BVA9502118 DOCKET NO. 93-09 539 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Indianapolis, Indiana THE ISSUE Entitlement to an increased rating for the post-operative residuals of a right (major) acromioclavicular separation, currently evaluated as 20 percent disabling. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Martin F. Dunne, Counsel INTRODUCTION The veteran was a member of the Indiana Army National Guard and served on active duty from August 1963 until February 1964. This matter comes before the Board of Veterans' Appeals (Board) from rating decisions of the Department of Veterans Affairs (VA), Indianapolis, Indiana, Regional Office (RO). CONTENTIONS OF APPELLANT ON APPEAL Essentially, the veteran contends that his service-connected right shoulder disability is such that more than the current 20 percent rating is warranted. The veteran claims that he experiences increased right shoulder pain and limitation of motion of the shoulder. He says that if he has to raise his right arm over his shoulder he has to bend his body to do so and in so doing he occasionally hears a popping sound or experiences shooting pain, or both. He also asks that if he is to have only a 20 percent rating, why was he not assigned that rating in 1964? He additionally maintains that the VA examination he received in December 1992 was not much better than the VA examination he had in April 1992 and neither examination was as good as the one his private doctor had given him in March 1992. 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 the residuals of a right (major) acromioclavicular separation. FINDINGS OF FACT 1. The veteran is right-handed. 2. The post-operative residuals of a right (major) acromioclavicular separation are manifested by complaints of right shoulder pain with objective findings showing limitation of motion, no redness, heat, tenderness, edema, swelling or deformity, a 15 cm well-healed surgical scar to the anterior of the right shoulder , and mild degenerative changes confirmed by X-rays. CONCLUSION OF LAW The post-operative residuals of a right (major) acromioclavicular separation are no more then 20 percent disabling, on a schedular or extraschedular basis. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §§ 3.321(b), 4.1, 4.20, 4.40, 4.41, 4.44, 4.45, 4.48, 4.59, Diagnostic Code 5299-5203 (1994). REASONS AND BASES FOR FINDINGS AND CONCLUSION Initially, the Board finds that the veteran has presented a well grounded claim; that is, one which is plausible. The Board also finds that the VA has adequately fulfilled its responsibility to assist him in the development of his claim. 38 U.S.C.A. § 5107(a) (West 1991). Factual Background A review of the records show that, while on active duty in September 1963, the veteran was flipped during physical training landing him on his right shoulder and head which caused him to sustain a right acromioclavicular separation. Initially, he was placed in a partial cast but, following the removal of the cast, the separation and pain persisted. He underwent an arthrotomy with repair of the acromioclavicular ligament in October 1963. Shortly thereafter, a pin was surgically inserted across the acromioclavicular joint. After two weeks convalescent leave, he returned to the hospital where it was found that the reduction of the joint was unsatisfactory so, in mid-November 1963, he underwent another pinning of the acromioclavicular joint followed by physical and occupational therapy. He gradually noted relief of stiffness; however, right shoulder pain persisted. He was presented to a military medical review board and subsequently medically discharged from the Army National Guard. The veteran's original claim for entitlement to service connection for a right shoulder disability was received by the VA in October 1964. He underwent VA examination in December 1964 at which he complained that he experienced periodic aching in his right shoulder. Clinical findings revealed that his right shoulder had a well-healed surgical scar. An X-ray showed the residuals of an old fracture involving the distal end of the right clavicle with acromioclavicular separation which did not change with weight bearing. Following the VA physical examination, the RO, in a rating decision dated in December 1964, granted service connection for post-operative residuals of a right acromioclavicular separation and assigned the disability a 10 percent rating, effective from the date of his claim. The veteran was notified of this decision by VA letter dated in January 1965. He did not file an appeal within one year and the December 1964 decision became final. 38 U.S.C.A. § 7105 (West 1991); 38 C.F.R. § 3.104 (1994). In February 1990, the veteran underwent a VA examination for evaluation purposes. At the examination, he complained that he had pain on movement of his right shoulder, his right arm "goes to sleep" at night and his right arm did not have the same range of motion as his left arm. Physical examination found that the right shoulder surgical scar had very mild keloid formation and decreased sensitivity. There was no tenderness to palpation. There was increased joint pain with range of motion and audible crepitus. Range of motion studies of the right shoulder found that abduction was to 170 degrees with pain beyond 145 degrees, flexion was to 160 degrees with pain beyond 100 degrees, internal rotation was to 90 degrees, and external rotation was to 70 degrees. The right shoulder had normal strength, sensation and coordination. An X-ray of the right shoulder showed an old fracture of the clavicle with secondary degenerative change in the shoulder and in the acromioclavicular joint. In a rating decision dated in March 1990, the 10 percent rating was increased to 20 percent, effective from October 1989, based upon VA medical evaluation and review of his treatment records. The date of October 1989 was chosen as this was when the veteran filed for an increase in his benefits. The veteran was notified of the decision and he did not appeal it. The determination became final. The veteran filed a new claim for an increase in his compensation benefits in April 1992, when the VA received a report of examination conducted in March 1992 by Thomas E. Field, M.D. Analysis The VA utilizes a rating schedule which is used primarily as a guide in the evaluation of disabilities resulting from all types of diseases and injuries encountered as a result of or incident to military service. The percentage ratings represent, as far as can practicably be determined, the average impairment in earning capacity resulting from such diseases and injuries and their residual conditions in civil occupations. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. 38 U.S.C.A. § 1155 (West 1991); 38 C.F.R. § 4.1 (1994). It is thus essential, both in the examination and in the evaluation of disability, that each disability be viewed in relation to its history. 38 C.F.R. § 4.41 (1994). When an unlisted conditions is encountered, it will be permissible to rate that condition under a closely related disease or injury in which not only the functions affected, but the anatomical localization and symptomatology are closely analogous. Conjectural analogies will be avoided, as will the use of analogous ratings for conditions of doubtful diagnosis, or for those not fully supported by clinical and laboratory findings 38 C.F.R. § 4.20 (1994). Under the VA's Schedule for Rating Disabilities, the residuals of an acromioclavicular separation are rated under Diagnostic Code (Code) 5299-5203 which shows that if there is a dislocation of the clavicle or scapula, or if there is nonunion with loose movement, a 20 percent is warranted. A 20 percent rating is the highest schedular evaluation available under Code 5299-5203. 38 C.F.R. § 4.71a (1994). Under Code 5201, if there is limitation of motion at the shoulder level on the major (predominant) side, a 20 percent rating is warranted. If there is limitation of motion midway between the side and shoulder level on the major (predominant) side, a 30 percent rating is warranted and if there is limitation of motion to 25 degrees from the major (predominant) side, a 40 percent rating is warranted. 38 C.F.R. § 4.71a (1994). The report, dated in March 1992, from the veteran's non-VA treating physician , Dr. Field relates, in essence, that on examination the veteran "showed some limitation of motion of the right shoulder, particularly in extreme abduction. There is pain on forward and rearward motion of the shoulder and to percussion over the AC joint." The physician's opinion was that the veteran had degenerative arthritis in the shoulder. Dr. Field also reported his findings with respect to the veteran's neck. However, disability of the neck is not partof this appeal. The veteran underwent a VA orthopedic examination in April 1992 during which he complained that he experienced pain and popping at the right shoulder, especially in cold and damp weather. He also stated that he had decreased active range of motion in the right shoulder and that the pain was aggravated by overhead work and lifting but that the pain improved with the application of heat and in warm weather. Examination noted a 15 cm well-healed surgical scar on the anterior portion of the right shoulder. The shoulder had no deformity, discoloration, edema, swelling or tenderness. Range of motion study showed that abduction of the right shoulder was to 100 degrees, flexion to 110 degrees, and internal and external rotation to 90 degrees. X-rays taken of the right shoulder revealed pseudoarticulation of the coracoid process and of the clavicle as well as evidence of severe hyperostosis due to an old trauma. An X-ray of the right clavicle revealed no fracture or dislocation but there was mild degenerative changes noted. In December 1992, the veteran underwent another VA orthopedic examination during which he complained of pain and decreased range of motion in the right shoulder. Examination findings revealed that the right shoulder had no redness, heat, tenderness or edema. There was crepitus on range of motion of both shoulders. Range of motion of the left shoulder was full. Range of motion of the right shoulder showed abduction to 100 degrees, flexion to 120 degrees, internal rotation to 45 degrees, and external rotation to 70 degrees. An X-ray taken of the right shoulder showed mild degenerative changes. The veteran contends that neither the VA examination of April 1992 nor the VA examination of December 1992 was as good or as thorough as the one administered by his own non-VA physician in March 1992. After reviewing the reports of these examinations, the Board notes that the VA examiners reported their medical findings in much more detail than that provided by the private physician. The VA examination reports contain both positive and negative findings and note precise degrees for the range of motion studies. The private examiner's report is more general in nature. Under Code 5010, arthritis due to trauma that is substantiated by X-ray findings is rated as degenerative arthritis. Code 5003 notes that degenerative arthritis will be rated on the basis of limitation of motion under the appropriate diagnostic code 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. 4.71a (1994). The veteran currently has a 20 percent rating for the post- operative residuals of his right (major) acromioclavicular separation. All VA examinations show that the veteran can raise his arm to at least shoulder level. Dr. Field does not indicate otherwise. As noted earlier in this decision, a 20 percent schedular rating is the most that can be assigned the veteran's right upper extremity disability under the appropriate diagnostic codes. In assigning this rating, consideration has been given to the functional loss of the right shoulder as well as the veteran's complaints of pain. 38 C.F.R. §§ 4.40, 4.44, 4.45, 4.48, 4.59 (1994). The 20 percent rating is fair and reflects all of the medical data from private and VA sources. Consideration has also been given to the provisions of 38 C.F.R. § 3.321(b) (1994) regarding the assignment of an extraschedular evaluation but the Board finds that the right shoulder disability is not exceptional or unusual. The medical evidence does not show that the symptomatology associated with the veteran's right shoulder, in and of itself, has caused marked interference with employment or that it has been the cause of frequent periods of hospitalization as to render impractical the application of the regular schedular standards. ORDER Entitlement to and increased rating for the residuals of a right (major) acromioclavicular separation is denied. BRUCE KANNEE 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.