BVA9502166 DOCKET NO. 93-04 970 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUES 1. Entitlement to service connection for residuals of a left ankle sprain. 2. Entitlement to an increased rating for postoperative residuals of a right acromioclavicular joint injury with traumatic arthritis, currently evaluated as 10 percent disabling. REPRESENTATION Appellant represented by: AMVETS WITNESS AT HEARING ON APPEAL The appellant ATTORNEY FOR THE BOARD Frank L. Christian, Counsel INTRODUCTION The veteran served on active duty from January 1986 to August 1990. This matter came before the Board of Veterans' Appeals (Board) on appeal from rating decisions of October 1990 and June 1991 from the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas. In March 1994, approximately one year after notification to the veteran of certification of the appeal and transfer of the records to this Board, the veteran raised, for the first time, the additional issue of entitlement to service connection for residuals of a left shoulder injury. As this issue has not been adjudicated and is not inextricably intertwined with the issues currently in proper appellate status, it is referred to the RO for further appropriate action. The Board limits its consideration herein to the issues stated on the title page of this decision. CONTENTIONS OF APPELLANT ON APPEAL The appellant contends that the RO committed error in failing to grant service connection for his currently manifested residuals of a left ankle injury because it did not take into account or properly weigh the medical and other evidence of record. It is contended that the veteran experiences weakness in the left ankle and pain on initial weight bearing, and that the ankle twists easily during normal walking, all residual to his inservice left ankle injury. The appellant further contends that the RO committed error in failing to grant an increased rating for his service-connected postoperative residuals of a right acromioclavicular joint injury with traumatic arthritis because it did not take into account or properly weigh the medical and other evidence of record. It is contended that the veteran experiences constant pain, weakness, numbness, and tingling in the right (major) upper extremity, a tender scar, and traumatic arthritis in the affected joint. It is contended that an increased rating of at least 20 percent is warranted, that an evaluation of 70 to 85 percent for this disorder would not be inappropriate, and that the appellant believes that additional surgery will be necessary. Consideration of the provisions of 38 C.F.R. §§ 4.40 and 4.51 (1993) is requested. 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 for an increased rating for postoperative residuals of a right acromioclavicular joint injury with traumatic arthritis. It is our decision further that the claim for service connection for residuals of a left ankle sprain is not well grounded. FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the instant appeal has been obtained by the RO. 2. Symptoms of a left ankle sprain shown during peacetime service were repre- sentative of an acute and transitory disorder, resolving without residual impairment; it is not shown that the veteran now has any chronic residuals of a left ankle injury. 3. The veteran's service-connected postoperative residuals of a right acromioclavi- cular joint injury are currently manifested by a tender, 3-inch surgical scar of the right anterior shoulder, tenderness over the right acromioclavicular joint, and X-ray evidence of an approximate 7-millimeter separation of the acromioclavicular joint and traumatic changes, without objective clinical findings of a sensory deficit in the right upper extremity or limitation of motion of the right shoulder. CONCLUSIONS OF LAW 1. The veteran's claim for service connection for residuals of a left ankle sprain is not well grounded. 38 U.S.C.A. §§ 1131, 5107 (West 1991). 2. A rating in excess of the currently assigned 10 percent evaluation for residuals of an acromioclavicular joint injury with traumatic arthritis is not warranted. 38 U.S.C.A. § 1155 (West 1991); 38 C.F.R. Part 4, §§ 4.40, 4.45, 4.51, Diagnostic Codes 5003, 5010, 5203, 7804 (1993). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Service Connection for Residuals of a Left Ankle Injury The threshold question here is whether the claim is well grounded. If it is not, the Board does not have jurisdiction to adjudicate the claim. Boeck v. Brown, 6 Vet.App. 14, 17 (1993). A well-grounded claim for service connection requires, at the least, evidence that the claimed disability exists and evidence of a nexus between such disability and service. Rabideau v. Derwinski, 2 Vet. App. 141 (1992). Where the matter at issue involves a medical issue such as diagnosis, competent medical evidence is required. Grottveit v. Brown, 5 Vet.App. 91, (1993). There is no dispute that the veteran sustained a left ankle injury in service. Such injury is documented in service medical records of November 1987. The question before us is whether he has any current residual disability from that injury. The service medical records do not show that the left ankle injury in service involved any fracture or nerve or artery damage. The veteran sustained a laceration of the left Achilles tendon. He had pain with weight bearing on the left heel. Left ankle sprain was diagnosed. When he was seen three days later, the clinical assessment was bruised calcaneus. Subsequent service medical records contain no mention of complaints or pathology involving the left ankle. On VA examination in September 1990, no complaints or pathology involving the left ankle were reported. On VA examination in May 1991, the veteran described an incident in service when he sustained a left ankle injury. He complained that his ankle felt weak and that he had restrained it several times. Examination, including X-ray studies, revealed no abnormality of the ankle. VA outpatient clinic records dated from March to November 1991 reflect no complaint, treatment, or findings of residuals of a left ankle sprain. At his personal hearing on appeal held at the RO in August 1991, the veteran testified that he experienced pain and swelling of the left ankle joint on prolonged walking, that he sometimes wears an Ace bandage on his left ankle, and that his left ankle twisted easily, especially when wearing low-quarter shoes. He further testified that his left ankle "feels weak." A transcript of his testimony is of record. The evidence of record, outlined above, does not include any credible evidence that the veteran now has left ankle disability as a residual of his ankle injury in service. Subsequent to a follow-up outpatient visit three days after the injury in service, service medical records contain no mention of complaints, findings, or treatment involving the left ankle. No left ankle disability has been noted on post-service VA examinations. The only evidence of left ankle impairment is in the veteran's subjective complaints of recurring ankle symptoms, which have not been clinically confirmed, and in his sworn testimony to the effect that he has a left ankle disorder. Regarding the latter, while he may be sincere in his belief that he has a left ankle disorder, as a layperson he is not competent to offer credible testimony on the existence of such disorder. In summary, the veteran has not met the threshold requirement of showing that the disability for which he claims service connection exists. His claim, therefore, is not well grounded. Increased Rating for Right Shoulder Disability The veteran's claim for an increased rating for his right shoulder disorder is plausible and thus "well grounded" within the meaning of 38 U.S.C.A. § 5107(a) (West 1991), which mandates a duty to assist the veteran in developing all pertinent evidence. We note that the RO has obtained medical evidence from all sources identified by the appellant, that he has undergone two VA examinations, and that he has been afforded a personal hearing on appeal. On appellate review, we see no areas in which further development might be fruitful. The veteran's service medical records show that in January 1989 he was seen with a history of having fallen on his right shoulder one week earlier and complaints of right shoulder pain on movement or touch. A visible deformity over the right acromioclavicular joint was noted, with point tenderness and increased pain on motion. X-ray examination revealed post- traumatic osteolysis of the distal clavicle. Following an orthopedic consultation, the diagnosis was Grade I acromioclavicular joint injury, right. In April 1989, it was indicated that the veteran was noncompliant with physical therapy, and that he had post acromioclavicular joint separation syndrome. In December 1989, degenerative joint disease of the right clavicle was diagnosed, and a Mumford procedure was discussed with the veteran. In December 1989, he underwent a right Mumford procedure. Postoperatively, he healed nicely, with some pain over the incision and lateral numbness. It was noted, however, that there was no distal nerve or artery involvement. It was further indicated that during the surgical procedure no instability or crepitus was present, but degenerative joint disease and fibrosis of the right acromioclavicular joint were found. The incision continued to heal without signs of infection, while subjective complaints of decreased sensation distal to the incision were noted. The clinical impression was status post right Mumford procedure, with residual sensory deficit. Records dated in July 1990 show that the veteran had a limited range of motion in the right upper extremity due to pain. It was further noted that bone was growing into the nerve in his right shoulder. The clinical assessment was status post distal clavicle resection. A narrative summary prepared in April 1990 in connection with Medical Board proceedings noted a history of the veteran sustaining a Grade I acromioclavicular separation in a fall in January 1988 (sic), with subsequent open right distal clavicular resection (Mumford procedure) in December 1989. Physical examination disclosed a well-healed surgical incision over the right acromioclavicular joint, with numbness to light touch lateral to the surgical incision. Neurologic and manual motor testing of the right shoulder were essentially within normal limits, but a markedly decreased range of motion of the right shoulder secondary to pain was noted in the acromioclavicular interval with passive abduction and external rotation. A palpable "clunk" in the area of the acromioclavicular joint with associated pain was noted. Further, the acromioclavicular joint stress test, abduction across the patient's chest, and downward pressure on the clavicle each produced severe pain in the right acromioclavicular interval. The diagnoses included traumatic Grade II acromioclavicular separation, right shoulder; degenerative joint disease, right acromioclavicular joint, secondary to trauma; status post distal clavicle resection, right shoulder; and painful right acromioclavicular interval secondary to trauma, surgery, and soft tissue heterotopic ossification. Additional surgical options of reoperation were discussed with the veteran; he declined further surgery as the expiration of his term of enlistment had passed. He was found to be unfit for military service and was separated with severance pay due to physical disability in August 1990. A report of VA examination conducted in September 1990 cited the veteran's complaints of pain and numbness in the right shoulder, with some additional postural numbness involving the right upper extremity as well as inability to lift objects overhead. Examination of the right shoulder area disclosed a 3-inch surgical scar over the right anterior shoulder over the area of the right acromioclavicular joint, with tenderness to palpation over the scar and over the right acromioclavicular joint area. There was no limitation in the range of motion of the right shoulder or of the elbows or any of the joints of the fingers. No atrophy or contractures were found; and grip in the hands was equal and normal. There was some subjective numbness of the entire right arm, but no objective abnormality other than the scar and the tenderness over the right acromioclavicular joint. On neurological evaluation, motor status was normal, coordination was normal, deep tendon reflexes of the upper extremities were normal and equal, bilaterally; and sensory status was normal, other than the "objective" (sic) numbness in the right upper extremity. X-ray examination of the acromioclavicular joints disclosed widening of the right acromioclavicular joint space as compared to the left, but no increase on weight bearing. The distal end of the right clavicle was shortened, slightly irregular in contour, and broadened, compatible with the clinical history of previous distal clavicle resection. The radiographic impression was evidence of previous surgery of the distal end of the right clavicle and a stable widening of the right acromioclavicular joint. The diagnosis was residuals, acromioclavicular separation, right shoulder, with degenerative joint disease of the right acromioclavicular joint and status post distal clavicle resection. VA outpatient clinic records dated in March 1991 show that the veteran was seen in orthopedic consultation for right shoulder complaints. Physical examination disclosed a saber cut incision over the right acromioclavicular joint, with tenderness over the incision and the joint and some crepitus, but no instability or limitation of motion. The clinical impressions included postoperative Mumford [procedure]. A report of VA examination, conducted in May 1991, noted a history of in-service injury to the veteran's right shoulder, with subsequent surgical repair of the acromioclavicular joint, right. Postoperatively, the veteran reportedly had developed a painful bony nodule over the right acromioclavicular joint, with pain and aching in the right shoulder area and some grinding and pain on movement of the right shoulder. He reportedly took Feldene, 20 milligrams once daily. The examination report indicated that the veteran was right-handed. Physical examination disclosed a tender, 3-inch semicircular scar over the right acromioclavicular joint, as well as a small, tender bony nodule over the acromioclavicular joint. There was tenderness over the acromioclavicular joint on manipulation of the right shoulder, as well as crepitation in that area on manipulation. No limitation of motion was found in the right shoulder, elbow, wrist, or fingers. Neurological examination disclosed that motor status was normal, coordination was normal, deep tendon reflexes at the upper extremities were equal and normal, bilaterally, and sensory status was normal. X-ray examination of the acromioclavicular joints revealed a widening of the right acromioclavicular joint, while both shoulder joints were normal. The radiographic impression was widening of the right acromioclavicular joint. The diagnosis was residuals of injury to the right acromioclavicular joint, postoperative, with history of degenerative joint disease. VA outpatient clinic records dated in March 1991 show that the veteran was seen for complaints which included right shoulder pain. The diagnoses were status post right shoulder surgery (Mumford procedure); and post-traumatic arthritis, right shoulder. Records dated in October 1991 cite the veteran's history of an in-service right acromioclavicular joint injury. Physical examination disclosed tenderness, weakness of the extensor muscles, and good abduction. The veteran requested and was given Feldene, 20 milligrams, once daily. X-ray examination of the right shoulder in November 1991 disclosed that the acromioclavicular joint was separated by approximately 7 millimeters, while a small, triangular-shaped calcification was noted in the superior aspect of the acromioclavicular joint, felt to be related to previous joint separation. No acute fractures were identified. The radiographic impression was findings suggestive of previous acromioclavicular separation. An arthrogram of the right shoulder joint, with contrast, was normal. The veteran was referred to the physical therapy clinic. Physical examination was normal except for a reported limitation of motion of the right shoulder due to pain and weakness. The impression, based upon history and examination, was instability, right shoulder. At his personal hearing on appeal held at the RO in August 1991, the veteran testified that he was right-handed; that range of motion of the right shoulder was not evaluated by the examining physician at his most recent VA examination; that he experienced constant pain in his right shoulder, particularly when lifting objects; that he occasionally experienced numbness of his entire right arm when he lay on his right side; that he was obliged to use his left arm more than he was accustomed to doing; and that he experienced constant pain and tenderness of the surgical scar of his right shoulder. He testified that he had seen the doctor on one occasion since the VA examination in May 1991; that he had received no physical therapy for his right shoulder problems; and that he had expressed a desire to resume weight lifting. He testified that his right shoulder had dislocated at the time of his initial injury; that it occasionally popped out of place while he worked; and that his right shoulder pain was increasing. He further alleged that his right arm sometimes went numb when he was driving his truck or picking up his child. A transcript of his testimony is of record. 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 (West 1991); 38 C.F.R. Part 4 (1993). Separate diagnostic codes identify the various disabilities. 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. It is essential that the examination on which ratings are based adequately portray the anatomical damage, and the functional loss, with respect to all these elements. The functional loss may be due to absence of part, or all, of the necessary bones, joints and muscles, or associated structures, or to deformity, adhesions, defective innervation, or other pathology; or it may be due to pain, supported by adequate pathology and evidenced by the visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and a part which becomes painful on use must be regarded as seriously disabled. A little used part of the musculoskeletal system may be expected to show evidence of disuse, either through atrophy, the condition of the skin, absence of normal callosity, or the like. 38 C.F.R. Part 4, § 4.40 (1993). The conception of disability of a muscle or muscle group is based on the ability of the muscle to perform its full work and not solely on its ability to move a joint. A muscle which can barely move its bony lever but which has no substantial excess of power or endurance to enable it to perform work by that movement is in effect a useless muscle for occupational efficiency. Tests for ability to move adjacent joints are useless for estimation of the disability in cases of muscle injuries unless all the movements are required to be made against varying resistance (for example, with gravity, against gravity, against moderate resistance, against strong resistance) and compared with the sound side. Comparative tests of endurance and of coordination are also needed. Muscle injuries alone do not necessarily limit the movements of adjacent joints, and these movements may be freely carried out by very weak muscles, or even by gravity alone without muscular participation as in extension of the elbow and in dropping the arm to the side. 38 C.F.R. Part 4, § 4.51 (1993). The veteran has specifically requested that the Board consider the provisions of 38 C.F.R. Part 4, §§ 4.40 and 4.51 (1993). We have done so. We find that the reports of VA orthopedic and neurologic evaluations conducted in September 1990 and in May 1991 are complete and comprehensive; that clinical findings were reported with respect to both the right and left shoulders, elbows, wrists and fingers; that no muscle atrophy or contractures were found; and that grip strength in both hands was found comparable and unimpaired. The neurological evaluations compared motor and sensory status and reflexes in both upper extremities, and noted that the veteran's complaints of sensory impairment were subjective. Likewise, X-ray examinations were conducted with respect to both shoulders, not merely the right shoulder. The Board observes that neither of the cited examination reports disclosed more than a subjective claim of numbness involving the "entire right arm," claims which could not be substantiated by objective clinical findings. Further, neither of the cited examinations disclosed any evidence whatever of limitation of motion of either shoulder or upper extremity. The sole positive clinical findings consisted of a healed, 3-inch surgical scar which was subjectively tender to palpation over the right acromioclavicular joint, and there was X-ray evidence of a 7-millimeter stable widening of the right acromioclavicular joint. Traumatic changes shown during active service which were not reiterated on post-service radiographic examinations, apart from a bony nodule over the right acromioclavicular joint. The Board has carefully considered the veteran's testimony with respect to his postoperative residuals of a right acromioclavicular joint injury. We find that his subjective complaints are largely unsubstantiated by the objective clinical findings, and that his assertion that range of motion was not evaluated on the most recent VA examination in May 1991 is inconsistent with the report of that examination. In that connection, we specifically note the statement: "There is no limitation in the range of motion of the right or the left shoulder." We further note that the clinical impression of right shoulder instability reported in the November 1991 outpatient report from the physical therapy clinic is otherwise without substantiation in the medical record and that the report of limitation of right shoulder motion due to pain and weakness reflects a history and subjective complaints advanced by the veteran, as opposed to objective clinical findings. We note that the "findings" reported are not replicated elsewhere in the current medical record. The Schedule for Rating Disabilities provides that arthritis due to trauma, substantiated by X-ray findings, is rated as degenerative arthritis based on limitation of motion of the joint or joints involved. 38 C.F.R. Part 4, Code 5010 (1993). Limitation of motion of either arm at the shoulder level warrants a 20 percent rating. Code 5201. This is the minimum rating provided for limitation of arm motion. The evidence does not show such limitation of motion. Consequently, an increased rating on this basis is not warranted. We have also considered rating the veteran's right shoulder disability under the diagnostic codes for muscle impairment, 38 C.F.R. § 4.73, and those for neurologic impairment, 38 C.F.R. § 4.124(a). As the VA examinations have not revealed any objectively confirmed muscle weakness or neurological impairment of the shoulder, and as the veteran has not submitted any evidence of such, ratings under these alternative criteria would not be appropriate. The Schedule for Rating Disabilities further provides that malunion of the clavicle or scapula, or nonunion without loose movement, warrants a 10 percent evaluation. A 20 percent evaluation requires nonunion with loose movement or dislocation. These disabilities may also be rated on the basis of impairment of function of the contiguous joint. 38 C.F.R. Part 4, Code 5203 (1993). We find, however, that nonunion with loose movement is not clinically demonstrated, nor is any further impairment of function of the contiguous joint (the right shoulder joint) demon- strated. Thus, a rating in excess of 10 percent would not be warranted on the bases cited. The medical evidence of record does satisfactorily establish the presence of a tender and painful 3-inch surgical scar over the right acromioclavicular joint. A 10 percent evaluation is warranted for superficial scars which are tender and painful on objective demonstration. 38 C.F.R. Part 4, Code 7804 (1993). Here, the assignment of a separate rating based on the scar would violate the regulatory prohibition on pyramiding outlined in 38 C.F.R. § 4.14. It is not shown that the painful scar produces any functional impairment distinct from impairment caused by other pathology in the shoulder. We have also considered all further provisions of 38 C.F.R. Parts 3 and 4, whether raised by the appellant or not. In particular, we find that the service-connected right shoulder disorder has not involved such factors as frequent hospitalization or marked interference with employment (not encompassed in the current rating) so as to render impractical the application of regular schedular criteria and warrant an extraschedular rating under 38 C.F.R. § 3.321. The preponderance of the evidence is against this claim; and, consequently, an increased rating is not warranted. ORDER The claim for service connection for residuals of a left ankle sprain is dismissed. An increased rating for postoperative residuals of a right acromioclavicular joint injury with traumatic arthritis is denied. GEORGE R. SENYK Member, Board of Veterans' Appeals (CONTINUED ON NEXT PAGE) 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.