BVA9503740 DOCKET NO. 91-37 934 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Boston, Massachusetts THE ISSUES Entitlement to service connection for a left eye disorder. Entitlement to an increased rating for a shrapnel wound of the right forearm with ulnar neuropathy. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The veteran ATTORNEY FOR THE BOARD J. L. Prichard, Associate Counsel INTRODUCTION The veteran had active service from February 1975 to February 1978. CONTENTIONS OF APPELLANT ON APPEAL The veteran contends that his pre-existing left eye disorder was aggravated by active service. He has had amblyopia since childhood. However, he notes that the visual acuity of the left eye increased in severity from 20/200 at induction to 20/400 at separation. He believes that this indicates that his disorder was aggravated by active service. The veteran contends that the residuals of a shrapnel wound to the right forearm have increased in severity to such a degree as to merit an increased rating. He argues that his disability is productive of pain on increased use. He notes that there is weakness in the right hand, and that he has lost some of the dexterity of his fingers. In addition, he states that he has been given a splint to alleviate some of the pain, and help support his wrist. Finally, the veteran believes that he is entitled to compensation for both nerve damage and muscle damage to his arm. DECISION OF THE BOARD The Board of Veterans' Appeals (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 veteran's claims for entitlement to service connection for a left eye disorder, and is against the veteran's claims for entitlement to an increased rating for the residuals of a shrapnel wound to the right arm. 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 left eye disorder is refractive amblyopia, which is a developmental disorder and not considered a disability within the meaning of Department of Veterans Affairs (VA) regulations. Evidence of superimposed disease or injury during service is not shown. 3. The veteran's residuals of a shrapnel wound to the left arm are productive of no more than mild incomplete paralysis. CONCLUSIONS OF LAW 1. A left eye disorder was not incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131, 1153, 5107 (West 1991); 38 C.F.R. §§ 3.303(c), 3.306(a) (1994). 2. The criteria for an evaluation in excess of 10 percent for the residuals of a shrapnel wound to the right forearm with ulnar neuropathy have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §§ 3.321, 4.7, 4.14, 4.73, 4.124a, Codes 5308, 8516 (1994). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Board notes that the veteran's claims are "well grounded" within the meaning of 38 U.S.C.A. § 5107. That is, we find that he has presented claims which are plausible. We are also satisfied that all relevant facts have been properly developed. The record is devoid of any indication that there are other records available which might assist the Board in reaching a decision. The record is complete, and no further assistance to the veteran is required to comply with the duty to assist the veteran mandated by 38 U.S.C.A. § 5107. I. Service Connection The veteran contends that his pre-existing left eye disorder was aggravated by active service. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131. A pre- existing injury or disease will be considered to have been aggravated by active service, where there is an increase in disability during such service, unless there is a specific finding that the increase in disability is due to the natural progress of the disease. 38 U.S.C.A. § 1153; 38 C.F.R. § 3.306(a). It appears that certain documents once contained in the claims file may have been removed from the file and possibly destroyed by a former BVA employee. The service medical records were apparently in the claims folder at a previous time, but they are no longer contained in the claims folder. This case was remanded in December 1993 in order to obtain additional service medical records. However, the National Personnel Records Center indicated that all records had previously been supplied to the regional office (RO). The Board recognizes that there is a heightened obligation to explain findings and conclusions and to consider carefully the benefit of the doubt rule in a case such as this, in which records are presumed to have been or were destroyed while the file was in the possession of the government. O'Hare v. Derwinski, 1 Vet.App. 365, 367 (1991). The service medical records are not contained in the claims folder, and are presumed to be destroyed. However, these records were available at the time of the August 1990 rating decision. The August 1974 entrance examination showed uncorrected visual acuity of 20/20 for the right eye and 20/200 of the left eye, and reflected a diagnosis of hyperopic astigmatism with refractive amblyopia. He was examined at the Optometry Clinic in April 1977, and had visual acuity of 20/20 of the right eye and 20/200 of the left eye. It was noted that the veteran had amblyopia since childhood. The veteran's November 1977 separation examination showed uncorrected visual acuity of 20/20 of the right eye, and 20/400 of the left eye. The diagnosis was noncorrectable amblyopia. The veteran was afforded a VA examination in April 1979. His distant vision was 20/15 for the right eye and 20/200 for the left eye, and his eyes were described as normal. A visual examination was afforded the veteran in conjunction with his current claim in October 1994. His medical history indicated that "there was an explosion without treatment of the eyes in 1976." He had been treated at age nine for amblyopia of the left eye with patch therapy and eyeglasses. On examination, uncorrected visual acuity for the right eye was 20/20 at near and 20/20 at far. Uncorrected visual acuity for the left eye was 20/120 at near and 20/400 at far. There was no diplopia or visual field defects. There was mild bilateral drusen, worse in the left eye than the right. The diagnoses were latent hyperopia of the right eye, amblyopia with decreased vision of the left eye, mild blepharitis of both eyes, and mild drusen of both eyes. After careful review of the veteran's contentions and the evidence of record, the Board is unable to find that service connection is merited for the veteran's left eye disability. Congenital or developmental defects, including refractive error of the eye, are not diseases or injuries within the meaning of applicable legislation. 38 C.F.R. § 3.303(c). The evidence indicates that the veteran has refractive amblyopia, which is considered a developmental defect. This disability is not considered a disease or injury for which service connection can be granted. The veteran has not contended that he developed any other left eye disability during service, and there is no indication that during service the veteran developed any other left eye disability or superimposed disease or injury. As there is no evidence of a disability for which service connection can be granted, entitlement to service connection for a left eye disorder is not merited. II. Increased Rating The veteran contends that the residuals of the shrapnel wound of his right forearm have increased in severity. The evaluation of service-connected disabilities is based on the average impairment of earning capacity they produce, as determined by considering current symptomatology in the light of appropriate rating criteria. 38 U.S.C.A. § 1155. Consideration is given to the potential application of the various provisions of 38 C.F.R. Parts 3 and 4, whether or not they are raised by the veteran, as required by Schafrath v. Derwinski, 1 Vet.App. 589 (1991). In addition, the entire history of the veteran's disability is also considered. The record indicates that the veteran was originally service connected for the residuals of a shrapnel wound of the right forearm with right traumatic ulnar neuropathy in a July 1979 rating decision. This rating decision indicated that the veteran sustained a shrapnel wound to the right forearm in October 1976 while firing a grenade launcher. The disability was evaluated as 10 percent disabling, and this evaluation currently remains in effect. The veteran is evaluated under the code for paralysis of the ulnar nerve. Complete paralysis results in the "griffin claw" deformity due to flexor contraction of ring and little fingers, very marked atrophy in the dorsal interspace and thenar and hypothenar eminences, loss of extension of the ring and little fingers, inability to spread the fingers or inability to adduct the thumb, and weakened flexion of the wrist. Complete paralysis of the ulnar nerve is evaluated as 60 percent disabling for the major limb. Severe incomplete paralysis is 40 percent disabling, moderate incomplete paralysis is 30 percent disabling, and mild incomplete paralysis is 10 percent disabling. The term incomplete paralysis indicates a degree of lost or impaired function substantially less than the type pictured for complete paralysis. When the involvement is wholly sensory, the rating should be for mild, or at most, the moderate degree. 38 C.F.R. § 4.124a, Code 8516. The evidence submitted in support of the veteran's claim includes VA outpatient treatment records from March 1988 through August 1990. June 1988 records indicate that the veteran complained of intermittent numbness and tingling, with decreased right hand grip for the previous six months to two years. His history noted only a slight decrease in right hand grip, and slight weakness of the right wrist. He had positive finger abduction, with no sensory deficits. He was noted to have posterior interosseus syndrome due to shrapnel scarring. February 1989 records show that the veteran continued to have only slight decreased right hand grip with mild weakness of the right wrist. The fingers abducted. The impression was post- shrapnel right interosseus syndrome. In August 1989, the veteran had decreased strength of the right wrist, and numbness of the right hand. There was no atrophy of the right hand. The veteran was seen again in April 1990. He complained of losing the grip of the right hand for the past two to three years. It had been getting progressively worse, and there were aches around the wrist. The veteran was noted to have chronic right wrist weakness with no real numbness in June 1990. He had right wrist extensor weakness, and desired instruction on wrist exercises. He was also noted to seek splinting. He stated that there was weakness in his grip strength, and discomfort and occasional pain in the wrist. There was full range of motion in the wrist and hand, but he complained of a catching at the end of the range. His right hand strength was less than the left, and afterwards the veteran stated his fingers felt tight and numb. He complained of the same sensation whenever he did strenuous activities such as chopping wood. He said that he had a great deal of pain in the wrist to the extent that he would not put weight on it. The right hand felt colder than the left. July 1990 records show that the veteran had progressive weakness of the right hand. He now complained of weakness of all hand motions. Continued use of the splint was recommended. The veteran was afforded a VA examination in October 1992. He complained of progressive loss of function in the right hand, with pain on use. He also complained of numbness and loss of sensation of the right fourth and fifth fingers, and the right lateral aspect of the right upper extremity. He stated that there was temperature insensitivity with a complaint of pain in the fourth and fifth digits, and that he had trouble dressing, and complaints of decreased dexterity of the right hand. On examination, there was no atrophy, no fasciculations, and no loss of muscle bulk in either the smaller muscles of the right hand or muscles in the right forearm. Power testing provided a variable response. The range of motion seemed intact. The deep tendon reflexes were symmetric. On testing, the veteran complained of pain on extension and flexion of the fingers, and on flexion and extension of the wrist. The complaints varied at times. Sensory examination was repeated a number of times, with possible deficits noted in the fourth and fifth digits. The impression was of complaints of pain in the right hand, with a history of right ulnar peripheral nerve damage. An electromyographic nerve conduction velocity test was conducted in October 1992. The results of this testing failed to show evidence of muscle denervation in the right upper extremity. The left ulnar nerve did appear to have loss of amplitude, and there was diffuse slowing of sensory nerve conduction velocities bilaterally in the upper extremities suggestive of likely peripheral neuropathy. The veteran was afforded a personal hearing in June 1991. He testified that he avoided doing tasks with his right hand, and that he had difficulty bringing his little finger over to touch his thumb. Transcript (T) at page 2. He noted that his disorder was progressive, and that it would likely become worse. T. at 3. His hand was weaker, and he had more numbness. T. at 5. His disorder had made it more difficult to do his job as a police officer, and made it painful to chop wood. T. at 9. He wore a splint at times due to the weakness of his wrist. T. at 12. Initially, the Board notes that separate evaluations for the veteran's disability under the codes for musculoskeletal disability and neurological disability cannot be made. The Board notes that the veteran's entire symptomatology is considered under the codes for paralysis of the ulnar nerve, including weakness, reduction in the range of motion, sensory involvement, and complaints of pain. In order to receive a separate evaluation for the neurological findings, none of the symptomatology must be duplicative of or overlapping with the symptomatology for musculoskeletal findings. If a separate evaluation for the musculoskeletal disability was assigned, then, in order to avoid the evaluation of the same manifestations twice, only sensory involvement could be considered under the code for paralysis of the ulnar nerve. See Esteban v. Brown, 6 Vet.App., 259, 262 (1994); 38 C.F.R. § 4.14. After thorough review of the evidence, the Board is unable to find that an increased evaluation for the veteran's disability is warranted. Complete paralysis is not demonstrated by the evidence of record. The October 1992 VA examination demonstrated that the veteran has full range of motion of his wrist and fingers. No limitation of motion was noted in any of the outpatient treatment records. There is no evidence of atrophy or the beginnings of flexor contraction of the ring and little fingers. Electromyographic testing conducted in October 1992 was negative for muscle denervation, and sensory testing conducted at this time appeared to be inconclusive. The outpatient treatment records do show that the veteran complains of pain, numbness, and weakness of his fingers and wrists, and that he sometimes wears a brace. His grip has decreased strength. In addition, he testified that it is difficult to touch his ring and little finger to his thumb. The Board believes that these symptoms are productive of no more than mild incomplete paralysis, as reflected by the 10 percent evaluation currently in effect. Therefore, an increased rating cannot be awarded. If the veteran were to be evaluated under the codes for disability to the musculoskeletal system, he would be evaluated for an injury to Muscle Group VIII. These are the muscles which arise mainly from the external condyle of the humerus, and includes the extensors of carpus, fingers and thumb, and supinator. The functions include extension of the wrist, fingers and thumb, and abduction of the thumb. Slight disability of this muscle group merits a 0 percent evaluation. Moderate disability would warrant a 10 percent evaluation, and moderately severe disability would be evaluated as 20 percent disabling. 38 C.F.R. § 4.73, Code 5308. Separate evaluations under the codes for disability to the musculoskeletal system are either not assignable because of 38 C.F.R. § 4.14, or would not be of any advantage to the veteran. The current evidence indicates that the veteran has a full range of motion of his wrists and fingers, but with some pain and weakness. This symptomatology would be evaluated as slight, which merits a 0 percent evaluation. It would be of no advantage to the veteran to be evaluated under this rating code. 38 C.F.R. § 4.73, Code 5308. Therefore, the Board will continue to evaluate the veteran under the codes for neurological conditions. In reaching this decision, the Board has considered an extraschedular evaluation under 38 C.F.R. § 3.321, but marked interference with employment, frequent hospitalizations, or other evidence of an unusual disability picture has not been shown. The veteran has stated that he is employed as a policeman, and that his disability makes it difficult to use his gun. However, there is no evidence to show that he has missed work due to his disability. The veteran's symptomatology does not more nearly approximate that of the next higher evaluation. 38 C.F.R. § 4.7. ORDER Entitlement to service connection for a left eye disorder is denied. Entitlement to an increased rating for the residuals of a shrapnel wound to the right forearm is denied. J. U. JOHNSON Member, Board of Veterans' Appeals CONTINUED ON NEXT PAGE 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.