BVA9506078 DOCKET NO. 93-12 794 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Buffalo, New York THE ISSUE Entitlement to an increased evaluation for residuals of a gunshot wound of the left shoulder with a fractured humerus(minor), currently evaluated as 30 percent disabling. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD Ronald R. Bosch, Counsel INTRODUCTION The veteran served on active duty from November 1968 to August 1970. This appeal arose from a December 1992 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Buffalo, New York. The RO denied entitlement to an increased evaluation for residuals of a gunshot wound of the left shoulder with fractured humerus. The case has been forwarded to the Board of Veterans' Appeals (Board) for appellate review. CONTENTIONS OF APPELLANT ON APPEAL The veteran contends that his gunshot wound residuals of the left shoulder are more disabling than currently evaluated. He argues that in May 1992 the VA examiner should have been given access to the electromyographic studies so that he would have been able to make a more informed clinical assessment as to neurological disability of the left shoulder. The veteran argues that there is more than enough clinical evidence of record to warrant a grant of an increased evaluation. 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 a grant of an increased evaluation for residuals of a gunshot wound of the left shoulder with fractured humerus. FINDING OF FACT Residuals of a gunshot wound of the left shoulder with fractured humerus are productive of not more than severe impairment. CONCLUSION OF LAW The criteria for an evaluation in excess of 30 percent for residuals of a gunshot wound of the left shoulder with fractured humerus have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §§ 3.321(b)(1), 4.7, 4.40, 4.56, 4.73, Diagnostic Code 5303 (1994) REASONS AND BASES FOR FINDING AND CONCLUSION Initially, the Board finds that the veteran's claim is well grounded within the meaning of 38 U.S.C.A. § 5107(a), in that he has presented a claim which is plausible. The Board is satisfied that all relevant facts have been properly developed, and that no further assistance to the veteran is required in order to comply with 38 U.S.C.A. § 5107(a). In accordance with 38 C.F.R. §§ 4.1 and 4.2, and Schafrath v. Derwinski, 1 Vet.App. 589 (1991), the Board has reviewed the service medical records and all other evidence of record pertaining to the history of the veteran's gunshot residuals of the left shoulder with fractured humerus. The Board has found nothing in the historical record which would lead to a conclusion that the current evidence of record is inadequate for rating purposes. The service medical records show that in August 1969, as the result of enemy action in Vietnam, the veteran sustained a gunshot wound of the left shoulder when hit by small arms fire. There was no artery or nerve involvement. He suffered a fracture of the humerus. The appellant underwent debridement of a through and through gunshot wound and delayed primary closure of his left shoulder wounds. Multiple radiographic studies revealed a comminuted fractured humerus with fragments in similar position and abundant callus and periosteal new bone formation. The RO granted entitlement to service connection for residuals of a gunshot wound of the upper left arm with fractured humerus and muscle damage with assignment of a prestabilization rating of 50 percent when it issued a rating decision in September 1970. On VA examination in October 1971, evaluation of the left hemithorax revealed a 3 1/2 inch transverse, well healed scar situated in the lower inferior pole of the left scapula. The scar was nonadherent to the underlying soft tissues. The left shoulder revealed a 4 inch vertically situated scar in the anterolateral aspect of the shoulder. The scar was slightly depressed. There was visible evidence of atrophy of the left deltoid muscle. The veteran lacked 30 degrees of full elevation and 30 degrees of abduction when active attempts were made to elevate and abduct the arm. The arm could be partially elevated and abducted to the normal range; however, at the end of elevation and abduction pain was noted. The examination diagnosis was residuals of a gunshot wound of the left shoulder and left hemithorax with functional deficits. An x-ray of the left shoulder revealed an old healed fracture of the upper portion of the shaft of the left humerus with overbridging, sclerosis of the joint facettes, irregularity, and spur formation. The RO terminated the prestabilization rating of 50 percent and assigned a 30 percent evaluation for residuals of a gunshot wound of the left shoulder with fractured humerus when it entered a rating decision in December 1971. The veteran was seen in the VA outpatient clinic in late 1991 for evaluation of his left shoulder gunshot wound. An x-ray taken in October noted an old fracture deformity of the proximal humeral shaft. At a May 1992 VA neurological examination the veteran stated that strength in his left arm was not as good as in his right arm. When he lay down he had a sensation of numbness. He felt that his grip of his left hand was just as good as it used to be. On examination was seen a scar of a gunshot wound behind the left scapula which was well healed with no obvious surrounding muscle atrophy. Strength for all muscle groups was 5/5 throughout. The examiner noted that no obvious weakness on the left side could be detected as compared with the right side, although weakness or fatigability could not be totally excluded. Grips were fairly good. Biceps and triceps jerks were 2+ bilaterally. Strength in the biceps, triceps, and supinator muscles were 5/5. Adductors and abductors of the fingers were 5/5. There were no obvious sensory deficits. The clinical assessment showed that other than a well healed scar and mild deformity of the left arm and lower scapula, no abnormality was detected on examination. The examiner noted that no clinical evidence of nerve injury could be detected on examination. Electromyographic studies conducted by VA in May 1992 were noted to demonstrate significant slowing across the elbow segment on the left ulnar nerve. The veteran was noted to have characteristic denervation in muscles supplied by the left ulnar nerve distal to the elbow. The normal L and R axillary latencies of 4.2 ms and normal amplitudes provided evidence against a diagnosis of a L axillary nerve lesion. The normal radial sensory nerve amplitudes and velocities bilaterally demonstrated normal function. At a May 1992 VA orthopedic examination the examiner noted a decreased mass on the deltoid. There was a 10 centimeter scar inferior to the left scapula and a 10 centimeter scar longitudinally over the mid portion of the deltoid. Sensation to pin prick was intact over the left upper extremity. Flexion of the left shoulder was to 125 degrees. Abduction was to 140 degrees. Motor function was intact. On forced resistance of the hand the veteran was unable to resist two fingers. The examination diagnosis was status post gunshot wound of the left shoulder with reduced range of motion. A November 1992 VA orthopedic examination report shows that no osteomyelitis was found. Left shoulder abduction was to 80 degrees. Adduction was full. Flexion was to 80 degrees. Extension was to 30 degrees. Internal rotation was to 80 degrees. External rotation was to 60 degrees. The examination diagnosis was gunshot wound of the left shoulder in 1969 with comminuted fracture of the head and neck of the left humerus with no evidence of osteomyelitis. The veteran is rated as 30 percent disabled under diagnostic code 5303 of the VA Schedule for Rating Disabilities. This is the highest evaluation under the diagnostic code and it contemplates severe injury to the intrinsic muscles of the minor left shoulder girdle. The veteran has been rated for severe muscle damage. Under 38 C.F.R. § 4.56, severe muscle damage involves a through and through or deep penetrating wound due to a high velocity missile, or large or multiple low velocity missiles, or the explosive effect of a high velocity missile, or shattering bone fracture with extensive debridement or prolonged infection and sloughing of soft parts, intermuscular binding and cicatrization. Objective findings for severe muscle damage involves extensive, ragged, depressed, and adherent scars of skin so situated as to indicate wide damage to muscle groups in the track of the missile. X-rays may show minute multiple scattered foreign bodies indicating the spread of intermuscular trauma and explosive effect of the missile. Palpation shows moderate or extensive loss of deep fascia or of muscle substance. Soft or flabby muscles in the wound area may be seen. It may be shown that muscles do not swell and harden normally in contraction. Tests of strength or endurance as compared with the sound side or of coordinated movements may show positive evidence of severe impairment of function. In electrical tests, reaction of degeneration is not present but a diminished excitability to faradic current compared with the sound side may be present. Visible or measured atrophy may or may not be present. Adaptive contraction of opposing group of muscles, if present, may indicate severity. Adhesion of a scar to one of the long bones, scapula, pelvic bones, sacrum or vertebrae, with epithelial sealing over the bone without true skin covering, in an area where bone is normally protected by muscle, indicates severe type of muscle damage. Atrophy of muscle groups not in the track of the missile may be included in the severe group if there is sufficient evidence of severe disability. The veteran's gunshot wound residuals of the minor left shoulder continue to be productive of not more than severe impairment as is contemplated in the current 30 percent evaluation. The current clinical evidence of record has demonstrated no pathological worsening of the combat incurred injury. Current clinical residual manifestations are essentially limited to healed scarring, evidence of previous fracture, limitation of motion, etc. No question has been presented as to which or two evaluations would more properly evaluate the severity of the gunshot wound. 38 C.F.R. § 4.7. Any pain the veteran may experience as the result of his injury is contemplated in the current 30 percent evaluation thereby precluding application of the criteria under 38 C.F.R. § 4.40 for functionally disabling pain. The gunshot wound residuals of the left shoulder have not rendered the veteran's disability picture unusual or exceptional in nature and have not markedly interfered with employment. They have not required frequent inpatient care as to render impractical the application of regular schedular standards, thereby precluding a grant of an increased evaluation on an extraschedular basis. 38 C.F.R. § 3.321(b)(1). Although the veteran has contended to the contrary on appeal, his combat incurred injury of the left upper extremity has not been shown to have increased in severity. While the VA neurological examiner did not have access to the electromyographic studies subsequently undertaken, the examiner nonetheless provided a detailed examination report which was not rendered any less valuable by the electromyographic studies which similarly did not demonstrate evidence of increased impairment. The current clinical evidence shows that the left shoulder disability has been essentially static in nature with no evidence of more than severe muscle damage or impairment. It is the judgment of the Board that no basis exists upon which to predicate a grant of an increased evaluation for residuals of a gunshot wound of the left shoulder with fractured humerus. 38 U.S.C.A. §§ 1155, 5107; 38 C.F.R. §§ 3.321(b)(1), 4.7, 4.40, 4.56, 4.73, Diagnostic Code 5303. ORDER Entitlement to an increased evaluation for residuals of a gunshot wound of the left shoulder with fractured humerus is denied. ALBERT D. TUTERA 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.