Citation Nr: 0006602 Decision Date: 03/10/00 Archive Date: 03/17/00 DOCKET NO. 96-29 947 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Louisville, Kentucky THE ISSUE Entitlement to an increased evaluation for a postoperative dislocated right shoulder, currently evaluated as 20 percent disabling. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Richard A. Cohn, Associate Counsel INTRODUCTION The veteran served on active duty from December 1966 to October 1981. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 1995 rating decision of the Department of Veterans Affairs (VA) Regional Office in Louisville, Kentucky (RO) which continued a 10 percent rating for a postoperative dislocated right shoulder. The veteran appealed the decision to the Board which remanded the case to the RO in July 1998 for further development. After completion of the requested development to the extent possible and continued denial of the veteran's claim the RO returned the case to the Board for further appellate review. During the pendency of this appeal the RO increased the disability rating for a postoperative dislocated right shoulder to 20 percent. FINDINGS OF FACT 1. The record includes all evidence necessary for the equitable disposition of this appeal. 2. The veteran's service-connected postoperative dislocated right shoulder is manifested by no more than moderate limitation of right shoulder motion, pain upon palpation, muscle atrophy and slightly reduced right arm strength, but not by guarded or loose right shoulder movement or impaired contiguous joint function. CONCLUSION OF LAW The criteria for an evaluation in excess of 20 percent for postoperative dislocation of the right shoulder have not been met. 38 U.S.C.A. § 1155, 5107 (West 1991); 38 C.F.R. §§ 3.321(b)(1), 4.1-4.14, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5203 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSION The veteran contends that he is entitled to a higher evaluation for his service-connected postoperative dislocation of the right shoulder because the disorder is more disabling than contemplated by the current 20 percent rating. He asserts that he has pain, limited range of motion and diminished grip strength. A claimant for benefits under a law administered by the VA has the burden of submitting evidence sufficient to justify a belief by a fair and impartial individual that the claim is well-grounded. 38 U.S.C.A. § 5107(a) (West 1991). Because an allegation that a service-connected disability has become more severe is sufficient to establish a well-grounded claim for an increased rating, see Caffrey v. Brown, 6 Vet. App. 377, 381 (1994); Proscelle v. Derwinski, 2 Vet. App. 629, 632 (1992), the Board finds that the veteran's claim for an increased rating based upon an alleged increase in the severity of his service-connected disability is well grounded. Once a claimant presents a well-grounded claim, the VA has a duty to assist the claimant in developing facts which are pertinent to the claim. Id. The Board finds that all relevant facts have been properly developed and that all evidence necessary for equitable resolution of the issue on appeal is of record. Disability ratings are determined by applying the criteria set forth in the VA's Schedule for Rating Disabilities (rating schedule) to the veteran's current symptomatology. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C.A. § 1155; 38 C.F.R. § Part 4 (1999). If two evaluations are potentially applicable the higher evaluation will be assigned if the disability appears to approximate more nearly the criteria required for that rating. 38 C.F.R. § 4.7. A disability may require reratings in accordance with changes in a veteran's condition. It is therefore essential to consider a disability in the context of the entire recorded history when determining the level of current impairment. 38 C.F.R. § 4.1. Nevertheless, the current level of disability is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). A disability of the musculoskeletal system is primarily a damage- or infection-caused inability of a body part to move with normal excursion, strength, speed, coordination and endurance. A ratings examination must fully describe anatomical damage and functional loss in each of these areas. A functional loss may result from absence of a bone, joint, muscle or associated structure, or to a deformity, adhesion, defective innervation or other pathology, or it may be due to pain, provided claimed pain is supported by evidence of pathology and visible behavior of the claimant while undertaking the motion. Weakness is as effective an indicator of disability as limitation of motion and a body part which becomes painful on use is seriously disabled. 38 C.F.R. §§ 4.40, 4.45. In addition to applying schedular criteria, VA may consider granting a higher rating when the veteran is rated under a code that contemplates limitation of motion and additional functional loss due to pain or weakness is demonstrated. DeLuca v. Brown, 8 Vet. App. 202, 206-207 (1995). The RO granted service connection for a postoperative dislocated right shoulder in April 1982 at an assigned disability rating of 10 percent under Diagnostic Code (DC) 5203. The Board affirmed the 10 percent rating in August 1994. In December 1997 the RO increased the rating to 20 percent under the same DC. Under 38 C.F.R. § 4.71a, DC 5203 (1999), pertaining to impairment of the clavicle or scapula, dislocation or nonunion with loose movement warrants a 20 percent disability rating; nonunion without loose movement or malunion warrants a 10 percent disability rating, or, in the alternative, the disorder is rated based upon the impaired function of a contiguous joint. A substantial number of medical treatment, evaluation, examination and hospitalization records have been associated with the claims file since the Board's August 1994 decision affirming the 10 percent rating for the veteran's right shoulder disorder. The report of a November 1995 VA examination includes the veteran's complaint of right shoulder weakness. Objective findings included full range of shoulder motion, a scar over the acromioclavicular area, evidence of surgical resection of a portion of the distal clavicle and possibly a portion of the acromion, and atrophy of the right trapezius muscle resulting in right shoulder droop. Evidence of posttraumatic deformity at the right acromioclavicular joint shown in November 1995 VA X-rays remained unchanged in X-rays from May 1996, November 1997, July 1998 and March 1999. A report of a November 1997 VA examination included the veteran's complaint of daily pain for which he had sought physical and chiropractic therapy. Objective findings included limitation of motion to 160 degrees of forward flexion, 120 degrees of abduction and 60 degrees of external rotation, mild to moderate atrophy of the right deltoid and rotator cuff musculature, pain upon palpation of the cervical spine and posto-lateral trapezius and coracoclavicular joints, a 3 cm anterior shoulder scar at the lateral clavicle, and 4/5 extension strength. The diagnosis was daily symptomatic status post right shoulder injury sustained in service with recurrent dislocation and surgical repair, with muscle atrophy and reduced strength and range of motion precluding overhead reach and lifting greater than five pounds. A VA physician who provided a July 1998 peripheral nerve examination found no evidence of neurological deficits resulting from the veteran's service- connected right shoulder injury. A report of a March 1999 joints examination is the most recent VA examination documented in the claims file. The veteran reported persistent right shoulder pain and stiffness partially controlled by medication. The examining physician found diminished capabilities for lifting and carrying and for reaching above chest height, a right shoulder scar, range of motion of 160 degrees of forward flexion, 160 degrees of abduction, 70 degrees of internal rotation and 80 degrees of external rotation, full range of elbow, wrist and hand motion, mild shoulder crepitus and absence of synovitis, specific tenderness or impingement signs. The veteran testified at his February 1996 RO hearing that he experienced loss of right hand grip strength, inability to lift heavy weights without feeling as if his shoulder separated, right shoulder crepitus and limited range of shoulder motion. He further testified that he had been employed at a full time job for nearly seven years but there is no testimony on the extent, if any, to which his right shoulder disorder affected his work. In the Board's judgment, a review of the totality of the medical evidence fails to demonstrate that the veteran's right shoulder disorder warrants a disability rating in excess of the current 20 percent, the highest evaluation available under DC 5203. Symptoms associated with this disorder have included pain upon palpation, muscle atrophy and slightly reduced right arm strength. Comparison with the regulation defining normal range of shoulder motion discloses that the veteran's limitation of right shoulder motion is no more than moderate. See 38 C.F.R. § 4.71, Plate 1. There was no showing of guarded or loose right shoulder movement, or that the right shoulder disorder impaired the function of a contiguous joint or that this disorder impaired the veteran's employment. Neither does the evidence warrant a higher evaluation under another DC pertaining to the shoulder and arm because there is no showing of ankylosis (DC 5200), sufficient limitation of arm motion (DC 5201), or impairment of the humerus (DC 5202). The Board finds that the level of the veteran's objectively verified pain is consistent with and contemplated by the current, 20 percent evaluation for a right shoulder disorder. See 38 C.F.R. §§ 4.40, 4.45, 4.59 (1999); DeLuca v. Brown, 8 Vet. App. 202, 204-7 (1995). Furthermore, review of the totality of findings of the veteran's latest examinations discloses no evidence of functional loss due to pain in excess of that already contemplated by the codes. Therefore, consideration of pain as evidence of functional loss does not support assignment of higher evaluations. In consideration of the foregoing, the Board finds that the preponderance of the evidence of record is against an evaluation in excess of 20 percent for the disability at issue here. In reaching its decision the Board has carefully considered the history of the veteran's postoperative dislocated right shoulder and possible application of other provisions of 38 C.F.R., Parts 3 and 4, (pertaining to extra- schedular evaluation) notwithstanding whether the veteran or his representative requested such consideration. See Schafrath v. Derwinski, 1 Vet. App. 589, 592-3 (1991). However, the Board finds that the record does not show the veteran's disability to be so exceptional or unusual, with factors such as marked interference with employment or repeated hospitalization, as to render application of the regular schedular standards impractical and warrant extra- schedular consideration. See Bagwell v. Brown, 9 Vet. App. 337, 338-9 (1996); Floyd v. Brown, 9 Vet. App. 88, 96 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). ORDER The appeal is denied. WARREN W. RICE, JR. Member, Board of Veterans' Appeals