Citation Nr: 0522152	
Decision Date: 08/15/05    Archive Date: 08/25/05

DOCKET NO.  99-21 910	)	DATE
	)
	)

Received from the
Department of Veterans Affairs Regional Office in New 
Orleans, Louisiana


THE ISSUES

1.  Entitlement to an increased evaluation for a left (minor) 
shoulder dislocation, currently rated as 20 percent 
disabling.

2.  Entitlement to an increased evaluation for post traumatic 
arthritis of the left (minor) shoulder, currently evaluated 
as 20 percent disabling.


REPRESENTATION

Appellant represented by:	Disabled American Veterans


ATTORNEY FOR THE BOARD

Matthew W. Blackwelder, Associate Counsel



INTRODUCTION

The veteran had active military service from April 1944 to 
July 1946, and from December 1946 to December 1949.

This matter comes before the Board of Veterans' Appeals 
(Board) on appeal from a May 1999 rating decision of the 
Department of Veterans Affairs (VA) Regional Office (RO), in 
North Little Rock, Arkansas.  The Board notes that during the 
pendency of this appeal the veteran moved from Arkansas to 
Louisiana; and, as such, this appeal was received from the 
New Orleans, Louisiana RO.

The veteran filed his notice of disagreement (NOD) in July 
1999, a statement of the case (SOC) was issued in September 
1999, and the veteran perfected his appeal later that month.  

The Board remanded the veteran's claim for further 
development in February 2001, and the RO has since awarded a 
separate 20 percent disability rating for traumatic, 
degenerative arthritis, effective from September 1998. 


FINDINGS OF FACT

1.  The veteran's left shoulder disability is not shown to be 
productive of impairment to the humerus with fibrous union.  

2.  The veteran is capable of raising his left arm to more 
than 25 degrees from the side.  


CONCLUSIONS OF LAW

1.  Criteria for a disability rating of greater than 20 
percent have not been met for a left (minor) shoulder 
dislocation.  38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. 
§§ 4.1-4.16, 4.40, 4.44, 4.45, 4.71a, Diagnostic Codes (DC) 
5202 (2004).

2.  Criteria for a disability rating of greater than 20 
percent have not been met for traumatic arthritis of the left 
(minor) shoulder.  38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. 
§§ 4.1-4.16, 4.40, 4.44, 4.45, 4.71a, Diagnostic Codes (DC) 
5010-5201 (2004).


REASONS AND BASES FOR FINDING AND CONCLUSIONS

I. Increased Rating

Disability evaluations are determined by the application of 
VA's Schedule for Rating Disabilities (Rating Schedule).  38 
C.F.R. Part 4.  The percentage ratings contained in the 
Rating Schedule represent, as far as can be practicably 
determined, the average impairment in earning capacity 
resulting from diseases and injuries incurred or aggravated 
during military service and their residual conditions in 
civil occupations.  38 U.S.C.A. § 1155; 38 C.F.R. § 4.1.  
Loss of industrial capacity is the principal factor in 
assigning schedular disability ratings.  See 38 C.F.R. §§ 
3.321(a), 4.1.  Because the veteran requested an increased 
rating, the veteran's present condition is of primary 
concern.  Francisco v. Brown, 7 Vet. App. 55, 58 (1994).

If a question exists as to which of two evaluations should be 
applied, the higher evaluation will be assigned if the 
disability picture more nearly approximates the criteria for 
that rating; otherwise, the lower rating will be assigned.  
38 C.F.R. § 4.7.  Any reasonable doubt regarding a degree of 
disability will be resolved in favor of the veteran.  38 
C.F.R. § 4.3.

The veteran's left shoulder dislocation is currently rated as 
20 percent disabling under 38 C.F.R. § 4.71a, DC 5202 for 
impairment of the humerus involving recurrent dislocation of 
the scapulohumeral joint of the minor arm with frequent 
episodes and guarding of all arm movements.  A higher rating 
of 40 percent is assigned for impairment of the humerus if 
there is a fibrous union of the humerus.

Arthritis is evaluated under 38 C.F.R. § 4.71a, DC 5010, 
based on limitation of motion, under the appropriate DC for 
the joint or joints involved.  Under DC 5201, limitation of 
motion of the minor arm to shoulder level or to midway 
between side and shoulder level is assigned a 20 percent 
evaluation.  See 38 C.F.R. § 4.71a, DC 5201.  A 30 percent 
disability rating is available under 38 C.F.R. § 4.71a, DC 
5201 for limitation of motion of the arm to 25 degrees from 
the side.

In February 2001 the Board remanded the veteran's claim in 
order to provide the veteran with a VA examination of his 
left shoulder.  At the VA examination in September 2002, the 
examiner noted that the veteran was right handed and that his 
left deltoid showed a decrease in muscle mass when compared 
to his right.  The veteran indicated that he would rank the 
level of pain at a two, but noted that it would go to three 
if he used the extremity quickly and automatically.  The 
veteran commented that he controlled this pain by simply 
suppressing the use of the left upper extremity.  

Range of motion testing showed that the veteran had 0 degrees 
of external rotation, 55-60 degrees of internal rotation, and 
abduction in the middle to 55 degrees.  The examiner 
indicated that in a patient of the veteran's age, he would 
expect that a normal range of motion would be 90 degrees of 
external rotation, 90 degrees of internal rotation, and full 
overhead motion in the pivotal position over 180 degrees.  

The examiner added that the veteran has pain at the extremes 
of the ranges of motion, and noted that the endurance of the 
shoulder joint and coordination would be adversely affected 
because of the changes within the joint.  Furthermore, the 
examiner indicated that there would be additional range of 
motion loss on account of pain with use, and unexpected 
movements at the extremes of the ranges of motion would 
produce flare-ups.  The examiner also noted that there was 
some presence of crepitation, as well as excessive 
fatigability and weakened movement.    

The examiner opined that the pain significantly limits the 
veteran's use of his left shoulder joint, indicating that the 
joint would not tolerate repeated use because of severe joint 
changes.

X-rays showed marked degenerative changes in the left 
shoulder in the form of a narrowing of the joint space 
between the glenoid and humerus, as well as an upward riding 
of the deformed humeral head.  Accordingly, the examiner 
rendered the diagnosis of remote, recurrent dislocation of 
the left shoulder and marked severe degenerative/traumatic 
arthritis of the left shoulder.

The Board has also reviewed all of the additional treatment 
records contained in the veteran's claims file, as well as a 
VA examination of the veteran's left shoulder from February 
1999.  However, the Board notes that these medical records 
fail to add any additional information regarding the 
condition of the veteran's left shoulder.

While the September 2002 examination demonstrated that the 
range of motion of the veteran's left shoulder is limited, 
and that use of the shoulder is painful, neither the 
examination, nor the x-rays showed a fibrous union of the 
veteran's left shoulder.  As such, the Board finds that there 
is no medical evidence which shows a fibrous union of the 
veteran's left shoulder, and the veteran is accordingly 
precluded from a 40 percent rating for a fibrous union of the 
left shoulder.  Therefore, the Board finds that a rating 
above 20 percent disabling for impairment of the humerus is 
not available.  

The Board also finds that the even taking into consideration 
the limitation caused by pain, the veteran was able to abduct 
his left arm to 55 degrees which is clearly more mobility 
than is contemplated by the limitation of motion of the arm 
to 25 degrees from the side.  Even if pain and fatigue 
further restricted the range of motion of the shoulder, the 
veteran would still be well above the threshold required for 
a higher rating.  As such, the Board finds that the veteran 
is not entitled to a 30 percent evaluation for limitation of 
motion of his arm, and the 20 percent disability rating that 
the veteran receives for traumatic arthritis is the highest 
rating available for arthritis under the rating schedule.



 
II.  Veterans Claims Assistance Act Compliance

Under the Veterans Claims Assistance Act of 2000 (VCAA), when 
VA receives a complete or substantially complete application 
for benefits, it is required to notify the claimant and his 
representative, if any, of any information and medical or lay 
evidence that is necessary to substantiate the claim.  38 
U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b) (2004); 
Quartuccio v. Principi, 16 Vet. App. 183 (2002).  In 
Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) 
(Pelegrini II), the United States Court of Appeals for 
Veterans Claims (Court) held that VA must inform the claimant 
of any information and evidence not of record (1) that is 
necessary to substantiate the claim; (2) that VA will seek to 
provide; (3) that the claimant is expected to provide; and 
(4) request that the claimant provide any evidence in his 
possession that pertains to the claim.  

The Board finds that the VCAA notice requirements have been 
satisfied by virtue of letters sent to the veteran in April 
2002 and January 2004.  Since these letters fully provided 
notice of elements (1), (2), (3) and (4), see above, it is 
not necessary for the Board to provide extensive reasons and 
bases as to how VA has complied with the VCAA's notice 
requirements.  See Mayfield v. Nicholson, 19 Vet. App. 103 
(2005).  With respect to element (4), the Board notes that 
the April 2002 letter specifically requested that the veteran 
send in evidence, or inform VA of any additional evidence.  
The January 2004 letter requested that the veteran send in 
any medical reports he had, and reminded him it was his 
responsibility to ensure the RO's receipt of all the evidence 
not in the possession of a Federal department or agency.  
There is no allegation from the veteran that he has any 
evidence in his possession that is needed for a full and fair 
adjudication of this claim.  In addition, by virtue of the 
rating decision on appeal, and the statement of the case 
(SOC), and the supplemental statements of the case (SSOC), 
the veteran was provided with specific information as to why 
this particular claim was being denied, and of the evidence 
that was lacking.  He was also supplied with the complete 
text of 38 C.F.R. § 3.159 in the December 2002 SSOC.  
Furthermore, the veteran has not claimed that VA has failed 
to comply with the notice requirements of the VCAA.

The Board notes that the initial rating decision in this case 
was issued before the VCAA was promulgated.  As such, the VA 
was not able to provide advance notice of the VCAA to the 
veteran.  Nevertheless, the Board finds that the veteran has 
since been fully informed about the VCAA, he has been given 
the subsequent opportunity to submit any additional 
information in his possession which might pertain to his 
claim, and afforded appropriate due process.  

The VCAA also provides that VA shall make reasonable efforts 
to assist a claimant in obtaining evidence necessary to 
substantiate his or her claim unless no reasonable 
possibility exists that such assistance would aid in 
substantiating the claim.  This assistance includes making 
reasonable efforts to obtain relevant records that a claimant 
identifies and providing a medical examination or obtaining a 
medical opinion when such an examination or opinion is 
necessary to make a decision on the claim.  

With respect to the VA's duty to assist, VA acquired the 
veteran's VA treatment records, and the Board is not aware of 
a basis for speculating that any other relevant private or VA 
treatment records exist that have not been obtained.  The 
veteran has also been provided with several VA examinations 
of his left shoulder in an effort to assist him in 
substantiating his claim, and the veteran was offered the 
opportunity to testify before the Board, but he declined.
 
Therefore, the Board finds that VA has done everything 
reasonably possible to notify and to assist the veteran and 
that no further action is necessary to meet the requirements 
of the VCAA and the applicable implementing regulations.






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ORDER

Entitlement to an increased evaluation for a left (minor) 
shoulder dislocation above 20 percent disabling is denied.

Entitlement to an increased evaluation for post-traumatic 
arthritis of the left (minor) shoulder above 20 percent 
disabling is denied.


	                        
____________________________________________
	MICHAEL E. KILCOYNE
	Veterans Law Judge, Board of Veterans' Appeals



 Department of Veterans Affairs



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