BVA9508032 DOCKET NO. 90-28 203 ) DATE ) RECONSIDERATION ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Wilmington, Delaware THE ISSUES 1. Entitlement to an increased rating for the postoperative residuals of chronic right shoulder dislocation, currently assigned a 20 percent evaluation. 2. Entitlement to an increased rating for acne vulgaris, currently assigned a 10 percent evaluation. 3. Entitlement to a separate compensable evaluation for a postoperative scar of the right shoulder. (The issue of entitlement to a compensable evaluation for multiple noncompensable service-connected disorders pursuant to the provisions of 38 C.F.R. § 3.324 (1994) prior to January 18, 1989, is the subject of a separate decision.) REPRESENTATION Appellant represented by: Paralyzed Veterans of America, Inc. ATTORNEY FOR THE BOARD Stephen F. Sylvester, Counsel INTRODUCTION The veteran in this case served on active duty from February 1979 to July 1982. This matter comes before the Board pursuant to a July 27, 1992, order of the United States Court of Veterans Appeals (Court). In the aforementioned order, the Court vacated a June 1991 decision of the Board, which denied entitlement to increased (compensable) ratings for the postoperative residuals of chronic right shoulder dislocation, and for acne vulgaris. The Court, similarly, vacated an April 1992 supplemental decision of the Board denying entitlement to a compensable evaluation for multiple noncompensable service-connected disorders pursuant to the provisions of 38 C.F.R. § 3.324. The case has been remanded to the Board with directions that the Board comply with instructions in the appellee's motion for remand, dated July 13, 1992, which requested that the case be remanded to the Board for reconsideration of the Board's previous decisions by an expanded panel. Reconsideration of the Board's previous decisions has been ordered by the authority granted to the Chairman in 38 U.S.C.A. § 7103 (West 1991). In March 1993, the veteran's case was remanded to the RO for additional development, specifically, the procurement of private medical records, and additional VA orthopedic and dermatologic examinations. In March 1994, these examinations were completed. Subsequent thereto, by a rating decision of May 1994, the RO granted a 20 percent evaluation for the service-connected postoperative residuals of chronic right shoulder dislocation. In that same rating decision, the RO granted a 10 percent evaluation for service- connected acne vulgaris. Both ratings were assigned effective from January 1989. It is with this most recent decision that the veteran currently takes issue. As noted above, the veteran is currently in receipt of a 20 percent evaluation for the postoperative residuals of chronic right shoulder dislocation, and a 10 percent evaluation for acne vulgaris. Consequently, one of the issues formerly on appeal, that of entitlement to a current compensable evaluation for multiple noncompensable service-connected disorders pursuant to the provisions of 38 C.F.R. § 3.324 (1994) has been rendered moot. As noted on the title page, the veteran is pursuing entitlement to a compensable rating under 38 C.F.R. 3.324 prior to January 1989; however, that issue is the subject of a separate decision. Moreover, a review of findings obtained at the time of the aforementioned VA orthopedic examination in March 1994 discloses the presence of a post surgical scar of the right shoulder. The issue of compensation for this scar is, in our opinion, "inextricably intertwined" with the other issues currently on appeal. Harris v. Derwinski, 1 Vet.App. 180 (1991); EF v. Derwinski, 1 Vet.App. 324 (1991); Myers v. Derwinski, 1 Vet.App. 127 (1991); Akles v. Derwinski, 1 Vet.App. 118 (1991). Accordingly, that issue has been listed on the title page of this decision. Finally, it should be noted that, inasmuch as this is a Reconsideration decision, it will replace the Board decisions of June 1991 and April 1992, and constitute the final decision of the Board. CONTENTIONS OF APPELLANT ON APPEAL The veteran contends that the RO committed error in denying entitlement to increased ratings for his service-connected right shoulder disorder and acne vulgaris. He argues that the various manifestations of those disorders are more severe than currently evaluated, and productive of a greater degree of impairment than is reflected by the respective 20 percent and 10 percent evaluations currently assigned. It is asserted that the veteran suffers from limitation of motion of his right shoulder, accompanied by discomfort (pain), and muscle atrophy. It is further contended that, as a result of the veteran's service- connected skin disorder, he suffers from severe itching over extensive areas of his body. The veteran argues that, as a result of surgery for his service-connected right shoulder disability, he now exhibits a painful, tender, and disfiguring scar of his right shoulder, for which he should be assigned a separate compensable evaluation pursuant to the holding of the Court in Esteban v. Brown, 6 Vet.App. 259 (1994). Finally, it is requested that the provisions of 38 C.F.R. § 4.7 (1994) be applied. 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 files, and for the following reasons and bases, it is the decision of the Board that a preponderance of the evidence is against the claims for increased ratings for the veteran's service-connected right shoulder disorder and acne vulgaris. However, the record supports the grant of a separate compensable (10 percent) evaluation for the veteran's service-connected postoperative scar of the right shoulder. FINDINGS OF FACT 1. The veteran's service-connected right shoulder disorder is presently characterized by a limitation of motion of the right (major) arm with motion possible to the shoulder level, or, in the alternative, by infrequent episodes of dislocation of the scapulohumeral joint of the right (major) upper extremity with guarding of movement only at the shoulder level. 2. The veteran's service-connected acne vulgaris is presently characterized by not more than exfoliation, exudation, or itching and involvement of an exposed surface or extensive area. 3. The veteran's current postoperative scar of the right shoulder, deemed "part and parcel" of his currently service- connected right shoulder disability, and, therefore, itself service connected, is tender and painful on objective demonstration. CONCLUSIONS OF LAW 1. An evaluation in excess of 20 percent for the postoperative residuals of chronic right shoulder dislocation is not warranted. 38 U.S.C.A. §§ 1155, 5107(b) (West 1991); 38 C.F.R. §§ 3.321(b)(1), 4.3, 4.7, and Part 4, Codes 5201, 5202 (1994). 2. An evaluation in excess of 10 percent for acne vulgaris is not warranted. 38 U.S.C.A. §§ 1155, 5107(b) (West 1991); 38 C.F.R. §§ 3.321(b)(1), 4.3, 4.7 and Part 4, Code 7806 (1994). 3. A separate and distinct 10 percent evaluation for a service- connected scar of the right shoulder is warranted. 38 U.S.C.A. §§ 1155, 5107(b) (West 1991); 38 C.F.R. §§ 4.3, 4.7, and Part 4, Code 7804 (1994). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS At the outset, we have found that the veteran's claims are "well- grounded" within the meaning of 38 U.S.C.A. § 5107(a) (West 1991). That is, we find that he has presented claims which are plausible. We are also satisfied that all relevant facts have been properly developed. In that regard, the Board notes that, in March 1993, the case was remanded to the RO for additional development. All sources of medical or other evidence identified by the veteran have now been pursued by the RO. No further assistance to the veteran is required in order to comply with the duty to assist him mandated by 38 U.S.C.A. § 5107(a) (West 1991). Disability evaluations, in general, are intended to compensate for the average impairment of earning capacity resulting from a service-connected disability. They are primarily determined by comparing objective clinical findings with the criteria set forth in the rating schedule. 38 U.S.C.A. § 1155 (West 1991); 38 C.F.R. Part 4 (1994). In the present case, service connection is in effect for the postoperative residuals of chronic right shoulder dislocation, evaluated as 20 percent disabling. At the time of a VA orthopedic examination in April 1989, the veteran stated that, following his initial injury in service, he experienced right shoulder dislocations on many occasions. In 1984, he underwent surgery on two separate occasions, following which the dislocations stopped. However, he continued to experience pain in his right shoulder. On physical examination, the veteran exhibited facial grimacing with various ranges of motion involving his right shoulder. Right shoulder abduction and forward elevation were restricted to 120 degrees. Backward elevation was described as full. External and internal rotation were mildly restricted to 80 and 30 degrees, respectively, which were felt to represent only a very minimal limitation of motion. There was minimal atrophy of the deltoid muscle with a healed anterior deltoid incision approximately 5 inches long. Further evaluation showed no crepitation or gross instability of the shoulder. There was tenderness over the entire shoulder, including the acromioclavicular joint, the subdeltoid bursa, the bicipital group, the incisional area, and the posterior "acromio" area, including the right intrascapular muscles. In the opinion of the examiner, range of motion and stability of the right shoulder were "fine" considering the veteran's history. In a report of examination in August 1989, done in conjunction with a Workmen's Compensation Claim, it was noted that motion of the shoulder was decreased on abduction, forward flexion, and internal and external rotation by 15 percent. In March 1990, K. Cooper, M.D., the veteran's private physician, wrote that, on his examination of the veteran, passive flexion of the right shoulder was to 110 degrees, with abduction to 85 degrees accompanied by discomfort. Motor function of the right shoulder girdle region for abduction and flexion against resistance was 3-3.5/5 plus. Additionally the presence of crepitance on motion of the right shoulder girdle was noted. In March 1994, an additional VA orthopedic examination was accomplished. At the examination, the veteran stated that, following his surgery in 1984, he had experienced no further dislocations of his right shoulder. However, he had continued to experience pain on a daily basis. Physical examination of the right shoulder disclosed mild atrophy of the deltoid muscle, though manual testing with the veteran's arm along his side was unremarkable. Forward elevation was to 120 degrees, with 140 degrees of abduction, 70 degrees of external rotation, and 80 degrees of internal rotation, all accompanied by pain. Adduction and backward elevation were full, but painful. There was general tenderness about the subdeltoid bursa and bicipital group, though not in the area of the acromion or clavicle. Subacromial crepitation was also noted. The pertinent diagnoses were status post surgery right shoulder with arthrofibrosis and atrophy secondary to "full" use and pain in the right shoulder. In a July 1994 statement, Dr. Cooper reported that the veteran exhibited a decreased range of motion of the right shoulder girdle, with forward flexion to 90 degrees, abduction to 80 degrees with discomfort, extension of from 0 to 5 degrees, likewise with discomfort, and crepitance on passive motion. We note that the 20 percent evaluation currently in effect contemplates a service-connected right (major) shoulder disability characterized by a limitation of motion of the arm, when motion is possible to the shoulder level, or, in the alternative, where there are 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 would require a demonstrated limitation of motion to midway between the side and shoulder level, or, in the alternative, frequent episodes of dislocation and guarding of all arm movements. 38 C.F.R. Part 4, Codes 5201, 5202 (1994). As noted above, since the time of his surgeries in 1984, the veteran has experienced no further problems with dislocation of his right shoulder. Moreover, as of the time of the most recent VA orthopedic examination in March 1994, range of motion of his right arm was clearly not limited to midway between his side and shoulder. The ability to extend the arm forward from the shoulder to a position parallel to the floor constitutes forward elevation, or flexion, to 90 degrees. To extend the arm straight up, perpendicular to the floor, constitutes flexion to 180 degrees. 38 C.F.R. § 4.71, Plate I (1994). The VA examination in March 1994 showed forward elevation to 120 degrees, or to a position 30 degrees higher than shoulder level. Consequently, the Board is of the opinion that the 20 percent evaluation currently in effect is appropriate, and that an increased rating is not warranted. Turning to the issue of an increased rating for service-connected acne vulgaris, the Board notes that, at the time of a VA dermatologic examination in April 1989, there were present a number of very small, pigmented patches on the veteran's upper back, shoulders, and upper arms. Additionally noted were a number of pigmented patches on the veteran's face, felt to be the result of old burns. There were no scars, papules or pustules, nor were any active lesions in evidence. In correspondence of March 1990, the veteran's private physician commented that the veteran suffered from a form of neurodermatitis, which manifested itself in severe bouts of generalized itching. Further comment was to the effect that this itching was "not fully abated" through the use of medication. Examination of the veteran's skin revealed multiple healed hyperpigmented lesions, with no active infections or draining ulcers. On VA dermatologic examination in March 1994, the veteran gave a history of pruritic eruptions on his face, trunk, buttocks, and proximal arms and legs, which "came and went." The veteran stated that he was currently receiving treatment from a private physician in the form of topical (ointments) and oral medication, including, occasionally, oral antibiotics. The veteran's primary complaint was of itching. Physical examination disclosed many hyperpigmented macules over the face, trunk, buttocks, and upper extremities. There were a few tiny whitish and excoriated papules scattered on the veteran's back and upper arms, but no evidence of pustules. The clinical impression was one of post inflammatory hyperpigmentation accompanied by mild folliculitis. In July 1994, the veteran's private physician stated that the veteran suffered from a papular skin eruption generalized over his trunk, arms and legs, with secondary excoriations which, on occasion, became infected as the result of scratching. The Board notes that the 10 percent evaluation currently in effect contemplates the presence of acne vulgaris characterized by exfoliation, exudation, or itching, and involvement of an exposed surface or extensive area. A 30 percent evaluation would require constant exudation or itching, accompanied by extensive lesions, or marked disfigurement. 38 C.F.R. Part 4, Code 7806 (1994). Based on the aforementioned findings, the Board is of the opinion that the actual manifestations of the veteran's service-connected acne are well encompassed by the disability evaluation presently in effect, and that an increased rating is not warranted. In particular, it has not been demonstrated that the veteran currently experiences constant exudation or itching, extensive lesions, or marked disfigurement. Accordingly, an increased rating for service-connected acne vulgaris must be denied. Regarding the issue of entitlement to a separate compensable evaluation for a postoperative scar of the right shoulder, the Board notes that such a scar has been present since the time of the veteran's surgeries in 1984, and is "part and parcel" of his service-connected right shoulder disability. On VA examination in April 1989, there was present a 5-inch, anterior deltoid incision scar which was well healed, with no true keloid. In an August 1989 report in conjunction with a Workmen's Compensation claim, it was noted that there was tenderness of the surgical scar. At the time of the veteran's most recent VA examination in March 1994, the veteran complained of "severe itching" in the area of his surgical scar. Physical examination disclosed the presence of a wide, 5-inch anterior scar which was itchy and tender. The pertinent diagnosis was of a mild, symptomatic keloid. Based on the aforementioned, the Board concludes that the post surgical scar of the veteran's right shoulder is shown to be tender and painful. Accordingly, pursuant to the provisions of 38 C.F.R. Part 4, Code 7804 (1994), a compensable (10 percent) evaluation is in order. It should be noted that this 10 percent evaluation for the veteran's service-connected postoperative scar of the right shoulder is a separate and distinct evaluation, to be combined with evaluations for the veteran's other service- connected disabilities. This is the case in that none of the symptomatology attributable to the veteran's postoperative scar is duplicative of or overlapping with the symptomatology of his other two service-connected disabilities. See Esteban v. Brown, 6 Vet.App. 259 (1994). In reaching the above decisions, we have given due consideration to the provisions of 38 C.F.R. § 4.7 (1994). However, as concerns the issues of increased ratings for the veteran's service-connected right shoulder and acne vulgaris, the current manifestations of those disabilities do not more nearly approximate the criteria for the next higher available evaluation. Consequently, the provisions of 38 C.F.R. § 4.7 (1994) are not for application. We have further given due consideration to the potential application of the various provisions of 38 C.F.R. Parts 3 and 4, including 38 C.F.R. 4.40, with regard to pain, whether or not they were raised by the veteran, as required by Schafrath v. Derwinski, 1 Vet.App. 589 (1991). In particular, we find that the evidence discussed above does not suggest that the veteran's service-connected right shoulder disorder or acne vulgaris presents such an exceptional or unusual disability picture as to render impractical the application of the regular schedular standards so as to warrant the assignment of an extraschedular evaluation pursuant to the provisions of 38 C.F.R. § 3.321(b)(1) (1994). For example, the veteran's right shoulder disorder and acne vulgaris have not recently required frequent periods of hospitalization, nor do they cause marked interference with employment which has not already been contemplated by the evaluations currently in effect. ORDER An increased evaluation for the postoperative residuals of chronic right shoulder dislocation is denied. An increased evaluation for acne vulgaris is denied. A separate compensable (10 percent) evaluation for a postoperative scar of the right shoulder is granted, subject to those regulations governing the award of monetary benefits. JACK W. BLASINGAME BETTINA S. CALLAWAY V. JORDAN J. J. SCHULE SHANE A. DURKIN R. E. SULLIVAN 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.