BVA9505538 DOCKET NO. 92-24 363 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Albuquerque, New Mexico THE ISSUE Entitlement to an increased rating for impairment of the left acromioclavicular joint, currently rated as 10 percent disabling. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Michael P. Vander Meer, Associate Counsel INTRODUCTION The veteran served on active duty from December 1973 to December 1976. This appeal arises from a September 1991 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Albuquerque, New Mexico. This case was last before the Board of Veterans' Appeals (Board) in March 1993, at which time it was remanded for further development. Following completion of the requested development, rating decisions entered in May 1994 and October 1994 continued to deny the benefit sought on appeal. Supplemental Statements of the Case were issued in June 1994 and November 1994. The appeal was returned to and redocketed at the Board in February 1995. The case is now ready for appellate review. CONTENTIONS OF APPELLANT ON APPEAL The veteran contends that he experiences some degree of pain in his left shoulder at all times, particularly when elevating his left arm above shoulder level. He also states that his left shoulder locks on occasion, and indicates that he experiences stiffness and soreness in his left forearm. He also alludes to experiencing occasional numbness in his left arm and fingers. He contends, in essence, that his service-connected left shoulder disability is more severely disabling than currently evaluated. DECISION OF THE BOARD In accordance with the provisions of 38 U.S.C.A. § 7104 (West 1991), following review and consideration of all evidence and material of record in the veteran's claims file, and for the following reasons and bases, it is the decision of the Board that the preponderance of the evidence is against the veteran's appeal for an increased rating for his service-connected left shoulder disability. FINDINGS OF FACT 1. Current manifestations of the veteran's service-connected left shoulder disability include persistent pain of modest severity, without evidence of loose movement or dislocation of the joint; an ability exists to abduct the left arm to above shoulder level. 2. No exceptional or unusual disability factors have been identified. CONCLUSION OF LAW The criteria for a rating in excess of 10 percent for impairment of the left acromioclavicular joint have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §§ 3.321(b)(1), 4.7 and Part 4, Diagnostic Code 5203 (1994). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Board finds that the veteran's claim for an increased rating is well grounded within the meaning of 38 U.S.C.A. § 5107(a). That is, the Board finds that such claim is plausible. The Board is also satisfied, with respect to such claim, that all relevant facts have been properly developed, and that no further assistance to the veteran is required to comply with 38 U.S.C.A. § 5107(a). Disability evaluations are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule), found in 38 C.F.R. Part 4 (1994). The Board attempts to determine the extent to which the veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, and the assigned rating is based, as far as practicable, upon the average impairment of earning capacity in civil occupations. 38 U.S.C.A. § 1155; 38 C.F.R. §§ 4.1, 4.10 (1994). Service connection is in effect for impairment, left acromioclavicular joint (minor), for which the RO has assigned a 10 percent rating under the provisions of Diagnostic Code 5203 of the Rating Schedule. In accordance with 38 C.F.R. §§ 4.1, 4.2, 4.41 and 4.42 (1993), 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 left shoulder disability. The Board has found nothing in the historical record which would lead it to conclude that the current evidence of record is not adequate for rating purposes. Moreover, the Board is of the opinion that this case presents no evidentiary considerations which would warrant an exposition of the remote clinical history and findings pertaining to the disability for which entitlement to an increased rating is asserted on appeal. Under the schedular criteria, 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. The veteran alludes to experiencing some degree of pain in his left shoulder on a constant basis, especially on extreme elevation of his left arm, and states that he experiences occasional locking in his left shoulder. In this regard, when orthopedically examined by VA in August 1991, approximately one year after undergoing the surgical resection of his left distal clavicle, the veteran exhibited full range of motion in the left shoulder but was noted to experience discomfort on demonstrating such motion. Findings on pertinent X-ray examination, on comparison with the results of an X-ray performed in March 1990, included the development in the interval of lysis of the distal clavicular tip. When seen for VA outpatient treatment in September 1992, at which time the veteran complained of left shoulder pain of many years' duration, he exhibited full range of motion in the left shoulder, without evidence of impingement. When examined by VA in March 1993, at which time the veteran indicated that he experienced occasional locking in his left shoulder as well as numbness in his left arm and fingers, range of motion findings included abduction to 170 degrees; grip in the left hand was weak. The diagnosis was status post surgical excision, left distal clavicle, with mild residual limitation of motion and pain. When examined in April 1993 by a non-VA physician, Steven Weiner, M.D., the veteran exhibited motion in the left shoulder described as "excellent," though he had weakness in elevating the shoulder girdle and shoulder. The veteran's clavicle was described as "riding high;" neurovascular examination was intact. On VA outpatient treatment in July 1993, it was the examiner's opinion that there was no evidence that the veteran's clavicle was riding high; findings on pertinent X-ray examination included widening "of the acromioclavicular space compatible with AC joint disruption." Most recently, when examined in July 1994 by another non-VA physician, James R. Buchanan, M.D., findings included a palpable defect in the distal clavicle, with full range of motion with pain in the area of an apparent posterior overgrowth of the clavicle. In considering the veteran's claim for an increased rating, the Board has no reason to dispute the veteran's assertion relative to experiencing essentially constant discomfort of modest intensity in the left shoulder, which finding was substantiated on VA examination in March 1993. Nevertheless, following its review of the pertinent evidentiary record, the Board is of the opinion that an increased rating for the veteran's service- connected left shoulder disability is not warranted. In reaching this determination, the Board would point out that, despite apparent widening of the acromioclavicular space shown on VA X-ray examination in July 1993, there is no indication of either loose movement or dislocation of the left shoulder, as is necessary for consideration of a 20 percent rating under Diagnostic Code 5203, on any examination performed within the time period relevant to this appeal. Further, given the veteran's ability on VA examination in March 1993, to abduct his left arm, his minor upper extremity, to 170 degrees, which is well above the level of the shoulder plane, see 38 C.F.R. § 4.70, Plate I (1994), entitlement to a 20 percent rating under Diagnostic Code 5201 is similarly precluded. Given the foregoing observations, and without evidence of any impairment of function of the left shoulder as would warrant entitlement to a 20 percent rating under any other Diagnostic Code, the Board concludes that the preponderance of the evidence is against the veteran's appeal for an increased rating for his service-connected left shoulder disability. In reaching the foregoing determination, the Board has given due consideration to the provisions of 38 C.F.R. § 4.7, which provide that, where there is a question as to which of two evaluations should be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. However, the record does not show that the actual manifestations of this disability more closely approximate those required for a 20 percent rating than they do the disability rating currently assigned. Finally, while the Board is cognizant of testimony by the veteran at his December 1992 hearing that his left arm "catches" after an extended period of use, as when sorting mail in conjunction with his employment as a letter carrier, the record reflects that the veteran continues to be employed in such capacity without indication of undue absences owing to his service-connected left shoulder disability and the Board is otherwise unable to identify any exceptional or unusual circumstances warranting a higher rating on an extraschedular basis pursuant to 38 C.F.R. § 3.321(b)(1). Accordingly, the Board is unable to identify a reasonable basis for a grant of this benefit on appeal. 38 U.S.C.A. §§ 1155, 5107(b); 38 C.F.R. §§ 3.321(b)(1), 4.7 and Part 4, Diagnostic Code 5203. ORDER An increased rating for impairment of the left acromioclavicular joint is denied. ROBERT E. SULLIVAN 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.