BVA9501521 DOCKET NO. 93-08 989 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUE Entitlement to an evaluation in excess of 10 percent for recurrent right shoulder dislocation with osteoarthritic changes. REPRESENTATION Appellant represented by: Catholic War Veterans of the U.S.A. ATTORNEY FOR THE BOARD J. Johnston, Associate Counsel INTRODUCTION The veteran had active service from April 1949 to April 1950, and from May 1950 to May 1956. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 1992 rating decision of the Houston, Texas, Department of Veterans Affairs (VA) Regional Office (RO), which denied an evaluation in excess of 10 percent for recurrent right shoulder dislocation with osteoarthritic changes. In his June 1992 application for an increased rating for service- connected disability, the veteran also requested service connection for a right leg disorder. This claim had previously been denied by the RO in rating decisions issued in January 1965, and again in July 1966. No subsequent appeal had been taken from those decisions and they were final. A September 1992 rating decision issued by the RO indicated the veteran had not submitted any new and material evidence and did not reopen the claim. In a September 1992 notice of disagreement, the veteran disagreed with this decision. However, in its December 1992 statement of the case, the RO did not discuss the issue of service connection for a right leg disorder. This issue was not certified for appeal. Therefore, the issue of whether the veteran submitted new and material evidence sufficient to reopen a claim for service connection for a right leg disorder is not presently in appellate status and is referred back to the RO for appropriate action. Additionally, in statements submitted to the RO in reference to the present claim, the veteran has indicated that his disability has rendered it difficult for him to attain or maintain substantially gainful employment. To the extent that this constituted an implied claim for a total rating based upon individual unemployability, this issue is also referred back to the RO for appropriate action. CONTENTIONS OF APPELLANT ON APPEAL The veteran contends that the RO erred in failing to grant him an evaluation in excess of 10 percent for service-connected recurrent right shoulder dislocation with osteoarthritic changes. He contends that right shoulder symptomatology has increased over time and that he is entitled to a 20 percent evaluation. 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 an evaluation in excess of 10 percent for recurrent right shoulder dislocation with osteoarthritic changes. FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the appeal has been obtained. 2. Right shoulder disability is shown by the evidence to have remained fairly constant over a lengthy period of time and is presently manifested by mild deltoid atrophy, external rotation to 40 degrees, internal rotation to "L1", forward flexion to 160 degrees and abduction to 160 degrees with mild degenerative changes which collectively indicate only mild disability results from the veteran's right shoulder disorder. 3. The current right shoulder dislocation with osteoarthritic changes does not itself produce an exceptional or unusual disability picture with such related factors as the need for frequent hospitalization or marked interference with employment. CONCLUSION OF LAW The criteria for an evaluation in excess of 10 percent for recurrent right shoulder dislocation with osteoarthritic changes have not been met. 38 U.S.C.A. §§ 1155, 5107(a) (West 1991); 38 C.F.R. §§ 3.321(b)(1), 4.1, 4.3, 4.7, 4.10, 4.40, 4.59, 4.71a, Diagnostic Codes 5203-5010 (1993). REASONS AND BASES FOR FINDINGS AND CONCLUSION The veteran's claim is well grounded within the meaning of 38 U.S.C.A. § 5107(a), in that it is plausible. All of the facts have been properly developed and no further assistance is necessary to comply with the duty to assist required by law. Id. During service in August 1953, the veteran sustained a strain of the sacrospinalis muscle and was treated for five days and discharged to duty without symptoms. In September 1953, an X-ray of the right shoulder in the internal and external rotation showed it to be normal. A consultation report in January 1954 indicted that the veteran had had six dislocations of the right shoulder since 1950, the last being in October. The report indicated that it was doubtful if surgery would ever be indicated. The examiner stated that bilaterally relaxed femoral ligaments resulted in the dislocation with the right being more frequent because the veteran was right-handed. In October 1955, the veteran again dislocated the right shoulder which was subsequently reduced and he was returned to duty. Diagnosis was established as dislocation, recurrent, right shoulder. The discharge examination in May 1956 was essentially negative. By rating action taken in August 1960, the RO granted service connection for recurrent dislocation of the right shoulder with a noncompensable evaluation. A VA orthopedic examination conducted in December 1964 showed no atrophy of right shoulder muscles. Abduction was restricted from 0 to 120 degrees, forward flexion was carried out to the same range, internal rotation was carried out to 30 degrees but external rotation was restricted to 15 degrees. There was no weakness in right hand grip and the biceps and triceps reflexes were active and equal. The diagnosis was chronic recurrent dislocation, right shoulder, in remission. Based upon this examination, the RO increased the veteran's assigned evaluation to 20 percent. A VA orthopedic examination in April 1971 indicated that the right shoulder had abduction of 135 degrees, forward flexion of 135 degrees, external rotation of 45 degrees, and internal rotation of 90 degrees. Adduction and extension were normal. There was no tenderness to pressure about the right shoulder and there was no muscular atrophy or weakness. No crepitance was noted on motion of the joint. X-ray studies of the right shoulder revealed minimal degenerative osteoarthritic changes, the acromioclavicular joints were not remarkable and no soft tissue calcification was demonstrated. The diagnosis was right shoulder, residuals of recurrent dislocation and degenerative osteoarthritic changes, limitation of motion, symptomatic, chronic, mild. Based upon this examination, the RO reduced the veteran's assigned evaluation to 10 percent. The veteran did not appeal this reduction action and there is no evidence of VA or private medical treatment for the right shoulder for many years thereafter. In July 1992, the veteran requested an evaluation of 20 percent for right shoulder disability. In August 1992 he was provided a VA orthopedic examination. During the examination, he reported having had recurrent dislocations of the right shoulder anteriorly and inferiorly every one to two years. Examination of the right shoulder showed mild deltoid atrophy. There was markedly positive apprehension testing and negative inhibition testing. External rotation was to 40 degrees, internal rotation was to "L1 as compared to T5", forward flexion and shoulder abduction were both to 160 degrees. X-ray studies of the right shoulder revealed mild degenerative changes with an inferior glenoid osteophyte noted. The impression was recurrent dislocation of the right shoulder, status post initial dislocation, in the Korean war, now with mild degenerative changes noted, presumably secondary to the veteran's instability. The 1945 Schedule for Rating Disabilities (Schedule) will be used for evaluating the degree of disability in claims for disability compensation. The provisions of the rating schedule represent the average impairment in earning capacity in civil occupations resulting from these disabilities, as far as practicably can be determined. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating; otherwise the lower rating will be assigned. 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability will be resolved in favor of the claimant. 38 C.F.R. § 4.3. The basis of disability evaluations is the ability of the body as a whole to function under the ordinary conditions of daily life including employment. 38 C.F.R. § 4.10. Disability of the musculoskeletal system is primarily the inability to perform the normal working movements of the body with normal excursion, strength, speed, coordination and endurance. 38 C.F.R. § 4.40. With any form of arthritis, painful motion is an important factor of disability and it is the intention of the Schedule to recognize actually painful joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59. Arthritis due to trauma, substantiated by X-ray findings, will be rated as degenerative arthritis. 38 C.F.R. § 4.71a, Diagnostic Code 5010. Degenerative arthritis, established by X-ray findings, will be rated on the basis of limitation of motion under the appropriate diagnostic code for the specific joint involved. When, however, the limitation of motion of the specific joint or joints involved is noncompensable under the appropriate code, a rating of 10 percent is warranted for each major joint or group of minor joints affected by limitation of motion. 38 C.F.R. § 4.71a, Diagnostic Code 5003 (1993). A 20 percent evaluation is warranted for limitation of motion of the major arm when motion is possible to the shoulder level. A 30 percent evaluation requires that motion be limited 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 (1993). A 20 percent evaluation is warranted for malunion of the humerus of the major upper extremity with moderate deformity. A 30 percent evaluation requires marked deformity. A 20 percent evaluation is also warranted for infrequent episodes of dislocation of the scapulohumeral joint of the major upper extremity with guarding of movement only at the shoulder level. A 30 percent evaluation requires frequent episodes of dislocation and guarding of all arm movements. 38 C.F.R. § 4.71a, Diagnostic Code 5202 (1993). 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 the function of the contiguous joint. 38 C.F.R. § 4.71a, Diagnostic Code 5203. The evidence of record indicates that an evaluation in excess of 10 percent for the veteran's right shoulder disorder is not warranted. Although the veteran has reported recurrent right shoulder dislocation over the years, he has submitted no medical evidence which shows chronicity of or treatment for such recurrent dislocations for many years. Clinical evidence contained in the claims folder indicates that the veteran's right shoulder symptomatology has been fairly static since at least 1971. The most recent examination conducted in August 1992 shows that the veteran's right shoulder has only mild deltoid atrophy with external rotation of 40 degrees of a possible 90 degrees, internal rotation to L1, forward flexion of 160 degrees of a possible 180 degrees and abduction of 160 degrees of a possible 180 degrees. Finally, only mild degenerative changes with an inferior glenoid osteophyte were noted. These findings are properly evaluated by the presently assigned 10 percent evaluation for malunion of the clavicle or scapula without loose movement of the shoulder. 38 C.F.R. § 4.71a, Diagnostic Code 5203. The next higher 20 percent evaluation is not warranted for the following reasons: There is no ankylosis of the shoulder shown; motion of the veteran's arm is not limited to the shoulder level; there was no impairment of the humerus shown; malunion of the humerus with moderate deformity is not shown; and impairment of the clavicle or scapula with nonunion with loose movement is not shown. Without any of these findings, a 20 percent evaluation may not be awarded in accordance with any of the relevant diagnostic codes contained in the Schedule. Because the right shoulder joint is affected by mild degenerative changes with some limitation of motion, a 10 percent evaluation is also warranted for traumatic arthritis, as substantiated by X-ray findings. 38 C.F.R. § 4.71a, Diagnostic Code 5010. No higher evaluation is warranted under any applicable diagnostic code as the requirements for an increased rating are neither met nor approximated. 38 C.F.R. §§ 4.3, 4.7. We have also considered whether the veteran's service-connected disability at issue warrants an extraschedular evaluation in accordance with the provisions of 38 C.F.R. § 3.321(b)(1). However, the evidence fails to document an exceptional or unusual disability picture regarding right shoulder disability which would render the application of the regular schedular standards impractical. Id. That is, extraschedular evaluation is not shown to be warranted based upon such factors as the need for frequent hospitalization or marked interference with employment. ORDER Entitlement to an evaluation in excess of 10 percent for recurrent right shoulder dislocation with osteoarthritic changes is denied. RENÉE M. PELLETIER 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.