brown, 6 Vet. App. 259, 261 (1994). The veteran's right upper extremity is his major extremity. The disabilities of his right upper extremity have been rated under Diagnostic Codes 5201, 5202, and 8513. 38 C.F.R. § 4.71a, Diagnostic Code 5201 provides that a 30 percent rating is warranted for limitation of motion of the major arm when range of motion is restricted to midway between the side and shoulder level; a 40 percent rating requires that range of motion be restricted to 25 degrees from the side. 38 C.F.R. § 4.71a, Diagnostic Code 5202, pertaining to other impairment of the humerus, provides that a 30 percent rating is warranted for recurrent dislocation at the scapulohumeral joint with frequent episodes and guarding of all arm movements. Evaluations in excess of 30 percent require fibrous union of the humerus, nonunion of the humerus (false flail joint) or loss of the head of the humerus (flail shoulder). 38 C.F.R. § 4.124a, Diagnostic Code 8513 provides that a 20 percent rating is warranted for mild incomplete paralysis of all radicular groups; moderate incomplete paralysis warrants a 40 percent rating; and severe incomplete paralysis warrants a 70 percent rating. Complete paralysis warrants a 90 percent rating. The term "incomplete paralysis" indicates a degree of lost or impaired function substantially less than the type picture for complete paralysis given with each nerve, whether due to varied level of the nerve lesion or to partial regeneration. The combined rating for disabilities of an extremity shall not exceed the rating for amputation at the elective level, were amputation to be performed. 38 C.F.R. § 4.68. 38 C.F.R. § 4.71a, Diagnostic Code 5122 provides that amputation of the major arm below the insertion of the deltoid warrants an 80 percent evaluation. VA X-rays of the veteran's right shoulder in July 1990 showed minimal chronic subluxation of the right humerus, with mild degenerative changes involving the glenohumeral joint. At a VA compensation and pension examination in July 1990, it was noted that the veteran had been examined in March 1988 for recurrent dislocation of the right shoulder and had undergone surgery in March 1989. On examination, a flat, nontender, nonadherent surgical scar over the upper axilla and extending over the pectoralis muscle anteriorly was noted. The veteran had difficulty placing his right hand on his right hip because of shoulder pain. Range of motion of the right shoulder was abduction to 45 degrees, compared with 90 degrees on the left, and forward elevation to 60 degrees, compared with 150 degrees on the left. Internal rotation at the right shoulder was limited to 35 degrees, compared with 70 degrees on the left, and external rotation was limited to 30 degrees, compared with 90 degrees on the left. There was some swelling of the right shoulder. The circumference of the right shoulder was 18 inches, compared with 16 inches on the left. There was some crepitation palpated in the right shoulder, which was associated with abnormal shoulder joint motion. There was some weakness in the grip of the right hand, as compared with the left, and the veteran was unable to oppose the right thumb to the base of the little finger. There was no Tinel sign and there was no Phalen sign. The myotatic reflexes were all brisk and equal, bilaterally. The circumference of the right hand was 9 3/4 inches; the circumference of the left hand was 9 1/4 inches. The examiner concluded that the veteran had a history of chronic dislocation of the right shoulder, status post arthroplasty, with residual limitation of motion and that it was evident that the recent surgery had not corrected his dislocation problem. At a VA neurological examination in July 1990, the examiner noted that in April 1988, he had seen the veteran and the impression was compression of the distal brachial plexus area. The veteran had undergone shoulder surgery, which apparently did not help his neurological problem. He felt weaker, and the right upper extremity was more painful and numb than it had been. At times, his right forearm and hand became red and swollen. On neurological examination, strength of the right upper extremity was about 20 percent from the shoulder down; pinprick was decreased (2 out of a normal 10); deep tendon reflexes were active all over, except for the right upper extremity; there was possible mild atrophy of the muscles of the right shoulder; and there was a surgical scar near the right axilla. The assessment was residual distal brachial plexus (thoracic outlet) neuropathy. The examiner commented that, compared to 1988, the veteran's right upper extremity was much worse, neurologically. Thereafter, the veteran was incarcerated at an Illinois State correctional institution, where his right upper extremity was evaluated by Dr. X. T. In March 1994, Dr. X. T. reported that he saw the veteran for complaints of pain and recurring subluxation of the right shoulder. Since an injury in service 22 years earlier, his right shoulder would become subluxated in any motion, and he was hardly able to move the right shoulder due to the frequency of subluxation. He had had arthroscopic repair of the anterior capsule of the right shoulder, followed by extensive physical therapy, but he continued to have instability of the right shoulder with frequency of dislocation/subluxation with any movement of the shoulder, and he would have to manipulate the shoulder to get it back in place. He had had a numb feeling down to the right hand for 18 years, and experienced intermittent onset of a numb feeling from the shoulder down to the right fingers, along with some intermittent swelling of the right hand and fingers. Examination of the right shoulder showed tenderness to palpation. Any movement of the shoulder in flexion, abduction or external/internal rotation caused subluxation. There was diminished sensation to touch of the right forearm, hand, and fingers, as well as some one-plus swelling of the right hand, as compared to the left. There was weakness of the right upper extremity involving the biceps, triceps, and wrist flexion/extension, as well as the fingers in some motion. The impression was recurrent subluxation of the right shoulder, with possible brachial plexus neuropathy of the right upper extremity. In September 1994, Dr. X. T. reported that examination of the veteran's right upper extremity showed slight atrophy of the supraspinatus muscle of the right shoulder. The veteran had difficulty with any active movement of the right shoulder, due to pain and weakness motion of the right elbow, as well as of the wrist and fingers. There was diminished sensation along the posterior and anterior aspect of the right arm and a radial distribution of the right forearm and hand. In November 1994, Dr. X. T. reported that the veteran had swelling of the right hand and fingers and atrophy of the supraspinatus and infrascapularis muscles of the right shoulder. Range of motion was flexion to 30 degrees, extension to 10 degrees, abduction to 30 degrees, adduction to 20 degrees, external rotation to 10 degrees, and full internal rotation. The diagnoses were recurrent dislocation of the right shoulder and brachial plexus neuropathy of the right upper extremity. In December 1994, Dr. X. T. reported that an examination showed tenderness to palpation around the right shoulder and scapular region. There was three-plus swelling of the right hand and fingers. The veteran was unable to make a full fist and unable to touch the little finger with his right thumb. There was markedly diminished sensation to touch of the right little and ring fingers, as well as the middle finger. There was also diminished sensation to touch of the right thumb, the top of the hand, and the forearm, as well as the scapular region. There was atrophy of the supraspinatus and infraspinatus muscles of the right shoulder. In March 1997, Dr. X. T. reported that his examination of the veteran in December 1994 had resulted in a clinical diagnosis of brachial plexus neuropathy of the right side resulting in recurrent dislocation of the right shoulder, with marked limitation of motion of the right shoulder. He stated that the veteran was also having weakness of the entire right upper extremity, along with marked limited use of the right hand and fingers due to the neuropathy. Upon consideration of the medical evidence of record and the rating criteria, the Board finds that separate ratings for the orthopedic and neurological disabilities of the veteran's right upper extremity are appropriate. With regard to the orthopedic disability, the limitation of motion of the right upper extremity demonstrated on examination by Dr. X. T. warrants a 40 percent rating, but no more, under Diagnostic Code 5201. Although not entirely clear, the November 1994 medical report showed abduction to 30 degrees, adduction to 20 degrees. The Board, resolving reasonable doubt in the veteran's favor and also considering the provisions of 38 C.F.R. § 4.7, believes that these finding can reasonably be interpreted as demonstrating limitation of motion to about 25 degrees from the side so as to warrant a 40 percent rating under Diagnostic Code 5201. With regard to neurological impairment of the right upper extremity, the Board finds that the disability picture presented by the medical evidence more nearly approximates severe, incomplete paralysis, and thus, entitlement to a 70 percent rating under Diagnostic code 85103 is established. The 40 percent and 70 percent ratings for the orthopedic and neurological disabilities of the right upper extremity result in a combined rating of 80 percent under 38 C.F.R. § 4.25, and thus does not exceed the rating of 80 percent for an amputation of the right upper extremity. With regard to the veteran's claim for an automobile or adaptive equipment, applicable regulations provide that a certification of eligibility for financial assistance in the purchase of an automobile or other conveyance in an amount not exceeding the amount set by 38 U.S.C.A. § 3902 and of basic entitlement to necessary adaptive equipment will be made when loss or permanent loss of use of one or both hands is the result of a service-connected disease or injury. 38 C.F.R. § 3.808(b)(ii). 38 C.F.R. § 3.350(a)(2) addresses special monthly compensation ratings and includes an explanation of what constitutes "loss of use" of a hand. Additionally, 38 C.F.R. § 4.63 provides a definition of loss of use of the hand. The term "loss of use" of a hand or foot is defined by 38 C.F.R. § 3.350(a)(2) as that condition where no effective function remains other than that which would be equally well served by an amputation stump at the site of election below elbow or knee with use of a suitable prosthetic appliance. The determination will be made on the basis of the actual remaining function, whether the acts of grasping, manipulation, etc. in the case of the hand, or balance, propulsion, etc., in the case of a foot, could be accomplished equally well by an amputation stump with prosthesis. It is undisputed that the veteran has not lost his right hand. The question before the Board is whether he has suffered permanent loss of use of the right hand. The Board finds that he has not lost all use of the right hand such that no effective function remains other than that which would be equally well served by an amputation stump at the site of election below the elbow with use of a suitable prosthetic appliance. Dr. X. T. has reported that the veteran has "marked limited use of the right hand," and there is clearly weakness, some loss of sensation and some swelling on occasion. However, despite such symptoms, the Board cannot conclude that he would be the equally well served by if he had an amputation and a suitable prosthetic appliance. Entitlement to an automobile or adaptive equipment is thus not established. 38 C.F.R. § 3.808. The evidence on this issue is not in relative equipoise, and thus, the doctrine of benefit of the doubt does not apply. 38 U.S.C.A. § 5107(b). ORDER Entitlement to a separate evaluation of 40 percent for chronic dislocation of the right shoulder, with limitation of motion, is warranted. Entitlement to a separate evaluation of 70 percent for brachial plexus compression neuropathy of the right upper extremity is warranted. The appeal is granted to this extent. Entitlement to an automobile or adaptive equipment is not warranted. The appeal is denied to this extent. ALAN S. PEEVY Member, Board of Veterans' Appeals