Citation Nr: 0815037 Decision Date: 05/07/08 Archive Date: 05/14/08 DOCKET NO. 04-30 605 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Manila, the Republic of the Philippines THE ISSUES 1. Entitlement to an increased rating for residuals of a gunshot wound to the right thigh, involving Muscle Groups XIII and XV, currently evaluated as 30 percent disabling. 2. Entitlement to a compensable rating for a shrapnel wound scar of the right knee. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD J. Barone, Counsel INTRODUCTION The veteran had recognized guerrilla service from January 1944 to January 1945, and regular Philippine Army service from January 1945 to February 1946. This matter comes before the Board of Veterans' Appeals (Board) from a rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Manila, the Republic of the Philippines. FINDINGS OF FACT 1. Effective November 1965, the veteran has been in receipt of a 30 percent evaluation for a gunshot wound to the right thigh, involving Muscle Groups XIII and XV; the evaluation was based upon findings of moderate disability of both muscle groups, with elevation of to the next higher evaluation of moderately severe for Muscle Group XIII. 2. Residuals of a gunshot wound to Muscle Groups XIII and XV is currently manifested by no more than moderate disability of each muscle group. 3. The right knee shrapnel fragment wound is manifested by a slightly adherent, nonpainful, slightly depressed scar; there is no underlying soft tissue loss, induration, or loss of function. CONCLUSIONS OF LAW 1. The criteria for an evaluation in excess of 30 percent for residuals of a gunshot wound to Muscle Groups XIII and XV have not been met. 38 U.S.C.A. § 1155 (West 1991); 38 C.F.R. §§ 4.3, 4.7, 4.40, 4.45, 4.55, 4.56, 4.71a, Diagnostic Codes 5313, 5315 (2007). 2. The criteria for a compensable evaluation for right knee shrapnel fragment wound scar have not been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.7, 4.118, Diagnostic Codes 7803, 7804, 7805 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits. 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 representative 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 VCAA 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; and (3) that the claimant is expected to provide; and (4) must ask the claimant to provide any evidence in his possession that pertains to the claim, in accordance with 38 C.F.R. § 3.159(b)(1). VCAA notice should be provided to a claimant before the initial unfavorable RO decision on a claim. See Pelegrini v. Principi, 18 Vet. App. 112 (2004); Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006). During the pendency of this appeal, on March 3, 2006, the Court issued a decision in the consolidated appeal of Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), which held that the VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim. Those five elements 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. The Court held that upon receipt of an application for a service-connection claim, 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) require VA to review the information and the evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating or is necessary to substantiate the elements of the claim as reasonably contemplated by the application. Id. at 486. The veteran has not been provided with notice regarding degree of disability. That deficiency is discussed below. The Board also observes that the veteran has not been provided notice with respect to the element of the effective date of his disability. However, the effective date of the disability is not at issue in this appeal. A letter dated in February 2004, prior to the adjudication of the veteran's claim, advised him that he should submit evidence showing that his service-connected disabilities had worsened. It noted that such evidence could be a statement from his doctor containing physical and clinical findings. He was told that he could also submit statements from individuals who were able to describe from their knowledge and personal observations in what manner the disabilities had worsened. The evidence of record was listed and the veteran was told how VA would assist him in obtaining further evidence. The Board has considered the adequacy of the VCAA notice in light of the recent Court decision in Vazquez-Flores v. Peake, No. 05-0355 (U.S. Vet. App. January 30, 2008). The February 2004 letter did not advise the veteran whether the Diagnostic Codes pertinent to his service-connected disabilities contain criteria necessary for entitlement to a higher rating that would not be satisfied by the veteran's demonstration that there was a noticeable worsening or increase in severity of the disability and the effect of that worsening on the veteran's employment and daily life. However, the Board's review of the record demonstrates that the veteran had knowledge of what was necessary to substantiate his claim. In this regard, the Board notes that in his May 2004 notice of disagreement, the veteran described the functional limitation caused by his right lower extremity disabilities. He stated that the disabilities had affected his movement and the performance of daily activities. In his August 2004 substantive appeal, the veteran described severe pain and loss of function. He specifically referred to various controlling laws and regulations. In essence, the record demonstrates that the veteran was aware of the evidence necessary to substantiate his claim for increase. The Board therefore finds that the fundamental fairness of the adjudication process is not compromised with respect to this issue. With respect to VA's duty to assist, identified treatment records have been obtained and associated with the record. VA examinations have been conducted. Neither the veteran nor his representative has identified any additional evidence or information which could be obtained to substantiate the claims. The Board is also unaware of any such outstanding evidence or information. Therefore, the Board is also satisfied that the RO has complied with the duty to assist requirements of the VCAA and the implementing regulations. For the foregoing reasons, it is not prejudicial to the appellant for the Board to proceed to a final decision in this appeal. Analysis Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule), found in 38 C.F.R. Part 4 (2007). The Board attempts to determine the extent to which the veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, and the assigned rating is based, as far as practicable, upon the average impairment of earning capacity in civil occupations. 38 U.S.C.A. § 1155; 38 C.F.R. §§ 4.1, 4.10 (2007). Where there is a question as to which of two evaluations should be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. The basis of disability evaluation is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. 38 C.F.R. § 4.10. In determining the degree of limitation of motion, the provisions of 38 C.F.R. §§ 4.10, 4.40 and 4.45 are for consideration. See DeLuca v. Brown, 8 Vet. App. 202 (1995). Disability of the musculoskeletal system is primarily the inability, due to damage or infection in parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination and endurance. Functional loss may be due to the absence or deformity of structures or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by the visible behavior in undertaking the motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. 38 C.F.R. § 4.40. With respect to joints, in particular, the factors of disability reside in reductions of normal excursion of movements in different planes. Inquiry will be directed to more or less than normal movement, weakened movement, excess fatigability, incoordination, pain on movement, swelling, deformity or atrophy of disuse. 38 C.F.R. § 4.45. The intent of the Rating Schedule is to recognize actually painful, unstable or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59. Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. Separate diagnostic codes identify the various disabilities. When a question arises as to which of two ratings apply under a particular diagnostic code, the higher evaluation is assigned if the disability more nearly approximates the criteria for the higher rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the veteran. 38 C.F.R. § 4.3. In general, all disabilities, including those arising from a single disease entity, are rated separately, and all disability ratings are then combined in accordance with 38 C.F.R. § 4.25. Pyramiding, the evaluation of the same disability, or the same manifestation of a disability, under different diagnostic codes, is to be avoided when rating a veteran's service-connected disabilities. 38 C.F.R. § 4.14. It is possible for a veteran to have separate and distinct manifestations from the same injury which would permit rating under several diagnostic codes, however, the critical element in permitting the assignment of several ratings under various diagnostic codes is that none of the symptomatology for any one of the conditions is duplicative or overlapping with the symptomatology of the other condition. See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994). Gunshot Wound of the Right Thigh By regulatory amendment, effective July 3, 1997, changes were made to the schedular criteria for evaluating muscle injuries, as set forth in 38 C.F.R. §§ 4.55, 4.56, 4.69, 4.73 (1996). See 62 Fed. Reg. 30235-30240 (1997). Prior to July 3, 1997, 38 C.F.R. § 4.55 provided that muscle injuries in the same anatomical region will not be combined, but instead, the rating for the major group will be elevated from moderate to moderately severe, or from moderately severe to severe, according to the severity of the aggregate impairment of function of the extremity. 38 C.F.R. § 4.55(a) (1997). On and after July 3, 1997, 38 C.F.R. § 4.55 provides that the combined evaluation of muscle groups acting upon a single unankylosed joint must be lower than the evaluation for unfavorable ankylosis of that joint. 38 C.F.R. § 4.55(d). For compensable muscle group injuries which are in the same anatomical region but which do not act on the same joint, the evaluation for the most severely injured muscle group will be increased by one level and used as the combined evaluation for the affected muscle groups. 38 C.F.R. § 4.55(e) (2007). Prior to July 3, 1997, 38 C.F.R. § 4.56 provided that slight muscle disability is found where there has been a simple wound of the muscle without debridement, infection or effects of laceration. Clinical examination would disclose minimal scarring and slight, if any, evidence of fascial defect, atrophy, or impaired tonus. No significant impairment of function and no retained metallic fragments would be present. Moderate muscle disability is found where there has been through and through or deep penetrating wounds of relatively short track from a single bullet, small shell or shrapnel fragment, without explosive effect of high velocity missile, residuals of debridement, or prolonged infection. Clinical examination would disclose entrance and (if present) exit scars that are linear or relatively small and so situated as to indicate relatively short track of missile through muscle tissue. There must be signs of moderate loss of deep fascia or muscle substance or impairment of muscle tonus, and of definite weakness or fatigue in comparative tests. Moderately severe muscle disability is found where there has been through and through or deep penetrating wound by small high velocity missile or large low-velocity missile, with debridement, prolonged infection, or sloughing of soft parts, and intermuscular cicatrization. Clinical examination would disclose entrance and (if present) exit scars that are relatively large and so situated as to indicate track of missile through important muscle groups. There must be indications on palpation of moderate loss of deep fascia, muscle substance, or normal firm resistance of muscles compared with sound side. Tests of strength and endurance of the muscle groups involved compared with the sound side must demonstrate positive evidence of marked or moderately severe loss. With a severe muscle disability, there are extensive ragged, depressed, and adherent scars of skin so situated as to indicate wide damage to muscle groups in track of missile. X-ray may show minute multiple scattered foreign bodies indicating spread of intermuscular trauma and explosive effect of missile. Palpation shows moderate or extensive loss of deep fascia or of muscle substance, with soft or flabby muscles in wound area. Muscles do not swell and harden normally in contraction. Tests of strength or endurance compared with the sound side or of coordinated movements show positive evidence of severe impairment of function. 38 C.F.R. § 4.56 (1997). On and after July 3, 1997, 38 C.F.R. § 4.56 provides that slight muscle disability is found where there has been a simple wound of the muscle without debridement or infection. Clinical examination would disclose the absence of fascial defect, atrophy, or impaired tonus. No impairment of function or metallic fragments retained in muscle tissue would be present. Moderate muscle disability is found where there has been a through and through or deep penetrating wound of short track from a single bullet, small shell or shrapnel fragment, without explosive effect of high velocity missile, residuals of debridement, or prolonged infection. There must be indications of some loss of deep fascia or muscle substance or impairment of muscle tonus and loss of power or lowered threshold of fatigue when compared to the sound side. Moderately severe muscle disability is found where there has been through and through or deep penetrating wound by small high velocity missile or large low-velocity missile, with debridement, prolonged infection, or sloughing of soft parts, and intermuscular scarring. There must be indications on palpation of loss of deep fascia, muscle substance, or normal firm resistance of muscles compared with sound side. Tests of strength and endurance compared with the sound side must demonstrate positive evidence of impairment. With severe muscle disability, there is evidence of wide damage to muscle groups in the missile track. There must be indications on palpation of loss of deep fascia or muscle substance, or soft, flabby muscles in the wound area. There must be severe impairment of function, that is, strength, endurance and coordination, of the involved muscle group. In addition, X-ray evidence of minute multiple scattered foreign bodies, or visible evidence of atrophy, may indicate a severe muscle disability. 38 C.F.R. § 4.56 (2007). The available service medical records indicate that the veteran sustained a shrapnel wound to his right leg in January 1945. One account notes the wound to be slight; another states that it was penetrating. The veteran was treated with Sulfa and returned to duty. A March 1952 VA examination report indicates a diagnosis of residual shrapnel wound right thigh and healed cicatrix. The examiner noted that there was involvement of Muscle Groups XIII and XV, without manifestation. On VA examination in October 1965, the narrative history indicated that the veteran suffered a through and through gunshot wound to the right thigh in 1945 and that he was hospitalized for one month. The examiner noted that the muscles involved were the gracilis, adductor magnus, and semitendinousus. He indicated that there was moderate muscle strength impairment of the adductor muscles of the thigh and flexor muscles of the knee. He stated that there was no bone involvement. The diagnosis was gunshot wound, through and through, old with healed scars, right thigh. In a November 1965 rating decision, the RO granted a 30 percent evaluation for the veteran's right thigh gunshot wound residuals. It specifically found that Muscle Groups XIII and XV were each moderately impaired, and that as they belonged to the same anatomical region, the next higher evaluation of moderately severe for the principal muscle group was applied. This assessment was correct under the regulations in effect prior to July 3, 1997. The instant claim for increase was received in January 2004, after the change in regulations. VA examinations were carried out in March 2004. On muscle examination, the examiner noted that the veteran had sustained a through and through gunshot wound to the right thigh in 1945, and that Muscle Groups XIII and XV were involved. The veteran reported moderate pain four to five times per week, lasting for several minutes and aggravated by prolonged walking and cold weather. Range of motion of the right hip and knee was full. There was no pain on motion of the hip, and slight pain on full range of motion of the knee. There was no instability. The veteran was noted to walk with a slightly impaired gait, using a cane. The examiner concluded that there was slight to moderate interference in occupational and daily activities. There was no tendon, bone, joint, or nerve damage. There was no weakness or gross atrophy due to the gunshot wound. The examiner concluded that there was no significant loss of muscle function. The diagnosis was healed scars, right thigh, residuals of gunshot wound, through and through; with residuals of injury to Muscle Groups XIII and XV. With respect to associated scars, the examiner noted a 1 1/4 by 1 cm. entry scar at the medial aspect of the right thigh, and a 1 1/4 by 1/2 cm. exit scar at the posterior aspect of the right thigh. The entry scar showed very slight adherence to underlying tissue and the exit scar was not adherent. There was no pain on examination. The scars were stable and nondepressed. There was no underlying tissue loss, and no inflammation, edema, or keloid formation. The scars were almost the same color as normal skin. There was no induration or inflexibility. The diagnosis was healed scars, right thigh, residuals of gunshot wound, through and through. As the current claim for increase was received after the change in regulation discussed above, the Board must determine whether separate evaluation of the injuries to Muscle Groups XIII and XV result in an evaluation higher than the currently assigned 30 percent. The current evaluation contemplates moderate muscle injury to each muscle group. Diagnostic Code 5313 provides evaluations for disability of Muscle Group XIII. The functions of these muscles include extension of hip and flexion of knee; outward and inward rotation of flexed knee; and acting with rectus femoris and sartorius (see XIV, 1, 2) synchronizing simultaneous flexion of hip and knee and extension of hip and knee by belt-over- pulley action at knee joint. The muscle group includes the posterior thigh group, hamstring complex of 2-joint muscles: (1) biceps femoris; (2) semimembranosus; and (3) semitendinosus. Disability under this provision is evaluated as noncompensable for slight disability, 10 percent for moderate disability, 30 percent for moderately severe disability, and 40 percent for severe disability38 C.F.R. § 4.73, Diagnostic Code 5313 (2007). Diagnostic Code 5315 provides evaluations for Muscle Group XV. The functions of this muscle group include adduction of hip, flexion of hip and flexion of knee. It includes the mesial thigh group muscles: (1) adductor longus; (2) adductor brevis; (3) adductor magnus; and (4) gracilis. Diagnostic Code 5315 provides for a 10 percent evaluation for moderate disability, a 20 percent evaluation for moderately severe disability, and a 30 percent evaluation for severe disability. 38 C.F.R. § 4.73, Diagnostic Code 5315 (2007). Under the current diagnostic criteria, moderate disability is evaluated as 10 percent disabling under Diagnostic Code 5313 and as 10 percent disabling under Diagnostic Code 5315. The combined evaluation under 38 C.F.R. § 4.25 would be 20 percent. In order to result in a higher combined evaluation, the evidence must show moderately severe disability of Muscle Group XIII, which would warrant a 30 percent evaluation and combine with the current 10 percent evaluation assigned to Muscle Group XV for a 40 percent evaluation. The Board also notes that evidence showing moderately severe disability of both muscle groups would result in a 30 percent evaluation for Muscle Group XIII and a 20 percent evaluation for Muscle Group XV, which would also result in a combined 40 percent evaluation. Review of the evidence leads the Board to conclude that higher evaluations are not warranted for the veteran's gunshot wound residuals of the right thigh. While the veteran complains of pain and functional limitation due to the injury, there is no evidence of tendon, bone, artery, nerve, or joint damage, or objective findings more nearly approximating a moderately severe muscle injury of either group. Review of the veteran's medical history does not reveal hospitalization following his injury. In fact, the service records clearly show that he was returned to duty after treatment with Sulfa. The initial VA examination in 1952 indicated that Muscle Groups XIII and XV were involved, but that there was no manifestation. There is no evidence documenting debridement, prolonged infection, sloughing of soft parts, or intermuscular scarring. Post-service records also fail to document indications on palpation of loss of deep fascia, muscle substance, or normal firm resistance compared with the sound side. Most recently, the 2004 VA examiner concluded that the impairment was slight to moderate and that there was no tendon, bone, joint, or nerve damage associated with the injury. Moreover, there was no weakness or gross atrophy and no significant loss of muscle function. There is no evidence that the veteran's right thigh symptomatology more nearly approximates a moderately severe muscle disability for either muscle group involved. In this regard, the 2004 VA examiner noted full range of motion, no instability, and only slight to moderate interference in occupational and daily activities. There was no tendon, bone, joint, or nerve damage, and no weakness or gross atrophy. The Board has also considered the provisions of DeLuca. However, the 2004 VA examiner specifically stated that there was no significant loss of muscle function and that range of motion of the hip and knee were full. Thus, ratings in excess of 10 percent are not warranted based on limitation of motion of the knee (Diagnostic Codes 5260 and 5261) or limitation of motion of the hip (Diagnostic Code 5252). While the veteran has associated scars, they are not of a severity or of size to warrant additional compensation under the rating criteria pertaining to scars. Specifically, the scars has been described as 1 1/4 by 1 cm. and 1 1/4 by 1/2 cm. The Board concludes that these manifestations are contemplated in the current 30 percent evaluation under Diagnostic Code 5313. In this regard the Board notes that the currently evaluation of moderately severe muscle disability under Diagnostic Code 5313 contemplates objective findings of entrance and exit scars that are relatively large and so situated as to indicate the track of the missile through the muscle groups. As such, to assign a separate evaluation under a diagnostic code pertinent to scars would constitute pyramiding as the veteran would be compensated twice for the same manifestations. See 38 C.F.R. § 4.14; Esteban. The Board has also considered the applicability of the benefit of the doubt doctrine. However, the preponderance of the evidence is against the veteran's claim for a rating in excess of 30 percent for residuals of a gunshot wound to the right thigh. Therefore, the benefit of the doubt doctrine is not applicable in the instant appeal. 38 U.S.C.A. § 5107 (West 2002); 38 C.F.R. §§ 4.3, 4.7. Scars The veteran seeks a compensable evaluation for a shrapnel fragment wound scar of the right knee. The scar is currently evaluated as noncompensably disabling pursuant to 38 C.F.R. § 4.118, Diagnostic Code 7805, which directs that a scar be evaluated based on limitation of function of the affected part. Diagnostic Code 7803 provides that superficial, unstable scars warrant assignment of a 10 percent evaluation. Note (1) defines an unstable scar as one where, for any reason, there is frequent loss of covering of skin over the scar. Note (2) defines a superficial scar as one not associated with underlying soft tissue damage. Diagnostic Code 7804 provides that superficial scars that are painful on examination warrant a 10 percent evaluation. Note (1) defines a superficial scar as one not associated with underlying soft tissue damage. Available service medical records do not include any notation of an injury to the veteran's right knee. They indicate only that the veteran sustained a shrapnel wound to his right leg in January 1945. VA examination report dating from February 1952 indicates that the veteran had a scar over his right knee which was depressed, nonadherent, and nonpainful. The scar has been measured as approximately 1 1/4 by 3/4 inches. Limitation of motion and atrophy associated with the scar have not been noted. The record also reflects a diagnosis of degenerative arthritis of the right knee. In response to the veteran's most recent claim for increase, a VA examination was carried out in March 2004. The examiner noted that the veteran had received a shrapnel wound on his right knee in 1945. The scar was measured as 2 by 3/4 cm. It was not painful and there was slight adherence to underlying tissue. Sight cicatrices were noted. The scar was stable. Slight depression was identified. There was no underlying soft tissue loss. There was no inflammation, edema, or keloid formation. The scar had the same color as normal skin. There was no induration or inflexibility, and no limitation of motion or other limitation of function caused by the scar. The diagnosis was healed scar, right knee, residual of shrapnel fragment wound. Having reviewed the evidence pertaining to the veteran's right knee shrapnel fragment wound scar, the Board has determined that a compensable evaluation is not warranted. The medical evidence of record indicates that the scar is not tender, painful, poorly nourished, subject to repeated ulceration, or productive of functional impairment. No other functional impairment has been attributed to the scar on the veteran's right knee. As such, the currently assigned noncompensable rating for this disability is appropriate. The Board acknowledges the veteran's report of pain and tenderness associated with his right knee. However, the medical evidence pertaining to this disability is more probative of the degree of impairment than the veteran's subjective statements, and that evidence demonstrates that there is no functional impairment that can be attributed to the scar. The preponderance of the evidence is against the claim and there is no doubt to be resolved. 38 U.S.C.A. § 5107 (West 2002); 38 C.F.R. §§ 4.3, 4.7. ORDER Entitlement to an increased rating for residuals of a gunshot wound to the right thigh, involving Muscle Groups XIII and XV is denied Entitlement to a compensable rating for a shrapnel wound scar of the right knee is denied. ____________________________________________ H. N. SCHWARTZ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs