Citation Nr: 1648151 Decision Date: 12/27/16 Archive Date: 01/06/17 DOCKET NO. 10-27 769 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUE Entitlement to an initial compensable evaluation prior to May 9, 2016, and in excess of 30 percent as of that date, for residuals, shell fragment wound (SFW) of the right hand. REPRESENTATION Appellant represented by: Mark A. Dunham, Agent ATTORNEY FOR THE BOARD N. Rippel, Counsel INTRODUCTION The Veteran served on active duty from January 1967 to May 1969, to include combat service in Vietnam. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee. In November 2014, August 2015, and January 2016, the Board remanded the claim for further development. In a June 2016 rating decision, the RO granted a 30 percent rating for the right hand, effective from May 9, 2016, and denied a compensable rating prior to that time. The Veteran has continued his appeal, arguing in correspondence received at VA in June 2016 that he is not seeking a 40 percent rating, but rather that he is entitled to a 30 percent rating since the date of this claim in 2009. As additional medical examination was obtained, the Board finds the directives have been substantially complied with, and the matter again is before the Board. Stegall v. West, 11 Vet. App. 268, 271 (1998). This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2016). 38 U.S.C.A. § 7107(a)(2) (West 2014). FINDING OF FACT Throughout the period on appeal, including prior to May 9, 2016, the Veteran's disability of residuals, SFW of the right (dominant hand) hand has been manifested by moderately severe disability of Muscle Group VII; severe disability has not been shown or approximated. CONCLUSION OF LAW The criteria for a disability rating of 30 percent for disability of residuals, SFW of the right (dominant hand) hand, Muscle Group VII, are met throughout the period on appeal; the criteria for a rating in excess of 30 percent are not met or approximated. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 4.3, 4.7, 4.10, 4.40, 4.45, 4.56, 4.59, 4.73, Diagnostic Code (DC) 5307 (2016). REASONS AND BASES FOR FINDING AND CONCLUSION I. Veterans Claims Assistance Act of 2000 (VCAA) The VCAA, codified in part at 38 U.S.C.A. §§ 5103, 5103A, and implemented in part at 38 C.F.R. § 3.159, amended VA's duties to notify and to assist a claimant in developing information and evidence necessary to substantiate a claim. The RO provided pre-adjudication VCAA notice by a letter dated in June 2009. VA has fulfilled its duty to assist in obtaining identified and available evidence needed to substantiate the claim. Service treatment records, post-service VA treatment records, identified private treatment records, and lay statements have been associated with the record. The Veteran was afforded multiple examinations, most recently a VA muscle group examination in May 2016. The examiner reviewed the Veteran's claims file, examined the Veteran, and provided an opinion as well as data relevant to the rating criteria. The opinion provided was thorough and fully adequate. See Barr v. Nicholson, 21 Vet. App. 303 (2007). As the Veteran has not identified any additional evidence pertinent to the claim, the Board concludes that no further assistance to the Veteran in developing the facts pertinent to the claim is required to comply with the duty to assist. II. Increased Initial Rating Applicable Laws Disability ratings are determined by applying the criteria set forth in the VA's Schedule for Rating Disabilities, which is based on the average impairment of earning capacity resulting from disability. Separate diagnostic codes identify the various disabilities. 38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. § 4.1 (2016). The Board has been directed to consider only those factors contained wholly in the rating criteria. Massey v. Brown, 7 Vet. App. 204 (1994). However, the Board has been advised to consider factors outside the specific rating criteria in determining the level of occupational and social impairment. Mauerhan v. Principi, 16 Vet. App. 436 (2002). If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for the higher evaluation; otherwise, the lower evaluation will be assigned. 38 C.F.R. § 4.7 (2016). Any reasonable doubt regarding the degree of disability will be resolved in favor of the Veteran. 38 C.F.R. § 4.3 (2016). Where, as in this case, the question for consideration is the propriety of the initial ratings assigned, evaluation of the all evidence and consideration of the appropriateness of staged ratings is required whenever the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. See Fenderson v. West, 12 Vet. App. 119, 126 (1999). The terms mild, moderate, and severe are not defined in the Rating Schedule. Rather than applying a mechanical formula, the Board must evaluate all of the evidence to the end that its decisions are equitable and just. 38 C.F.R. § 4.6 (2016). Use of such descriptive terms by medical examiners, although an element of the evidence to be considered by the Board, is not dispositive of an issue. Such evidence must be interpreted in light of the whole recorded history, reconciling the evidence into a consistent picture so that the current rating may accurately reflect the elements of disability present. 38 C.F.R. § 4.2 (2016). When assessing the severity of a musculoskeletal disability that is at least partly rated on the basis of limitation of motion, VA must also consider the extent that the Veteran may have additional functional impairment above and beyond the limitation of motion objectively demonstrated, such as during times when his symptoms are most prevalent ("flare-ups") due to the extent of his pain (and painful motion), weakness, premature or excess fatigability, and incoordination-assuming these factors are not already contemplated by the governing rating criteria. DeLuca v. Brown, 8 Vet. App. 202, 204-7 (1995); see also 38 C.F.R. §§ 4.40, 4.45, 4.59. VA regulations provide that an open comminuted fracture with muscle or tendon damage will be rated as a severe injury of the muscle group involved unless, for locations such as in the wrist or over the tibia, evidence establishes that the muscle damage is minimal; and a through-and-through injury with muscle damage shall be evaluated as no less than a moderate injury for each group of muscles damaged. 38 C.F.R. § 4.56 (a), (b) (2016). 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) (2016). Under Diagnostic Codes 5301 through 5323, disabilities resulting from muscle injuries shall be classified as slight, moderate, moderately severe, or severe. 38 C.F.R. § 4.56 (d) (2016). The Veteran's right hand residuals of SFW is rated under DC 5307, Muscle Group (MG) VII. Function: flexion of wrist and fingers; Muscles arising from internal condyle of humerus: flexors of the carpus and long flexors of fingers and thumb; pronator. 38 C.F.R. § 4.73, DC 5307 (2016). For the dominant hand, a noncompensable rating is assigned when impairment is slight; a 10 percent rating is assigned when impairment is moderate; a 30 percent rating is assigned when impairment is moderately severe, and a 40 percent rating is assigned when impairment is severe. Id. Slight muscle disability contemplates a simple wound of muscle without debridement or infection; service department record of superficial wound with brief treatment and return to duty, healing with good functional results, no cardinal signs or symptoms of muscle disability; and minimal scarring without evidence of fascial defect, atrophy, or impaired tonus, or impairment of function or metallic fragments retained in muscle tissue. See 38 C.F.R. § 4.56 (d)(1) (2016). The type of injury associated with a moderate muscle disability is described as being from a 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. History should include evidence of in-service treatment for the wound, as well as a record of consistent complaints of one or more cardinal signs and symptoms of muscle disability particularly lower threshold of fatigue after average use affecting the particular functions controlled by the injured muscles. Objective findings should include 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. 38 C.F.R. § 4.56 (d)(2) (2016). A moderately severe muscle disability comprises a through-and-through or deep open penetrating wound by a small high velocity missile or a large low-velocity missile, with debridement, prolonged infection, or sloughing of soft parts, and intermuscular scarring. There should be a history of hospitalization for a prolonged period for treatment of the wound, with a 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 track of 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 sound side. Tests of strength and endurance compared with sound side should demonstrate positive evidence of impairment. 38 C.F.R. 4.56 (d)(3) (2016). Severe muscle disability contemplates through-and-through or deep penetrating wounds 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 should be a history of hospitalization for a prolonged period for treatment of the wound, with consistent complaints 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 should include ragged, depressed and adherent scars indicating wide damage to muscle groups in missile track; palpable loss of deep fascia or muscle substance, or soft flabby muscles in wound area; and abnormal muscle swelling and hardening in contraction. Tests of strength, endurance, or coordinated movements compared with the corresponding muscles of the uninjured side indicate severe impairment of function. 38 C.F.R. 4.56 (d)(4) (2016). If present, the following are also signs of severe muscle damage: (A) X-ray evidence of minute multiple scattered foreign bodies indicating intermuscular 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 electro-diagnostic 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 trapezium 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) (2016). A muscle injury rating will not be combined with a peripheral nerve paralysis rating of the same body part, unless the injuries affect entirely different functions. There will be no rating assigned for muscle groups which act upon an ankylosed joint, except for an ankylosed knee, if muscle group XIII is disabled (rated at the next lower level than would otherwise be assigned), and an ankylosed shoulder, if muscle groups I and II are severely disabled (evaluation under diagnostic code 5200 will be elevated to the level for unfavorable ankylosis, if not already assigned, but the muscle groups will not be rated). The combined evaluation of muscle groups acting upon a single unankylosed joint must be lower than the evaluation for unfavorable ankylosis of that joint, except in the case of muscle groups I and II acting upon the shoulder. For compensable muscle group injuries that are in the same anatomical region but do not act on the same joint, the evaluation for the most severely injured muscle group will be increased by one level and used as the combined evaluation for the affected muscle groups. For muscle group injuries in different anatomical regions that do not act upon ankylosed joints, each muscle group injury shall be separately rated and the ratings combined under the provisions of 38 C.F.R. § 4.25 (2016). 38 C.F.R. 4.55 (2016). A through-and-through muscle wound is to be rated as at least of the moderate degree of injury for each muscle group injured. Myler v. Derwinski, 1 Vet. App. 571 (1991). While the regulations require "muscle damage," there is no specified minimum degree of damage in order for the injury to be of moderate degree. Beyrle v. Brown, 9 Vet. App. 377 (1996). Further, in situations wherein there are two or more through and through wounds, the Court has clearly held that such wounds are to be separately rated. Jones v. Principi, 18 Vet. App 248 (2008). VA regulations provide that disability of the musculoskeletal system is primarily the inability, due to damage or infection in parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination and endurance. The functional loss may be due to absence of part, or all, of the necessary bones, joints and muscles, or associated structures, or to deformity, adhesions, defective innervation, or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by the visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. A little used part of the musculoskeletal system may be expected to show evidence of disuse, either through atrophy, the condition of the skin, absence of normal callosity or the like. 38 C.F.R. § 4.40. Section 4.40 does not, however, require a separate rating for pain, but rather provides guidance for determining ratings under other diagnostic codes assessing musculoskeletal function. Spurgeon v. Brown, 10 Vet. App. 194 (1997). Discussion Initially, the Board observes that the Veteran's shrapnel wound to the right hand involves the dominant extremity. Thus, only the rating criteria pertaining to the dominant hand will be considered. The Veteran's service personnel records show that the Veteran was injured by shrapnel on multiple occasions during combat operations in Vietnam. In February 1968, while serving in the vicinity of the Quang Tri Province, he sustained a WIANE shrapnel wound to the right hand. His awards and decorations noted in his DD 214 include the Purple Heart medal, Vietnam Service Medal and Vietnam Campaign Medal. He served 1 year of foreign and/or sea service, and was a sergeant in the marines. Service treatment records; however, do not reflect any diagnosis or treatment. The Veteran filed his claim in September 2009. He urges that he has had problems with pain, weakness and grip strength in his right hand. The Veteran was afforded VA examination for the hand in November 2009. The Veteran reported pain in the right hand since the shrapnel injury in service. He noted he was treating with non-steroidal anti-inflammatory drugs with a fair response. The examiner found no pain with active motion of the wrist, and noted the same full measurements as to flexion and deviation in both hands. He diagnosed degenerative joint disease of the metacarpals of the right hand, and noted that the condition was associated with the Veteran's age and was not attributable to his injuries in service. The examiner did not provide a rationale for this conclusion. VA treatment records dated in 2010 reflect complaints of chronic pain in the right hand. The Veteran was afforded a VA muscle injuries examination in January 2015 by an examiner that reviewed the claims file. The Veteran reported pain in the right thumb and pain on making a tight fist. Findings included right thumb tenderness on metatarsal phalangeal (MTP) joint, no atrophy and radiological findings of advanced degenerative changes at the first metacarpophalangeal (MCP) joint with less degenerative changes at the first interphalangeal joint. Strength in the hand was normal. The examiner diagnosed SFW injury to right hand. Private treatment records reflect a February 2015 encounter in which the Veteran reported numbness in the right thumb and next two fingers. The examiner discussed carpal tunnel syndrome. A review of the additional records do not show any further discussions regarding the right hand. The Veteran was afforded a VA hands and fingers examination in March 2016 by an examiner that reviewed the VA medical records. The 1968 shrapnel wound was noted, as was the Veteran's assertion that he has pain in his right hand related to the wound. He reported that he wore a glove at all times to protect his right hand. There was some reduced range of motion of the fingers of the right hand but there was no additional functional loss with repetition. Hand strength was reported as 4/5 on the right and 5/5 on the left. The Veteran was afforded a VA muscle injuries examination in May 2016 by an examiner that reviewed the entire claims file. The examiner noted that the Veteran had a penetrating muscle injury, such as a gunshot or shell fragment wound. The Veteran reported constant pain to right hand with limited movement and weakness of right hand and fingers, pain to palpation of thumb and dorsum of hand, inability to make a fist, decreased sensation and tingling in the right hand and fingers, and difficulty with extension and flexion of right thumb. The examiner identified the muscle group affected as MG VII. The examiner found no scars associated with the injury. Consistent weakness, fatigue-pain and impaired coordination were noted in the right hand and specifically affecting MG VII. Right hand strength for wrist flexion was 5/5, or normal, while hand grip measured 4/5, less than normal strength. There was no muscle atrophy. The Veteran regularly wore a glove for protection of the right hand. Functioning of the right hand was not so limited that no effective functioning remained other than that which would be equally well served by an amputation with prosthesis. There were no other pertinent physical findings, complications, conditions, signs or symptoms related to the right hand condition. The functional impact of the right hand disability was described by the examiner as impaired grip and difficulty with writing. The Veteran asserted in June 2016 written argument that the manifestations of the right hand shrapnel wound have been the same at all times relevant to the claim. He argued in essence that he has reported his symptoms of weakness and pain at the same level since September 2009, but that the various examiners have not recorded them properly until May 2016. He further noted that, while he does not in fact request a 40 percent rating, he believes he meets the criteria for at least a 30 percent rating at all times relevant to the claim. As to the period prior to May 9, 2016, the Board assigns a 30 percent rating based on the Veteran's contentions associated with this appeal as to the long-standing nature of his pain and limitations which are consistent with the current 30 percent rating. Here, the May 2016 examination documents that the Veteran's moderately severe impairment of MG VII. The Board agrees with the Veteran that his assertions have remained essentially constant throughout the appeal period with regard to this shrapnel injury that was incurred in combat in Vietnam. They are accorded significant probative weight. The Board notes that the 2009 VA examination does not provide a rationale for attributing the Veteran's right hand complaints to arthritis. The Board accords the opinion no probative weight. To the extent that the January 2015 examination is in conflict with the May 2016 examination, the Board finds the later opinion more consistent with the Veteran's credible assertions as to ongoing pain and weakness. The March 2016 examination is in agreement with the findings as to strength found in the May 2016 examination. Ultimately, the Board finds that the most probative examination as to the level of disability for the entire period on appeal is the May 2016 examination. The Veteran reported in conjunction with all of his examinations that he has had the same long-term level of limitation since 2009. The examiner in May 2016 showed him to be significantly limited due to consistent right hand pain and weakness. To the extent that the provisions of 38 C.F.R. § 4.40 and 4.45 (2016) may be applicable, the Board recognizes the Veteran's complaints of pain and functional loss as a result of his right hand shrapnel wound, but note that the Veteran in general has not described significant flare-ups. Rather, he has described fairly consistent pain, which is part of the basis for the 30 percent rating being assigned. See May 2016 examination. Moreover, the preponderance of the evidence is against a rating in excess of 30 percent for the right hand SFW residuals. The manifestations described have been at most moderately severe, and neither the Veteran's assertions nor the objective findings suggest that severe impairment has been demonstrated. Again, the hand strength has been assessed at worst at 4/5 in the right hand, which has not been described as and does not appear indicative of severe impairment. Overall, the Board finds that no more than moderately severe impairment has been shown. For all the foregoing reasons, a 30 percent rating is assigned for the entire period prior to May 9, 2016, but the preponderance of the evidence of record is against rating in excess of 30 percent at any time during the pendency of the claim for the lumbar disability. Hart v. Mansfield, 21 Vet. App. 505 (2007). The Board has considered whether the schedular evaluation is inadequate, thus requiring referral of the case to the Under Secretary for Benefits or Director of Compensation and Pension Service for consideration of an extra-schedular evaluation commensurate with the average earning capacity impairment due exclusively to the service-connected disability. 38 C.F.R. § 3.321 (b)(1) (2016). An extra-schedular evaluation is for consideration where a service-connected disability presents an exceptional or unusual disability picture. An exceptional or unusual disability picture occurs where the diagnostic criteria do not reasonably describe or contemplate the severity and symptomatology of the disability. Thun v. Peake, 22 Vet. App. 111 (2008). If there is an exceptional or unusual disability picture, then the Board must consider whether the disability picture exhibits other factors such as marked interference with employment or frequent periods of hospitalization. Thun v. Peake, 22 Vet. App. 111 (2008). When either of those elements has been satisfied, the appeal must be referred for consideration of the assignment of an extra-schedular rating. Otherwise, the schedular evaluation is adequate, and referral is not required. 38 C.F.R. § 3.321 (b)(1) (2016); Thun v. Peake, 22 Vet. App. 111 (2008). In this case, the schedular evaluation is adequate. Evaluation in excess of that assigned are provided for certain manifestations of the service-connected muscle disability, but the medical evidence reflects that those manifestations are not present in this case. Also, the diagnostic criteria adequately describe the severity and symptomatology of the Veteran's disability, which are pain, weakness and limited grip strength. The Veteran's symptoms of are reasonably contemplated by the rating criteria. As the rating schedule is adequate to evaluate the disability, referral for extra-schedular consideration is not in order. ORDER A 30 percent rating is granted for residuals, SFW of the right hand, for the period prior to May 9, 2016, subject to the provisions governing the award of monetary benefits. A rating in excess of 30 percent for the entire period on appeal is denied. ____________________________________________ MICHAEL LANE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs