Citation Nr: 1606708 Decision Date: 02/23/16 Archive Date: 03/01/16 DOCKET NO. 09-20 961 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Los Angeles, California THE ISSUES 1. Entitlement to an evaluation higher than 20 percent prior to April 16, 2012 and 30 percent thereafter for service-connected residuals of a shell fragment wound, right upper thigh with loss of tissue and atrophy. 2. Entitlement to an evaluation higher than 10 percent for service-connected residuals of a shell fragment wound, right foot. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Ashley Martin, Associate Counsel INTRODUCTION The Veteran served on active duty from October 1966 to October 1968. This case comes before the Board of Veterans' Appeals (the Board) on appeal from a September 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Los Angeles, California. In March 2012, a hearing was held before the undersigned Veterans Law Judge. A transcript of these proceedings has been associated with the Veteran's claims file. The Board remanded this matter in May 2013. As there has been substantial compliance with the remand orders, the Board may therefore proceed with a determination of the issues on appeal. See Stegall v. West, 11 Vet. App. 268 (1998). FINDINGS OF FACT 1. Prior to April 16, 2012, the Veteran's residuals of a shell fragment wound to the right upper thigh with loss of tissue and atrophy were manifested by no more than a moderately-severe injury to Muscle Group XV. 2. From April 16, 2012, the Veteran's residuals of a shell fragment wound to the right upper thigh with loss of tissue and atrophy are manifested by a severe injury to Muscle Group XV. 3. The Veteran's residuals of a shell fragment wound to the right foot are manifested by a no more than moderate injury to Muscle Group X. CONCLUSIONS OF LAW 1. The criteria for an evaluation higher than 20 percent prior to April 16, 2012 and 30 percent thereafter for service-connected residuals of a shell fragment wound, right upper thigh with loss of tissue and atrophy have not been met. 38 U.S.C.A. § 1155. 5107 (West 2014); 38 C.F.R. § 4.73 Diagnostic Codes (DC) 5315 (2015). 2. The criteria for an evaluation higher than 10 percent for service-connected residuals of a shell fragment wound, right foot have not been met. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.73 Diagnostic Codes (DC) 5310 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist VA has met all statutory and regulatory notice and duty to assist provisions. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013). Quartuccio v. Principi, 16 Vet. App. 183 (2002); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004); See Dingess v. Nicholson, 19 Vet. App. 473 (2006). Notice was provided in a March 2006 letter. Accordingly, the duty to notify has been fulfilled. The duty to assist has also been met and appellate review may proceed without prejudice to the Veteran. The RO has obtained relevant records, including VA and private treatment records. The Veteran was also afforded numerous VA medical examinations throughout the appeal period. Taken together, these VA examinations are adequate. Each of the examination reports considered the Veteran's medical history, including his lay statements; described the Veteran's disabilities in sufficient detail; and fully described the functional effects caused by the Veteran's disabilities. Stefl v. Nicholson, 21 Vet. App. 120 (2007). Significantly, neither the Veteran nor his representative have 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 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). II. Legal Criteria Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule) and are intended to represent the average impairment of earning capacity resulting from disability. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Disabilities must be reviewed in relation to their history. 38 C.F.R. § 4.1. The Board interprets reports of examination in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability. See 38 C.F.R. § 4.2. Any reasonable doubt regarding the degree of disability will be resolved in favor of the claimant. 38 C.F.R. § 4.3. Where there is a question as to which of two evaluations apply, the higher of the two will be assigned where the disability picture more nearly approximates the criteria for the next higher rating. 38 C.F.R. § 4.7. The Board will evaluate functional impairment on the basis of lack of usefulness, and the effects of the disabilities upon the person's ordinary activity. See 38 C.F.R. § 4.10, see Schafrath v. Derwinski, 1 Vet. App. 589 (1991). In general, the degree of impairment resulting from a disability is a factual determination and generally the Board's primary focus in such cases is upon the current severity of the disability. Francisco v. Brown, 7 Vet. App. 55, 57-58 (1994); Solomon v. Brown, 6 Vet. App. 396, 402 (1994). In determining the present level of disability for any increased evaluation claim, the Board must consider the application of staged ratings. See Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). The medical record shows that the Veteran sustained a fragment wounds in both legs in June 1967, which resulted in injuries in his right foot, leg, knee and right upper thigh. These injuries were treated with surgical debridement and removal of the shrapnel. In an April 1973 rating decision, the RO granted service connection for a multiple fragment wounds, and assigned a non-compensable rating, effective January 22, 1973. In an October 1973 rating decision, the RO granted an increase to 20 percent for the Veteran's upper thigh injury, effective January 22, 1973. The Veteran's foot injury remained at a non-compensable rating. In March 2006, the Veteran filed a claim for increased ratings. A September 2006 rating decision granted an increase to 10 percent for the Veteran's right foot, effective March 13, 2006. The September 2006 rating decision continued the 20 percent rating for the Veteran's upper thigh. In a September 2013 rating decision, the RO increased the Veteran's rating for his upper thigh to 30 percent, effective April 16, 2012. The Veteran's disabilities are evaluated under Diagnostic Codes (DCs) 5315 and 5310. DC 5315 is for evaluation of injuries to Muscle Group XV, which is the medial thigh group, including the (1) adductor longus, (2) adductor brevis, (3) adductor magnus, and (4) gacilis. The functions of this muscle group are adduction of the hip, flexion of the hip, and flexion of the knee. DC 5310 addresses Muscle Group X, which concerns both the plantar and dorsal areas of the foot and involves functions of the forefoot and toes, including propulsion thrust in walking and intrinsic muscles of the foot. 38 C.F.R. § 4.73. Disabilities resulting from muscle injuries to Muscle Groups X through XIII (for the foot and leg) are classified as slight, moderate, moderately severe, or severe, and are evaluated as non-compensable (0 percent), 10 percent, 20 percent, and 30 percent, respectively. 38 C.F.R. §§ 4.56(d), 4.73, DCs 5310-5312 (2014). Slight muscle disability contemplates a simple wound of the muscle without debridement or infection; a service department record of a superficial wound with brief treatment and return to duty; healing with good functional results; and no cardinal signs or symptoms of muscle disability. 38 C.F.R. § 4.56(d)(1). Objectively, there is a minimal scar; no evidence of fascial defect, atrophy, or impaired tonus; and no impairment of function or metallic fragments retained in muscle tissue. Moderate muscle disability contemplates a through and through or deep penetrating wound of short track from a single bullet, small shell, or shrapnel fragment, without the explosive effect of a high velocity missile, residuals of debridement, or prolonged infection; a service department record or other evidence 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 lowered threshold of fatigue after average use, affecting the particular functions controlled by the injured muscles. 38 C.F.R. § 4.56(d)(2). Objectively, there are entrance and (if present) exit scars that are small or linear, indicating a short track of missile through muscle tissue; and some loss of deep fascia or muscle substance or impairment of muscle tonus and loss of power or lowered threshold of fatigue when compared to the sound side. The type of injury associated with a moderately-severe muscle disability is a through-and-through or deep penetrating wound by a small high-velocity missile or large low-velocity missile, with debridement, prolonged infection, or sloughing of soft parts, and intermuscular scarring. A history with regard to this type of injury should include service medical record or other evidence showing prolonged hospitalization for treatment of wound, record of consistent complaints of cardinal signs and symptoms of muscle disability, and, if present, evidence of inability to keep up with work requirements. Objective findings should include entrance and (if present) exit scars indicating the track of the missile through one or more muscle groups, and indications on palpation of loss of deep fascia, muscle substance, or normal firm resistance of muscles compared with the sound side. Tests of strength and endurance compared with the sound side should demonstrate positive evidence of impairment. 38 C.F.R. § 4.56(d)(3). The type of injury associated with a severe disability of muscles is 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. A history consistent with this type of injury would include service department record or other evidence showing hospitalization for a prolonged period for treatment of wound, 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. Objective findings of a severe disability would include 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 would indicate severe impairment of function. 38 C.F.R. § 4.56(d)(4). If present, the following are also signs of severe muscle disability: (a) x-ray evidence of minute, multiple scattered foreign bodies indicating intramuscular 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 electro diagnostic tests; (d) visible or measurable atrophy; (e) adaptive contraction of an opposing group of muscles; (f) atrophy of MGs not in the track of the missile, particularly of the trapezius and serratus in wounds of the shoulder girdle; and (g) induration or atrophy of an entire muscle following simple piercing by a projectile. For VA rating purposes, the cardinal signs and symptoms of muscle disability are loss of power, weakness, lowered threshold of fatigue, fatigue-pain, impairment of coordination, and uncertainty of movement. 38 C.F.R. § 4.56(c). When multiple muscle group injuries are in the same anatomical group, but act on different joints, the adjudicator must identify the most severely-injured group and then increase the assigned evaluation by one level; this rating is the combined evaluation for all muscle injuries in that anatomical region. 38 C.F.R. § 4.55(e). The Board notes that 38 C.F.R. § 4.55(e) was amended, effective July 3, 1997, but the substance of the rule for combination of muscle group disabilities in a single anatomical region, affecting more than one joint, are unchanged. Ratings may not be combined, but instead a single rating, elevated to the next higher level for the major injury, is assigned. 38 C.F.R. § 4.55(a) (1997). Turning to the medical evidence of record, the Veteran was afforded a VA examination in April 2006. The examiner observed a large defect and scar that measures 12 x 12cm over the inner aspect of the right with partial debridement of the hamstring musculature and abduction musculature. The Veteran also had scars over the proximal anterior tibia and medial tibia. There were no scars on the right foot. Examination of the right hip reveals 110 degrees of flexion, 30 degrees on extension, 25 degrees on adduction, 35 degrees of abduction, and 60 degrees on external and internal rotation. The examiner noted that extremes of motion are limited by pain without evidence of fatigability, lack of coordination, weakness, or dysfunction with repetitive use. Treatment records from April 2006 to February 2007 show complaints of right hip pain, foot pain and swelling. X-ray findings reveal a few scattered pieces of shrapnel along the lateral aspects of the right mid foot as well as the lateral aspects of the distal leg. A private examination was conducted in April 2007. The Veteran complained of right foot and ankle pain. On examination, his plantar flexion was 20 degrees and dorsiflexion was to 4 degrees. Muscle strength testing was a 5/5 in all muscle groups except with the abductor, which was 4/5 on the right side. A skin examination revealed a large wound on the Veteran's right upper thigh. An examination of the Veteran's hip was conducted in April 2007. The examination report shows mildly positive pain on internal rotation and minimal tenderness to palpation over the greater trochanter. The Veteran also had mild tightness and relatively good core abductor strength. The Veteran was afforded another VA examination in December 2008, where the Veteran reported worsening right ankle, hip and foot pain. The Veteran stated that his foot pain is aggravated by any type of walking activity. He described his hip pain as moderate. On physical examination, the examiner noted that the Veteran has a right medial thigh soft tissue defect consistent with previous split thickness skin graft measuring 10 x 10cm. Range of motion of the hip was 90 degrees for forward flexion, 45 degrees for external rotation, and 30 degrees for internal rotation with mild pain. The examiner noted that the Veteran's range of motion was not additionally limited by weakness, incoordination, fatigability, lack of endurance, repetitive motion, or flares. Examination of the foot reveals mild valgus alignment. There was no plantar skin abnormality, and no significant toe malalignment. The Veteran's ankle range of motion was 20 degrees for dorsiflexion, and 40 degrees for plantar flexion. The Veteran's range of motion was not additionally limited by weakness, incoordination, fatigability, lack of endurance, repetitive motion, or flares. No significant tenderness to palpation of the right ankle or foot was noted. The X-rays revealed numerous punctate metallic foreign bodies within the soft tissue of the distal tibial hindfoot and midfoot. The Veteran's hip x-rays showed multiple metallic fragments in the soft tissue of the lateral right iliac bone and greater trochanter. VA treatment records from April 2009 to July 2009 show further complaints of hip and foot pain. The Veteran testified at a March 2012 hearing. He complained of foot pain, mobility issues, instability, and numbness and tingling. He also stated that the removal of the shrapnel in his foot caused him to miss 37 days of work. The Veteran was afforded a VA examination in April 2012 for his hip. The diagnosis was post-traumatic arthritis of the right hip. The Veteran reported flare-ups during cold weather and weight-bearing activities. On physical examination, the Veteran's right hip flexion was to 100 degrees, with pain beginning at 100 degrees. The Veteran's right hip extension was greater than 5 degrees, with pain at greater than 5 degrees. There was no additional limitation in motion after repetitive testing. With regard to functional loss, the Veteran demonstrated less movement than normal, weakened movement, excess fatigability, incoordination, pain on movement and interference with sitting, standing or weight bearing. The examiner observed localized tenderness or pain to palpation. On muscle strength testing, right hip flexion, extension, and abduction were 4/5. The examiner found no evidence of ankylosis. It was also noted that the Veteran's hip or thigh condition impacts his ability to work. Specifically, standing for long periods of time is painful. A physical examination was also conducted on the Veteran's ankle and foot. His right plantar flexion was to 40 degrees, with pain at 40 degrees. Dorsiflexion was to 10 degrees, with pain at 10 degrees. There was no additional limitation of motion after repetitive testing. The examiner noted that the Veteran's disability results in functional impairment, particularly less movement than normal, weakened movement, excess fatigability, interference with sitting, standing, and weight-bearing, and pain on movement. There was evidence of localized tenderness or pain on palpation of the joints or soft tissue of the ankle. Muscle strength testing was 5/5. The Veteran's instability tests were normal. The examiner noted that the Veteran has a scar, which is not painful, unstable or greater than 39 square cm. X-rays show degenerative arthritis. With regard to the Veteran's foot, the examiner noted that the Veteran has Morton's neuroma, metatarsalgia and injuries from the grenade explosion. The examiner noted that the Veteran's foot injuries are moderately severe. The examiner also noted that the Veteran has a scar, but it is not painful, unstable or greater than 39 square cm. X-rays reveal degenerative arthritis. A scar examination also shows that the Veteran has a severe scar on the medial and posterior upper thigh that is painful and tight. The scar is 130cm2. The examiner also completed a DBQ for the Veteran's muscle injuries. The examiner noted that the Veteran has a penetrating muscle injury, as a result of an explosion. Muscle Group X and Muscle Group XV on the right side are affected. It was noted that the Veteran has ragged, depressed and adherent scars indicating wide damage to muscle groups in missile track. He also has loss of deep facia and visible loss of entire muscle of the upper inner thigh. The examiner noted that the Veteran's muscle injuries affect his muscle substance and function. Specifically, the Veteran has some impairment of the muscle tonus, some loss of muscle substance, soft flabby muscles in the wound area, adaptive contraction of an opposing group of muscles, and visible or measurable atrophy. The examiner also noted that the Veteran has cardinal symptoms of a muscle disability, including consistent or severe loss of power, consistent weakness, consistent lower threshold of fatigue, and consistent fatigue-pain. The examiner did not specify which muscle groups are affected by these symptoms. On muscle strength testing, the Veteran's hip flexion, ankle plantar flexion, and ankle dorsiflexion were 5/5. There was evidence of atrophy in muscle group XV. The atrophied side is 53cm. Diagnostic testing revealed evidence of retained metallic fragments and retained shell fragments or shrapnel. There was also x-ray evidence of minute multiple scattered foreign bodies indication intermuscular and explosive effect of missile. An addendum opinion was obtained in September 2013. The examiner clarified that the muscle findings noted on the April 2012 examination can be attributed to muscle group XV. With regard to Muscle Group XV, the Veteran has ragged, depressed and adherent scars indicating wide damage to muscle groups in missile track. He also demonstrated loss of deep facia and visible loss of entire muscle of the upper inner thigh. The examiner noted that the Veteran's muscle injury affects his muscle substance and function. Specifically, the Veteran has some impairment of the muscle tonus, some loss of muscle substance, soft flabby muscles in the wound area, adaptive contraction of an opposing group of muscles, and visible or measurable atrophy. The examiner also noted that the Veteran has cardinal symptoms of a muscle disability, including consistent or severe loss of power, consistent weakness, consistent lower threshold of fatigue, consistent fatigue-pain, and muscle atrophy. With regard to the Veteran's foot, the examiner noted that the residuals shrapnel is embedded in multiple areas of the foot with some plantar and some dorsal components involved. Based on the foregoing, the Board finds that an increased rating is not warranted for the Veteran's upper thigh injury from April 16, 2012. The Veteran is currently assigned a 30 percent rating, the maximum available under DC 5315. Accordingly, the Veteran is not entitled to a higher rating from April 16, 2012. The Board also finds that the Veteran is not entitled to a higher rating for the time period prior to April 16, 2012. As stated above, a 30 percent rating is assigned for muscle injuries that are classified as severe. Prior to the April 2012 examination, there was no evidence that the Veteran's muscle injury to the upper thigh was severe. The April 2006 and December 2008 examination reports show no complaints of cardinal symptoms such as weakness, incoordination, or fatigability. The Veteran did not show any lack of endurance or dysfunction during range of motion testing. There was also no evidence of inability to keep up with work requirements. Objective findings of the April 2006 and December 2008 examination reports did not reveal ragged, depressed and adherent scars indicating wide damage to muscle groups in missile track; loss of deep fascia or muscle substance, soft flabby muscles in wound area; or muscles that swell and harden abnormally in contraction. There was also no evidence of severe impairment of function or severe problems with strength. Muscle strength testing conducted in April 2007 was a 5/5 in all muscle groups except with the abductor, which was 4/5 on the right side. Lastly, the Board finds that a rating in excess of 10 percent is not warranted for the Veteran's right foot injuries. Under DC 5310, a 20 percent rating is assigned for moderately severe injuries. There is no evidence of complaints of cardinal signs and symptoms associated with the Veteran's foot injuries. The VA examinations and medical opinion show no complaints of loss of power, lowered threshold of fatigue, fatigue-pain, impairment of coordination, and uncertainty of movement due to the Veteran's foot injuries. The VA examiners also did not find any indications of loss of deep fascia, muscle substance, or normal firm resistance of muscles. Tests of strength did not show any impairment. Muscle strength testing of the ankle was consistently 5/5 throughout the appeal period. There is also no evidence of an inability to keep up with work requirements. At the hearing, the Veteran testified that he missed 37 days from work due to his foot surgery. The Board finds that this statement does not show that the Veteran is unable to keep up with his work assignments due to his foot symptoms. The Board acknowledges that the April 2012 examiner found that the Veteran's foot injuries are moderately severe. However, for the reasons noted above, the record as a whole does not support a finding that the Veteran's foot injuries are moderately-severe. The Board is sympathetic to the Veteran's lay statements that he is entitled to a higher rating for his disabilities. The Veteran is competent to report symptoms because this requires only personal knowledge as it comes to him through his senses. Layno v. Brown, 6 Vet. App. 465 (1994). He is not, however, competent to identify a specific level of disability of a disorder according to the appropriate diagnostic codes. Such competent evidence concerning the nature and extent of the Veteran's disabilities have been provided by the medical personnel who have examined him during the current appeal and who have rendered pertinent opinions in conjunction with the evaluations. The medical findings (as provided in the examination reports and the clinical records) directly address the criteria under which this disability is evaluated. As the preponderance of the evidence is against the claim, the benefit of the doubt rule is not applicable. See 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990). The Board has also considered whether referral for extraschedular consideration is indicated. The Veteran's disabilities may be rated based on a variety of symptoms, such as consistent complaints of cardinal signs and symptoms or objective findings of loss of deep fascia, and muscle substance. In essence, all of the Veteran's symptoms are contemplated by the schedular criteria. Hence, referral for consideration of an extra-schedular rating is not warranted. Thun v. Peake, 22 Vet. App. 111 (2008). Moreover, the competent credible evidence of record does not reflect that the Veteran's disabilities have caused marked interference with employment or frequent periods of hospitalization. A total rating for compensation based on individual unemployability (TDIU) is an element of all appeals of an initial rating. Rice v. Shinseki, 22 Vet. App. 447 (2009). Entitlement to TDIU is raised where a Veteran: (1) submits evidence of a medical disability; (2) makes a claim for the highest rating possible; and (3) submits evidence of unemployability. Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001). The Veteran has not made any assertions of unemployability and there are none raised by the record during the appeal period. Therefore, further consideration of total rating for compensation based on individual unemployability is not warranted. Rice v. Shinseki, 22 Vet. App. 447 (2009); Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001). ORDER Entitlement to an evaluation higher than 20 percent prior to April 16, 2012 and 30 percent thereafter for service-connected residuals of a shell fragment wound, right upper thigh with loss of tissue and atrophy is denied. Entitlement to an evaluation higher than 10 percent for service-connected residuals of a shell fragment wound, right foot is denied. ____________________________________________ MICHAEL MARTIN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs