Citation Nr: 0001177 Decision Date: 01/13/00 Archive Date: 01/27/00 DOCKET NO. 98-07 522 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUE Entitlement to a rating in excess of 20 percent for post- operative residuals of a fracture of the right humerus with axillary nerve palsy. ATTORNEY FOR THE BOARD K. J. Loring, Counsel INTRODUCTION The veteran had active military service from April 1982 to April 1986. This matter arises from a November 1996 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO) in Chicago, Illinois, which granted service connection and assigned a 20 percent rating. The veteran filed a substantive appeal to the assigned rating and the case was referred to the Board of Veterans' Appeals (Board) for resolution. The Board remanded the case in April 1999 for additional development and the case has been returned for Board review. FINDING OF FACT The post-operative residuals of the veteran's fractured right humerus are productive of some slight limitation of flexion and abduction with atrophy and decreased tone of the pectoralis major but no loss of deep fascia or loss of strength, nor more than mild incomplete paralysis of a nerve affecting the right upper extremity. CONCLUSION OF LAW The schedular criteria for a disability evaluation in excess of 20 percent for post-operative residuals of a fractured right humerus with axillary nerve palsy, have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. § 4.71a, Diagnostic Codes 5201, 5202; 38 C.F.R. § 4.73, Diagnostic Code 5303; 38 C.F.R. §§ 4.20, 4.124, Diagnostic Code 8599- 8513 (1999). REASONS AND BASES FOR FINDING AND CONCLUSION The veteran is appealing the original assignment of a disability evaluation following an award of service connection, and, as such, the claim for the increased evaluation is well grounded. 38 U.S.C.A. § 5107(a); Shipwash v. Brown, 8 Vet. App. 218, 224 (1995). As it is also an appeal from an initial grant of service connection and originally assigned evaluation, separate evaluations may be assigned for separate time periods that are under evaluation. That is, the Board must consider "staged ratings" based upon the facts found during the time period in question. Fenderson v. West, 12 Vet. App. 119 (1999). The Board also finds that the duty to assist the veteran has been met and that the record as it stands allows for an equitable determination of the veteran's appeal. 38 U.S.C.A. § 5107(a). In assessing the veteran's disability, the Board reviews the evaluations as determined by the application of a schedule of ratings which is based on average impairment of earning capacity. 38 U.S.C.A. § 1155. Separate diagnostic codes identify the various disabilities. 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 for that rating. Otherwise, the lower rating will be assigned. Any reasonable doubt regarding a degree of disability will be resolved in favor of the veteran. 38 C.F.R. § 4.7 (1999). At the outset, the Board notes that the veteran's claim was remanded for VA examination, to include evaluation of functional loss of motion and an evaluation that comports with the requirements of Deluca v. Brown 8 Vet. App. 202 (1995). The veteran was notified of the remand and scheduled for a VA examination in June 1999, and he failed to report for the examination. Regulations provided that when a claimant fails to report for a scheduled examination without good cause or adequate explanation, the VA may rely on the available evidence of record to rate the veteran's disabilities. See Engelke v. Gober 10 Vet. App. 396. 399 (1997); Olson v. Principi, 3 Vet. App. 480, 482 (1992). Indeed, the veteran's claim for an increased rating may be denied on the basis of his failure to appear alone. 38 C.F.R. § 3.655(b) (1999). In the instant case, the Board finds that as the veteran failed to appear for an examination, the evidence of record will be deemed sufficient for rating purposes and the claim will be reviewed accordingly. The veteran was granted service connection for residuals of a fractured right humerus with axillary nerve palsy effective March 1995, subsequent to a motor vehicle accident during service. He was assigned a 20 percent rating based upon a December 1995 VA examination report and service medical records from January 1986 reflecting a diagnosis of complete axillary nerve palsy on the right as shown in a January 1986 electromyography (EMG). The 20 percent rating was assigned pursuant to 38 C.F.R. § 4.71a, Diagnostic Code 5202, which refers to impairment of the shoulder and arm, and § 4.73, Diagnostic Code 5303, which refers to muscle injuries. Also potentially applicable is Diagnostic Code 5201, which provides a 20 percent rating with a showing of limitation of either arm at the shoulder. The next higher rating of 30 percent under Diagnostic Code 5201 for a major or dominant shoulder disability (the minor shoulder is rated 20 percent), requires a showing of limitation of motion of the arm to midway between the side and shoulder level. There is no indication of impaired union of the shoulder joint with episodes of dislocation and guarding of movement at the shoulder level. The veteran's right shoulder showed minimal limitation of motion in abduction and flexion to 150 degrees, as the full range is to 190 degrees (See 38 C.F.R. § 4.71, Plate I (1999)), and full motion in 90 degree rotation internally and externally. Thus, there was no basis for a compensable rating under Diagnostic Code 5202, which provides a minimum 20 percent rating for impaired union of the shoulder joint with episodes of dislocation and guarding of movement at the shoulder level, nor is there any basis for a rating compensable rating for limitation of motion of the arm under Code 5201. However, since injury to the veteran's muscles is involved, 38 C.F.R. § 4.73, Diagnostic Code 5303, is also for consideration. This diagnostic code refers to Muscle Group III, the intrinsic muscles of the shoulder girdle, including pectoralis major 1 and deltoid. These muscles function in the elevation and abduction of the arm to shoulder level and act in conjunction with Group II muscles in forward and backward swing of the arm. A 20 percent rating under this code is indicative of moderate impairment and a 30 percent rating is indicative of moderately severe impairment. In assessing the degree of muscle impairment, the regulations provide that a moderate disability is indicated by signs of moderate loss of deep fascia or muscle substance or impairment of the muscle tonus, and of definite weakness or fatigue in comparative tests. A moderately severe disability is indicated by objective findings of loss of deep fascia, muscle substance, or normal firm resistance of muscles compared with the sound side, or tests of strength and endurance which demonstrate positive evidence of impairment when compared with the sound side. 38 C.F.R. § 4.56(d) (1999). As is apparent from the most recent VA examination report, the residuals of the veteran's fractured right humerus are productive of no more than a moderate impairment to the muscles. The veteran reported decreased motion in external rotation of his right shoulder and stated that he had numbness under his right arm. However, the physical examination revealed biceps and radial reflexes of 2+, and 5/5 strength in the right upper extremity and right shoulder. There was crepitus in the right shoulder, but it was stable. The only evidence of decreased muscle tone and atrophy involved the pectoralis major, superiorly to the axilla on the right. There was no muscle herniation or adhesions. There were 3 surgical scars that had healed with keloid. The range of motion was reported as abduction and flexion 150 degrees bilaterally, internal and external rotation to 90 degrees. The examiner noted that she could see the ligament moving with right shoulder motion because of muscle atrophy over the ligament. Sensation to pinprick was good and symmetrical with the exception of an approximate one-inch area, 5 inches below the humeral head. An X-ray of the right shoulder and humerus showed an old healed fracture of the junction of the proximal and middle thirds of the humerus. A screw was noted extending from the inferior aspect of the glenoid to the base of the coracoid process. The diagnosis was reported as status post compound fracture, right humerus and muscle atrophy, Group II. As to any neurological impairment, there is some indication of axillary nerve involvement but there no medical evidence to show any appreciable loss of strength, sensation, or any other disability consistent with more than mild incomplete paralysis. See 38 C.F.R. §§ 4.20 (rating by analogy; there is no diagnostic code directly on point for axillary nerve injury), 4.124, Code 8599-8513. It is pertinent to note that, under 38 C.F.R. § 4.55, a muscle injury rating will not be combined with a peripheral nerve paralysis rating of the same body part, unless the injuries affect entirely different functions. The Board finds no basis to assign a separate rating here as the residuals of the service-connected injury affect the same functions. 38 C.F.R. § 4.14; Esteban v. Brown, 6 Vet. App. 259 (1994). As there is no medical evidence of definite weakness, fatigue, or loss of strength of the muscles in question, no more than mild incomplete paralysis of a nerve affecting the right shoulder and arm, and no compensable limitation of motion of the right arm and shoulder, the Board concludes that the preponderance of the evidence is against a rating in excess of 20 percent. Moreover, as there is no medical evidence of the veteran's condition subsequent to the December 1995 VA examination, and the veteran failed to appear for a requested VA examination, there is no basis for considering a rating in excess of 20 percent at any time since the initial grant of service connection. Accordingly, the claim must be denied. It follows that, as the preponderance of the evidence is against the claim, there is no evidence of record in relative equipoise, and doctrine of reasonable doubt is not for application. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 54 (1990). ORDER Entitlement to a rating in excess of 20 percent for post operative residuals of a fractured right humerus with axillary nerve palsy is denied. R. F. WILLIAMS Member, Board of Veterans' Appeals