Citation NR: 9710008 Decision Date: 03/24/97 Archive Date: 04/02/97 DOCKET NO. 95-30 044 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to an increased disability rating for status post left shoulder dislocation (minor), currently rated as 20 percent disabling. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD T. Reichelderfer, Associate Counsel INTRODUCTION The veteran served on active duty from January 1971 to January 1974. This appeal arises from a rating decision of December 1994 from the St. Petersburg, Florida, Regional Office (RO). CONTENTIONS OF APPELLANT ON APPEAL The veteran contends, in essence, that his left shoulder disability is more disabling than contemplated by the 20 percent disability rating assigned. DECISION OF THE BOARD The Board of Veterans’ Appeals (Board), in accordance with the provisions of 38 U.S.C.A. § 7104 (West 1991 & Supp. 1995), 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 granting an increased disability rating for status post left shoulder dislocation (minor). FINDINGS OF FACT 1. All evidence necessary for an equitable disposition of the veteran’s claim has been developed. 2. Motion of the left shoulder is in excess of being limited to midway between the side and shoulder level. CONCLUSION OF LAW The criteria for an increased disability rating for status post left shoulder dislocation (minor) are not met. 38 U.S.C.A. § 1155, 5107 (West 1991); 38 C.F.R. §§ 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5003, 5010, 5200, 5201, 5202 (1996). REASONS AND BASES FOR FINDINGS AND CONCLUSION Background Initially, the Board finds that the veteran's claim is "well grounded" within the meaning of 38 U.S.C.A. § 5107(a) (West 1991); that is, a plausible claim has been presented. The veteran has not indicated that relevant evidence of probative value may be obtained which has not already been associated with his claims folder. Accordingly, the Board finds that the duty to assist him, as mandated by 38 U.S.C.A. § 5107(a) (West 1991), has been satisfied. In a rating decision, dated in July 1983, service connection for “status post left shoulder dislocation” was granted with a 10 percent disability rating assigned. In a June 1987 rating decision, the disability was reclassified as “status post left shoulder dislocation with traumatic arthritis (minor).” The disability rating was increased to 20 percent and has remained in effect since that time. A confirmed rating decision in September 1992 continued the 20 percent disability rating. The veteran contends that his left shoulder disability is more severe than contemplated by the 20 percent disability rating assigned. After a review of the record, his contentions are not found to be supported by the evidence and his claim fails. The severity of a shoulder disability is ascertained, for Department of Veterans Affairs (VA) disability rating purposes, by application of the criteria set forth in the Schedule for Rating Disabilities contained in 38 C.F.R. Part 4 (1996) (Schedule). 38 U.S.C.A. § 1155 (West 1991). Pain on motion and use is productive of disability. 38 C.F.R. §§ 4.40, 4.45, 4.59 (1996). Under the criteria of Diagnostic Codes 5003 and 5010, traumatic arthritis is rated based on limitation of motion of the joint affected. 38 C.F.R. § 4.71a, Diagnostic Codes 5003, 5010 (1996). The criteria of Diagnostic Code 5200, entitled “Scapulohumeral articulation, ankylosis of” (scapula and humerus move as one piece), provides that a 20 percent disability rating is warranted where the ankylosis of the minor shoulder is favorable and abduction is possible to 60 degrees with the ability to reach the mouth and head. A 30 percent rating is warranted where the ankylosis is intermediate between favorable and unfavorable, and a 40 percent rating is warranted for unfavorable ankylosis with abduction being limited to 25 degrees from the side. 38 C.F.R. § 4.71a, Diagnostic Code 5200 (1996). Under the criteria of Diagnostic Code 5201, entitled “Arm, limitation of motion of,” a 20 percent disability rating for the minor arm is warranted where motion is limited to midway between the side and shoulder level. A 30 percent disability rating for the minor arm is warranted where motion is limited to 25 degrees from the side. 38 C.F.R. § 4.71a, Diagnostic Code 5201 (1996). Under the criteria of Diagnostic Code 5202, entitled “Humerus, other impairment of,” a 20 percent disability rating is warranted for the minor arm where there is malunion or recurrent dislocation of the scapulohumeral joint with guarding of movements. A 40 percent disability rating is warranted for the minor arm where there is fibrous union, a 50 percent rating is warranted where there is nonunion (false flail joint), and a 70 percent rating is warranted where there is loss of head of the humerus (flail shoulder). 38 C.F.R. § 4.71a, Diagnostic Code 5202 (1996). A private clinical record, dated in May 1993, notes that the veteran had complaints of pain. There was full range of motion of the left shoulder with significant subacromial crepitus. There was no instability. The impression was impingement syndrome, left, cannot rule out but doubt rotator cuff tear. The plan was to inject with Celestone and Marcaine. Another statement, dated December 7, 1993, notes that there was significant subacromial crepitus and full range of motion, with an injection of Celestone and Marcaine being administered. Total disability was recommended until December 13, 1993. An April 1994 record notes that the veteran received an injection. The report of a VA examination, dated in September 1994, notes that veteran indicated that he had chronic shoulder pain. There was active flexion to 140 degrees, active abduction to 135 degrees, 70 degrees of internal rotation, and 90 degrees of external rotation. The report notes increased pain at the extremes of motion. There was tenderness to palpation over the area of the AC [acromioclavicular] joint. The report indicates that strength of the shoulder was 5/5. The impression was traumatic arthritis of the left shoulder. A report of VA X- rays, also dated in September 1994, notes heavy calcification inferior to the lateral half of the clavicle in the thoraco- clavicular space. There was some elevation of the acromioclavicular joint space and the glenohumeral joint was essentially normal. The report notes the study was similar to January 1987. A private clinical record, dated in May 1995, notes that there was full range of motion with significant crepitus. There was no evidence of weakness or muscle atrophy. The plan was to inject with Celestone and Marcaine. The record notes a recommendation that two days be taken off after the injection. An October 1995 record notes the veteran received an injection of Depo-Medrol and Marcaine. An April 2, 1996, record notes the veteran received an injection of Depo-Medrol and Marcaine. No prescriptions were given and temporary total disability was recommended until April 8. The veteran presented testimony at a personal hearing at the RO in April 1996. He testified that he had pain on motion of his arm and that the pain increased as motion of the shoulder increased. He also indicated that he received injections in the shoulder every three months, that he had to take leave following the injections, and that he used ice packs two or three times per week due to overuse of the shoulder. He further testified that he favored his right arm when lifting and carrying, and that he had reduced carrying strength. He testified that he did overhead work that caused his shoulder to be uncomfortable, and that general use irritated it. Analysis The medical evidence of record does not show that there was ankylosis of the shoulder. Therefore, an increased disability rating Diagnostic Code 5200 is not appropriate. Additionally, the medical evidence does not show fibrous union of the shoulder, nonunion (false flail joint), or loss of head (flail shoulder). Accordingly, an increased disability rating under Diagnostic Code 5202 is not warranted. 38 C.F.R. § 4.71a, Diagnostic Codes 5200, 5202 (1996). The report of the September 1994 VA examination notes an impression of traumatic arthritis of the right shoulder. Traumatic arthritis is rated based on limitation of motion. See Diagnostic Codes 5003, 5010. The private medical records note that the veteran had full range of motion of the right shoulder with pain and crepitus. Additionally, the veteran testified that he had pain on motion and use of the shoulder and the VA examination report notes that there was increased pain at the extremes of motion. However, the motion that was shown in the medical evidence was well in excess of motion being limited to midway between the side and shoulder level which is the basis under the limitation of motion criteria for the 20 percent disability rating that is currently assigned. Additionally, while the veteran testified that he had pain and reduced strength, received injections for pain, and used ice due to overuse, the evidence does not show that the pain caused the veteran’s motion to be restricted to being less that midway between the shoulder and side. Rather, the motion of the left shoulder, even when pain on motion and use was considered, was significantly greater than this. Moreover, the VA examination report notes that strength was normal. Therefore, an increased disability rating is not warranted. 38 C.F.R. §§ 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5003, 5010, 5201 (1996). The evidence of record also does not show that pain and restricted motion caused the veteran to be unable to reach his mouth and head. The ability to reach the mouth and head is consistent with a 20 percent disability rating under Diagnostic Code 5200. Additionally, the pain on motion and use may be considered to cause guarding of movement which under Diagnostic Code 5202 also warrants a 20 percent disability rating. Therefore, the 20 percent disability rating that is currently assigned is consistent with the 20 percent disability ratings that are available under Diagnostic Codes 5200 and 5202. 38 C.F.R. §§ 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5200, 5202 (1996). Based on the above, the preponderance of the evidence is against the veteran’s claim for an increased disability rating for status post left shoulder dislocation (minor). 38 U.S.C.A. § 1155, 5107 (West 1991); 38 C.F.R. §§ 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5003, 5010, 5200, 5201, 5202 (1996). ORDER An increased disability rating for status post left shoulder dislocation (minor) is denied. JACK W. BLASINGAME Member, Board of Veterans' Appeals A proceeding instituted before the Board of Veterans’ Appeals (Board) may be assigned to an individual Member of the Board or to a panel of not less than three Members of the Board for a determination. 38 U.S.C.A. § 7102 (West 1991 and Supp. 1996). This proceeding was assigned to the Board Member whose name and signature appear above. SEE FOLLOWING PAGE FOR NOTICE OF APPELLATE RIGHTS NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West 1991 & Supp. 1995), 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, 102 Stat. 4105, 4122 (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. - 2 -