Citation Nr: 21004366 Decision Date: 01/26/21 Archive Date: 01/26/21 DOCKET NO. 12-27 643A DATE: January 26, 2021 ORDER Entitlement to an evaluation in excess of 50 percent for SFW right hip with chip fracture superior greater trochanter with small retained fragments and scars, muscle group XVII is denied. Entitlement to a separate 40 percent evaluation for SFW, pelvic girdle muscles of right hip, with scars, muscle group XVI from July 19, 2010, is granted. Entitlement to a separate 30 percent evaluation for SFW, pelvic girdle muscles of right hip, muscle group XVIII from July 19, 2010, is granted. Entitlement to a 50 percent evaluation for SFW anterior and posterior chest with scars, right side, muscle groups I, II, and III from July 19, 2010, is granted. Entitlement to a 20 percent evaluation for SFW, muscles of the neck, muscle group XXIII from July 19, 2010, is granted. Entitlement to Dependents' Educational Assistance from July 19, 2010, is granted. FINDINGS OF FACT 1. For the entire period on appeal (July 19, 2010), the Veteran’s SFW right hip with chip fracture superior greater trochanter with small retained fragments and scars, muscle group XVII results in severe disability of the muscle group. He is in receipt of the schedular maximum. 2. For the entire period on appeal (July 19, 2010), the Veteran’s SFW, pelvic girdle muscles of right hip, with scars, muscle group XVI results in severe disability of the muscle group. He is in receipt of the schedular maximum. 3. For the entire period on appeal (July 19, 2010), the Veteran’s SFW, pelvic girdle muscles of right hip, muscle group XVIII results in severe disability of the muscle group. He is in receipt of the schedular maximum. 4. For the entire period on appeal (July 19, 2010), the Veteran’s SFW anterior and posterior chest with scars, right side, muscle groups I, II, and III results in severe disability of the muscle group, consistent with the maximum allowed schedular rating for muscles impacting the shoulder joint under 38 C.F.R. § 4.55. 5. For the entire period on appeal (July 19, 2010), the Veteran’s SFW, muscles of the neck, muscle group XXIII results in fatigue-pain and impairment of coordination consistent with moderately severe disability of the muscle group. 6. From July 19, 2010, a permanent and total disability rating is in effect. CONCLUSIONS OF LAW 1. The criteria for an evaluation in excess of 50 percent for SFW right hip with chip fracture superior greater trochanter with small retained fragments and scars, Muscle Group XVII are not met. 38 U.S.C. § 1155; 38 C.F.R. § 4.73, Diagnostic Code 5317. 2. The criteria for a separate 40 percent evaluation for SFW, pelvic girdle muscles of right hip, with scars, Muscle Group XVI from July 19, 2010, have been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.73, Diagnostic Code 5316. 3. The criteria for a separate 30 percent evaluation for SFW, pelvic girdle muscles of right hip, Muscle Group XVIII from July 19, 2010, have been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.73, Diagnostic Code 5318. 4. The criteria for a 50 percent evaluation for SFW anterior and posterior chest with scars, right side, Muscle Groups I, II, and III from July 19, 2010, have been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.73, Diagnostic Code 5302-5200. 5. The criteria for a 20 percent evaluation for SFW, muscles of the neck, Muscle Group XXIII from July 19, 2010, have been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.73, Diagnostic Code 5323. 6. From July 19, 2010, the criteria for Dependents’ Educational Assistance under 38 U.S.C. chapter 35 are met. 38 U.S.C. §§ 1155, 3500, 3501; 38 C.F.R. §§ 3.151, 3.340, 3.341, 3.400, 3.401. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from April 1970 to December 1971. In January 2019, the Board remanded the issues of entitlement to increased ratings for the Veteran’s right anterior and posterior chest disorder and right hip disorder. Pursuant to the development directed by the Remand, the RO issued a September 2020 rating decision granting separate evaluations for related muscle injuries as they fell within the scope of the appeal. The Board will address the separate evaluations accordingly, as they fall within the scope of the appeal. As a preliminary matter, the Veteran filed an increased rating claim for the aforementioned service-connected right hip and chest disorders on July 19, 2010. This marks the beginning of the period on appeal for each evaluation discussed below. We further note that the ratings for the muscle injuries are subject to the combined rules of 38 C.F.R. § 4.55. Muscle Injuries Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule), found in 38 C.F.R., Part 4. The ratings are intended to compensate impairment in earning capacity due to a service-connected disease or injury. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Staged ratings are appropriate when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007); see also Fenderson v. West, 12 Vet. App. 119 (1999). The Veteran’s muscle injuries are evaluated under various Diagnostic Codes. Under the relevant provisions of 38 C.F.R. §§ 4.55, 4.56, and 4.73, each Diagnostic Code addressing muscle injuries uses the criteria of “slight,” “moderate,” “moderately severe,” and “severe.” Section 4.56 provides further detail as to the criteria for each level of impairment. A muscular disability is considered to be slight if it is a simple wound of muscle without debridement or infection. The history of a slight muscle injury should include service department record of superficial wound with brief treatment and return to duty, healing with good functional results, and no cardinal signs or symptoms of muscle disability defined as loss of power, weakness, lowered threshold of fatigue, fatigue-pain, impairment of coordination and uncertainty of movement. The objective evidence of a slight muscle disability includes 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 muscular disability consists 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. The history of a moderate muscle injury should include service department records or other evidence of in-service treatment for the wound and a record of consistent complaints of one or more of the cardinal signs and symptoms of muscle disability as defined above, particularly lowered threshold of fatigue after average use, affecting the particular functions controlled by the injured muscles. The objective evidence of a moderate muscle disability includes entrance and (if present) exit scars small or linear indicating 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. 38 C.F.R. § 4.56 (d)(2). A moderately severe muscular disability consists of 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. The history of a moderately severe muscle injury should include service department records or other evidence showing hospitalization for a prolonged period for treatment of the wound; consistent complaints of the cardinal signs and symptoms of muscle disability as noted above; and if present, evidence of inability to keep up with work requirements. The objective evidence of a moderately severe muscle disability includes entrance and (if present) exit scars that indicate a track of the missile through one or more muscle groups; the loss of deep fascia, muscle substance, or normal firm resistance of muscles compared with the sound side; and impairment of strength and endurance in comparison to the sound side. 38 C.F.R. § 4.56 (d)(3). A severe muscular disability consists of 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. Furthermore, objective findings of a severe muscular disability include the following: ragged, depressed, and adherent scars that indicate wide damage to the muscle groups in the missile track; palpation shows loss of deep fascia or muscle substance, or soft flabby muscles in the wound area; muscles swell and harden abnormally in contraction; and tests of strength, endurance, or coordinated movements in comparison to 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: (1) x-ray evidence of minute multiple scattered foreign bodies indicating intermuscular trauma and explosive effect of the missile; (2) adhesion of a 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 the bone is normally protected by muscle; (3) diminished muscle excitability to pulsed electrical current in electrodiagnostic tests; (4) visible or measurable atrophy; (5) adaptive contraction of an opposing group of muscles; (6) atrophy of muscle groups not in the tract of the missile, particularly of the trapezius and serratus in wounds of the shoulder girdle; and (7) induration or atrophy of an entire muscle following simple piercing by a projectile. Id. Here, we are presented with an assertion of an inadequate examination. Based upon the actions of the AOJ, either the 2010 examination was inadequate or the 2018 examination was inadequate. We are unable to conclude that the Veteran developed muscle injuries on the date of the adequate examination. 1. Entitlement to an evaluation in excess of 50 percent for SFW right hip with chip fracture superior greater trochanter with small retained fragments and scars, muscle group XVII The Veteran is in receipt of a 50 percent evaluation for SFW right hip with chip fracture superior greater trochanter with small retained fragments and scars, muscle group XVII under Diagnostic Code 5317, effective July 19, 2010. 38 C.F.R. § 4.73. Under Diagnostic Code 5317 (specific to Muscle Group XVII), a slight muscle injury is assigned a 0 percent rating; a moderate muscular disability is assigned a 20 percent rating; a moderately severe muscular disability is assigned a 40 percent rating; and severe muscle disability is assigned the schedular maximum 50 percent rating. 38 C.F.R. §§ 4.55 (b), 4.56(d)(2), 4.73, Diagnostic Code 5317. The Veteran is in receipt of the maximum schedular evaluation for the entire period on appeal, from July 19, 2010. There is no basis for a higher evaluation. The current uniform evaluation is appropriate. See Hart, supra; Fenderson, supra. 2. Entitlement to a separate 40 percent evaluation for SFW, pelvic girdle muscles of right hip, with scars, muscle group XVI from July 19, 2010 The September 2020 rating decision granted a separate evaluation of 40 percent for SFW, pelvic girdle muscles of right hip, with scars, muscle group XVI, under Diagnostic Code 5316, effective February 2, 2018. Under Diagnostic Code 5316 (specific to Muscle Group XVI), a slight muscle injury is assigned a 0 percent rating; a moderate muscular disability is assigned a 10 percent rating; a moderately severe muscular disability is assigned a 30 percent rating; and severe muscle disability is assigned the schedular maximum 40 percent rating. 38 C.F.R. §§ 4.55 (b), 4.56(d)(2), 4.73, Diagnostic Code 5316. After a review of the record, the Board has determined that a separate 40 percent evaluation under Diagnostic Code 5316 is warranted for the entire period on appeal, from July 19, 2010. The RO determined that a separate evaluation under Diagnostic Code 5316 was warranted pursuant to a February 2, 2018 VA examination which documented severe impairment of Muscle Group XVI. The RO made the determination that this was the first evidence of severe impairment of Muscle Group XVI. The previous VA examination was in December 2010 and it did not specifically mention Muscle Group XVI. Common sense dictates that the Veteran’s disability did not increase in severity and begin to impact Muscle Group XVI on the specific date of the February 2018 VA examination. Rather, it is certain that such impairment began before that examination. The Board has determined that VA treatment records during the appeal period prior to the February 2018 VA examination, including the December 2010 VA examination, are not inconsistent with a separate 40 percent evaluation under Diagnostic Code 5316. It is of note that the Veteran questioned the thoroughness of the December 2010 VA examination in his October 2012 VA Form 9 Substantive Appeal. He was not afforded another examination until February 2018. Considering the Veteran’s assertions indicating a worsening of the disability for the entirety of the period on appeal, the lack of specific contradictory medical evidence, and the reasonable doubt provisions of 38 C.F.R. § 4.3, the Board has determined that a separate 40 percent evaluation under Diagnostic Code 5316 is warranted for the entire period on appeal. This is the maximum schedular evaluation for the entire period on appeal, from July 19, 2010. There is no basis for a higher evaluation. The now uniform evaluation is appropriate. See Hart, supra; Fenderson, supra. This is consistent with VA’s determination to handle cases affected by change in medical findings or diagnosis so as to produce the greatest degree of stability of disability evaluations consistent with the laws and regulations governing disability compensation and pension. 38 C.F.R. § 3.344 (a). 3. Entitlement to a separate 30 percent evaluation for SFW, pelvic girdle muscles of right hip, muscle group XVIII from July 19, 2010 The September 2020 rating decision granted a separate evaluation of 30 percent for SFW, pelvic girdle muscles of right hip, muscle group XVIII, under Diagnostic Code 5318, effective February 2, 2018. Under Diagnostic Code 5318 (specific to Muscle Group XVIII), a slight muscle injury is assigned a 0 percent rating; a moderate muscular disability is assigned a 10 percent rating; a moderately severe muscular disability is assigned a 20 percent rating; and severe muscle disability is assigned the schedular maximum 30 percent rating. 38 C.F.R. §§ 4.55 (b), 4.56(d)(2), 4.73, Diagnostic Code 5318. After a review of the record, the Board has determined that a separate 30 percent evaluation under Diagnostic Code 5318 is warranted for the entire period on appeal, from July 19, 2010. As above, the RO determined that a separate evaluation under Diagnostic Code 5318 was warranted pursuant to the February 2, 2018 VA examination which documented severe impairment of Muscle Group XVIII. The RO made the determination that this was the first evidence of severe impairment of Muscle Group XVIII. The December 2010 VA examination did not specifically mention Muscle Group XVIII. Again, common sense dictates that the Veteran’s disability did not increase in severity and begin to impact Muscle Group XVIII on the specific date of the February 2018 VA examination. Such impairment preexisted that examination. Earlier VA treatment records and the December 2010 VA examination are not inconsistent with a separate 30 percent evaluation under Diagnostic Code 5318. Again considering the Veteran’s assertions with respect to the adequacy of the December 2010 examination, his indications that the disability was of greater severity for the entirety of the period on appeal, the lack of specific contradictory medical evidence, and the reasonable doubt provisions of section 4.3, the Board has determined that a 30 percent evaluation under Diagnostic Code 5318 is warranted for the entire period on appeal. This is the maximum schedular evaluation for the entire period on appeal, from July 19, 2010. There is no basis for a higher evaluation. The now uniform evaluation is appropriate. See Hart, supra; Fenderson, supra. This is consistent with VA’s determination to handle cases affected by change in medical findings or diagnosis so as to produce the greatest degree of stability of disability evaluations consistent with the laws and regulations governing disability compensation and pension. 38 C.F.R. § 3.344 (a). 4. Entitlement to a 50 percent evaluation for SFW anterior and posterior chest with scars, right side, muscle groups I, II, and III from July 19, 2010 The September 2020 rating decision granted an evaluation of 50 percent for SFW anterior and posterior chest with scars, right side, muscle groups I, II, and III, under Diagnostic Code 5302-5200, effective February 2, 2018. The RO granted the 50 percent evaluation as the maximum combined evaluation for muscle groups acting on the same unankylosed shoulder joint as defined by 38 C.F.R. § 4.55. Relevant provisions indicate that in the case of the shoulder joint, it will be rated as if ankylosed under Diagnostic Code 5200 (50 percent) and the muscle groups will not be rated. 38 C.F.R. § 4.55(c)(2). After a review of the record, the Board has determined that the combined 50 percent evaluation for Muscle Groups I, II, and III under the provisions of section 4.55(c)(2) and Diagnostic Code 5200 is warranted for the entire period on appeal, from July 19, 2010. The Board’s reasoning for this determination is identical to that referenced above for Muscle Groups XVI and XVIII. It is certain that such impairment existed prior to the February 2018 examination and the medical evidence from July 19, 2010 does not directly contradict the Veteran’s assertion of similar impairment during the entire period on appeal, particularly when considering the reasonable doubt provisions of section 4.3. This is the maximum schedular evaluation for the entire period on appeal, from July 19, 2010. There is no basis for a higher evaluation. The now uniform evaluation is appropriate. See Hart, supra; Fenderson, supra. This is consistent with VA’s determination to handle cases affected by change in medical findings or diagnosis so as to produce the greatest degree of stability of disability evaluations consistent with the laws and regulations governing disability compensation and pension. See 38 C.F.R. § 3.344 (a). The Board notes that the September 2020 rating decision granted a separate 40 percent evaluation for Muscle Group II under Diagnostic Code 5301 for the period from July 19, 2010 to February 2, 2018. It discontinued that rating effective February 2, 2018 with the implementation of a combined evaluation for Muscle Groups I, II, and III, effective February 2, 2018. The Board will leave this rating under Diagnostic Code 5301 untouched, allowing the RO to take appropriate action upon implementation of the Board’s decision. The Board has addressed the impairment of Muscle Group II during the period on appeal with its award of a 50 percent combined evaluation for the entire period on appeal. 5. Entitlement to a 20 percent evaluation for SFW, muscles of the neck, muscle group XXIII from July 19, 2010 The September 2020 rating decision granted a separate evaluation of 20 percent for SFW, muscles of the neck, muscle group XXIII, under Diagnostic Code 5323, effective February 2, 2018. After a review of the record, the Board has determined that the separate 20 percent evaluation for Muscle Group XXIII under Diagnostic Code 5323 is warranted for the entire period on appeal, from July 19, 2010. The Board’s reasoning for this determination is identical to that referenced above. It is certain that such impairment existed prior to the February 2018 examination and the medical evidence from July 19, 2010 does not directly contradict the Veteran’s assertion of similar impairment during the entire period on appeal, particularly when considering the reasonable doubt provisions of section 4.3. The 20 percent rating is not the maximum schedular evaluation under Diagnostic Code 5323. Under Diagnostic Code 5323 (specific to Muscle Group XXIII), a slight muscle injury is assigned a 0 percent rating; a moderate muscular disability is assigned a 10 percent rating; a moderately severe muscular disability is assigned a 20 percent rating; and severe muscle disability is assigned the schedular maximum 30 percent rating. 38 C.F.R. §§ 4.55, 4.56, 4.73, Diagnostic Code 5323. The December 2010 VA examination does not make specific reference to the neck or Muscle Group XXIII (movements of the head). At the Veteran’s February 2018 VA examination, the examiner notes impairment of the Muscle Group XXIII on the right side. Specific to group XXIII, there was fatigue-pain and impairment of coordination. There was no muscle atrophy. There was no scarring or retained fragments in Muscle Group XXIII. At the Veteran’s November 2019 VA examination, the examiner did not document any muscle injury or impairment to Muscle Group XXIII. There is no evidence of severe disability of Muscle Group XXIII in VA examination reports or VA treatment records consistent with 38 C.F.R. § 4.56. The now uniform 20 percent evaluation under Diagnostic Code 5323 for the entire period on appeal is appropriate. See Hart, supra; Fenderson, supra. This is consistent with VA’s determination to handle cases affected by change in medical findings or diagnosis so as to produce the greatest degree of stability of disability evaluations consistent with the laws and regulations governing disability compensation and pension. See 38 C.F.R. § 3.344 (a). 6. Entitlement to Dependents' Educational Assistance from July 19, 2010 Basic eligibility for DEA exists if a veteran has a permanent, total service-connected disability. 38 U.S.C. §§ 3500, 3501. A total disability may be assigned where the veteran’s service-connected disabilities are rated 100 percent disabling under the rating schedule, or if the veteran is unemployable due to service-connected disabilities. 38 C.F.R. §§ 3.340, 3.341. Permanence of total disability will be taken to exist when such impairment is reasonably certain to continue throughout the life of the disabled person. 38 C.F.R. § 3.340 (b). The September 2020 rating decision awarded DEA effective February 2, 2018. Pursuant to the Board’s decision, eligibility for DEA is now effective July 19, 2010, as the Veteran is in receipt of a 100 percent rating from that date and he is considered permanently disabled. Therefore, the Veteran is entitled to DEA from July 19, 2010. H. N. SCHWARTZ Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board W. R. Stephens, Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.