Citation Nr: 0000772 Decision Date: 01/11/00 Archive Date: 01/27/00 DOCKET NO. 96-04 852 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Diego, California THE ISSUES 1. Entitlement to an initial rating in excess of 20 percent for left shoulder tendonitis. 2. Entitlement to an initial rating in excess of 20 percent for residuals of translocation of the left ulnar nerve. REPRESENTATION Veteran represented by: The American Legion WITNESS AT HEARING ON APPEAL The veteran ATTORNEY FOR THE BOARD K. Conner, Associate Counsel INTRODUCTION The veteran had active military service from December 1991 to December 1994. This matter comes to the Board of Veterans' Appeals (Board) from rating decisions of the Department of Veterans Affairs (VA) San Diego Regional Office (RO). By July 1995 rating decision, the RO granted service connection for left shoulder tendonitis and residuals of translocation of the left ulnar nerve and assigned 10 and zero percent initial ratings for the disabilities, respectively. Both initial ratings were effective December 8, 1994, the day following the date of his separation from service. The veteran duly appealed initial ratings assigned by the RO and a June 1996 rating decision; the RO increased the initial rating for left shoulder tendonitis to 20 percent and the initial rating for residuals of translocation of the left ulnar nerve to 10 percent. Both increased ratings were made effective December 8, 1994. By July 1999 rating decision, the RO again increased the initial rating for the residuals of translocation of the left ulnar nerve to 20 percent, effective December 8, 1994. The Board observes that the veteran has asserted that his left elbow and shoulder disabilities prevent him from working. Liberally construed, his assertion is a claim for a total disability rating based on individual unemployability due to service- connected disabilities (TDIU). In addition, in November 1999 written arguments, the veteran's representative raised the issue of entitlement to special monthly compensation benefits due to the loss of use of the left hand pursuant to 38 C.F.R. § 4.63. Since these matters have not yet been adjudicated, and as they are not inextricably intertwined with the issues now on appeal, they are referred to the RO for initial adjudication. FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the veteran's appeal has been obtained by the RO. 2. The veteran's left shoulder disability is manifested by severe functional impairment due to factors such as loss of motion, pain, marked fatigability and weakness. 3. Residuals of translocation of the left ulnar nerve include episodes of excruciating pain, as well as loss of motion and marked fatigability and weakness, productive of severe functional impairment. CONCLUSIONS OF LAW 1. The criteria for an initial 30 percent rating for left shoulder tendonitis have been met. 38 U.S.C.A. § 1155, 5107 (West 1991); 38 C.F.R. §§ 4.40, 4.45, 4.71a, Diagnostic Codes 5024, 5201 (1999). 2. The criteria for an initial 30 percent rating for residuals of translocation of the left ulnar nerve have been met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. § 4.124a, Diagnostic Code 8516 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Initially, the Board finds that the veteran's claims are well grounded. Thus, VA has a duty to assist in the development of facts pertinent to the claims. 38 U.S.C.A. 5107(a). On careful review of the record, the Board is satisfied that all relevant facts have been adequately developed, to the extent possible. Moreover, neither the veteran nor his representative has identified any outstanding evidence pertinent to the claims. Thus, no further assistance to the veteran in developing the facts pertinent to his claims is required to comply with the duty to assist. I. Factual Background The service medical records show that in November 1993, the veteran sought treatment for left shoulder pain. He reported that he had been doing side straddle hops when he heard his left shoulder "pop," causing him to fall. He stated that immediately after the fall, he grabbed his arm and felt as if his left shoulder "popped back into place." He indicated that his current symptoms included decreased range of motion and transient numbness. He also reported a pre-service history of a left shoulder "muscle tear," but denied any chronic problems following that injury. On examination, the veteran was noted to be right hand dominant. X-ray examination of the left shoulder was negative. The initial assessment was probable right shoulder subluxation. A sling and shoulder exercises were recommended, with the goal being full range of motion within one week. However, subsequent service medical records show that the veteran continued to complain of left shoulder pain, as well as left ulnar groove pain and transient paresthesia in the fourth and fifth digits, which he indicated had been present since hitting his "funny bone." His symptoms were attributed to left shoulder tendonitis and left ulnar nerve compression neuropathy. In October 1994, the veteran underwent a submuscular translocation of the left ulnar nerve. On follow-up in November 1994, he reported stiffness at the elbow and tingling from the elbow distally along the ulnar nerve tract. Objective examination showed tenderness to palpation along the muscle at the dorsal aspect of the forearm with wrist extension. Residual swelling was present along the medial aspect of the left elbow. Range of motion the left elbow was from 35 degrees of extension and 127 degrees of flexion. Left grip strength was 105 pounds, compared to 140 on the dominant right. Range of motion of the left wrist was 70 degrees of extension and 80 degrees of flexion. The assessment was decreased swelling, increased range of motion at the left elbow and wrist, increased sensation in the left hand, and slight adherence at distal area of linear scar at the left elbow. Following separation from service, the veteran was afforded a VA medical examination in January 1995, in connection with his claims of service connection for left shoulder and left elbow disabilities. On examination, the examiner observed no swelling or deformity. Range of motion of the left shoulder was flexion to 90 degrees, rotation (internal and external) to 90 degrees with discomfort on internal rotation, and left abduction to 90 degrees with full elevation over the head. Range of motion of the left elbow was 130/0 degrees, pronation and supination were to 90 degrees. X-ray examinations of the left elbow and left shoulder were normal. The diagnoses were history of subluxation of the left shoulder with discomfort on internal rotation, and history of ulnar neuropathy, treated with translocation of the left ulnar nerve with relief and mild limitation of the left elbow as described. By July 1995 rating decision, the RO granted service connection for left shoulder tendonitis and residuals of translocation of the left ulnar nerve and assigned 10 percent and zero percent initial ratings for these disabilities, respectively. Both initial ratings were effective December 8, 1994, the day following the date of the veteran's separation from service. The veteran duly appealed the initial ratings assigned by the RO. In support of his claim, he submitted VA outpatient treatment records for the period from June to February 1996. These records show that in June 1995, he sought treatment for sharp shooting pain in the left shoulder while lifting heavy objects or on rotation of the left shoulder. He claimed that he was unable to work due to his symptoms. In October 1995, he again complained of left shoulder pain with motion, as well as occasional numbness and tingling in the right hand and wrist. Physical examination showed full range of motion with pain on rotation of the left arm. There was tenderness to palpitation over the acromioclavicular joint. Later that month, he was again seen in connection with his complaints of pain on left shoulder motion and stated that he had trouble raising his shoulder above his head. On physical examination, the veteran had full range of motion of both shoulders with decreased strength on the left on abduction. In November 1995, he reported worsening left shoulder pain which he rated as a 7 on a pain scale of 1 to 10. In February 1996, physical examination of the left shoulder showed no effusion, crepitus, subluxation, or apprehension. Range of motion showed forward flexion and abduction to 170 degrees, external rotation to 80 degrees with pain on motion. Muscle strength was 5/5. X-ray examination was negative. A magnetic resonance imaging (MRI) study revealed a possible superior labrum anterior posterior tear. In April 1996, he was hospitalized. On admission, his left shoulder was fairly stable and had full range of motion with "a lot of pain." Arthroscopic examination showed that the superior labrum was intact, although the anterior labrum was loose and seemed to have degenerated; this was thought to be the possible cause of his shoulder impingement, and it was debrided. Post-operatively, the plan was for the veteran to be able to fully range his shoulder. In April 1996, the veteran testified at a hearing at the RO that he was in constant pain and was undergoing physical therapy. He stated that he had limited left shoulder motion and had problems driving his car. He also reported problems picking up heavy objects over his head. He stated that he was currently taking pain medication. He stated that he felt unable to support his family financially as there was no way he could go to both physical therapy and work. By June 1996 rating decision, the RO increased the initial rating of the veteran's left shoulder tendonitis to 20 percent and the initial rating for status post translocation of the left ulnar nerve to 10 percent. Both ratings were made effective December 8, 1994. In addition a temporary total rating was assigned, effective April 8, 1996, based on surgical or other treatment requiring convalescence. See 38 C.F.R. § 4.30. The following month, the veteran submitted a request for an extension of his convalescence rating. In support of his claim, he attached a note, apparently from a VA physician, to the effect that the veteran was 100 percent disabled until September 1, 1996, secondary to left shoulder pain. The RO thereafter obtained VA outpatient treatment records for the period of May to August 1996. These records show that in May 1996, he was seen on follow-up. At that time, it was noted that he continued in physical therapy but still reported occasional "clicks" and a dull ache in the left shoulder. Physical examination showed forward flexion to 170 degrees, abduction to 130 degrees with pain, external rotation to 60 degrees with pain, and internal rotation to 45 degrees. In August 1995, the veteran reported that he was continuing with exercises at home, although he still experienced continued shoulder pain. Range of motion testing of the left shoulder showed forward flexion to 130, abduction to 115 degrees, external and internal rotation to 80 degrees. It was also noted that the veteran had a history of systemic lupus erythematosus (SLE) which was being treated with steroids. In September 1996, the veteran underwent VA medical examination at which he reported continued left shoulder pain since his surgery. He stated that he was no longer taking medication, but was regularly doing physical therapy. He complained that he could lift his daughter, but was unable to hold her. He also complained of diminution of the range of motion of the left shoulder. Objective examination showed two small arthroscopy scars which were not tender, adherent, keloidal, or hypertrophic. There was no tenderness about the shoulder. Range of motion testing showed abduction to 135 with pain after 100 degrees. Forward flexion was to 160 degrees with pain at the end of the range of motion. Internal and external rotation was to 60 degrees, with pain at the end of the range of motion. X-ray examination was normal. The diagnosis was rotator cuff tendonitis, status post arthroscopic surgery. The examiner indicated that stiffness and arthralgia of the shoulder after surgery usually took months or even years to fully recover and the recovery may not be complete. He stated that in the veteran's case, recovery and rehabilitation were not abnormal or unusually long. By October 1996 rating decision, the RO extended the veteran's temporary total rating to June 30, 1996. Effective July 1, 1996, the 20 percent rating was continued. On VA medical examination in July 1998, the veteran reported that he subluxed his shoulder in 1993 while doing straddle hops. He stated that he recently had arthroscopic surgery and had not recovered from his shoulder injury. He also reported that he was post transplantation of the ulnar nerve and that he experienced agonizing pain in the left elbow about three times daily, lasting from a few seconds to 20 minutes. The examiner indicated that the veteran was essentially one-armed in that he was unable to use his left arm to any extent; however, he also noted that in his job, he was required to lift computers all day long which weighed 25- 30 pounds, which was very difficult for him, although apparently not impossible. It was further noted that he was undergoing on-the-job training for computer repair. Objective examination showed normal motion of the fingers and wrist, with no evidence of loss of strength in the intrinsic muscles of the hand or of atrophy of thenar or hypothenar eminences. Sensation was also normal. Regarding the left elbow, Tinel's and Phalen's signs were negative. There was possibly a little atrophy of disuse of the left upper extremity, but no loss of sensation. Range of motion of the elbow showed supination to under 80 degrees, extension was limited to +10 degrees, and flexion was normal. The veteran reported significant pain and "almost bent over in pain with our multiple testing." Left shoulder abduction was to 95 degrees, but the veteran reported pain at 70 degrees. Flexion was to 170 degrees with very little discomfort. External rotation was to 70 degrees and internal rotation was to 80 degrees. Impingement test was 3+ positive with weakness of abduction of 1/4. X-ray examination of the left shoulder and elbow were normal. Electromyography (EMG) testing showed moderate slowing of conduction velocity at the elbow, without active denervation. The diagnoses included left shoulder impingement, tendonitis with severe limitation of motion of abduction and marked weakness and fatigability and pain from 70 degrees abduction, and post ulnar nerve anterior transplantation with excruciating pain intermittently and minimal limitation of motion. The examiner noted that "[w]ith the function of both the left elbow and the shoulder affected by the pain that he has with use, he has no endurance whatsoever, he develops even more weakness with the pain, and this provides a very significant functional impact when he uses the left upper extremity." By July 1999 rating decision, the RO again increased the initial rating for the veteran's residuals of a translocation of the left ulnar nerve to 20 percent, effective December 8, 1994. II. Law and Regulations Disability evaluations are determined by the 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 rating codes identify the various disabilities. 38 C.F.R. Part 4. 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. 38 C.F.R. § 4.7 (1999). Any reasonable doubt regarding the degree of disability is resolved in favor of the veteran. 38 C.F.R. § 4.3 (1999). Disability of the musculoskeletal system is primarily the inability, due to damage or inflammation in parts of the system, to perform normal working movements of the body with normal excursion, strength, speed, coordination and endurance. Functional loss may be due to pain supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion. 38 C.F.R. § 4.40 (1999). The factors of disability affecting joints are reduction of normal excursion of movements in different planes, weakened movement, excess fatigability, swelling and pain on movement. 38 C.F.R. § 4.45 (1999). The U.S. Court of Appeals for Veterans Claims (Court) has held that functional loss, supported by adequate pathology and evidenced by visible behavior of the veteran undertaking the motion, is recognized as resulting in disability. See DeLuca v. Brown, 8 Vet. App. 202 (1995); 38 C.F.R. §§ 4.10, 4.40, 4.45. Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary concern. Although a rating specialist is directed to review the recorded history of a disability in order to make a more accurate evaluation, see 38 C.F.R. § 4.2 (1999), the regulations do not give past medical reports precedence over current findings. Francisco v. Brown, 7 Vet. App. 55 (1994). More recently the Court has held that the above rule is not applicable to the assignment of an initial rating for a disability following an initial award of service connection for that disability. At the time of an initial rating, separate ratings can be assigned for separate periods of time based on facts found, a practice known as "staged" ratings. Fenderson v. West, 12 Vet. App. 119, 125-26 (1999). Review of the medical evidence shows that the veteran is right-handed. Under the laws administered by VA, a distinction is made between major (dominant) and minor musculoskeletal groups for rating purposes. Only one hand is to be considered major. 38 C.F.R. § 4.69 (1999). Thus, all discussion of the veteran's disability will relate to his left (or minor) extremity. III. Analysis Left shoulder tendonitis The RO has rated the veteran's left shoulder tendonitis by analogy to tenosynovitis. See 38 C.F.R. § 4.71a, Diagnostic Code 5024. Under that diagnostic code, tenosynovitis is to be rated on limitation of motion of the affected part. Under 38 C.F.R. § 4.71a, Diagnostic Code 5201, a 20 percent rating is warranted for limitation of motion of the minor arm to shoulder level, or when there is limitation of motion of the minor arm to midway between side and shoulder level. A maximum 30 percent rating is assigned where there is limitation of motion of the minor arm to 25 degrees from the side. Full range of motion of the shoulder is measured from zero degrees to 180 degrees in forward elevation (flexion), zero degrees to 180 degrees in abduction, zero degrees to 90 degrees in external rotation, and zero degrees to 90 degrees in internal rotation. 38 C.F.R. § 4.71, Plate I (1999). In addition, there are other Diagnostic Codes that potentially relate to impairment of the shoulder; the veteran is entitled to be rated under the Diagnostic Code which allows the highest possible evaluation for the clinical findings shown on objective examination. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Diagnostic Code 5200 rates favorable ankylosis of the scapulohumeral joint with abduction to 60 degrees, reaching the mouth and head, as 20 percent for the minor arm. Intermediate ankylosis, between favorable and unfavorable, warrants a 30 percent evaluation. Unfavorable ankylosis with abduction limited to 25 degrees is assigned a 40 percent evaluation. 38 C.F.R. § 4.71a, Diagnostic Code 5200 (1999). Ankylosis is defined as immobility and consolidation of a joint due to disease, injury, or surgical procedure. See Lewis v. Derwinski, 3 Vet. App. 259 (1992). Diagnostic Code 5202 provides a 20 percent evaluation where there is recurrent dislocation of the minor humerus at the scapulohumeral joint with frequent episodes and guarding of all arm movements. The next higher evaluation, 40 percent, requires fibrous union of the minor humerus. Under the provisions of Diagnostic Code 5203 a maximum 20 percent evaluation is provided where there is dislocation of the clavicle or scapula or where there is nonunion of the clavicle or scapula with loose movement. In this case, the post-service evidence of record shows that the veteran does not have limitation of motion in the minor left shoulder that would warrant a 30 percent disability rating under Diagnostic Code 5201. Likewise, there is no evidence of ankylosis or fibrous union of the humerus to warrant a rating in excess of 20 percent under Diagnostic Codes 5200 and 5202. However, the Board notes that since his separation from service, the veteran has consistently complained of left shoulder pain. On most recent VA medical examination in July 1998, the examiner concluded that the veteran's left shoulder disability was productive of severe functional impairment due to factors such as pain, marked fatigability and weakness. In view of the provisions of 38 C.F.R. §§ 4.40 and 4.45, and in accordance with the Court's decision in DeLuca, the Board finds that the veteran substantially meets the criteria for a 30 percent rating under Diagnostic Code 5201 for left shoulder disability in view of the effect of pain, weakness, and fatigability on his functional abilities. This is the maximum rating for a minor arm under this code. Again, because scapulohumeral ankylosis or fibrous union of the humerus is not shown, diagnostic codes pertaining to these disorders are not applicable here. In summary, the Board finds that a 30 percent rating for left shoulder tendonitis most accurately contemplates the symptomatology and resulting impairment demonstrated in the medical evidence of record. Moreover, although it does not appear that the RO expressly considered referral of the case to the Chief Benefits Director or the Director, Compensation and Pension Service for the assignment of an extraschedular rating under 38 C.F.R. § 3.321(b)(1), the Board finds no basis for further action on this question as there are no circumstances presented that the Director of VA's Compensation and Pension Service might consider exceptional or unusual. Residuals of translocation of the left ulnar nerve Under 38 C.F.R. § 4.124a, Diagnostic Code 8516, which pertains to paralysis of the ulnar nerve, a 20 percent rating is assigned for moderate incomplete paralysis of the ulnar nerve of the minor hand. A 30 percent rating is warranted when there is severe incomplete paralysis of the ulnar nerve of the minor hand. A 50 percent rating is warranted for complete paralysis of the ulnar nerve of the minor extremity exhibited by the "griffin claw" deformity due to flexor contraction of the ring and little fingers, very marked atrophy in the dorsal interspace and thenar and hypothenar eminences; loss of extension of the ring and little fingers, inability to spread the fingers (or reverse), inability to adduct the thumb; and weakened flexion of the wrist. 38 C.F.R. § 4.124a, Diagnostic Code 8516. This is the highest rating available under this diagnostic code. In addition, there are other Diagnostic Codes that potentially relate to the veteran's disability and he is entitled to be rated under the Diagnostic Code which allows the highest possible evaluation for the clinical findings shown on objective examination. Schafrath, 1 Vet. App. 592. Under Diagnostic Code 5205, ankylosis of the minor elbow warrants a minimum 30 percent rating. Flexion of the minor forearm limited to 55 degrees warrants a 30 percent rating. Flexion of the minor forearm limited to 45 degrees warrants a 40 percent rating. 38 C.F.R. § 4.71a, Code 5206 (1999). Extension of the minor forearm limited to 100 degrees warrants a 30 percent evaluation and extension of the minor forearm limited to 110 degrees warrants a 40 percent rating. 38 C.F.R. § 4.71a, Code 5207. The average, normal range of motion of the forearm (elbow) is zero degrees extension, 145 degrees flexion, 80 degrees of pronation, and 85 degrees of supination. 38 C.F.R. § 4.71, Plate I (1998). After a thorough review of the evidence of record, the Board finds that a rating in excess of 20 is not warranted under 8516 as there is no indication of severe incomplete or complete paralysis of the ulnar nerve. Most recent EMG testing showed only moderate slowing of conduction velocity at the elbow, without active denervation. Likewise, there is no medical evidence of ankylosis to warrant a rating in excess of 30 percent under Diagnostic Code 5205. In addition, the veteran does not have limitation of motion in the left forearm warranting a 30 percent disability rating under Codes 5206 or 5207. For example, on VA medical examination in January 1995, range of motion of the left elbow was from zero to 130 degrees and pronation and supination were to 90 degrees. The examiner described the findings as mild. On most recent VA medical examination in July 1998, the examiner again described the veteran's loss of left elbow motion as minimal. However, he noted that the veteran reported episodes of agonizing pain in the left elbow concluded that "[w]ith the function of both the left elbow and the shoulder affected by the pain that he has with use, he has no endurance whatsoever, he develops even more weakness with the pain, and this provides a very significant functional impact when he uses the left upper extremity." In view of the examiner's conclusion that the veteran's left elbow disability is productive of severe functional impairment, due to factors such as pain, marked fatigability and weakness, the Board finds that the veteran substantially meets the criteria for the 30 percent rating by analogy for severe disability. This is the maximum rating under this Diagnostic Code for a minor extremity, absent evidence of complete paralysis of the ulnar nerve, characterized by symptoms such as a "griffin claw" deformity, very marked atrophy in the dorsal interspace and thenar and hypothenar eminencies, loss of extension of the ring and little fingers, inability to spread the fingers (or reverse), inability to adduct the thumb, and weakened flexion of the wrist, which have clearly not been shown here. In summary, the Board finds that a 30 percent rating for residuals of translocation of the left ulnar nerve most accurately contemplates the symptomatology and resulting impairment demonstrated in the medical evidence of record. Moreover, although it does not appear that the RO expressly considered referral of the case to the Chief Benefits Director or the Director, Compensation and Pension Service for the assignment of an extraschedular rating under 38 C.F.R. § 3.321(b)(1), the Board finds no basis for further action on this question as there are no circumstances presented that the Director of VA's Compensation and Pension Service might consider exceptional or unusual. (CONTINUED ON NEXT PAGE) ORDER An initial 30 percent rating for left shoulder tendonitis is granted, subject to the laws and regulations governing the payment of monetary benefits. An initial 30 percent rating for residuals of translocation of the left ulnar nerve is granted, subject to the laws and regulations governing the payment of monetary benefits. J.F. GOUGH Member, Board of Veterans' Appeals