Citation Nr: 0815159 Decision Date: 05/07/08 Archive Date: 05/14/08 DOCKET NO. 04-03 014 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Manila, the Republic of the Philippines THE ISSUE Entitlement to an increased rating for residuals of a shrapnel wound to the left thigh with involvement of the vastus lateralis muscle, currently evaluated as 30 percent disabling. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD J. Barone, Counsel INTRODUCTION The veteran had service in the Philippine Commonwealth Army from December 1941 to April 1942 and from February 1945 to June 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. FINDING OF FACT Residuals of a shrapnel wound of the left thigh are manifested by subjective complaints of pain, stiffness, and numbness, without evidence of muscle, tendon, bone, artery, nerve, or joint damage, or objective findings more nearly approximating a moderately severe muscle injury. CONCLUSION OF LAW The criteria for an evaluation in excess of 30 percent for residuals of a shrapnel wound of the left thigh have not been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.73, Diagnostic Code 5314 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSION 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). The Board also notes that 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. A letter was sent to the veteran in March 2003, prior to the initial adjudication of his claim for increase. This letter advised the veteran that he was free to submit additional medical evidence showing that his left thigh shrapnel wound had increased in severity and indicated that the best evidence for that purpose was a statement by a treating physician. The veteran was told that VA would attempt to secure any additional records that were adequately identified. He was advised that a VA examination would be scheduled. In August 2006 the veteran was asked to provide addresses for the private physicians he had previously identified. He was advised that entitlement to an increased evaluation required evidence showing that his service-connected disability was worse. The evidence of record was listed and the veteran was told how VA would assist him in obtaining additional relevant evidence. This letter also discussed the manner in which VA determines disability ratings and effective dates. With respect to the timing of VCAA notice, the Board finds that any defect was harmless error. Although the notices were provided to the veteran both before and after the initial adjudication, the veteran has not been prejudiced thereby. The content of the notice provided to the veteran fully complied with the requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) regarding VA's duty to notify. The veteran has been provided with every opportunity to submit evidence and argument in support of his claim and to respond to VA notices. Further, the Board finds that the purpose behind the notice requirement has been satisfied because the veteran has been afforded a meaningful opportunity to participate effectively in the processing of his claim. Therefore, although the veteran received inadequate preadjudicatory notice, and that error is presumed prejudicial, the record reflects that he was provided with a meaningful opportunity during the pendency of his appeal such that the preadjudicatory notice error did not affect the essential fairness of the adjudication now on appeal. As the Federal Circuit Court has stated, it is not required "that VCAA notification must always be contained in a single communication from the VA." Mayfield, supra, 444 F.3d at 1333. The Board has also 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 August 2006 letter advised the veteran that, in evaluating claims for increase, VA looks at the nature and symptoms of the condition, the severity and duration of the symptoms, and their impact on employment. The letter did not advise the veteran whether the Diagnostic Codes pertinent to the disability 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 the August 2003 statement of the case, the veteran was provided with the applicable law and criteria required for a higher evaluation. The veteran had an opportunity to respond to the statement of the case, and was subsequently issued supplemental statements of the case beginning in July 2004. Moreover, in his September 2003 substantive appeal, the veteran stated that his disability was severe and that the rating should be higher. In essence, the record demonstrates that the veteran was made aware of the evidence necessary to substantiate his claim for increase, and that he demonstrated such knowledge. 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. Examinations of the veteran's service-connected disability have been conducted. Neither the veteran nor his representative has identified any additional evidence or information which could be obtained to substantiate the claim. 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. Factual Background No service medical records are available. On VA examination in May 1952, the veteran complained of pain in his left thigh and weakness of the left lower extremity. He reported that he had been wounded in April 1942 at Talisay River, Bataan. Examination revealed a normal gait. There was a long shrapnel wound scar on the lateral aspect of the junction of the upper and middle third of the left thigh. It was a grazing scar which was noted to be adherent and nonpainful, measuring 4 1/2 by 1 inches. The examiner indicated that there was hypoesthesia of the scar and the surrounding area. There was no atrophy of any of the muscles of the left lower extremity. There was no impairment of function of the joints of the left lower extremity. The diagnosis was residual of a shrapnel fragment wound of the left thigh, with a healed scar, hypoesthesia, and moderate injury to Muscle Group XIV. In the August 1952 rating decision which granted service connection, the RO noted that there were no service medical records. It indicated that there was an allegation of a shrapnel wound in an October 1947 processing affidavit and that it was supported by statements by a former comrade whose service had been verified. A rating decision of July 1958 increased the evaluation of the veteran's left thigh disability to 30 percent. The instant claim for increase was received in January 2003. The veteran asserted that he had nerve damage in his leg because he had pain radiating up and down his leg and into his back. He stated that he had to walk with a cane because of the change in his gait and weakness in his leg. On VA examination in March 2003, the veteran reported pain in his leg for which he took Tylenol two to three times per week. He noted that he had been using a cane for two years due to weakness in the leg. He stated that he had never worked. There was a 14 by 1 cm. nontender scar on the lateral aspect of the veteran's left leg. There were no adhesions, tendon damage, or bone, joint or nerve damage. There was slight weakness of the left leg movements as compared to the right. There was no muscle herniation and no loss of muscle function. The veteran's gait was normal. The diagnosis was residuals of a shrapnel fragment wound of the left thigh, vastus lateralis muscle. Records from the veteran's private physician note the veteran's left lower extremity pains. An August 2003 examination report by C.C.F.W., M.D. notes a 6-inch longitudinal scar along the left lower limb at the left hip. The scar was well healed, but there was apparent partial weakness of the left gluteal medius and maximus, as well as the left vastus lateralis of the left quadriceps. Dr. W. noted atrophy of the left gluteal muscles. He indicated that the veteran walked with a limping gait due to weakness in his left hip and knee. A March 2004 VA treatment record reflects the veteran's report of left leg pain which improved with Tylenol. In August 2004, E.M.C., M.D. indicated that the veteran was having increased lower extremity pains. An additional VA examination was carried out in August 2007. The veteran reported that after his injury, he underwent surgery and the shrapnel was removed. The examiner noted that there was no X-ray evidence of retained fragments. The veteran's principal complaint was of pain during cold weather. He reported that he took Tylenol with some good results. He denied additional limitation of motion or functional impairment during flare-ups. The examiner noted that the vastus lateralis was the only muscle involved, and that the entry wound was from the lateral aspect of the left thigh. There was no tissue loss and the scar was approximately 5 1/2 inches by 1/2 inch. The scar was neither sensitive nor tender, and there were no adhesions. There was no tendon, nerve, or bone damage. Muscle strength appeared to be equal in the lower extremities and there was no loss of muscle tone. There was no muscle herniation and no loss of muscle function. Range of motion testing of the left knee revealed flexion to 92 degrees and extension to -3 degrees. There was no additional pain or limitation of motion after repetitive movement. Range of motion of the hips was markedly decreased secondary to degenerative joint disease, with flexion to 98 degrees, extension to 22 degrees, adduction to 18 degrees, abduction to 38 degrees, and internal rotation to 38 degrees. Repeated motion did not produced greater limitation of motion, though the veteran stopped due to stiffness. There was no additional limitation of the knee or hip due to pain. The diagnosis was status post shrapnel, left lateral aspect of the thigh. The examiner concluded that the disability was moderate and that there was no loss of power, and any weakness, fatigue, pain, or impairment of coordination. He did note stiffness. He indicated that there was no evidence of any loss of muscle substance or any fascia, because both lower extremities appeared to be the same during examination. He indicated that there was no impairment of muscle tone and no evidence of any foreign bodies in the left thigh. He stated that there were no nerves affected by the wound and no impairment of sensation paralysis, neuritis, or neuralgia. 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). 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. The factors to be considered in evaluating disabilities residual to healed wounds involving muscle groups are set forth in 38 C.F.R. §§ 4.55, 4.56. A muscle injury evaluation will not be combined with a peripheral nerve paralysis evaluation of the same body part unless the injuries affect entirely different functions. 38 C.F.R. § 4.55(a). A through and through injury with muscle damage shall be evaluated as no less than a moderate injury for each group of muscles damaged. 38 C.F.R. § 4.56(b). For VA rating purposes, the cardinal signs and symptoms of muscle disability are loss of power, weakness, lowered threshold of fatigue, fatigue-pain, impairment of coordination and uncertainty of movement. 38 C.F.R. § 4.56(c). The type of injury associated with a moderate muscle disability is 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. A history with regard to this type of injury should include service department evidence or other evidence of in-service treatment for the wound and consistent complaints of one or more of the cardinal signs and symptoms of muscle disability, particularly lowered threshold of fatigue after average use affecting the particular functions controlled by the injured muscles. Objective findings should include entrance and (if present) exit scars, small or linear, indicating short track of missile through muscle tissue and 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. 38 C.F.R. § 4.56(d)(2). The type of injury associated with a moderately severe muscle disability is a through and through or deep penetrating wound by a small high-velocity missile or large low-velocity missile, with debridement, prolonged infection, or sloughing of soft parts, and intermuscular scarring. A history with regard to this type of injury should include prolonged hospitalization in service for treatment of wound, consistent complaints of cardinal signs and symptoms of muscle disability, and, if present, evidence of inability to keep up with work requirements. Objective findings should include entrance and (if present) exit scars indicating the track of the missile through one or more muscle groups, and indications on palpation of loss of deep fascia, muscle substance, or normal firm resistance of muscles compared with the sound side. Tests of strength and endurance compared with sound side should demonstrate positive evidence of impairment. 38 C.F.R. § 4.56(d)(3). The type of injury associated with a severe muscle disability is a through and through or deep penetrating wound by a small 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, and intermuscular binding and scarring. A history with regard to this type of injury should include prolonged hospitalization in service for treatment of wound, consistent complaints of cardinal signs and symptoms of muscle disability, worse than those shown for moderately severe muscle injuries, and, if present, evidence of inability to keep up with work requirements. Objective findings should include ragged, depressed, and adherent scars indicating wide damage to muscle groups in missile track, and indications on palpation of loss of deep fascia, muscle substance, or soft flabby muscles in wound area. Also, muscles swell and harden abnormally in contraction. Tests of strength, endurance, or coordinated movements compared with the corresponding muscles of the uninjured side should indicate severe impairment of function. If present, the following are also signs of severe muscle disability: (A) X- ray evidence of minute multiple scattered foreign bodies indicating intermuscular trauma and explosive effect of missile; (B) adhesion of scar to one of the long bones, scapula, pelvic bone, sacrum, or vertebrae, with epithelial sealing over the bone, rather than true skin covering in an area where bone is normally protected by muscle; (C) diminished muscle excitability to pulsed electrical current in electrodiagnostic tests; (D) visible or measurable atrophy; (E) adaptive contraction of an opposing group of muscles; (F) atrophy of muscle groups not in the track of the missile, particularly of the trapezius and serratus in wounds of the shoulder girdle; and (G) induration or atrophy of an entire muscle following simple piercing by a projectile. 38 C.F.R. § 4.56(d)(4). In rating musculoskeletal disabilities, 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). 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. 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. In accordance with 38 C.F.R. §§ 4.1, 4.2, 4.41, 4.42 and Schafrath v. Derwinski, 1 Vet. App. 589 (1991), the Board has reviewed all evidence of record pertaining to the history of the veteran's service-connected left thigh disability. The Board has found nothing in the historical record that would lead to the conclusion that the current evidence of record is not adequate for rating purposes. The Board is of the opinion that this case presents no evidentiary considerations that would warrant an exposition of remote clinical histories and findings pertaining to this disability beyond that which is set out herein below. In an increased rating case the present disability level is the primary concern and past medical reports do not take precedence over current findings. Francisco v. Brown, 7 Vet. App. 55 (1994). The veteran's left thigh shrapnel wound is rated as 30 percent disabling under Diagnostic Code 5314. Diagnostic Code 5314 applies to residuals of injury to Muscle Group XIV, namely the anterior thigh group, to include the sartorius, rectus femoris, vastus externus, vastus intermedius, vastus internus, and tensor vaginae femoris. The function of these muscles is extension of the knee; simultaneous flexion of the hip and flexion of the knee; tension of fascia lata and iliotibial (Maissiat's) band, acting with Muscle Group XVII in postural support of the body; and acting with the hamstrings in synchronizing the hip and knee. Diagnostic Code 5314 provides for a 30 percent evaluation for a moderately severe disability and a 40 percent evaluation for a severe disability. 38 C.F.R. § 4.73, Diagnostic Code 5314. After a review of the evidence, the Board finds that the veteran is not entitled to a rating in excess of 30 percent for his service-connected left thigh shrapnel wound. Such disability is manifested by occasional or intermittent subjective complaints such as stiffness, pain, and limitation of motion of the knee. However, there is no evidence of tendon, bone, artery, nerve, or joint damage, or objective findings more nearly approximating a severe muscle injury. As indicated previously, there must be evidence of a severe muscle disability in order to warrant a rating in excess of 30 percent. While there are no service medical records documenting his treatment, the postservice VA examination in 1952 revealed a scar but no apparent disability of the lower extremity. Therefore, at the time of the VA examination, the evidence of record failed to demonstrate consistent complaints of cardinal signs and symptoms of muscle disability. The Board also observes that there was no evidence of a missile track through one or more muscle groups, loss of deep fascia, muscle substance, or normal firm resistance of muscles compared to the sound side, or, positive evidence of impairment on tests of strength and endurance when compared with the sound side. Rather, examinations have demonstrated only slight weakness of the left leg as compared to the right, and no loss of muscle function. Likewise, the remainder of the post-service medical records fail to demonstrate consistent complaints of cardinal signs and symptoms of muscle disability, evidence of inability to keep up with work requirements, or objective findings indicative of a severe muscle disability. While Dr. C. has reported left lower extremity pain, she has not indicated a severe muscle disability related to the veteran's in-service shrapnel wound. The Board has considered the provisions of DeLuca, and notes that, the 2007 VA examiner reported that repetitive motion was limited by stiffness. However, the post-service medical evidence consistently demonstrates that there is no muscle, tendon, bone, artery, nerve, or joint damage as a result of the veteran's left thigh shrapnel wound. Rather, limited range of motion of the left hip has been noted to be caused by degenerative joint disease and not by the in-service shrapnel wound. Moreover, while there is documented limitation of motion of the left knee, such does not provide a basis for a higher evaluation. Thus, ratings in excess of 30 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 an entrance scar, such is not of a severity or of a size so as to warrant additional compensation under the rating criteria pertaining to scars. Specifically, the scar has been described as 4 1/2 by 1 inches and well healed. On examination in 2007, the scar was not tender or sensitive. There were no adhesions. Therefore, the Board finds that such symptomatology is already contemplated in the 30 percent evaluation under Diagnostic Code 5314. In this regard the Board notes that moderately severe muscle disability under Diagnostic Code 5314 contemplates objective findings of entrance scars indicating the track of the missile. As such, to assign a separate evaluation under a diagnostic code pertinent to scars would be pyramiding as the veteran would be compensated twice for the same manifestations. See 38 C.F.R. § 4.14; Esteban. Moreover, there is no evidence that the veteran's left thigh symptomatology more nearly approximates a severe muscle disability. In this regard, the evidence shows that muscle strength in the left thigh was equal to the right on examination in 2007. There is otherwise no evidence indicating wide damage to muscle groups in the missile track or indications of loss of deep fascia, muscle substance, or soft flabby muscles in the wound area. In fact, the medical evidence includes repeated findings of no muscle herniation or loss of muscle function. Therefore, insofar as the veteran demonstrated pain and limitation of motion, the Board finds that such is contemplated in the 30 percent evaluation under Diagnostic Code 5314. Based on the foregoing, the Board finds that the preponderance of the evidence fails to demonstrate that the veteran's left thigh symptomatology more nearly approximates a severe muscle disability. Therefore, the veteran is not entitled to a rating in excess of 30 percent for this disability. Consideration has also been given to the potential application of the various provisions of 38 C.F.R. Parts 3 and 4, as required by Schafrath v. Derwinski, 1 Vet. App. 589 (1991). However, the Board finds no basis upon which to assign a higher evaluation than that currently assigned to the veteran's left thigh disability. Specifically, the evidence of record fails to demonstrate any muscle, tendon, bone, artery, nerve, or joint damage. Therefore, a review of the record, to include the veteran's subjective complaints and the objective medical evidence, otherwise fails to reveal any additional functional impairment associated with the veteran's right leg disability to warrant consideration of alternate rating codes. 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 left thigh shrapnel wound. 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. ORDER Entitlement to an increased rating for residuals of a shrapnel wound to the left thigh with involvement of the vastus lateralis muscle is denied. ____________________________________________ H. N. SCHWARTZ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs