Citation Nr: 0000566 Decision Date: 01/07/00 Archive Date: 01/11/00 DOCKET NO. 98-19 959 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to an increased evaluation for service-connected traumatic arthritis of the right acromioclavicular joint, status post acromioclavicular separation, currently evaluated as 20 percent disabling. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD C. Chaplin, Counsel INTRODUCTION The veteran had active service from June 1978 to June 1981 and from October 1981 to November 1984. This matter came before the Board of Veterans' Appeals (Board) on appeal from a rating decision of February 1997, from the St. Petersburg, Florida, regional office (RO) of the Department of Veterans Affairs (VA) which confirmed and continued a 20 percent evaluation for traumatic arthritis of the right acromioclavicular joint, status post acromioclavicular separation. FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the appeal has been obtained by the agency of original jurisdiction. 2. Traumatic arthritis of the right acromioclavicular joint resulting from an inservice acromioclavicular separation is currently manifested by pain on heavy lifting and limitation of motion of the right arm for abduction to shoulder level. CONCLUSION OF LAW The schedular criteria for a disability evaluation in excess of 20 percent for traumatic arthritis of the right acromioclavicular joint, status post acromioclavicular separation are not met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §§ 3.102, 4.1, 4.2, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5003, 5010, 5201, 5202, 5203 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSION A claim was received from the veteran in September 1996 seeking an increased evaluation for his service-connected right shoulder disorder. The veteran claimed that his service-connected traumatic arthritis of the right acromioclavicular joint, status post acromioclavicular separation had worsened. The United States Court of Appeals for Veterans Claims (formerly U.S. Court of Veterans Appeals)(hereinafter "CAVC") has held a claim for an increased rating for a disability to be well grounded when an appellant indicates that the severity of the disability has increased. See Proscelle v. Derwinski, 2 Vet. App. 629, 631- 32 (1992). Accordingly, we find the claim for an increased rating of traumatic arthritis of the right acromioclavicular joint, status post acromioclavicular separation to be well grounded. Furthermore, he has not indicated that any probative evidence not already associated with the claims folder is available; therefore, the duty to assist him has been satisfied. 38 U.S.C.A. 5107(a) (West 1991). In a rating decision in December 1984, the RO granted service connection for traumatic arthritis of the right acromioclavicular joint resulting from acromioclavicular separation and assigned a 10 percent disability evaluation effective from November 1984. The RO confirmed and continued the 10 percent disability evaluation in a June 1986 rating decision. Based on a Board decision that a 20 percent disability evaluation under Diagnostic Codes 5003-5201 was warranted, the RO granted a 20 percent disability evaluation effective from November 10, 1984, the date following separation from service in a June 1987 rating decision. A copy of a letter from Diana C. Harris, M.D. written in August 1996 was included with the veteran's claim received in September 1996. The veteran was referred to Dr. Harris by VA to be seen for complaints of right shoulder pain and periodic numbness of his right upper extremity. These symptoms were exacerbated by his job and had worsened in the preceding three or four years. The letter noted that the veteran had worked as a boiler service technician for the past nineteen years which he started while in the Navy. Clinical findings were reported as showing the right trapezius muscles were tender and there was mild atrophy of the right shoulder as compared with the left shoulder. There was pain on abduction of 110 degrees and tenderness over the biceps tendon. Dr. Harris' impression was that the veteran has degenerative changes secondary to the old injury to his right shoulder. According to Dr. Harris, the paresthesias and numbness were very likely related to the old right shoulder injury. Dr. Harris prescribed medication for the pain and recommended that the veteran move into a job requiring less physical exertion with his upper extremities. The veteran was afforded a VA medical examination in December 1996. The veteran related that he injured his right shoulder during a baseball game in service. The veteran reported that he was employed at a hospital in Pensacola, Florida, where he works in the boiler room and also handles air conditioning equipment. The veteran had complaints of pain in the right shoulder and related that he was being treated by a rheumatologist who prescribed medication which gave some relief from the pain. The examiner found no evidence of muscle atrophy about his shoulders and good muscle strength in shoulders and forearms when tested in abduction and adduction and flexion at extension. Range of motion for the right shoulder was flexion to 170 degrees, extension to 45 degrees, internal rotation to 45 degrees, external rotation to 90 degrees, and abduction to 90 degrees. There was pain noted in the anterior right shoulder on full flexion and also internal rotation. According to the December 1996 X-ray report, the right shoulder demonstrates post surgical changes with some calcification at the lateral end of the clavicle as shown February 1996. Additional findings were that the glenohumeral joint was normal and the coracoclavicular relations were normal. The diagnosis was a history of injury to the right shoulder. In addition, the examiner diagnosed "almost a normal range of motion of the right shoulder and in fact, it compares almost exactly with the range of motion of the left shoulder where the [veteran] has no complaints." The examiner further mentioned that in contrast to Dr. Harris' report, "I fail to see any evidence of muscle atrophy in the shoulder area and also I find that he has very good muscle strength here." The veteran contends that the examining doctor suffered hearing loss and did not hear when the veteran first indicated that he was experiencing pain during the examination of his right shoulder. Treatment records for April and May 1997 from Kirby L. Turnage, M.D. were submitted. The veteran had been referred to Dr. Turnage by Dr. Harris for complaints of chronic right shoulder pain. The veteran related the initial injury in 1980 and subsequent treatment. The records of the surgeries were not available for review. He noted that he has had progressive pain over the last several years and was unable to sleep on his right shoulder. The veteran described experiencing shooting pain down his arm when he abducts his shoulder beyond 90 degrees. The clinical examination findings noted a well-healed scar over the clavicle region consistent with a Mumford incision. Neck range of motion was reported as full and symptoms consistent with radiculopathy could not be reproduced. Discomfort was noted upon forward flexion internal rotation, diagonal flexion internal rotation and abduction internal rotation. He was minimally tender lateral and anterolateral to the acromion. Shoulder discomfort was also noted with internal rotation alone and with the right hand to the left shoulder with the degree of shoulder flexion at 90 degrees. Dr. Turnage interpreted the X-rays as showing a type II/borderline type III acromion on the outlet view with calcification in the area of the apparent Mumford procedure and in the area approximating the normal location of the coracoacromial clavicular ligament. There were no significant degenerative changes of the glenohumeral joint proper and no specific evidence for calcification near the insertion point of the rotator cuff. Dr. Turnage noted that on the AP view there was sclerosis near the insertion point of the supraspinatus possibly consistent with chronic impingement type problems. The impression was impingement of the right shoulder and status post Mumford and possible reconstructive procedure. Dr. Turnage commented that the veteran had symptoms highly consistent with impingement and "this may be a problem that is completely independent of his previous Mumford/distal clavicle and even reconstructive procedure." With respect to the calcification noted of the coracoclavicular area, Dr. Turnage wrote that he doubted this was the primary cause of the veteran's pain. The veteran was to bring in prior treatment records for review. After review of the prior treatment records on a following visit, Dr. Turnage indicated that the veteran had a third degree AC separation on the right, followed by a Mumford procedure and later reconstruction of the coracoclavicular ligaments with Mersilene tape. Dr. Turnage observed that the veteran could remain tender around the area where the coracoclavicular ligaments would be and in the area of the resection. There was no sign of deep infection. Clinical findings revealed "a little anterior apprehension with abduction external rotation." Significant anterior subluxation could not be reproduced and there was no history of frank dislocation of the shoulder. The doctor recommended that the veteran carry heavy things primarily in his left hand. Dr. Turnage re-examined the shoulder and noted that the impingement maneuvers all reproduced discomfort. It was difficult to separate out the area where the veteran had the clavicular resection from the impingement. In order to try to differentiate between the two, the doctor injected Lidocaine into the subacromial space and the veteran was to return in two weeks. At the follow-up office visit on May 23, 1997, it was noted that the veteran had excellent results from the subacromial space injection for the duration of the Lidocaine. Dr. Turnage wrote: "This is encouraging in that this localizes the pain primarily to the area of his subacromial space and puts less credence in the possibility that the pain is coming from his previous AC joint area surgery." Surgery was discussed with the veteran with the recommendation of an arthroscopic bursectomy and acromioplasty for the significant impingement and other procedures depending on what was diagnosed arthroscopically. The veteran presented testimony at a personal hearing in January 1998 at the RO as evidenced by a copy of the hearing transcript contained in the claims file. He testified that he has problems lifting heavy equipment, especially over 50 pounds. His doctors have recommended that he work in another field or occupation. He described the symptoms and manifestations he experiences. He takes medication for the pain prescribed by Dr. Harris whom he has seen periodically and who referred him to Dr. Turnage. Analysis Arthritis due to trauma, substantiated by X-ray findings, is rated as degenerative arthritis. 38 C.F.R. § 4.71a, Diagnostic Code 5010 (1999). Degenerative arthritis established by X-ray findings will be rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. 38 C.F.R. Part 4, Diagnostic Code 5003 (1999). A 20 percent evaluation is warranted for limitation of motion of the major arm when motion is possible to shoulder level. A 30 percent evaluation is warranted for limitation of motion of the major arm when motion is possible to midway between the side and shoulder level. A 40 percent evaluation requires that motion be limited to 25 degrees from the side. 38 C.F.R. § 4.71a, Diagnostic Code 5201 (1999). The regulations define normal range of motion for the shoulder as forward flexion from zero to 180 degrees, abduction from zero to 180 degrees, external rotation to 90 degrees, and internal rotation to 90 degrees. 38 C.F.R. § 4.71 (1999). With forward elevation (flexion) and abduction, range of motion for the arm is from the side of the body (zero degrees) to above the head (180 degrees) with the mid- point of 90 degrees where the arm is held straight out from the shoulder. Id. None of the range of motion findings discussed above show that the criteria for a 30 percent disability rating have been met. At no time has the veteran had limitation of left arm motion to 25 degrees from the side. At the December 1996 VA examination, flexion of the right shoulder was to 170 degrees, almost normal with the arm above the head, while abduction was to 90 degrees, i.e. shoulder level. Therefore, the criteria for a disability rating in excess of 20 percent have clearly not been met under Diagnostic Code 5201. The Board has considered whether a higher disability evaluation is warranted on the basis of functional loss due to pain or due to weakness, fatigability, incoordination, or pain on movement of a joint under 38 C.F.R. §§ 4.40 and 4.45. In DeLuca v. Brown, 8 Vet. App. 202 (1995), the CAVC held that, in evaluating a service-connected disability involving a joint rated on limitation of motion, the Board erred in not adequately considering functional loss due to pain under 38 C.F.R. § 4.40 and functional loss due to weakness, fatigability, incoordination or pain on movement of a joint under 38 C.F.R. § 4.45. The CAVC in DeLuca held that diagnostic codes pertaining to range of motion do not subsume 38 C.F.R. § 4.40 and § 4.45, and that the rule against pyramiding set forth in 38 C.F.R. § 4.14 does not forbid consideration of a higher rating based on a greater limitation of motion due to pain on use, including use during flare-ups. Functional loss contemplates the inability of the body to perform the normal working movements of the body with normal excursion, strength, speed, coordination and endurance, and must be manifested by adequate evidence of disabling pathology, especially when it is due to pain. 38 C.F.R. § 4.40 (1999). A part that becomes painful on use must be regarded as seriously disabled. Id.; see also DeLuca. As regards the joints, factors to be evaluated include more movement than normal, weakened movement, excess fatigability, incoordination, pain on movement. 38 C.F.R. § 4.45(f) (1999). The evidence shows that the veteran's right shoulder complaints consist primarily of pain, especially with use. However, he has not contended that he has any episodes where he experiences greater limitation of motion of the right shoulder. Moreover, the most current medical evidence from Dr. Turnage in 1997 indicated that the pain of which the veteran complains is attributable to impingement and not to his previous AC joint area surgery. Although Dr. Harris noted mild atrophy, the VA examiner in December 1996 found no evidence of muscle atrophy in the right shoulder. Further, there was a finding of good muscle strength in his shoulder and forearm. These findings do not indicate the veteran's inability to use his left arm due to his symptoms. The veteran certainly experiences some functional loss as a result of his right shoulder condition, as evidenced by the medical opinions suggesting that he carry heavy things in his left arm or find other employment because of this disability. Moreover, he consistently complains of pain on motion of the right shoulder. However, the evidence indicates that most, if not all, of the pain is attributed to the impingement disorder and not to the previous AC joint area surgery. Although the Board is required to consider the effect of the veteran's pain when making a rating determination, and has done so in this case, the rating schedule does not require a separate rating for pain. Spurgeon v. Brown, 10 Vet. App. 194 (1997). A 20 percent disability rating contemplates a moderate level of impairment of employment due to the service-connected disorder. The fact remains that the veteran has been employed in a position requiring physical activity for more than twenty years and has been able to retain that position despite his right shoulder disability. The Board concludes that the currently assigned 20 percent disability rating adequately compensates the veteran for his service-connected right shoulder disability and for any increased functional loss he may experience with physical activities above the shoulder level. The Board has considered all other potentially applicable diagnostic codes. The maximum evaluation available under Diagnostic Code 5203 is 20 percent, and that rating requires either nonunion of the clavicle or scapula with loose movement of the minor extremity or dislocation of the clavicle or scapula of the minor extremity. Therefore, this diagnostic code does not provide the basis for an increased rating. In order to receive a disability rating in excess of 20 percent, the evidence would have to show malunion of the humerus with marked deformity, recurrent dislocation of the humerus at the scapulohumeral joint, fibrous union or nonunion of the humerus of the major extremity under Diagnostic Code 5202; loss of head of the humerus (flail shoulder) under Diagnostic Code 5202; or ankylosis of the scapulohumeral articulation (the scapula and humerus move as one piece) under Diagnostic Code 5200. However, the medical evidence does not show that any of these criteria have been met. The Board has considered the requirement of 38 C.F.R. § 4.3 to resolve any reasonable doubt regarding the current level of the veteran's disability in his favor. However, the objective medical evidence does not create a reasonable doubt regarding the current level of his right shoulder disability. As indicated above, the medical evidence does not show the presence of limitation of arm motion to 25 degrees from the side such as would warrant a disability rating in excess of 20 percent. Accordingly, the Board finds that the preponderance of the evidence is against assignment of an increased disability rating for the veteran's service- connected traumatic arthritis of the right acromioclavicular joint, status post acromioclavicular separation. ORDER An increased evaluation for traumatic arthritis of the right acromioclavicular joint, status post acromioclavicular separation is denied. NANCY I. PHILLIPS Member, Board of Veterans' Appeals