Citation Nr: 0004098 Decision Date: 02/16/00 Archive Date: 02/23/00 DOCKET NO. 95-000 53A ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania THE ISSUES 1. Whether the claim of service connection for a right wrist disorder is well-grounded. 2. Whether the claim of service connection for a left wrist disorder is well-grounded. 3. Entitlement to service connection for a right wrist disorder. 4. Entitlement to service connection for a left wrist disorder. 5. Entitlement to a compensable rating for residuals of a gunshot wound to the left ear, consisting of a scar. 6. Entitlement to a compensable rating for residuals of a shell fragment wound to the right hand, consisting of one or more laceration scar(s). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD John M. Clarkson, III, Counsel INTRODUCTION The veteran had active service from September 1963 to September 1966, and from September 1968 to September 1971. The veteran was accorded a hearing before the undersigned member of the Board of Veterans' Appeals (Board) in Washington, D.C., in October 1999, and a transcript of the hearing is included in the record. It is further noted that, at a prehearing conference prior to the Board hearing in October 1999, the veteran clarified his periods of service, and they are encompassed in service department Forms DD-214 and reports from the National Personnel Records Center. The appeals as to the right and left wrist disorders arise from a July 1994 rating decision, in which the RO denied service connection for a bilateral wrist disorder. Given that the veteran contends that he sustained injuries to both wrists on more than one occasion during service, and service connection is currently in effect for more than one disability of his right upper extremity (as set forth more fully below), the Board has reviewed his contentions on appeal as separate claims of service connection for right and left wrist disorders. Also, as reflected on the title page of this decision, the issue involving service connection for a right wrist disorder now involves two issues, and the issue of service connection for a left wrist disorder now involves two issues. The claims of service connection for a right wrist disorder and a left wrist disorder are addressed in a remand at the end of this decision. The appeal as to a compensable rating for residuals of a gunshot wound to the left ear, consisting of a scar, arises from a July 1994 rating decision, which denied a compensable rating for residuals of a gunshot wound to the left ear. Prior to the Board hearing in October 1999, the undersigned member of the Board did not have sufficient opportunity to review the claims folder and was, therefore, uncertain as to whether procedural development for all of the issues said to be on appeal had been accomplished. As such, the issue of entitlement to a rating in excess of 10 percent for residuals of a shell fragment wound of the right hand involving the right thumb was said to be on appeal. However, following careful review of the claims folder, the Board notes that, the RO awarded service connection and assigned a noncompensable rating for residuals of a shell fragment wound of the right hand in a May 1972 rating decision. In a July 1994 rating decision, the RO, among other things, considered and denied separate claims for service connection for a right thumb disorder and for a compensable rating for residuals of a shell fragment wound of the right hand. In a notice of disagreement (NOD) dated in September 1994, the veteran expressed his disagreement with denials of the separate claims for service connection for a right thumb disorder, and for an increased (compensable) rating for residuals of a shell fragment wound of the right hand. The RO listed the two claims separately in a statement of the case (SOC) issued in January 1995. The veteran referred to the two claims separately in a VA Form 9 filed in January 1995. In a June 1999 rating decision, the RO awarded service connection and assigned a 10 percent rating for degenerative joint disease of the right thumb at the metacarpophalangeal joint. This was a complete grant of the benefit sought on appeal in the claim for service connection for a right thumb disorder. Thereafter, in a June 1999 letter to the veteran, the RO asked if he desired to file an appeal as to the 10 percent rating assigned for degenerative joint disease of the right thumb at the metacarpophalangeal joint. In a July 1999 statement, the veteran replied that he was asserting claims for an increased rating for the service-connected right thumb disorder and for a temporary total rating based on hospitalization and surgery in connection with surgery on his right thumb performed in June 1999. As a claim for an increased rating for the veteran's service-connected right thumb disorder has been filed, but has not yet been adjudicated by the RO, this claim and the claim for a temporary total rating based on hospitalization and surgery in connection with surgery on his right thumb are referred to the RO for appropriate action. A noncompensable rating is currently in effect for residuals of a shell fragment wound of the right hand, and the appeal as to this issue arises out of the above referenced July 1994 rating decision denying a compensable rating. The evidence which is currently of record suggests that the residuals consist of one or more laceration scar(s) on the veteran's right hand. The issue has been characterized as shown on the title page to distinguish this disorder from other disorders of the veteran's right upper extremity, and is addressed in a remand at the end of this decision. Additionally, the Board notes that, at the hearing before the undersigned member of the Board in October 1999, the veteran indicated that he is currently known by a name different from that name listed in his service records. The title page lists both of the names by which he has been known. FINDINGS OF FACT 1. The claim of service connection for a right wrist disorder is plausible. 2. The claim of service connection for a left wrist disorder is plausible. 3. The veteran's service-connected residuals of a gunshot wound to the left ear consist of a scar on his ear which is tender to touch. CONCLUSIONS OF LAW 1. The claim for service connection for a right wrist disorder is well-grounded. 38 U.S.C.A. § 5107(a) (West 1991). 2. The claim for service connection for a left wrist disorder is well-grounded. 38 U.S.C.A. § 5107(a) (West 1991). 3. A 10 percent rating is warranted for the veteran's service-connected residuals of a gunshot wound to the left ear, consisting of a scar on the left ear. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. § 4.118, Diagnostic Codes 7800, 7804 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Factual Background Review of the service medical records does not disclose any complaint, diagnosis, or treatment for injuries to the veteran's wrists. A March 1969 medical note reported that the veteran's left ear had been hit by a ricocheting bullet, resulting in a laceration of the outer edge of the ear measuring one inch long and one-half inch deep. The laceration required six sutures, a bandage was applied, and a tetanus inoculation was administered. On initial VA examination of the veteran after separation from service, in May 1972, at the VA outpatient clinic in Harrisburg, Pennsylvania (Harrisburg VAOPC), there were no complaints referable to the wrists or the left ear. On VA orthopedic examination in July 1994, the veteran gave a history of bruising his wrist joints with a pushing injury following a helicopter crash in service in 1970. He indicated that he had had minor tenderness and difficulty in movement of the wrists since service. In 1990, he began noticing numbness and tingling at the tips of his fingers, mostly the first three fingers of both hands. A nerve conduction study in both hands in August 1993 found evidence of mild carpal tunnel entrapment lesions in both hands, mostly on the right side, and also right ulnar sensory involvement. There was no apparent deformity, but minor tenderness was noted over the middle of the dorsal wrist joints bilaterally. The examiner's assessments included history of residuals of bruise injury to both wrist joints, traumatic degenerative joint disease, and evidence of carpal tunnel syndrome on the right and mild carpal tunnel syndrome on the left. On a VA x-ray study of the veteran's wrists and right hand in July 1994, the examiner described minimal spurring along the radial aspect of the navicular bone, with no evidence of fracture or dislocation. Early degenerative changes were seen at the base of the first metacarpals. There was no evidence of subchondral cyst formation or chondrocalcinosis. The trabeculae and cortical margins were otherwise intact, and the overlying soft tissues remained normal. The examiner's impressions included mild degenerative osteoarthritis of both wrists. On July 1994 VA dermatological examination, the veteran gave a history of a bullet wound creasing his left ear. He had an unobtrusive, asymptomatic scar. On clinical evaluation, the examiner commented that, as to all of the veteran's scars, including the scar on his left ear, the scars were unobtrusive and were of no cosmetic concern, but they were somewhat sensitive at times. The veteran subsequently submitted a copy of a citation for his receipt of the Bronze Star Medal for heroism. The citation indicated that, while the veteran was flying as a scout observer in a light observation helicopter, and he was leaning from his seat to search for enemy soldiers, his aircraft came under a heavy barrage of enemy machine gun fire. After inspecting damage to the aircraft, he volunteered to fly back into the area to mark the enemy's position with smoke. His aircraft again came under intense enemy fire, sustained several hits and crashed. The helicopter exploded on impact, severely wounding the veteran. He was able to crawl from the burning helicopter, and helped his wounded pilot to safety, evading the enemy until they were rescued. In a handwritten note attached to the copy of the citation, the veteran explained that he sustained injuries, including wrist injuries, during this episode. He added that two of his fellow soldiers who were directly involved in this incident would be providing additional information in support of his claims. In a September 1994 sworn statement, [redacted] indicated that he had been aboard a helicopter which rescued survivors of a helicopter crash. The two men rescued were the veteran and a man identified as "Captain [redacted]". Mr. [redacted] recalled that Capt. [redacted] and the veteran had multiple wounds and lacerations on their faces when they were rescued. In an October 1994 sworn statement, [redacted] recalled two different occasions when the veteran was in a helicopter which was shot down. On the first occasion, the veteran was flying with Capt. [redacted]. Both men were injured in the crash of their helicopter and Capt. [redacted] was unable to get out of the downed aircraft until the veteran returned to assist him in running, walking, and crawling together under enemy fire to board a rescue helicopter. Mr. [redacted] remembered that the veteran was hospitalized for an extended period in connection with this incident. On a second occasion, the veteran and his helicopter were struck by enemy fire at the same time. The pilot was able to land the helicopter in a clear landing zone and the men were picked up quickly thereafter. On March 1999 VA orthopedic examination, the veteran gave a history of injuries sustained in four helicopter crashes in service. He was wearing a spica splint on his right thumb, and his right thumb and wrist, together with most of his right hand, were densely bandaged. The examiner noted that, as a result of the bandage worn by the veteran, he had little or no movement of his right hand or thumb. The veteran complained of dull, aching pain in his wrists, which he indicated had begun when he was injured in service. He reported occasionally wrapping his wrists, but he had not had other medical treatment. He indicated that, on one occasion in service, he injured his hands when he was thrown up against a tree with his hands outstretched. The veteran explained that the wrapping around his right wrist, hand and thumb were scheduled to be removed in another week. The examiner noted that range of motion of the veteran's right wrist could not be evaluated because his thumb, hand and wrist were bandaged. He had pain-free left wrist flexion from zero to 65 degrees, extension from zero to 70 degrees, radial deviation from zero to 20 degrees, and ulnar deviation from zero to 40 degrees. X-rays studies of the wrists were unremarkable. The examiner's impressions included complaints of pain in both wrists. The right wrist could not be examined. The range of motion of the left wrist was essentially within normal limits, with no erythema or warmth noted, and the left wrist examination was normal. A March 1999 VA x-ray study of the veteran's wrists showed two millimeters of minus variance bilaterally. There were no obvious fractures or dislocations. The scapho-lunate distance was normal bilaterally, and there was normal alignment of the carpal bones. Very mild osteoporosis was noted. The examiner's impression was essentially unremarkable radiographs of both wrists. A March 1999 record of treatment for what is listed as "sprain and strain of the metac" was submitted from a physician identified as "Dr. Kalenak". The veteran asserted in a March 1999 statement that the foregoing report from Dr. Kalenak showed that he was being treated for wrist disorders which the veteran contended began in service and were increasing in severity. A copy of a January 1970 telegram from the Secretary of the Army to the veteran's mother was thereafter associated with the claims folder. The telegram indicated that the veteran was wounded in January 1970 while serving as an observer on a military aircraft which was fired upon by the enemy. The aircraft crashed and burned, and the telegram noted specific wounds sustained by the veteran which are not at issue in this appeal. A medical examination report from R.J. Maurer, M.D., and dated April 1999, shows that the veteran sustained a hyperextension twisting injury to his right thumb while at work in December 1998. He had additional pain and swelling and was evaluated by Dr. Kalenak. Dr. Maurer reported that, according to a note from Dr. Kalenak, the veteran had a closed reduction and subsequently underwent open ligament repair in January 1999 by Dr. Kalenak and a physician identified as "Dr. Kanda". The veteran complained of stiffness and pain over the entire right thumb and to the right wrist. He also reported numerous previous injuries to the upper extremity, and most notably the right wrist. The veteran stated that he had shrapnel injuries in the late 1960s and 1970s from gunshot wounds in Southeast Asia, but he also indicated that he had full function of his right hand prior to the December 1998 injury. Dr. Maurer reported that the veteran had a positive nerve compression test at the right wrist and crepitus with the carpal metacarpal grind test. There were no signs of volar or dorsal stenosing tenosynovitis at the wrist. Dr. Maurer's impression was arthrofibrosis. Additional records of medical treatment of the veteran by Dr. Maurer, and dating from May to June 1999, indicate that the veteran injured his right upper extremity in a non-work related injury just prior to May 1999. An April 1999 x-ray study of the veteran's right wrist by Joseph Bellissimo, M.D. noted fullness in the soft tissues. There was no evidence of foreign body or soft tissue air. The bones were demineralized in the wrist and thumb. There were degenerative changes in the wrist and the first metacarpophalangeal joint. These appeared to be well- aligned. There were cystic changes present. Dr. Bellissimo noted that he did not have previous examination reports for comparison. His conclusions were osteopenia and degenerative changes in the right wrist. At the October 1999 hearing before the undersigned member of the Board in Washington, D.C., the veteran testified that he injured his wrists in two helicopter crashes during service in 1970. He described the injury as a pushing injury, and said his wrists felt as though they had been jammed. He reported that he received medical treatment at several VA medical facilities, including the Harrisburg VAOPC, in the early 1970s, after he had separated from service. The veteran indicated that shell fragments passed through his right wrist joint, but were subsequently surgically removed. The left wrist sustained trauma, but was not fractured and there was no shell fragment injury to the left wrist. The veteran testified that the scar on his left ear was tender to touch, and he characterized the pain as a throbbing sensation. Analysis Whether the Claims of Service Connection for a Right Wrist Disorder and Left Wrist Disorder are Well-Grounded Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(d). In order for a claim for service connection to be well-grounded, there must be competent medical evidence of a current disability (a medical diagnosis), of incurrence or aggravation of a disease or injury in service (lay or medical evidence), and of a nexus between the in-service injury or disease and the current disability (medical evidence). Caluza v. Brown, 7 Vet. App. 498 91995). As this veteran is a combat veteran, having engaged in combat with the enemy in Vietnam, the provisions of 38 U.S.C.A. § 1154(b) and the decision of the United States Court of Appeals for Veterans Claims (Court) in Kessel v. West, 13 Vet. App. 9 (1999), apply. There is medical evidence indicating that it is at least as likely as not that the veteran currently has arthritic changes in both wrists. The first Caluza requirement to establish a well-grounded claim as to service connection for disorders of both wrists is met. The veteran has reported sustaining combat related, very significant wrist injuries in service. This evidence has not been rebutted by clear and convincing evidence to the contrary. 38 U.S.C.A. § 1154(b) and Kessel, supra. The second Caluza requirement to establish a well-grounded claim is met. One form of arthritis, traumatic arthritis (see Diagnostic Code 5010 of VA's Schedule for Rating Disabilities, 38 C.F.R. Part 4), follows injury and injury is necessary for its inception. No physician has definitively classified the arthritis, to the extent it may be present in each wrist, as traumatic arthritis or degenerative arthritis; the latter condition being associated with the aging process. Reasonable doubt being resolved in the veteran's favor, for purposes of a well-groundedness determination, the Board finds that the arthritis in each wrist is traumatic arthritis. Inasmuch as the arthritis in each wrist may be related to the injuries reported in service, the Board finds that the third Caluza requirement to establish a well-grounded claim has been met, and the claims are well-grounded and should hereinafter be addressed on the merits. A Compensable Rating for Residuals of a Gunshot Wound To the Left Ear, Consisting of a Scar With regard to the claim for a compensable rating for residuals of a gunshot wound to the left ear, consisting of a scar, the Board finds that the claim is well-grounded within the meaning of 38 U.S.C.A. § 5107(a). The Court has held that, when a veteran claims a service-connected disability has increased in severity, the claim is well-grounded. Proscelle v. Derwinski, 2 Vet. App. 629 (1992). Disability evaluations are determined by the application of a schedule of ratings which is based upon the average impairment of earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. Separate diagnostic codes identify the various disabilities. The Board notes that there are no contentions by the veteran or medical evidence indicating that the residuals of a gunshot wound to the left ear consist of disability in addition to the scar on the veteran's left ear. The veteran's residuals of a gunshot wound to the left ear, consisting of a scar on the left ear, are currently rated under Diagnostic Code 7800, which governs ratings for disfiguring scars of the head, face, or neck. Under Diagnostic Code 7800, a noncompensable rating is warranted for a slight scar of the head, face, or neck. A 10 percent rating requires that such a scar be moderate and disfiguring. A 30 percent rating is warranted for a severe scar of the head, face, or neck, especially if the scar produces a marked and unsightly deformity of the eyelids, lips, or auricles. 38 C.F.R. § 4.118, Code 7800 (1999). The VA dermatological examination of July 1994 contained findings that the veteran's scars are unobtrusive and of no cosmetic concern. Therefore, the scar on the left ear cannot be considered disfiguring and a compensable rating is not warranted under Diagnostic Code 7800. Diagnostic Code 7803 provides that a 10 percent rating is warranted for superficial, poorly nourished scars with repeated ulceration. 38 C.F.R. § 4.118, Code 7803. Diagnostic Code 7804 provides that a 10 percent rating may be assigned for superficial scars which are tender and painful on objective demonstration. (No rating in excess of 10 percent is available under Diagnostic Code 7804.) 38 C.F.R. § 4.118, Code 7804. The VA dermatological examination in July 1994 contained clinical findings that the veteran's scars generally, to include the scar on his left ear, were somewhat sensitive at times. There is no evidence that the scar is poorly nourished, with repeated ulceration, so as to warrant a 10% rating under Diagnostic Code 7803. The veteran testified in the hearing in October 1999, that the scar on his left ear was tender when touched. Accordingly, the Board concludes that the evidence supports the grant of a 10 percent rating under Diagnostic Code 7804 for residuals of a gunshot wound to the left ear, consisting of a scar on the left ear. ORDER The claim for service connection for a right wrist disorder is well-grounded, and to this extent, the appeal as to this issue is granted. The claim for service connection for a left wrist disorder is well-grounded, and to this extent, the appeal as to this issue is granted. A 10 percent rating for residuals of a gunshot wound to the left ear is granted, subject to the regulations governing payment of monetary awards. REMAND With regard to the claims of service connection for a right wrist disorder and a left wrist disorder, as indicated above, it is necessary to obtain a medical opinion as to the nature and etiology of any current right wrist disorder and left wrist disorder. With regard to the claim for a compensable rating for residuals of a shell fragment wound to the right hand, consisting of one or more laceration scar(s) on the right hand, the Board finds that this claim is well-grounded. 38 U.S.C.A. § 5107(a) (West 1991); Proscelle, 2 Vet. App. 629. The Court has held that, where entitlement to service connection has already been established and an increase in the disability rating is at issue, the present level of disability is of primary concern. Francisco v. Brown, 7 Vet. App. 55 (1994). The Board notes that the claims folder contains extensive medical evidence regarding multiple disabilities of the veteran's right upper extremity. However, on the most recent VA examination of the veteran in March 1999, the veteran was wearing a right thumb splint and his right hand, thumb, and wrist were bandaged. The examiner reported, in effect, that the splint and bandage impeded a complete examination of the veteran's right hand, thumb, and wrist. Additionally, at the Board hearing in October 1999, the veteran did not provide any testimony or other evidence regarding the current severity of the service-connected residuals of a shell fragment wound to the right hand, consisting of one or more laceration scar(s). Therefore, the evidence of record does not permit a determination of the current severity of the service-connected residuals of a shell fragment wound to the right hand, consisting of one or more laceration scar(s). Accordingly, the claims for service connection for a right wrist disorder, a left wrist disorder, and for a compensable rating for residuals of a shell fragment wound to the right hand, consisting of one or more laceration scar(s), is REMANDED for the following: 1. The RO should contact the veteran and obtain the names and addresses of all VA and private health care providers who have treated him for disorders of the right and left wrist and the right hand since December 1998, including surgery on his right hand and thumb in January, May, and June 1999. After obtaining any necessary releases, complete copies of all clinical records identified, which have not been previously associated with the claims folder, should be obtained. 2. After the above referenced records have been obtained, the veteran should be accorded a VA examination to determine the nature and etiology of any current right and left wrist disorders, and to determine the current severity of the service-connected residuals of a shell fragment wound to the right hand, consisting of one or more laceration scar(s). The claims folder must be made available for review by the examiner in conjunction with the examination and the examiner must report that the claims folder has been reviewed. With regard to the right and left wrist: (a) X-ray studies of both wrists, in all views, should be performed. (b) The examiner should furnish an opinion as to whether the veteran has arthritis in either or both wrists. (c) If arthritis is present in the veteran's wrist(s), the examiner should opine as to whether it is traumatic arthritis. (d) If traumatic arthritis is present in the veteran's wrist(s), the examiner should furnish an opinion as to whether it is at least as likely as not that the traumatic arthritis is related to service or injuries in service. 3. With regard to the residuals of a shell fragment wound of the right hand, consisting of one or more laceration scar(s), (a) The examiner should indicate whether the laceration scar(s) associated with the shell fragment wound to the right hand is/are tender and painful, or poorly nourished with repeated ulceration. 4. The RO should then review the claims for service connection for a right wrist disorder, a left wrist disorder, and a compensable rating for residuals of a shell fragment wound to the right hand, consisting of one or more laceration scar(s), to determine whether the claims may be granted. If any claim remains denied, the veteran and his representative should be furnished a supplemental statement of the case and given the opportunity to respond. The case should then be forwarded to the Board for further appellate consideration, if otherwise in order. No action is required of the veteran until he is notified. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded to the regional office. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment by the RO. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See The Veterans' Benefits Improvements Act of 1994, Pub. L. No. 103-446, § 302, 108 Stat. 4645, 4658 (1994), 38 U.S.C.A. § 5101 (West Supp. 1999) (Historical and Statutory Notes). In addition, VBA's Adjudication Procedure Manual, M21-1, Part IV, directs the ROs to provide expeditious handling of all cases that have been remanded by the Board and the Court. See M21-1, Part IV, paras. 8.44- 8.45 and 38.02-38.03. BRUCE E. HYMAN Member, Board of Veterans' Appeals