Citation Nr: 1753167 Decision Date: 11/17/17 Archive Date: 11/22/17 DOCKET NO. 12-30 653A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for a left shoulder scar. 2. Entitlement to service connection for head scars, to include two scars behind the left ear. 3. Entitlement to service connection for residuals right hand fracture. REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD S. Hoopengardner, Associate Counsel INTRODUCTION The Veteran served on active duty from July 1956 to July 1960. These matters come before the Board of Veterans' Appeals (Board) on appeal from a September 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. The Veteran testified at a September 2015 Board videoconference hearing before the undersigned Veterans Law Judge. A transcript of the hearing is of record. The Board remanded the Veteran's claims in January and December 2016. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C. § 7107(a)(2) (2012). FINDINGS OF FACT 1. A left shoulder scar is related to the Veteran's active service. 2. Two scars behind the left ear are related to the Veteran's active service. 3. Service connection has been granted for degenerative arthritis in the left shoulder and lumbar spine, evidence indicated arthritis in the Veteran's right hand, to include in the first metacarpal phalangeal joint and in distal interphalangeal joints, and the evidence does not clearly attribute such to intercurrent causes. CONCLUSIONS OF LAW 1. A left shoulder scar was incurred in active service. 38 U.S.C. § 1131 (2012); 38 C.F.R. § 3.303 (2017). 2. Two scars behind the left ear were incurred in active service. 38 U.S.C. § 1131 (2012); 38 C.F.R. § 3.303 (2017). 3. With respect to right hand arthritis, to include in the first metacarpal phalangeal joint and in distal interphalangeal joints, entitlement to service connection is warranted for the subsequent manifestation of the same chronic disease that was previously service-connected. 38 U.S.C. § 1131 (2012); 38 C.F.R. §§ 3.303 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Background for All Issues The Veteran has contended that all disabilities on appeal were from the same in-service incident. See September 2015 Board Hearing Transcript (stating "the injuries I have were all from the same incident" and responding affirmatively to a question that "all...these conditions are related to the original injury"). The Veteran has variously reported that, essentially, while in-service he was moving pieces of a bowling alley floor and the pieces of the hardwood fell on him, resulting in various injuries that required medical treatment, to include hospitalization and surgeries. See, e.g., September 2009 Veteran Statement, June 2010 Veteran Statement, September 2015 Board Hearing Transcript. The Veteran's service treatment records (STRs) are not of record and were presumably impacted by the 1973 National Personnel Records Center (NPRC) fire. See January 2010 VA Form 21-3101 (Request for Information) (stating that the Veteran's "record is fire related and there are no STRs or" service personnel records). Also, as the Veteran reported undergoing surgery following the reported bowling alley floor incident and because inpatient records are often stored separate from a veteran's STRs, the Board directed in the January 2016 remand to attempt to obtain inpatient medical records from the Chanute Air Force Base Hospital in 1956. A negative response was received in May 2016 to this request. In December 2016, the Board remanded the Veteran's claim again and due to the fact that VA treatment records referenced the Veteran as undergoing surgery in 1957, rather than 1956, the Board instructed to attempt to obtain inpatient medical records from the Chanute Air Force Base Hospital in 1957. The agency of original jurisdiction (AOJ) failed to substantially comply with this remand directive, as while a February 2017 request for records from the Chanute Air Force Base Hospital in 1957 was made, no response to this request is of record and the AOJ included and referenced again the previous May 2016 response, which related to 1956 records. In any event, as will be outlined below, the Veteran's claims are being granted and therefore there the lack of substantial compliance with the December 2016 Board remand is not prejudicial in this case. The Board notes that two other service connection claims, a left shoulder disability and a low back disability, were previously remanded by the Board in January and December 2016. In an August 2017 rating decision, the AOJ granted entitlement to service connection for degenerative arthritis left shoulder and degenerative arthritis of lumbar spine. The rating decision granted service connection based primarily on a positive July 2017 VA opinion that linked these disabilities to the Veteran's active service. The Back (Thoracolumbar Spine) Conditions Disability Benefits Questionnaire (DBQ) and Shoulder and Arm Conditions DBQ both referenced under the medical history section that the Veteran reported injuring his left shoulder and lumbar spine "in 1956 when hardware fell off him" and the positive opinion referenced that "there is evidence that the [V]eteran was injured while in service. There is not inpatient medical records but there is evidence that those injuries occur[r]ed while in service." The AOJ's grant of entitlement to service connection for a left shoulder and low back disability, based primarily on the July 2017 VA DBQs and opinion, essentially therefore accepted that the reported incident involving injury to the Veteran while moving pieces of a bowling alley floor occurred. Left Shoulder Scar As noted, the AOJ granted in August 2017 entitlement to service connection for degenerative arthritis left shoulder based primarily on an July 2017 VA opinion. In the Shoulder and Arm Conditions DBQ completed by the medical professional who provided the VA opinion, diagnoses were noted of traumatic arthritis, with a date of diagnosis noted of 2017, and status post left shoulder rotator cuff repair with residuals, with a date of diagnosis noted of 1956. It was also noted that the Veteran underwent left shoulder rotator cuff repair in 1956 and that a residual of the surgery included "scar." The examiner also noted that the Veteran had a scar related to the left shoulder diagnoses previously noted. The examiner noted the scar as being located on the anterior aspect of the left shoulder, provided measurements of the scar and noted it as being "well healed." As noted, the examiner provided a positive opinion that the Veteran's left shoulder disability was related to his active service and stated in part that "there is evidence that the [V]eteran was injured while in service...current symptoms of the [V]eteran are a chronic manifestation of his injuries occur[r]ed while in service." The Board notes that the AOJ in the July 2017 Supplemental Statement of the Case (SSOC) continued to deny entitlement to service connection for a left shoulder scar based in part on a different July 2017 VA examination, where the medical professional completed a Scars/Disfigurement DBQ. While this DBQ noted that the Veteran did not have any scars on the trunk or extremities (regions other than the head, face or neck), this examination appeared to have been focused on the Veteran's head scars claim and not on the left shoulder or left shoulder scar claims. As such, this DBQ is afforded less probative value than the July 2017 Shoulder and Arm Conditions DBQ that was for the specific purpose of examining the left shoulder and which included detailed findings regarding a left shoulder scar. Reviewing the evidence of record, the AOJ has, essentially, found the Veteran's report of an in-service incident involving injury while moving pieces of a bowling alley floor to be credible. Also, in granting entitlement to service connection for degenerative arthritis of the left shoulder, the AOJ has, at least implicitly, accepted the Veteran's report of left shoulder surgery in-service. The Board does not dispute these favorable findings. In addition, the Veteran is competent to report that he underwent surgery while in service and that such resulted in a scar and the Board finds the Veteran's report of such to be credible. The Board finds probative the findings documented on the July 2017 Shoulder and Arm Conditions DBQ, which noted a scar as a residual of a 1956 left shoulder rotator cuff repair surgery. These findings from a medical professional indicated, at least implicitly, that the left shoulder scar that was present upon examination was consistent with the in-service history reported by the Veteran. Moreover, the examiner provided a positive opinion stating that the "current symptoms of the [V]eteran are a chronic manifestation of his injuries occur[r]ed while in service." As referenced, the examiner noted that the Veteran had a scar related to the left shoulder diagnoses noted upon examination and this positive opinion can be construed to also encompass the Veteran's scar. In sum, based on the Veteran's competent and credible lay statements, combined with the findings documented on the July 2017 Shoulder and Arm Conditions DBQ, the Board finds that a left shoulder scar is related to the Veteran's active service. The Board therefore concludes that a left shoulder scar was incurred in active service. 38 U.S.C. § 1131 (2012); 38 C.F.R. § 3.303 (2017). Accordingly, entitlement to service connection for a left shoulder scar is warranted and, to this extent, the Veteran's claim is granted. Head Scars As noted, the AOJ essentially accepted that the reported incident involving injury to the Veteran while moving pieces of a bowling alley floor occurred. The Veteran has variously reported that following this incident he had surgery on his left ear and/or skull. In a November 2009 statement, he stated that "the load fell on the left side of my head...I had surgery to the...left ear. The head injury caused bleeding to the left ear and the left ear filled with blood and fluids" and that "I was flown...in an unpressurized aircraft (C-47). During the flight, my left ear drum ruptured causing additional damage and pain." In a November 2009 VA audiology treatment note it was noted that the Veteran "states he was moving parts of a bowling alley when a piece fell on his head (on the left behind his ear). He suffered a fractured skull and had to have surgery to repair his middle ear." In a February 2010 VA ENT treatment note, it was noted that the Veteran had a "head injury with skull fracture in 1957 in the air force. Suffered many other injuries during the accident as well. Had to have left ear mastoid surgery as a result of injury with significant loss of hearing as a result." In a June 2010 statement, the Veteran reported that following the bowling alley floor incident he had surgery on the "left side of head." An August 2010 VA audio examination report stated that "Veteran reports hearing loss on the left due to a head injury incurred in the service in 1957. [Veteran] states he was moving parts of a bowling alley when a piece fell on his head (on the left behind his ear)" and that "[h]e suffered a fractured skull and had to have surgery to repair his middle ear." As referenced above, the Veteran was afforded a VA examination in relation to this claim and a July 2017 Scars/Disfigurement DBQ was completed. Under the medical history section, it was noted that "Veteran stated in 1956, he sustained a left ear scar after an ear injury during tr[an]sfer on a C47 non-pressurized airplane, leading into left ear infection that won[']t heal and late[r] had surgery to the left ear/removal of a portion of the bone behind the left ear." A diagnosis was noted of residual scar left ear, with a date of diagnosis of 1956. The examiner noted upon physical examination "two scars behind the left ear," with one being labeled as "close to the skull" and one labeled as "anterior scar 1." Both were noted to be "well healed." The examiner provided a negative opinion that the Veteran's head scars were "less likely than not (less than 50% probability) incurred in or caused by the claimed in-service injury, event or illness." The provided rationale stated that "there are no records found related a diagnosis and treatment of a condition leading to the development of claimed scar on the left ear." In addition, included in the VA treatment records of record were the results of a July 2012 head CT scan, which noted findings of "[t]here has been previous left mastoidectomy with partial absence of the left middle ear ossicles...There is no skull fracture" and an impression of "[o]ld left mastoidectomy." These findings, specifically an old left mastoidectomy and partial absence of left middle ear ossicles, appear to be consistent with the Veteran's report of having surgery related to his left ear and/or skull. Reviewing the evidence of record, as noted, the AOJ has, essentially, found the Veteran's report of an in-service incident involving injury while moving pieces of a bowling alley floor to be credible. The Board does not dispute this favorable finding. In addition, the Veteran is competent to report that he underwent surgery while in service and that such resulted in two head scars and the Board finds the Veteran's report of such to be credible. The Board acknowledges the negative July 2017 VA opinion referenced above, but finds that such is inadequate and therefore afforded no probative value. In a similar factual case where the Board had assumed an in-service injury, the United States Court of Appeals for Veterans Claims stated when addressing the adequacy of a VA opinion that "the medical examiner cannot rely on the absence of medical records corroborating that injury to conclude that there is no relationship between the [Veteran's] current disability and his military service." See Dalton v. Nicholson, 21 Vet. App. 23 (2007). In this case, the July 2017 VA opinion provided a negative opinion as to direct service connection and the rationale relied on, essentially, the absence of medical records corroborating the Veteran's reported in-service surgery, the report of which that has been found credible by the Board. Accordingly, the Board finds the July 2017 VA opinion inadequate and affords it no probative value. In sum, based on the Veteran's competent and credible lay statements, combined with the findings documenting the presence of two scars on the July 2017 Scars/Disfigurement DBQ, the Board finds that head scars, to include two scars behind the left ear, are related to the Veteran's active service. The Board therefore concludes that head scars, to include two scars behind the left ear, were incurred in active service. 38 U.S.C. § 1131 (2012); 38 C.F.R. § 3.303 (2017). Accordingly, entitlement to service connection for head scars, to include two scars behind the left ear, is warranted and, to this extent, the Veteran's claim is granted. Right Hand Disability On the Veteran's November 2009 claim, he listed a disability of right hand fracture. The Veteran has variously reported that during the previously referenced in-service bowling alley floor incident he injured his right hand and that he also had surgery on his right hand. See November 2009 and June 2010 Veteran's Statements. The Veteran also submitted photographs in September 2015, to include a picture labeled "Jan 57" of a man in what appears to be a military uniform with a sling and cast on his right arm. The Veteran testified at the September 2015 Board hearing that this picture was of him. See September 2015 Board Transcript, pages 9-10. VA treatment records reflected that the Veteran had surgery for trigger finger release of the right long and ring fingers in October 2011. The Veteran was afforded a VA examination in July 2017 and a Hand and Finger Conditions DBQ was completed. A diagnosis was noted of "status post trigger finger release right/long finger" on the right, with a date of diagnosis noted of 2011. Under the medical history section, it was noted that "[t]he [V]eteran states that his right hand got injured in 1956 when hardware fell off him and he was trying to avoid the incident." It was also noted that "[t]he [V]eteran denies any trauma since discharge." Diagnostic testing was noted to include a July 2017 right hand x-ray, with a report of such noting "[t]here is no evidence of any fractures or dislocations. Again is demonstrated the now removed the IP joints" and an impression of "[s]table examination without significant interval changes since the previous studies revealing mild narrowing of the [interphalangeal] joints without radiographic evidence of any significant bony pathology." The referenced previous studies were conducted in December 2011 and including findings of "[n]o fractures, dislocations, or subluxations" and an impression of "[n]o significant acute focal abnormalities." The examiner provided a negative opinion that the Veteran's right trigger finger condition was "less likely than not (less than 50% probability) incurred in or caused by the claimed in-service injury, event or illness." The provided rationale stated that "[t]he veteran has objective evidence of trigger finger on right long and ring on 10/31/11. The trigger finger condition is related to the [V]eteran's decade of life[], no relation with prior trauma." Citation was made to a medical article about trigger finger. This VA opinion, essentially, stated that the Veteran's right trigger finger was related to the Veteran's age, rather than prior trauma. The Board notes that there is no competent evidence contrary to this opinion. In this regard, the Veteran is not competent to relate his trigger finger to his active service and he has not stated that a competent medical professional has made such relation. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Also of record, however, are the results of a March 2011 right hand x-ray. The report noted that "[t]here may have been old nondisplaced fracture of the distal second metacarpal" and that "[t]here are mild degenerative changes in the first metacarpal phalangeal joint and in distal interphalangeal joints." An impression was noted of "[d]egenerative changes." The July 2017 negative VA opinion did not comment on these x-ray reports or the presence of degenerative changes (arthritis). Accordingly, the negative opinion provided related to trigger finger and not arthritis. While, as noted, subsequent right hand x-ray findings did not note arthritis, the Court has held that "the requirement that a [veteran] have a current disability before service connection may be awarded for that disability... is satisfied when a [veteran] has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim." See McClain v. Nicholson, 21 Vet. App. 319 (2007). As referenced above, the AOJ granted in August 2017 entitlement to service connection for degenerative arthritis of left shoulder, rated under Diagnostic Code 5003-5201 (Arthritis, degenerative and Arm, limitation of motion of), and degenerative arthritis of lumbar spine, rated under Diagnostic Code 5242 (Degenerative arthritis of the spine (see also diagnostic code 5003)). The AOJ's actions reflect an intent to recognize a degenerative arthritic disease process, rather than recognizing traumatic or localized processes. See 38 C.F.R. § 4.25(b) (2017) (reflecting that arthritis is a single disease entity but that the disabling conditions are to be separately rated). According to Compensation and Pension, degenerative arthritis is a systemic process that can involve many joints. Pursuant to 38 C.F.R. § 3.303(b) (2017), "[w]ith chronic disease shown as such in service (or within the presumptive period under § 3.307) so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes." Arthritis is a chronic disease for VA purposes. See 38 U.S.C. § 1101 (2012); 38 C.F.R. §§ 3.307, 3.309(a) (2017). As outlined, service connection for degenerative arthritis of left shoulder and degenerative arthritis of lumbar spine has been granted and such have been rated under Diagnostic Codes 5003 and 5242, which reflects recognition of a degenerative arthritic disease process. Additionally, as noted, the March 2011 right hand x-ray results indicated the presence of arthritis during the appeal period and the evidence does not clearly attribute such to intercurrent causes. As such, entitlement to service connection is warranted for the subsequent manifestation of the same chronic disease that was previously service-connected. 38 U.S.C. § 1131 (2012); 38 C.F.R. §§ 3.303 (2017). Entitlement to service connection for right hand arthritis, to include in the first metacarpal phalangeal joint and in distal interphalangeal joints, is therefore warranted and, to this extent, the Veteran's claim is granted. We again note that the AOJ selected diagnostic code 5003 rather than code 5010 for the award of service connection. If there was error, it was not corrected and we shall not remand this AOD case. ORDER Entitlement to service connection for a left shoulder scar is granted. Entitlement to service connection for head scars, to include two scars behind the left ear, is granted. Entitlement to service connection for right hand arthritis, to include in the first metacarpal phalangeal joint and in distal interphalangeal joints, is granted. ____________________________________________ H. N. SCHWARTZ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs