Citation Nr: 1309367 Decision Date: 03/19/13 Archive Date: 04/01/13 DOCKET NO. 07-34 482 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Los Angeles, California THE ISSUE Entitlement to a rating in excess of 20 percent for residuals of a gunshot wound to the left buttock. REPRESENTATION Appellant represented by: AMVETS ATTORNEY FOR THE BOARD A.G. Alderman, Counsel INTRODUCTION The Veteran served on active duty from June 1944 to June 1946. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2006 rating decision of the RO in Los Angeles, California, which, in pertinent part, continued a 20 percent rating for residuals of a gunshot wound to the left buttock. The August 2006 rating decision also denied claims for service connection for conditions of the back and right leg, and continued a 10 percent evaluation assigned for residuals of a gunshot wound to the left thigh. The Veteran filed a timely notice of disagreement in October 2006 and the RO issued a statement of the case in December 2009, but the Veteran did not perfect an appeal as to these issues. As such, they are not before the Board for appellate review. The Veteran requested a personal hearing before the Board in his October 2007 substantive appeal, but subsequently withdrew the request. See February 2008 submission. In August 2012, the Board remanded this matter for additional development, which has been completed. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDING OF FACT Residuals of the gunshot wound to the left buttock has not resulted in loss of power, weakness, lowered threshold of fatigue, fatigue-pain, impairment of coordination, uncertainty of movement, or loss of deep fascia, muscle substance, or normal firm resistance of muscles compared with sound side, and are productive of no more than moderate impairment of function of Muscle Group XVII. CONCLUSION OF LAW The criteria for a rating in excess of 20 percent for residuals of a gunshot wound to the left buttock have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.2, 4.3, 4.7, 4.10, 4.14, 4.41, 4.45, 4.56, 4.59, 4.73, Diagnostic Code 5317 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION VA's duty to notify and assist Upon receipt of a complete or substantially complete application for benefits and prior to an initial unfavorable decision on a claim by an agency of original jurisdiction, VA is required to notify the appellant of the information and evidence not of record that is necessary to substantiate the claim. See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159; Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). The notice should also address the rating criteria or effective date provisions that are pertinent to the appellant's claim. Dingess v. Nicholson, 19 Vet. App. 473 (2006). For an increased-compensation claim, section 5103(a) requires, at a minimum, that the Secretary (1) notify the claimant that to substantiate a claim, the claimant must provide, or ask the Secretary to obtain, medical or lay evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on the claimant's employment; (2) provide examples of the types of medical and lay evidence that may be obtained or requested; (3) and further notify the claimant that "should an increase in disability be found, a disability rating will be determined by applying relevant [DC's]," and that the range of disability applied may be between 0% and 100%" 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), vacated on other grounds sub nom. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009). The RO provided the appellant pre-adjudication notice by a letter dated in June 2006, and additional notice by a June 2008 letter. The claim was readjudicated in a March 2009 statement of the case. Mayfield, 444 F.3d at 1333; see also 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 a statement of the case or supplemental statement of the case, is sufficient to cure a timing defect). VA has obtained service treatment records; assisted the appellant in obtaining evidence; and afforded the appellant the opportunity to give testimony, though he withdrew his request for a hearing. Moreover, VA afforded the appellant physical examinations and obtained medical opinions as to the severity of his disability. The VA examinations are adequate for rating purposes. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). While the Board acknowledges that the July 2006 and January 2011 examiners did not have the claims file for review, there is no prejudice to the Veteran in proceeding with the adjudication of his appeal because the examiners took into account the Veteran's statements, which allowed for a fully-informed evaluation of the claimed disability. Id. VA also substantially complied with the Board's August 2012 remand by obtaining additional VA treatment records and scheduling a more contemporaneous VA examination, during which the claims folder was available for review. See D'Aries v. Peake, 22 Vet. App. 97 (2008); Dyment v. West, 13 Vet. App. 141, 146-47 (1999). All known and available records relevant to the issue on appeal have been obtained and associated with the appellant's claims file; and the appellant has not contended otherwise. Moreover, the record shows that the appellant was represented by a Veteran's Service Organization throughout the adjudication of the claim. Overton v. Nicholson, 20 Vet. App. 427 (2006). VA has substantially complied with the notice and assistance requirements and the appellant is not prejudiced by a decision on the claim at this time. Increased rating Disability evaluations are based upon the average impairment of earning capacity as determined by a schedule for rating disabilities. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. Part 4 (2012). Separate rating codes identify various disabilities. 38 C.F.R. Part 4. In determining the current level of impairment, the disability must be considered in the context of the whole recorded history, including service medical records. See generally 38 C.F.R. §§ 4.1, 4.2 (2012). Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability more closely approximates the criteria required for that rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2012). When service connection has been in effect for many years, the primary concern for the Board is the current level of disability. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Yet, the relevant temporal focus for adjudicating an increased rating claim is on the evidence establishing the state of the disability from the time period one year before the claim was filed until a final decision is issued. Hart v. Mansfield, 21 Vet. App. 505 (2007). Thus, staged ratings may be assigned if the severity of the disability changes during the relevant rating period. In determining the applicable disability rating, pertinent regulations do not require that all cases show all findings specified by the Rating Schedule; rather, it is expected in all cases that the findings be sufficiently characteristic as to identify the disease and the resulting disability, and above all, to coordinate the impairment of function with the rating. 38 C.F.R. § 4.21 (2012). Therefore, the Board will consider the potential application of various other provisions of the regulations governing VA benefits, whether or not they were raised by the Veteran. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). Service connection for residuals of a gunshot wound to the left buttock was originally granted with a 20 percent rating pursuant to 38 C.F.R. § 4.73, Diagnostic Code 5317, effective November 6, 1974. See September 1975 rating decision. The Veteran contends that he is entitled to an increased rating because he has constant pain and swelling. See October 2006 VA Form 21-4138; October 2007 VA Form 9. 38 C.F.R. § 4.73 provides the schedule for rating muscle injuries. Diagnostic Code 5317 pertains to Muscle Group XVII, which controls extension of the hip, abduction of the thigh, elevation of the opposite side of the pelvis, tension of fascia lata and iliotibial band, acting with XIV in postural support of the body steadying the pelvis upon the head of the femur and condyles of femur on tibia. The muscle group includes the pelvic girdle group 2: (1) gluteus maximus, (2) gluteus medius, and (3) gluteus minimus. Disability under this provision is evaluated as non-compensable for slight disability, 20 percent for moderate disability, 40 percent for moderately severe disability, and 50 percent for severe disability. Under 38 C.F.R. § 4.56(d), ratings for muscle injuries are classified as slight, moderate, moderately severe, or severe, depending on the type of injury sustained, the history and complaints, and objective clinical findings. For the purposes of evaluating muscle injury, the cardinal signs and symptoms of muscle disability are loss of power, weakness, lowered threshold of fatigue, fatigue-pain, impairment of coordination, and uncertainty of movement. 38 C.F.R. § 4.56(c) (2012). The term "moderate" disability includes 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 would be objective findings of entrance and (if present) exit scars, small or linear, indicating short track of missile through muscle tissue. 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. See 38 C.F.R. § 4.56(d)(2). The term "moderately severe" disability includes 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 would be objective findings of entrance and (if present) exit scars indicating 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. Tests of strength and endurance compared with sound side demonstrate positive evidence of impairment. See 38 C.F.R. § 4.56(d)(3). The term "severe" disability includes 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 would be objective evidence of ragged, depressed and adherent scars indicating wide damage to muscle groups in missile track. Palpation shows loss of deep fascia or muscle substance, or soft flabby muscles in wound area. Muscles swell and harden abnormally in contraction. Tests of strength, endurance, or coordinated movements compared with the corresponding muscles of the uninjured side indicate severe impairment of function. See 38 C.F.R. § 4.56(d)(4). The following are also signs of severe muscle injury: x-ray evidence of minute multiple scattered foreign bodies indicating intramuscular trauma and explosive effect of missile; 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; diminished muscle excitability to pulsed electrical current in electro diagnostic tests; visible or measurable atrophy; adaptive contraction of an opposing group of muscles; atrophy of muscle groups not in track of the missile, particularly of the trapezius and serratus in wounds of the shoulder girdle; induration or atrophy of an entire muscle following simple piercing by a projectile. 38 C.F.R. § 4.56(d)(4)(iii). The criteria of 38 C.F.R. § 4.56 are only guidelines for evaluating muscle injuries from shrapnel wounds or other trauma, and the criteria are to be considered with all factors in the individual case. See Robertson v. Brown, 5 Vet. App. 70 (1993). The evidence in this case consists of VA treatment records and three VA examination reports. VA treatment records do not show complaint or treatment of residuals of the gunshot wound to the left buttock at any time during the pendency of his claim. During the July 2006 VA examination, the Veteran reported constant pain in the left hip and loss of strength. Pain rated a 7 on the pain scale, with 10 being the worst pain. Physical activities could trigger the pain. Pain improved with rest. He denied complications from the muscle injury but noted problems standing and walking. He used a cane to ambulate and denied having periods of incapacitation. The examiner observed a barely visible scar measuring 1 by 1 cm. The examiner observed that the scar was the entrance and exit wound. The scar was smaller than 6 square inches, was not tender, did not cause functional limitations, was not unstable, and did not cause limitation of motion or inflexibility. The scar was not hyperpigmented or hypopigmented and showed no signs of ulceration, drainage or discharge, adherence, tissue loss, keloid formation, skin breakdown or abnormal texture. Examination showed extension of the hip to 30 degrees without pain and adduction of the hip to 30 degrees with pain. The examiner noted range of motion was limited by pain but not by fatigue, weakness, lack of endurance or incoordination after repetitive use. The examiner addressed Muscle Group XV but not Muscle Group XVII. The left hip x-ray was normal. During the January 2011 VA examination, the Veteran continued to report loss of strength and constant pain with a pain level of 9. Pain could be exacerbated by activity and relieved with rest and medication. He could function during pain with medication. He had no complications from muscle injuries; however, the injuries caused difficulty walking and standing. He could keep up with normal work requirements. The examiner reviewed the skin, noting the scar on the left buttock and that its size was 1 cm by 0.1 cm. The scar was asymptomatic. Posture was unsteady without support due to the left thigh condition. The Veteran walked with an antalgic gait and could not walk with a tandem gait due to left thigh weakness and endurance. Examination of Muscle Group XVII showed no loss of deep fascia or muscle substance and no impairment of muscle tone. The scar of the left buttock was identified as the entrance wound and the scar of the left thigh was identified as the exit wound. The examiner found no adhesion to the bone, signs of impaired coordination, muscle herniation, tendon damage, bone damage or joint damage, but noted signs of lowered endurance (including the left thigh) and nerve damage to the left sciatic nerve were noted. Strength of Muscle Group XVII was normal. The injury caused difficulty with walking. The sensory examination revealed neuritis of the sciatic nerve demonstrated by decreased sensation in the left thigh and leg. He had no motor dysfunction. X-rays were within normal limits. The examiner changed the diagnosis to reflect the nerve impairment and stated that the Veteran continued to have pain with prolonged standing or walking and had numbness and tingling on the left lower extremity. The condition did not affect employment as the Veteran had retired. He was able to perform basic activities of daily living. The September 2012 VA examination shows complaints of back pain, leg pain, and weakness of the body. The examiner pointed out the lack of complaints and treatment of the left buttock and leg for the prior 13 years and specifically cited treatment records showing that the Veteran was doing well. The examiner indicated that the disability affected extension of the hip, abduction of the thigh and posture but that the Veteran did not have severe damage to Muscle Group XVII or abnormalities such as loss of power, weakness, lowered threshold of fatigue, fatigue-pain, impairment of coordination, or uncertainty of movement. Strength testing was normal for the hip, knee, and ankle. The Veteran needed a cane to walk and occasionally used an electric cart to get around. Diagnostic testing showed arthritis of the knees which the examiner attributed to longstanding obesity. The examiner opined that if the condition had been due to the gunshot wound, one would expect findings localized to the left knee and not bilaterally. The examiner also noted the symmetric strength in the lower extremities that is appropriate for the Veteran's age and said that the use of assistive devices for ambulation is a result of his poor conditioning due to age and arthritis of his knees. The examiner opined that the Veteran has adequately recovered from the gunshot wound to the left buttock and does not exhibit any residual defects. The preponderance of the evidence is against the claim for a rating in excess of 20 percent for the Veteran's service-connected residuals of a gunshot wound to the left buttock. The Board has considered the Veteran's complaints of pain made in his lay statements and during VA examination and finds that he is competent to report this symptom. While he has complained to VA examiners that he has severe pain due to his gunshot wound, this assertion is not corroborated in the VA treatment records dated during the appellate period. Considering the number of visits the Veteran has paid to VA facilities for general treatment and the lack of complaints regarding his gunshot wound and residuals, the Board finds that his complaints of pain and weakness to VA examiners are not credible and are of little probative value. See Cartwright v. Derwinski, 2 Vet. App. 24, 25 (1991) (a pecuniary interest may affect the credibility of a claimant's testimony). Thus, the Veteran's complaints of pain are not sufficient to warrant an increased rating for the disability. In addition to the foregoing, VA examination reports do not show that the residual disability has resulted in any of the cardinal signs and symptoms of a muscle disability, to include loss of power, weakness, lowered threshold of fatigue, fatigue-pain, impairment of coordination or uncertainty of movement. In fact, the September 2012 examiner specifically found that the disability did not result in these residuals and found that the Veteran's strength was normal for his age. Moreover, there is no objective evidence the residual disability results in loss of deep fascia, muscle substance, or normal firm resistance of muscles compared with sound side. At most the Veteran complains of pain and difficulty with prolonged walking and standing. However, the September 2012 VA examiner attributed his difficulties with ambulation to his deconditioned state due to age and arthritis of his knees caused by obesity and age. Considering the pertinent medical evidence in light of the criteria under Diagnostic Code 5317, the Board finds that the Veteran's residuals of a gunshot wound to the left buttock produces no more than moderate impairment of function of Muscle Group XVII. The Board has considered whether a separate rating is warranted for limitation of motion of the hip. See Esteban v. Brown, 6 Vet. App. 259 (1994). While the Veteran's hip extension and adduction are limited, his limitations are not separately compensable under 38 C.F.R. § 4.71a, Diagnostic Codes 5251 or 5253 as his extension was not limited to 5 degrees and he had almost full range of motion with adduction. The Board has also considered whether a separate rating is warranted for the scar associated with the service-connected residuals of a gunshot wound to the left buttock. Id. The Veteran's scar has consistently been noted as small and asymptomatic. There is no evidence it is deep and causes limited motion in an area that exceeds six square inches (39 square centimeters); is deep and nonlinear in an area of at least six square inches (39 square centimeters) but less than 12 square inches (77 square centimeters); is superficial without causing limited motion or superficial and nonlinear in an area of 144 square inches (929 square centimeters) or greater; is superficial and unstable or painful on examination; or that it limits the Veteran's left buttock function. See 38 C.F.R. § 4.118, Diagnostic Codes 7801-7805 (2008); 73 F.R. 54708 (Sep. 23, 2008). Given the foregoing, a compensable rating for the scar associated with the Veteran's residuals of a gunshot wound to the left buttock is not warranted. Lastly, the Board has considered whether a separate rating is warranted for neuritis of the sciatic nerve. See Esteban, 6 Vet. App. at 261. The only diagnosis or indication of neuritis is in the January 2011 VA examination report. The Veteran did not report similar symptoms to his VA primary care providers and a diagnosis is not shown in VA treatment records or other VA examination reports. While the Veteran is competent to report symptoms of his disability, in this case, as noted above, the Board finds that his complaints of pain are not credible. Thus, the Board finds that the disability picture weighs against assigning a separate rating for neuritis of the sciatic nerve. Extraschedular consideration The rating schedule represents, as far as is practicable, the average impairment of earning capacity. Ratings will generally be based on average impairment. 38 C.F.R. § 3.321(a), (b) (2012). To afford justice in exceptional situations, an extraschedular rating can be provided. 38 C.F.R. § 3.321(b). The Court has clarified the analytical steps necessary to determine whether referral for extraschedular consideration is warranted. First, the RO or the Board must determine whether the evidence presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Second, if the schedular evaluation does not contemplate the Veteran's level of disability and symptomatology and is found inadequate, the RO or Board must determine whether the claimant's exceptional disability picture exhibits other related factors such as those provided by the regulation as "governing norms." Third, if the rating schedule is inadequate to evaluate a Veteran's disability picture and that picture has attendant thereto related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director of the C&P Service to determine whether, to accord justice, the Veteran's disability picture requires the assignment of an extraschedular rating. The symptoms exhibited by the Veteran's residuals of a gunshot wound to the left buttock are contemplated by the rating criteria (i.e., 38 C.F.R. §4.73, Diagnostic Code 5317), which reasonably describe the Veteran's disability. The Veteran's disability picture is not so unusual or exceptional in nature as to render the already assigned rating inadequate; and when comparing this disability picture with the symptoms contemplated by the Rating Schedule, the Board finds that the Veteran's experiences are congruent with the disability picture represented by a 20 percent disability rating. Therefore, referral for consideration of an extraschedular rating is not warranted. See Thun v. Peake, 22 Vet. App. 111 (2008). ORDER A rating in excess of 20 percent for residuals of a gunshot wound to the left buttock is denied. ____________________________________________ D. VAN WAMBEKE Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs