Citation Nr: 0813877 Decision Date: 04/25/08 Archive Date: 05/01/08 DOCKET NO. 04-14 583 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to an increased evaluation for residuals of right thigh gunshot wound, currently evaluated as 40 percent disabling. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Appellant INTRODUCTION The veteran served on active duty from December 1943 to November 1945. This matter is before the Board of Veterans' Appeals (Board) on appeal of a September 2002 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. FINDINGS OF FACT 1. The veteran is currently receiving the maximum schedular rating for severe muscle injury to Muscle Group XIV. 2. The veteran's scars as a result of the gunshot wound to the right thigh are a 3-cm by 3-cm "stellate" scar and a 2-cm scar, both of which are well healed, nonadherent to the underlying structures, not painful on palpation, and without ulcerative breakdown, keloid formation, or altered pigmentation. 3. The veteran's right lower extremity neurovascular system is intact and there is no disabling nerve damage. CONCLUSIONS OF LAW The criteria for an increased rating for residuals of gunshot wound, right thigh (Muscle Group XIV), are not met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.56, 4.73, Diagnostic Code 5314 (2007), 38 C.F.R. § 4.118 (2002) and (2007) (effective before and as of August 30, 2002), 38 C.F.R. § 4.124a (2007); DeLuca v. Brown, 8 Vet. App. 202 (1995). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Service connection has been in effect for residuals of right thigh gunshot wound injury since 1945. Initially, a November 1945 rating decision assigned a 50 percent rating for deformity of the right thigh secondary to shrapnel wound, effective from November 1945, on a temporary basis. Following examination in May 1946, a June 1946 rating decision assigned a 30 percent rating for shrapnel wound, right upper thigh, with atrophy of quadriceps muscle, Group XIV, severe, effective from the date of examination. The veteran expressed disagreement, and an August 1946 rating decision assigned a 40 percent rating for this disability, effective from the date of the May 1946 examination. A rating decision in March 1959 reduced the evaluation of "cicatrices G.S.W. and P.O. right thigh with foreign metallic bodies soft tissues" to 30 percent from May 4, 1959. This appeal arises from the RO's September 2002 denial of a July 2002 claim seeking a higher evaluation. In a December 2007 rating decision, the Appeals Management Center (AMC) restored a 40 percent rating, effective May 4, 1959, for residuals of right thigh gunshot wound injury, on the basis of a November 2007 letter from the Director, Compensation and Pension Service, which concluded that the March 1959 rating decision reducing the rating was void ab initio. Thus, the matter before the Board now is whether a rating higher than 40 percent should be assigned. The Board's primary concern is the current extent of the disabilities, Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Thus, the Board's focus is necessarily on contemporaneous evidence of disability dated around July 2002 forward. Muscle injuries are evaluated under 38 C.F.R. § 4.73 (2007). Diagnostic Code 5314, Muscle Group XIV, evaluates injury to thigh muscles of the leg. These muscles affect extension of the knee, simultaneous flexion of hip and flexion of knee, tension of fascia lata and iliotibial (Maissiat's) band acting with Muscle Group XVII (see Diagnostic Code 5317) in postural support of body; acting with hamstrings in synchronizing hip and knee. The muscles in Group XIV include the sartorius, rectus femoris, vastus externus, vastus intermedius, vastus internus, and tensor vaginae femoris. The current 40 percent rating is the maximum rating under this diagnostic code and is assigned for severe muscle injury. Ratings for muscle injuries are classified as slight, moderate, moderately severe, or severe under 38 C.F.R. § 4.56(d), depending on the type of injury sustained, the history and complaints, and objective clinical findings. For the purposes of evaluating muscle injury, the cardinal signs and symptoms of muscle disability are low of power, weakness, lowered threshold of fatigue, fatigue-pain, impairment of coordination, and uncertainty of movement. 38 C.F.R. § 4.56(c). The term "severe" disability is defined in 38 C.F.R. § 4.56(d)(4) to include through and through or deep penetrating wound due to high-velocity missile, or large or multiple low velocity missiles, or with shattering bone fracture or open comminuted fracture with extensive debridement, prolonged infection, or sloughing of soft parts, intermuscular binding and scarring. Objective findings would include ragged, depressed and adherent scars indicating wide damage to muscle groups in missile track; palpation shows loss of deep fascia or muscle substance, or soft flabby muscles in wound area. Muscles swell and harden abnormally in contraction. Tests of strength, endurance, or coordinated movements compared with the corresponding muscles of the uninjured side indicate severe impairment of function. In considering whether a rating higher than 40 percent may be assigned, the Board first notes that the scarring and quadriceps atrophy noted on examination supports using Diagnostic Code 5314, for the anterior thigh muscle group. The use of another diagnostic code has not been suggested; moreover, Diagnostic Code 5313, for the posterior thigh muscle group, also provide a maximum 40 percent rating for severe muscle injury, so there would be no advantage to the veteran in using that diagnostic code instead of the one currently assigned. The Board has also considered whether separate, compensable ratings could be assigned for associated residual disability. The evidence does not support assignment of a separate, compensable rating for scar residuals using the skin disability rating criteria in 38 C.F.R. § 4.118, in effect before or after August 30, 2002. See 67 Fed. Reg. 49,590 (2002). The veteran has a 3-cm by 3-cm "stellate" scar over the proximal adductor muscle mass (entrance wound scar), which is mildly depressed and adherent to the underlying adductor muscle belly, but which does not result in loss of muscle mass. He also has a 2-cm lateral exit wound over the vastus lateralis that is "well healed," nonadherent to the underlying structures and not painful on palpation. There is no clinical evidence of ulcerative breakdown, keloid formation, or altered pigmentation. See September 2002 and June 2005 examination reports. Using the current criteria in effect as of August 30, 2002, the scars are not shown to be deep; they do not cause limited motion; they are not large enough in terms of the skin surface area affected; and they are not shown to be unstable or painful or examination. See 38 C.F.R. § 4.118, Diagnostic Codes 7801-7805 (2007). Using the old criteria, the scar residuals are not shown to be poorly nourished, repeatedly ulcerated, or tender or painful on objective demonstration; they do not cause functional impairment in and of themselves. See 38 C.F.R. § 4.118, Diagnostic Codes 7803-7805 (2002). As for nerve, or neurological, damage, the September 2002 examination report states that the veteran's "neurovascular status to the right lower extremity is intact." The 2005 examination report, too, documents "intact" neurovascular condition in the right leg. Also, the latter report explicitly provides that there is no nerve damage to the scarred area. Thus, the Board does not find that rating criteria specific to neurological deficit (see 38 C.F.R. § 4.124a) can be the basis for additional, or higher, evaluation than that currently in effect. As the veteran is receiving the maximum schedular rating for his muscle injury, the Board has considered whether an extraschedular rating should be assigned with consideration of DeLuca v. Brown, 8 Vet. App. 202 (1995). Generally, the degrees of disability specified in the VA Schedule for Rating Disabilities are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. Factors such as requiring periodic medical attention are clearly contemplated in the Schedule and provided for in the evaluations assigned. 38 C.F.R. § 4.1. However, in exceptional circumstances, where the schedular evaluations are found to be inadequate, the veteran may be awarded a rating higher than that encompassed by the schedular criteria, as shown by evidence indicating that the disability at issue causes marked interference with employment, or has in the past or continues to require frequent periods of hospitalization rendering impractical the use of the regular schedular standards. 38 C.F.R. § 3.321(b)(1); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). The Board does not have the authority to decide whether to assign an extrascheduler rating in the first instance, but may consider whether referral to the appropriate first-line officials is required. See also Bagwell v. Brown, 9 Vet. App. 337, 338-339 (1996) citing Floyd v. Brown, 9 Vet. App. 88, 95 (1996) (holding that § 3.321(b)(1) "does not preclude the Board from considering whether referral to the appropriate first-line officials is required"). In this case, the veteran has not had frequent hospitalization as a result of his thigh gunshot wound. The veteran is retired; marked interference with employment is neither contended nor shown. As for DeLuca v. Brown, 8 Vet. App. 202 (1995), and evidence of functional impairment, the examiner noted "normal heel/toe gait mechanics" on examination in September 2002 and in June 2005. The June 2005 examination report states the veteran has "5/5" motor function of the extensor hallucis longus tibialis anterior and peroneal muscle groups. The veteran ambulates without the aid of an orthopedic assistive device. Thus, the Board concludes that an exceptional or unusual disability picture that would warrant referral for assignment of an extraschedular evaluation has not been demonstrated. Based on the foregoing, the Board concludes that the preponderance of the evidence disfavors a higher, or additional, evaluation. Duties to Notify and Assist VA's duties to notify and assist claimants in substantiating a claim for VA benefits are found at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2007). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a) (West 2002 & Supp. 2007); 38 C.F.R. § 3.159(b) (2007); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; (3) that the claimant is expected to provide; and (4) must ask the claimant to provide any evidence in her or his possession that pertains to the claim in accordance with 38 C.F.R. § 3.159(b)(1). Notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004); see also Mayfield v. Nicholson, 19 Vet. App. 103 (2005). The notice requirements of 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a "service connection" claim, defined to include: (1) veteran status; (2) existence of a disability; (3) a connection between the veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. See Dingess v. Nicholson, 19 Vet. App. 473 (2006). The veteran's claim was received in July 2002, and a Section 5103(a) notice letter was sent to the veteran later in July 2002, before the September 2002 decision that is the basis for this appeal. Although the July 2002 letter was later augmented, the Board finds no prejudicial timing defect. See Pelegrini, supra. In letters sent in July 2002, June 2003, and November 2005, the veteran was provided with Section 5103(a) notice. The RO told the veteran that an increased rating requires evidence of worsened disability and that, if he identifies the sources of pertinent evidence, then VA would assist him in obtaining such evidence. The latter letter asked the veteran to submit any other evidence he has that pertains to the claim, meeting the "fourth element" notice requirement. Notice of that element was reinforced with the citation of 38 C.F.R. § 3.159 in the SOC. He was told that the responsibility to substantiate the claim with any evidence not in federal custody ultimately lies with him. He was given the specific notice required by Dingess v. Nicholson, 19 Vet. App. 473 (2006) (as the degree of disability and effective date of the disability are part of a claim for service connection, VA has a duty to notify claimants of the evidence needed to prove those parts of the claim) in a July 2007 letter and in the January 2008 SSOC. Further, notice of revised skin disability rating criteria was given in the November 2005 SSOC, even though the Board has concluded that, based on pertinent clinical evidence, no additional evaluation is warranted based on scar residuals. Also, while notice of neurological disability rating criteria was not given, in light of negative clinical evidence on neurological deficit to warrant adjudication thereon, the Board does not find basis to conclude a notice defect in that respect. For an increased-compensation claim, section § 5103(a) requires, at a minimum, that the Secretary notify the claimant that, to substantiate a claim, the claimant must provide, or ask the Secretary to obtain, medical or lay evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on the claimant's employment and daily life. Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008).Further, if the Diagnostic Code under which the claimant is rated contains criteria necessary for entitlement to a higher disability rating that would not be satisfied by the claimant demonstrating a noticeable worsening or increase in severity of the disability and the effect that worsening has on the claimant's employment and daily life (such as a specific measurement or test result), the Secretary must provide at least general notice of that requirement to the claimant. Additionally, the claimant must be notified that, should an increase in disability be found, a disability rating will be determined by applying relevant Diagnostic Codes, which typically provide for a range in severity of a particular disability from noncompensable to as much as 100 percent (depending on the disability involved), based on the nature of the symptoms of the condition for which disability compensation is being sought, their severity and duration, and their impact upon employment and daily life. As with proper notice for an initial disability rating and consistent with the statutory and regulatory history, the notice must also provide examples of the types of medical and lay evidence that the claimant may submit (or ask the Secretary to obtain) that are relevant to establishing entitlement to increased compensation-e.g., competent lay statements describing symptoms, medical and hospitalization records, medical statements, employer statements, job application rejections, and any other evidence showing an increase in the disability or exceptional circumstances relating to the disability. Vazquez-Flores at 43-44. The Dingess notice also informed the veteran that a disability rating will be determined by applying relevant Diagnostic Codes, which typically provide for a range in severity of a particular disability from noncompensable to as much as 100 percent (depending on the disability involved), based on the nature of the symptoms of the condition for which disability compensation is being sought, their severity and duration, and their impact upon employment and daily life. Also, he was given the specific rating criteria used to evaluate his disability in the rating decision that was appealed, the SOC and supplements thereto, and the May 2006 Board decision that was later vacated. Thus, he had actual notice of the specific rating criteria used to evaluate his disability. He had ample opportunity to participate in his claim and appeal and to submit information, evidence, and argument to support his claim. The Board concludes that there is no prejudice to the veteran in any defect of the substance or the timing of the Section 5103(a) notice. VA's duty to assist a claimant in substantiating the claim (see 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159(c), (d) (2007)) also was satisfied. This duty contemplates that VA will help a claimant obtain relevant records, whether or not they are in federal custody, and that VA will provide a medical examination and/or opinion if necessary to decide the claim. The claims file includes pertinent VA clinical records, including VA-ordered examination records, service medical records, prior claims adjudication history, and hearing testimony. Despite appropriate notice during appeal, the veteran has not identified additional sources of pertinent evidence. Thus, the Board concludes that VA's duty- to-assist was met. ORDER An increased evaluation for right thigh gunshot wound injury residuals is denied. ____________________________________________ MARY GALLAGHER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs