BVA9507393 DOCKET NO. 91-49 271 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES Entitlement to service connection for a disorder of the cervical spine, on a direct basis or secondary to a left shoulder disability. Entitlement to an increased rating for a left shoulder disability, including bursitis, currently rated as 10 percent disabling. Entitlement to a temporary total rating under 38 C.F.R. § 4.29 or 4.30 based on hospitalization in August 1990. REPRESENTATION Appellant represented by: Paralyzed Veterans of America, Inc. WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD K. J. Kunz, Associate Counsel INTRODUCTION The veteran served on active duty from January 1948 to July 1953. This appeal arises from an October 1990 rating decision of the St. Petersburg, Florida, Regional Office (RO). In that decision, the RO denied service connection for cervical radiculopathy, denied an increased rating for bursitis of the left shoulder, and denied a temporary total rating for convalescence based on hospitalization in August 1990. The veteran appears to raise the issue of entitlement to an earlier effective date for a 100 percent disability rating for post-traumatic stress disorder with anxiety symptoms. This claim is not inextricably intertwined with the issues currently before the Board on appeal, and it is referred to the Regional Office for appropriate action. CONTENTIONS OF APPELLANT ON APPEAL The veteran contends that the injury to his left shoulder that he sustained in service was not bursitis, but was nerve damage caused by the shoulder strap buckle of his pack on a twenty mile hike in basic training. He states that at that time he had no feeling and no movement in his left arm, and that he spent one month in the hospital in 1948. He contends that his shoulder problem and cervical spine problem are both due to nerve damage and pressure on his cervical spine area at that time. He reports that he feels numbness starting in his cervical area and spreading across his shoulder, and that he cannot hold objects up with his left arm. He reports that he had surgery for his shoulder and cervical spine problems in August 1990, and that after the surgery he had constant pain and was not able to return to his work as a carpenter. He contends that a temporary total rating is warranted based on his hospitalization in August 1990, which included the surgery. DECISION OF THE BOARD The 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 record supports service connection for cervical radiculopathy as part of the same condition as the veteran's service-connected left shoulder disability; that a 20 percent rating is assigned for the combined cervical spine and left shoulder disability; and that a temporary total rating is not warranted under 38 C.F.R. §§ 4.29 or 4.30 based on hospitalization in August 1990. FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the veteran's appeal has been obtained by the originating agency. 2. The veteran had numbness of the left shoulder in service due to a nerve injury and cervical radiculopathy. 3. The veteran's cervical radiculopathy and his left shoulder and upper extremity pain are manifestations of the same disability. 4. Cervical radiculopathy at C6 is manifested by intermittent pain in the left shoulder and upper extremity, and paraspinous and trapezius muscle spasms. 5. The veteran was hospitalized at a VA hospital from August 14, 1990 to August 17, 1990, for pain in the neck, left shoulder and left upper extremity. During his hospitalization he underwent surgery, a cervical laminectomy at C5 with associated foraminotomy. 6. The veteran was discharged without instructions for a convalescence of one month or more, and without immobilization, house confinement, or prohibition of weight-bearing. CONCLUSIONS OF LAW 1. Cervical radiculopathy, including numbness and pain in the left shoulder, was incurred in service. 38 U.S.C.A. §§ 1131, 5107 (West 1991); 38 C.F.R. §§ 3.303, 4.14 (1994). 2. The criteria for a 20 percent rating for cervical radiculopathy, including left shoulder and upper extremity pain, are met. 38 U.S.C.A. § 1155 (West 1991); 38 C.F.R. § 4.124, Part 4, Codes 8510, 8710 (1994). 3. Entitlement to a temporary total rating for hospitalization in August 1990 or for convalescence following that hospitalization is not warranted. 38 U.S.C.A. § 5107 (West 1991); 38 C.F.R. §§ 4.29, 4.30 (1994). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Board notes that the veteran's claim is well grounded within the meaning of 38 U.S.C.A. § 5107 (West 1991). A well grounded claim is a plausible claim, one which is meritorious on its own or capable of substantiation. Murphy v. Derwinski, 1 Vet.App. 78, 81 (1990). We are also satisfied that all relevant facts have been properly developed, so 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 (West 1991). I. Service Connection for Cervical Spine Disorder Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110, 1131 (West 1991); 38 C.F.R. § 3.303 (1994). The veteran reports that he had an injury in service after carrying a heavy pack on a twenty mile hike in basic training. Service medical records reflect hospitalization from April 13 to May 6, 1948. Hospital records noted palsy of the left deltoid secondary to pressure at the fourth and fifth cervical vertebrae. At discharge from the hospital, it was reported that the veteran had incomplete paralysis of the left axillary circumflex nerve, and that the veteran's arm had become numb on April 12, 1948, when he was carrying a heavy pack on a road march. Follow-up x-rays of the left shoulder taken in November 1948 were negative for left shoulder irregularities. The report of the June 1953 separation examination of the veteran noted an anxiety reaction, but noted no physical defects or symptoms. The injuries that the veteran noted in his 1953 claim for disability compensation included a 1948 injury to the nerves of the left shoulder and arm. On VA examination in September 1953, x-rays of the veteran's left shoulder were negative for any evidence of fracture or dislocation. There was noted moderate eburnation of the tuberosity of the left humerus, resulting in chronic bursitis. The VA examiner diagnosed chronic bursitis of left shoulder. An October 1953 rating decision established service connection for chronic bursitis of the left shoulder. On VA examination in April 1988, the veteran complained of low back pain and bilateral ankle pain. When the examiner inquired about records of bursitis of the left shoulder, the veteran said that he had some problems with the shoulder in basic training, but that he had no residual problems with the shoulder. VA outpatient treatment records from October 1989 reported that the veteran complained of shoulder pain since 1948, with weakness and intermittent numbness of the left upper extremity. The veteran continued to receive outpatient treatment for what was described as left radicular pain, and left C6 and C7 radiculopathy. In August 1990, the veteran was an inpatient at a VA Medical Center (VAMC) for this condition, with symptoms of left upper extremity pain starting in the neck, radiating to the shoulder and subsequently to thumb and fingers. The pain increased with activity of upper extremity, and there was weakness in the shoulder and decreased grip strength on the left. A preadmission MRI was reportedly consistent with cervical spondylosis. The examiner's impression was cervical spondylotic radiculopathy at C5 and C6 with possible ulnar neuropathy. Physicians performed surgery, a cervical laminectomy at C5, with foraminotomy. After the surgery, the veteran continued to be seen for pain and numbness in the neck, left shoulder and arm. In 1990 and 1991, he had physical therapy. On VA examination in May 1992, an examining physician assessed cervical spondylosis with evidence of mild C6 radiculopathy. There was evidence of paraspinous and trapezial muscle spasm, but there was no evidence on examination of left shoulder impingement or bursitis. The physician provided the following analysis of the etiology of the veteran's condition: In terms of the relationship to left shoulder bursitis and the left C6 cervical radiculopathy, if the patient truly had a left shoulder bursitis, this would not be related to a cervical radiculopathy. If, however, the C6 radiculopathy was present initially, this could be mistaken due to radicular pain as a left shoulder bursitis. This would have to be determined through a review of the records. I cannot state whether a C6 radiculopathy was present from the initial report of the injury during the service. The other possibility was that the patient had a left shoulder bursitis that resolved and then developed degenerative changes of his cervical spine related to the C6 radiculopathy. It is impossible to determine, at this point, which sequence of events occurred. The veteran contends that his shoulder and cervical spine symptoms are all part of the same problem, and that the condition was incurred with the nerve injury in service in 1948. We note that service medical records in 1948 attributed palsy of the left deltoid to pressure at the fourth and fifth cervical vertebrae, and noted incomplete paralysis of the left axillary circumflex nerve. Although radiculopathy was attributed to the C4 and C5 level, rather than C6, cervical radiculopathy was diagnosed at the time of the veteran's treatment in 1948. If the 1948 assessment was correct, then the 1953 finding of bursitis may have been mistaken, as the 1992 VA examiner suggested that radicular pain could be mistaken for left shoulder bursitis. In weighing the comparative credibility of the 1948 and 1953 diagnoses, we note that the veteran was treated for more than three weeks in service in 1948, and that the 1953 VA examination was based on findings from one visit on one day. We find that the more extensive opportunity for observation of the veteran in 1948 gives those findings more credibility than the findings of the single VA examination in 1953. We accept therefore that the veteran's condition in 1948 may well have been cervical radiculopathy, as suggested by the VA physician in May 1992, rather than bursitis. Weighing the evidence for and against the veteran's claim, we find it to be at least in equilibrium. Giving the veteran the benefit of the doubt, we conclude that the veteran's left shoulder and arm nerve symptoms and his cervical spine radiculopathy constitute one service-connected disability, manifested by cervical radiculopathy at C6. II. Rating for the Combined Cervical Spine and Left Shoulder Disability On VA examination in May 1992, the veteran reported that after the injury in service, he had intermittent problems with left arm weakness and numbness until August 1990, when he underwent a C5-6 foraminotomy and hemilaminectomy. Since the surgery, the veteran reported that the numbness in his left upper extremity had greatly resolved, but that he had paraspinous muscle spasms extending into the trapezius muscles bilaterally. Examination revealed mild tenderness to palpation about the paraspinous muscles bilaterally and into the trapezius muscles bilaterally. There was some limitation of motion of the cervical spine, with reports of pain at the extremes of motion. Muscle strength and range of motion of the left upper extremity was not reduced, and sensation of the left upper extremity was intact. The examiner's assessment was cervical spondylosis with evidence of mild C6 radiculopathy which persisted postoperatively, although was much improved postoperatively. The veteran's C6 radiculopathy, including left shoulder and arm pain, is best evaluated under Diagnostic Code 8710, for neuralgia of the upper radicular group, fifth and sixth cervicals. Peripheral neuralgia, with dull or intermittent pain of typical distribution so as to identify the nerve, is rated on the same scale as paralysis of that nerve, with a maximum equal to moderate incomplete paralysis. 38 C.F.R. § 4.124 (1994). Because the veteran's C6 radiculopathy was mild on the most recent examination, the appropriate rating is 20 percent, equal to the rating for mild incomplete paralysis of the upper radicular group. 38 C.F.R. Part 4, Codes 8510, 8710 (1994). III. Temporary Total Rating based on August 1990 Hospitalization The veteran has claimed entitlement to benefits under 38 C.F.R. §§ 4.29 or 4.30 based on his hospitalization and surgery at a VAMC in August 1990. Records from the VAMC in Gainesville, Florida, indicated that the veteran was admitted on August 14, 1990, complaining of neck, left shoulder, and left upper extremity pain. The impression was cervical spondylotic radiculopathy at C5 and C6 with possible ulnar neuropathy. On August 15, 1990, the veteran underwent surgery, a cervical laminectomy at C5 with associated foraminotomy. He was discharged on August 17, 1990, with medication and plans for follow-up in six weeks. Under 38 C.F.R. § 4.29 (1994), a total disability rating (100 percent) will be assigned without regard to other provisions of the rating schedule when it is established that a service- connected disability has required hospital treatment in a VA hospital or an approved hospital for a period in excess of 21 days. We have determined that the cervical spine radiculopathy that was treated in the August 1990 hospitalization is a service-connected disability. The veteran's hospital treatment in August 1990, however, was not for a period in excess of 21 days. Therefore, a total disability rating will not be assigned under 38 C.F.R. § 4.29 (1994). Under 38 C.F.R. § 4.30 (1994), a total disability rating (100 percent) will be assigned without regard to other provisions of the rating schedule when it is established by report at hospital discharge (regular discharge or release to non-bed care) or outpatient release that entitlement is warranted, effective from the date of hospital admission or outpatient treatment and continuing for a period of 1, 2, or 3 months from the first day of the month following such hospital discharge or outpatient release. Entitlement to such a temporary total rating is warranted if treatment of a service-connected disability has resulted in: (1) Surgery necessitating at least one month of convalescence; (2) surgery with severe postoperative residuals such as incompletely healed surgical wounds, stumps of recent amputations, therapeutic immobilization of one major joint or more, application of a body cast, or the necessity for house confinement, or the necessity for continued use of a wheelchair or crutches (regular weight-bearing prohibited); or (3) immobilization by cast, without surgery, of one major joint or more. It is important to note that the purpose of this temporary total convalescent rating under 38 C.F.R. § 4.30 is not to compensate a veteran for the average economic consequences of a service- connected disability (that is the function of the regular schedular rating), but instead to compensate a veteran for the almost total immobility or other such inconveniences, generally of a relatively short duration, resulting directly from surgical treatment of a service-connected disability. In this case, the veteran underwent surgery on August 15, 1990 and was discharged on August 17, 1990, with medication and plans for follow-up in six weeks. The hospital records did not indicate that the surgery necessitated one month or more of convalescence, nor was there any indication that the veteran was discharged with incompletely healed surgical wounds, therapeutic immobilization of any joint, a cast, or instructions for house confinement, or use of a wheelchair or crutches. As the conditions for a temporary total rating for convalescence were not present following the veteran's August 1990 surgery, a temporary total rating is not warranted under 38 C.F.R. § 4.30 (1994). ORDER Service connection for cervical spine radiculopathy is granted, as part of the same condition as the veteran's service-connected left shoulder disability. A 20 percent disability rating is granted for cervical spine radiculopathy, including pain in the left upper extremity. A temporary total rating under 38 C.F.R. §§ 4.29 or 4.30, based on hospitalization in August 1990, is denied. BETTINA S. CALLAWAY 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.