Citation Nr: 1309158 Decision Date: 03/19/13 Archive Date: 04/01/13 DOCKET NO. 07-22 728 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUE Entitlement to an initial disability rating higher than 10 percent for residuals of a right leg shrapnel wound. ATTORNEY FOR THE BOARD K. J. Kunz, Counsel INTRODUCTION The Veteran served on active duty from September 1999 to December 2004. This appeal comes before the Board of Veterans' Appeals (Board) from a December 2005 rating decision by the Houston, Texas Regional Office (RO) of the United States Department of Veterans Affairs (VA). In that decision, the RO granted service connection for residuals of a right leg shrapnel wound, and assigned a 10 percent disability rating. The Veteran's appeal to the Board included the issue of service connection for a right knee disability, described as iliotibial band syndrome. In a November 2012 rating decision, the RO granted service connection for right knee osteoarthritis. That decision resolved the appeal for service connection for right knee disability, so that issue is no longer before the Board. The Board has reviewed both the Veteran's physical claims file and the Veteran's file on the Virtual VA electronic file system, to ensure a total review of the evidence. FINDING OF FACT From December 28, 2004, a right leg shrapnel wound and subsequent shrapnel wound removal surgery has produced disability in the form of healed scars and complaints of pain and lowered threshold of fatigue, without loss of deep fascia, muscle substance, or normal resistance, and without demonstrated impairment of strength and endurance compared to the left side. CONCLUSION OF LAW From December 28, 2004, disability residual to a right leg shrapnel wound has not met the criteria for a disability rating higher than 10 percent. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. Part 4, including §§ 4.1, 4.2, 4.7, 4.10, 4.40, 4.55, 4.56, 4.59, 4.73, Diagnostic Code 5315 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION During service the Veteran sustained a shrapnel wound to her right thigh. She has appealed the initial 10 percent disability rating that the RO assigned for disability residual to that wound. VA assigns disability ratings by evaluating the extent to which a veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing his symptomatology with the criteria set forth in the VA Schedule for Rating Disabilities (rating schedule). 38 U.S.C.A. § 1155; 38 C.F.R. Part 4, including §§ 4.1, 4.2, 4.10. If two ratings are potentially applicable, the higher rating 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. When evaluation of a musculoskeletal disability is based on limitation of motion, VA regulations provide, and the United States Court of Appeals for Veterans Claims (Court) has emphasized, that evaluation must include consideration of impairment of function due to such factors as pain on motion, weakened movement, excess fatigability, diminished endurance, or incoordination. 38 C.F.R. §§ 4.40, 4.45, 4.59; see DeLuca v. Brown, 8 Vet. App. 202 (1995). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a claim, VA shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107. The Court has held that, at the time of the assignment of an initial rating for a disability following an initial award of service connection for that disability, separate ratings can be assigned for separate periods of time based on the facts found, a practice known as "staged" ratings. Fenderson v. West, 12 Vet. App. 119, 126 (1999). The Veteran appealed the initial disability rating that the RO assigned, and continued his appeal after the RO assigned a higher rating for a later period. The Board will consider the evidence for the entire period since December 28, 2004, the effective date of the grant of service connection, and will consider whether staged ratings are warranted. The rating schedule provides for evaluating muscle injuries by considering which of 23 muscle groups was damaged. 38 C.F.R. § 4.55. Muscle group damage is categorized as slight, moderate, moderately severe, or severe. 38 C.F.R. § 4.56. The RO evaluated the Veteran's shrapnel wound residuals as injury of muscle group XV, under 38 C.F.R. § 4.73, Diagnostic Code 5315. That muscle group includes the adductor longus, adductor brevis, adductor magnus, and gracilis muscles. The functions of the muscles in that group are adduction of the hip, flexion of the hip, and flexion of the knee. Injury to that muscle group is rated at 30 percent if severe, 20 percent if moderately severe, 10 percent if moderate, and 0 percent if slight. For 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). A moderate disability of the muscles involves a through-and-through or deep penetrating wound of a relatively short track by a single bullet or small shell or a shrapnel fragment, and the absence of explosive effect of high-velocity missile and of residuals of debridement or of prolonged infection. There must be evidence of in-service treatment of the wound. There must be a record in the file of consistent complaint of one or more of the cardinal symptoms of muscle disability, particularly lowered threshold of fatigue after average use, affecting the particular functions controlled by the injured muscles. The objective findings include entrance and, if present, exit scars which are linear or relatively small, and so situated as to indicate a relatively short track of the missile through the muscle tissue, and signs 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. 38 C.F.R. § 4.56(d)(2). A moderately severe disability of the muscles involves a 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 evidence in the file showing hospitalization for a prolonged period for treatment of the wound. There must be a record of consistent complaint of cardinal signs and symptoms of muscle disability, and if present, evidence of inability to keep up with work requirements. The objective findings include entrance and, if present, exit scars indicating the track of missile through one or more muscle groups, indications on palpation of loss of deep fascia, muscle substance, or normal firm resistance of muscles compared with sound side, and tests of strength and endurance compared with sound side must demonstrate positive evidence of impairment. 38 C.F.R. § 4.56(d)(3). A severe disability of the muscles involves a 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. There must be evidence showing hospitalization for a prolonged period for treatment of the wound. There must also be a record of consistent complaint 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. The objective findings include ragged, depressed and adherent scars indicating wide damage to muscle groups in missile track, palpation showing loss of deep fascia or muscle substance, or soft flabby muscles in wound area, muscles swelling and hardening abnormally in contraction, and tests of strength, endurance, or coordinated movements compared with the corresponding muscles of uninjured side indicating 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 the missile; (B) adhesion of 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 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; (G) induration or atrophy of an entire muscle following simple piercing by a projectile. 38 C.F.R. § 4.56(d)(4). Service connection has also been established for arthritis of the Veteran's right knee. As VA assigns ratings for disabilities pyramiding, that is, the evaluation of the same disability or the same manifestation under various diagnoses, is to be avoided. See 38 C.F.R. § 4.14 (2012). The Court has explained that the assignment of separate ratings for different problems or residuals of an injury does not constitute prohibited pyramiding. Rather, the critical element is that none of the symptomatology for any one of the conditions duplicates or overlaps the symptomatology of the other conditions. See Esteban v. Brown, 6 Vet. App. 259 (1994). The Veteran's right knee arthritis is rated at 10 percent under Diagnostic Codes 5010 and 5261. Those codes provide for evaluating arthritis based on limitation of motion of the affected knee joint. Although service connection for right knee arthritis was granted years after service, in a 2012 rating decision, the RO made service connection and the 10 percent rating effective in December 2004, immediately following the Veteran's separation from service. To avoid pyramiding in this case, the rating assigned for the shrapnel wound residuals must be based on symptomatology that is separable from the knee limitation of motion and knee pain that are addressed by the rating assigned for knee arthritis. As noted above, in a November 2012 rating decision, the RO granted service connection for right knee osteoarthritis. The Veteran has not appealed this new rating action. That decision resolved the appeal for service connection for right knee disability beyond the issue before the Board, so that this issue is not before the Board. However, even if it were, range of motion testing has consistently indicating the next higher evaluation beyond 10 percent for limitation of motion for the knee have not been met (see VA examination of October 2012). The Veteran's service medical records show treatment for an injury sustained in May 2000. The Veteran was firing a 50 caliber weapon when the gun barrel exploded. A piece of the barrel entered her right leg. She was seen at a service facility emergency room. A treating clinician observed a one inch wound to the Veteran's inner thigh. The wound had minimal bleeding. Another clinician found a two by one centimeter superficial entrance wound. X-rays showed a metallic fragment distal to the entrance wound. There was no evidence of a fracture. From the emergency room the Veteran was sent for a surgery consultation. The consulting general surgeon opined that the shrapnel fragment should not be removed, and that the wound should be irrigated and left open. In follow up treatment, the Veteran reported pain and occasional swelling in the wound area. In 2001 and 2002 she continued to report pain and swelling in the right knee area. While running in July 2003, she had onset of exacerbated pain. In September 2003 she underwent surgery to remove the shrapnel. She had physical therapy after the 2003 surgery. She continued to have right knee pain and she experienced right hip and leg symptoms clinicians described as consistent with iliotibial band syndrome. Her symptoms continued, and in 2004 a service medical board recommended separation from service. On VA examination in September 2005, the Veteran indicated that her right thigh muscle injury produced ongoing pain, weakness, loss of strength, and easy fatigability. She stated that as a result she had difficulty running, walking, carrying things, and lifting over fifteen pounds. She indicated that she had not held employment since leaving service (this issue will be address below). On examination, the Veteran's gait was within normal limits, and she did not require an assistive device for walking. The examiner found that palpation of muscle group XV revealed no loss of deep fascia or muscle substance and no impairment of muscle tone. There were no signs of lowered endurance or impaired coordination. Strength of the muscle group was 5 on a scale of 5. The muscle injury did not affect the function of the leg, and did not involve any tendon, bone, joint, or nerve damage. There was no limitation of motion of the right hip or right knee. After repetitive use there was no additional limitation of joint function due to pain, fatigue, weakness, lack of endurance, or incoordination, providing evidence against this claim. In VA outpatient treatment in October 2005, the Veteran reported having right knee pain and buckling of her right knee. In November 2005, she requested a cane to help with balance. In a statement received in March 2006, the Veteran reported that right leg disability caused her to limp and to have difficulty walking. She stated that her right knee buckled and caused her to fall. The Veteran submitted statements from family members and friends who reported that the Veteran experienced pain, limped, had difficulty maintaining her balance, required a cane, could not carry her children, and was very limited in how long she could stand or walk. In VA treatment in 2006, the Veteran reported having chronic right knee and thigh pain. In June 2006 VA clinicians performed nerve conduction velocity (NCV) electromyograph (EMG) study of her right lower extremity. The NCV studies showed normal sensory and motor function. The EMG studies showed normal muscle function. The clinician's impression was that there was no evidence of nerve injury, and that there was likely complex regional pain syndrome. In a May 2007 statement, the Veteran reported having buckling of her right knee, diminished sensation through her entire right lower extremity, and dragging of her right foot. She stated that she sometimes had to use a cane. In VA treatment in November 2007, the Veteran stated that she fell several times per week. In a May 2009 statement, the Veteran wrote that she had been told that she had bulging discs in her lumbosacral spine and that this affected her low back (which has been service connected), hips, and legs. She reported having numbness throughout her right lower extremity, and drop foot of her right foot. She indicated that she used a cane to avoid falling. In regards the Veteran's concerns regarding falling, the best medical evidence in this case indicates no subluxation or lateral instability. As such, it would appear that the assignment of a compensable rating under Diagnostic Code 5257 would be erroneous. The Board finds that the Veteran's statements are outweighed by the objective medical evidence, which not only does not support a higher evaluation, but at some points provides highly probate evidence against the current evaluation. For example, the Veteran had a VA muscles examination in August 2009. The Veteran reported that she continued to have extreme pain and a stabbing ice pick sensation in the wound area. She stated that she had numbness from the wound site down to the right foot. There was no complaint of decreased coordination, increased fatigability, weakness, or uncertainty of movement. The examiner did not observe any objective evidence of pain on palpation of the wound area. The examiner noted a 1.5 centimeter by 2 centimeter entry scar, and a healed 9 centimeter surgical scar. The scars were not adherent nor tender to touch. The examiner found that there was no intermuscular scarring, no muscle herniation, and no loss of deep fascia or muscle substance. There were no residuals of nerve, tendon, or bone damage. The examiner found that muscle function was normal in terms of comfort, endurance, and strength sufficient to perform activities of daily living, providing highly probative evidence against the claim. On VA examination in October 2012, the Veteran reported having symptoms at the right lateral pelvis, right thigh, and right knee. The examiner observed an entry scar on the right thigh and a surgical scar on the right leg. Both scars were healed and nontender, providing evidence against a compensable evaluation for the scar. On testing, there was normal muscle strength with flexion of the right hip and flexion and extension of the right knee. Faber and Ober tests of the right hip were negative. It was reported that the Veteran did not use any assistive device with standing and walking. On right hip, thigh, and knee x-rays, no opaque foreign bodies were visualized. The examiner found no evidence of ongoing muscle injury, and no cardinal signs and symptoms of muscle disability, providing more evidence against this claim. The examiner found that the Veteran did not have ongoing injury of muscle of the right thigh. The examiner stated that the Veteran did not have any sequelae to the shrapnel wound other than healed scars. The examiner found that the Veteran's right knee was stable, providing highly probative evidence against this claim. The examiner found that the Veteran had right knee arthritis. The examiner provided the opinion that the Veteran's right knee arthritis was related to her service and this has been service connected. The Veteran has scars residual to right thigh shrapnel wound in 2000 and the 2003 surgery to remove the shrapnel. While she had hospital treatment on those two occasions, she did not have prolonged hospitalization. She reports pain in the area of the wound and surgery and a lowered threshold of fatigue in the right lower extremity. Examinations do not indicate the track of the shrapnel though one or more muscle groups, and do not indicate loss of deep fascia, muscle substance, or normal resistance, providing highly probative evidence against this claim. Testing has not shown evidence of impairment of the right thigh compared with the left thigh. Taking into consideration the Veteran's accounts of her right leg symptoms and the objective findings from treatment and examinations, the Veteran's right thigh muscle disability does not meet the criteria for a moderately severe disability. Therefore, a rating higher than the existing 10 percent rating is not warranted. Without taking into consideration the Veteran's complaints of pain, the combined evaluation of 10 percent for the right knee, 10 percent for the gunshot wound of the right leg, and an additional 10 percent for radiculopathy of the right lower extremity could not be justified. Such evaluations take into consideration the Veteran's problems with the right leg overall (generally 30% for the right lower extremity), without providing the Veteran compensation twice for the same disability and addressing the Veteran's concerns as noted in her written statements. When there is an exceptional disability picture, such that the rating schedule criteria do not reasonably describe a claimant's disability level and symptomatology, an RO may refer a case to the VA Under Secretary for Benefits or to the Director of the VA Compensation and Pension Service for consideration of an extraschedular rating. See 38 C.F.R. § 3.321(b)(1) (2012); see also Thun v. Peake, 22 Vet. App. 111, 115 (2008). Extraschedular ratings are limited to cases in which it is impractical to apply the regular standards of the rating schedule because there is an exceptional or unusual disability picture, with such related factors as frequent hospitalizations or marked interference with employment. 38 C.F.R. § 3.321(b)(1). The Veteran's right leg shrapnel wound residuals have not required frequent hospitalizations, and have not been reported to markedly interfere with her capacity for employment. The Board has read the Veteran's statements. However, a 70 percent evaluation (the total evaluation at this time), by definition, will cause the Veteran many problems, generally a 70 percent reduction in industrial capacity. In this regard, the Board has also considered the issue of whether the Veteran is raising unemployability under Rice v. Shinseki, 22 Vet. App. 447 (2009) has been raised by the record. However, while there was an early indication of unemployment, it appears clear that the Veteran is working towards her degree, as well as working with her two children, and that this issue has not been raised by the record at this time. The manifestations of the wound residuals are contemplated by the rating criteria in the rating schedule. It is not necessary to refer the rating of that disability for consideration of an extraschedular rating. Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002 & Supp. 2011)) redefined VA's duty to assist a claimant in the development of a claim for VA benefits. VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2012). The notice requirements of the VCAA require VA to notify the Veteran of what information or evidence is necessary to substantiate the claim; what subset of the necessary information or evidence, if any, the claimant is to provide; and what subset of the necessary information or evidence, if any, VA will attempt to obtain. 38 C.F.R. § 3.159(b). The Court has stated that the requirements apply to all five elements of a service connection claim: veteran status, existence of a disability, a connection between the veteran's service and the disability, degree of disability, and effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). VCAA notice must be provided to a claimant before the initial unfavorable decision on a claim for VA benefits by the agency of original jurisdiction (in this case, the RO). Id.; see also Pelegrini v. Principi, 18 Vet. App. 112 (2004). Insufficiency in the timing or content of VCAA notice is harmless, however, if the errors are not prejudicial to the claimant. Conway v. Principi, 353 F.3d 1369, 1374 (Fed. Cir. 2004) (VCAA notice errors are reviewed under a prejudicial error rule). The Veteran provided the Veteran with VCAA notice in letters issued in January 2005, February 2008, and April 2009. Those letters addressed the information and evidence necessary to substantiate claims for service connection and increased ratings, and informed the Veteran how VA assigns effective dates. The letters also addressed who was to provide the evidence. The claims file contains the Veteran's service medical records, post-service medical records, statements from the Veteran, and reports of VA medical examinations. The Veteran has had VA medical examinations that are adequate for evaluating her shrapnel wound residuals. The Board finds that the Veteran was notified and aware of the evidence needed to substantiate her claim, as well as the avenues through which she might obtain such evidence, and the allocation of responsibilities between the Veteran and VA in obtaining such evidence. The Veteran has actively participated in the claims process by providing evidence and argument. Thus, she was provided with a meaningful opportunity to participate in the claims process, and she has done so. Any error in the sequence of events or content of the notice is not shown to have affected the essential fairness of the adjudication nor to have caused injury to the Veteran's interests. See Pelegrini, 18 Vet. App. at 121. Therefore, any such error is harmless, and does not prohibit consideration of the claim on the merits. See Conway, 353 F.3d at 1374, Dingess, 19 Vet. App. 473; see also ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998). ORDER From December 28, 2004, entitlement to a disability rating higher than 10 percent for residuals of a right leg shrapnel wound is denied. ____________________________________________ JOHN J. CROWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs