BVA9504290 DOCKET NO. 91-48 446 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Wichita, Kansas THE ISSUE Entitlement to service connection for arthritis of the shoulders and arms. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD Ripley P. Schoenberger, Counsel INTRODUCTION The veteran served on active duty from November 1943 to May 1946. This appeal originally arose from an December 1990 rating decision by the RO. By a decision of May 1992 the Board of Veterans' Appeals (Board) denied the veteran's claims of service connection for arthritis of the cervical spine, a disability of the right knee and a disability of the left knee. Thereafter, the veteran appealed the case to the United States Court of Veterans Appeals (Court). In a February 1994 decision, the Court affirmed the denial of service connection for arthritis of the cervical spine, a disability of the right knee and a disability of the left knee. However, the Court held that the Board failed to recognize the veteran's claim of service connection for arthritis of the shoulders and arms and remanded the case for adjudication of that matter. In July 1994 the Board remanded the case to the RO for additional development. The requested development has been completed, and the case is again before the Board for appellate review. CONTENTIONS OF APPELLANT ON APPEAL The veteran contends that during service he fell and injured his back and that, when he was discharged, his arms were paralyzed for six months. DECISION OF THE BOARD The Board, in accordance with the provisions of 38 U.S.C.A. § 7104 (West 1991), has reviewed and considered all of the evidence and material of record in the veteran's claims file. Based on its review of the relevant evidence in this matter, and for the following reasons and bases, it is the decision of the Board that the preponderance of the evidence is against the claim of service connection for arthritis of the arms. It is also the decision of the Board that a preponderance of the evidence is for the claim of service connection for arthritis of the shoulders. FINDINGS OF FACT 1. Currently, the veteran has arthritis of both shoulders which probably is due to service. 2. Since the veteran does not currently have arthritis of the arms, it cannot be attributed to service. CONCLUSIONS OF LAW 1. The veteran's arthritis of the shoulders was incurred in service. 38 U.S.C.A. §§ 1110, 5107, 7104 (West 1991); 38 C.F.R. §§ 3.102, 3.303 (1993). 2. The veteran does not have arthritis of the arms due to disease or injury which was incurred in or aggravated by service. 38 U.S.C.A. § 1110, 5107, 7104 (West 1991); 38 C.F.R. § 3.102, 3.303, 3.307, 3.309 (1993). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Historical The service medical records are devoid of any reference of arthritis of the shoulders and arms or of a back injury. The veteran was hospitalized in April 1945 for back pain, feverishness, cough and weight loss. The diagnosis was catarrhal fever. He was again hospitalized for catarrhal fever in December 1945. On his discharge examination, performed in May 1946, no abnormality of the spine or extremities was reported. In an October 1983 statement, Dr. L. E. Lunsford stated that the veteran had bilateral brachial neuralgia secondary to cervical discopathy and spondylosis plus chronic lumbosacral myofascitis with wedge subluxation of the 5th lumbar vertebra. In October and November 1983 letters, J. A. Mc Evoy, M.D. stated he remembered treating the veteran for "arthritis of both arms and shoulders" in 1946 shortly after he came out of the Navy. Also received in October 1983 were letters from the veteran's mother and sister who related that when the veteran came out of service he was unable to care for himself because of arthritis. In a January 1984 hearing the veteran testified that he was painting steam pipes when the ship (USS Shipley Bay) ran into rough seas, and he fell 20 or 30 feet onto the steel deck. In a June 1984 letter, J. G. Phipps, M.D. stated that a review of the clinical records from 1957 showed that the veteran was seen over the years for a various complaints. His history revealed some narrowing of the 4th thoracic interspace following an automobile accident in 1946. However, he noted X-ray studies of the cervical spine taken in 1966 revealed no bony abnormality. X-ray films of the cervical spine taken in 1984 revealed degenerative changes (arthritis). In May 1986 information was received showing that the Medical Officers Log of the USS Kenton from January 1, 1945, to April, 30 1945, contain no references to the veteran. In June 1989 copies of Dr. Phipps' office notes from 1957 to 1989 were received. The office notes show that the veteran was seen on different occasions and treated for different conditions. X- ray films of the cervical spine in 1966 were interpreted to show no arthritis of the cervical spine. X-ray films of the cervical spine taken in 1984 were interpreted to show arthritis. On a special VA orthopedic examination, performed in August 1994, the veteran stated that during service he fell in the engine room and injured his back. About the same time he had an unknown illness which was characterized by a high fever. At the time of his discharge from service he was "paralyzed" in both arms and could not move either arm. He could not give a definite diagnosis, but saw a local doctor who told the veteran if he had waited much longer he would be "curled up in a ball." He underwent treatment with injections and medications and was eventually able to go to work for Boeing. However, because of discomfort in his shoulder when attempting to "bucking rivets," he was unable to continue working at Boeing, and set up his own vacuum cleaner service which he and his wife ran for many years. On examination, he was found to have a normal configuration of both shoulders. He had a full range of motion of both elbows and wrist. Shoulder elevation was to 20 degrees, bilaterally, and there was tenderness over the acromioclavicular joints. X-ray films were interpreted as showing significant arthritis of both acromio-clavicular joints (shoulders), and minimal calcification about the medial epicondyle of both elbows. Otherwise, the elbows and wrists were reported to be normal. The evidence indicates that he had acromioclavicular joint arthritis. The examiner stated that how the arthritis related to the rather unusual story the veteran gave of his condition at the time of discharge from service was difficult to reconstruct. The examiner added that the amount of arthritic change present could be strictly due to the aging process and not necessarily to any type of injury or illness in service. Arthritis of the Shoulders The Board finds that the claim for service connection for arthritis of the shoulders is well grounded within the meaning of 38 U.S.C.A. § 5107(a). That is he has presented a plausible claim. The evidence shows that the service medical records and the Medical Officer's logs are devoid of any reference to a specific shoulder or arm injury. In addition, the service medical records are negative for any evidence of arthritis or related complaints or reports of injury as claimed by the veteran. However, in a submitted statement, Dr. Mc Evoy could recall that he treated the veteran for "arthritis in both arms and shoulders" in 1946. This statement is not inconsistent with the statements made by the veteran's mother and sister. All three statement support the veteran's contentions. Moreover, the medical evidence shows that the veteran currently has arthritis of both shoulders which the recent VA examination indicated could be due to injury or illness. In the Board's opinion, the evidence presents a reasonable basis to find that the current arthritis in both shoulders is due to trauma sustained in service. Thus, the Board concludes that service connection for arthritis of the shoulders is warranted. Arthritis of the Arms The threshold question to be answered in this portion of the veteran's appeal is whether or not he has submitted evidence of a well-grounded claim. If not, his application for benefits for service connection must fail and there is no further duty to assist him in the development of his claim. 38 U.S.C.A. § 5107(a); Murphy v. Derwinski, 1 Vet.App. 78 (1990). As will be explained below, the Board finds that the veteran has submitted evidence sufficient to establish a well-grounded or plausible claim for service connection for arthritis of the arms. As has been pointed out the evidence is devoid of any complaints or evidence indicating trauma to the arms in service. Dr. Mc Evoy recalled treating the veteran for arthritis of the arms in 1946. However, the current medical evidence shows that the veteran does not have arthritis of the arms. Dr. Mc Evoy also did not submit any clinical records to support his statement. It is significant to the Board that there are no findings or even complaints in all of the treatment records submitted by Dr. Phipps referable to arthritis of the arms. The recent examination by VA reported no arthritis of the elbow or wrists. The unsupported lay statements from the veteran, his mother and his sister also cannot be used to establish the current existence of arthritis of the arms as they are not competent to offer a medical opinion. Espiritu v.Derwinski, 2 Vet.App. 492 (1992). Accordingly, service connection for arthritis of the arms is not warranted. ORDER Service connection for arthritis of the arms is denied. Service connection for arthritis of the shoulders is granted. STEPHEN L. WILKINS 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. NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West 1991), a decision of the Board of Veterans' Appeals granting less than the complete benefit, or benefits, sought on appeal is appealable to the United States Court of Veterans Appeals within 120 days from the date of mailing of notice of the decision, provided that a Notice of Disagreement concerning an issue which was before the Board was filed with the agency of original jurisdiction on or after November 18, 1988. Veterans' Judicial Review Act, Pub. L. No. 100-687, § 402 (1988). The date which appears on the face of this decision constitutes the date of mailing and the copy of this decision which you have received is your notice of the action taken on your appeal by the Board of Veterans' Appeals.