Citation Nr: 0003111 Decision Date: 02/08/00 Archive Date: 02/15/00 DOCKET NO. 97-14 395 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUES 1. Whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for arthritis of the hips as secondary to a gunshot wound to the left thigh, to include status post bilateral hip replacements. 2. Entitlement to an increased rating for residuals of gunshot wound to the left thigh, involving muscle group XIV, currently evaluated as 10 percent disabling. 3. Entitlement to an increased (compensable) rating for residuals of a gunshot wound to the left groin, with damage to the left testis. REPRESENTATION Appellant represented by: The American Legion WITNESSES AT HEARING ON APPEAL Veteran and his wife ATTORNEY FOR THE BOARD Edward Walls, Associate Counsel INTRODUCTION The veteran served on active duty from June 1942 to October 1945. His appeal comes before the Board of Veterans' Appeals (Board) from a March 1996 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio. The German Government held the veteran as a Prisoner of War from June 1943 to May 1945. FINDINGS OF FACT 1. The RO has obtained all relevant evidence necessary for an equitable disposition of the veteran's appeal. 2. The RO denied the veteran's claim of entitlement to service connection for bilateral total hip replacement due to degenerative arthritis in April 1982. The veteran was notified of the denial and of his appellate rights. 3. The veteran did not file a timely notice of disagreement (NOD). 4. A VA examination report dated in December 1996 bears directly and substantially on the specific matter under consideration, is neither cumulative nor redundant, and by itself or with evidence previously assembled is so significant that it must be considered by the Board to decide fairly the merits of the veteran's claim of entitlement to service connection for arthritis of the hips. 5. The new evidence includes a medical opinion relating the veteran's arthritis of the hips to his period of active service. 6. The "gunshot" wound of the left anterior thigh (in fact these were small shell fragment wounds) is manifested by a small, superficial, non-tender scar, X-ray evidence of some tiny retained metallic fragments, no more than moderate injury to the muscles, and no injury to the bone. 7. The gunshot wound to the left groin injured the left testicle only. CONCLUSIONS OF LAW 1. The RO's April 1982 decision denying service connection for arthritis of the hips is final. 38 U.S.C.A. §§ 5108, 7105 (West 1991); 38 C.F.R. § 20.1103 (1999). 2. The evidence received subsequent to the RO's April 1982 denial is new and material; thus, the requirements to reopen the claim of entitlement to service connection for arthritis of the hips have been met. 38 U.S.C.A. § 5108 (West 1991); 38 C.F.R. § 3.156(a) (1999). 3. The veteran's claim of entitlement to service connection for arthritis of the hips is well grounded. 38 U.S.C.A. § 5107(a) (West 1991). 4. The veteran's arthritis of the hips is not proximately due to his residuals of gunshot wound to the left thigh. 38 C.F.R. § 3.310 (1999). 5. The criteria for an increased rating in excess of 10 percent for residuals of gunshot wound to the left thigh have not been met. 38 U.S.C.A. §§ 1155, 5107(a) (West 1991); 38 C.F.R. §§ 4.1 4.2, 4.6, 4.7, 4.55, 4.56, 4.73, Diagnostic Code (DC) 5314 (1999). 6. The criteria for an increased (compensable) rating for residuals of gunshot wound to the left groin have not been met. 38 U.S.C.A. § 1155, 5107(a) (West 1991); 38 C.F.R. §§ 4.1, 4.2, 4.6, 4.7, 4.115b, DC 7523 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS New and material evidence regarding the veteran's claim of entitlement to service connection for arthritis of the hips The veteran contends that the Board should reopen his claim of entitlement to service connection for arthritis of the hips as secondary to a gunshot wound to the left thigh, to include status post bilateral hip replacement, on the basis that he has submitted new and material evidence. He claims that the new evidence well grounds his claim and establishes his entitlement to service connection. The RO denied the veteran's initial claim in April 1982 essentially on the basis that the evidence at that time did not relate his arthritis of the hips to his period of active service. The RO considered the veteran's service medical records and the medical records associated with the January 1982 hip replacement surgery from Geauga Community Hospital. By letter dated in May 1982, the RO notified the veteran of the denial and of his appellate rights with regard to that denial. The veteran did not initiate an appeal of the decision. Thus, the RO's April 1982 decision is final. 38 U.S.C.A. §§ 5108, 7105; 38 C.F.R. § 20.1103 (1999). Once an RO decision becomes final under 38 U.S.C.A. § 7105(c), absent submission of new and material evidence, the claim may not thereafter be reopened or readjudicated by the VA. 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156(a); Suttman v. Brown, 5 Vet.App. 127, 135 (1993). New and material evidence means evidence not previously submitted to agency decision makers that bears directly and substantially upon the specific matter under consideration, which is neither cumulative nor redundant, and which by itself and in connection with evidence previously assembled is so significant that it must be considered to decide fairly the merits of the claim. 38 C.F.R. § 3.156(a). A three pronged analysis is used to determine whether evidence is "new and material" as defined by 38 C.F.R. § 3.156(a) (1991). First, it must be determined whether the newly presented evidence "bears directly and substantially upon the specific matter under consideration," i.e., whether it is probative of the issue at hand. Secondly, the evidence must be shown to be actually "new," that is, not of record when the last final decision denying the claim was made, and finally, a determination must be made as to whether the evidence "is so significant that it must be considered in order to fairly decide the merits of the claim." See Hodge v. West, 155 F.3d 1356, 1359 (Fed. Cir. 1998). New evidence, submitted to reopen a claim, will be presumed credible solely for the purpose of determining whether the claim has been reopened. Justus v. Principi, 3 Vet.App. 510, 513 (1992). If all three tests are satisfied, the claim must be reopened. Hodge, supra. Upon reopening the claim, a determination must then be made as to whether, based upon all the evidence and presuming its credibility, the claim as reopened is well grounded pursuant to 38 U.S.C.A. § 5107(a) (West 1991). If the claim is well grounded, the claim may then be evaluated on the merits after ensuring that the duty to assist pursuant to 38 U.S.C.A. 5107(b) (West 1991) has been fulfilled. See Elkins v. West, 12 Vet. App. 209 (1999); Winters v. West, 12 Vet.App. 203 (1999). Relevant evidence associated with the claims file since April 1982 includes medical nexus letters from Wayne L. Risius, M.D., dated in August 1996 and December 1996 and VA examination reports dated in December 1996, February 1997, and November 1997. In his August 1996 and December 1996 letters, Dr. Risius stated that he examined the veteran regarding his disability in his left leg from a gunshot wound, and that the veteran had been having weakness in the leg and a progressive limp in the left leg because of the injury. Dr. Risius stated that it was then his opinion that the veteran suffered from "a 50 percent permanent partial disability on the basis of the gunshot wound to his left thigh/hip area." Standing alone, these letters would likely not represent new and material evidence with regard to the veteran's claim of entitlement to service connection for arthritis of the hips because they are probative only of the severity of the veteran's current disability, not whether it should be service connected because it is secondary to a service-connected disability. Although Dr. Risius noted in the letters that the veteran believed that this gunshot wound was a significant factor in causing the arthritis in his hip, he did not expressly adopt that opinion himself. He merely documented the veteran's own belief; moreover, the veteran is not qualified to offer an opinion on a matter requiring a medical determination. However, the record also contains a notation on a December 1996 VA examination report that reads, in pertinent part, that the veteran had arthritis in all joints, especially in his hands and hips. The examiner reported that the veteran stated his pain originated in the 1940's and he had always believed it to be secondary to malnutrition in the POW camp. In fact, the veteran had reported on a "Former POW Medical History" form received in February 1984 that his weight dropped from 165 pounds to 100 pounds during his 22 months in captivity at the hands of the German Government. Most importantly, the December 1996 VA examination report further reflects that the veteran sustained a gunshot wound to his left upper thigh before he was taken prisoner, leading to left hip dysfunction, and eventually resulting in bilateral hip replacements. This language is new because it was not contained in the record when the RO made its April 1982 denial. The Board finds it to be material because it is probative as to the issue of whether the veteran's arthritis of the hips and bilateral hip replacements were proximately due to his residuals of gunshot wounds to his left thigh. Moreover, the December 1996 VA examination report is so significant that it must be considered to decide fairly the merits of this claim. The report therefore constitutes new and material evidence under 38 C.F.R. § 3.156(a), and the Board is required to reopen the previously denied claim of entitlement to service connection for arthritis of the hips. The Board also finds that the veteran's claim is well grounded. Service connection may be granted for disability resulting from injury or disease incurred in or aggravated by service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. To establish that his claim is well grounded, the veteran must produce medical evidence of a current disability; lay or medical evidence, whichever is appropriate, of an in-service disease or injury, and medical evidence of a nexus between the in-service disease or injury and the current disability. Epps v. Gober, 126 F.3d 1464, 1469 (Fed. Cir. 1997). Where a disability is proximately due to or the result of a service- connected disease or injury, it also will be considered service connected. When service connection is thus established for a secondary condition, the secondary condition shall be considered a part of the original condition. 38 C.F.R. § 3.310 (1999). The VA General Counsel has held that disability compensation may be paid, pursuant to 38 C.F.R. § 3.310, for a disability which is proximately due to or the result of a disability for which compensation is payable under 38 U.S.C.A. § 1151; VAOPGCPREC 8-97 (1997); see 62 Fed. Reg. 15565, 15566 (1997). A November 1997 VA examination report concerns the veteran's history of bilateral total hip replacement. According to the report, prior to the hip replacement, the veteran had done well until the late 1970's. At that point, he had the onset of hip pain and developed degenerative arthritis in both hips and consequently he had total hip replacements. Although this language reflects that degenerative arthritis resulted in the veteran's total hip replacements, the issue which the Board must consider is the etiology of the arthritis of the hips. In other words, the examiner did not state if the veteran's gunshot wound residuals proximately caused the degenerative arthritis that led to the bilateral hip replacements. The report is silent as to this matter. However, a VA medical consultation sheet dated in December 1996 is directly probative as to the etiology of the veteran's bilateral hip replacements. According to the consultation sheet, the veteran suffered from hip arthritis bilaterally and also had arthritis in many of his joints all over his body, indicating a widespread degenerative joint disease (arthritis). As stated above, a notation on a VA examination report dated in December 1996 indicates that the veteran's gunshot wounds led to his bilateral hip replacements. However, significantly, this notation is recorded under the "history of present illnesses" section of the report. Thus, it is not indicative of the examiner's medical opinion; rather, it reflects the veteran's own belief as to the etiology of his hip disability. A VA examiner was asked to offer an opinion as to the etiology of the veteran's arthritis of the hips. A VA examination report dated in June 1998 shows that the examiner could not find in the record any evidence of bone or hip damage as the result of the veteran's wounds incurred during World War II. The examiner felt that because the arthritis was bilateral, it was more than likely a natural-occurring arthritis. The examiner stated that he could not relate the bilateral hip replacement to the veteran's gunshot wounds based on the current evidence of record, and he said that it was very difficult for him to determine if the arthritis was aggravated by the old wounds. Although the December 1996 VA medical notation reflects the veteran's belief that his left thigh wound led to his total hip replacements, there are two medical opinions that directly relate the etiology of his hip replacements to degenerative joint disease, rather than to the residuals of the gunshot wound. Accounting for those medical opinions, the preponderance of the evidence is against the veteran's claim of entitlement to service connection. Moreover, as previously noted, the notation made on the December 1996 report reflects the veteran's own belief as to the cause of the hip replacements, rather than the VA examiner's own opinion. As such, it is less probative than either of the medical opinions relating the hip replacements to degenerative joint disease. As stated above, the letters from Dr. Risius simply document the veteran's own contentions and do not represent a competent medical opinion. The veteran, as a layperson, is not qualified to make a medical determination. The competent medical evidence, therefore, is against the claim of entitlement to service connection for arthritis of the hips, to include bilateral hip replacement. The veteran has also indicated that his hip problems are the result of malnutrition incurred while he was a POW. The Board certainly acknowledges that the veteran underwent severe malnutrition while he was held captive for so long- almost two years. The record reflects that the veteran underwent harsh treatment at the hands of the German Government. However, the competent medical evidence also shows that the malnutrition that was incurred in the 1940's has been resolved; no medical evidence shows that it has led to his arthritis of the hips. For example, the December 1996 consultation report reflects that the veteran's malnutrition was resolved. The Board is cognizant that the veteran suffered greatly during his captivity, both mentally and physically, and that he has rendered extraordinary service to his country. But the Board has also carefully examined all of the evidence of record, and none of it shows that his malnutrition and severe weight loss caused or in any way led to his arthritis of the hips or his bilateral hip replacements. Residuals of gunshot wound to the left thigh The veteran also contends that the evaluation assigned to his residuals of a gunshot wound to the left thigh should be increased to reflect more accurately the severity of his symptomatology. As a preliminary matter, the Board finds that the veteran's claim for an increased rating is plausible and capable of substantiation. See Caffrey v. Brown, 6 Vet.App. 337, 381 (1994); Proscelle v. Derwinski, 2 Vet.App. 629, 632 (1992). Thus, his claim is well grounded within the meaning of 38 U.S.C.A. § 5107(a) (West 1991). When a veteran submits a well-grounded claim, the VA must assist him in developing facts pertinent to that claim. In this case, the veteran has been afforded multiple examinations and hearings, and the RO has obtained the relevant treatment records. The Board is satisfied that no further assistance to the veteran is required to comply with 38 U.S.C.A. § 5107(a). In accordance with 38 C.F.R. §§ 4.1, 4.2 and Schafrath v. Derwinski, 1 Vet. App. 589 (1991), the Board has reviewed the service medical records and all other evidence of record pertaining to the history of the veteran's service-connected disability. The Board has found nothing in the historical record that would lead to the conclusion that the current evidence of record is not adequate for rating purposes. The Board is of the opinion that this case presents no evidentiary considerations, except as noted below, that would warrant an exposition of the remote clinical history and findings pertaining to the disability at issue. Disability evaluations are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule), found in 38 C.F.R. Part 4 (1999). The Board attempts to determine the extent to which the veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, and the assigned rating is based, as far as practicable, upon the average impairment of earning capacity in civil occupations. 38 U.S.C.A. § 1155; 38 C.F.R. §§ 4.1, 4.10. Regulations require that, where there is a question as to which of two evaluations is to be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. The RO granted the veteran service connection in May 1946 for residuals of a gunshot wound to the left thigh and assigned an evaluation of 10 percent, currently in effect under DC 5314. That code provides the ratings for Group XIV: Function: Extension of knee; simultaneous flexion of hip and flexion of knee; tension of fascia lata and iliotibial (Maissiat's) band, acting with XVII in postural support of body; acting with hamstrings in synchronizing hip and knee. Anterior thigh group: (1) Sartorius; (2) rectus femoris; (3) vastus externus; (4) vastus intermedius; (5) vastus internus; (6) tensor vaginae femoris. Moderate muscle injury warrants a 10 percent evaluation; moderately severe muscle injury warrants a 30 percent evaluation; and severe muscle injury warrant a 40 percent evaluation, the maximum allowable. 38 C.F.R. § 4.73, DC 5314. The veteran has testified that he was hit by shrapnel numerous times when a projectile exploded next to him during combat with German aerial defenses on the day he was captured. According to the veteran's separation physical examination report dated in October 1945, he was treated by the Germans and was not hospitalized at the time of his injury. This evidence tends to show that the gunshot wounds were not severe in nature. The Board is aware that as a POW, the medical care likely offered the veteran may not have been the best available; however, it would also point out that at least some degree of medical care was nevertheless given to prisoners in the European Theater of combat. Thus, the fact that he was not hospitalized at that time has some probative significance as to the severity of the wounds sustained, although obviously it is not dispositive information. The Board has already documented much of the content of Dr. Risius' letters regarding the veteran's residuals of a gunshot wound to the left thigh. Dr. Risius has indicated that the veteran's muscle strength had decreased 50 percent, and that he should be rated as 50 percent disabled. The Board will accept Dr. Risius' medical opinion, but it will not accept his opinion as to the corresponding rating because he is not a VA rating specialist. Instead, Dr. Risius is qualified to indicate the veteran's muscle strength loss, not the corresponding disability evaluation. Moreover, as stated above, the applicable criteria allow for a maximum 40 percent schedular evaluation, and there is no evidence that an extra- schedular analysis should be used to rate the veteran's residuals of a gunshot wound to the left thigh. Significantly, a February 1997 VA radiological report reflects that views of the left thigh revealed small metallic foreign bodies in the proximal lateral middle third of the soft tissues and also in the distal medial aspect of the soft tissues of the thigh. These were tiny foreign bodies measuring anywhere from one to three millimeters in size. The examiner's impression was small opaque foreign bodies in the soft tissues of the thigh, particularly in the distal two thirds. A VA examination report dated in February 1997 shows that the veteran had a quarter inch rounded scar in the middle third on the anterior aspect. The scar was superficial and non- tender. The examiner diagnosed residuals, shrapnel fragment wound to the left thigh. A June 1998 VA examination report shows that the fragments that were peppered into his left leg did not cause long term muscle, nerve, artery or bone damage to his left leg. The "wounds were just kind of debrided and cleaned up." On physical examination, the veteran had multiple small wounds on the lateral aspect of his left thigh. The examiner diagnosed residuals of shell fragment wounds of the left thigh. Although Dr. Risius believes that the veteran's residuals of a gunshot wound to the left thigh are quite disabling, the other evidence shows that the veteran is not significantly disabled as the result of residuals of a gunshot wound to the left thigh. The Board must weigh the competent medical evidence of record so as to come to a conclusion as to the merits of his claim. In this regard, the Board is guided by the rating schedule's evaluation of muscle injuries pursuant to 38 C.F.R. § 4.56 (1999). The veteran is currently rated as having moderate muscle injury because of his residuals of a gunshot wound to the left thigh. Moderate disability of muscles connotes a through and through or deep penetrating wound of short track from a single bullet, small shell or shrapnel fragment, without explosive effect of high velocity missile, residuals of debridement, or prolonged infection. Moderately severe disability of muscles connotes a through and through or deep penetrating wound by a small high velocity missile or large low-velocity missile, with debridement, prolonged infection, or sloughing of soft parts, and intermuscular scarring. Severe disability of muscles connotes a through and through or deep penetrating wound due to high-velocity missiles, or with shattering bone fracture or open comminuted fracture with extensive debridement, prolonged infection, or sloughing of soft parts, intermuscular binding and scarring. Dr. Risius' letters are probative as to the severity of the veteran's thigh wound residuals; however, the other medical evidence of record contradicts his assessment of the level of the veteran's disability. The veteran's medical separation examination report shows that he was not hospitalized at the time of the original injury. The June 1998 VA examination report indicates that the shell fragments did not cause long term muscle, nerve, artery, or bone damage. The wound was debrided and apparently there was no prolonged infection or sloughing of soft parts. There was no intermuscular scarring. The examiner in June 1998 expressed the opinion that the "wounds were just kind of debrided and cleaned up." The scar in the middle third on the anterior aspect of the thigh was only one quarter inch in diameter and it was superficial and non-tender, according to the February 1997 VA examination report. This information corroborates that the veteran's muscle injury is not more than moderately disabling. The Board has considered application of the benefit of the doubt rule pursuant to 38 C.F.R. § 4.3, but as the preponderance of the evidence is against entitlement to an increased rating for residuals of the muscle wound to the left thigh, the rule is not for application in this case. Residuals of a gunshot wound to the left groin, with damage to the left testis The veteran's residuals of a "gunshot wound" (this too was a shell fragment wound) to the left groin were service connected in May 1946 and the RO assessed a noncompensable rating, which is still in effect under DC 7523. That code provides a noncompensable evaluation for complete atrophy of the testis where one testicle is involved; a 20 percent evaluation is warranted where both testicles are involved. 38 C.F.R. § 4.115b, DC 7523. The competent medical evidence does not reflect that both of the veteran's testicles are involved; rather, a VA examination report dated June 1998 shows that the veteran was diagnosed with residuals of a gunshot wound to the left groin. Moreover, the evidence does not show complete atrophy, which would warrant a noncompensable evaluation even had it been shown. As stated above, DC 7523 provides for a compensable evaluation only for both testicles involved. The veteran reported symptomatology involving only one testicle during his July 1999 Travel Board hearing. Thus, a compensable evaluation is not warranted for residuals of gunshot wound to the left groin under DC 7523, and there are no other applicable Diagnostic Codes. ORDER Service connection for arthritis of the hips as secondary to a gunshot wound to the left thigh, to include status post bilateral hip replacements, is denied. An evaluation in excess of 10 percent for residuals of gunshot wound to the left thigh, involving muscle group XIV, is denied. An increased (compensable) rating for residuals of a gunshot wound to the left groin, with damage to the left testis, is denied. WARREN W. RICE, JR. Member, Board of Veterans' Appeals