BVA9505550 DOCKET NO. 93-12 141 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to an increased rating for unicameral bone cyst of the left proximal humerus, currently evaluated as 10 percent disabling. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD Michele M. Florack, Associate Counsel INTRODUCTION The veteran served on active duty from June 1986 to November 1987. CONTENTIONS OF APPELLANT ON APPEAL The veteran contends that his service-connected left shoulder disability has recently become worse, and that based on pain and loss of function, a higher evaluation is warranted. DECISION OF THE BOARD The Board of Veterans' Appeals (Board), in accordance with the provisions of 38 U.S.C.A. § 7104 (West 1991), has reviewed and considered all of the evidence and material of record in the veteran's claims file. Based on its review of the relevant evidence in this matter, and for the following reasons and bases, it is the decision of the Board that the preponderance of the evidence is against an increased rating for unicameral bone cyst of the left proximal humerus. FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the instant appeal has been obtained by the Regional Office (RO). 2. The veteran's left shoulder disability is manifested by slightly limited range of motion and mild discomfort. 3. Weakness of the left shoulder was not shown on examination in July 1992. CONCLUSION OF LAW The criteria for an evaluation in excess of 10 percent for a left shoulder disability are not met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. § 3.321(b)(1) and Part 4, Codes 5015, 5201, 5202 (1994). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Board finds initially that the veteran's claim is "well grounded" or plausible within the meaning of 38 U.S.C.A. § 5107(a) (West 1991). The Board also finds that the facts relevant to the issue on appeal have been properly developed and that the statutory obligation of the Department of Veterans Affairs (VA) to assist the veteran in the development of his claim has been satisfied. 38 U.S.C.A. § 5107(a) (West 1991). On appellate review, there appear to be no areas in which further development might be fruitful. In January 1987, the veteran began to experience pain in his upper left arm. Radiographic studies revealed the presence of a bone lesion in the proximal humerus. In September 1987, a medical evaluation board found that he had some diffuse deep tenderness in the proximal humerus area. He had full range of motion in the joint, elbow and wrist. There was no atrophy, and motor examination was normal. It was the board's opinion that continued active duty placed the veteran at a high risk of fracturing the left humerus. Service connection for the cyst of the humerus was granted by the regional office in December 1987, and a noncompensable evaluation was assigned. In August 1992, the regional office awarded a 10 percent rating for this disorder, effective April 14, 1992. VA outpatient treatment reports from April 1992 reveal that the veteran complained of left shoulder pain for "a couple of weeks." The pain was described as mild aching and consistent soreness. No swelling was noted. An X-ray reportedly revealed no change to the left shoulder since March 1989. Motrin was prescribed. One week later the veteran reported that the medication failed to relieve the shoulder pain. At that time, some palpable tenderness was noted. In addition to Motrin, the veteran was prescribed rest and treatment with a topical ointment. Notes from the orthopedic clinic five days later show that the veteran had minimal pain and no restriction of motion of his left shoulder. On VA examination in July 1992, the veteran reported left shoulder pain with lifting and from lying on it. Upon examination, the shoulder girdle had no atrophy and neurovasculature distally was intact bilaterally. The range of motion of the veteran's shoulder was determined to be forward flexion to 145 degrees, abduction to 140 degrees, internal rotation to T6 with thumb tip, external rotation to 40 degrees, adduction to 30 degrees, and extension to 45 degrees. There was mild tenderness at the proximal humerus on deep palpation. X- rays of the shoulder were interpreted as showing a geographic, septated lesion in the proximal humeral metaphysis and no evidence of fractures. The radiologist concluded that the films were unchanged from X-ray examination three years earlier. The examiner's assessment was healing left proximal humeral unicameral bone cyst. Disability evaluations are determined by the application of the VA Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. 38 U.S.C.A. § 1155 (West 1991); 38 C.F.R. Part 4 (1994). 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. 38 C.F.R. § 4.7 (1994). The veteran's unicameral bone cyst of the left proximal humerus is rated in accordance with 38 C.F.R. § 4.71a, Diagnostic Code 5015, which rates the disability in accordance with limitation of motion of the affected part as arthritis. In this case, the criteria for evaluating shoulder disabilities is set forth in Diagnostic Codes 5201 and 5202, which require a showing of impairment such as limitation of motion, dislocation, guarded movements, deformity, or similar residual disability before compensable ratings may be assigned. 38 C.F.R. Part 4, Codes 5201, 5202 (1994). Where the shoulder disability involves limitation of motion of either arm to shoulder level, a 20 percent rating is substantiated. 38 C.F.R. Part 4, Code 5201 (1994). With recurrent dislocation of a minor joint with frequent episodes, for infrequent episodes and guarding of all arm movements at the shoulder level for the major arm, or where there is malunion with moderate or marked deformity, a 20 percent rating is also warranted. 38 C.F.R. Part 4, Code 5202 (1994). In every instance where the minimum schedular evaluation does not provide a zero percent evaluation for a diagnostic code, a zero percent evaluation will be assigned when the required residuals are not shown. 38 C.F.R. § 4.31 (1994). A compensable evaluation can also be assigned on the basis of a functional loss caused by pain, excess fatigability, or weakness. 38 C.F.R. §§ 4.40, 4.45 (1994). For claims of functional loss due to pain, a compensable rating is warranted if the claim is "supported by adequate pathology and evidenced by the visible behavior the claimant undertaking the motion." Hatlestad v. Derwinski, 1 Vet.App. 164, 167 (1991); 38 C.F.R. § 4.40 (1994). The veteran's representative argues that the RO has considered only limitation of motion in assigning the 10 percent evaluation in effect and has ignored the provisions of 38 C.F.R. § 4.40 pertaining to pain and weakness. However, a review of the evidence reveals that the limitation of motion of the veteran's left shoulder was only slight. His left shoulder abduction was to 140 degrees, a limitation of motion that is not sufficient for a compensable rating under Code 5201. 38 C.F.R. Part 4, Code 5201 (1994) Recurrent dislocation, guarding of all arm movements, or malunion with moderate or marked deformity was also not shown to in order to warrant the minimum schedular evaluation under Code 5202. 38 C.F.R. Part 4, Code 5202 (1994). In addition, the RO cited §§ 4.40 and 4.45 in it's April 1993 statement of the case to the veteran. The Board therefore finds that the RO did consider the veteran's complaints of pain in granting the 10 percent evaluation, and that the evaluation is consistent with the severity of the disability as shown by the evidence. It should be noted that the clinical findings at the July 1992 examination failed to reflect the examiner's impression that the extremity displayed weakness or more than mild discomfort. In addition, consideration has also been given 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). In particular, we find that the evidence discussed above does not suggest that the veteran's unicameral bone cyst of the left proximal humerus presents such an exceptional or unusual disability picture as to render impractical the application of the regular schedular standards so as to warrant an assignment of an extraschedular evaluation under 38 C.F.R. § 3.321(b)(1) (1994). For example, the disability did not recently require frequent periods of hospitalization, nor does it present marked interference with employment that is not already contemplated by the current evaluation. ORDER An evaluation greater than 10 percent for unicameral bone cyst of the left proximal humerus is denied. JOHN E. ORMOND 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.