Citation Nr: 0200721 Decision Date: 01/18/02 Archive Date: 01/25/02 DOCKET NO. 94-18 318 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUES 1. Entitlement to service connection for a right shoulder disability. 2. Entitlement to service connection for a right elbow disability. 3. Entitlement to service connection for a disability of the right hand. REPRESENTATION Appellant represented by: Jeany C. Mark, Attorney WITNESSES AT HEARINGS ON APPEAL The veteran and his wife ATTORNEY FOR THE BOARD R. L. Shaw, Counsel INTRODUCTION The veteran had active military service from June 1953 to May 1955. This matter is before the Board of Veterans' Appeals (Board) for further proceedings pursuant to a December 2000 order by the United States Court of Appeals for Veterans Claims (Court) which vacated a February 2000 Board decision that denied the veteran's appeal for service connection for disability of the right elbow, right shoulder, and right hand. In issuing the order, the Court granted a Joint Motion for Remand filed by the veteran (appellant) and the Secretary for Veterans Affairs. The veteran's original appeal to the Board was from rating decisions by the Detroit, Michigan, Regional Office (RO) of the Department of Veterans Affairs (VA) in June 1993 and June 1995 which denied service connection for disability of the right shoulder, right elbow and disability of the right hand. In October 1996 the Board issued a decision denying each of the issues before the Board. That decision was vacated because the veteran had previously filed a request for a hearing before the Board in conjunction with his appeal. A hearing before the Board was held in June 1997 pursuant to his request. The Board remanded the appeal in July 1997 for additional evidentiary development and readjudication, including consideration of the question of whether the disabilities for which service connection was sought were aggravated by his service connected status post fusion of the right wrist. See Allen v. Brown, 7 Vet. App. 439 (1995). The RO confirmed its prior denial as to each issue in April 1999. FINDINGS OF FACT 1. Service connection is in effect for status post fusion of the right wrist, evaluated as 40 percent disabling from May 1993. 2. There is a reasonable probability that there is a causal nexus between the veteran's service-connected right wrist fusion and disability of the right shoulder diagnosed as osteoarthritis and rotator cuff tendinitis. 3. There is a reasonable probability that there is a causal nexus between the veteran's service-connected right wrist fusion and disability of the right elbow which has been diagnosed as osteoarthritis and ulnar nerve entrapment. 4. There is a reasonable probability that there is a causal nexus between the veteran's service-connected right wrist fusion and disability of the right hand diagnosed as osteoarthritis of the carpal bones. CONCLUSIONS OF LAW 1. Service connection for disability of the right shoulder is in order because it is probable that it is secondary to the veteran's service-connected right wrist disability. 38 C.F.R. § 3.310(a) (2001). 2. Service connection for disability of the right elbow is in order because it is probable that it is secondary to the veteran's service-connected right wrist disability. 38 C.F.R. § 3.310(a) (2001). 3. Service connection for disability of the right hand is in order because it is probable that it is secondary to the veteran's service-connected right wrist disability. 38 C.F.R. § 3.310(a) (2001). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Factual Background The veteran filed his original application for VA compensation in March 1957. The disability for which service connection was claimed was a fractured wrist. Service department medical records contain no reference to complaints or findings of abnormality of the right elbow, right shoulder or right hand, and none were recorded on examination for separation. With respect to the right wrist, service medical records show that on examination for induction, the veteran reported having fractured his right wrist in 1951. X-rays taken in June 1953 showed an ununited fracture of the proximal pole of the carpo-navicular bone. In January 1954 the veteran sustained another fracture of the right navicular bone when he slipped and fell while playing basketball. Initial treatment consisted of a short arm plaster cast. In April 1954 the veteran underwent surgery consisting of complete excision of the distal fragment of the fractured right navicular bone. Statements dated in April 1957 from D. L. Ludwig, D.O., report that the veteran had enlargement of the right wrist as well as pain on use. There was a 30 percent limitation of motion of the wrist. The veteran underwent a VA examination in May 1957. There were no complaints or findings pertaining to the right elbow, shoulder or hand. Examination of the right wrist showed a well-healed surgical scar in the navicular area and limitation of dorsiflexion to 45 degrees. Examination was otherwise normal. X-rays showed healed fractures of the adjacent portions of the navicular and lunate bones and an ununited fragment on the dorsal surface. There were post- traumatic arthritic changes at the carpo-radial articulation. By a rating decision of May 1957, the RO granted service connection for traumatic arthritis of the right wrist and assigned a 10 percent rating from March 1957. In February 1993 the veteran requested an increased rating for his wrist disability and asked that service connection be granted for arthritis in his right elbow and right shoulder. Medical records from T. D. Mangell, M.D., dated in January and February 1993 are of record. The veteran was evaluated in January 1993 for disability of the right wrist. Examination also showed good motion of the shoulder and elbow. In February 1993 the veteran underwent an arthrodesis of the right radial carpal joint . for traumatic arthritis of the right wrist. The veteran underwent a VA examination in July 1993. He related that he used a rubber mallet or a hammer a great deal in his job as a glass worker and he had to use his right shoulder more because he could not use his right wrist due to the surgery. He complained of trouble hammering because there was no motion of the wrist and he could use only the elbow and shoulder. X-rays showed minimal degenerative joint disease of the right elbow and minimal hypertrophic marginal lipping of the glenoid fossa of the right shoulder with degenerative joint disease of the acromioclavicular joint. The diagnoses were osteoarthritis of the right shoulder, bone cysts of the proximal humerus, osteoarthritis of the right elbow, status post fusion of the right wrist and tremor of the right thumb of undetermined origin. Additional medical reports from Dr. Mangell dated from February 1994 through April 1995 describe follow-up care for the wrist. In February 1994 the veteran underwent removal of a plate in the right wrist. The fusion of the wrist was excellent. In April 1995 he reported that he had occasional shocking-type pain while holding objects he was working with. There was tenderness over the ulnar neurovascular bundle of the right thumb. The physician suspected that this was probably related to his changed position due to the wrist fusion. At a VA examination in June 1995 by Dr. M., the veteran complained of inability to hold a tool with his right hand due to occasional sharp pain in the thumb and also complained of pain in the right elbow and shoulder. Examination of the right shoulder showed no deformity or swelling but there was some tenderness over the acromioclavicular joint. The right elbow looked normal and had a full range of motion and power. Examination of the right hand showed evidence of surgery and the wrist was stiff with no extension or flexion of the wrist due to surgical fusion. There was minimal motion of the distal part of the hand. The thumb and the rest of the fingers were free to move and there was no significant pain. The examiner concluded that the sharp pain in the right thumb was related to use of the hand and not necessarily secondary to wrist fusion. He stated that the degenerative arthritis of the acromioclavicular joint was not related to the wrist fusion and that the right elbow was essentially normal. The veteran underwent a VA examination in December 1995 by Dr. McD. He related that since the wrist fusion he had had no pain in the wrist but had pain in the hand that shot into the right thumb and made it hazardous to handle large pieces of glass at work. Nerve conduction studies and electromyogram studies of the right upper extremity were consistent with ulnar nerve entrapment at the right elbow. The clinical impressions included Dupuytren's contracture (palmar fibrosis) of the right palm which was not related to the right wrist fusion, probable fibrosis of the flexor tendon and tendon sheath of the right thumb which was not related to the wrist fusion, and ulnar nerve entrapment. In September 1997 the veteran submitted additional medical evidence which included medical records dated in April 1992 and July 1992 from J. D. Shapiro, M.D. In addition to complaints related to the right wrist, the reports describe mild right elbow pain and some pain in the anterior aspect of the right shoulder. The clinical impressions in April 1992 included rotator cuff tendinitis with calcific tendinitis and acromioclavicular arthritis of the right shoulder, and lateral epicondylitis of the right elbow. The veteran underwent a VA examination in December 1997, again by Dr. M. He complained of pain and aching in the right shoulder and right elbow, especially after using the arm. He attributed the pain to having to turn his hand and arm in a different way due to fusion of the wrist. X-rays of the right shoulder showed arthritis of the acromioclavicular joint but were otherwise unremarkable. The right elbow was normal without evidence of arthritis. The diagnoses included normal right elbow without evidence of tendinitis or arthritis; acromioclavicular joint arthritis, symptomatic with shoulder motion; and normal right hand. The examiner expressed the opinion that the arthritis of the acromioclavicular joint was not secondary to the service- connected right wrist disability. He did not believe that there was "any service connection of his elbow joint with his wrist and hand." He noted that an EMG report was negative for nerve entrapment in the hand and that hand function, including the fingers and thumb, seemed to be within normal limits. In September 1998, Dr. M. provided an additional medical opinion wherein he stated that the changes in the acromioclavicular joint were consistent with degenerative pathology for a 64-year-old person. He reasoned that the baseline manifestation was acromioclavicular joint arthritis which by its own progressive nature could increase in severity with the passage of time without any influence or aggravation from the fused right wrist joint. In Dr. M.'s opinion, it was difficult to speculate as to the degree of change in the joint which would have been present years earlier, but, in any case, it was his opinion that the condition was more pronounced than it would have been several years earlier. Dr. M. concluded that the baseline manifestation would be arthritis of the acromioclavicular joint which progressed on its own merit and would be present in spite of the wrist fusion. Following the December 2000 Court order the veteran's representative submitted a May 2001 statement from C. N. Bash, M.D., together with a written waiver of his right to initial RO consideration of this additional item of evidence. In the report, Dr. Bash sets forth a detailed summary of medical findings from the record that he deemed important and set forth the opinion that the veteran had pathology of the right elbow, shoulder, and right thumb, which was secondary to his service-connected wrist injury. The report contains the following passage: It is my opinion that it is likely that this patient's chronically dysfunctional right wrist, secondary to fracture of the navicular bone, caused him to abnormally use his right thumb, wrist, elbow and shoulder in his manual labor job in order to compensate for his dysfunctional wrist. It is my opinion that this patient's right wrist injury caused abnormal force to be placed on his right wrist and shoulder resulting in his current shoulder and elbow disabilities. This opinion is in agreement with the opinion of Drs. Estrine and Mangell... It is also clear from the record that this patient has developed additional disabilities in his right thumb. It is also my opinion that this patient's right thumb problems (pain, decreased grip strength, decreased range of motion as documented by Drs. Mayer and Mangell in 1993 and 1995) and X-ray degenerative changes are all secondary manifestations of his service-connected right wrist and subsequent fusion. The thumb and wrist work in concert to grasp objects and since this patient's wrist is abnormal he has placed abnormal forces on his right thumb which has resulted in advanced osteoarthritis. Dr. Bash disputed the opinion by Dr. M. that pathology of the veteran's right shoulder was not related to the right wrist and would be present in spite of the wrist. He also noted that Dr. M. had not identified right shoulder impingement syndrome, referred to the degenerative spurs in the right elbow or mentioned thumb pathology. He noted that the veteran's arthritis was all located on the right side. II. Analysis Service connection may be established for disability incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110 (wartime), 1131 (peacetime) (West 1991). Alternatively, service connection may be established on a secondary basis for a disability that is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a) (2001); see also Harder v. Brown, 5 Vet. App. 183, 187 (1993). In addition service connection may be granted for that degree of aggravation of a non-service connected disability which is proximately due to a service-connected disability. 38 C.F.R. § 3.310(a) (2001); Allen v. Brown, 7 Vet. App. 439 (1995) (en banc), reconciling Leopoldo v. Brown, 4 Vet. App. 216 (1993) and Tobin v. Derwinski, 2 Vet. App. 34 (1991). In Allen, the United States Court of Appeals for Veterans Claims (the Court) held that the term "disability" for service connection purposes "refers to impairment of earning capacity, and that such definition mandates that any additional impairment of earning capacity resulting from an already service-connected condition, regardless of whether or not the additional impairment is itself a separate disease or injury caused by the service- connected condition, shall be compensated." Allen, at 448 (emphasis as in original). As an initial matter, during the pendency of this appeal, the Veterans Claims Assistance Act of 2000 (the VCAA) was enacted. In general, the VCAA provides that VA shall make reasonable efforts to assist a claimant in obtaining evidence necessary to substantiate the claimant's claim for a benefit under a law administered by the Secretary of Veterans Affairs, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. VCAA, Pub. L. No. 106-475, § 3(a), 114 Stat. 2096, 2098 (2000) (codified at 38 U.S.C.A. § 5103A). VA issued regulations to implement the VCAA in August 2001. See 66 Fed. Reg. 45,620 (Aug. 29, 2001) (now codified at 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a)). The VCAA and its implementing regulations essentially provide that the VA will assist a claimant in obtaining evidence necessary to substantiate a claim but is not required to provide assistance to a claimant if there is no reasonable possibility that such assistance would aid in substantiating the claim and also includes new notification provisions. Specifically, the VCAA requires VA to notify the claimant and the claimant's representative, if any, of any information, and any medical or lay evidence, not previously provided to the Secretary that is necessary to substantiate the claim. As part of the notice, the VA is to specifically inform the claimant and the claimant's representative, if any, of which portion, if any, of the evidence is to be provided by the claimant and which part, if any, the VA will attempt to obtain on behalf of the claimant. The record reflects that the veteran has been informed of the various legal criteria that apply in this case. In addition, the RO has made all reasonable efforts to assist the veteran in obtaining evidence necessary to substantiate his claim. This case was remanded by the Board in July 1997. Numerous medical opinions are or record and it is recognized that the medical issues in this case are complex and controversial and have been subject to different medical opinions and conclusions. The veteran and his representative have pointed to no additional existing records which would be pertinent to the issues currently under consideration. The veteran and his attorney have been accorded ample opportunity to present evidence and argument in support of his claim. Following the December 2000 Court order they submitted a comprehensive medical opinion from Dr. Bash. In addition, the veteran has testified at VA hearings both at the RO and at the Board. In short, following a thorough review of the record, the Board is satisfied that the VA has met its duty to assist the veteran in the development of all facts pertinent to his claim. Under such circumstances, no further assistance to the veteran is required in order to comply with the duty to assist requirements of the VCAA and its implementing regulations. The questions presented in this case as to both the existence and etiology of disabilities of the right shoulder, right elbow and right hand are medical in nature. The Board is prohibited from exercising its own independent judgment to resolve medical questions. See Colvin v. Derwinski, 1 Vet. App. 171 (1991). However, the record on appeal contains a number of relevant medical opinions that have been submitted by the veteran or obtained by the VA. By law, the Board is obligated under 38 U.S.C. § 7104(d) to analyze the credibility and probative value of all evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide reasons for its rejection of any material evidence favorable to the veteran. Eddy v. Brown, 9 Vet. App. 52 (1996); Meyer v. Brown, 9 Vet. App. 425 (1996); Gabrielson v. Brown, 7 Vet. App. 36 (1994). The Board has the authority to "discount the weight and probity of evidence in the light of its own inherent characteristics and its relationship to other items of evidence." Madden v. Brown, 125 F.3d 1477, 1481 (Fed. Cir. 1997). However, consistent with Colvin, the Board may not reject medical opinions based on its own medical judgment. See Obert v. Brown, 5 Vet. App. 30 (1993). In evaluating the probative value of competent medical evidence, the Court has stated, in pertinent part: The probative value of medical opinion evidence is based on the medical expert's personal examination of the patient, the physician's knowledge and skill in analyzing the data, and the medical conclusion that the physician reaches. . . . As is true with any piece of evidence, the credibility and weight to be attached to these opinions [are] within the province of the adjudicators; . . . Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993). The Board may appropriately favor the opinion of one competent medical authority over another. See Owens v. Brown, 7 Vet. App. 429, 433 (1995). There is little dispute in the record concerning the basic medical facts of this case as they relate to the date of initial onset of the claimed disabilities of the right shoulder, right elbow and right hand. Clearly none of these claimed disorders was manifest until many years after service. The veteran is not contending that the disabilities were present during service or are directly due to service, and there is no medical or other evidence of record which would support such a finding. Accordingly, the matter of direct service connection will not be addressed further. With respect to the right shoulder, the record contains ample evidence showing that the veteran has osteoarthritis of the acromioclavicular joint as well as rotator cuff tendinitis. The dispute on appeal involves the question of how this pathology is related to the service-connected disability involving the right wrist. Substantial disability of the right wrist requiring surgical fusion of the wrist in 1993 and the subsequent evaluation and treatment of the wrist is well documented. Arthritis in the right shoulder was first documented in April 1989 on the basis of X-ray reports reported by Dr. Estrine and shoulder complaints attributed specifically to overuse were reported by a VA physician in July 1993. The question of whether there was a connection between the wrist and the shoulder was considered at VA examinations in June 1995 and December 1997 by Dr. M., and in a September 1998 addendum. Dr. M. found no etiological relationship between the shoulder and wrist disabilities, and considered the shoulder problems to be more likely age- related. In direct opposition to this view is the opinion from Dr. Bash, who unequivocally asserts a causal relationship between the wrist and shoulder disabilities. Other medical opinions of record have been between these two poles, but have generally recognized the probability of an impact of the wrist condition on the development of the shoulder problems. The September 1998 opinion by Dr. M. notes a "baseline manifestation" of acromioclavicular joint arthritis and concluded that the condition was more pronounced then it was several years earlier, thereby supporting a finding that the arthritis had advanced on its own. The opinion does not discuss the specifics of the veteran's allegations concerning the manner in which his use of the arm on the job had changed due to impairment of the wrist. Dr. Bash's opinion is based in part on evidence provided by other physicians concerning pathology of the right shoulder and the possibility of a relationship between the shoulder and the wrist. He noted that Dr. Estrine and Dr. Mangell had found a causal relationship between the wrist and the shoulder, and he makes the valid point that the arthritis was found on the right side only, arguing that if arthritis were due to age alone, it could be expected to be bilateral in nature. In considering this argument the Board would note that the veteran has testified that he used his right upper extremity more extensively than the left in his work, and that may account for some of the variation. However, at the Board hearing he demonstrated the abnormal hammering motion which was required because of his wrist fusion, thus lending plausibility to the conclusion that the wrist problem affected nearby joints. In reviewing and reconciling the testimony, statements and medical opinions of record, the Board must conclude that multiple factors have influenced development of the problem. Since most medical authorities recognize that the wrist fracture played a significant part in that development, the Board finds that a preponderance of the evidence supports finding that the service-connected right wrist fusion proximately impacted the development and progression of the currently diagnosed disability of the right shoulder. With respect to the right elbow, the evidence is not entirely consistent concerning the very fundamental question of whether the veteran has a disability of the elbow or, if so, what it is. X-ray findings of arthritis of the radial head at the capitular interface were reported by Dr. Estrine in 1989. Dr. Shapiro reported epicondylitis in 1992 and VA X-rays in July 1993 showed minimal degenerative changes diagnosed as osteoarthritis. A later VA X-ray in June 1995 was read as normal except for an olecranon spur. A VA examination in December 1997, including an electromyographic study, was within normal limits. The electromyogram of December 1997 was thus inconsistent with earlier findings in December 1995 which suggested ulnar nerve entrapment. Citing the prior studies, the report of Dr. Bash asserts the current existence of osteoarthritis and gleno-humeral pathology. Cited in his report, however, is a March 2001 finding by a Dr. Jurist, whose full report is not of record, noting the absence of any physical findings at the elbow and suggesting that the veteran's complaints in the elbow area could be "referred pain," which the Board understands to mean that the pain could be referred from the wrist, without any separate and distinct disability of the elbow. Notwithstanding these inconsistencies, the weight of the evidence establishes the existence of disability of the right elbow. Arthritic changes and ulnar nerve impingement have been diagnosed. The extent and severity of the disability is a rating question, whereas the question currently before the Board is one of service connection, which, in this case, requires resolution of different questions; those of whether a chronic disability of the elbow exists and, if so, how it is related to the wrist disability. Since the past record tends to confirm the disability of the elbow, no further effort need be undertaken to obtain this documentation. The medical opinion evidence against a finding of a connection between the wrist and elbow is limited to the report of the December 1997 VA examination which found no "service connection" for the right elbow. That examiner did not address the question of a less direct, but still causal relationship, such as one due to overuse or compensatory motions of the right upper extremity attributable to the wrist impairment. The evidence favoring the finding of a causal connection on that basis includes Dr. Bash's report, and the observation of the veteran's awkward movement of the right arm, as demonstrated at the Board hearing. The reasoning applicable to considering the absence of similar findings on the left side, as discussed above with regard to the shoulder, also applies to the elbow-wrist relationship. With consideration of the entire record, it appears that the evidence is in relative equipoise on this point and that the benefit of the doubt should be resolved in favor of the veteran. With respect to the right hand, the record shows that limitation of motion of the thumb was reported at a VA examination in March 1993. A tremor of the right hand of undetermined etiology was reported at a VA examination 4 months later, in July 1993. A shocking-type pain was evaluated by Dr. Mangell in April 1995, and the possibility was noted that it was related to the right wrist fusion. There were no obvious bony changes on X-rays. A VA examiner in June 1995 reported tendinitis and possible neuroma of the right thumb but thought that the right thumb pain was related to use of the hand rather than to wrist fusion. At the next VA examination, in December 1997, Dupuytren's contracture (palmar fibrosis) of the right palm and probable fibrosis of the flexor tendon and the tendon sheath of the right thumb were reported but were considered unrelated to the wrist fusion. Examination of the right hand in December 1997 was normal. The abnormal findings regarding the right hand and thumb were reported more or less contemporaneously with the increase in wrist pathology that led to the decision to perform wrist fusion and the recuperation period thereafter. By the time the veteran was examined in December 1997, there were no objective manifestations of hand pathology. Dr. Bash refers to right thumb pathology consisting of pain, decreased grip strength, decreased range of motion and X-ray degenerative changes, but none of these findings were reported at the December 1997 examination. Noting that he had reviewed "this patient's images" he referred to degenerative changes involving the first carpal metacarpal joint (thumb) and severe degenerative arthritis of the carpal bones of the right wrist. Degenerative arthritis of the carpal bones of the wrist is included within the present service connection grant. Nevertheless, Dr. Bash's opinion that the veteran has degenerative changes in the hand and that they are secondary to the service-connected wrist injury is probative and reasonably supported by the record. As noted above in the discussion with regard to the elbow, the severity of any disability of the hand, along with the precise classification of the disability, are questions which are more appropriately left for resolution when the question of what rating to assign is considered. The Board can finds that there is evidence as to the existence of a hand disability, and its etiology, and that the evidence to the contrary does not predominate, but places the question in relative equipoise. When that situation arises, the benefit of the doubt rule applies and a grant of the benefit sought is in order. ORDER Service connection for disability of the right shoulder is granted. Service connection for disability of the right elbow is granted. Service connection for disability of the right hand is granted. ROBERT D. PHILIPP Member, Board of Veterans' Appeals