BVA9505083 DOCKET NO. 92-19 209 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Pittsburgh, Pennsylvania THE ISSUE Entitlement to service connection for traumatic arthritis from shell fragment wounds. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The veteran ATTORNEY FOR THE BOARD W. Pope, Counsel INTRODUCTION The veteran had active service from November 1966 to May 1969. This matter came before the Board of Veterans' Appeals (Board) on appeal from a October 1991 rating decision. The veteran was present for a hearing before a hearing officer at the RO in March 1992. The Board remanded the appeal to the RO for further development in October 1993. REMAND The veteran and his representative contend that service connection is warranted for traumatic arthritis resulting from shell fragment injuries received during service. The veteran has reported related pain in the right hip, right hallux, right shoulder, right thumb, right index finger, left hand, neck, knees, elbows, ankles, wrists, and feet. In a June 1994 rating decision, service connection was established for traumatic arthritis of the right elbow, evaluated as 10 percent disabling. The veteran's service medical records reveal that he sustained multiple shell fragment wounds during his service in Vietnam. His subsequent treatment included an exploratory laparotomy. The service records are negative for evidence of traumatic arthritis. A report of a December 1970 VA examination noted scaring of the veteran's thighs, right mid-clavicle region, right mid-shoulder area, right upper arm, right arm above the elbow, lateral side of the left forearm above the wrist, over the right buttock, over the right knee, above the left knee, and a slight deformity of the terminal phalanx of the right index finger. X-ray studies were reported as disclosing metallic foreign bodies in the left buttock, left forearm, left little finger, both thighs, and above the right hip joint. During a May 1976 VA examination the veteran complained of pain in the legs, arms and stomach secondary to shell fragment wounds. A physical examination revealed multiple scars over the veteran's torso, including a 9-inch midline abdominal scar, and scars of the right clavicle area, mid-shoulder area, right elbow, left forearm, both thighs and both knees. Metallic bodies were palpable above the right hip joint, left buttock, left forearm, both thighs, and above the left knee. The diagnosis was multiple scars with retained foreign bodies. During a March 1992 hearing at the RO the veteran testified that he sustained multiple fragment wounds from a mine explosion in Vietnam on August 11, 1967, including injuries to the face, right shoulder, right elbow, left upper extremity, and both lower extremities. The previously noted October 1993 Board remand was issued in order to provide the veteran with "a VA examination to determine if he ha[d] arthritis in any joint affected by one of his shell fragment wounds." A February or March 1994 VA outpatient treatment note refers to left ankle pain secondary to shrapnel. The May 1994 VA orthopedic examination, conducted in response to the October 1993 remand, referred to X-ray studies of the veteran's elbows, ankles, knees and hips. However, the examining physician's opinion concerning possible traumatic arthritis of several other joints was apparently based on limitation of motion testing and on "historical locations of shrapnel." In this regard, the Board notes that while questions concerning entitlement to a disability rating for service-connected arthritis can depend upon limitation of joint motion, this criteria is not applicable when considering entitlement to service connection for arthritis. That is, to establish service- connection for arthritis for VA purposes, the proof of current arthritis of a joint is "established by X-ray findings," (See 38 C.F.R. § 4.71a, Code 5002), and the degree of joint motion is not pertinent. The Board also notes that the lack of service medical records regarding the veteran's multiple shell fragment wounds, which probably included numerous X-ray studies revealing the actual areas and depths of penetration prior to extraction of the fragments, makes determinations of joint trauma rather arbitrary if based upon "historical locations," rather than the medical evidence. Accordingly, to ensure that VA has met its duty to assist the claimant in developing the facts pertinent to the claim and to ensure full compliance with due process requirements, the case is REMANDED to the RO for the following development: 1. The veteran should receive another VA orthopedic examination, to include current X-ray studies of any joint which may have been affected by the veteran's multiple shell fragment wound injuries, including joints near confirmed shell fragments, such as the veteran's left middle finger, and joints near residual scars, such as his right shoulder. The claims file, including a copy of this REMAND, should be made available to the examiner before the examination, for proper review of the medical history. The examination report is to reflect whether such a review of the claims file was made and include the examiner's opinion of the medical probability, given the examination and evidence in the claims file, as to whether any joint arthritis is the result of trauma due to the veteran's service-connected shell fragment wounds. 2. After the development requested above has been completed to the extent possible, the RO should again review the record. If any benefit sought on appeal, for which a notice of disagreement has been filed, remains denied the appellant and representative should be furnished a supplemental statement of the case and given the opportunity to respond thereto. Thereafter, the case should be returned to the Board, if in order. The Board intimates no opinion as to the ultimate outcome of this case. The appellant need take no action unless otherwise notified. BARBARA B. COPELAND 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).