BVA9501881 DOCKET NO. 93-11 519 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to an evaluation in excess of 10 percent for post-traumatic arthritis of the left shoulder with residuals of postoperative recurrent dislocation. 2. Entitlement to a compensable evaluation for a scar of the left shoulder. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Jeffrey J. Schueler, Associate Counsel INTRODUCTION The veteran served on active duty from October 1969 to October 1971. The veteran appealed an April 1991 rating decision in which the regional office (RO) denied a compensable evaluation for the left shoulder disability. The RO subsequently granted a 10 percent evaluation in a December 1991 rating decision. The veteran's December 1991 statement, and that of his representative in January 1992, indicate that the veteran intended to continue the appeal. The issues for consideration, therefore, are as stated on the title page of this decision. At his hearing in May 1993 before a Member of the Board of Veterans' Appeals (Board), the veteran submitted additional evidence and, in a May 1993 statement, waived RO consideration of this additional evidence. In November 1994, the veteran submitted directly to the Board further additional evidence consisting of an examination of the lumbar spine and a computerized tomography and myelogram of the lumbar spine signed by private physicians. The veteran noted in his cover letter that he contends "there is a cause and effect relationship between [the lumbar spine symptomatology] and the problem of the left shoulder condition." The RO denied the veteran's claim of service connection for a low back disorder in November 1992 and January 1993 rating decisions, determining that the disorder was neither directly related to active service nor secondarily related to the left shoulder disorder. The veteran did not appeal those determinations. As such, the additional evidence submitted is not pertinent to the issues on appeal regarding the left shoulder disability and is referred to the RO for any action deemed appropriate. See 38 C.F.R. § 20.1304(c) (1993). CONTENTIONS OF APPELLANT ON APPEAL The veteran contends that his service-connected left shoulder disability has increased in severity so as to warrant an evaluation in excess of 10 percent. He maintains that he experiences painful limitation of motion of the left shoulder, as evidenced by "popping" and "clacking" noises that can be heard and felt on palpation. He also asserts that a screw in his left shoulder produces pain. He further contends that this pain has resulted in difficulty sleeping. 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 claim of entitlement to an evaluation in excess of 10 percent for post- traumatic arthritis of the left shoulder with residuals of postoperative recurrent dislocation, and the claim of entitlement to a compensable evaluation for a scar of the left shoulder. FINDINGS OF FACT 1. All available evidence necessary for an equitable disposition of the veteran's appeal has been obtained insofar as possible. 2. The veteran's left shoulder disability is manifested by relatively full range of motion, arthritic changes, tenderness to palpation, and complaints of pain. 3. The veteran's left shoulder scar is not shown to be poorly nourished with repeated ulceration, or tender and painful on objective demonstration. CONCLUSIONS OF LAW 1. The criteria for an evaluation in excess of 10 percent for post-traumatic arthritis of the left shoulder with residuals of postoperative recurrent dislocation are not met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §§ 3.321, 4.7, 4.10, 4.40, 4.59, 4.71a, Diagnostic Codes 5003, 5010, 5201 (1993). 2. The criteria for a compensable evaluation for a scar of the left shoulder are not met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §§ 3.321, 4.7, 4.10, 4.14, 4.40, 4.59, 4.118, Diagnostic Codes 7803, 7804, 7805 (1993). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Board initially finds that the veteran's claim is well- grounded within the meaning of 38 U.S.C.A. § 5107(a) (West 1991); that is, it is not inherently implausible. We also find that the Department of Veterans Affairs (VA) satisfied its statutory obligation to assist the veteran in the development of facts pertinent to the claim. 38 U.S.C.A. § 5107(a) (West 1991); 38 C.F.R. § 3.159 (1993). In a March 1993 statement, the veteran requested a medical examination with a magnetic resonance image to determine the nature and severity of the left shoulder disability. The record includes VA examinations in April 1991 and November 1992, as well as private medical reports in 1990 and 1991, that are sufficient to rate the veteran's disability, thereby precluding the need for a further examination. The functional impairment, on which the evaluation is based and which would not be shown by a magnetic resonance imaging, is clearly pictured. On appellate review, we see no areas in which further development may be fruitful. Historically, the veteran injured his left shoulder in May 1971 when he fell on the point of that shoulder. Thereafter, he had recurrent dislocations, and prior to service separation, a Bankhart capsuloplasty was performed to correct the disorder. A service medical record, dated in late September 1971, contains a history that the operation had been performed five weeks earlier and a finding that the wound had healed well. He was service connected for the disability in a May 1972 rating decision, but assigned a noncompensable evaluation. In a December 1991 rating decision, the RO increased the evaluation to 10 percent disabling based on painful motion. Disability evaluations are determined by application of a schedule of ratings based on average impairment of earning capacity. 38 U.S.C.A. § 1155 (West 1991); 38 C.F.R. Part 4 (1993). The inquiry into disability evaluations centers on the ability of the body or system in question to function in daily life with specific reference to employment. 38 C.F.R. § 4.10 (1993). In evaluating claims for increased ratings, we must evaluate the veteran's condition with a critical eye towards the lack of usefulness of the body or system in question to self support. 38 C.F.R. § 4.10 (1993). A disability of the musculoskeletal system is primarily the inability, due to damage or infection in parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. Weakness is as important as limitation of motion. 38 C.F.R. § 4.40 (1993). With any form of arthritis, painful motion is an important factor of disability, the facial expression, wincing, etc., on pressure or manipulation, should be carefully noted and definitely related to affected joints. Muscle spasm will greatly assist the identification. The intent of the schedule is to recognize painful motion with joint or periarticular pathology as productive of disability. It is the intention to recognize actually painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59 (1993). If a question arises as to which of two evaluations is to be assigned, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. 38 C.F.R. § 4.7 (1993). The evidence of record includes a January 1990 VA clinical record in which the examiner noted that the veteran complained of a two month history of a popping sensation and pain in the shoulder. The examiner noted an extensive scar at the anterior left shoulder. In a January 1991 VA clinical record, it was noted that the veteran complained of a one month history of snapping pain when he raised his arm. Examination revealed no subluxation, positive apprehension, no rotator sign, no impingement sign, and clicking over the acromion laterally and anteriorly. The assessment was of tendonitis or bursitis. A January 1991 x-ray study showed no fracture or dislocation and a metallic screw overlying the upper aspect of the glenoid of the left scapula from previous surgery. The impression was postoperative changes of the left shoulder. In a January 1991 treatment note, Richard L. Levitt, M.D., reported that the veteran had some pain in his left shoulder, and that he had developed increasing discomfort and sensations of possible subluxation since surgery in service. Examination revealed relatively full range of motion with apprehension on external rotation and abduction and some tenderness. X-rays showed a screw in the anterior glenoid. Findings were consistent with further labra tearing and possible instability. In April 1991, a VA examination revealed that the veteran performed forward flexion and abduction of the shoulders rather slowly, that there was some tenderness over the left shoulder deltoid area, that there was a seven and a half inch scar in the deltoid groove, and that he took Motrin for pain. The diagnosis was a history compatible with surgery for recurrent dislocation of the left shoulder with a history of popping fairly frequently with residual pain and rule out arthritic changes. An April 1991 VA x-ray study showed deformity of the glenoid of the left shoulder with a metallic screw overlying the upper portion of the glenoid of the left scapula from post operative changes. Also noted was irregularity of the articular surface of the left humeral head with narrowing of the joint space of the left shoulder, presumably due to post-traumatic degenerative osteoarthritis. No current fracture or dislocation was seen. The impression noted was of post operative changes of the glenoid of the left scapula with post-traumatic degenerative changes In an August 1991 treatment record, Robert P. Casola, M.D., reported that the veteran developed pain in the supraclavicular area about three weeks previously that was treated with manipulation with good results. Examination showed full range of motion of the left shoulder and tenderness to palpation. In a September 1991 statement, Ronald S. Chassner, M.D., wrote that he evaluated the veteran in his office that month and that the veteran reported an intermittent sensation of popping and clicking in the left shoulder and this was accompanied by discomfort. Dr. Chassner noted that examination showed full flexion and abduction of the shoulders so that the veteran was able to bring his arms over his head, but that he did have limitation of range of motion to 20 degrees of external rotation on the left as compared with 45 degrees on the right. Dr. Chassner further noted that the veteran had a large anterior deltopectoral groove surgical scar, that he did not appear to have any impairment of his strength or sensation, that he did have a pop which was noted on palpation over the shoulder, that he had a positive apprehension sign with external rotation, and that he had normal function of the rotor cuff. The impression was some limitation of motion of external rotation, especially noticed when he held his arm abducted to the 90 degree position as though he were firing a rifle for his work, and when he placed his arms in the abducted position with elbows at his side and externally rotated both, which was a noticeable difference with this maneuver. Dr. Chassner concluded that it was possible that the popping and clicking in the shoulder, with the multiple dislocations in the past, were some early signs of arthritic changes. The record includes a November 1992 VA examination in which the examiner reported that the veteran complained of pain in the left shoulder with sensitivity of the scar. The examiner noted that in the right shoulder the veteran was able to forward flex to 175 degrees and abduct to 175 degrees, that he was able to externally rotate the left shoulder from 0 to 90 degrees and internally rotate from 0 to 90 degrees, and that there was marked sensitivity of the scarred area on palpation. The impression recorded was of status post Bankhart's surgery for chronic dislocation of the left shoulder with recurrent pains and residual scar, which was sensitive to palpation and keloid in nature. An x-ray report noted no evidence of fracture, dislocation, or sclerotic bony lesions, well preserved glenohumeral and acromioclavicular joints, and identified a threaded metallic screw projecting over the superior glenoid area and consistent with ligamentous fixation surgery. The soft tissue structures as visualized were unremarkable. The impression was ligamentous fixation surgery and an otherwise normal examination of the shoulder. In a November 1992 statement, Ms. [redacted] wrote that she had known the veteran since 1984, that the veteran had back difficulties, and that the veteran told her that he had left shoulder arthritis. In a January 1993 private report of a bone scan, it was noted that there was increased uptake of both shoulders, slightly asymmetric to the right at the level of the acromioclavicular joint. The examiner noted that the findings were likely degenerative in nature. In his May 1993 personal hearing, the veteran testified that he had "sharp, strong pain" as well as "aching pain" associated with his left shoulder disability and that he has "minidislocations." He testified that the joint was not stiff but was "sore," and that the pain was limited to the shoulder area and did not radiate to other areas. He also testified that he had limitation of motion of the left shoulder. The veteran further testified that the "whole area" of the scar from the surgery to the left shoulder was very sensitive and tender, but that there was no swelling. The veteran is currently evaluated under Diagnostic Codes 5010- 5201 for post-traumatic arthritis of the left shoulder with residuals of postoperative recurrent dislocation. See 38 C.F.R. § 4.71a (1993). The evidence shows that the veteran's service- connected left shoulder disorder is manifested by slight, if any, limitation of motion, arthritic changes, tenderness to palpation, and complaints of pain and of popping and clicking. Diagnostic Code 5010, for arthritis due to trauma, directs that the arthritis is rated as degenerative arthritis under Diagnostic Code 5003, which, in turn, is evaluated on the basis of limitation of motion under the appropriate diagnostic codes for the shoulder. When the limitation of motion of the involved joint is noncompensable under the applicable diagnostic code, a 10 percent evaluation is assigned. Diagnostic Code 5201 for limitation of motion of the arm warrants a 20 percent evaluation for limitation of motion at the shoulder level. A 20 percent evaluation may also be assigned under Diagnostic Code 5202 for recurrent dislocation of the humerus at the scapulohumeral joint with infrequent episodes and guarding of movement only at the shoulder level. 38 C.F.R. § 4.71a (1993). Although the examiner at the November 1992 VA examination did not report that abduction was evaluated, Dr. Chassner in September 1991 noted that the veteran was able to raise his arms over his head. Dr. Casola wrote in August 1991 that the veteran had full range of motion of the left shoulder, the examiner at the April 1991 VA examination noted normal range of motion "rather slowly", and Dr. Levitt reported "relatively full range of motion" of the left shoulder with apprehension on external rotation and abduction. The findings reported show slight, if any, limitation of motion. A 20 percent evaluation under Diagnostic Code 5201, requiring limitation of motion at the shoulder level, is therefore not appropriate given the clinical findings of "full" and "relatively full" range of motion. A 10 percent evaluation is for application for the joint group affected by limitation of motion under Diagnostic Code 5003, since the use of the term "relatively full range of motion" could contemplate at least some limitation. In any event, the schedular criteria for an evaluation greater than 10 percent based on limitation of motion have not been met or approximated. An increased evaluation under Diagnostic Code 5202 requires infrequent episodes of recurrent dislocation and guarding of movement at the shoulder level. Despite the veteran's report of "minidislocations," the pertinent medical evidence, VA and private, does not show any dislocations of the veteran's shoulder. Complaints of "popping and clicking" have not been interpreted by physicians as indicating dislocations. Therefore, an increased evaluation cannot be assigned under Diagnostic Code 5202. In evaluating the left shoulder disability, we considered the ability or inability, due to damage or infection in parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. The veteran asserts that his left shoulder disorder has resulted in tenderness and pain. The current 10 percent evaluation contemplates pain and tenderness, and any functional limitation attributable thereto. There is no indication in the medical record that the level of pain or tenderness is above that which is contemplated by the current 10 percent evaluation. See 38 C.F.R. §§ 4.40, 4.59. It is the determination of the Board that the preponderance of the evidence is against an evaluation in excess of 10 percent for post-traumatic arthritis of the left shoulder with residuals of postoperative recurrent dislocation. 38 C.F.R. Part 4, §§ 4.40, 4.59, Diagnostic Codes 5003, 5010, 5201, 5202 (1993). The veteran also seeks a separate compensable evaluation for the scar associated with the left shoulder disability. A 10 percent evaluation may be assigned using Diagnostic Code 7803 for poorly nourished superficial scars with repeated ulcerations. A 10 percent evaluation may also be assigned for superficial scars that are tender and painful on objective demonstration. Finally, scars may be rated on limitation of the function of the part affected under Diagnostic Code 7805. 38 C.F.R. § 4.118 (1993). Diagnostic Code 7805 is not applicable in this case. The evaluation of the same manifestation of a service-connected disability under different diagnoses is to be avoided, 38 C.F.R. § 4.14 (1993), and limitation of function of the left shoulder was considered above under Diagnostic Codes 5003, 5201, and 5202. See Esteban v. Brown, 6 Vet.App. 259 (1994). The scar itself is not shown to be tender and painful, and there is no contention that the scar is poorly nourished or ulcerated. The clinical evidence of record demonstrates that the area of the left shoulder is tender and a September 1971 service medical record reported that the wound associated with the Bankhart operation was well-healed. We also note that the medical evidence of record, since separation from service, shows that it was not until the November 1992 VA examination that the veteran reported to a doctor that the scar was "sensitive." The examiner at that time recorded the veteran's subjective complaint. Prior to that time, all the medical evidence, although showing that an area of the shoulder, in general, was tender to palpation, there was no showing that the scar, itself, was anything other than well- healed and asymptomatic. Accordingly, we must conclude that the scar has not been shown to be "tender and painful." Without reaching the question of whether a separate compensable evaluation could be assigned for the scar, it is sufficient for purposes of this decision to find that the scar does not warrant a compensable evaluation. Consideration has also been given to the potential application of the various provisions of 38 C.F.R. Parts 3 and 4, as mandated in Schafrath v. Derwinski, 1 Vet.App. 589 (1991). In particular, we find the evidence discussed above does not suggest the veteran's left shoulder disability presents such an exceptional or unusual disability picture as to render impractical the application of the regular schedular standards as to warrant the assignment of an extraschedular evaluation under 38 C.F.R. § 3.321(b)(1) (1993). The service-connected injury has not required frequent periods of hospitalization, nor does the record demonstrate a marked interference with employment due to residuals of the left shoulder disability. ORDER Entitlement to an evaluation in excess of 10 percent for post- traumatic arthritis of the left shoulder with residuals of postoperative recurrent dislocation is denied. Entitlement to a compensable evaluation for a scar of the left shoulder is denied. WILLIAM J. REDDY 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.