Citation NR: 9703753 Decision Date: 02/06/97 Archive Date: 02/18/97 DOCKET NO. 94-27 903 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Huntington, West Virginia THE ISSUES 1. Entitlement to service connection for Non-Hodgkin’s lymphoma, seminoma of the left testicle and recurrent skin rashes as secondary Agent Orange or other herbicide exposure. 2. Entitlement to service connection for lumbar radiculopathy as secondary to service-connected disabilities. 3. Entitlement to service connection for traumatic arthritis of multiple joints affected by shell fragment wounds other than the right shoulder and lower spine as secondary to service-connected disabilities. 4. Entitlement to an increased evaluation for shell fragment wound residuals of the right forearm, currently separately evaluated as 30 percent disabling for neurologic (ulnar nerve) involvement and 10 percent for muscle damage. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Mark J. Swiatek, Counsel INTRODUCTION The veteran served on active duty from June 1966 to July 1969. This matter comes before the Board of Veterans' Appeals (Board) on appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Huntington, West Virginia. Regarding service connection for claimed residuals of herbicide (Agent Orange) exposure, a review of the adjudication history shows that recently law and regulations have been provided to allow for consideration of service connection for seminoma of the left testicle on a basis unrelated such exposure. As for arthritis of multiple joints, it was clarified at the hearing that service connection was sought on a secondary basis for traumatic arthritis of joints affected by shell fragment wounds (Transcript (T) at 2-4, 14). The issues of service connection for lumbar radiculopathy on a secondary basis, and lumbar spine arthritis, and an increased evaluation for shell fragment wound residuals of the right forearm are addressed in the remand portion of this decision. CONTENTIONS OF APPELLANT ON APPEAL The veteran has specifically asserted that he has Non- Hodgkin’s lymphoma (NHL), and that his seminoma and recurrent skin rashes are secondary to Agent Orange or other herbicide exposure during service in Vietnam. He contends that he has arthritis of the joints affected by shell fragment wounds in service. DECISION OF THE BOARD The Board, in accordance with the provisions of 38 U.S.C.A. § 7104 (West 1991 & Supp. 1996), 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 claims for service connection for NHL, seminoma of the left testicle and recurrent skin rashes as secondary to Agent Orange or other herbicide exposure, and with respect to seminoma of the left testicle, on a basis unrelated to such exposure are not well grounded. It is the decision of the Board that the claim for service connection for traumatic arthritis of joints affected by shell fragment wounds other than the right shoulder and lower spine on a secondary basis is not well grounded. It is also the decision of the Board that the record supports a grant of entitlement to service connection for arthritis of the right shoulder. FINDINGS OF FACT 1. The claims for service connection for NHL, seminoma of the left testicle and recurrent skin rashes as secondary to Agent Orange or other herbicide exposure, and with respect to seminoma of the left testicle, on a basis unrelated to such exposure are not supported by cognizable evidence showing that the claims are plausible or capable of substantiation. 2. The claims for service connection for arthritis of joints affected by shell fragment wounds other than the right shoulder and lower spine on a secondary basis are not supported by cognizable evidence showing that the claims are plausible or capable of substantiation. 3. It is probable that the veteran has arthritis of the right shoulder linked to residuals of shell fragment wounds of the right shoulder in service. CONCLUSIONS OF LAW 1. The claims for service connection for NHL, seminoma of the left testicle and recurrent skin rashes as secondary to Agent Orange or other herbicide exposure, and with respect to seminoma of the left testicle, on a basis unrelated to such exposure are not well grounded. 38 U.S.C.A. § 5107 (West 1991 & Supp. 1996). 2. The claims for service connection for arthritis of joints affected by shell fragment wounds other than the right shoulder and lower spine as secondary to service-connected disabilities are not well grounded. 38 U.S.C.A. § 5107. 3. Arthritis of the right shoulder is causally related to service-connected shell fragment wounds sustained in service. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.310(a) (1996). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Entitlement to service connection for NHL, seminoma of the left testicle and recurrent skin rashes as secondary to Agent Orange or other herbicide exposure, and with respect to seminoma of the left testicle, on a basis unrelated to such exposure.. Under applicable law, a veteran is entitled to service connection for a disease or injury incurred or aggravated while in service. 38 U.S.C.A. § 1110 (West 1991). If a veteran was exposed to an herbicide agent during active military, naval, or air service, the following diseases shall be service-connected...even though there is no record of such diseases during service...chloracne or other acneform disease consistent with chloracne, Hodgkin’s disease, multiple myeloma, non-Hodgkin’s lymphoma, porphyria cutanea tarda, prostate cancer, acute and subacute peripheral neuropathy, respiratory cancers (cancer of the lung, bronchus, larynx, or trachea), or soft-tissue sarcoma (other than osteosarcoma, chondrosarcoma, Kaposi’s sarcoma, or mesothelioma). 38 C.F.R. § 3.309(e). The Board notes that the veteran trained as a rifleman and served a tour of duty with the United States Marine Corps in Vietnam. Exposure of the appellant to Agent Orange or other herbicide exposure is conceded in view of such service. Regarding entitlement to service connection for NHL, seminoma of the left testicle and recurrent skin rashes claimed as secondary to Agent Orange or other herbicide exposure, and with respect to seminoma of the left testicle, on a basis unrelated to such exposure, the threshold consideration that must be made is whether the appellant has submitted evidence to justify a belief that such claims are well grounded. Basic requirements for a well-grounded claim consist of competent evidence of a current disability, evidence of incurrence or aggravation of a disease or injury in service and evidence of a nexus between the in-service injury or disease and current disability. Caluza v. Brown, 7 Vet.App. 498, 506 (1995). If a claim is well grounded, VA has the duty to assist in development of the claim. Murphy v. Derwinski, 1 Vet.App. 78 (1990). The Board finds that the threshold requirement of well groundedness has not been met and that no further duty to assist exists. Beausoleil v. Brown, 8 Vet.App. 459 (1996); Robinette v. Brown, 8 Vet.App. 69 (1995). VA has not been placed on notice of the likely existence of any competent medical evidence that would, if true, be relevant and necessary for a full, fair adjudication of the claim. Initially, the Board notes that service medical records are not on file. However, the current record is deemed sufficient for an informed determination of the issues discussed herein. The Board has reviewed the medical evidence assembled with the claim, and must point out that it does not reveal any reference to a seminoma until many years after service. VA medical records report complaints related to Agent Orange exposure in 1980, with a reference to seminoma in 1978 and a notation that the veteran reported he did not have a skin rash in service. The records reflect that seminoma of the left testis was surgically treated in early 1979, and at the time, the veteran reportedly had a several month history of symptoms. Postoperative radiation therapy was instituted for possible metastatic disease of several lymph nodes. There is no indication from the record that NHL was suspected then and it has not been reported at any time. The record does not include any competent medical evidence linking the seminoma to service either directly or presumptively on a basis unrelated to herbicide (Agent Orange) exposure. With regard to the relationship of the claimed disorders to exposure to Agent Orange, the Board observes that seminoma or a skin disorder other than chloracne, which includes acneform disease consistent with chloracne, has not been recognized as associated with the herbicide (Agent Orange) exposure under 38 C.F.R. § 3.309(e) (1995) currently. Nor has the veteran produced any competent medical evidence supporting a contention of a herbicide-related etiology. In fact, there is currently no diagnosis for the complained of recurrent skin rashes (T2). The Board has not ignored the June 1970 VA examination finding of “old acne scars of the trunk”. However, at the time no relevant history was given by the veteran to indicate any skin complaints related to service. Further, the history reported to a VA examiner in 1980 specifically for herbicide exposure evaluation was of no skin rash in service. No active acne was observed on the 1970 examination to consider possible application of 38 C.F.R. § 3.307(a)(6)(ii). In reaching its determination, the Board has carefully evaluated the testimony presented by the veteran at the RO hearing held in August 1994. This testimony was essentially consistent with the contentions presented on appeal and was reviewed its entirety in light of the evidentiary record. II. Entitlement to service connection for traumatic arthritis of multiple joints affected by shell fragment wounds other than the right shoulder and lower spine as secondary to service-connected disabilities. The essential elements to well ground a claim are applicable to claims for secondary service connection. Epps v. Brown, 9 Vet.App. 341 (1996); Reiber v. Brown, 7 Vet.App. 513 (1995). In light of the clarification of the claim to traumatic arthritis to joints affected by shell fragment wounds, the Board finds it reasonable to rely upon an August 1970 RO decision reporting of service medical record data identifying the joints affected as well as contemporaneous VA examination. The records referred to the left elbow, left popliteal area, left calf, sacral area, right buttock, left back, chest wall, right thigh and left arm. Although an October 1980 VA orthopedic clinic examiner opined that the veteran “may be having a little bit of early arthritis,” regarding complaints of “popping noises and pains” of the elbows, shoulders and wrists, there was no X- ray evidence of arthritis then or on earlier VA and private records on file. A VA examiner in 1994 reported normal X-ray previously of the shoulders, elbows and knees and currently of the right hip and right knee. In early 1995, another VA examiner reported radiographically normal the right hand and forearm, with arthritis confirmed in no joint evaluated other than the right shoulder. The right forearm was also unremarkable for arthritis. Although the veteran in May 1995 stated he received medication for arthritis from a VA physician, the examiner mentioned has recently not confirmed arthritis other than in the lumbar spine. The absence of competent medical evidence confirming currently arthritis in a joint or joint group affected by shell fragment wounds other than the lumbar spine or right shoulder fails to satisfy a critical element in the well grounded analysis. Under the legal precedent cited above, the claims for service connection cannot be considered well grounded and, therefore, must be denied. Edenfield v. Brown, 8 Vet.App. 384 (1995). In reaching its determination the Board carefully evaluated the testimony presented by the claimant before a hearing officer at an RO hearing held in August 1994. The testimony was essentially a reiteration of the contentions presented on appeal. The appellant’s testimony was evaluated in light of the evidentiary record. Although the Board considered and denied the above claims on a ground different from that of the RO, which denied the claims on the merits, the appellant has not been prejudiced by the decision. This is because in assuming that the claims were well grounded, the RO accorded the appellant greater consideration than his claims in fat warranted under the circumstances. See Bernard v. Brown, 4 Vet.App. 384, 392-94 (1993). In light of the implausibility of the appellant’s claims and the failure to meet his initial burden in the adjudication process, the Board concludes that he has not been prejudiced by the decision to deny his above appeals. III. Entitlement to service connection for traumatic arthritis of the right shoulder as secondary to service connected disabilities. With respect to the right shoulder, the Board has previously noted the absence of service medical records. However, it must be observed that at the initial RO rating in 1970, a reference was made to service medical records that confirmed puncture wounds about the right shoulder, “approximately five in number,” in addition to other wounds the veteran had sustained a result of a land mine explosion. August 1973 and October 1980 VA clinical records mention right shoulder complaints. More recently in 1993 and thereafter, in early 1995, an examiner reported that X-ray of the right shoulder revealed mild degenerative changes of the right shoulder. The diagnosis was pertinent for fragment wound residuals of the right arm with degenerative changes and limitation of motion of the right shoulder. The Board finds this evidence in favor of service connection for arthritis of the right shoulder on a secondary basis. O’Hare v. Derwinski, 1 Vet.App. 365 (1991). In reaching this determination, the Board notes that the appellant’s testimony presented at an RO hearing before a hearing officer in August 1994 was carefully evaluated in light of the evidentiary record as a whole. ORDER The veteran not having submitted well grounded claims of entitlement to service connection for NHL, seminoma of the left testicle and recurrent skin rashes as secondary to Agent Orange or other herbicide exposures, and with respect to seminoma of the left testicle, on a basis unrelated to such exposure, the claims are denied. The veteran not having submitted evidence of a well grounded claim of service connection for traumatic arthritis of multiple joints other than the right shoulder and lower spine as secondary to service-connected disabilities, the claim is denied. Entitlement to service connection for arthritis of the right shoulder is granted. REMAND The veteran asserts, in essence, that the shell fragment wound residuals of the right forearm are more disabling than reflected in the current disability evaluation. It is contended, in essence, that the veteran should be reexamined by another physician. Upon review of the 1994 orthopedic examination reports and hearing testimony, the Board is inclined to agree with the need for further examination. The Board finds that the examiner did not adequately address the question posed by the RO regarding the likely etiology for the veteran’s lumbar spine arthritis while expounding upon the etiology of the veteran’s lumbar radiculopathy on both examinations. The Board must point out that in 1973, the veteran was granted an increased rating to the current 20 percent for lower spine shell fragment wound residuals principally on the basis of lumbar spine muscle spasm which is compatible with the rating scheme found at Diagnostic Code 5295. Therein, degenerative changes and disc space narrowing are listed elements for the highest evaluation of 40 percent. Further, consideration must be given to the possibility of secondary service connection on the basis of aggravation in light of the principles established in Allen v. Brown, 7 Vet.App. 439 (1995). A claimant is not required to specifically enumerate all bases for entitlement. See, for example, Akles v. Derwinski, 1 Vet.App. 118, 121 (1991). The Board is also aware of the veteran’s recent surgical treatment for the lumbar spine mentioned by the VA examiner. Unfortunately the record of treatment which would be relevant to a fair evaluation of the claim has not been obtained. Robinette, supra. Since the most recent VA examination of the right forearm wound residuals, the U.S. Court of Veterans Appeals (Court) has held that, when a diagnostic code provides for compensation based solely upon limitation of motion, the provisions of 38 C.F.R. §§ 4.40 and 4.45 (1996) must also be considered, and that examinations upon which the rating decisions are based must adequately portray the extent of functional loss due to pain on use or due to flare-ups. DeLuca v. Brown, 8 Vet. App. 202, 206 (1995) (emphasis added). The rating scheme applicable to this case of shell fragment wound residuals considers range of motion and other factors. A rating must be coordinated with the impairment of function. 38 C.F.R. § 4.21. Accordingly, the Board finds that the Court’s decision in DeLuca is applicable to the case at hand. See also Johnson v. Brown, 9 Vet.App. 7 (1996). Such evaluation appears necessary to accurately assess the disability under 38 C.F.R. §§ 4.40. 4.45. In the instant case, the veteran has complained of increased neurological symptoms. Notwithstanding the veteran’s complaints, no examiner has adequately addressed the veteran’s functional loss due to pain on use or due to flare- ups. In addition, the Board observes that the most recent statement of the extent of muscle group involvement appears on a 1973 VA examination. In light of DeLuca, it is the opinion of the Board that a contemporaneous and thorough VA examination would be of assistance to the Board in clarifying the nature of the veteran’s service-connected right forearm disability, and would be instructive with regard to the appropriate disposition of the issue submitted for appellate consideration. Littke v. Derwinski, 1 Vet.App. 90 (1990). Therefore, pursuant to VA’s duty to assist the appellant in the development of facts pertinent to his claim under 38 U.S.C.A. § 5107(a); 38 C.F.R. § 3.103(a) (1996), the Board is deferring adjudication of the issues of entitlement to service connection for lumbar radiculopathy as secondary to service-connected disabilities and an increased evaluation for shell fragment wound residuals of the right forearm pending a remand of the case to the RO for further development as follows: 1. The RO should request the veteran to identify the names, addresses, and approximate dates of treatment for all health care providers, VA or private, inpatient or outpatient, who may possess additional records pertinent to his claim for an increased rating for shell fragment wound residuals of the right forearm and service connection for lumbar arthritis and radiculopathy, since the date of the most recent treatment records that are already of record. After securing any necessary authorization from the veteran, the RO should attempt to obtain copies of those treatment records identified by the veteran, to include a complete record of VA treatment to the present time and all records relating to his lumbar spine surgery reported by a VA examiner in November 1994. 2. The RO should arrange for a VA examination by an orthopedist and neurologist, preferably who have not previously examined him, to determine the nature and severity of the veteran’s right forearm shell fragment wound residuals and the nature, extent and probable etiology of any lumbar spine arthritis and lumbar radiculopathy found. The examinations are to be conducted in accordance with the diagnostic procedures outlined in the VA Physician’s Guide for Disability Evaluation Examinations. All indicated testing should be conducted. The claims file and a copy of this remand are to be made available to and reviewed by the examiners prior to conduction and completion of the examinations. The examiners should record pertinent medical complaints, symptoms, and clinical findings, including range of motion of the right upper extremity joints affected in degrees of arc with an explanation as to what is the normal range of motion, the extent of any instability, and pain on use, and comment on the extent of the functional limitations caused by the right forearm disability. It is requested that the examiners provide explicit responses to the following questions: (a) Does the service-connected left knee disability from shell fragment wounds cause weakened movement, excess fatigability, and incoordination, and if so, can the examiners comment on the severity of these manifestations and on the ability of the veteran to perform average employment in a civil occupation? If the severity of these manifestations cannot be quantified, the examiners should so indicate. (b) With respect to the subjective complaints of pain or numbness, the examiners are requested to specifically comment on whether pain is visibly manifested on movement of the knee, and the presence and degree of, or absence of, muscle atrophy attributable to the service-connected right forearm disability, or the presence or absence of any other objective manifestation that would demonstrate disuse or functional impairment due to pain attributable to the service-connected right forearm disability. The examiners should carefully elicit all of the veteran’s subjective complaints concerning his right forearm disorder. The examiners should offer opinions as to whether there is adequate pathology present to support the level of each of the veteran’s subjective complaints, including pain and numbness. The examiners should identify all muscle groups involved. 3. With respect to lumbar spine arthritis and lumbar radiculopathy, the examiners should provide an opinion regarding the following questions: (1) did the service- connected lower back shell fragment wound residuals cause any lumbar spine arthritis or radiculopathy found; or (2) did the service- connected disability of the spine "aggravate" any nonservice-connected disability of the lower spine. The examiners should state the relative contribution, if any, of the service-connected spine disability to the nonservice-connected disabilities found in percentage terms, if possible. The rationale for all conclusions and opinions expressed should be provided. Any consultations with other specialists deemed necessary for a comprehensive evaluation should be obtained. 4. Thereafter, the RO should review the claims file to ensure that all of the foregoing requested development has been completed in its entirety. In particular, the RO should review the requested examinations and required opinions to ensure that they are in complete compliance with the directives of this remand and if they are not, the RO should implement corrective procedures. 5. After undertaking any development deemed appropriate in addition to that requested above, the RO should readjudicate the issue sof entitlement to service connection for lumbar radiculopathy as secondary to service- connected disabilities and increased evaluations for shell fragment wound residuals of the right forearm. With respect to the right forearm disability at issue, consideration should be accorded to whether 38 C.F.R. §§ 4.40, 4.45 and 4.59 apply, and if so, whether they provide a basis for any change in the award of compensation benefits. The RO should also document consideration of the provisions of 38 C.F.R. § 3.321(b)(1), in accordance with Floyd v. Brown, 9 Vet.App. 88 (1996) and VAOPGCPREC (O.G.C. Prec. 6-96). 6-96 If the benefits requested on appeal are not granted to the veteran’s satisfaction, the RO should issue a supplemental statement of the case. A reasonable period of time for a response should be afforded. Thereafter, the case should be returned to the Board for final appellate review, if otherwise in order. By this remand, the Board intimates no opinion as to any final outcome warranted. No action is required of the veteran until he is notified by the RO. RONALD R. BOSCH Acting Member, Board of Veterans' Appeals The Board of Veterans' Appeals Administrative Procedures Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, 741 (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 & Supp. 1996), 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, 102 Stat. 4105, 4122 (1988). The date that appears on the face of this decision constitutes the date of mailing and the copy of this decision that you have received is your notice of the action taken on your appeal by the Board of Veterans’ Appeals. Appellate rights do not attach to those issues addressed in the remand portion of the Board’s decision, because a 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) (1996). - 2 -