Citation Nr: 1333401 Decision Date: 10/23/13 Archive Date: 10/24/13 DOCKET NO. 09-24 468 ) DATE ) ) Received from the Department of Veterans Affairs Regional Office in Newark, New Jersey THE ISSUE Entitlement to a disability rating in excess of 10 percent for a left hip disability, to include whether a separate compensable disability rating is warranted for residuals of a shell fragment wound to the left thigh. WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Cheryl E. Handy, Associate Counsel INTRODUCTION The Veteran, who is the appellant, served on active duty from July 2003 to December 2003 and from August 2004 to August 2005, including service in Iraq for which he earned the Purple Heart Medal and the Combat Action Badge. This matter is before the Board of Veterans' Appeals (Board) on appeal of a rating decision in January 2007 of the Department of Veterans Affairs (VA) Regional Office (RO) in Togus, Maine. The claim is now in the jurisdiction of the Newark, New Jersey RO. In September 2011, the Veteran appeared at a Board hearing before the undersigned Veterans Law Judge. A transcript of that hearing is in the claims file. This case was previously before the Board in May 2012, February 2013, and June 2013, when it was remanded for further development. As the requested development has been completed, no further action to ensure compliance with the remand directive is required. Stegall v. West, 11 Vet. App. 268 (1998). This appeal was processed using the Virtual VA paperless claims processing system. Accordingly, any future consideration of this Veteran's case should take into consideration the existence of this electronic record. The issue of entitlement to an increased disability rating for posttraumatic stress disorder (PTSD) has been raised by the record and referred to the RO with each prior remand. It has not yet been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is once again referred to the AOJ for appropriate action. FINDING OF FACT Throughout the appeals period, the Veteran's left hip disability has been manifested by limitation of motion only, with none of the cardinal signs and symptoms of a shell fragment wound which would support a separate compensable rating. CONCLUSION OF LAW The criteria for a disability rating in excess of 10 percent for a left hip disability, to include a separate disability rating for shell fragment wound residuals, have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.3, 4.7, 4.55, 4.56, 4.73, Diagnostic Code 5315 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION The Veterans Claims Assistance Act of 2000 (VCAA) As provided by the VCAA, VA has a 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. 2013); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2013). Duty to Notify Proper notice from VA must inform the claimant of any information and medical or lay 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. 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In addition, the notice requirements of the VCAA apply to all elements of a service-connection claim, including the degree of disability and the effective date of the disability. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Further, this notice must include information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Id. at 486. VCAA notice must be provided prior to an initial unfavorable decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). Where complete notice is not timely accomplished, such error may be cured by issuance of a fully compliant notice, followed by readjudication of the claim. See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); see also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). The Veteran's claim for a higher disability rating for his left hip disability arises from an appeal of the initial evaluation following the grant of service connection. Courts have held that once service connection is granted the claim is substantiated, and additional notice is not required as any defect in the notice is not prejudicial. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). Therefore, no further notice is needed under VCAA. The Veteran was provided with VA examinations in relation to his increased rating claim in September 2006, December 2008, April 2010, July 2012, and July 2013, as well as to his underlying claim of service connection in November 2005. The Board notes that the VA examination reports contain sufficiently specific clinical findings and informed discussion of the pertinent history and features of the disability on appeal to provide probative medical evidence adequate for rating purposes. The Board finds that the record as it stands includes adequate competent evidence to allow the Board to decide the case and no further action is necessary. See generally 38 C.F.R. § 3.159(c)(4). Duty to Assist Next, VA has a duty to assist the Veteran in the development of the claim. This duty includes assisting him in the procurement of service treatment records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the appellant. See Bernard v. Brown, 4 Vet. App. 384 (1993). The Board has reviewed the electronic evidence contained in the Veteran's Virtual VA folder as well as the VBMS electronic file. These files together comprise the claims file. The claims file contains the Veteran's service treatment records, as well as post-service reports of VA and private treatment and examination. Moreover, his statements in support of the claim are of record, including testimony provided at a September 2011 hearing before the undersigned. The Board has carefully reviewed such statements and concludes that no available outstanding evidence has been identified. The Board has also perused the medical records for references to additional treatment reports not of record, but has found nothing to suggest that there is any outstanding evidence with respect to the Veteran's claim. In compliance with the Board's prior remands, VA has provided the Veteran with several VA examinations which, when considered as a whole, address the specific aspects of the claim and provide the necessary information for determining the appropriate rating. Indeed, the examiners reviewed the objective evidence of record and documented the Veteran's current complaints. Moreover, the VA examiners performed a thorough clinical evaluation, then offered opinions as to the nature of the claimed disabilities, accompanied by a rationale. Therefore, the examinations are adequate for VA purposes. Thus VA has complied with the remand instructions from all previous remands. Stegall v. West, 11 Vet. App. 268 (1998). The United States Court of Appeals for Veterans Claims (Court) has held that that provisions of 38 C.F.R. § 3.103(c)(2) impose two distinct duties on VA employees, including Board personnel, in conducting hearings: The duty to explain fully the issues and the duty to suggest the submission of evidence that may have been overlooked. Bryant v. Shinseki, 23 Vet. App. 488 (2010). At his hearing the undersigned identified the issue, sought information as to treatment to determine whether all relevant records had been obtained, and sought information as to any changes in the disability since the last examination. Ultimately the claim was remanded for a new examination. The Board thereby met the duties imposed by 38 C.F.R. § 3.103(c)(2) as interpreted in Bryant. For the above reasons, no further notice or assistance to the Veteran is required to fulfill VA's duty to assist the Veteran in the development of the claim. 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). Assigning Disability Ratings A disability rating is determined by the application of VA's Schedule for Rating Disabilities (Rating Schedule). 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. 38 U.S.C.A. § 1155. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise the lower rating will be assigned. 38 C.F.R. § 4.7. The Board will consider whether separate ratings may be assigned for separate periods of time based on facts found, a practice known as "staged ratings," whether it is an initial rating case or not. Fenderson v. West, 12 Vet. App. 119, 126-27 (1999); Hart v. Mansfield, 21 Vet. App. 505, 510 (2007). Evaluating Gun Shot or Shell Fragment Wound Residuals Muscle injuries, including from gun shots or shell fragments, are evaluated pursuant to criteria at 38 C.F.R. §§ 4.55, 4.56, and 4.73. For rating purposes, the skeletal muscles of the body are divided into 23 muscle groups in 5 anatomical regions. 38 C.F.R. § 4.55(b). The specific bodily functions of each group are listed at 38 C.F.R. § 4.73. Guidance in rating muscle injuries is set out at 38 C.F.R. § 4.56, which discusses factors to be considered in the evaluation of disabilities residual to healed wounds involving muscle groups due to gun shot or shell fragment wounds or other trauma. Muscle group injuries or trauma are evaluated on the basis of the following factors: the velocity, trajectory and size of the missile which inflicted the wounds; extent of the initial injury and duration of hospitalization; the therapeutic measures required to treat the disability; and current objective clinical findings. 38 C.F.R. § 4.56. 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, and disabilities resulting from muscle injuries shall be classified as slight, moderate, moderately severe or severe. 38 C.F.R. § 4.56(c), (d). Under 38 C.F.R. § 4.56 (d): A slight muscle disability is one where the injury was a simple wound of muscle without debridement or infection. The service department record would show a superficial wound with brief treatment and return to duty. There would be healing with good functional results. There are no cardinal signs or symptoms of muscle disability as denied in 38 C.F.R. § 4.56(c). Objectively, there would be a minimal scar, with no evidence of fascial defect, atrophy, or impaired tonus. There would be no impairment of function, or metallic fragments retained in muscle tissue. 38 C.F.R. § 4.56(d)(1). A moderate muscle disability is one where the injury was either through and through, or a deep penetrating wound of short track from a single bullet, small shell or shrapnel fragment, without the effect of high velocity missile, residuals of debridement, or prolonged infection. The service department record (or other evidence) would show inservice treatment for the wound. There would be a consistent complaint of one or more of the cardinal signs or symptoms of muscle disability as defined in 38 C.F.R. § 4.56(c), particularly a lowered threshold of fatigue after average use, affecting the particular functions controlled by the injured muscles. Objectively, the entrance (and if present, exit) scars would be 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 would be present. 38 C.F.R. § 4.56(d)(2). A moderately severe muscle disability is one where the injury was either through and through, or a deep penetrating wound by a small high velocity missile or large low velocity missile, with debridement, prolonged infection, or sloughing of soft parts, and intramuscular scarring. The service department record (or other evidence) would show hospitalization for a prolonged period for treatment of the wound. There would be a consistent complaint of cardinal signs or symptoms of muscle disability as defined in 38 C.F.R. § 4.56(c), and, if present, an inability to keep up with work requirements. Objectively, the entrance (and if present, exit) scars would indicate the track of missile through one or more muscle groups. There would be indications on palpation of loss of deep fascia, muscle substance, or normal firm resistance of muscles compared with sound side. Tests of strength and endurance compared with sound side demonstrate positive evidence of impairment. 38 C.F.R. § 4.56(d)(3). A severe muscle disability is one where the injury was either through and through, or a deep penetrating wound due to a high velocity missile, or large or multiple low velocity missiles, or one with a shattering bone fracture or open comminuted fracture with extensive debridement, prolonged infection, or sloughing of soft parts, intramuscular binding and scarring. The service department record (or other evidence) would show hospitalization for a prolonged period for treatment of the wound. There would be a consistent complaint of cardinal signs or symptoms of muscle disability as defined in 38 C.F.R. § 4.456(c), which would be worse than that shown for moderately severe injuries, and, if present, an inability to keep up with work requirements. Objectively, there would be ragged, depressed and adherent scars, indicating wide damage to muscle groups in the missile track. Palpation would show loss of deep fascia or muscle substance, or soft flabby muscles in the wound area. Muscles would swell or harden abnormally in contraction. Tests of strength, endurance, or coordinated movements compared with the corresponding muscles of the uninjured side would indicate severe impairment of function. If they happen to be present, the following would also be signs of severe muscle injury: (A) X-ray evidence of minute multiple scattered foreign bodies indicating intramuscular trauma and explosive effect of 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 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). Injuries to Muscle Group XVI are rated under Diagnostic Code 5316 which provides a noncompensable (0 percent) disability rating for slight impairment, 10 percent for moderate impairment, 30 percent for moderately severe impairment, and 40 percent for a severe impairment of the muscle group. 38 C.F.R. § 4.73. A disability rating is based on the overall effect of the injury on the Veteran's ability to function and perform employment duties in a civilian setting. 38 U.S.C.A. § 1155. Similarly, the application of 38 C.F.R. § 4.56, requires consideration of all the factors set forth in the regulation and make a determination based on the facts of the particular case. No single factor is controlling in this analysis; rather, it is essentially a totality-of-the-circumstances test. Tropf v. Nicholson, 20 Vet. App. 317. 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. Currently, the Veteran's left hip disability, a residual of his shell fragment wound in service, is rated based on arthritis and limitation of motion. Under Diagnostic Code 5003, degenerative arthritis established by X-ray findings will be rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint involved. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. When the limitation of motion of the specific joint or joints involved is noncompensable under the appropriate diagnostic codes, an evaluation of 10 percent is applied for each major joint or group of minor joints affected by limitation of motion. 38 C.F.R. § 4.71a. Disabilities of the hip and thigh are rated under the schedular criteria found at 38 C.F.R. § 4.71a, Diagnostic Codes 5250 through 5255. Diagnostic Code 5251 provides a 10 percent rating for extension limited to 5 degrees. Under Diagnostic Code 5252, a 10 percent evaluation is assigned for limitation of flexion to 45 degrees. A 20 percent evaluation is assigned for limitation of flexion to 30 degrees. A 30 percent evaluation is assigned for limitation of flexion to 20 degrees. The highest schedular rating, 40 percent, is assigned for limitation of flexion to 10 degrees. 38 C.F.R. § 4.71a. Under Diagnostic Code 5253, a 10 percent rating is assigned for either limitation of adduction (inability to cross legs) or for limitation of rotation (cannot toe-out more than 15 degrees with the affected leg). A 20 percent evaluation is awarded for limitation of abduction with motion lost beyond 10 degrees. Normal ranges of motion of the hip are hip flexion from 0 degrees to 125 degrees, and hip abduction from 0 degrees to 45 degrees. 38 C.F.R. § 4.71, Plate II. Facts and Analysis The Veteran was wounded in service as a result of an IED explosion and sustained a shell fragment wound to his left thigh and hip area. In service, his wound was debrided and cleaned and treated for infection. The shell fragment was not extracted and at present is still lodged in the Veteran's upper thigh region and visible on X-rays. As a result of the injury, the Veteran has sustained both impaired range of motion in the left hip and traumatic arthritis in the left hip, as well as a scar from the impact of the shell fragment. At present, the assigned disability rating is 10 percent, based on the arthritis in the Veteran's hip and slight noncompensable loss of range of motion. The issue on appeal before the Board is whether the severity of the disability warrants either an increased disability rating or a separate compensable disability rating for the other residuals of the shell fragment wound. The Board notes that the February 2013 Board decision denied a separate compensable rating for the Veteran's scars, including the one on the left thigh or hip, and that issue is therefore not considered in the discussion below. The Veteran was provided multiple VA examinations of his left hip and thigh in an attempt to determine the nature and severity of his disability. The September 2006 VA examination showed decreased range of motion in the left hip. The diagnosis was posttraumatic arthritis. Ranges of motion were measured as flexion to 122 degrees, extension to 20 degrees, adduction to 24 degrees, abduction to 38 degrees, external rotation to 50 degrees and internal rotation to 40 degrees, with pain at the end points of all motion. The Veteran underwent pain management and rehabilitation therapy at VA in October 2008. The provider noted that the nature of the Veteran's left thigh pain suggested muscular involvement related to the shell fragment near the lesser trochanter and weak pelvic stabilizers. VA examination in December 2008 showed mildly decreased motor function on hip flexion and abduction, which the examiner believed was suggestive of muscle involvement due to the retained shell fragment near the lesser trochanter. The Veteran's asserted in his notice of disagreement that his left hip was more disabling than the 10 percent rating reflected. Specifically, he was concerned about the pain with prolonged walking. In his VA Form 9 Formal Appeal, he asserted that the VA examination report did not reflect the severity of the pain he experienced, particularly after exercise. On VA examination in April 2010, the Veteran complained of pain, particularly when going up and down stairs and walking for long distances. The examiner noted that his pain did not interfere with his job or with accomplishing the activities of daily living. On examination, range of motion testing showed flexion to 125 degrees, extension to 30 degrees, adduction to 20 degrees, abduction to 45 degrees, external rotation to 60 degrees, and internal rotation to 40 degrees with pain on rotation. His muscle strength was normal. A March 2011 clinical record indicated complaints of left hip pain since walking to his car two months earlier. The pain was high on the left thigh, almost in the groin area, where his shrapnel was located. At the Board hearing in September 2011, the Veteran stated that he used stretching exercises, painkillers, and muscle relaxers to treat his pain. He experienced flare-ups of pain several times per year. He had trouble walking, especially for long periods of time, which included shopping in the mall. VA treatment records dated in September 2011 show that he was treated both for his chronic left hip and thigh pain and for an acute episode of pain which occurred in the parking lot at work and caused him to freeze. He was able to perform stretches until he could move his leg again and immediately sought a place to rest and consultation with a doctor. The VA examination in July 2012 showed reports of pain flare-ups occurring about once a day and lasting approximately five minutes; during these flare-ups the Veteran found it extremely difficult to move. Range of motion testing showed flexion to 125 degrees, extension to 30 degrees, internal rotation to 40 degrees, external rotation to 60 degrees, adduction to 25 degrees, and abduction to 45 degrees, all without visible evidence of pain. The examiner noted that none of the cardinal signs and symptoms of muscle injuries were present, that there was no tenderness to palpation, and that the muscle strength was normal. The Veteran's gait, balance, and propulsion were all normal and there were no functional impact of this disability on his ability to work or attend to the activities of daily living. On the July 2013 VA examination, the examiner stated that, based on the location of the Veteran's scar and the retained shell fragment in his body, the muscle group affected by his injury was Muscle Group XVI, governing the pelvic girdle. The examiner noted that the Veteran had superficial scarring, but no functional impairment, no muscle atrophy, and none of the cardinal signs and symptoms of a muscle injury. The examiner explicitly stated that the only functional effect of the Veteran's shell fragment wound was the reduced range of motion in the left hip, for which a disability rating was already in effect. There was no loss of muscle strength or contour, no deformity or loss of muscle mass in the Veteran's left thigh and hip. To all appearances, the Veteran did not have a muscle injury as a result of his wound. Based on the evidence set forth above, the Board finds that the currently assigned 10 percent disability rating is appropriate and a separate compensable rating for shell fragment wound residuals is not warranted. Specifically, the evidence demonstrates that the primary residuals of the Veteran's shell fragment wound are pain, arthritis in the hip with retained foreign bodies, and mild limitation of motion. The limitation of motion is not severe enough to warrant a disability rating higher than 10 percent, with flexion shown to be at least 120 degrees and extension at least 20 degrees at all times during the appeals period. Moreover, this takes into account consideration of any additional functional loss on repeated movement due to pain, weakness or related factors. However, in this case, no such additional loss of function has been shown. The Board has considered the rating criteria relevant to shell fragment or gunshot wound residuals and resulting muscle group injury. While the December 2008 VA examiner and a treatment provider in September 2011 both believed that there was a suggestion of muscle involvement in the Veteran's disability picture, subsequent VA examinations in April 2010, July 2012, and July 2013 failed to demonstrate any muscle group impairment. Based on the trajectory of the shell fragment and the current location of the retained foreign bodies, the July 2013 examiner stated that the affected muscle group would be Muscle Group XVI. However, the examiner also stated that there were no objective effects of the muscle group injury. Put another way, there was no functional impairment of the muscle and no muscle atrophy. None of the cardinal signs and symptoms of muscle injury, such as loss of power, weakness, lowered threshold of fatigue, fatigue-pain, impairment of coordination, or uncertainty of movement have been demonstrated. The examiner explicitly noted that to all appearances, the Veteran did not have a muscle injury and that the only functional effect of his injury was the reduced range of motion. The Board recognizes that the overall disability picture presented here is a complicated one. The Veteran's shell fragment injury sustained was a deep penetrating wound, which was treated with debridement, and he has retained metallic fragments in the tissue. Despite this, there were good functional results of the healing with no cardinal signs and symptoms of muscle disability, and no loss of muscle substance. In balancing the various aspects of the Veteran's shell fragment wound residuals, the Board is guided by the Court's holding in Tropf, that analysis should be a totality-of-the-circumstances test. In this case, the totality of the Veteran's circumstances is one of limitation of motion and pain on motion of the left hip and otherwise normal muscle functioning. While the Board acknowledges the Veteran's reports of frequent and occasionally severe pain, the primary consideration is the resulting functional limitation, which is minimal at best. As such, the currently assigned 10 percent disability rating for arthritis with no compensable limitation of motion is appropriate. ORDER Entitlement to a disability rating in excess of 10 percent for a left hip disability is denied. ____________________________________________ Eric S. Leboff Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs