Citation Nr: 0002962 Decision Date: 02/07/00 Archive Date: 02/10/00 DOCKET NO. 97-28 422 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Des Moines, Iowa THE ISSUES 1. Entitlement to service connection for a cervical spine disability. 2. Entitlement to an increased rating for residuals of a gunshot wound, moderately severe, Muscle Group XXII, neck, left, currently evaluated as 20 percent disabling. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL The veteran ATTORNEY FOR THE BOARD David Scott Nelson, Associate Counsel INTRODUCTION The veteran had active service from January 1949 to January 1952. This matter comes before the Board of Veterans' Appeals (BVA or Board) on appeal from August 1997 and September 1998 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Des Moines, Iowa. This case was previously before the Board in February 1999. FINDINGS OF FACT 1. The veteran's cervical spine disability was not manifested during service and is not otherwise related to any injury suffered during service. 2. The veteran's cervical spine disability was not caused or aggravated by the service-connected gunshot wound to the neck. 3. The veteran's service-connected residuals of a gunshot wound to the neck are not consistent with more than moderately severe injury or disability of Muscle Group XXII, and there is no more than moderate limitation of motion of the cervical spine. CONCLUSIONS OF LAW 1. The veteran's cervical spine disability was not incurred in or aggravated during the veteran's active military service. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 1991); 38 C.F.R. §3.303 (1999). 2. The veteran's cervical spine disability was not caused or aggravated by the service-connected gunshot wound to the neck. 38 C.F.R. § 3.310(a) (1999); Allen v. Brown, 7 Vet. App. 439 (1995). 3. The criteria for a rating in excess of 20 percent for residuals of a gunshot wound, moderately severe, Muscle Group XXII, neck, left, have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §§ 4.1-4.14, 4.47-4.57, 4.71a, 4.73, Diagnostic Codes 5290, 5322 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Service Connection Claim The veteran claims that his cervical spine disability is related to his service-connected gunshot wound he suffered during service. He also contends that his cervical spine disability is related to an incident in service when he fell off a truck. As a preliminary matter, the Board notes that the veteran's claim is well grounded within the meaning of 38 U.S.C.A. § 5107(a) (West 1991). That is, the Board finds that he has presented a claim which is plausible and capable of substantiation. The Board is also satisfied that all relevant facts have been properly developed. No further assistance to the veteran is required to comply with the duty to assist as mandated by 38 U.S.C.A. § 5107(a). The law provides that a veteran is entitled to service connection for disability resulting from a disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Disability which is proximately due to or the result of a service-connected disease or injury shall be service connected. 38 C.F.R. § 3.310(a). Secondary service connection may also be granted for the degree of aggravation to a non-service connected disorder which is proximately due to or the result of a service-connected disorder. Allen v. Brown, 7 Vet. App. 439, 448 (1995). A service medical record dated in December 1950 indicates that the veteran was involved in a truck accident and suffered an abrasion to his left knee and a laceration of the left forehead. A service medical record shows that in June 1951 the veteran suffered a penetrating shell fragment wound to the left side of the neck; it was noted that there was no artery or nerve involvement. The wound was debrided, the fragment was removed, a rubber drain was inserted, and sutures were applied. The veteran's January 1952 service separation examination noted a scar on the left of the neck; clinical evaluation of the spine was normal. A December 1952 VA examination noted painful scars at the site of the wound, as well as limitation of motion of the neck to the right, secondary to the gunshot wound. An X-ray of the cervical spine was negative. In a December 1952 rating decision, the veteran was granted service connection for a gunshot wound involving Muscle Group XXII (neck), and was assigned a 20 percent disability evaluation. At a June 1981 VA examination, the veteran stated that he was involved in a truck accident, wherein the truck was blown off a mountainside, resulting in a left cheek bone fracture and injuries to his nose. X-rays revealed mild cervical spondylosis. The veteran had full range of motion in his neck. An August 1991 private medical record indicated canal stenosis at C4-5 and C5-6. A January 1994 VA MRI of the cervical spine was negative. A July 1995 VA MRI of the cervical spine revealed severe stenosis of the cervical spine canal from C3 through C6 with effacement of the thecal sac, disc bulging and severe narrowing of the neural foramina. It was noted that the findings were new since the previous examination of 1994. A September 1995 VA examination of the neck revealed cervical spondylosis with canal narrowing and spinal cord compression causing cervical myelopathy. In an October 1995 response to a request from the RO, a VA physician reviewed the veteran's file and offered the following opinion: [The veteran's] cervical spondylosis may be the result of his gunshot wound injury. The longstanding loss of muscle mass can greatly contribute to the degenerate changes seen and contribute to his current myelopathic state. A private operation record indicates that in November 1995 the veteran underwent C3-C6 decompressive cervical laminectomies. In a March 1996 response to a request from the RO, a VA physician reviewed the veteran's file and offered the following opinion: It is my opinion that there is no connection between the war wound of the soft tissues of the neck and degenerative changes of the cervical, thoracic, and lumbar spine which may be related to his deteriorating neurological condition. A February 1997 private MRI of the cervical spine revealed an impression of disc disease in the cervical spine with neural foramina narrowing in the cervical spine. The presence of a metallic artifact was noted. A March 1997 VA neck examination reflected a diagnosis of cervical spondylosis with associated cervical neck pain. Radiographs indicated that the veteran had degenerative changes throughout his cervical vertebrae. At an April 1997 VA muscles examination, the veteran stated that beginning in 1991 he developed problems with the left side of his body getting progressively weaker. The impression was as follows: This patient has sustained a gunshot wound to his posterior aspect of his left neck. He did not develop significant clinical signs or symptoms of weakness and problems with regards to his upper and lower extremities on the left side of his body until 1991. As a result, I do not feel this is necessarily causedly [sic] related to his gunshot wound. I also find that the muscular deficit in the muscles surrounding the neck related to the gunshot wound is rather minimal. His loss of motion is probably related to his degenerative changes within his neck as well as the surgery. In his September 1997 substantive appeal, the veteran stated that in 1991, while shaving, he experienced a sharp pain from his neck top the center of his back. Private medical records dated from November 1997 to February 1998 included a diagnosis of ancient cervical cord injury with persistent myelopathy. At his November 1998 Board hearing, the veteran testified that he landed on his head as a result of a truck accident while serving in Korea. The veteran stated that he suffered from neck pain 24 hours a day. In February 1999 the Board remanded the case to the RO for the purpose of affording the veteran a VA examination to determine the nature and etiology of his cervical spine disability. An April 1999 note in the file indicates that the veteran stated that he would not be able to undergo the examination. A private medical record dated in February 1999 reflects a diagnosis of chronic neuropathic pain. In October 1999, the Board referred the claims file to a physician with the Veteran's Health Administration (VHA) for review and an opinion as to whether the veteran's cervical spine disability was caused or aggravated by his service- connected gunshot wound to the neck. In October 1999 a response was received from a VHA physician, who discussed the veteran's medical history and stated, in pertinent part, as follows: This unfortunate patient has chronic neuropathic pain in spite of two surgeries. The presence of multiple joint arthritis (diffusely through spine and knees), coupled with early medical reports as outlined above, definitely rules out a single traumatic event as the cause of the patient's cervical spine disability. The original written reports at the time of the injury in 1951 in Korea show that the penetrating neck injury did not involve the spine or spinal cord, and was a low velocity shrapnel injury. This case demonstrates the natural history of degenerative cervical spondylosis and spinal stenosis, culminating in myelopathy and subsequent chronic pain syndrome. Such a case scenario is not atypical. The October 1999 VHA physician concluded his opinion as follows: Based on the records provided, it is my expert medical opinion that no causal relationship exists between the penetrating neck injury on June 3, 1951 in Korea, and the cervical spinal stenosis/myelopathy/chronic neuropathic pain that began on or about 1991 and remains present to this date. In addition, there is no evidence to support a claim of aggravation of the current cervical spine disability due to the penetrating neck injury of June 3, 1951. The Board finds that the preponderance of the evidence is against the veteran's claim that his cervical spine disability is related to service or to his service-connected gunshot wound to the neck. The Board acknowledges the opinion offered by the October 1995 VA physician, wherein he stated that the veteran's cervical spondylosis "may" be the result of his gunshot wound injury. While the October 1995 VA physician did offer some rationale and support for his conclusion, the Board notes that opinions from other VA physicians indicated that the veteran's cervical spine disability was not related to his gunshot wound injury to the neck. The Board notes that the opinion from the October 1999 VHA examiner was very detailed and is essentially a survey of the chief treatment and examination dates (including service, private, and VA medical records) pertaining to the veteran's gunshot wound and cervical spine disability. The Board observes that the October 1999 opinion references findings from several of the veteran's treating physicians. Even if the opinions from the October 1999 VHA physician and the October 1995 VA examiner's opinions were accorded equal weight, the preponderance of the evidence is against the veteran's claim because another relevant opinion, which was also obtained from a VA physician in March 1996, supports the October 1999 VHA physician's opinion. The Board further notes that the preponderance of the evidence is against the veteran's assertion that his cervical spine disability was aggravated by his service-connected gunshot wound to the neck. Allen. The October 1999 VHA physician made a specific finding that no such aggravation had occurred. Absent specialized medical training, the veteran is not competent to render opinions concerning medical causation. Espiritu v. Derwinski, 2 Vet. App. 492 (1992). In view of the foregoing, the Board believes greater weight of the evidence indicates that the veteran's cervical spine disability is not related to the veteran's military service, nor is it related to his service-connected gunshot wound to the neck. 38 C.F.R. §§ 3.303, 3.310; Allen. As the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not applicable, and the veteran's claim for service connection for a cervical spine disability must be denied. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). II. Increased rating claim The Board finds that the veteran's claim for an increased evaluation for service-connected residuals of a gunshot wound to the neck is well grounded within the meaning of 38 U.S.C.A. § 5107(a). The Board is also satisfied that all relevant facts have been properly and sufficiently developed. Disability ratings are determined by applying the criteria set forth in the VA's Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Where an increase in an existing disability rating based on established entitlement to compensation is at issue, the present level of disability is the primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating; otherwise, the lower evaluation will be assigned. 38 C.F.R. § 4.7. In December 1952, the RO granted service-connection for residuals of a gunshot wound to the neck, and assigned a 20 percent disability rating, which has remained in effect since the December 1952 decision. A service medical record shows that in June 1951 the veteran suffered a penetrating shell fragment wound to the left side of the neck; it was noted that there was no artery or nerve involvement. The wound was debrided, the fragment was removed, a rubber drain was inserted, and sutures were applied. A June 22, 1951 entry indicates that there was an infection "deep in scar" that was treated and mostly gone three days later. The veteran was returned to duty in July 1951. Other than a scar noted on the left side of the veteran's neck, clinical evaluation of the neck was normal on his January 1952 separation examination. At a December 1952 VA examination, the veteran complained of trouble with neck movements, especially to the right. A gunshot wound scar on the left neck (2 1/2 by 1/2 inches) was painful and revealed muscle damage. A painful scar (1/2 by 1/4 inches) on the back of the neck (where the shrapnel was removed) was noted. An X-ray of the cervical spine was negative. The diagnosis was: gunshot wound entrance scar, neck, left side, below ear and exit gunshot wound, back of neck posteriority at hairline muscle damage, and scars are painful; limitation of motion of head and neck to right, due to gunshot wound. At the neurological portion of a June 1981 VA examination, the veteran complained that his neck would "crack" and was always sore. He had full range of motion in his neck and decreased sensation of the left neck directly around his previous wound. The musculoskeletal portion of the examination indicated that the veteran had moderate motion of the neck, but complained of "low-down posterior sensation of pulling and aching." A 3 1/2 inch incisional wound scar of the lower left neck was noted. The diagnosis was loss of neck motion since a neck injury in 1950. At a September 1986 VA examination, the veteran had neck spasms of the supraspinatus muscles on both sides. At a September 1995 VA examination of the neck, the veteran complained of a dull ache in his neck. Physical examination revealed some mild paraspinal tenderness with "mild head forward position in his posture." The upper extremities showed 5/5 motor strength with intact sensation. The diagnosis was cervical spondylosis with canal narrowing and spinal cord compression causing cervical myelopathy. A February 1997 private MRI of the cervical spine revealed an impression of disc disease in the cervical spine with neural foramina narrowing in the cervical spine. The presence of a metallic artifact was noted. A March 1997 VA neck examination revealed tender paracervical spine musculature and approximately 15 degrees limitation in his range of motion on flexion, extension, and lateral bending of his neck. This was associated with mild evidence of pain. Radiographs indicated that the veteran had degenerative changes throughout his cervical vertebrae. The impression included cervical neck pain. At an April 1997 VA muscles examination, the veteran stated that beginning in 1991 he developed problems with the left side of his body getting progressively weaker. Examination of the muscular aspect of the neck revealed no obvious evidence of an entrance or exit wound as the scars were quite minimal. The flexors and extensors of his neck and rotators were 5/5. His neck motion was limited; on forward flexion, the veteran was able to bring his chin within a centimeter of his chest, and extension to 28-30 degrees. The impression included an opinion by the examiner stating that "I also find that the muscular deficit in the muscles surrounding the neck related to the gunshot wound is rather minimal. His loss of motion is probably related to his degenerative changes within his neck as well as the surgery." Private medical records dated from November 1997 to February 1998 included a diagnosis of ancient cervical cord injury with persistent myelopathy. At his November 1998 Board hearing, the veteran testified that he had to be careful when moving his neck so as not to jerk it. He stated that he had no feeling on the right side of his face and that the muscles on the right side of his neck were tight, sore, and numb. In February 1999 the Board remanded the case to the RO for the purpose of determining the current severity of the residuals of his gunshot wound of the neck region. An April 1999 note in the file indicates that the veteran stated that he would not be able to undergo the examination. A February 1999 private medical record reflects that the veteran's neck had "amazingly good range of motion" with no symptoms or side effects. The veteran is service-connected for residuals of a gunshot wound to the neck with involvement of Muscle Group XXII, and has been assigned a 20 percent disability evaluation under 38 C.F.R. § 4.73, Diagnostic Code 5322 pertaining to damage to Muscle Group XXII. Under Diagnostic Code 5322, a 20 percent evaluation requires moderately severe damage. A 30 percent evaluation requires severe damage. 38 C.F.R. § 4.73, Diagnostic Code 5322. The Board takes note of the fact that certain portions of 38 C.F.R. Part 4 pertaining to the rating criteria for muscle injuries have been changed, effective July 3, 1997. See 62 FR 30235, June 3, 1997. When a law or regulation changes after a claim has been filed, but before the administrative or judicial appeal process has been concluded, the version most favorable to the veteran generally applies. Karnas v. Derwinski, 1 Vet. App. 308, 313 (1991). After reviewing the regulations in effect at the time of the veteran's claim and the changes effective July 3, 1997, the Board finds that the July 3, 1997 amendments did not substantively change the criteria pertinent to the veteran's disability, but rather added current medical terminology and unambiguous criteria. A through-and-through injury with muscle damage shall be evaluated as no less than a moderate injury for each group of muscles damaged. For VA rating purposes, the cardinal signs and symptoms of muscle disability are loss of power, weakness, lowered threshold of fatigue, fatigue-pain, impairment of coordination and uncertainty of movement. 38 C.F.R. § 4.56 (1999). Under Diagnostic Codes 5301 through 5323, disabilities resulting from muscle injuries shall be classified as slight, moderate, moderately severe or severe. A moderately severe disability of muscles is 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; the service department record or other evidence showing hospitalization for a prolonged period for treatment of the wound, with a record of consistent complaint of cardinal signs and symptoms of muscle disability as defined above, and, if present, evidence of inability to keep up with work requirements; objective findings would include entrance and (if present) exit scars indicating the track of missile through one or more muscle groups, indications on palpation of loss of deep fascia, muscle substance, or normal firm resistance of muscles compared with sound side, with tests of strength and endurance compared with sound side demonstrating positive evidence of impairment. 38 C.F.R. § 4.56. A severe disability of muscles is a through and through or deep penetrating wound due to a high-velocity missile, or large or multiple low-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; the service department records or other evidence shows hospitalization for a prolonged period for treatment of wound, with a record of consistent complaints of cardinal signs and symptoms of muscle disability as defined above, worse than those shown for moderately severe muscle injuries, and, if present, evidence of inability to keep up with work requirements; objective findings include ragged, depressed and adherent scars indicating wide damage to muscle groups in the missile track, with palpation showing loss of deep fascia or muscle substance, or soft flabby muscles in the wound area, with muscles swelling and hardening abnormally in contraction, and with tests of strength, endurance, or coordinated movements compared with the corresponding muscles of the uninjured side indicating a severe impairment of function. If present, the following are also signs of severe muscle disability: X-ray evidence of minute multiple scattered foreign bodies indicating intermuscular trauma and explosive effect of the missile; adhesion of a scar to one of the long bones, scapula, pelvic bones, sacrum or vertebrae, with epithelial sealing over the bone rather than true skin covering in an area where bone is normally protected by muscle; diminished muscle excitability to pulsed electrical current in electrodiagnostic tests; visible or measurable atrophy; adaptive contraction of an opposing group of muscles; atrophy of muscle groups not in the track of the missile, particularly of the trapezius and serratus in wounds of the shoulder girdle; and induration or atrophy of an entire muscle following simple piercing by a projectile. 38 C.F.R. § 4.56. Upon a review of the evidence, the Board finds that the veteran's residuals of a gunshot wound to the neck with involvement of Muscle Group XXII is not sufficient to meet the criteria of "severe." The service medical records do not indicate that the veteran's gunshot wound injury to the neck included a shattering bone fracture, an open comminuted fracture, or any type of bone injury, and there is no indication of extensive debridement, sloughing of soft parts, or intermuscular binding and scarring. While an infection was noted, the records indicate that it was mostly gone after three days. Further, post service medical records do not include objective findings such as ragged, depressed and adherent scars indicating wide damage to muscle groups in the missile track. The report of the most recent VA examination showed that the flexors and extensors of his neck and rotators were 5/5. The examiner indicated that the muscular deficit in the muscles surrounding the neck related to the gunshot wound were minimal. X-rays and other objective findings have not revealed evidence such as multiple scattered foreign bodies, adhesion of scars, or atrophy of muscle groups not in the track of the missile. The Board recognizes that private medical records and VA examinations have noted significant findings involving the cervical spine. However, as noted in the service connection issue of this decision, examiners have attributed much of the veteran's symptomatology to his nonservice-connected cervical spine disabilities. As noted in the earliest medical evidence in this case, the veteran's service-connected gunshot wound of the neck did not have bone, nerve, or artery involvement. In focusing on the residuals of the service- connected gunshot wound, the Board must determine the extent of muscle injury and any secondary limitation of motion of the cervical spine. The medical evidence shows no more that a moderately severe injury or disability of the affected muscle group (XXII), and, even assuming that all of the limitation of motion of the cervical spine is secondary to the muscle injury (rather than myelopathy and disc disease of the cervical spine), there is no clinical evidence of more than moderate limitation of motion of the cervical spine so as to support a rating in excess of 20 percent under 38 C.F.R. § 4.71a, Code 5290. The Board has considered DeLuca v. Brown in which the Court held that 38 C.F.R. § 4.40 does not forbid consideration of a higher rating based on a greater limitation of motion due to pain on use including during flare-ups. DeLuca v. Brown, 8 Vet. App. 202, 206 (1995). However, there is no medical evidence to show that the veteran has pain, flare-ups of pain, weakness or any other symptom or sign that results in additional limitation of neck motion to a degree that would warrant a rating higher than the currently assigned 20 percent. In this regard, the Board notes that the February 1999 private treatment record reflects that the veteran had good range of motion in his neck. Accordingly, the Board finds that the preponderance of the evidence indicates that the current symptomatology of the veteran's residuals of a gunshot wound to the neck with involvement of Muscle Group XXII is not sufficient to meet the criteria of severe, and are best evaluated as being a moderately severe disability, warranting a 20 percent evaluation. 38 C.F.R. § 4.73, Diagnostic Code 5322. In denying an evaluation in excess of 20 percent, the Board is aware of the veteran's complaints of pain which are noted in his claims file. Under 38 C.F.R. § 4.56, however, pain is specifically contemplated in the assignment of an evaluation. Moreover, as noted above, there is no medical evidence to show that pain results in any functional limitation beyond what is contemplated under the muscle injury (5322) and range of motion (5290) rating codes. In reaching this decision the Board considered the doctrine of reasonable doubt. However, as the preponderance of the evidence is against the appellant's claim, the doctrine is not for application. 38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Board finds that the evidence of record does not present such "an exceptional or unusual disability picture as to render impractical the application of the regular rating schedule standards." In this regard, there has been no evidence submitted indicating that residuals of the veteran's gunshot wound to the neck have markedly interfered with his earning capacity, employment status, or has necessitated frequent periods of hospitalization. In the absence of such factors, the Board finds that the evidence of record does not present such "an exceptional or unusual disability picture as to render impractical the application of the regular rating schedule standards"; the criteria for submission for assignment of an extraschedular rating pursuant to 38 C.F.R. § 3.321(b)(1) are not met. See Bagwell v. Brown, 9 Vet. App. 337 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). ORDER Service connection for a cervical spine disability is denied. A rating in excess of 20 percent for the veteran's residuals of a gunshot wound to the neck with involvement of Muscle Group XXII is denied. R. F. WILLIAMS Member, Board of Veterans' Appeals