Citation Nr: 0000442 Decision Date: 01/06/00 Archive Date: 01/11/00 DOCKET NO. 92-54 199 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for arthritis of the right leg. 2. Entitlement to an increased rating for residuals of a shell fragment wound of the right lower leg, currently evaluated as 10 percent disabling. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Robert E. P. Jones, Counsel INTRODUCTION The veteran served on active duty from August 1942 to June 1946. This matter is before the Board of Veterans' Appeals (Board) on appeal from rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. The veteran's claims were remanded by the Board for further development in February 1996. The development has been completed and the veteran's claims are now ready for appellate consideration by the Board. The Board notes that the RO found that new and material evidence to reopen the veteran's claim for service connection for arthritis of the right knee had been submitted. The Board agrees with the RO's determination and will also consider the veteran's claim for service connection for arthritis of the right knee on its merits. FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the veteran's appeal has been obtained by the RO. 2. The veteran's right knee arthritis did not develop until many years after his discharge from service and is not etiologically related to service or the service-connected residuals of a shell fragment wound of the right leg. 3. The residuals of the veteran's shell fragment wound of the right lower leg are manifested by a well-healed and nonadherent scar, which is not productive of functional impairment. CONCLUSIONS OF LAW 1. Right knee arthritis was not incurred in or aggravated by active service, its incurrence during active service may not be presumed, and it is not proximately due to or the result of service-connected disability. 38 U.S.C.A. §§ 1101, 1110, 1112, 5107 (West 1991); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310 (1999). 2. The criteria for an increased rating for residuals of a shell fragment wound of the right lower leg have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. § 4.118, Diagnostic Codes 7803, 7804, 7805 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Board finds that the veteran's claims are well grounded within the meaning of 38 U.S.C.A. § 5107(a). The Board is satisfied that all relevant facts have been properly developed and that no further assistance to the veteran is required to comply with the duty to assist mandated by 38 U.S.C.A. § 5107(a). The veteran's service medical records reveal that the veteran was struck in the right leg by a bomb fragment in July 1943. The wound was superficial and healed in two weeks. Service medical records in May and August 1944 reveal that the veteran experienced recurrent ulceration of the right leg shell fragment wound. Examination on discharge from service in June 1946 revealed no right leg disability. On VA examination in November 1948 the veteran's right knee joint was normal. His right leg scars were non tender and non adherent. They were not infected or inflamed. The diagnosis was scar, result of gunshot wound, right tibia, residuals of pain, distress and aching during foul weather and following exertion, moderately symptomatic. The veteran was examined by Joseph F. Edmonson, M.D. in January 1951. The veteran reported that every time he got a scratch on his right leg he got an ulcer on his leg, which took months to clear up. The diagnoses included scar of right leg causing pain in damp or cold weather. The veteran was afforded a VA examination in June 1959. He reported pain in the scar area of his right leg when on his feet for long periods of time or in cold damp weather. The scar area had loss of feeling. On VA examination in May 1980 the veteran had a three inch long scar at the mid third of the right leg. The scar was flat, shiny and somewhat atrophic with slight loss of pigment at its mid portion. The scar was one inch wide at its widest portion. Palpation revealed no evidence of swelling and there was no evidence of subcutaneous tissue or muscle tissue loss. The veteran only felt pressure, there was no tenderness on palpation of the scarred area. Other than the scar itself, there were no trophic changes to the veteran's skin. The examiner stated that an examination of the record revealed that the veteran's symptomatology had remained about the same, although the veteran claimed that the symptoms had increased. The veteran was afforded a VA examination in February 1986. The veteran complained of persistent pain in the anterior right leg over the years. The pain was usually relieved with aspirin or Indocin. He had had no difficulty ambulating since his original injury. Examination of the veteran's right leg revealed a well-healed scar over the junction of the middle and distal third of the anterior tibia. The veteran had full range of motion of this right knee and right ankle. He had some diffuse tenderness around the scar, but no evidence of a foreign body or bony abnormality. X-rays revealed a normal appearing right tibia with no evidence of fractures or foreign bodies. The VA examiner was of the opinion that the veteran's symptoms were related to his scar. He recommended continuation of treatment with nonsteroidal anti-inflammatory medication or aspirin. In August 1990 the veteran was examined by John F. Hull, D.O. The veteran complained of pain in his right anterior leg from a shrapnel wound. X-rays of the right knee did not reveal any evidence of gross bony abnormality, other than early osteophytes and minimal medial joint space narrowing. The assessment included early degenerative joint disease of the right knee and complaints of pain secondary to cicatricial tissue around the anterior tibia. In January 1991 the veteran underwent an electromyography (EMG) of the right lower extremity and right lower lumbosacral paraspinal muscles. The private examiner noted that the EMG findings were those of mild to moderate chronic right L5-S1 lumbosacral radiculopathy, with prominent nerve fiber irritability manifested by fasciculation potentials in multiple muscles. The examiner noted that the peroneal distal motor latencies were prolonged on each side, though such possibly might relate to the old shrapnel injuries. On VA examination in September 1991 the veteran reported that he was unable to stand on his right leg for prolonged periods of time secondary to pain. The veteran reported that private nerve conduction velocity tests had not shown the etiology of his pain. Examination revealed atrophy of the right lower extremity below the knee, especially for the gastroc muscle group. The strength was adequate although slightly diminished in the right compared to the left lower extremity. Sensation to light touch and pinprick appeared to be relatively preserved except over the scar which was located on the anterior aspect of the right lower extremity. The impression was scar of the right anterior tibia with reported symptoms of pain for many years. A July 1992 VA outpatient treatment note, signed by a nurse practitioner, indicates that the veteran had arthritis secondary to a shrapnel injury. The veteran was afforded a VA scar examination in November 1992. The veteran reported that he sustained a shrapnel injury resulting in a scar in his right lower leg in 1943. The veteran's only complaint was that when he reinjured his scar area, he had difficulty with healing. Otherwise, there was no significant pain or itching. Examination revealed an atrophic hypopigmented scar. There was no keloid formation, adherence or herniation. There was no inflammation, swelling or depression and it was not tender or painful on palpation. On VA peripheral nerve examination in November 1992 the veteran had some local tenderness to deep palpation around the scar area on his right leg. He had normal strength in the lower legs. He had a totally normal neurologic examination except for slightly decreased sensation to pinprick in the immediate area of the scar in the right lower leg. The VA examiner stated that the veteran did not have any evidence of peripheral nerve injury. There was some decreased sensation in the area of the scar which was totally normal. Such area would not typically be reinnervated. The veteran's complaints of pain were more than likely due to his previous injury, but were not related to a specific injury of a specific peripheral nerve. The veteran complained of pain in the back of the right leg on VA examination in January 1995. The pain was worse with walking. The pain was only relieved when the veteran sat down. The veteran reported that he had occasional numbness in the right leg while watching TV and that he awoke at night with numbness and pain in his right leg. He had good relief with Motrin. Examination revealed that the veteran walked with a nonantalgic gait. He had 2+ dorsalis pedis and posterior tibial pulses. The scar over the medial cortex of the right tibia was well-healed. There was no evidence of infection or inflammation. The muscles in the area appeared supple without any residual scarring. There was no bony deformity noted. The veteran had full range of motion of his right knee. The veteran had marked crepitus with mild medial and lateral joint line tenderness, as well as patellar femoral tenderness. Radiographs revealed some mild osteophyte formation and mild loss of articular cartilage height. There was no evidence of shrapnel or bony injury. There was no evidence of a residual fracture in the tibia bone or the fibula bone. The diagnoses included right leg pain with a history consistent with neurogenic claudication and mild degenerative arthritis of the right knee and ankle consistent with age. The examiner stated that there was no evidence to suggest that the prior shrapnel injury was the etiology for the veteran's right leg pain and the history was consistent with neurogenic claudication. However, he further noted that it would be difficult to say with 100 percent certainty that the shrapnel injury did not leave the veteran with some residual discomfort. On VA examination in June 1996 the veteran reported a shrapnel wound to the right knee. He also reported that he had sustained an inservice injury to his right knee while climbing on a rope ladder. He had some significant swelling in the right knee for a few days, which resolved without treatment. He reported that he did not have any problems with the right knee after that. However, over the past few years he had noted some increasing pain in the right knee. He reported that it occasionally gave way. He had been taking Motrin for the pain which provided some relief. Examination revealed range of motion from 0 to 130 degrees. There was no significant tenderness to palpation. The veteran's right knee was stable, without effusion or erythema. The veteran walked with a normal gait. X-rays revealed no evidence of any right leg problems related to the shrapnel wound. The examiner noted that the veteran was developing some very early degenerative arthritis in the right knee. The examiner did not think that the arthritis was related to the veteran's shrapnel wound in any way. The examiner also stated that he thought it was unlikely that the veteran's right knee arthritis was related to the ladder injury. The examiner noted that the veteran was 71 years old and was most likely developing some degenerative arthritis because of his age. The veteran was again examined by Dr. Hull in February 1998. The veteran had a wide-based, short-step gait favoring the right lower extremity. There was right lower extremity atrophy in the musculature as compared to the left. The veteran had reduced muscle strength flexing the right knee against resistance compared to the left. He had reduced sensation to touch, pain and vibratory sense of the right leg up to the anterior tibial tuberosity compared to the left. There was asymmetry between the two lower legs but without tenderness, crepitus, inflammation, effusion, or masses of the right knee. Range of motion of the right knee was within normal limits without pain or contracture. Stability of the right knee was normal. X-rays revealed moderate medial joint space disease of the right knee. Dr. Hull stated that the veteran had degenerative joint disease of the right greater than the left knee presumably from favoring the right lower extremity due to previous shrapnel wounds to the right lower leg. I. Right Knee Arthritis The veteran contends that his right knee arthritis is the result of a shrapnel wound and of a ladder accident in service. The Board notes that there is a July 1992 note from a VA nurse practitioner that the veteran had arthritis secondary to a shrapnel injury. There is also the statement from Dr. Hull that the veteran had degenerative joint disease of the right knee presumably from favoring the right lower extremity due to shrapnel wounds. However, Dr. Hull coached his opinion as presumably. Furthermore, neither the VA nurse practitioner or Dr. Hull indicated that they based their statements on more than the veteran's alleged history. The Board finds that the other medical of evidence indicating that the veteran's right knee arthritis is unrelated to the inservice shrapnel wound to be more probative. The service medical records reveal that the shrapnel wound was only a superficial wound. The contemporary service records reveal no damage to the veteran's bones or muscles. Arthritis of the right knee was first found in 1990. VA examination reports in January 1995 and in June 1996 note that the veteran walked with a normal gait which indicates that the veteran would not have developed arthritis of the right knee due to favoring the right leg as postulated by Dr. Hull. Furthermore, the June 1996 VA examiner expressed the opinion that the veteran had very early degenerative arthritis of the right knee which was unrelated to any inservice shrapnel wound or other trauma. Since the more probative evidence of record reveals that the veteran did not develop right knee arthritis until many years after discharge from service and that the current right knee arthritis is unrelated to the shrapnel wound or to any other incident of service, service connection for right knee arthritis is not warranted. II. Increased Rating - Shell Fragment Wound Residuals The veteran contends that he is entitled to an increased rating for residuals of his shrapnel wound. He currently has a 10 percent rating in effect for a scar on his lower right leg. This 10 percent rating has been in effect since discharge from service. A review of the evidence reveals that the scar is the only current residual of the veteran's inservice shell fragment wound. In accordance with 38 C.F.R. §§ 4.1, 4.2, 4.41, 4.42 (1999) and Schafrath v. Derwinski, 1 Vet. App. 589 (1991), the Board has reviewed all evidence of record pertaining to the history of the service-connected disability. The Board has found nothing in the historical record which would lead to the conclusion that the current evidence of record is not adequate for rating purposes. Disability ratings 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 (1999). Where there is a question as to which of two evaluations should 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 (1999). The veteran's current 10 percent rating for his scar is the maximum rating available under the criteria for tender or painful superficial scars. 38 C.F.R. § 4.118, Diagnostic Code 7804. The record reveals that the veteran experienced repeated ulceration of his right leg scar for several years after his shrapnel wound. However, for the last 10 years no ulceration has been shown. All the medical evidence from 1986 has shown that the veteran's scar is well healed without infection, inflammation or ulceration. Therefore, it does not warrant a compensable evaluation under 38 C.F.R. § 4.118, Diagnostic Code 7803. In addition, the medical evidence of record reveals that the residual scar is not productive of functional impairment of the veteran's left lower extremity. Therefore, the provisions of 38 C.F.R. § 4.118, Diagnostic Code 7805 are not applicable to the facts of this case. In sum, the evidence demonstrates that the shell fragment wound residuals are not more than 10 percent disabling. ORDER Entitlement to service connection for arthritis of the right leg is denied. Entitlement to an increased rating for residuals of a shell fragment wound of the right lower leg is denied. SHANE A. DURKIN Member, Board of Veterans' Appeals