BVA9507660 DOCKET NO. 93-08 724 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in No. Little Rock, Arkansas THE ISSUES 1. Entitlement to service connection for residuals of a right shoulder injury. 2. Entitlement to service connection for residuals of a left ankle fracture. 3. Entitlement to service connection for arthritis of the right shoulder, left ankle and right elbow. REPRESENTATION Appellant represented by: The American Legion WITNESSES AT HEARING ON APPEAL Appellant and Sister-In-Law ATTORNEY FOR THE BOARD J. R. King, Associate Counsel INTRODUCTION The appellant served on active duty from August 1960 to August 1962. This matter is before the Board of Veteran Appeals on appeal from a May 1992 rating determination of the Department of Veterans Affairs (VA) Regional Office (RO), which granted the appellant's claim for service connection for residuals of a fracture of the right elbow and denied the appellant's claims of entitlement to service connection for residuals of a right shoulder injury, residuals of a fracture of the left ankle, a lumbar spine injury and arthritis. Through his October 1992 hearing testimony, and by statements made in relation to a medical history provided during a March 1992 VA examination, the Board construes the appellant's claim to include the issue of entitlement to a total rating based on individual unemployability. This issue is referred to the RO for appropriate action. CONTENTIONS OF APPELLANT ON APPEAL The appellant maintains that the RO erred in not granting the benefits sought. He avers that his service medical records do not contain appropriate references to the disorders from which he suffered in service and that he did not receive a physical examination on separation from the service. He maintains that the service physicians who treated him for a broken right elbow injured his right shoulder. He also maintains that he fractured his left ankle shortly before discharge while changing a truck axle. He avers that the physicians who treated him for his elbow and ankle conditions are deceased and that their clinical records are unavailable. He also maintains that although he had arthritis prior to entry into active duty, the injuries of the left ankle, right shoulder and right elbow are the current sites of traumatic arthritis and they should therefore be service connected. 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 weight of the evidence is against the appellant's claim for service connection for residuals of a right shoulder injury. The weight of the evidence is also against the appellant's claims for service connection for residuals an injury of the left ankle and for arthritis of the right shoulder, left ankle and right elbow. FINDINGS OF FACT 1. All evidence necessary for the equitable disposition of the appellant's claim has been received by the RO. 2. A 10 percent evaluation is in effect for residuals of a fracture of the right elbow since the time of the rating action on appeal. 3. An injury of the right shoulder was not present in service, nor is a right shoulder disability shown to be etiologically related to any injury sustained in service. 4. Complaints of an in service injury of the left ankle were acute and transitory, resolving without residual impairment. 5. The appellant sustained post-service, intercurrent injuries of the left ankle. 6. Arthritis of the right shoulder, left ankle and right elbow has not been shown to be related to service, nor was arthritis manifest to a compensable degree within one year following separation from active duty. 7. Arthritis of the right shoulder, left ankle and right elbow is not confirmed by the objective clinical evidence of record. CONCLUSIONS OF LAW 1. A chronic acquired disability of the right shoulder was not incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1131, 1153, 5107 (West 1991); 38 C.F.R. §§ 3.303(b)(1994). 2. A chronic disorder of the left ankle was not incurred in or aggravated by active military service . 38 U.S.C.A. §§ 1131, 1153, 5107 (West 1991); 38 C.F.R. §§ 3.303(b)(1994). 3. Arthritis of the right shoulder, left ankle and right elbow was not incurred or aggravated by active military service, nor may it be presumed to be related to service. 38 U.S.C.A. §§ 1101, 1131, 1133, 1153, 5107 (West 1991); 38 C.F.R. §§ 3.307, 3.309 (1994). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Board notes that it has found the appellant's claims to be well-grounded within the meaning of 38 U.S.C.A. § 5107 (a) (West 1991). That is, it has been found that the appellant's claims are plausible. The Board is also satisfied that all relevant facts have been properly developed. In this regard, the RO undertook specific evidentiary development in this case, in the form of a February 1992 request to Dr. John Ewing that he provide treatment reports for the appellant from June 1990 through December 1991. No response having been received, the claim was adjudicated by the RO on the current record. There is no indication that there are additional available records which would be germane to the appellant's case, and the appellant has presented hearing testimony at a personal hearing at the RO in October 1992. In addition, the record contains the appellant's service medical records as well as VA clinical evidence. Thus, no further assistance to the appellant is mandated by 38 U.S.C.A. § 5107 (West 1991). I. Pertinent Law and Regulations Service connection may be granted for disability resulting from personal injury suffered or disease contracted in line of duty during peacetime service, or for aggravation of a pre-existing injury suffered or disease contracted in line of duty during peacetime service. 38 U.S.C.A. § 1131 (West 1991). Where an appellant served continuously for 90 days or more during a period of war or during peacetime service after December 31, 1946, and a chronic disease, including arthritis, becomes manifest to a degree of 10 percent within 1 year from date of termination of such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137 (West 1991); 38 C.F.R. §§ 3.307, 3.309 (1994). Medical evidence of a chronic disability should set forth the physical findings and symptomatology elicited by examination within the applicable period. 38 C.F.R. § 3.307(b) (1994). A chronic disease need not be diagnosed during the presumptive period under 38 C.F.R. § 3.307(c) (1994) but, if not, there must then be shown by acceptable medical or lay evidence, characteristic manifestations of the disease to the required degree, followed without unreasonable time lapse by definite diagnosis. Caldwell v. Derwinski, 1 Vet.App. 466, 469 (1991). An important factor in the factual question of reasonableness in lapse of time from manifestation to diagnosis under 38 C.F.R. § 3.307(c) (1994) is the strength of the evidence establishing an identity between the disease manifestations and the subsequent diagnosis; a strong evidentiary link tends to ensure the disease is not due to 'intercurrent cause' as set forth in 38 C.F.R. § 3.303(b) (1994). Cook v. Brown, 4 Vet.App. 231, 238 (1993). II. Factual Background Service Medical Records The examination for entry into service is negative for pertinent disability. Administrative entries show the veteran underwent initial training at Fort Leonard Wood, Missouri. An undated form under the letterhead of the U.S. Army Hospital, fort Leonard Wood, reflecting the appellant's rank as "RCT-1," shows that in response to the question "Have you ever had or been told you had rheumatic fever or rheumatism," the word rheumatism is underlined and a block is checked for "yes." The service medical records document that the appellant sustained a fracture of the right olecranon in March 1961. He was treated with a cast. There are no further clinical entries pertaining to the right elbow in the service medical records. The records are also silent for clinical findings or complaints pertaining to the right shoulder. The appellant was found to have presented to heath care providers in June 1962, with complaints pertaining to the left ankle. He was found to have what was characterized as "slight swelling" and "little tenderness" of the left ankle. The service medical records do not reflect further treatment or complaints pertaining to the left ankle. A June 1962 Report of Medical Examination performed in relation to the appellant's separation from active duty reflects that on the report of medical history, he denied having swollen or painful joints as well as painful "trick" shoulder or elbows. He did indicate that he had experienced foot trouble, and in the physician's summary section of the document, this trouble is specified as "flatfoot." The medical history form is signed by the appellant. The clinical evaluation of the appellant's upper and lower extremities was said to disclose normal findings and the evaluation of the appellant's feet again was noted to disclose flatfoot, which was found to have existed prior to service. An August 1962 service medical document is also of record, which reflects that the appellant certified that his physical condition had not changed since the time of his separation examination. Post-Service Clinical Evidence The appellant underwent a VA examination in March 1992. At this time, he provided a history of in service injury of the right elbow, right shoulder and left ankle. He indicated that he injured the right shoulder and right elbow when he slipped on a wet mess hall floor, and that his elbow was placed in a cast and subsequently rebroken due to a failure to heal properly. He also indicated that his shoulder was treated with a sling at that time. He stated that he has had constant pain of the right arm and shoulder as well as intermittent numbness since that time, but that he has taken no medication since the time of the injury. He complained of limited range of motion and loss of strength of the right arm. His history included that he fractured his left ankle in 1961, when an axle fell on it. He stated that he was not placed in a cast. He complained of constant pain and takes no medication for it. He stated that the pain is aggravated by standing more than 20 minutes and that he is unable to run. The appellant indicated that the ankle occasionally swells and that he wears boots all the time. He stated that he has difficulty ambulating on uneven ground. On musculoskeletal examination, the right shoulder was found to have tenderness anteriorly. The range of abduction and forward flexion was recorded as 90 degrees. The internal and external rotation was found to be 45 degrees. Examination of the right elbow was said to reveal generalized tenderness without edema. He was noted to have the full range of motion, but the strength of the right elbow was said to be diminished by 50 percent. Examination of the left ankle was said to reveal tenderness laterally, but the appellant was noted to have had the full range of motion. The examiner stated that the remainder of the examination was normal. X-ray studies were conducted of the appellant's right shoulder, right elbow, left ankle and lumbar spine. As to the right shoulder, the studies were interpreted as showing unremarkable findings pertaining to the articular surfaces and the joint space. It was noted that there were no focal bony abnormalities. The impression was no definite abnormalities. The right elbow was found to have normal articular surfaces and joint spaces. No other abnormalities were noted. The impression was normal study. The appellant's left ankle was described as having no abnormalities of the articular surfaces, and the joint space was said to have appeared unremarkable. The impression was normal study. The pertinent diagnoses were: 1. residuals, fracture of the right elbow and injury of the right shoulder; and 2. residuals of a fracture of the left ankle. Lay Evidence Several July and August 1992 lay statements are of record in this case, which reflect the affiant's representations that the appellant had swellings of the right elbow and left ankle immediately following service. Specifically, [redacted] indicated that the appellant saw Drs. Suel, Sharp and Henkle for the claimed ailments. [redacted] indicated that her deceased father attempted to persuade the appellant to seek treatment at a VA medical facility for swellings of his left ankle and right elbow. Both Ms. [redacted] and Ms. [redacted] refer to the veteran being provided unidentified "arthritis medication." Additionally, another affiant, whose name is illegible, indicated that the appellant experienced severe swellings of the elbow and left ankle. Finally, an August 1992 lay statement is to the effect that the appellant worked for a short time at a bus manufacturing plant, that he complained about shoulder pain and that he had a left ankle problem. In October 1992, the veteran submitted three photographs taken of him in July 1965, and 1967. He stated that he believed the photographs showed he had arthritis in 1965 because of how he was holding his son, and that the 1967 photograph showed a swollen right arm and elbow. Testimonial Evidence The appellant and his sister-in-law appeared at a personal hearing at the RO in October 1992. At this time, he indicated that he injured his right elbow in service and that he was treated with a cast. He stated that the elbow was rebroken, and that it was at this time that service treating physicians injured his right shoulder. The appellant stated that he obtained treatment for his left ankle injury shortly before discharge and that he did not receive a separation examination because his post was on red alert. He indicated that he took aspirin for his shoulder pain and that he did not seek additional in service treatment for his right shoulder injury. The appellant stated that he sought treatment from a Dr. Suel and a Dr. Sharp after release from active duty and that his last treatment for a shoulder disability was in 1963 when he received a cortisone shot. He indicated that this resolved his shoulder pain. The appellant also indicated that he suffered a fracture of the left ankle two months before service, for which he was treated with two days of light duty and a boot for a cast. He indicated that he received no further in service treatment for his ankle injury. He further described his separation physical examination as being no more than an administrative procedure. He stated that he walked to a desk, where his papers were checked off, after which he was released. He stated that his ankle still bothered him at the time. He noted that his ankle still bothered him when he returned home, requiring that he stay in bed until he saw a physician. He stated that Dr. Suel said it was fractured, but that he did not x-ray the ankle and declined to place a cast on it because the injury was so old. He stated that the problem with his ankles lasted about six months, and that he quit work in September 1962 after discharge. The appellant also indicated that he re-injured the ankle on at least two subsequent occasions following service. The Board notes his testimony is somewhat unclear on this point as he refers to three breaks of the ankle since the first break, and he then comments that an incident in 1965 involved only a sprain. The appellant indicated that he had arthritis before he went into the service, but that the injuries for which he claims service connection are the sites of severe arthritic pathology. He stated that Dr. Sharp drew fluid from swellings of the elbow on several occasions, and that a Dr. Henkle eliminated the residuals of the shoulder injury with a cortisone shot. The appellant's former sister-in-law testified as to the difference as between the appellant's condition prior to entry into the military and after he returned home. She indicated that his foot was swollen when he returned, and that he sent pictures home which showed him in a sling. She indicated that the appellant showed signs of pain in the left shoulder, and that it was her understanding that it was the left arm that he injured in service. III. Analysis Service Connection for Residuals of a Right Shoulder Injury The Board has considered the clinical, lay and testimonial evidence of record and find that it does not support the appellant's contentions with respect to this issue. Although the appellant alleges that the in service treatment of his right elbow fracture resulted in a chronic disability of the right shoulder, this is not borne out by his service treatment records, his separation physical or even the testimonial evidence in this case. The service medical records contain no reference to treatment for a shoulder injury, and the appellant would have the Board believe that he neither sought additional in service treatment nor indicated the presence of a painful injury during the examination procedure, however cursory, which was related to his separation from active duty. It is noted that the examination report appears on its face to be complete, and it is also noted that appellant would have been required to fill out the medical history portion of this examination report, and that he did indicate that he did not suffer from swollen or painful joints and that he had no painful trick shoulder or elbow. His signature appears on the report of medical history form. In light of the above, the Board is unable to find the appellant's evidentiary assertions credible is therefore constrained to find that they have little probative weight in light of other evidence, or lack thereof, in the record. Specifically, there is no evidence from a physician who treated the appellant following service for his alleged right shoulder injury. The appellant has indicated that records from Drs. Suel and Sharp are unavailable and he testified that Dr. Henkle treated him with one Cortisone shot in 1963, which resolved the problem. The appellant does not allege that he received any continuing treatment for the shoulder from 1963 forward, and so the Board can only conclude that the alleged right shoulder injury, without evidence of continuity of symptomatology or treatment, was acute and transitory, resolving without chronic residuals. The photographs submitted by the appellant, and his interpretation of what the photographs show, are not persuasive for several reasons. First, the Board does not find that the photographs on their face establish any material fact in this case. Second, the appellant's commentary as to what the photographs show is speculative, i.e. the appellant's assertion that the fact that he is holding his son with two arms in a photograph establishes that he has arthritis involves at best strained interpretation and at worse adventures into matters of medical diagnosis and causation that are plainly beyond the appellant's capacity as a lay party to address. Espiritu v. Derwinski, 2 Vet.App. 492 (1992); Grottveit v. Brown, 5 Vet.App. 91 (1993). The March 1992 VA examination, while reflecting a diagnosis of residuals of right shoulder injury, also shows the appellant's shoulder to be normal by x-ray findings. Finally, although the appellant's sister-in-law purported to testify as to the effect of a shoulder injury, but it was her testimony that the appellant injured his left shoulder in service. Thus, her statements are of little probative weight regarding the issue before the Board. The Board is required to consider all evidence on both sides of the issue and to reconcile any conflict among such evidence or, alternatively, provide an explanation of the reasons for rejecting evidence favorable to the claimant or determining that such evidence is of little relative weight or probative value. Quiamco v. Brown, 6 Vet.App. 304 (1994); Bucklinger v. Brown, 5 Vet.App. 435, 438-39 (1993). Having considered all of the evidence pertaining to this issue, the Board finds that there is no conflict in the evidence inasmuch as the evidence submitted on the appellant's behalf does not support his claim. As such, the evidence is not in equipoise as to whether any injury of the right shoulder resulted in chronic residuals. Williams (Willie) v. Brown, 4 Vet.App. 270, 273-74 (1993). Given the above, the claim for service connection for residuals of an injury of the right shoulder is denied. Service Connection for Residuals of an Injury of the Left Ankle Given that the service medical records do not contain reference to a chronic disability of the left ankle, the Board can only conclude that the one incidence of in service treatment for a left ankle injury pertained to an acute and transitory condition which resolved without residuals. The appellant had a two month period between the time of his separation physical examination and the time of his August 1962 discharge certification that his health had not changed, to complain about continuing problems with his left ankle. The appellant testified that his ankle condition had resolved by 1963 and that he subsequently re- injured it, apparently in 1968 and on at least one other occasion. As noted above in Cook, an important factor in the factual question of reasonableness in lapse of time from manifestation to diagnosis under 38 C.F.R. § 3.307(c) (1994) is the strength of the evidence establishing an identity between the disease manifestations and the subsequent diagnosis. Here, no such identity has been established. It appears, in fact, that just the opposite is true. There has been no showing that an injury in service resulted in a chronic left ankle disability, and there has been neither showing nor allegation that in the span of time between 1963 and 1992, there has been continuity of symptomatology arising from an in service injury. The appellant has admitted to re-injuring the ankle on at least two occasions, and thus there is no strong evidentiary link showing that the disease is not due to 'intercurrent cause' as set forth in 38 C.F.R. § 3.303(b) (1994). The appellant failed to report the existence of intercurrent injuries to the VA examiner, who rendered a diagnosis of residuals of injury of the left ankle based on the appellant's incomplete history. In Reonal v. Brown, 5 Vet.App. 458 (1993), the Court held that medical evidence is inadequate where the medical opinions were general conclusions based on history furnished by the appellant. The Board notes that the x-ray studies of the left ankle disclosed what were described as unremarkable findings, and as this is the most reliable objective indication of current joint pathology, the Board is without a factual basis upon which to predicate a finding that any single incidence of left ankle injury resulted in chronic disability. Service Connection for Arthritis of the Right Elbow, Right Shoulder and Left Ankle The appellant indicated in his testimony that he had arthritis prior to entry into active duty. The appellant's March 1960 pre- induction medical history reflects that he reported that he had not had arthritis or rheumatism. The undated report in service referring to a past history of "rheumatism" is unsupported by any clinical evidence. His June 1962 separation medical history reflects the same negative history as reflected on the entry examination. None of the intervening service treatment records reflect that the appellant was treated for arthritis or joint trouble other than the right elbow. Thus, the only factual bases upon which the Board could support a grant of service connection would be a showing that arthritis had become manifest to a degree of 10 percent within 1 year from date of termination of service, or that current arthritic pathology was initially incurred in service. The evidence in this case does not establish that the appellant suffers from arthritis. The most recent VA radiological studies of the areas in question reveal no objective evidence of bony pathology. In fact, current x-ray studies were interpreted as showing no definite abnormalities. VA law provides that degenerative arthritis must be established by x-ray findings in order to be compensable. 38 C.F.R. § 4.71, Diagnostic Code 5003 (1994). Without current evidence of arthritis, such disease cannot be presumed to have been incurred in service. Moreover, without objective clinical evidence of arthritis, there is no positive evidence which would place all of the evidence in relative equipoise as to whether any currently diagnosed pathology of the right elbow, right shoulder or left ankle could be attributed to service. Given the above, service connection for arthritis is denied. 38 C.F.R. §§ 3.307, 3.309 (1994). ORDER Service connection for residuals of a right shoulder injury is denied. Service connection for residuals of a left ankle injury is denied Service connection for arthritis of the right shoulder, right elbow and left ankle is denied. RICHARD B. FRANK 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.