BVA9502201 DOCKET NO. 91-47 811 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Indianapolis, Indiana THE ISSUES 1. Entitlement to service connection for residuals of shell fragment wounds of the right lower and left upper extremities. 2. Entitlement to a disability rating in excess of 10 percent for residuals of a shell fragment wound of the neck, including occipital neuralgia with headaches. 3. Entitlement to secondary service connection for C5-C7 radiculopathy. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Margaret L. Peak, Associate Counsel INTRODUCTION The veteran had active service from June 1967 to June 1969. This matter was originally before the Board of Veterans' Appeals (Board) on appeal from a January 1991 decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Indianapolis, Indiana. In March 1992, the case was remanded for further development. The claim was returned to the Board and docketed in December 1994. It is unclear from the original statement of the case whether the RO viewed the claims for service connection of additional shell fragment wound residuals as reopened. In any case, in view of that uncertainty and the current evidentiary file, the Board will proceed on a de novo basis. REMAND The veteran is seeking compensation for symptoms that he relates to injuries incurred during his period of service. As an initial matter, the Board finds his claims to be "well-grounded" within the meaning of 38 U.S.C.A. § 5107(a) (West 1991); i.e., he has presented claims that are not implausible. However, the Board is not satisfied that all relevant facts have been properly developed, and finds that further assistance to the veteran is required to comply with the duty to assist him mandated by 38 U.S.C.A. § 5107(a) (West 1991). The symptoms the veteran complains of include numbness on the left side of his head with headaches, numbness in the left hand and arm, and occasional dizziness. Service medical records show that he had a shell fragment wound of the neck in September 1968. Service connection was granted in 1969 for malaria, and for a residual scar on the neck. The latter was rated as non- compensably disabling under Diagnostic Code (DC) 7800 of the VA Schedule for Rating Disabilities (Rating Schedule), found in 38 C.F.R. Part 4 (1993). In February 1989, the RO received the veteran's claim for nerve damage to the neck, loss of feeling in the left forefinger, dizziness, and sharp pains in the right and left sides of the head. He attributed all of these symptoms to the previously service connected neck wound. He also claimed service connection for shell fragment wounds of the right knee, left forearm and back of the left hand. The RO reviewed the veteran's service medical records and the record of a VA compensation and pension examination that was conducted in June 1989. The RO interpreted the VA examination report to show no significant residuals of the shell fragment wound of the neck. There was tenderness at the C7 level, but not on the scar itself. Service medical records did not show the other shell fragment wounds that the veteran claimed. In a June 1989 decision, the RO continued the non-compensable rating for a neck scar, and denied service connection for the other shell fragment wounds, as well as for dizziness, defective hearing, nerve damage in the neck, loss of feeling in the left forefinger, and head pains on the right and left sides. No notice of disagreement with that decision was received within a year, and the decision became final. 38 U.S.C.A. § 7105(b)(c). When this claim was last before the Board, in 1992, it was on appeal from subsequent decisions of the RO declining to reopen the veteran's claim. Since the June 1989 decision the veteran had submitted morning reports showing that he was transferred in September 1968; a copy of the telegram that informed his parents he had been wounded in September 1968; administrative records from the Department of the Army (DOA) that included copies of Purple Heart Medal award orders dated in April, June and November 1968; and the report of a nerve conduction study done privately in November 1990. The impression from that report was of a mildly abnormal study with acute neurogenic potentials seen in the left pronator teres and left lower cervical paraspinous muscles. This was thought suggestive of a possible left lower cervical nerve root irritation, possibly of a C6 or C7 nerve root distribution. The RO had declined to reopen the veteran's claims, stating that Purple Heart award orders established that he had been wounded three times, but that service medical records showed a residual only from a neck wound. The report of the nerve conduction study was found insufficient to establish that any present nerve damage was related to the scar from the shell fragment wound of the neck. In January 1992, the veteran sent additional evidence for review by the Board, waiving its initial consideration by the RO. This consisted of the report of a neurological evaluation conducted in December 1991. The diagnoses from that evaluation were cephalalgia, multiple trigger points, greater occipital nerve neuritis, radial neuropathy, and possible nerve impingement secondary to scarring and muscle spasm. When the Board first reviewed this claim, it was noted that the veteran's service records appeared incomplete, and that his claimed wounds had not been confirmed. The claim was remanded to search for more records, and to have the veteran scheduled for VA orthopedic and neurologic examinations to assist in the determination of the nature and extent of the claimed wound residuals. On remand, administrative records of the veteran's service were acquired. One of these lists his wounds as follows: fragment wound of the left arm, incurred April 7, 1968; fragment wound of the right thigh, incurred May 12, 1968; and multiple fragment wounds of the body, incurred on September 29, 1969. The last of these appears to refer to the occasion of injury to his neck, which is otherwise documented as having occurred in September 1968. Other records obtained were repetitive of those already considered. Several VA examinations were conducted in 1992 and 1993, prior to the claim returning to the Board. In May 1992, an osteopathic examination revealed greater occipital neuralgia, status post shrapnel injury with some restriction of neck motion; left arm numbness in non-anatomical distribution; and a scar on the right knee secondary to shrapnel wounds. A May 1993 examination of the peripheral nerves showed chronic headaches. These were thought possibly secondary to occipital neuralgia; however, migraine could not be ruled out. Also found was decreased sensation in the C2 through C7 distribution. An August 1993 examination for scars yielded a report of well healed scars secondary to shrapnel trauma on the neck and the left forearm, with no evidence of inflammation. In September 1993, the RO requested that magnetic resonance imaging (MRI) of the cervical neck be done, and that the veteran be examined by a board of neurologists in order to reconcile the diagnoses with regard to his claims for service connection for nerve damage secondary to shell fragment wounds. A VA neurological examination was conducted in October 1993. The examiner concluded that the findings were consistent with greater occipital neuralgia, left greater than right; and lower cervical radiculopathy, which was mild at that time and clinically limited to dysesthesia without motor involvement in the C5/C6 area. It was noted that by report of a privately done electromyogram (EMG), there was also evidence of acute denervation in a C6/C7 distribution. A VA compensation and pension examination conducted in November 1993 attributed numbness and sharp pains around the left ear to neuralgia due to C2 injury. Numbness and tingling in the left arm was in a distribution fitting the C6-C7 dermatome. A repeat EMG, conducted in December 1993, showed left medial neuropathy at the wrist, and left C6-C7 radiculopathy. In a decision of December 30, 1993, the RO found that service connection for occipital neuralgia with chronic headache was warranted, but that a current diagnosis of C5, C6 and C7 radiculopathy was not service connected. A 10 percent disability rating was assigned for scar, neck, residual of shell fragment wound with occipital neuralgia with headaches (formerly DC 7800). The disability was rated as for migraine, under DC 8100. In March 1994, the RO undertook an administrative review of this decision, and concluded that it was more appropriate to assign a separate diagnostic code for the occipital neuralgia with headaches. The code assigned was DC 9304, which is listed under organic mental disorders in the Rating Schedule, and pertains to dementia associated with brain trauma. Diagnostic Code 8045, found in the Rating Schedule under Organic Diseases of the Central Nervous System, directs that "purely subjective complaints such as headache, dizziness, insomnia, etc., recognized as symptomatic of brain trauma, will be rated 10 percent and no more under diagnostic code 9304." Apparently, the shell fragment wound of the neck was equated to brain trauma. DC 8100 was continued for the neck scar. The veteran's service records clearly show that he received shell fragment wounds of the right knee (or thigh) and of the left forearm, in addition to the service connected scar on his neck. From the record, it remains unclear whether scars from these other wounds exist presently, and whether there is disability as a result of them. Further development being required in order to complete the record, the case is, therefore, REMANDED for the following action: 1. The RO should schedule the veteran for a VA examination in order to determine whether he has scars from shell fragment wounds of the right knee or thigh, and the left forearm or hand. If scars are found, the examination report should contain a complete description of the scars, as well as a description of any disability or functional limitation that is attributable to them. Any indicated studies should be done, and the examiner should have the claims folder for his use. 2. The veteran should then be examined by a neurologist, board certified if available. The purpose of the examination is to determine whether any pathology found in the veteran's neck is attributable to the service-connected shell fragment wound of the neck. Specific comment should be offered on any nerve damage from C5 through C7. All indicated studies should be performed, and an analysis of the results incorporated in the examiners final report prior to the RO's review of the claim. The claims file should be made available to the examiner prior to the examination. 3. The RO should then readjudicate the issues on appeal, considering the entire history of any service connected disability and all potentially applicable regulations, as discussed in Schafrath v. Derwinski, 1 Vet.App. 589, 592-593 (1991). Further consideration should be given to the use of DC 9304 for evaluating headaches due to a neck wound. If that DC is maintained, the basis therefor should be fully set forth. If the benefit sought on appeal is not granted, the veteran and his representative should be given a supplemental statement of the case with regard to the additional developments and should also be afforded an opportunity to respond. The record should be returned to the Board for further appellate consideration, if in order. No action by the veteran or his representative is required until further notice is received. J. J. SCHULE Member, Board of Veterans' Appeals The Board of Veterans' Appeals Administrative Procedures Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, ___ (1994), permits a proceeding instituted before the Board to be assigned to an individual member of the Board for a determination. This proceeding has been assigned to an individual member of the Board. Under 38 U.S.C.A. § 7252 (West 1991), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Veterans Appeals. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (1993).