Citation Nr: 0003082 Decision Date: 02/08/00 Archive Date: 02/15/00 DOCKET NO. 94-07 624 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania THE ISSUES Entitlement to service connection for a low back disorder. Entitlement to an increased (compensable) evaluation for residuals of shell fragments wounds of the forehead. Entitlement to an increased (compensable) evaluation for residuals of shell fragment wounds of the left elbow. Entitlement to an increased (compensable) evaluation for residuals of shell fragment wounds of the right wrist. REPRESENTATION Appellant represented by: American Red Cross WITNESS AT HEARING ON APPEAL The veteran ATTORNEY FOR THE BOARD Richard V. Chamberlain, Counsel INTRODUCTION The veteran had active service from August 1965 to August 1969. This appeal comes to the Board of Veterans' Appeals (Board) from May 1991 and later RO decisions that denied service connection for post-traumatic stress disorder (PTSD) and a low back disorder, denied an increased evaluation for residuals of shell fragment wounds of the left ankle (rated 10 percent), and denied increased (compensable) evaluations for residuals of shell fragment wounds of the forehead, left elbow, and right wrist. An April 1998 RO rating decision granted service connection for PTSD and increased the evaluation for the residuals of shell fragment wounds of the left ankle from 10 to 20 percent. In May 1998, the veteran withdrew his appeal for an increased evaluation for the left ankle condition. Under the circumstances, the issues of service connection for PTSD and an increased evaluation for residuals of shell fragment wounds of the left ankle are not for appellate consideration. FINDINGS OF FACT 1. The veteran has not submitted competent (medical) evidence linking his current low back condition, first found many years after service, to an incident of service or to a service-connected disability. 2. The residuals of shell fragment wounds of the forehead are manifested primarily by a barely visible asymptomatic and non-disfiguring scar. 3. The residuals of shell fragment wounds of the left elbow are manifested primarily by an asymptomatic, questionable area of discoloration and no significant pain or functional impairment. 4. The residuals of shell fragment wounds of the right wrist are manifested primarily by an asymptomatic area of slight brown discoloration and minimal decrease in the dynamometric hand grip power that produce no pain or significant functional impairment. CONCLUSIONS OF LAW 1. The claim for service connection for a low back disorder is not well grounded. 38 U.S.C.A. § 5107(a) (West 1991). 2. The criteria for an increased (compensable) evaluation for residuals of shell fragment wounds of the forehead are not met. 38 U.S.C.A. § 1155 (West 1991); 38 C.F.R. §§ 4.7, 4.118, Codes 7800, 7803, 7804, 7805 (1999). 3. The criteria for increased (compensable) evaluations for residuals of shell fragment wounds of the left elbow and right wrist are not met. 38 U.S.C.A. § 1155 (West 1991); 38 C.F.R. §§ 4.7, 4.118, Codes 7803, 7804, 7805 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Service Connection for a Low Back Disorder The threshold question to be answered in this case is whether the veteran has presented evidence of a well-grounded claim for service connection for a low back disorder; that is, evidence which shows that his claim is plausible, meritorious on its own, or capable of substantiation. 38 U.S.C.A. § 5107(a) (West 1991); Murphy v. Derwinski, 1 Vet. App. 78 (1990). If he has not presented such a claim, his appeal must, as a matter of law, be denied, and there is no duty on the VA to assist him further in the development of the claim. Murphy at 81. "The United States Court of Appeals for Veterans Claims (known as the United States Court of Veterans Appeals prior to March 1, 1999) (hereinafter, "the Court")" has also stated that a claim must be accompanied by supporting evidence; an allegation is not enough. Tirpak v. Derwinski, 2 Vet. App. 609 (1992). In a claim of service connection, this generally means that evidence must be presented which in some fashion links a current disability to a period of military service, or as secondary to a disability which has already been service-connected. 38 U.S.C.A. § 1110 (West 1991); 38 C.F.R. §§ 3.303, 3.310 (1999); Rabideau v. Derwinski, 2 Vet. App. 141, 143 (1992). "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 testimony), ...; 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). Where arthritis becomes manifest to a degree of 10 percent within one year from date of termination of active service, it shall be presumed to have been incurred in active service. 38 U.S.C.A. §§ 1101, 1112, 1113 (West 1991 & Supp. 1999); 38 C.F.R. §§ 3.307, 3.309 (1999). A review of the record reveals that service connection has been granted for several of the veteran's disabilities. Service connection is in effect for PTSD, rated 30 percent; residuals of shell fragment wounds of the left ankle, rated 20 percent; essential hypertension, rated 10 percent; postoperative residuals of varicose veins of the left leg, rated zero percent; and residuals of shell fragment wounds of the forehead, left elbow, and right wrist each rated zero percent disabling. The combined rating for the veteran's service-connected disabilities is 50 percent. Service medical records show that the veteran sustained various wounds. These records do not indicate the presence of low back problems. Nor was a low back disorder found at the time of the veteran's medical examination for separation from service in July 1969. The post-service medical records notes the veteran's complaints of low back pain from around 1976, but do not demonstrate the presence of a chronic low back disorder until 1991 when X-rays of the lumbosacral spine, conducted in conjunction with a VA medical examination, revealed mild degenerative changes. These medical records do not link the veteran's current low back disorder to an incident of service or to a service-connected disability. A claim for service connection for a disability is not well grounded where there is no medical evidence linking the claimed condition to an incident of service or to a service-connected disability. Caluza, 7 Vet. App. 498. The veteran's statements and testimony are to the effect that he has a low back disorder that was incurred when he sustained shell fragment wounds in-service and fell from a truck, but the service medical records do not reveal the presence of a low back disorder and the veteran's lay statements are not sufficient to support a claim for service connection of a disability based on medical causation. Espiritu v. Derwinski, 2 Vet. App. 492 (1992). Because he is a combat veteran his statements are acceptable evidence of injury in service. 38 U.S.C.A. § 1154 (West 1991). But medical evidence is still necessary to satisfy the Caluza requirement of a link between current disability and injury in service or post-service symptomatology. Clyburn v. West, 12 Vet. App. 296 (1999). In this case, there is no competent (medical) evidence linking the veteran's current low back problems, first found many years after service, to an incident of service, to continuing symptoms, or to a service-connected disability. Hence, the veteran's claim for service connection for a low back disorder is not plausible, and the claim is denied as not well grounded. II. Increased (Compensable) Evaluations for Residuals of Shell Fragment Wounds of the Forehead, Left Elbow, and Right Wrist A. Factual Background At a VA medical examination in October 1969, the veteran gave a history of sustaining multiple fragment wounds of the forehead, right wrist, and left elbow in July 1966 when a truck he was riding in struck a mine. It was noted that these wounds were superficial and that he had no residuals from them. On examination, the shell fragment wounds of the right wrist, left elbow, and forehead were so small that the scars were essentially invisible. A February 1970 RO rating decision granted service connection for shell fragment wound scars of the forehead, left elbow, and right wrist, and assigned one zero percent rating for these scars, effective from August 1969. This evaluation has remained unchanged since then, but a RO rating decision in the 1990's reclassified the disability to 3 separate conditions and assigned a separate zero percent rating for each condition. VA medical reports show that the veteran received treatment for various conditions in the 1980's and 1990's, mostly for disorders unrelated to the conditions being considered in this appeal. These records reveal that the veteran has headaches that have been related to a non-service-connected cervical spine disorder. The veteran underwent medical evaluation at a VA medical facility in March 1991. It was noted that he had sustained shell fragment wounds of the left elbow, forehead, and right wrist in service, and that he had no pain in these areas. There was a 1/2 inch scar of the left elbow, a 1/2 inch scar of the right wrist, and a 3/4 inch scar of the forehead. There was no tenderness in the scar areas. The impressions were shell fragment wounds of the forehead, left elbow, and right wrist. At a hearing in March 1992 the veteran testified to the effect that he had headaches, problems in the area of the left elbow scar, and numbness in the right wrist scar. The veteran underwent various VA medical examinations in September 1995. At a cranial nerve examination, it was noted that he had sustained shrapnel injury to his right forehead in service and that he has had complaints of headaches since then. On neurologic examination, there was a .75 inch scar of the right forehead. The examiner opined that the veteran's headaches were related to muscle contractions, and were not post traumatic. At a VA joint examination in September 1995, there was a light brownish skin discoloration spot over the dorsum of the right radial side of the wrist that was a shell fragment wound area according to the veteran. There was questionable tenderness. There was painless active range of motion of the right wrist with 0-80 degrees of forward flexion, 0-70 degrees of backward extension, 0-25 degrees of radial deviation, and 0-50 degrees of ulnar deviation. There was no apparent localized muscle wasting. No significant neurological deficits were found. The right hand (dominant side) grip power measurement was slightly less than the left. Examination of the left elbow joint revealed a questionable skin discoloration over the olecranon bony area. There was no tenderness from the wound scar. There was no deformity or swelling of the joint. There was painless active range of motion of the left elbow with 0-145 degrees of flexion and extension, 0-80 degrees of forearm pronation, and 0-75 degrees of forearm supination. There were no neurological deficits in the left elbow area. The assessments were minimal residuals of shell fragment wound of the right wrist and left elbow joints. X-rays of the left elbow revealed minimal soft tissue calcification within tendinous insertion into the olecranon. X-rays of the right wrist revealed no significant abnormality. The veteran underwent a VA scar (skin) examination in September 1995. It was noted that there was no significant scarring of the left elbow and right wrist areas, and that the same could be said of the forehead where there was a barely perceptible residual scar. The veteran underwent a VA medical examination in January 1998. A history of shell fragment wounds to the forehead, left elbow, and right wrist was noted. On examination of the right wrist, he complained of progressively increasing symptoms with aching throughout the right wrist with occasional pain. There was localized tenderness over the distal aspect of the ulnar styloid bone at the dorsum of the wrist with no measurable wound scar or surgical scar observed. There was no apparent swelling nor any deformity throughout the right wrist joint. There was painless active range of motion of the right wrist of 0-60 degrees of forward flexion, 0-65 degrees of backward extension, 0-20 degrees of radial deviation, and 0-30 degrees of ulnar deviation. Dynamometric hand grip power measurement responded as 80 force pounds in his right hand and 105 force pounds in the left hand. No significant neurological deficits were found. On examination of the left elbow, there was no apparent deformity except slight hypertrophic change of the olecranon bone. There was no significant localized tenderness. There was no visible surgical scar or wound scar. There was painless active range of motion of the left elbow of 0-135 degrees of forward flexion and backward extension, 0-80 degrees of forearm pronation, and 0-75 degrees of forearm supination. There were no significant neurological deficits. The assessments were residuals of history of shell fragment injury to the right wrist and left elbow. X-rays of the left elbow showed minimal linear soft tissue calcifications contiguous with tendinous insertion at the dorsum of the elbow. X-rays of the right wrist showed no significant abnormality. B. Legal Analysis The veteran's claims for increased (compensable) evaluations for residuals of shell fragment wounds of the forehead, left elbow, and right wrist are well grounded, meaning they are plausible. The Board finds that all relevant evidence has been obtained with regard to the claims and that no further assistance to the veteran is required to comply with VA's duty to assist him. 38 U.S.C.A. § 5107(a) (West 1991). In general, disability evaluations are assigned by applying a schedule of ratings (rating schedule) which represent, as far as can practicably be determined, the average impairment of earning capacity. 38 U.S.C.A. § 1155. Although the regulations require that, in evaluating a given disability, that disability be viewed in relation to its whole recorded history, 38 C.F.R. § 4.41, where entitlement to compensation has already been established, and an increase in the disability rating is at issue, it is the present level of disability which is of primary concern. Francisco v. Brown, 7 Vet. App. 55 (1994). Also, where there is a question as to which of two evaluations shall 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. An evaluation of the level of disability present must also include consideration of the functional impairment of the veteran's ability to engage in ordinary activities, including employment, and the effect of pain on the functional abilities. 38 C.F.R. §§ 4.10, 4.40, 4.45. A compensable evaluation for scars (other than burn scars or disfiguring scars of the head, face or neck) requires that they be poorly nourished, with repeated ulceration (10 percent); that they be tender and painful on objective demonstration (10 percent) or that they produce limitation of function of the body part which they affect (10 percent). 38 C.F.R. § 4.118, Codes 7803, 7804, 7805. A noncompensable rating is warranted for a slightly disfiguring scar of the head, face or neck. A 10 percent evaluation for a disfiguring scar of the head, face or neck requires that it be moderately disfiguring. A 30 percent evaluation requires that such a scar be severely disfiguring and this evaluation is especially appropriate if the scar produces a marked and unsightly deformity of the eyelids, lips or auricles. The 10 percent evaluation may be increased to 30 percent if there is marked discoloration, color contrast or the like in addition to tissue loss and cicatrization. 38 C.F.R. § 4.118, Code 7800. Reports of VA medical examinations of the veteran in March 1991 and September 1995 note the presence of a 3/4 inch scar of the forehead, and the report of his VA skin examination in March 1995 indicates that this scar was barely visible. The reports of these VA medical examinations and the VA reports of the veteran's outpatient treatment in the 1980's and 1990's do not indicate that the forehead scar is disfiguring or otherwise symptomatic. The veteran testified to the effect that he has headaches related to his forehead scar, but the VA reports of his outpatient treatment and of his VA cranial nerve examination in September 1995 indicate that his headaches are due to a non-service-connected disability. The manifestations of a non-service-connected disability may not be considered in the evaluation of a service-connected disability. 38 C.F.R. § 4.14 (1999). After consideration of all the evidence, the Board finds that the residuals of shell fragment wound to the forehead are manifested primarily by a barely visible asymptomatic and non-disfiguring scar. Under the circumstances, the Board finds that the current zero percent rating for these residuals best represents the veteran's disability picture and that the preponderance of the evidence is against the claim for a higher rating for this condition under the above- noted regulatory criteria. Hence, this claim is denied. With regard to the residuals of shell fragment wound of the left elbow, the report of the veteran's VA medical examination in March 1991 shows the presence of a 1/2 inch asymptomatic scar in the left elbow area. The reports of his VA joint examinations in September 1995 and January 1998 indicate the presence of a questionable area of discoloration in the left elbow area with no scarring, and slight, noncompensable limitation of motion of the left elbow. 38 C.F.R. 38 U.S.C.A. §§ 4.71, Plate I, and 4.71a, Codes 5206, 5207, and 5213. While VA X-rays of the left elbow indicate minimal soft tissue calcification and the veteran's testimony is to the effect that he has problems associated with the left elbow scar, the reports of the September 1995 and January 1998 VA medical examinations indicate no pain or functional impairment due to the residuals of shell fragment wounds of the left elbow, and the report of a VA skin examination in September 1995 does not indicate the presence of any significant scarring in the left elbow area or associated symptoms. After consideration of all the evidence, the Board finds that the veteran's residuals of shell fragment wounds of the left elbow are manifested primarily by an asymptomatic, questionable area of discoloration which is not shown to cause pain or functional impairment. Hence, the Board finds that a compensable evaluation for the residuals of shell fragments wounds of the left elbow is not warranted based on the criteria of diagnostic code 7803 or 7804, or 7805 and the related diagnostic codes for loss of motion of a body part with consideration of the provisions of 38 C.F.R. §§ 4.40 and 4.45, dealing with functional impairment due to pain, weakness, fatigability or incoordination. The preponderance of the evidence is against the claim for an increased (compensable) evaluation for residuals of shell fragment wounds of the left elbow, and this claim is denied. The report of the veteran's VA medical examination in March 1991 indicates the presence of a 1/2 inch asymptomatic scar of the right wrist. The VA reports of his joint examinations in September 1995 and January 1998 indicate the presence of slight brown discoloration with no scarring in the right wrist area and non-compensable painless motion of the right wrist. 38 C.F.R. §§ 4.71, Plate I, and 4.71a, Code 5215. The report of his VA skin examination in September 1995 does not indicate the presence of any significant scarring of the right wrist or associated symptoms. In 1992, the veteran testified to the effect that he had numbness associated with the residuals of shell fragment wounds of the right wrist, but the medical evidence does not indicate the presence of neurological deficits associated with this disorder other than minimal decrease in right hand grip strength with no related muscle or nerve injury. The overall evidence does not indicate the presence of pain or of any significant functional impairment associated with the residuals of the shell fragment wounds of the right wrist. After consideration of all the evidence, the Board finds that the residuals of shell fragment wounds of the right wrist are manifested primarily by an asymptomatic area of slight brown discoloration and minimal decrease in right hand grip strength with no associated muscle or nerve injury, pain or significant functional impairment. The evidence does not indicate the presence of a symptomatic scar to warrant a compensable evaluation under diagnostic codes 7803 or 7804. Nor do the residuals of the shell fragment wounds of the right wrist support the assignment of a compensable evaluation under the provisions of diagnostic code 7805 and the related diagnostic codes for loss of motion of a joint with consideration of the provisions of 38 C.F.R. §§ 4.40 and 4.45, dealing with functional impairment due to pain, fatigability, weakness or incoordination. The preponderance of the evidence is against the claim for an increased (compensable) evaluation for residuals of shell fragment wounds of the right wrist, and the claim is denied. Since the preponderance of the evidence is against the claims for increased (compensable) evaluations for residuals of shell fragment wounds of the forehead, left elbow, and right wrist, the benefit of the doubt doctrine is not for application with regard to those claims. 38 U.S.C.A. § 5107(b) (West 1991); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Service connection for a low back disorder is denied. An increased (compensable) evaluation for residuals of shell fragments wounds of the forehead is denied. An increased (compensable) evaluation for residuals of shell fragment wounds of the left elbow is denied. An increased (compensable) evaluation for residuals of shell fragment wounds of the right wrist is denied. J. E. Day Member, Board of Veterans' Appeals