Citation Nr: 0000688 Decision Date: 01/10/00 Archive Date: 01/19/00 DOCKET NO. 98-03 324A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Diego, California THE ISSUES 1. Entitlement to an increased rating for arthritis of the right shoulder, rated 20 percent disabling. 2. Entitlement to an increased rating for residuals of amebiasis, rated 10 percent disabling. 3. Entitlement to an increased rating for residuals of cholecystectomy, rated 10 percent disabling. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD James J. Dunphy, Counsel INTRODUCTION The veteran served on active duty from October 1942 to January 1946. The veteran's claim for an increased rating was received in December 1996. In a June 1997 rating action, the evaluation for the right shoulder disorder was increased from 10 percent to 20 percent, effective the date the claim for increase was received. The veteran continued to voice disagreement with the 20 percent rating, and the instant appeal ensued. FINDINGS OF FACT 1. The veteran can raise his right arm to shoulder level, and the arthritis does not result in more than moderate limitation of function. 2. The residuals of the amebiasis are no more than moderate in degree, without frequent exacerbations. 3. The residuals of the cholecystectomy are no more mild in degree, and the resultant scar is not shown to result in limitation of function. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 20 percent for arthritis of the right shoulder are not met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §§ 4.40, 4.45, 4.71a, Part 4, Codes 5003 and 5201 (1999). 2. The criteria for a rating in excess of 10 percent for residuals of amebiasis are not met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. § 4.114, Part 4, Codes 7321 and 7323 (1999). 3. The criteria for a rating in excess of 10 percent for residuals of cholecystectomy are not met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §§ 4.114, 4.118, Part 4, Codes 7318, 7803, 7804 and 7805 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Initially, the Board notes that the veteran's claims are well grounded. By this, the Board means that the claims submitted are plausible. The Board further concludes that the VA has met its statutory duty to assist the veteran in the development of the claim. 38 U.S.C.A. § 5107 (West 1991). Under the laws administered by the VA, disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. 38 U.S.C.A. § 1155 (West 1991); 38 C.F.R. Part 4 (1999). Separate diagnostic codes identify the various disabilities. Where entitlement to compensation has already been established and an increase in the disability evaluation is at issue, it is the present level of disability that is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Arthritis of the right shoulder 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. 38 C.F.R. § 4.71a, Part 4, Code 5003 (1999). As the veteran is right handed, the right arm is the major arm. Under the provisions of Diagnostic Code 5201, a 20 percent rating is appropriate when range of motion is limited to the shoulder level. For a 30 percent rating to be warranted, range of motion must be limited to midway between the side and the shoulder level. Bilateral range of motion studies conducted on VA compensation examination in April 1997 show that flexion was possible to 130 degrees, with external rotation of 50 degrees, internal rotation full across the chest, and abduction to 100 degrees. Such range of motion is consistent with movement to the shoulder level, and does not show that the range of motion of the arm is limited to midway between the side and shoulder level. Accordingly, an increased rating on a schedular basis is not appropriate. The U.S. Court of Appeals for Veterans Claims (Court) has further has held that when a Diagnostic Code provides for compensation based solely upon limitation of motion, that the provisions of 38 C.F.R. §§ 4.40 and 4.45 (1999) must also be considered, and that examinations upon which the rating decisions are based must adequately portray the extent of functional loss due to pain "on use or due to flare-ups." DeLuca v. Brown, 8 Vet. App. 202, 206 (1995). The veteran's right shoulder arthritis is rated under the provisions of Diagnostic Code 5201, which, as noted, turn on limitation of motion. Accordingly, the Court's holding in DeLuca applies. The provisions of 38 C.F.R. § 4.40 hold that disability of the musculoskeletal system is primarily the inability, due to damage or infection in parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination and endurance. It is essential that the examination on which ratings are based adequately portray the anatomical damage, and the functional loss, with respect to all these elements. The functional loss may be due to absence of part, or all, of the necessary bones, joints and muscles, or associated structures, or to deformity, adhesions, defective innervation, or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by the visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. A little used part of the musculoskeletal system may be expected to show evidence of disuse, either through atrophy, the condition of the skin, absence of normal callosity or the like. relate to functional loss. The provisions of 38 C.F.R. § 4.45 require consideration of such factors with regard to the joints as less movement than normal (due to ankylosis, limitation or blocking, adhesions, tendon-tie-up, contracted scars, etc.); more movement than normal (from flail joint, resections, nonunion of fracture, relaxation of ligaments, etc.); weakened movement (due to muscle injury, disease or injury of peripheral nerves, divided or lengthened tendons, etc.); excess fatigability; incoordination, impaired ability to execute skilled movements smoothly or pain on movement, swelling, deformity or atrophy of disuse. In making determinations with regard to the application of 38 C.F.R. §§ 4.40 and 4.45, the Board is bound by the holding in VAOGCPREC 9-98 (August 14, 1998), which held that these provisions must be considered in light of the relevant Diagnostic Code governing limitation of motion. To establish a separate rating under these provisions would be tantamount to an extraschedular rating under 38 C.F.R. § 3.321, an outcome not envisioned by the provisions of 38 C.F.R. §§ 4.40 and 4.45 (1999). A review of the findings on examination does not show that the veteran has symptomatology supportive of an increased rating under the provisions of 38 C.F.R. §§ 4.40 and 4.45. The veteran reported pain in the right shoulder on the examination. While he did report swelling, this symptom was only occasionally present. Deformity was limited to the fingers, and not to the right shoulder. No other impairment of the right shoulder was reported. While the veteran reported that he required treatment for the disability, the VA Medical Facility, when contacted in March 1997, indicated that the veteran had not received treatment since 1990. Given the limited findings on examination, and in view of the absence of treatment, the Board concludes that an increased rating under the provisions of 38 C.F.R. §§ 4.40 and 4.45 is not appropriate. Amebiasis The veteran was hospitalized in a VA facility beginning in December 1946. At that time, the diagnoses included amebiasis, of an unknown etiology. The RO, in an October 1946 rating action, held that given this uncertainty, the amebiasis had its origin in service. An initial 30 percent rating was granted. This evaluation was decreased to 10 percent effective in January 1950. The veteran is rated at the maximum evaluation for amebiasis, based on mild gastrointestinal disturbances, lower abdominal cramps, nausea, gaseous distention, and chronic constipation interrupted by diarrhea. 38 C.F.R. § 4.114, Part 4, Code 7321 (1999). However, amebiasis with or without liver abscess is parallel in symptomatology with ulcerative colitis and should be rated on the scale provided for the latter. Under the provisions of Diagnostic Code 7323, a 10 percent rating is warranted when the disorder is moderate, with infrequent exacerbations. The 30 percent rating is appropriate when the disorder is moderately severe, with frequent exacerbations. On VA compensation examination in April 1997, the veteran's sole pertinent complaint was intermittent constipation with some difficulty in passing his stool. While there was some epigastric tenderness, the remainder of the abdominal examination was negative. There was no bleeding, soiling, incontinence, dehydration, malnutrition, anemia, or fecal leakage. Tenesmus was only occasionally present with constipation. Such symptoms, the Board concludes, are no more than moderate. Moreover, as there is no indication that the veteran has required treatment in recent years, the disorder does not result in frequent exacerbations. Under such circumstances, an increased rating for amebiasis is not appropriate. Cholecystectomy Finally, the veteran has contended that an increased rating is warranted for residuals of a cholecystectomy. The Board notes that the veteran underwent a cholecystectomy in April 1956 for alleviation of acute cholecystitis and cholelithiasis. The RO, in a February 1957 rating action, found that there could be no disassociation between the amebiasis and the gall bladder condition diagnosed in April 1956. Accordingly, service connection for the residuals of the cholecystectomy was granted. The current 10 percent rating is warranted for gall bladder removal where there are mild symptoms. For a 30 percent rating to be appropriate, there must be severe symptoms. 38 C.F.R. § 4.114, Part 4, Code 7318 (1999). The veteran was examined for compensation purposes in April 1997. At that time, a 30 millimeter scar was reported, associated with a moderate ventral hernia from the gall bladder surgery. While there was some epigastric tenderness, the remainder of the abdominal examination was negative. In view of the limited findings on examination, and given that the veteran has not required any medical care for many years, the Board finds no basis by which to conclude that the residuals of the cholecystectomy are more than mild in degree. The Board further notes that the veteran is rated at the maximum evaluation for scars that are tender, painful, or ulcerated, and there does not appear to be any significant limitation of function resultant from the scarring. See 38 C.F.R. § 4.118, Part 4, Codes 7803, 7804 and 7805. Under such circumstances, an increased rating is not appropriate. In reaching the above decisions, the Board has given due consideration to the potential application of the various provisions of 38 C.F.R. Parts 3 and 4, whether or not they were raised by the veteran, as required by Schafrath v. Derwinski, 1 Vet. App. 589 (1991). The Board finds that these provisions do not support the grant of an increased rating for the disorder at question. ORDER Increased ratings for arthritis of the right shoulder, residuals of amebiasis, and residuals of a cholecystectomy are denied. V. L. Jordan Member, Board of Veterans' Appeals