Citation Nr: 18154558 Decision Date: 11/30/18 Archive Date: 11/30/18 DOCKET NO. 14-19 953A DATE: November 30, 2018 ORDER Entitlement to rating higher than 30 percent for anxiety reaction is denied A 20 percent disability rating for retained foreign body in the right chest is granted, subject to regulations governing payment of monetary awards. A 30 percent rating for injuries to muscle group XIV associated with the left thigh wound is granted, subject to regulations governing payment of monetary awards. A 30 percent rating for injuries to muscle group XIV associated with the right thigh wound is granted, subject to regulations governing payment of monetary awards. A separate 20 percent disability rating for injuries to muscle group XV associated with the left thigh wound is granted, subject to subject to regulations governing payment of monetary awards. A separate 20 percent disability rating for injuries to muscle group XV associated with the right thigh wound is granted, subject to subject to regulations governing payment of monetary awards. Entitlement to rating higher than 10 percent for scars as residuals of penetrating right thigh wound is denied. Entitlement to rating higher than 10 percent for scars as residuals of penetrating left thigh wound is denied. FINDINGS OF FACTS 1. The Veteran’s anxiety reaction is manifested by occasional decreased work efficiency and intermittent periods of inability to perform occupational tasks, but not greater social and occupational impairment. 2. The Veteran’s service-connected right chest shrapnel wound is manifested by moderately severe disability of the muscle group XXI. 3. The Veteran’s service-connected left thigh shrapnel wounds are manifested by no worse than moderately severe disabilities of the muscle groups XIV and XV. 4. The Veteran’s service-connected right thigh shrapnel wounds are manifested by no worse than moderately sever disabilities of the muscle groups XIV and XV. 5. The Veteran has two painful but stable scars as residuals of penetrating right thigh wound. 6. The Veteran has two painful but stable scars as residuals of penetrating left thigh wound. CONCLUSIONS OF LAW 1. The criteria for a rating higher than 30 percent for anxiety reaction have not been met. 38 U.S.C. §1155; 38 C.F.R. §§ 4.1, 4.7, 4.10, 4.27, 4.130, Diagnostic Code 9400. 2. The criteria for a 20 percent rating for retained foreign body in the right chest are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.73, Diagnostic Code 5321. 3. The criteria for 30 percent rating for injuries to muscle group XIV as residual to left thigh wound are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.73, Diagnostic Code 5314. 4. The criteria for 30 percent rating for injuries to muscle group XIV as residual to right thigh wound are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.73, Diagnostic Code 5314. 5. A separate 20 percent disability rating for injuries to muscle group XV as residual to left thigh wound are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.73, Diagnostic Code 5315. 6. A separate 20 percent disability rating for injuries to muscle group XV as residual to right thigh wound are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.73, Diagnostic Code 5315. 7. The criteria for a rating higher than 10 percent for scars as residuals of penetrating right thigh wound have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321, 4.1, 4.2, 4.7, 4.118, Diagnostic Code 7804. 8. The criteria for a rating higher than 10 percent for scars as residuals of penetrating left thigh wound have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321, 4.1, 4.2, 4.7, 4.118, Diagnostic Code 7804. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from May 1943 to January 1946. Increased Rating The Veteran is seeking increase rating for his service-connected anxiety reaction, retained foreign body in the right chest, muscle injuries to bilateral thighs, and scars on the bilateral thighs. The VA’s Schedule for Rating Disabilities is used to determine disability ratings once a disability is service-connected. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. In the Rating Schedule, diagnostic codes (DC) are assigned to specific disabilities. These DCs designate percentage ratings based on the average functional impairment of the Veteran due to a service-connected disability. 38 C.F.R. §§ 3.321, 4.10. 1. Anxiety Reaction The Veteran’s anxiety reaction is currently rated as 30 percent disabling under DC 9400. DC 9400 is part of the General Rating Formula for Mental Disorders. Under the General Rating Formula, 30 percent rating is warranted for occupational and social impairment with occasional decrease in work efficiency and intermittent periods of ability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and conversation normal), due to such symptoms as: depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, and mild memory loss (such as forgetting names, directions, recent events). 38 C.F.R. § 4.130. A 50 percent evaluation is warranted where the disorder is manifested by occupational and social impairment with reduced reliability and productivity due to such symptoms as flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short- and long-term memory for example, retention of only highly learned material, forgetting to complete tasks; impaired judgment; impaired abstract thinking; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships. A 70 percent rating is warranted where there is occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a work like setting); inability to establish and maintain effective relationships. Id. A 100 percent rating is warranted for total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation, or own name. Id. Ratings are assigned according to the manifestation of particular symptoms. However, the use of the term “such as” in 38 C.F.R. § 4.130 demonstrates that the symptoms after that phrase are not intended to constitute an exhaustive list, but rather are to serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating. Mauerhan v. Principi, 16 Vet. App. 436 (2002). In this case, the Board finds that the totality of the evidence of record does not establish entitlement to a 50 percent disability rating. To that end, the evidence does not show that the Veteran’s condition is manifested by panic attacks, hallucinations, suicidal or homicidal ideations. See eg. December 2015 VA Psychology Notes. The June 2018 and February 2018, VA treatment records reflect that the Veteran denied having memory loss, and a mental exam from December 2015 found that the Veteran’s memory was intact. A May 2015 Physical Therapy Consult note shows that the Veteran was alert, oriented, motivated, cooperative and able to follow commands. Similarly, treatment records show that the Veteran can verbalize possible solution to problems, able to understand his treatment plan and make informed decision. See December 2015 VA Psychiatry Consult Note. At that time, the Veteran was oriented to persons, place and time. He also had appropriate affect and coherent speech. The Veteran underwent a VA examination in January 2012, where the examiner characterized the Veteran’s impairment as transient or mild with decrease work efficiency and ability to perform occupational tasks during a period of significant stress. The exam noted that the Veteran has sleep problems, as well as mild impairment of recent memory. But, the Veteran had normal remote and immediate memory. Notably, a VA primary care note from August 2011 reflects that the Veteran expressed concern with his memory loss and an August 2017 VA treatment record listed memory loss as a problem. However, his memory loss was attributed to his advanced age as documented in a June 2012 VA Primary Care Note. According to a June 2011 VA exam, the Veteran understands outcome of behavior, he has good insight, good impulse control, and he can interpret proverbs appropriately and manage his own finances, which suggests that the Veteran’s abstract thinking and judgment are not impaired. The Board recognizes that the Veteran has mild impairment of recent memory, which is part of a 50 percent rating criteria. However, in the absence of any speech abnormalities, frequent panic attacks, long-term memory impairment, significant mood disturbances, impaired abstract thinking and judgment or other such symptoms, the evidence does not establish that his condition is severe enough to warrant a higher rating than assigned. Overall, the Veteran’s anxiety reaction is manifested by symptoms that are contemplated by a 30 percent disability rating under DC 9400. Therefore, the Board finds that entitlement to a rating higher than 30 percent is not warranted. 2. Muscle Injuries The Veteran has muscle injuries due to his chest and bilateral thigh wounds. Muscle injuries 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, which include 3 muscle groups for the foot and leg (diagnostic codes 5310 through 5312) and 6 muscle groups for the pelvic girdle and thigh (diagnostic codes 5313 through 5318). 38 C.F.R. § 4.55 (b). 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). A slight disability of muscles consists of simple wound of muscle without debridement or infection. Objective findings include minimal scar; no evidence of fascial defect, atrophy, or impaired tonus; and no impairment of function or metallic fragments retained in muscle tissue. 38 C.F.R. § 4.56 (d)(1). A moderate muscle disability comprises of 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. 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). A moderately severe muscle disability comprises of 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). A 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). If present, the following are also signs of severe muscle disability: (A) X-ray evidence of minute multiple scattered foreign bodies indicating intermuscular trauma and explosive effect of the missile. (B) Adhesion of scar to one of the long bones, scapula, pelvic bones, sacrum or vertebrae, with epithelial sealing over the bone rather than true skin covering in an area where bone is normally protected by muscle. (C) Diminished muscle excitability to pulsed electrical current in electrodiagnostic tests. (D) Visible or measurable atrophy. (E) Adaptive contraction of an opposing group of muscles. (F) Atrophy of muscle groups not in the track of the missile, particularly of the trapezius and serratus in wounds of the shoulder girdle. (G) Induration or atrophy of an entire muscle following simple piercing by a projectile. 38 C.F.R. § 4.56. The Board must evaluate all of the evidence, to the end that its decisions are “equitable and just.” 38 C.F.R. § 4.6. Use of terminology such as “severe” by VA examiners and others, although an element of evidence to be considered by the Board, is not dispositive of an issue. All evidence must be evaluated in arriving at a decision regarding an increased rating. 38 C.F.R. §§ 4.2, 4.6. (a) Residuals of Chest Wound In this case, residuals of the Veteran’s chest wound are rated under DC 5321 as a disability resulting in injuries to the muscle group XXI, specifically thoracic muscle. Under DC 5321, disabilities are classified as slight, moderate, moderately severe, or severe. 38 C.F.R. §§ 4.56 (d), 4.73. A noncompensable rating is warranted for slight muscle injury. A 10 percent rating is warranted for moderate muscle injury. A 20 percent rating is warranted for moderately severe or severe muscle injury. In this case, the Veteran was injured by high velocity missile with fragment left in his chest. He underwent a VA examination in January 2011, where pain, increase fatigability, weakness, and tenderness on palpation were noted. The Veteran’s muscle strength was normal (5) and there was no tissue loss at the time. The Veteran reported severe flare-ups every 2 to 3 weeks and lasting for 1 to 2 days. At the time of his injury, the Veteran was hospitalized for three months and he was returned to limited duty thereafter. The wound was not infected and there were no bone, nerve, vascular, or tendon injuries. Based on the evidence of record and resolving all reasonable doubt in the Veteran’s favor, the Board finds that the Veteran had moderately severe muscle injury of the right chest. The Veteran was struck with high velocity missile and he has residual debridement in the form of metallic fragment remaining in his chest. The Board finds that combined with the symptoms of chest pain, tenderness, fatigability, and weakness, the nature of the Veteran’s initial injury, length of hospitalization, and inability to return to full duty for months reflects a level of impairment that most nearly approximates a moderately severe disability of the thoracic muscle group. Therefore, a 20 percent rating, which is the maximum rating under DC 5321 is warranted. (b) Residuals of Bilateral Thigh Wound The residuals of the Veteran’s bilateral thigh wound are rated as 10 percent disabling each under DC 5314 as disabilities causing injuries of muscle group XIV, which governs the extension of the knee and flexion of the hip and knee and pertains to muscles arising from anterior thigh group. However, the evidence also reflects that the Veteran’s medial thigh muscles, which are group XV, are impacted, thereby require a separate disability rating under DC 5315. Under DC 5314, a 30 percent rating is warranted for moderately severe injury and a 40 percent rating is warranted for severe injury. On the other hand, under DC 5315 a 10 percent rating is assignable for moderate injury. A 20 percent rating is assigned for injuries that are moderately severe and a 30 percent rating is assigned for injuries that are severe. Historically, the Veteran’s bilateral anterior upper quads and adductors were injured by high velocity missile that hit the Veteran thigh multiple times. The injury was through and through. He was hospitalized for three months without any infection reported and he returned to limited duty after. See January 2011 VA exam. As noted above, the Board finds that the weight of the evidence supports separate 20 percent, but not higher, ratings for injuries to muscle group XV and a 30 percent, but not higher, rating for muscle group XIV for both lower extremities. The Veteran underwent a VA examination in January 2011, where he reported pain in his thighs that has been progressively getting worse. He explained that because of the pain he is unable to complete his chores around the house. The exam reflects that the Veteran has decreased coordination, increase fatigability, and weakness. The Veteran had weaker than normal (4/5) hip flexion and abduction bilaterally. There is loss of deep fascia or muscle substance. The examiner concluded that the Veteran’s bilateral thigh muscle injury significantly affects his occupation as he would have problems with walking, standing, lifting, and carrying because of decrease in strength and pain of the lower extremities. The exam further reflects that the Veteran’s impairment would severely affect his ability to do chores, shop, and exercise. His ability to travel is also moderately impacted. On the other hand, an August 2017 VA exam found that the Veteran’s muscle injuries do not affect muscle substance or function. The Veteran had normal muscle strength test and no muscle atrophy. Similarly, a February 2018 VA exam reflects that the Veteran’s range of motion for his hips were all normal. The exam does not show pain weakness, fatigability or incoordination that significantly limit functional ability. Nor was there reduction in muscle strength. In summary, the Veteran injured his muscle group XV and muscle group XIV of the right and left thigh by high velocity missile causing him to be hospitalized for three months. There is medical evidence of record that shows decrease coordination, increase fatigability, and weakness of the muscles. There is also evidence of loss of deep fascia or muscle substance. Considering this evidence, and affording the Veteran the benefit of the doubt, the Board finds that the Veteran’s bilateral thigh muscle injury of group XV and muscle group XIV causes impairment that approximates a level contemplated by moderately sever muscle injury. Therefore, a 30 percent disability rating for the Veteran’s injury to muscle group XIV as residual to the right and left thigh wound is warranted. Similarly, a 20 percent rating for injuries to muscle group XV as residual to left and thigh wound is appropriate. However, the evidence does not reflect an impairment contemplated by severe level of muscle injury to warrant a higher rating of 40 percent for muscle group XIV or 30 percent for muscle group XV. 3. Scars The Veteran is seeking an increase rating for his service-connected right and left thigh scars, which are assigned 10 percent disability rating each under DC 7804. Under DC 7804, a 20 percent rating is assigned for three or four scars that are unstable or painful, and a maximum 30 percent rating is assigned for five or more scars that are unstable or painful. An unstable scar is one where, for any reason, there is frequent loss of covering of skin over the scar. If one or more scars are both unstable and painful, 10 percent is added to the evaluation that is based on the total number of unstable or painful scars. As noted in the August 2017 VA examination, the Veteran has two linear scars on his right leg and left leg associated with removal of machine gun bullets in service. The examiner indicated that the scars were stable, and they were not painful. These results were consistent with a February 2018 VA examination. However, a January 2011 VA examination reflects that the Veteran’s scars were painful on palpation. Based on this evidence, while there is some evidence that the Veteran’s scars are painful, he does not have three or four scars on each leg. For these reasons, a rating higher than 10 percent for scars on each leg associated with the Veteran’s service-connected disability are not appropriate. Nathaniel J. Doan Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD S.SOLOMON