Citation Nr: 0002078 Decision Date: 01/27/00 Archive Date: 02/02/00 DOCKET NO. 98-12 922 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUE Entitlement to a rating in excess of 10 percent for the residuals of surgery to remove the right distal clavicle. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Harold A. Beach, Counsel INTRODUCTION The veteran served on active duty more than 25 years until his retirement on October 30, 1996. This matter came to the Board of Veterans' Appeals (Board) on appeal from a November 1997 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Detroit, Michigan. That determination granted service connection for the disability at issue, and assigned a 10 percent evaluation, effective from October 31, 1996, the day following the veteran's discharge from service. In November 1999, the veteran had a hearing before the undersigned. FINDINGS OF FACT 1. All available evidence necessary for an equitable disposition of this appeal has been obtained by the RO. 2. Since service, the veteran's residuals of surgery of the right clavicle have been manifested by pain, including on use of the contiguous joint, crepitus, and slight deformity of the distal clavicle. CONCLUSION OF LAW The criteria for a 30 percent rating for the residuals of surgery to remove the right distal clavicle have been met. 38 U.S.C.A. § 1155, 5107 (West 1991); 38 C.F.R. § 4.1-4.3, 4.6, 4.7, 4.10, 4.40 - 4.42, 4.45, 4.69, 4.71a, Diagnostic Code 5202 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSION As a preliminary matter, the Board finds that the veteran's claim is plausible and thus well grounded within the meaning of 38 U.S.C.A. § 5107(a); see Proscelle v. Derwinski, 2 Vet. App. 629 (1992) (a claim of entitlement to an increased evaluation for a service-connected disability generally is a well-grounded claim). Disability evaluations are determined by comparing the manifestations of a particular disability with the criteria set forth in the diagnostic codes of the Schedule for Rating Disabilities. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4 (1999). The percentage ratings represent, as far as can practicably be determined, the average impairment in earning capacity (in civilian occupations) resulting from service-connected disability. 38 C.F.R. § 4.1. 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. The RO's November 1997 decision which granted service connection for the residuals of surgery to remove the distal right clavicle was an initial rating award. As held in AB v. Brown, 6 Vet. App. 35, 38 (1993), "on a claim for an original or an increased rating, the claimant will generally be presumed to be seeking the maximum benefit allowed by law and regulation." When an initial rating award is at issue, a practice known as "staged" ratings may apply. That is, at the time of an initial rating, separate ratings can be assigned for separate periods of time based on the facts found. Fenderson v. West, 12 Vet. App. 119 (1999). When rating the veteran's upper extremities, it is important to note whether the veteran is right-handed or left-handed; that is, it is necessary to determine which is his major upper extremity. Such a distinction is relevant to the assignment of the proper rating. 38 C.F.R. § 4.69. In this case, the record shows that the veteran is right-handed. The veteran's residuals of surgery to remove the distal right clavicle are rated in accordance with 38 C.F.R. Part 4, Diagnostic Code 5203. Under that code, a 10 percent rating is warranted for nonunion of the clavicle or scapula (major or minor extremity) without loose movement or for malunion of the clavicle or scapula. A 20 percent rating is warranted for dislocation of the clavicle or scapula or nonunion of the clavicle or scapula with loose movement. In other cases, impairment of the clavicle or scapula will be rated on impairment of motion of the contiguous joint. The joint contiguous with the right clavicle is the shoulder. Under 38 C.F.R. Part 4, Diagnostic Code 5201, a 20 percent rating is warranted when motion of the major arm is limited to the shoulder level. A 30 percent rating is warranted when arm motion is limited to midway between the side and shoulder level. A 40 percent rating is warranted when motion is limited to 25 degrees from the side. Also potentially applicable in rating the veteran's right clavicular disability is 38 C.F.R. § 4.71a, Diagnostic Code 5202. A 20 percent rating is warranted for malunion of the humerus (major) when there is moderate deformity, and a 30 percent rating is warranted when there is marked deformity. A 20 percent rating is also warranted when there is recurrent dislocation of the major scapulohumeral joint, with infrequent episodes, and guarding of movement only at shoulder level. A 30 percent rating is warranted with frequent episodes of and guarding of all major arm movements. A 50 percent rating is warranted for fibrous union of the major humerus. A 60 percent rating is warranted for nonunion of the major humerus (false flail joint), while a 80 percent rating is warranted for a loss of the head of the major humerus (flail shoulder). The United States Court of Appeals for Veterans Claims (formerly the United States Court of Veterans Appeals, hereinafter Court) has considered the question of functional loss as it relates to the adequacy of assigned disability ratings. DeLuca v. Brown, 8 Vet. App. 202 (1995). In DeLuca, the Court held that it is not enough for an examiner to state a range of motion. Rather, the Court said that 38 C.F.R. § 4.40 required consideration of factors such as lack of normal endurance, functional loss due to pain, and pain on use; specifically limitation of motion due to pain on use including during flare-ups. The Court also held that 38 C.F.R. § 4.45 required consideration of weakened movement, excess fatigability, and incoordination. Moreover, the Court stated that there must be a full description of the effects of the disability on the veteran's ordinary activity. 38 C.F.R. § 4.10. The service medical records show that in June 1994, the veteran fell from his bike and sustained a Grade III acromioclavicular separation on the right. In June 1995, he underwent reconstructive surgery and was treated for the remainder of service for disability of the right clavicle. Following his surgery, his primary complaints were pain, weakness, and clicking in the right shoulder. There was objective evidence of marked deformity of the right clavicle with the distal remnant tender and hypermobile with crepitation on movement. (See report from North Shore Medical Clinic, dated in July 1996.) The physician concluded that the veteran's right shoulder disability was comparable to a distal fracture or separation with free movement. During follow-up treatment at a military orthopedic clinic in August 1996, recommendations included physical therapy but no overhead activity, no lifting more than 10 pounds, no pushups, no pull-ups, and no sea duty. In October 1996, following a recommendation by a physical evaluation board, the veteran was permanently retired from service due to surgical removal of the distal clavicle, analogous to right (major) humerus, other impairment of: malunion of; marked deformity. A 30 percent disability rating was recommended under VA Diagnostic Code 5299-5202. Since his discharge, the veteran has been examined by VA to evaluate the disability involving his right clavicle. Although the September 1997 VA examination shows only slight deformity of the right clavicle, no recurrent dislocation or hypermobility, and right arm motion above the shoulder, the veteran's complaints of pain and weakness in the right shoulder and associated limitations remain essentially the same as they were at the time of his retirement from service. (See also the transcript of his hearing held in November 1999.) The operative scare was described as well-healed and nontender. He reports that minimal activity, such as getting dressed, shampooing, throwing a Frisbee, or lifting his 3 year old granddaughter, exacerbates the pain. Impingement syndrome was positive with pain. No left shoulder girdle muscle atrophy, or left arm muscle atrophy was demonstrated. In light of the severity of the veteran's injury in service and rather lengthy treatment, his current complaints and continuing limitations suggest that there has been no actual improvement in his right clavicle disability. 38 C.F.R. §§ 4.1, 4.2, 4.6, 4.10, 4.40, 4.41. The foregoing evidence shows that since the time of his discharge from service, the veteran has been clinically noted to have deformity of the right clavicle (albeit described as slight since service), with hypermobility and crepitus. As noted by the Physical Evaluation Board in October 1996, such findings are compatible with a 30 percent rating under 38 C.F.R. § 4.71a, Diagnostic Code 5202. Accordingly, such a rating is for assignment. There is no evidence, however, for the assignment of a higher rating under that Diagnostic Code, as the veteran does not demonstrate fibrous union, non-union, or loss of the head of the major humerus (flail shoulder). Moreover, while possible associated osteolysis of the distal clavicle was reported on VA X-ray examination in April 1997, there is no evidence for assignment of a higher rating under 38 C.F.R. § 4.71a, Diagnostic Code 5203, as the veteran demonstrated right arm motion to more than 25 degrees from his side. In arriving at this decision, the Board has considered the possibility of referring this case to the Director of the VA Compensation and Pension Service for possible approval of an extraschedular rating. The governing norm in these exceptional cases is: A finding that the case presents such an exceptional or unusual disability picture, with such related factors as marked interference with employment or frequent periods of hospitalization, as to render impractical the application of the regular schedular standards. 38 C.F.R. § 3.321(b)(1) (1999). While the veteran has testified that his right clavicle disability interferes with his promotion potential and that he is unable to perform many of the heavier maintenance duties in his job as a state park ranger, he reportedly knows of no documentation of work missed or of other adverse impacts caused by his service-connected right clavicle disability. Moreover, there is no evidence that he has required frequent hospitalization for that disability. In essence, the record shows that the manifestations of that disability are those contemplated by the current evaluation. It must be emphasized that disability ratings are not job- specific. They represent as far as can practicably be determined the average impairment in earning capacity as a result of diseases or injuries encountered incident to military service and their residual conditions in civilian 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 C.F.R. § 4.1. Absent evidence to the contrary, the Board finds no reason for referral of this case to the Director of VA Compensation and Pension purposes for a rating outside the regular schedular criteria. ORDER Entitlement to a 30 percent rating for the residuals of surgery to remove the right distal clavicle is granted, subject to the laws and regulations governing the award of compensation benefits. U. R. POWELL Member, Board of Veterans' Appeals