Citation Nr: 0006258 Decision Date: 03/08/00 Archive Date: 03/17/00 DOCKET NO. 95-20 811A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Denver, Colorado THE ISSUES 1. Entitlement to service connection for cervical spine degenerative changes. 2. Entitlement to an evaluation in excess of 10 percent for residuals of left chest and shoulder gunshot wound. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD K. K. Enferadi, Associate Counsel INTRODUCTION The veteran had active service from February 1974 to February 1976. This matter arises before the Board of Veterans' Appeals (Board) from an April 1995 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) that denied entitlement to service connection for cervical spine degenerative changes and entitlement to an evaluation greater than 10 percent for residuals of a gunshot wound to the left chest and left shoulder. FINDINGS OF FACT 1. Medical evidence of a nexus between cervical spine degenerative changes and the veteran's period of service has not been submitted. 2. The veteran's residuals of gunshot wound to the left chest and left shoulder thigh based on injuries to Muscle Groups I and II are manifested by no more than impairment consistent with moderate muscle injury. CONCLUSIONS OF LAW 1. The veteran's claim of entitlement to service connection for cervical spine degenerative changes is not well grounded. 38 U.S.C.A. § 5107(a) (West 1991). 2. The schedular criteria for an evaluation in excess of 10 percent for residuals of gunshot wound to the left chest and left shoulder have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. 4.73, Diagnostic Codes 5301, 5302 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSION Background A review of the record reveals that the RO granted service connection for residuals of a gunshot wound to the left chest and shoulder in a rating decision dated in March 1984 and assigned a 10 percent evaluation effective from October 6, 1983. At that time, the RO considered the veteran's service medical records that revealed a gunshot wound to the left chest by an unknown caliber weapon during a robbery in May 1974. The records disclosed a small entrance wound on the anterior left shoulder with surrounding powder burns, and a posterior left chest wound near the tip of the scapula. There was no artery or nerve involvement. There also was no motor or sensory deficiency in the left arm, although the record supports that the veteran was restricted in the movement of his left shoulder due to pain. X-rays showed no underlying pneumothorax, but there was a pulmonary parenchymal infiltrate consistent with pulmonary injury from the gunshot wound. There were small metallic fragments surrounding the area. The path of the bullet was above and anterior to the axillary artery and vein and brachial plexus and did not damage them. Exploration and debridement of the gunshot wound took place in May 1974 and in June 1974, there was delayed primary closure of the left chest wound. On the fifth day post-operative, the wounds were inspected and appeared to be clean. The wounds healed well. A December 1975 examination for separation reveals the veteran's history of a gunshot wounds. With the exception of a notation in a May 1974 record that indicates an order for an x-ray study of the left shoulder and cervical spine, the veteran's service medical records are silent for pertinent information. Also considered were the results from VA examination dated in January 1984 that included complaints of numbness in the anterior aspect of the veteran's chest and some residual aches in the shoulder and left upper arm. On examination, the examiner noted that the veteran's chest was symmetrical, sounds were normal, and the scars were well healed and uncomplicated. The diagnoses rendered were gunshot wound to the left chest, healed, with residuals of retained metallic fragments and without pulmonary deficit or disability; well healed cicatrices; and gunshot wound to the left shoulder, healed, without functional disability of shoulder or arm, and residuals of retained metallic fragments, and paresthesia adjacent chest wall. VA outpatient records dated in September 1987 reveal complaints of pain in the left upper chest that radiated into the arm and neck. It was noted that there was no atrophy and there was a diagnosis of brachial plexus neuropathy. A private medical doctor's statement dated in September 1987 discloses treatment for left-sided chest pains in December 1984 and on two occasions in February 1987. In the report from VA examination dated in January 1988, the examiner recited the veteran's history of gunshot wounds to the left chest and shoulder. Also noted is that the veteran began to experience tingling in his fingers a year later, but did not have any other symptoms until 1984, when he had some shooting pains in the chest that radiated down into the left arm. At the time of the examination, the examiner noted complaints of paresthesias in the veteran's fingertips, chest pains, and increasing weakness on internal rotation and adduction of the left shoulder. The examination reported range of motion of the shoulder at 180 degrees on forward elevation and shoulder adduction, rotation at zero to 90 degrees, normal strength with decreased grip in the left hand. Deep tendon reflexes were equal bilaterally, range of motion of the neck revealed no abnormalities, and chest examination revealed no tenderness. Diagnoses rendered were residual gunshot wound, left chest and shoulder with residual retained metallic fragments, minimal radiating neuralgia, left arm with resulting minimal functional impairment. In a private statement dated in September 1991, the doctor noted the veteran complaints of increasing aching and numbness in the shoulder region and tingling in the ulnar aspect of the hand. On examination, the doctor noted Tinel's sign over the left and right elbow. Extension of the shoulder produced some symptoms including paresthesias in the arm, hand, and shoulder. Reflexes were normal and there was no objective weakness or muscle wasting. Also, there was no objective loss of sensation to light touch. Nerve conduction related to symptomatology of other disabilities. In conclusion, the doctor noted some irritation of the brachial plexus. A private medical doctor's statement dated in January 1993 reveals treatment of left brachial plexus related to thoracic outlet syndrome due to gunshot wounds. On examination, the doctor noted that forced extension at the shoulders produced paresthesias on the ulnar hand and forearm. There was no objective sensory loss or weakness other than perhaps trace abductor digiti quinti weakness; the triceps and biceps jerks were symmetrical. VA outpatient records reflecting treatment from 1993 to 1994 reveal left-sided neck and shoulder pain. In November and December 1993 records, the veteran complained of neck pain due to a volleyball incident. In an x-ray dated in January 1993, the cervical spine was determined to be normal. In a record dated January 1994, the examiner noted the veteran's complaints of shoulder pain and possible cervical spine problem. A private radiology study dated in January 1994 of the cervical spine revealed normal findings. A clinical record dated in July 1994 reveals left sided neck and shoulder pain. VA progress notes dated in August 1994 reveal physical therapy notes related to complaints of left shoulder pain. In VA medical certificate dated in August 1994, the examiner noted full range of motion of the left shoulder. VA examination dated in January 1995 revealed the veteran's history of gunshot wound to the left shoulder and chest. The examiner noted that recent nerve studies were normal. The diagnosis rendered was hospital of gunshot wound to the left shoulder with history of abnormal MRI. A private doctor's statement dated in February 1995 reveals treatment for left arm pain. VA consultation report dated in March 1995 revealed complaints of increasing pain in the left shoulder that occurs about three times per week. Further mentioned is a fracture from an x-ray that showed degenerative changes in the cervical area. On examination, the examiner noted the presence of the veteran's scars from the gunshot wounds and full range of motion of the shoulder. The diagnosis rendered was left shoulder pain. VA outpatient record dated in May 1995 reveals ongoing complaints of shoulder pain. Received in the record in May 1995 is a statement from a private doctor to the effect that the veteran had been undergoing treatment for pain and loss of motion in the shoulder girdle area. A private medical statement dated in June 1995 reveals the veteran's history of inservice gunshot wound and treatment for left shoulder pain. In November 1995, the veteran had a personal hearing at which time he stated that his residuals of gunshot wounds to the left chest and shoulder should be rated under a different diagnostic code in that the veteran was experiencing problems with the raising of his arm and another diagnostic code more accurately addresses such impairment. Transcript (T.) at 2. The veteran stated that while in service, he was hospitalized for a collapsed lung as a result of the gunshot wound. (T.) at 3. Further, the veteran testified that his chiropractor indicated that his symptoms would increase with age. (T.) at 7. The veteran further stated that his chest area is numb and he experiences muscle spasms. (T.) at 8. A neurological examination for the VA, dated in March 1997, reveals complaints of pain and muscle spasms in the left shoulder with occasional numbness involving the left chest. Nerve conduction studies were noted as normal. Cervical spine x-rays disclosed evidence of some degenerative joint disease. On examination, the doctor noted that muscle tone was good bilaterally, deep tendon reflexes were symmetric, and there was pain in the left trapezius muscles to palpation. Also noted is some mild cervical spine degeneration. An x-ray revealed intervertebral disc space narrowing at the C5-C6 levels with osteophytes. Further X- ray studies by the VA in March 1997 reflected old injury of the left hemithorax. There was shrapnel in the lungs but no thoracic deformity. The March 1997 VA examination was deemed inadequate because the range of motion of the left shoulder was not recorded. On examination in May 1997, the veteran had forward flexion of 145 degrees, abduction of 145 degrees, internal rotation of 90 degrees, and external rotation of 80 degrees. By rating action of May 1997, service connection was granted for left thoracic outlet syndrome, assigned a noncompensable evaluation. VA examination dated in September 1998 revealed that the veteran was able to perform two sets of ten repetitions on the left side, but struggled somewhat on the left side on elevation and abduction. Range of motion was essentially normal on forward elevation and abduction from zero to 180 degrees and zero to 90 degrees on internal and external rotation. The diagnosis rendered was a history of gunshot wounds to the left chest and left shoulder with a 10 percent loss of range of motion due to weakness and pain in the left shoulder. A December 1998 examination related to other disabilities. Analysis The issues before the Board are whether the veteran is entitled to service connection for cervical degenerative changes and to an evaluation in excess of 10 percent for residuals of gunshot wound to the left chest and shoulder. These matters are analyzed separately below. Service connection In well grounded cases, a veteran is entitled to service connection for disability resulting from disease or injury coincident with active service, or if preexisting such service, was aggravated therein. 38 U.S.C.A. §§ 1110, 1131 (West 1991); 38 C.F.R. §§ 3.303, 3.306(a) (1999). The United States Court of Appeals for Veterans Claims (known as the United States Court of Veterans Appeals prior to March 1, 1999, and hereinafter referred to as Court) requires that in order for a claim to be well grounded, there must be competent evidence of 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 (1995); see also Epps v. Gober, 126 F.3d 1464 (Fed. Cir. 1997), aff'd sub nom. Epps v. Brown, 9 Vet. App. 341 (1996). The Court has further held that the second and third elements of a well grounded claim for service connection can also be satisfied under 38 C.F.R. § 3.303(b) by (a) evidence that a condition was "noted" during service or an applicable presumption period; (b) evidence showing post-service continuity of symptomatology; and (c) medical or, in certain circumstances, lay evidence of a nexus between the present disability and post-service symptomatology. See 38 C.F.R. § 3.303(b); Savage v. Gober, 10 Vet. App. 488, 495-97 (1997). In this veteran's case, he has failed to establish a well grounded for cervical degenerative changes. Overall, the veteran has not presented competent clinical evidence of current disability related to an incident or disease during his period of service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. §§ 3.303, 3.306(a). Essentially, the veteran's service medical records are silent for any pertinent notations, complaints, or objective findings. Other than a request for an x-ray to include the cervical spine, there is no mention of injury or symptoms related to the cervical spine during the veteran's period of service. Moreover, the first complaints of symptoms related to the veteran's cervical spine appear in the record in 1993, 17 years after the veteran left service, at which time the veteran complained of neck pain from an injury while playing volleyball. An x-ray taken at that time revealed a normal cervical spine, as indicated above. Thus, in this regard, the veteran fails to establish a well grounded claim. Caluza at 506. Furthermore, the veteran in this case has not presented evidence of the requisite skills, qualifications, or training so as to render his comments medically competent. Espiritu v. Derwinski, 2 Vet. App. 492 (1992). Therefore, while the veteran's statements are presumed true, see King v. Brown, 5 Vet. App. 19, 21 (1993), that is, that he feels pain and weakness associated with his cervical spine, he has not provided competent clinical evidence to support such assertions. The Board notes here that evidence that requires medical knowledge, such as in this case, must be provided by someone qualified as an expert by knowledge, skill, experience, training, or education. Espiritu v. Derwinski, 2 Vet. App. 492 (1992). Therefore, in this respect as well, the veteran does not establish a well grounded claim. Thus, while the veteran has provided competent clinical evidence of current cervical spine disability, current disability alone is not enough to establish a well grounded claim. See Caluza v. Brown, 7 Vet. App. 498, 506. Moreover, while a private physician has reported treatment since 1981 for symptoms which include cervical pain, there is no medical evidence which associates the veteran's degenerative changes of the cervical spine with his service-connected injury. Therefore, in the absence of medical evidence of a nexus between current disability and an incident or disease coincident with the veteran's period of service, the veteran's claim of entitlement to service connection for cervical degenerative changes necessarily is not well grounded. Increased ratings A claim for an increased evaluation for a service-connected disability is well grounded if the veteran indicates that he has increased disability. 38 U.S.C.A. § 5107(a) (West 1991); see also Proscelle v. Derwinski, 2 Vet. App. 629, 632 (1992). Thus, this veteran has established a well grounded claim in that he has asserted increased pain and weakness in the left chest and shoulder areas. Therefore, the VA has a duty to assist the veteran in the development of the facts pertinent to his claim. 38 U.S.C.A. § 5107(a). Further, in this veteran's claim the present level of disability is of primary concern. Although a review of the recorded history of a disability is required to make the most accurate evaluation, past medical reports do not have precedence over current findings. 38 C.F.R. § 4.2 (1998); see also Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Disability evaluations are determined, as far as practicable, upon the average impairment of earning capacity attributable to specific injuries or combination of injuries coincident with military service. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1 (1999). Each disability must be viewed in relation to its history with an emphasis placed on the limitation of activity imposed by that disability. 38 C.F.R. § 4.1. The degrees of disability contemplated in the evaluative rating process are considered adequate to compensate for loss of working time due to exacerbation or illnesses proportionate to the severity of the several grades of disability. 38 C.F.R. § 4.1. During the course of this veteran's appeal, the Board notes that the rating criteria for muscle injuries were amended effective July 3, 1997. 62 Fed. Reg. No. 106, 30235-30240 (June 3, 1997) (codified at 38 C.F.R. §§ 4.55- 4.73 Diagnostic Codes 5301-5329; 38 C.F.R. §§ 4.47-4.54, 4.72 were removed and reserved). However, both the old and new relevant schedular rating criteria essentially provide that muscle injuries of Groups I and II, incurred by the veteran in service are rated essentially based on the same criteria. 38 C.F.R. § 4.73, Diagnostic Codes 5301, 5302 (1996); 38 C.F.R. § 4.73, Diagnostic Code 5301, 5302 (1999). However, in a recent memorandum decision, which does not have precedential value, the Court indicated that the change in 38 C.F.R. § 4.55 involved a "substantive change" and that the version most favorable to the veteran must apply if the regulation changed after the veteran's claim was filed and before the administrative appeal process had been concluded. Hawkinson v. West, No. 97-1887 (March 19, 1999); Karnas v. Derwinski, 1 Vet. App. 308 (1991). Under both the former and amended criteria, factors to be considered in the evaluation of disabilities residual to healed wounds that involve muscle groups due to gunshot trauma are found in 38 C.F.R. § 4.56 (1996); 38 C.F.R. § 4.56 (1999). Essentially, similar guidelines are found in both the former and recently revised regulations. Id. The regulations provide that a slight disability of muscles due to a simple muscle wound without debridement or infection is evidenced by a minimal scar without evidence of fascial defect, atrophy, impaired tonus, or impairment of function or metallic fragments retained in the muscle tissue. 38 C.F.R. § 4.56 (d) (1) (iii) (1999). A moderate muscle wound is objectively manifested by entrance and (if present) exit scars linear or relatively small and so situated as to indicate relatively short track of missile through muscle tissue; signs of moderate loss of deep fascia or muscle tonus and of definite weakness or fatigue in comparative test. 38 C.F.R. § 4.56 (d) (2) (iii) (1999). Further, a moderately severe muscle wound is objectively manifested by entrance and (if present) exit scars which are relatively large and are so situated as to indicate track of missile through important muscle groups. Indications on palpation reveal moderate loss of deep fascia, moderate loss of muscle substance or moderate loss of normal firm resistance of muscles as compared with the sound side. Tests of strength and endurance of muscle groups involved (compared with sound side) give positive evidence of marked or moderately severe loss. 38 C.F.R. § 4.56 (3) (iii) (1999). A severe wound of the muscles is manifested by extensive ragged, depressed, and adherent scars of skin so situated as to indicate wide damage to muscle groups in the track of missile. X-ray findings may show minute multiple scattered foreign bodies indicating spread of intermuscular trauma. Palpation demonstrates moderate or extensive loss of deep fascia or muscle substance. Essentially, the muscles do not swell and harden normally in contraction. Tests of strength or endurance compared with the sound side or of coordinated movements show positive evidence of severe impairment of function. In electrical tests, reaction of degeneration is not present but a diminished excitability to faradic current compared with the sound side may be present. 38 C.F.R. § 4.56 (4) (iii) (1999). Also, visible atrophy may or may not be visible. Adaptive contraction of opposing group of muscles, if present, indicates severity. Adhesion of scar to one of the long bones, scapula, pelvic bones, sacrum, or vertebrae, with epithelial sealing over the bone without true skin covering, in an area where bone is normally protected by muscle indicates the severe type. The criteria of 38 C.F.R. § 4.56 are only guidelines for evaluating muscle injuries from gunshot wounds or other trauma, and the criteria are to be considered with all factors in the individual case. Robertson v. Brown, 5 Vet. App. 70 (1993). Residuals of gunshot wounds to the left chest and left shoulder are rated under Diagnostic Codes 5301 and 5302. 38 C.F.R. § 4.73, Diagnostic Codes 5301-5302 (1999). With respect to the non-dominant side (the veteran is right- handed), Diagnostic Code 5301 provides that for slight muscle injury, a zero percent evaluation is appropriate. Id. Where there is moderate muscle injury, a 10 percent evaluation is warranted and for moderately severe muscle injury, a 20 percent evaluation is merited. Id. The maximum evaluation of 30 percent is warranted for severe muscle injury. Id. In this veteran's case, the veteran's residuals of the gunshot wounds are not productive of impairment greater than that associated with an evaluation for moderate muscle injury. Id. The wounds in service did not involve the arteries or nerves. In May 1974, the veteran underwent exploration and debridement of his gunshot wound. In June 1974, the left chest wound was closed and the record supports that the wounds were well healed. As noted above, the veteran's injury consisted of a small entrance wound on the anterior left shoulder with surrounding powder burns, and a posterior left chest wound near the tip of the scapula. There was neither motor nor sensory deficiency, although there were small metallic fragments surrounding the area. The path of the bullet was above and anterior to the axillary artery and vein and brachial plexus and did not damage them. Moreover, the record demonstrates that current disability associated with residuals of the veteran's gunshot wounds amounts to no more than that associated with moderate muscle injury. As noted above during the October 1998 VA examination, the veteran able to do several repetitions with a three-pound weights. Furthermore, the examiner noted that the range of motion was essentially normal on forward elevation and abduction from zero to 180 degrees and zero to 90 degrees on internal and external rotation. The diagnosis rendered was a history of gunshot wound to the left chest and left shoulder with a 10 percent loss of range of motion due to weakness and pain in the left shoulder. The evidence of record, with particular emphasis on current VA examination findings, see Francisco v. Brown, 7 Vet. App. 55, 58, supports moderate functional impairment due to the veteran's gunshot wounds to the left chest and shoulder. Id. In this respect, the veteran's residual injuries warrant the current rating of 10 percent. Id. Overall, the objective clinical data of record do not substantiate moderately severe impairment. At the time of the injuries, the exit scars were relatively small and did not penetrate through important muscle groups. Id. Moreover, there was not a moderate loss of deep fascia or muscle substance or evidence of marked or moderately severe loss. Id. Further, current disability does not amount to more than subjective pain and weakness, and does not involve more impairment than what is encompassed within the pertinent rating criteria. 38 C.F.R. § 4.71, Diagnostic Codes 5301, 5302. Therefore, in this regard, the veteran's impairment of his left chest and shoulder do not warrant the next higher rating of 20 percent. Id. The Board acknowledges the veteran's complaints of pain and weakness in the areas of the gunshot wounds. Nonetheless, clinical findings do not substantiate impairment beyond that encompassed within the current 10 percent rating. Id. For example, during the most recent VA examination in 1998, the examiner noted evidence of limitation of motion due to pain and weakness, but nothing further. However, in spite of the examiner's observation that pain and weakness affected the veteran's range of motion, the clinical data of record support complete range of motion as noted above. Therefore, the diagnostic code related to limitation of motion of the veteran's shoulder area does not apply in this case. See 38 C.F.R. § 4.71, Diagnostic Code 5201 (1999). Furthermore, the Board is aware that the veteran contends that another diagnostic code would more appropriately address the veteran's residuals of gunshot wounds to the left chest and left shoulder. However, the assignment of a particular diagnostic code is "completely dependent on the facts of a specific case." Butts v. Brown, 5 Vet. App. 532, 538 (1993). One diagnostic code may be more appropriate than another based on such factors as an individual's relevant medical history, the current diagnosis, and demonstrated symptomatology. A change in the diagnostic code by a VA adjudicator must be specifically explained. See Pernorio v. Derwinski, 2 Vet. App. 625, 629 (1992); see also Tedeschi v. Brown, 7 Vet. App. 411, 414 (1995). Moreover, in this case, service connection has also been granted for thoracic outlet syndrome, which provides the opportunity to consideration of his symptoms under another diagnostic code. In this case, there are no clinical data of record on which to base a change in the current diagnostic codes. Thus, in spite of the veteran's assertions, Diagnostic Codes 5301, 5302 most appropriately fit the factual circumstances of this case and symptomatology of the veteran's left chest and shoulder disability more nearly approximate the rating criteria of these diagnostic codes. 38 C.F.R. § 4.73, Diagnostic Codes 5301, 5302. Thus, in light of the above, the evidence of record preponderates against an increased evaluation greater than the current 10 percent under either the former or newer regulations. See 38 C.F.R. § 4.73, Diagnostic Code 5301, 5302 (1996); see also 38 C.F.R. § 4.73, Diagnostic Code 5301, 5302 (1999). ORDER Entitlement to service connection for cervical degenerative changes is denied. Entitlement to an evaluation in excess of 10 percent for residuals of gunshot wound to the left chest and shoulder is denied. V. L. Jordan Member, Board of Veterans' Appeals