Citation Nr: 1126898 Decision Date: 07/19/11 Archive Date: 07/29/11 DOCKET NO. 06-09 467 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUES 1. Entitlement to an increased rating for residuals of a gunshot wound to the left leg, Muscle Group XII, with peroneal and posterior tibial nerve damage, currently assigned a 20 percent evaluation. 2. Entitlement to an increased rating for residuals of a gunshot wound to the left thigh, Muscle Group XIII, currently assigned a 10 percent evaluation. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD K. Hudson, Counsel INTRODUCTION The Veteran had active service from September 1968 to October 1969. During his Vietnam service, he was awarded the Purple Heart Medal and the Combat Action Ribbon. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a regional office (RO) rating decision of October 2005, which denied the Veteran's claim for increased ratings for his service-connected gunshot wound residuals. The appeal was remanded in February 2010. During the course of the appeal, in a July 2010 rating decision, the Veteran was granted service connection for gunshot wound scars of the left mid-lower leg, with 10 percent ratings assigned for two scars from June 2005 to May 2010, at which time noncompensable ratings were assigned. In addition, he was granted service connection for a left thigh gunshot wound scar, rated noncompensable. He did not appeal these ratings, and, therefore, the issues of the ratings for the scars are not before the Board. FINDINGS OF FACT 1. Residuals of a gunshot wound to the left lower leg are manifested by entrance and exit wound scars, one of which is slightly depressed and adherent, peroneal and posterior tibial nerve damage with sensory impairment only, with complaints of pain, mild atrophy, and an occasional limp, more closely approximating moderately severe disability. 2. Residuals of a gunshot wound to the left thigh are manifested by a slightly depressed entrance scar, mild atrophy, and mild loss of strength, reflective of moderate injury. 3. The schedular criteria are adequate. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 20 percent for residuals of a gunshot wound to the left leg, Muscle Group XII, with peroneal and posterior tibial nerve damage, have not been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.321, 4.55, 4.56, 4.73, Diagnostic Code 5312 (2010). 2. The criteria for a rating in excess of 10 percent for residuals of a gunshot wound to the left thigh, Muscle Group XIII, have not been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.321, 4.55, 4.56, 4.73, Diagnostic Code 5312 (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Veterans Claims Assistance Act of 2000 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); 38 C.F.R. § 3.159(b). In a letter dated in August 2005, the RO notified the Veteran of the information necessary to substantiate the claims on appeal, and of his and VA's respective obligations for obtaining specified different types of evidence. In a letter dated in May 2008, he was informed 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., treatment records, or statements of personal observations from other individuals. He was informed 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. Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008). This letter also provided the diagnostic criteria for the evaluation of disabilities of muscle groups XII and XIII. Other notice requirements mandated by Vazquez-Flores were found to be beyond the scope of notice required by the VCAA in a Federal Circuit Court decision which vacated that decision. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. Sep. 4, 2009). Specifically, the Federal Circuit Court held that that VCAA notice need not be Veteran specific, or refer to the effect of the disability on "daily life." Although the above letters were not sent until after the initial adjudication of the claims, they were followed by readjudication and the issuance of supplemental statement of the case, most recently in July 2010. See Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006) (the issuance of a fully compliant VCAA notification followed by readjudication of the claim, such as an SOC or SSOC, is sufficient to cure a timing defect). VA also has a duty to assist the Veteran by making all reasonable efforts to help a claimant obtain evidence necessary to substantiate a claim. 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159(c) (2010). Available service treatment records have been obtained. VA treatment records have been obtained, although they do not show treatment for the gunshot wound residuals. The appellant has not identified any other potentially relevant records. VA examinations were provided in January 2004, August 2005, and May 2010. Taken together, the examinations described the disabilities in sufficient detail for the Board to make an informed decision on the issues decided below. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). In this regard, the Veteran failed to report for a scheduled electromyogram test in June 2010. The duty to assist "is not always a one-way street" and, "[i]f a Veteran wishes help, he cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining the putative evidence." Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). There is no evidence indicating that there has been a material change in the service-connected disorder since this last evaluation. 38 C.F.R. § 3.327(a). Thus, the Board finds that all necessary notification and development has been accomplished, and therefore appellate review may proceed without prejudice to the appellant. See Bernard v. Brown, 4 Vet. App. 384 (1993). Significantly, neither the appellant nor his representative has identified, and the record does not otherwise indicate, any additional existing evidence that is necessary for a fair adjudication of the claim that has not been obtained. Hence, no further notice or assistance to the appellant is required to fulfill VA's duty to assist the appellant in the development of the claims. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). II. Increased ratings Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C.A § 1155; 38 C.F.R. Part 4. Although the disability must be considered in the context of the whole recorded history, including service medical records, the present level of disability is of primary concern in determining the current rating to be assigned. See 38 C.F.R. § 4.2 (2007); Francisco v. Brown, 7 Vet. App. 55 (1994); Schafrath v. Derwinski, 1 Vet. App. 589 (1991). If the disability has undergone varying and distinct levels of severity throughout the entire time period the increased rating claim has been pending, staged ratings may be assigned. Hart v. Mansfield, 21 Vet. App. 505 (2007). Generally, injuries affecting gunshot and shell fragment wounds are evaluated as muscle injuries, under 38 C.F.R. § 4.73. Diagnostic Codes 5301-5323 explain the function and location of 23 muscle groups for which rating criteria are provided. Ratings are assigned under each code based on whether the muscle injury is slight, moderate, moderately severe, or severe. To determine the severity of the injury, it is necessary to look at the type of injury, history and complaint, and objective findings. 38 C.F.R. § 4.56(d). Additionally, the cardinal signs and symptoms of muscle disability for VA purposes are loss of power, weakness, lowered threshold of fatigue, fatigue-pain, impairment of coordination, and uncertainty of movement. 3 8 C.F.R. § 4.56(c). Muscle injuries are classified into four general categories; slight, moderate, moderately severe, and severe. The factors considered in evaluating the severity of a muscle injury are the velocity, trajectory and size of the missile which inflicted the wounds; the extent of the initial injury and duration of the hospitalization; the therapeutic measures required to treat the disability; and the current objective findings, such as evidence of damage to muscles, nerves and bones which results in pain, weakness, limited or excessive motion, shortening of extremities, scarring or loss of sensation. 38 C.F.R. § 4.56. "Slight" disability of muscles results from a simple wound of muscle without debridement or infection. There is service department record of superficial wound with brief treatment and return to duty, and of healing with good functional results. There are no cardinal signs or symptoms of muscle disability, minimal scar, and no evidence of fascial defect, atrophy, or impaired tonus. There is no impairment of function or metallic fragments retained in muscle tissue. 38 C.F.R. § 4.56(d)(1). "Moderate" disability of the muscles is shown by through-and-through or deep penetrating wounds of short track by a single bullet, small shell, or shrapnel fragment, without the explosive effect of a high velocity missile, residuals of debridement or prolonged infection. The history of a moderate muscle disability includes service department records of in-service treatment for the wound and a record of consistent complaint of one or more of the cardinal signs and symptoms of muscle disability, particularly a lowered threshold of fatigue after use which affects the particular functions controlled by the injured muscles. Objective findings include small or linear entrance and (if present) exit scars which indicate a short track of the missile through muscle tissue, some loss of deep fascia or muscle substance, impairment of muscle tonus and loss of power, or a lowered threshold of fatigue when compared to the sound side. 38 C.F.R. § 4.56(d)(2). A "moderately severe" disability of the muscles is shown by a through-and-through or deep penetrating wound, by a small high velocity missile or a large low velocity missile, with debridement, prolonged infection, or sloughing of soft parts, and intermuscular scarring. History and complaints of this injury include a record of hospitalization for a prolonged period for treatment of a wound, a record of consistent complaint of cardinal signs and symptoms of muscle disability, and, if present, evidence of an inability to keep up with work requirements. Objective findings of a moderately severe muscle wound are entrance and (if present) exit scars indicating the track of the missile through important muscle groups; indications on palpation of moderate loss of deep fascia, muscle substance, or normal firm resistance of muscles compared with the sound side; and tests of strength and endurance compared with the sound side demonstrating positive evidence of impairment. 38 C.F.R. § 4.56(d)(3). "Severe" disability consists of 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. Furthermore, objective findings of a severe disability include the following: ragged, depressed, and adherent scars that indicate wide damage to the muscle groups in the missile track; palpation shows loss of deep fascia or muscle substance, or soft flabby muscles in the wound area; muscles swell and harden abnormally in contraction; and tests of strength, endurance, or coordinated movements in comparison to the corresponding muscles of the uninjured side indicate severe impairment of function. 38 C.F.R. § 4.56. If present, the following are also signs of severe muscle disability: (1) X-ray evidence of minute multiple scattered foreign bodies indicating intermuscular trauma and explosive effect of the missile; (2) adhesion of a scar to one of the long bones, scapula, pelvic bones, sacrum, or vertebrae, with epithelial sealing over the bone rather than true skin covering in an area where the bone is normally protected by muscle; (3) diminished muscle excitability to pulsed electrical current in electrodiagnostic tests; (4) visible or measurable atrophy; (5) adaptive contraction of an opposing group of muscles; (6) atrophy of muscle groups not in the tract of the missile, particularly of the trapezius and serratus in wounds of the shoulder girdle; and (7) induration or atrophy of an entire muscle following simple piercing by a projectile. 38 C.F.R. § 4.56. Factual Background Service treatment records do not show the initial treatment that the Veteran received for the gunshot wound of the left leg and left thigh he sustained on June 17, 1969, while on active duty in Vietnam. He was air evacuated to the Great Lakes Naval Hospital in July 1969. According to the summary of that hospitalization, he underwent initial debridement, followed by delayed secondary skin closure on June 23, 1969. He was noted to have left foot weakness on dorsiflexion and plantar flexion with some minimal left calf muscles atrophy. There was loss of sensation on the dorsum of the foot as well as weakness in the dorsiflexion and plantar flexion of the left foot. The pulses were good. An electromyogram revealed left peroneal nerve compromise with minimal irritation and mild to moderate loss of function in the distal branches and second mild, moderate irritation in the left posterior tibial nerve with mild loss of function. He underwent physical therapy while hospitalized. At the time of discharge in August 1969, he was fully ambulatory, without a limp. On a VA examination in May 1970, the Veteran had a post-surgical scar from a transversing bullet track through the lateral left leg. Posteriorly high up in the left thigh was a surgical scar from a superficial bullet wound. There was normal range of motion in the hip and knee joints. In a June 1970 rating decision, he was granted service connection for moderately severe gunshot wound of muscle group XII of the left leg, with history of peroneal and posterior tibial nerve damage, evaluated 20 percent disabling. In addition, he was granted service connection for a moderate gunshot wound of the left thigh, muscle group XIII, evaluated 10 percent disabling. On a VA examination in January 2004, the Veteran said that he had aching in his left leg, especially on prolonged standing and walking, which had worsened over the prior two years or so. He had to use a cane at times. On examination, he walked with a limp, using a cane. There was a 1-inch sensitive scar over the mid-leg without adhesions, keloid formation, or tissue loss. A 3-inch scar over the left calf was mildly adherent, and there was tissue loss present. Ankle motion was full and power was 4/5. There was dull sensation in the anterior part of the leg. On the left thigh, there was a 5-inch scar, without adhesion or tissue loss. Knee motion was full and painless. X-rays revealed no evidence of any foreign body. A VA examination in August 2005 disclosed complaints of pain below the knee on the left leg, as well as around the knee. Occasionally, he had a sharp jolting pain, which caused him to limp. The Veteran walked with a mild limp on examination. The examination of the scars was essentially the same as on the January 2004 examination. It was also noted that the left calf measured smaller than the right. Electrodiagnostic studies disclosed sensory motor neuropathy. Specifically, there were normal motor conduction velocities of the bilateral peroneal and tibial nerves with reduced amplitude of compound muscle action potentials of the left peroneal and bilateral tibial nerves. Sural sensory response was unobtainable bilaterally. Electromyogram showed evidence of chronic ongoing denervation of the left abductor hallucis. There was markedly reduced recruitment noted in the left extensor digitorum brevis. The impression was sensori-motor peripheral neuropathy of the lower extremities, with superimposed left peroneal and tibial neuropathy from old injury which could not be ruled out. The Veteran testified at an RO hearing in April 2006. It was stated, by his representative, that the scar on the front of the lower left leg had a one-inch deep depression. The Veteran said that sometimes he had pains in the leg, and that sometimes the leg would give way and he would fall. On a VA examination in May 2010, the Veteran reported pain in the left lower extremity. He also had minimal hyperesthesia over the left lower leg scars. He said the pain was worse with prolonged standing and walking. He also gave a history of muscle cramps, particularly after walking. He also complained of weakness in the left thigh and left lower leg muscles. He denied any foot-drop. On examination, there were diminished sensations over the scars. There was minimal wasting of the muscles of the left thigh, with the left thigh measuring one inch less than the right thigh. The left thigh scar measured 5 inches by 0.3 inches, and was slightly depressed about 2 to 3 mm. Sensation was diminished over the scars, which was not tender or otherwise symptomatic. There were no adhesions or tendon damage. Muscle power was slightly diminished at 4/5. There was minimal wasting of the muscles of the left mid-calf area, around the scars, involving the group XII muscles. Sensations were diminished over and around the scars. The left lower leg had a 2.5 by 0.3 inch scar over the antero-lateral aspect of the left mid lower leg. It was not depressed, indurated or inflexible. A scar over the posterior aspect of the left mid lower leg measured 4 by 1 inches, and was slightly depressed, about 3 to 4 mm. There was a hyperesthesia present in the distal part of the left lower leg, extending to the left foot. The left calf was 1/2 inch less than the right calf measurement. There was minimal weakness of the muscles present and the power of the muscles in group XII was 4/5. There was no obvious foot-drop. Coordination was normal. The Veteran was walking normally without any cane or walker. Analysis The Veteran contends that his gunshot wounds should be evaluated as severe muscle injuries. He states that his initial injury was a through-and-through wound from a high velocity missile, with nerve damage. He states that he gets pains in his leg, and that sometimes his leg gives way, causing him to fall. As noted above, during the course of the appeal, in a July 2010 rating decision, the Veteran was granted service connection for scars of the left mid-lower leg, with 10 percent ratings assigned for two scars from June 2005 to May 2010, at which time noncompensable ratings were assigned. In addition, he was granted service connection for a left thigh scar, rated noncompensable. See 38 C.F.R. § 4.14; Esteban v. Brown, 6 Vet.App. 259, 262 (1994) (Separate ratings may be assigned for symptoms, such as scars, which are not "duplicative of or overlapping with the symptomatology" of the underlying condition.). Nevertheless, pyramiding, that is, the evaluation of the same disability, or the same manifestation of a disability, under different diagnostic codes, is to be avoided when evaluating a Veteran's service-connected disability. 38 C.F.R. § 4.14 (2010). The Veteran's scars are rated under Diagnostic Code 7804, which pertains to scars that are unstable and/or painful. 38 C.F.R. § 4.114, Code 7804 (2010). Therefore, these symptoms of scars, if present, will not be considered in the evaluation under the diagnostic codes pertaining to muscle groups, which will focus on any underlying scar damage. Left lower leg wound residuals The Veteran's lower leg gunshot wound residuals have been evaluated as Muscle Group XII, which affects dorsiflexion, extension of the toes, stabilization of the arch and involves the anterior muscles of the leg. 38 C.F.R. § 4.73, Code 5312. Under this code, a slight injury is rated as noncompensable, a moderate injury is rated as 10 percent disabling, a moderately severe injury is rated as 30 percent disabling and a severe injury is rated as 40 percent disabling. Id. The Veteran is currently in receipt of a 20 percent rating, reflecting moderately severe injury. A muscle injury rating will not be combined with a peripheral nerve paralysis rating of the same body part, unless the injuries affect entirely different functions. 38 C.F.R. § 4.55(a) (2010). The evidence reflects that the left leg gunshot wound is best characterized as "moderately severe." In this regard, this contemplates a through-and-through or deep penetrating wound, by a small high velocity missile. The Veteran underwent debridement, but no prolonged infection, or sloughing of soft parts. Although intermuscular scarring has not been shown, tissue loss is present. He was hospitalized for two months. He has cardinal signs and symptoms of muscle disability, in particular, loss of power. Entrance and exit scars are present, but do not reflect loss of deep fascia, and loss of muscle substance, or normal firm resistance of muscles compared with the sound side was moderate. The evidence does not reflect the size of the missile, but there was no fracture or other bony involvement, much less a shattering bone fracture or open comminuted fracture with extensive debridement. The scars are not ragged, and although one scar is depressed and adherent, the depression is no more than 4 mm, which is about 0.16 of an inch, or slightly more than 1/8 inch, and not the 1-inch deep depression described at the Veteran's hearing. There is no indication of wide damage to the muscle group in the missile track, without loss of deep fascia or muscle substance, or soft flabby muscles in the wound area. Muscle testing disclosed slight, not severe, impairment. Coordination is normal. Although there is nerve involvement, throughout the appeal period, this has been limited to hyperesthesia. In sum, the left leg gunshot wound residuals are manifested by complaints of pain, mild atrophy, entry and exit wound scars, one of which is slightly depressed and adherent, and sensory nerve impairment. From time to time, the Veteran walks with a limp, and on occasion uses a cane. His symptoms more closely approximate the moderately severe disability contemplated by the currently assigned 20 percent rating. There is no evidence suggesting that a higher rating was warranted for any identifiable time period during the appeal period. In reaching this determination, the Board is mindful that all reasonable doubt is to be resolved in the Veteran's favor. The preponderance of the evidence, however, is against the claim, and the claim must be denied. 38 U.S.C.A. § 5107(b); see Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Left thigh wound residuals The muscles involved in Muscle Group XIII include the posterior thigh and hamstring complex, including the biceps femoris, the semimembranosus, and the semitendinosus. 38 C.F.R. § 4.73, Diagnostic Code 5313. Functions of Muscle Group XIII include extension of the hip and flexion of the knee, outward and inward rotation of the flexed knee, acting with the rectus femoris and sartorius synchronizing simultaneous flexion of the hip and knee, and extension of the hip and knee by belt-over-pulley action at the knee joint. Under this code, a slight injury is rated as noncompensable, a moderate injury is rated as 10 percent disabling, a moderately severe injury is rated as 30 percent disabling and a severe injury is rated as 40 percent disabling. Id. Currently, this injury is rated as moderate, with a 10 percent rating in effect. Concerning this injury, service treatment records state that the Veteran's gunshot wounds required debridement and prolonged hospitalization, without specifying the treatment required for each wound. This wound, however, was not a through-and-through wound. By the time of the May 1970 VA examination, the scar was described as superficial. The Veteran has stated that the bullet passed through the lower leg and then entered the thigh. Although he has wasting or atrophy in the left thigh, this has been described as minimal. The scar on the thigh, although 5 inches long, does not have any underlying tissue loss or adhesion. There is slight depression of the scar, of no more than 3 mm. The evidence does not show nerve involvement of the thigh area, and in service, the involvement was limited to the peroneal and tibial nerves. Coordination is normal. In sum, the thigh injury itself was not more than moderate, and the degree of impairment consists chiefly of loss of muscle tonus and power, and is reflective of moderate injury. Thus, as a whole, the symptoms of the Veteran's left thigh gunshot wound residuals more closely approximate the moderate disability contemplated by the currently assigned 10 percent rating. There is no evidence suggesting that a higher rating was warranted for any identifiable time period during the appeal period. Accordingly, the preponderance of the evidence is against the claim, the benefit-of-the-doubt does not apply, and the claim must be denied. 38 U.S.C.A. § 5107(b). Extraschedular The Veteran's gunshot wound residuals may well cause some impairment in some activities. The evidence, however, does not suggest that the rating criteria are inadequate to describe his gunshot wound residuals, and, consequently, the question of an extraschedular evaluation is not raised. See Barringer v. Peak, No. 06-3088 (U.S. Vet. App. Sept. 16, 2008); Thun v. Peake, 22 Vet. App. 111 (2008). In this regard, the rating schedule provides for higher evaluations for his shell fragment wounds, and there is no symptomatology pertaining to the disabilities at issue which the Board has not considered in its evaluation. ORDER Entitlement to an evaluation in excess of 20 percent for of a gunshot wound to the left leg, Muscle Group XII, with peroneal and posterior tibial nerve damage, is denied. Entitlement to an evaluation in excess of 10 percent for residuals of a gunshot wound to the left thigh, Muscle Group XIII, is denied. ______________________________________________ JAMES L. MARCH Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs