BVA9501469 DOCKET NO. 91-43 365 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Milwaukee, Wisconsin THE ISSUE Entitlement to an increased rating for chronic recurrent subluxation of the right shoulder, currently evaluated as 20 percent disabling. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARINGS ON APPEAL Appellant ATTORNEY FOR THE BOARD Mark D. Hindin, Counsel INTRODUCTION The veteran had active service from September 1984 to June 1987. Service connection was denied for residuals of left elbow and hand injuries in an April 1988 rating decision. The veteran did not perfect a timely appeal from that decision. This matter arises from a June 1990 rating decision in which the regional office (RO), in essence, held that the veteran had not submitted new and material evidence to reopen claims of service connection for residuals of left elbow and left hand injuries. In a notice of disagreement with that decision dated in November 1990, the veteran raised the issue of entitlement to an increased rating for his right shoulder disability. In a rating decision dated in February 1991, the RO denied entitlement to an increased rating for the right shoulder disability. In a decision dated in April 1991, a hearing officer determined that the veteran had submitted new and material evidence to reopen the claims of service connection for left elbow and hand disabilities. The Board remanded the case to the RO in May 1992, in order to afford the veteran a Department of Veterans Affairs (VA) neurologic examination to determine the nature and extend of any left hand and elbow disabilities. The veteran was afforded such an examination in July 1992. In a rating decision dated in July 1993, the RO granted service connection for left ulnar neuropathy due to left elbow derangement. In regard to the hand, the regional office commented that there had been a grant of service connection. In light of the comment by the regional office and the determination to have never certified the issue for appeal, the Board concludes that the issue is not before the Board. If the veteran is dissatisfied with the determination, the veteran should contact the regional office. CONTENTIONS OF APPELLANT ON APPEAL The veteran asserts that his right shoulder frequently dislocates. He further asserts that the right shoulder disability has forced him to change his employment several times, and that most recently he was forced to take a lower paying job so as to avoid lifting involving the right shoulder. He asserts that an increased evaluation is warranted on an extra-schedular basis under the provisions of 38 C.F.R. § 3.321 (1993); or on the basis of pain under the provisions of 38 C.F.R. § 4.40 (1993). He also contends that the case should be remanded, if an increased rating cannot be allowed, for a determination of the veteran's lost income due to his right shoulder disability. 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 supports a 30 percent rating for chronic recurrent subluxation of the right shoulder. FINDINGS OF FACT 1. All evidence necessary for an equitable resolution of this case has been secured. 2. The veteran's chronic recurrent subluxation of the right shoulder is manifested principally by limitation of abduction to 75 degrees, guarding, weakness, complaints of pain and tenderness. 3. The case does not present an exceptional or unusual disability picture so as to render impractical application of the regular schedular standards. CONCLUSION OF LAW Recurrent subluxation of the right shoulder is 30 percent disabling. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §§ 3.321, 4.7, 4.10, 4.40, 4.59, Part 4, Diagnostic Code 5201 (1993). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Board finds that the veteran has presented a well-grounded claim within the meaning of 38 U.S.C.A. § 5107. In this regard, he has submitted evidence in support of his claim which renders it plausible. The Board also finds that VA has complied with its obligation to assist him with the development of the claim under the same code provision. The veteran has requested that this case be remanded, if the claimed benefits cannot be granted, for a determination of the amount of money the veteran has lost as the result of "his service connected entities, changing jobs." However, the veteran has already offered specific testimony in this regard. Additionally, such a determination is of limited value inasmuch as rating decisions are based on average impairment of earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. With the possible exception of extra-schedular evaluations (discussed below), there is no statutory or regulatory authority for rating disabilities based on the specific monetary loss that disability causes to a particular veteran. Private outpatient treatment records show that the veteran's initial right shoulder injury occurred prior to service in May 1981, when he fractured his right clavicle. He was seen again in April 1984, with a complaint of right shoulder pain following a fall three weeks previously. The impressions included biceps tendinitis of the right shoulder. In the report of medical history completed for enlistment into service in October 1983, the veteran reported a history of right collar bone fracture. On examination for enlistment in October 1983, no abnormality of the right shoulder was noted. The veteran was treated on numerous occasions for a right shoulder disability during service. The Physical Evaluation Board, recommended that he be discharged for this disability, diagnosed as chronic inferior subluxation of the right shoulder, rated as with infrequent episodes, which it evaluated as 20 percent disabling. A 20 percent evaluation has been in effect for the veteran's right shoulder disability since the day following discharge from service in June 1987, except for a period during March and April 1991, when a temporary total rating was in effect. The veteran's right shoulder disability has been evaluated under the provisions of Diagnostic Code 5202, 38 C.F.R. § 4.71(a) (1993), which provides for a 20 percent evaluation where there are infrequent episodes of recurrent dislocation of the humerus at the scapulohumeral joint, with guarding of movements only at the shoulder level. The same evaluation is provided under that diagnostic code where there is malunion of the humerus with moderate deformity. The next higher evaluation, 30 percent, is provided where there are frequent episodes of dislocation of the humerus at the scapulohumeral joint and guarding of all movements. A 30 percent evaluation is also provided where there is malunion of the humerus with marked deformity. The veteran's shoulder disability could also be evaluated under Diagnostic Code 5201; 38 C.F.R. § 4.71(a). Under that diagnostic code, a 20 percent evaluation is provided where motion of the arm from the side is limited to shoulder level. A 30 percent evaluation is provided where such motion from the side is limited to midway between the side and shoulder level. Shoulder level is reached at 90 degrees of shoulder abduction or forward elevation (flexion). See 38 C.F.R. § 4.71, Plate I. On VA examination in December 1990, the veteran reported that his right shoulder dislocated two or three times per week. On examination, there was a normal shoulder contour with a few points of tenderness. The veteran had 90 degrees of flexion, and 60 degrees of abduction. His right arm was 1/4 inch smaller in circumference than the left. On X-ray examination of the right shoulder there was no evidence of fracture, dislocation or other significant abnormality. The diagnosis was history of chronic subluxation of the right shoulder with arthralgia and restricted motion. In a statement dated in February 1991, a physician from the Sheboygan Clinic reported findings suggestive of significant anterior subluxation and occasional frank dislocation. A CT scan revealed essentially complete disruption of the anterior glenoid labrum. Treatment records from the Sheboygan Clinic, dated from July 1988 to July 1991, show that the veteran had a positive apprehension test, but a full range of motion and a normal X-ray examination in February 1991. In March 1991, he underwent arthroscopic surgery and a Bankart capsulorrhaphy of the right shoulder. In April 1991, he had 140 degrees of abduction and 130 degrees of flexion in the right shoulder. His rotator cuff strength was 5- /5 and improving. There was reportedly no evidence of persistent instability. In June 1991, he was reported to be experiencing some difficulty with abduction. There was reportedly no evidence of instability. In July 1991, it was again reported that the veteran was having no problems with instability. He complained of some weakness and pain in lifting heavy objects, but his motion was reported to have come back "beautifully." By October 1991, he was given permission to return to work. In July 1992, he complained of continuing right shoulder discomfort and difficulty throwing. The impression was excellent improvement in right shoulder stability but with labral and glenoid abnormalities predisposing him to persistent discomfort. On VA examination in June 1991, the veteran complained of pain in the right shoulder since undergoing surgery. On examination of the right shoulder, the veteran had 160 degrees of elevation, and 130 degrees of abduction. His deep tendon reflexes were 2+ throughout the upper extremities. The diagnoses included a history of recurrent subluxations of the right shoulder, residuals of a Bankart capsulorrhaphy of the right shoulder, and an anterior labrum injury of the glenoid area of the right shoulder. On VA examination in July 1992, the veteran complained of an inability to participate in sports, and difficulty sleeping on the right shoulder. He reported that he was able to perform his employment as a diesel mechanic, but occasionally took medications. On examination, the shoulder had a normal contour without atrophy, and the right humerus was in place, without dislocation or subluxation. There was no tenderness or crepitus. The veteran was described as having a full range of motion in the shoulder, but he could not scratch the opposite scapula. An X- ray examination was interpreted as showing an old healed fracture of the distal right clavicle without bone or joint pathology. The diagnoses were a healed fracture of the right clavicle with a normal examination; and a history of chronic anterior subluxation, of the right shoulder with residuals of right shoulder reconstruction. The veteran underwent VA orthopedic examination in December 1993, when he reported that his shoulder dislocations had occurred approximately 25 times per year until surgery in 1990. It was reported that the dislocations had ceased, but that "functionally" the right shoulder disability had not improved. He reported that he had been working as a diesel mechanic, but that he was undergoing retraining because he could not lift heavy objects or do overhead work. On examination, there was no tenderness. Forward elevation and abduction of the right shoulder could be performed to 75 degrees. An X-ray examination was reported to show normal mineralization, structure, and alignment with a normal appearing glenohumeral joint. A healed fracture of the right clavicle was again noted. The diagnoses were residuals of chronic recurrent inferior subluxation of the right shoulder and surgery for tendon and rotator cuff repair. At the hearing held before a hearing officer at the RO in February 1994, it was reported that the veteran could move his arm from the side approximately 80 or 85 degrees, but that he experienced pain at approximately 60 or 75 degrees. He testified that he had been forced to change jobs and that his salary had been reduced from $10.39 per hour to $7.75 per hour. He reported that he had lost 8 days from work in the previous six months. From this extensive record it can be seen that at its worst the veteran's right shoulder disability did not result in frequent dislocations such as to warrant an increased rating under Diagnostic Code 5202. Prior to surgery he was noted to have infre-quent frank dislocations, and since surgery no dislocations have been reported. The veteran has also not been shown to have any significant deformity of the humerus on the numerous X-ray examinations conducted since 1990. Accordingly, there is no basis for a finding that there is malunion of the humerus with marked deformity. It might be possible to argue that the veteran's earlier assertions of shoulder dislocations occurring 2 or 3 times per week, could serve as a basis for finding that he had frequent dislocations warranting a 30 percent evaluation under Diagnostic Code 5202. However, the veteran has not consistently reported this frequency of dislocations, and clinical examinations throughout the appeal period have revealed no evidence of frequent dislocations. Even on the VA examination in June 1990, when the veteran reported this history, no evidence of dislocations could be found. The veteran, through his representative has referred to the provisions of 38 C.F.R. § 4.10 and 4.40 (1993), pertaining to ratings on the basis of functional impairment, as possibly providing a basis for an increased rating. We agree. The veteran's disability picture does not neatly fit into any one diagnostic classification. However, the evidence reflects the need for some surgical intervention, pain, limitation of motion, weakness and functional impairment of the shoulder joint. Although there was some improvement after surgery, the 1993 examination disclosed a significant decrease in the range of motion. Furthermore, the veteran's testimony of painful motion at 60 degrees was not rebutted. We conclude that the disability, when weakness is taken into account, is best rated on the basis of limitation of motion and that the overall disability more closely approximates the impairment contemplated by limitation of the motion midway from the side. See 38 C.F.R. §§ 4.7, 4.10, 4.40 (1993). The veteran has further contended that he should be entitled to a higher extra-schedular evaluation under the provisions of 38 C.F.R. § 3.321. That regulation provides for rating disabilities outside the regular criteria in the rating schedule in exceptional cases. The governing norm for determining when such an exceptional case exists is that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical the application of regular schedular standards. In this case the veteran has been able to maintain employment, albeit at a somewhat lower salary than previously, with only occasional absences from work. His right shoulder disability has required only a single episode of hospitalization, for which he received a temporary total rating, since service. The Board concludes that the veteran's disability picture, is not so unusual as to render impractical the application of the regular schedular criteria. In reaching its conclusions in this case the Board has considered all of the provisions of Chapters 3 and 4 of 38 C.F.R. (1993), including the provisions of 38 C.F.R. § 4.7, which provides for assignment of the next higher evaluation where the disability picture more closely approximates the criteria for the next higher evaluation. As discussed above, the veteran's disabilities do not more closely approximate the criteria for the next higher evaluations beyond 30 percent. ORDER A 30 percent rating for chronic recurrent subluxation of the right shoulder is granted, subject to the controlling regulations applicable to the payment of monetary benefits. H. N. SCHWARTZ 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.