BVA9507212 DOCKET NO. 91-16 191 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUES 1. Entitlement to degenerative joint disease (DJD) of the right shoulder. 2. Entitlement to service connection for degenerative changes of the low back. 3. Entitlement to service connection for residuals of shell fragment wounds to the right fifth digit. 4. Entitlement to an increased rating for residuals of shell fragment wounds to the right lumbar spinalis (Muscle Group XX), currently evaluated 20 percent disabling. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Siobhan Brogdon, Counsel INTRODUCTION The veteran served on active duty from November 1942 until November 1945. The current appeal comes before the Board of Veterans' Appeals (Board) from rating decisions of the Cleveland, Ohio Regional Office (RO). The case was remanded by a decision of the Board dated in October 1991. Since that time, the issues of increased ratings for residuals of shell fragment wound of the right shoulder and shell fragment wound of the right foot which were previously on appeal were granted by rating action dated in August 1993. The veteran has not expressed dissatisfaction with these determinations. Consequently, the only issues before the Board at this time are those which are stated on the title page. CONTENTIONS OF APPELLANT ON APPEAL The appellant asserts that his service-connected right shoulder and low back shrapnel wound injury residuals have deteriorated to the point that they have engendered a degenerative joint process of the affected areas. He maintains that there is a causal relationship between the service-connected injury residuals and DJD of the low back and right shoulder because of the shrapnel which has been embedded in those areas since service. It is contended that his right fifth digit was also injured by shrapnel at the time of the original trauma and that service connection is warranted in this matter. It is also averred that the service- connected low back disability has resulted in crippling symptomatology which warrants a higher rating. In the informal hearing presentation of January 1995, the representative requests that the case be referred to an independent medical expert as to any secondary relationship between the service-connected right shoulder and low back disabilities and DJD if the benefits sought on appeal cannot be granted. 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 service connection for DJD of the right shoulder, degenerative changes of the low back and residuals of shell fragment wounds to the right fifth digit, as well as against an increased rating for residuals of shell fragment wounds to the right lumbar spinalis muscle. FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the appellant's appeal has been obtained by the RO. 2. DJD of the right shoulder is not causally related to the service-connected residuals of shell fragment wound to the right shoulder (Muscle Group (II). 3. Degenerative changes of the low back are not causally related to the service-connected residuals of shell fragment wound to the service-connected residuals of shell fragment wounds to the right lumbar spinalis (Muscle Group XX). 4. Claimed residuals of shell fragment wounds to the right fifth digit were first clinically indicated many years after service discharge. 5. Shell fragment wounds to the right lumbar spinalis are manifested by tenderness and reported complaints of pain; no more than moderately severe impairment is attributable thereto. CONCLUSIONS OF LAW 1. DJD of the right shoulder was not incurred in or aggravated by service, may not be presumed to have been incurred in service, and is not proximately due to or the result of a service- connected disability. § § 1101, 1110, 1112, 1113, 5107 (West 1991); 38 C.F.R. § § 3.307, 3.309, 3.310 (1994). 2. Degenerative changes of the low back were not incurred in or aggravated by service, may not be presumed to have been incurred in service, and are not proximately due to or the result of a service-connected disability. § § 1101, 1110, 1112, 1113, 5107 (West 1991); 38 C.F.R. § § 3.307, 3.309. 3.310 (1994). 3. Residuals of shell fragment wounds to the right fifth digit were not incurred in or aggravated by service, nor may they be presumed to have been incurred therein. 38 U.S.C.A. § § 1101, 1110, 1112, 1113, 5107 (West 1991); 38 C.F.R. § § 3.303, 3.307, 3.309 (1994). 4. Residuals of shell fragment wounds to the right lumbar spinalis are no more than 20 percent disabling according to the schedular criteria. 38 U.S.C.A. § § 1110, 5107 (West 1991); 38 C.F.R. Part 4, Codes 5320, 7804 (1994). REASONS AND BASES FOR FINDINGS AND CONCLUSION The veteran's claim has been determined to be well-grounded within the meaning of 38 U.S.C.A. 5107(a). That is, he is found to have presented a claim which is plausible. The Board is also satisfied that all relevant facts have been properly developed. It should be noted that as stated before, this case was previously remanded for further development of the issues, to include securing medical records from the veteran's private physicians. Although the appellant's representative has requested that resort be had to an independent medical expert if the benefits sought on appeal are not granted, the Board finds that the comprehensive evidence as it stands is sufficiently comprehensive and conclusive to reach an appellate determination at this time. Consequently, 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 service medical records show that the veteran sustained shrapnel wounds to the right shoulder and lumbar region in June 1944 as the result of enemy action. It was recorded that he received immediate treatment where the wounds were cleaned, injected and a dressing was applied. He was reported to be "up and about" the third post injury day and his condition was noted to be improved approximately two weeks thereafter. The veteran was subsequently transferred to the U.S. Naval Hospital for further evaluation in July 1944 where it was observed that there was there was a shallow open wound of approximately 1 x 1 1/2 inches just to the right of the midline of the back at the level of the 5th lumbar vertebra. It was noted that there was no apparent limitation of motion in the back and that there was no evidence of major vascular or nerve involvement in the wound. The record reflects that dressing changes were performed regularly and the wound was described as healing well and in a satisfactory condition. Upon examination in October 1945 for discharge from service, shell fragment wounds of the right shoulder and lumbar region were recorded. By rating action dated in January 1946, service connection was granted for multiple wounds of the right shoulder and lumbar region. The veteran was afforded a Department of Veterans Affairs (VA) examination for compensation and pension purposes in April 1948. He stated that there was pain, especially during wet weather, in the small of his back from retained embedded shrapnel , but indicated that his shoulders did not bother him at all. He indicated that he had been a police officer since March 1946 and had lost no time from work since he had been on the force. Physical examination conducted for the VA revealed healed wounds of the back of the posterior aspect of the right shoulder over the angle of the scapula and healed wound of the lumbar region just to the right of the midline at the level of the first [sic] lumbar vertebra. Motion of the right shoulder and scapula was reported to be excellent and within normal limits. The right shoulder wound measured 1/2 inch in diameter. The wound of the lumbar area measured 2 x 1 inches and was soft, movable and somewhat tender. There was a depression beneath the wound in the spinalis muscles of approximately 1/2 inch. Deep pressure on the back caused pain which was localized and not referred along the course of the lumbar nerves. Motion of the spinalis muscle was not restricted. The scar was not attached to the deeper structures. Radiological studies of the antero-posterior and lateral portions of the lumbar spine showed rotary curvature with convexity to the left. There was a transitional vertebra between the last lumbar segment and the sacrum which was partially sacralized on the left side. The lower lumbar segment disclosed congenital abnormality without evidence of arthritis. The sacroiliac joints were normal. There was no evidence of spondylolisthesis. The chest was also X-rayed and was found to have no abnormality. It was not noted that any shrapnel fragments were seen despite the fact that there a specific request on the X-ray order to observe the film for such. Pertinent examination diagnoses were of scar, shrapnel wound, right shoulder, healed, nondisabling; deformity of the spinalis muscle, right lower back manifested by loss of substance, tenderness on pressure without restriction of motion and shrapnel wound; and congenital abnormality of the lower lumbar spine with sacralization, last lumbar segment. A private medical report was received in March 1952 which related that the veteran had been seen for complaints of 'tiredness in back.' On examination, it was reported that there was tenderness to palpation of the scar over the sacrum, but that there had been no change in sensorium otherwise. A report dated in June 1985 was submitted by Dr. D. DeBord, a chiropractor, who stated that an X-ray study of the back revealed a left rotary scoliosis with ankylosis of the L5/S1 vertebral joint. It was noted that the veteran's disabilities included five per cent impairment to the left shoulder. The veteran was afforded a VA examination in September 1985. He complained of back pain. Examination of the back disclosed no muscle wasting. There was a 6-centimeter widened scar over the lumbar spine without evidence of deformity. Tenderness to palpation of the lower back was elicited. The veteran was also observed to have a 1-centimeter scar of the mid back over the lower right scapular region. There was no indication of atrophy or deformity. The VA examiner noted that X-rays of the back and right shoulder had been taken the previous July. A diagnosis of traumatic arthritis of the lumbar spine and right shoulder was rendered. In correspondence to the RO dated in May 1990, the veteran wrote that he had also sustained shrapnel injury to the right fifth digit at the same time his back and right shoulder were affected. He stated that the injury had been overlooked at that time and never reported. A private medical report was received from O. Al-Samkari, M.D. in June 1990 from an examination conducted the previous month which included electromyographic (EMG) studies. It was noted that the veteran had long-standing right shoulder and low back pain from shrapnel injury in World War II. It was reported that he had difficulty performing everyday motions such as combing his hair, washing his back, picking up things off the floor and walking short distances. On physical examination, extremity movement was limited in the right shoulder. Tenderness was elicited in the lumbar area and movement was accomplished with difficulty. It was reported that an X-ray of the lumbosacral spine showed mild diffuse degenerative changes and that shrapnel was observed over the left side of the spine. The EMG was interpreted as showing membrane instability consistent with lower motor neuron compression at the level of L5. Radiological study of the right shoulder disclosed minor degenerative changes. VA examination reports and private clinical data from Dr. Al- Samkari between January 1992 and March 1993 are of record showing treatment and evaluation for the veteran's multiple orthopedic complaints. Radiological studies of the right hand in January 1992 disclosed degenerative changes involving the distal interphalangeal joint of the 5th finder with osteophyte formation. The base of the middle phalanx on the posterior side showed a separate bone fragment which was reported to have possibly represented an old injury. Degenerative changes were also seen at the base of the first and fifth metacarpals and at their articulations with the distal carpal row. X-rays of the shoulders indicated degenerative changes which were felt to suggest adhesive capsulitis. Radiological studies of the lumbosacral spine were interpreted as showing a narrowed interspace at L5/S1 suggesting the possibility of disc disease at that level. On VA examination in September 1992, objective findings included a very small scar on the dorsum of the left fifth finger at approximately the level of the proximal interphalangeal joint, marked sclerotic curve of the spine with thoracic convexity to the left and lumbar spine convexity to the right, flaccid lumbar spine and paraspinous muscles, some atrophy of the left shoulder girdle and muscle guarding in the right shoulder. X-rays were reviewed. Pertinent diagnoses following comprehensive orthopedic evaluation of the right hand, lumbar spine and the shoulders in September 1992 were DJD of the right hand and distal fifth digit, degenerative disc disease (DDD) at L5-S1, degenerative arthritis of L5-S1 and DJD of both shoulders, right greater than left. The VA examiner opined in a March 1993 addendum to the September 1992 orthopedic evaluation report that the veteran's DJD was not related to the shrapnel wound injuries sustained in 1944. 1./2. Service Connection for DJD of the Right Shoulder/DJD of the Low Back. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by wartime service. 38 U.S.C.A. § 1110. Where a veteran served continuously for 90 days during a period of war and arthritis becomes manifest to a degree of 10 percent within one year from the 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; 38 C.F.R. § § 3.307, 3.309. The service medical records do not indicate that a diagnosis of arthritis of the right shoulder or back was made during active duty, nor were any degenerative changes shown on X-ray when he was examined for VA compensation and pension purposes in 1948. Therefore, arthritis of the right shoulder and low back may not directly or presumptively be attributable to service. 38 U.S.C.A. § § 1101, 1110, 1112, 1113; 38 C.F.R. § § 3.307, 3.309. The veteran argues, however, that the worsening conditions of the right shoulder and low back throughout the years, included embedded shrapnel, have resulted in degenerative right shoulder and low back joint process such that a direct causal relationship can be assumed. Service connection may be granted for disability which is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). Although the veteran now contends that there is a secondary relationship between DJD of the right shoulder and the degenerative processes of the low back and the service-connected muscle injury residuals, the evidence does not support this proposition. The postservice record is silent for low back or right shoulder complaints until 1948. Upon VA examination in that year, he was found to have a congenital disorder of the lower lumbar segment which was not determined to be a service- related condition. This is in the same area that his DJD is currently localized. There is no clear showing of any substantive right shoulder complaints until approximately 1990. Although traumatic arthritis of the low back and right shoulder was reported by the VA on examination in 1985, there is no indication in the record that the examiner reviewed any of the prior clinical data, nor that he ordered X-rays or even reviewed ones which had been taken the previous July (presumably by the veteran's chiropractor who did not interpret the X-rays as showing a DJD process). Although a private examiner reported in June 1990 that a metal fragment was observed on X-ray, there has not been any indication in all of the other clinical data of record that there has been any retained shrapnel in the right shoulder or low back musculature. The evidence also militates against a finding that there is any causal relationship between the service-connected right shoulder disability and DJD because the left shoulder is similarly affected by degenerative changes and other symptoms including atrophy. It should be emphasized that the record does not reflect any injury to the left shoulder region. Primarily, however, none of the appellant's private physicians has ever found that there is a relationship between his service-connected right shoulder and low back disorders and the DJD affecting those areas. Moreover, the veteran was accorded special VA orthopedic examination in 1992 upon which the examiner was specifically requested to review the record and provide an opinion as to whether or not degenerative changes of the shoulder and low back resulted from to his service-connected shrapnel wound residuals. In an addendum report dated in March 1993 the examiner noted that he had examined the veteran on two previous occasions and his diagnoses remained the same. He stated that in his opinion, DJD was not related to the veteran's injuries in 1944. In view of the fact that there is no competent evidence otherwise in the record folder which significantly counters this impression, the Board finds the VA examiner's assessment to be of substantially probative weight in reaching our determination in this matter. It should also be added that it is well established that where the determinative issue involves medical causation or a medical diagnosis, competent evidence is required to substantiate a claim. Murphy v. Derwinski, 1 Vet.App. 78, 81 (1990). While the veteran may consider that the degenerative processes of the right shoulder and low back are causally related to the respective service-connected disorders, as a lay person untrained in the field of medicine, he is not competent to provide a medical opinion as to causation in this matter. Espiritu v. Derwinski, 2 Vet.App. 492 (1992). Under these circumstances, service connection for DJD of the right shoulder and low back must be denied on the basis that no causal relationship is substantiated. 38 C.F.R. § 3.310 3. Residuals of Shell Fragment Wounds to the Right Fifth Digit. The service medical records make absolutely no mention of any shell fragment wound to the right fifth digit, nor were any complaints of such indicated by the veteran in his correspondence to the RO dated in February 1948 or when he was examined by the VA the following April. The record reflects that the first indication in the record that the veteran had sustained claimed shrapnel wound trauma to the right fifth digit appears in correspondence to the RO dated in May 1990. However, the showing of arthritis of the right fifth digit in January 1992, more than 45 years after service discharge, is far too remote from service to be directly or presumptively be attributable to service. 38 U.S.C.A. § § 1101, 1110, 1112, 1113; 38 C.F.R. § § 3.303, 3.307, 3.309. There is absolutely no indication of chronicity of inservice right fifth digit symptomatology to which the current disorder may reasonably be attributed. 38 C.F.R. § 3.303. In the absence of any clinical evidence in service or for many years thereafter of a right fifth digit disorder, service connection for such must be denied. The Board would be resorting to sheer speculation in this instance by finding that current right fifth digit disability is otherwise of service onset. 4. Increased Rating for Residuals of Shell Fragment Wounds to the Right Lumbar Spinalis. Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. A 20 percent evaluation is warranted for moderate injury to Muscle Group XX (spinal muscles of the lumbar region). A 40 percent evaluation requires moderately severe injury. A 10 percent evaluation is warranted for superficial scars which are tender and painful on objective demonstration. 38 C.F.R. Part 4, Code 7804. Scars may be evaluated on the basis of any related limitation of function of the body part which they affect. 38 C.F.R. Part 4, code 7805. The veteran was most recently afforded comprehensive evaluation of the service-connected low back muscle injury residuals by the VA in January and September 1992. Physical examination on those occasions disclosed a 5-centimeter by 1-centimeter scar in the lumbar area. It was reported that the appellant claimed the scar was tender. There was no indentation of the scar. As noted previously, there was convexity of the thoracic spine to the left with lumbar spine convexity to the right. There was increased thoracic kyphosis high in the thoracic spine. There was minimal increase in the lumbar lordosis of approximately 15 degrees. It was reported that flexion could be achieved while keeping the same amount of lordosis in the lower back. The veteran was able to perform lateral motion of the left almost totally but complained of pain on lateral motion to the right. He complained of pain in the area of the shell fragment wounds. Rotation was to approximately five degrees on the right with complaints of pain and to 10-12 degrees on the left. The paraspinal and lumbar muscles were observed to be flaccid. He did not complain of pain radiating into the lower extremities, but did note that he had discomfort with straight leg raising. The veteran claimed to have less feeling in his right calf, laterally. The sensory examination was found to be within normal limits. At the outset, it should be pointed out that the service records and the post military period show no overwhelming injury occasioned by the lumbar shrapnel wound fragments. Indeed the veteran apparently did not seek medical attention for 'tiredness' in his back for almost three years after service discharge. It was felt at that time that there was probable periostitis beneath the scar secondary to the wound and some spinalis muscle deformity was noted. However, the final diagnoses did not included periostitis. Moreover, as noted before, he was also discovered to have a congenital process of the last lumbar segment; a disorder which has not determined to be service- connected. The record reflects that the veteran has maintained over the years that the shrapnel wound scar has been tender to palpation and recent examinations have remained consistent. However, while Dr. Al-Samkari wrote in June 1990 that the veteran had a long- standing history of low back pain due to shrapnel injury in service, he ordered an EMG at that time which disclosed findings which were felt to represent lower motor neuron compression at the level of L5, the last lumbar segment. This was not attributed to any shell fragment wound residuals. Moreover, in his subsequent medical report of June 1992, he repeated the findings of a prior VA examination showing degenerative changes and disc space narrowing at the L5/S1 level. It must be reiterated that service-connection is not in effect for degenerative changes and disc space narrowing of the lumbosacral spine. Recent VA examinations with respect to the veteran's lumbar spine have indicated that he continues to complain of tenderness at the site of the shrapnel wound. However, the only consistent diagnoses which have been rendered with respect to that region have been DJD and DDD; both of which are nonservice-connected disorders. The Board thus finds that only a part of current overall low back symptomatology is attributable to the service- connected shrapnel wound residuals, and to conclude otherwise would be speculative in view of the substantial nonservice- connected low back pathology. It is found that the veteran's complaints of pain and tenderness in the area of the scar are adequately contemplated by the 20 percent disability evaluation in effect for injury to Muscle Group XX which already encompasses moderate impairment. Absent a finding that there is more severe disability arising from the service-connected low back injury residuals, an evaluation in excess of 20 percent is not warranted. The Board also finds that the evidence does not suggest that the service connected residuals of shell fragment wound injury to the low back (Muscle Group XX) presents such an exceptional or unusual disability picture as to render impractical the application of the regular schedular standards so as to warrant the assignment of an extraschedular evaluation under 38 C.F.R. § 3.321(b)(1). Consideration has also been given to the potential application of the various provisions of 38 C.F.R. Parts 3 and 4, whether or not they were raised by the appellant, as required by Schafrath v. Derwinski, 1 Vet.App. 589 (1991). We find that those sections do not provide a basis upon which to assign a higher disability evaluation. The Board has also considered the doctrine of benefit of the doubt, but finds that the record does not provide an approximate balance of negative and positive evidence on the merits. Therefore, a reasonable basis for a grant of the benefits sought on appeal is not identified at this time. ORDER 1. Degenerative joint disease of the right shoulder is denied. 2. Degenerative joint disease of the low back is denied. 3. Residuals of shell fragment wounds to the right fifth digit is denied. 4. An increased rating for residuals of shell fragment wounds to the right lumbar spinalis (Muscle Group XX) denied. ALBERT D. TUTERA 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.