BVA9505624 DOCKET NO. 93-06 221 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUES 1. Entitlement to service connection for right shoulder disorder. 2. Entitlement to an increased (compensable) rating for residuals of left shoulder injury. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD D. B. Weiss, Associate Counsel INTRODUCTION The veteran had verified active military service from November 1966 to February 1970, and from February 1979 to February 1983. He also has reported that he served from May 1974 to May 1976. The veteran filed a notice of disagreement with evaluation of traumatic arthritis of his knees, assigned a 10 percent evaluation. Subsequently, by rating action of July 1992, a separate 10 percent evaluation was assigned for each knee. The veteran was advised of this action in the supplemental statement of the case of July 1992. He was further advised to contact the RO if he continued to disagree with this action. While the veteran has not specifically addressed this issue, he has indicated that his disabilities affect his employability. It is not clear whether he is claiming a nonservice-connected pension or a total rating based on individual unemployability due to service-connected disabilities. He has also made reference in correspondence in October 1992 and June 1993 to injury to his ankles and joints due to improper issuance of medication. These issues are not for appellate review at this time and are not inextricably intertwined with the instant appeal. Therefore, they are referred to the regional office for action to include asking the veteran whether he wishes to claim such benefits, and if so, providing the appropriate application forms. The veteran has also indicated a desire to testify at a personal hearing, but has not responded to correspondence on the subject of affording him such a hearing. Therefore, the Board infers that he no longer desires a hearing. CONTENTIONS OF APPELLANT ON APPEAL In November 1991, the veteran requested revaluation of his service connected disabilities, "ALL conditions," and particularly of his reportedly service-connected "RIGHT shoulder injury." In October 1992, the veteran added that the board keeps reference to left shoulder not showing problems to rate compensation, and I agree because my right shoulder was injured extremity. I have had three artograms in X-ray to my [right] shoulder, (2) two at VA Louisville, Ky., and 1 (one) at VA. Decatur, GA. and that was painful. I was informed of torn cuff to [right] shoulder at VA Louisville, Ky. and VA Decatur, GA. and need for possible surgery but no confirmation to this. DECISION OF THE BOARD The Board, in accordance with the provisions of 38 U.S.C.A. § 7104 (West 1991), has reviewed and considered all of the evidence and material of record in the veteran's claims file. Based on its review of the relevant evidence in this matter, and for the following reasons and bases, it is the decision of the Board that the preponderance of the evidence is against the claims for service connection for a right shoulder disability and an increased evaluation for residuals of a left shoulder injury. FINDINGS OF FACT 1. A right shoulder disorder was not shown in service; right shoulder tendonitis, first shown years after service, is not shown to be related to service. 2. Residuals of left shoulder injury are manifested by linear calcifications on X-ray, without complaints or abnormal findings on examination, productive of no impairment of earning capacity. CONCLUSIONS OF LAW 1. A right shoulder disorder was not incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 1991); 38 C.F.R. § 3.303 (1994). 2. The criteria for a compensable rating for residuals of left shoulder injury are not met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §§ 4.7, 4.20, 4.31, 4.71, 4.71a, Diagnostic Code 5201 (1994). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Initially, the Board notes that the provisions of 38 U.S.C.A. § 5107 have been met, in that the claims are well grounded and adequately developed. In his substantive appeal, the veteran notes that his outpatient treatment records have, in part, been missing from his Department of Veterans Affairs (VA) treating facility for years. The Board has noted this absence in the claims file, but finds that the regional office has made sufficient attempts to obtain the records and that a remand to again attempt to find them would be fruitless. The Board also notes that claimed service dates from May 1974 to May 1976 have not been verified. However, the Navy Reserve Personnel Center certified in April 1983 that it retained no health record of the veteran. The National Personnel Records Center certified in May 1983 that all available records had been forwarded to the regional office. In addition, the year of the incident from which a service-connected disorder is alleged to have arisen is 1980, after the unverified service. Therefore, the Board finds that a remand to verify additional dates of service with the hope of obtaining additional service records would be fruitless. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131. With a chronic disease shown as such in service (or within an applicable presumptive period), subsequent manifestations of the same chronic disease at any later date are service connected unless clearly attributable to intercurrent cause. This rule does not mean that any manifestation of joint pain, any cough, or any urinary finding of casts in service will permit service connection for arthritis, pulmonary disease, or nephritis first shown as a clear-cut entity at some later date. For the showing of chronic disease in service, a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word "chronic," is required. Continuity of symptomatology is required only where the condition noted during service (or in the presumptive period) is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. 38 C.F.R. § 3.303(b). When an unlisted condition is encountered it will be permissible to rate under a closely related disease or injury in which not only the functions affected, but the anatomical localization and symptomatology are closely analogous. Conjectural analogies will be avoided, as will the use of analogous ratings for conditions of doubtful diagnosis, or for those not fully supported by clinical and laboratory findings. Nor will ratings assigned to organic diseases and injuries be assigned by analogy to conditions of functional origin. 38 C.F.R. § 4.20. Residuals of left shoulder injury have been rated by analogy to limitation of motion of the arm, due to anatomical localization and similarity of function of the part affected. Limitation of motion of the arm is rated 20 percent if the arm is limited to elevation to shoulder level. 38 C.F.R. Part 4, § 4.71a, Diagnostic Code 5201. The normal range of motion of the shoulder is from zero degrees of flexion (forward elevation) to 180 degrees of flexion, from zero degrees of abduction to 180 degrees of abduction, from 0 degrees of external rotation to 90 degrees of external rotation, and from 0 degrees of internal rotation to 90 degrees of internal rotation. 38 C.F.R. § 4.71, Plate I. In every instance where the schedule does not provide a zero percent evaluation for a diagnostic code, a zero percent evaluation shall be assigned when the requirements for a compensable evaluation are not met. 38 C.F.R. § 4.31. Service medical records reveal no complaints or findings pertinent to either shoulder except those shown concomitant with a left shoulder injury incurred while wrestling, and treated from February 1980 to May 1980. This treatment was extensive and included two arthrograms, a six month physical profile, and a medical board evaluation. At all times both the complaints and the relevant findings referred to the left, not the right, shoulder. At separation medical examination in December 1982, the veteran reported, in his own hand, in response to a question of whether he had ever had arthritis, rheumatism, or bursitis, that he had had bursitis of his left shoulder from a boxing injury in 1980. No other shoulder matters were complained of or found. The upper extremities, spine, and musculoskeletal system were reported as normal. At VA examination in May 1983, the veteran reported a "boxing, wrestling" injury in 1980 as having injured his right and left shoulders, causing extreme pain at times when he lifted the shoulders. The left shoulder injury was reported as worse. On examination, both upper extremities measured 24 and 1/2 inches in length. The right shoulder elevated to 180 degrees, and the left to 170 degrees. The right shoulder abducted to 180 degrees, the left to 100 degrees with pain. The right shoulder's external to internal rotation was + to -90 degrees, which was said to be normal. The left shoulder's was +80 to -75 degrees with pain. Passive mobility of the shoulders in all spheres was normal. The veteran was said to be a very poor historian. The pertinent diagnosis was bursitis of the left shoulder by history with history of trauma with resultant residuals. Left shoulder X-ray at that time showed no abnormality. On VA hospitalization in June 1985, veteran complained of pain in the right shoulder on examination of the extremities. He could flex and abduct to approximately 90 degrees before the onset of pain. A VA outpatient treatment record of June 1985 reflects that an arthrogram had revealed a tear of the left rotator cuff. VA outpatient treatment in August 1985 showed left shoulder impingement with approximately 75 degrees of abduction, with pain elicited when acromion impingement was exaggerated. The veteran also received outpatient treatment for joint pain in April 1992. At the Clayton General Hospital in March 1988, the veteran was noted to have some limitation of motion and pain in the right shoulder, which he reported was from old injury. VA orthopedic examination in June 1992 revealed complaints of injuring exclusively his right shoulder in a wrestling match in the Navy, causing a rotator cuff tear. He emphatically stated that he had no problems in the left shoulder. He was noted to be a poor historian. Physical examination in June 1992 showed that there was no asymmetry of shoulders, and there was no sulcus sign of the right shoulder. Shoulder forward elevation was to 90 degrees on the right and 180 degrees on the left. Shoulder abduction was to 90 degrees on the right and 180 degrees on the left. Internal and external rotation of the shoulders was to 90 degrees bilaterally. Backwards extension of the shoulders was to 45 degrees on the right and 80 degrees on the left. Deep tendon reflexes of the upper limbs were essentially sluggish throughout. There was good grip strength. There was some tenderness on palpating the bicipital tendon on the right shoulder. This was suggestive of right shoulder bicipital tendonitis. Bilateral shoulder X-rays showed that there were no fractures or dislocations, and there were linear calcifications of the left acromioclavicular joint, perhaps representing, in the opinion of the radiologist, previous trauma. No other abnormalities were seen. The pertinent diagnoses were bicipital tendonitis of the right shoulder, post- traumatic, probable rotator cuff tear of the right shoulder, and linear calcification of left acromioclavicular joint. The Board has considered all of the relevant evidence. Regarding the claim for service connection, the Board finds that service medical records are negative for complaints or findings of right shoulder abnormality. The veteran claimed service connection for only the left shoulder at the time of his initial compensation claim in March 1983. Although he reported complaints pertinent to both shoulders at the VA examination in May 1983, and both shoulders were examined, and there were no clinical findings of abnormality of the right shoulder at that examination. The first clinical indication of right shoulder abnormality was in June 1985. The first diagnosis pertinent to the right shoulder was rendered in June 1992. There was no continuity of right shoulder complaints from service to June 1992 on which on which the Board could find a relationship between the right shoulder tendonitis and service. 38 C.F.R. § 3.303(b). Nor has any medical practitioner indicated a relationship, other than one based solely on the veteran's history, between the right shoulder and service. The Board finds that the preponderance of the evidence shows that a right shoulder pathology was not present in service and was first shown years after service, and that no competent evidence links the current right shoulder tendonitis to service. As a layman, the veteran is not competent to give a medical opinion as to the cause of his right shoulder tendonitis. See Espiritu v. Derwinski, 2 Vet.App. 492, 494 (1992). Accordingly, the claim must be denied. The benefit of the doubt is not for application as the evidence is not evenly balanced. 38 U.S.C.A. § 5107. The Board has considered the relevant evidence and finds that the increased rating claim must be denied as well. Although the veteran has requested revaluation of his service-connected left shoulder disability, it is not clear why, given his own report at the 1992 VA examination that his left shoulder is asymptomatic. X-rays findings at that examination demonstrated previously unseen linear calcifications, thought to be perhaps due to previous trauma. However, arthritis was not diagnosed, and there were no findings on clinical examination on which to base a compensable rating for this disability. 38 C.F.R. Part 4, § 4.71a, Diagnostic Code 5201. The Board notes that the evaluation of disabilities is based on impairment of earning capacity, which, here, is not shown to be due to the service- connected left shoulder disability. 38 U.S.C.A. § 1155. The Board has also considered the pertinent provisions of 38 C.F.R. Parts 3 and 4 and 38 C.F.R. § 3.321(b)(1). In this regard, the veteran's left shoulder disability is not so unusual or extraordinary as to warrant extraschedular rating. For example, it does not result in marked impairment with employment or in frequent hospitalization. Thus, the regular rating schedule applies to the evaluation of the disorder. ORDER Service connection for a right shoulder disorder is denied. A compensable rating for residuals of left shoulder injury is denied. V. L. JORDAN 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. NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West 1991), a decision of the Board of Veterans' Appeals granting less than the complete benefit, or benefits, sought on appeal is appealable to the United States Court of Veterans Appeals within 120 days from the date of mailing of notice of the decision, provided that a Notice of Disagreement concerning an issue which was before the Board was filed with the agency of original jurisdiction on or after November 18, 1988. Veterans' Judicial Review Act, Pub. L. No. 100-687, § 402 (1988). The date which appears on the face of this decision constitutes the date of mailing and the copy of this decision which you have received is your notice of the action taken on your appeal by the Board of Veterans' Appeals.