Citation Nr: 0005142 Decision Date: 02/28/00 Archive Date: 03/07/00 DOCKET NO. 97-32 077A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to an evaluation in excess of 20 percent for left shoulder impairment. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD K. K. Enferadi, Associate Counsel INTRODUCTION The veteran had active service from June 1971 to June 1973. This matter arises before the Board of Veterans' Appeals (Board) from an April 1997 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas that continued the 20 percent rating for the veteran's left shoulder impairment. FINDING OF FACT The veteran's left shoulder disability is productive of pain, limitation of motion, and weakness. CONCLUSION OF LAW The schedular criteria for an evaluation in excess of 20 percent for left shoulder impairment have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. 4.71, Diagnostic Code 5201 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSION Background A review of the record reveals that the RO granted service connection for left shoulder impairment in a rating decision dated in December 1984 and assigned a zero percent rating effective from July 18, 1984. Before the RO at that time were the veteran's service medical records that showed treatment for a painful left shoulder and bony deformity. Private medical and hospitalization records dated in June 1987 relate to treatment for chrondomatosis of the left shoulder. VA examination conducted in May 1991 revealed traumatic impairment of the left shoulder and normal x-ray findings. VA clinical record dated in March 1993, in pertinent part, reveals treatment for left shoulder impingement. Included in private medical records dated in March 1996 are data related to limitation of motion of the veteran's shoulder. Overall, the total shoulder impairment was noted as zero percent. Flexion was 180 degrees; extension at 50 degrees; abduction at 180 and 50 degrees; and internal and external rotation at 90 degrees. VA examination dated in May 1997 revealed the veteran's history of a rotator cuff tear and subsequent surgery repair. Indicated in the report are residuals of the surgery, such as pain, limitation of motion, and weakness. On examination, the examiner noted that the veteran stiffened his joints and prevented an accurate examination. In the examiner's opinion, the veteran purposefully blocked his range of motion of the left shoulder through maladaptive overt pain behavior. Some atrophy in the left shoulder was noted, but there was no evidence of crepitus. According to the examiner, the veteran only allowed flexion and/or abduction of 45 degrees, extension of 30 degrees, external rotation of 45 degrees, and internal rotation of 80 degrees. A well-healed post-operative scar over the left shoulder was noted. In pertinent part, the diagnosis rendered was post-operative status with residuals and left rotator cuff repair. An x-ray study revealed a normal left shoulder. VA hospitalization from June to July 1997 and in December 1997 was for disabilities unrelated to the veteran's current claim. In April 1999, the veteran underwent a personal hearing, at which time he testified that he has constant chronic pain, cracking, popping, and dislocation in his left shoulder. Transcript (T.) at 2. The veteran further testified that he has weakness and it affects his ability to lift things. (T.) at 2. When asked how far he could lift his arm, the veteran stated that no more than ten inches from his waist. (T.) at 3. The veteran stated that he mostly uses his right hand. (T.) at 3. When asked if he is right or left handed, the veteran testified that he is right handed. (T.) at 4. Also, the veteran stated that he is not receiving treatment at this time. (T.) at 4. During VA examination conducted in May 1999, the veteran complained of dislocation of his left shoulder and extreme pain. On examination, the examiner noted that the veteran elevated forward only 10 degrees, abducted only 10 degrees, and would not externally or internally rotate more than a couple of degrees from the 10 degree position. Overall, the examiner reported that the examination was internally unsatisfactory given that the veteran was uncooperative. The diagnosis remained status post-operative rotator cuff repair with limitation of motion and impairment. Analysis The issue for determination is whether the veteran is entitled to an evaluation in excess of 20 percent for his left shoulder impairment. A claim for an increased evaluation for a service-connected disability is well grounded if the veteran indicates that he has increased disability. 38 U.S.C.A. § 5107(a) (West 1991); see also Proscelle v. Derwinski, 2 Vet. App. 629, 632 (1992). Thus, based on the veteran's allegations of extreme pain and increased symptomatology associated with his left shoulder impairment, he has established a well grounded claim. In these cases, although the regulations require a review of past medical history of a service-connected disability, they do not give past medical reports precedence over current examinations. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Disability evaluations are determined, as far as practicable, upon the average impairment of earning capacity attributable to specific injuries or combination of injuries coincident with military service. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1 (1999). Each disability must be viewed in relation to its history with an emphasis placed on the limitation of activity imposed by that disability. 38 C.F.R. § 4.1. The degrees of disability contemplated in the evaluative rating process are considered adequate to compensate for loss of working time due to exacerbation or illnesses proportionate to the severity of the several grades of disability. 38 C.F.R. § 4.1. Under 38 C.F.R. § 4.10 (1999), in cases of functional impairment, evaluations are to be based upon the lack of usefulness, and medical examiners must furnish a full description of the effects of the disability upon the veteran's ordinary activity; this requirement is in addition to the etiological, anatomical, pathological, and prognostic data required for ordinary medical classification. In cases involving musculoskeletal disability, the elements to be considered include the ability to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. 38 C.F.R. § 4.40. The examinations upon which the ratings are based must adequately describe the anatomical damage and functional loss with respect to these elements. Id. The functional loss may be due to pathology such as absence of bone or muscle, deformity, or pain, supported by adequate pathological studies. Id. Weakness of the affected area is also for consideration. Id. Additional factors to be considered include the reduction in a joint's normal excursion of movement on different planes. 38 C.F.R. § 4.45. Factors such as less movement than normal, more movement than normal, weakened movement, incoordination, pain on movement, swelling, or instability, are also to be considered. Id. Impairment of the left shoulder currently is rated under Diagnostic Code 5201 pursuant to the schedule of ratings for musculoskeletal system and limitation of motion of the arm. 38 C.F.R. § 4.71, Diagnostic Code 5201 (1999). Under Diagnostic Code 5201, for the dominant (major side), an evaluation of 20 percent is merited for movement to the level of the shoulder. Id. Where the motion is limited to midway between side and shoulder level, the disability merits a 30 percent evaluation, and where the motion is limited to 25 degrees from the side, the disability warrants a 40 percent evaluation. Id. As to the non-dominant (minor) side, the regulations provide that limitation of motion at the shoulder level merits a 20 percent evaluation. Id. Where the motion is limited to midway between side and the shoulder level, the disability also warrants a 20 percent rating. Id. Where the motion is limited to 25 degrees from the side, the shoulder disability merits a 30 percent evaluation. Id. Given the pertinent law and regulations and the applicable diagnostic code, the veteran in this case has not presented competent evidence of shoulder impairment so as to warrant a higher rating. Id. In particular, as noted above in private medical records dated in 1996, the veteran's total impairment of the shoulder due to any limitation of motion was none. Essentially, the doctor noted that the veteran was capable of flexing, rotating, abducting, and extending fully. Additionally, as noted herein, during the May 1997 VA examination, the examiner noted that the veteran was not cooperative and essentially prevented an accurate examination of the veteran's shoulder. However, overall, no impairment was demonstrated. A contemporaneous x-ray study revealed a normal shoulder. Moreover, the veteran was fully uncooperative during the most recent examination in May 1999, and as such, the examination revealed nothing further in support of the veteran's claim. The Board notes that when entitlement or continued entitlement to a benefit cannot be established or confirmed without a current VA examination or reexamination and a claimant, without good cause, fails to report for such examination scheduled in tandem with a claim for increase, the claim shall be denied. Examples of good cause include, but are not limited to, illness or hospitalization of the claimant, death of an immediate family member, etc. 38 C.F.R. § 3.655 (1999). While the veteran has reported for examinations, his failure to cooperate with examiners has prevented full evaluation of his disability. The veteran in this case has not attempted to reschedule his examination or to provide additional pertinent medical evidence. The veteran is reminded here that even in cases in which the duty to assist is triggered, the duty ". . . is not always a one-way street. If a veteran wishes help, he cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining putative evidence." Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). In such situation, the Board has no alternative but to deny the veteran's claim. Thus, in light of the evidence of record and the fact that on two occasions, the examiners noted an inability on their part to ascertain an accurate reading of the veteran's shoulder impairment due to his own maladaptive behavior, the record does not substantiate an evaluation in excess of the current 20 percent. 38 C.F.R. § 4.71, Diagnostic Code 5201. Furthermore, aside from the veteran's lack of cooperation during his 1997 and 1999 examinations, clinical findings of record, such as those reported in March 1996 records and the results from the May 1997 x-ray study overall revealed a normal shoulder. Thus, in view of these findings, the veteran in this case has not presented competent evidence of impairment to the extent required for the next higher rating of 30 percent. Id. Moreover, the veteran currently is rated at 20 percent based on impairment of his shoulder on the dominant side. The veteran testified during his personal hearing that he is right-handed; the veteran's shoulder impairment is on the left side. Thus, as to the ratings pertinent to the minor side, the veteran would have to present clinical evidence of left shoulder impairment to the effect that his shoulder is limited in motion to 25 degrees from the side. Id. There is no medical evidence of record to substantiate such objective impairment. Thus, the veteran's disability more nearly approximates the rating criteria associated with a 20 percent rating. Id. Therefore, overall, the veteran's left shoulder disability is not productive of impairment so as to warrant a 30 percent rating. Although the veteran is entitled to the benefit of the doubt where the evidence is in approximate balance, the benefit of the doubt doctrine is inapplicable where, as here, the preponderance of the evidence is against the claim for an evaluation greater than 20 percent for left shoulder impairment. Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). ORDER Entitlement to an evaluation in excess of 20 percent for left shoulder impairment is denied. V. L. Jordan Member, Board of Veterans' Appeals