Citation Nr: 21068756 Decision Date: 11/12/21 Archive Date: 11/12/21 DOCKET NO. 18-47 694 DATE: November 12, 2021 ORDER Entitlement to a rating in excess of 10 percent for residuals of shell fragment wound of the right side of the abdomen is denied. Entitlement to a rating in excess of 30 percent for residuals of shell fragment wound of the right knee, based on muscle injury, is denied. Entitlement to special monthly compensation (SMC) based on the regular need for the aid and attendance of another, housebound status, or loss of use of a limb is denied. REMANDED Entitlement to a separate evaluation for arthritis of the right knee, as a residual of the shell fragment wound of the right knee, is remanded. Entitlement to a finding of total disability based on individual unemployability (TDIU) is remanded. FINDINGS OF FACT 1. Throughout the rating period, the residuals of the shell fragment wound of the abdomen involving Muscle Group XIX are manifested primarily by a penetrating wound of the abdomen and are productive of moderate muscle injury; moderately severe injury of the abdomen is not demonstrated. 2. Throughout the rating period, the residuals of the shell fragment wound of the right knee involving Muscle Group XI are manifested primarily by a penetrating wound of the right knee and are productive of severe muscle injury. 3. The Veteran does not require regular aid and attendance of another to perform activities of daily living and to protect himself from the dangers of his environment. He is not permanently housebound and does not have a single, service-connected disability rated totally disabling with additional service-connected disabilities independently ratable 60 percent or more disabling. He has not lost use of his right knee or abdominal function. CONCLUSIONS OF LAW 1. The criteria for entitlement to a rating in excess of 10 percent for residuals of shell fragment wound of the right side of the abdomen involving Muscle Group XIX are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.7, 4.55, 4.56, 4.73, Diagnostic Code 5319. 2. The criteria for entitlement to a rating in excess of 30 percent for residuals of shell fragment wound of the right knee involving Muscle Group XI are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.7, 4.55, 4.56, 4.73, Diagnostic Code 5311. 3. The criteria for entitlement to SMC are not met. 38 U.S.C. §§ 1114, 5107; 38 C.F.R. §§ 3.102, 3.350, 3.352. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty with the United States Army from October 1968 to October 1970. This matter comes to the Board of Veterans' Appeals (Board) on appeal from June 2016 and February 2017 rating decisions by an agency of original jurisdiction (AOJ) of the United States Department of Veterans Affairs (VA). In February 2021, the Board remanded this matter for additional development. Subsequent development letters have been sent to the Veteran and additional examinations were completed in August 2021. The matter is again before the Board. See Stegall v. West, 11 Vet. App. 268, 271 (1998). VA has met all statutory and regulatory notice and duty-to-assist provisions. See 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326. Neither the Veteran nor his representative has advanced any procedural arguments in relation to VA's duty to notify and assist. See Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). By way of background, while serving in combat in Vietnam, the Veteran was injured when a mortar shell exploded. A fragment hit his right leg and the right side of his body, penetrating the peritoneal cavity. The Veteran has reported that following this injury, he received an abdominal exploratory laparotomy during which part of the shell fragments were removed and a part of his liver was resected. Several days after, he was sent to a field hospital where he received treatment for his right leg and further care for drainage from his abdominal wound. Roughly a month after, he was again admitted to the hospital for abdominal distention and difficulty in moving his bowels. He is currently seeking increased evaluations for residuals of these wounds to his abdomen and right knee. Increased Rating Disability evaluations are determined by the application of the facts presented to VA's Schedule for Rating Disabilities (Rating Schedule) at 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and the residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321 (a), 4.1. In evaluating the severity of a particular disability, it is essential to consider its history. 38 C.F.R. § 4.1; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary importance. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Separate evaluations may be assigned for separate periods of time based on the facts found. In other words, the evaluations may be staged. Staged ratings are appropriate for any rating claim when the factual findings show distinct time periods during the appeal period where the service-connected disability exhibits symptoms that would warrant different ratings. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). If the evidence for and against a claim is in equipoise, the claim will be granted. 38 C.F.R. § 4.3. A claim will be denied only if the preponderance of the evidence is against the claim. See 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 56 (1990). Any reasonable doubt regarding the degree of disability should be resolved in favor of the claimant. 38 C.F.R. § 4.3. Where there is a question as to which of two evaluations shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that evaluation. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Regulations at 38 C.F.R. § 4.55 provide that 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. The skeletal muscles of the body are divided into 23 muscle groups in 5 anatomical regions: 6 muscle groups for the shoulder girdle and arm (Diagnostic Codes 5301 through 5306); 3 muscle groups for the forearm and hand (Diagnostic Codes 5307 through 5309); 3 muscle groups for the foot and leg (Diagnostic Codes 5310 through 5312); 6 muscle groups for the pelvic girdle and thigh (Diagnostic Codes 5313 through 5318); and 5 muscle groups for the torso and neck (Diagnostic Codes 5319 through 5323). For muscle groups which act upon an ankylosed joint, no compensable rating is assigned, except that in the case of an ankylosed knee, if muscle group XIII is disabled, it will be rated, but at the next lower level than that which would otherwise be assigned. In the case of an ankylosed shoulder, if muscle groups I and II are severely disabled, the evaluation of the shoulder joint under diagnostic code 5200 will be elevated to the level for unfavorable ankylosis, if not already assigned, but the muscle groups themselves 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 which 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 which do not act upon ankylosed joints, each muscle group injury is separately rated and the ratings combined under the provisions of § 4.25. Regulations at 38 C.F.R. § 4.56 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. A through-and-through injury with muscle damage is evaluated as no less than a moderate injury for each group of muscles damaged. VA considers the cardinal signs and symptoms of muscle disability to be loss of power, weakness, lowered threshold of fatigue, fatigue-pain, impairment of coordination, and uncertainty of movement. Disabilities resulting from muscle injuries shall be classified as slight, moderate, moderately severe, or severe. Slight disability of muscles result from simple wounds of the muscle without debridement or infection. Service department records show a history and complaints consistent with superficial wound with brief treatment and return to duty. The condition heals with good functional results. No cardinal signs or symptoms of muscle disability are present. Objective findings show minimal scar, with no evidence of fascial defect, atrophy, or impaired tonus. There is no impairment of function or metallic fragments retained in the muscle tissue. Moderate disability of muscles reflect a through and through or deep penetrating wound of short track from a single bullet, small shell or shrapnel fragment, without explosive effect of a high velocity missile, residuals of debridement, or prolonged infection. Service department records or other evidence show a history of in-service treatment or complaints regarding the wound. There is evidence 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. Objective findings show small, linear entrance and (if present) exit scars indicating the short track of a 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 are present when compared to the sound side. Moderately severe disability of muscles results from 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. Service department record or other evidence show a history of hospitalization for a prolonged period for treatment of wound. There is a record of consistent complaint of cardinal signs and symptoms of muscle disability and, if present, evidence of an inability to keep up with work requirements. Objectively, entrance and (if present) exit scars indicate the track of the missile through one or more muscle groups. Indications on palpation of loss of deep fascia, muscle substance, or normal firm resistance of muscles compared with sound side are present. Tests of strength and endurance compared with sound side demonstrate positive evidence of impairment. Severe disability of muscles exists when there is a through and through or deep penetrating wound due to a 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. Service department records or other evidence show hospitalization for a prolonged period for treatment of the wound. The record reflects 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 ragged, depressed and adherent scars indicating wide damage to muscle groups in missile track are present. 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 indicate severe impairment of function. If present, additional signs of severe muscle disability are x-ray evidence of minute multiple scattered foreign bodies indicating intermuscular trauma and explosive effect of the missile; 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; diminished muscle excitability to pulsed electrical current in electrodiagnostic tests; visible or measurable atrophy; adaptive contraction of an opposing group of muscles; atrophy of muscle groups not in the track of the missile, particularly of the trapezius and serratus in wounds of the shoulder girdle; and induration or atrophy of an entire muscle following simple piercing by a projectile. Residuals of Shell Fragment Wound of Abdomen The Veteran's service-connected residuals of shell fragment wound of the abdomen are rated 10 percent disabling under Diagnostic Code 5319 pertaining to muscle injuries of the torso and neck for the entire period on appeal. This injury has been evaluated as 10 percent disabling since the Veteran was initially granted service-connected in October 1970. A 10 percent rating is warranted for moderate injury to Muscle Group XIX. A 30 percent rating requires moderately severe injury, and a 50 percent rating requires severe injury. 38 C.F.R. § 4.73, Diagnostic Code 5319. This Code addresses functions including support and compression of abdominal wall and lower thorax. The Veteran has also been assigned separately compensable ratings for residuals of this shell fragment wound. He was assigned an evaluation under Code 7301, for peritoneal adhesions, effective since October 1970, based on the exploratory laparotomy. He was also assigned an evaluation under Code 7339 for ventral hernia condition. The evaluations for these conditions were recently considered by the Board in February 2021 and these determinations are final. Additionally, the Veteran was awarded a separate evaluation for associated scarring in an August 2021 rating decision, effective August 12, 2021. The Veteran was afforded a VA muscle injuries examination in May 2016, during which the Veteran was described as having a penetrating muscle injury to muscle group XIX. He was found to have entrance scars indicating the track of the missile. The examiner noted that the Veteran had some loss of deep fascia but did not indicate whether this applied to muscle group XIX or XI, both of which were considered in the examination. The Veteran's muscle injuries did not affect muscle substance or function, and no cardinal signs or symptoms of muscle disability attributable to muscle injuries were identified. Muscle strength testing was normal, and no atrophy was shown. Regarding related scarring, the scar was found to be mildly adherent to the underlying fascia of the abdominal wall and mildly depressed. However, no significant tenderness or irritation at the site of the scar was noted. He did not have any loss of muscle or motor function because of his scars. The examiner further remarked that ranges of motion during passive, active, and repetitive motions were the same. There was no limitation secondary to weakness, fatigability, incoordination, or flareups, and the Veteran was not using any assistive devices. The Veteran was afforded an additional VA muscle injuries examination in December 2016. He was identified as having a history of rupture of the diaphragm with herniation and entrance scars that were small or linear, indicating a short track through muscle tear. The examiner again noted that the Veteran had some loss of deep fascia but did not indicate to which muscle group this applied. Muscle injuries did not affect muscle substance or function, no cardinal signs or symptoms of muscle disability attributable to muscle injuries were noted. Muscle strength was normal and there was no atrophy. The scar on the abdominal wall was identified. The examiner again noted that the ranges of motion during passive, active, and repetitive motions were the same. There was no limitation secondary to weakness, fatigability, incoordination, or flareups. The veteran was using no assistive devices. The examiner further concluded that the Veteran had residual muscle injuries of mild severity with no residual loss of function. During an August 2021 VA muscle injuries examination, the Veteran was described as having a penetrating muscle injury to muscle group XIX. He had a history of extensive muscle hernia, reportedly in the stomach midline signifying rectus abdominus, currently with no deficits. He was found to have entrance scars indicating track of missile through one or more muscle groups. He did not have any known fascial defects or evidence of fascial defects associated with any muscle injuries and no effect on muscle substance or function. He did not display any cardinal signs or symptoms of muscle disability, had normal muscle strength, and no muscle atrophy. Regarding functional impact, the examiner noted that the Veteran would possibly have limitations with lifting due to abdominal scarring and his history of hernia, impacting his ability to work. Regarding symptoms related specifically to the abdomen, the examiner found that, in accordance with the December 2016 examination, the Veteran continued to deny any abdominal pain or other symptoms. He noted that the Veteran had a hernia surgery between May and December 2016 which improved his symptoms. The examiner noted that he had new scars since the hernia repair, and that these scars were well healed. The evidence of record is against a disability rating greater than 10 percent for residuals of shell fragment wounds of the abdomen. No more than a moderate injury of Muscle Group XIX involving the Veteran's abdomen is demonstrated. No cardinal signs or symptoms of muscle disability were identified. Tests of strength and endurance did not demonstrate impairment. Furthermore, the August 2021 examiner specifically noted that the Veteran did not have any current symptoms associated with the injury. Although it is unclear which muscle group showed "some deep loss of fascia" per the May and December 2016 examinations, even assuming this pertained to the abdomen, this symptom is addressed under the criteria for moderate disability of the muscles. The Veteran's representative has argued that the shell fragment wound should be characterized as causing a moderately severe disability of the muscles, warranting a 30 percent evaluation under Code 5319. He alleges that the initial injury was associated with debridement, infection, and explosive effect. However, such is not evidenced by the record. The representative argued that the Veteran's injury had an explosive effect because it caused internal damage requiring an exploratory laparotomy and liver resection and because shell fragments remained in his body. However, the injury is better characterized under the type of injury associated with moderate disabilities of the muscles, which is "injury from shrapnel fragment." The VA examination from 1971 specifically identifies that the injury was sustained from fragment following a mortar shell explosion, not from the explosive effect in the wound. Further, the sole finding of retained metal fragments relates to the knee, not the abdomen. Finally, the laparotomy and liver resection are already separately compensated under Diagnostic Code 7301. The representative further contends that drainage from the wound is equivalent to debridement and that distention in the abdomen represents prolonged infection. However, the terms "drainage" and "distention" are not interchangeable with "debridement" and "prolonged infection;" there is no mention of debridement in the 1971 VA examination and no diagnosis of an infection. Therefore, the description of the injury warrants the current assignment of evaluation for moderate disability. Furthermore, the Veteran's current impairment does not permit a higher evaluation. The preponderance of the evidence is against a disability rating greater than the currently assigned 10 percent rating under Diagnostic Code 5319 for residuals of shell fragment wound of the right side of the abdomen. Residuals of Shell Fragment Wound of Right Knee The Veteran's service-connected residuals of the shell fragment wound of the right knee are currently rated as 10 percent prior to the period on appeal, and 30 percent throughout the period on appeal under Diagnostic Code 5311. A 30 percent rating is warranted for severe injury to Muscle Group XI. 38 C.F.R. § 4.73, Diagnostic Code 5311. This Code addresses functions including flexion of the knee. In VA treatment records from April 2016, the Veteran reported that he had pain in his knee, with no acute changes, but chronic pain rated 4 out of 10 and episodic pain. In the May and December 2016 VA muscle injuries examinations discussed above, the examiner also identified a penetrating muscle injury to Muscle Group XI. As noted, some loss of deep fascia was found, but it was unclear to which muscle group this applied. In the August 2021 VA examination, the examiner noted that the current manifestations of the shell fragment wound in the right knee include the right knee lateral scar as well as altered sensation to light touch in the right leg from the scar traveling down laterally and anteriorly to the top of the Veteran's foot and toes in the common peroneal nerve distribution. There were no changes in reflexes or strength in that extremity. Here, the Veteran has already been afforded the highest schedular evaluation available under Diagnostic Code 5311. The Veteran has not sought extraschedular consideration for this disability under 38 C.F.R. § 3.321, and it does not appear to have otherwise been raised by the record. Although separate entitlement for an orthopedic knee disability has been sought, such is addressed below. Regarding the current manifestations identified by the examiner, the Veteran was awarded separate evaluations for the scarring as well as the altered sensation in an August 2021 rating decision. In this case, the Board finds that the scheduler criteria for Muscle Group XI fully contemplate the Veteran's level of disability and symptomatology related to shell fragment wound of the right knee. Thun v. Peake, 22 Vet. App. 111 (2008). Referral for extraschedular consideration pursuant to 38 C.F.R. § 3.321(b)(1) is not warranted. SMC Special monthly compensation is an additional level of compensation to Veterans (above the basic levels of compensation payable based on disability ratings of 0 to 100 percent) for various types of anatomical losses or levels of impairment due solely to service-connected disabilities. See 38 U.S.C. § 1114(k-s). The Veteran has generally raised the issue of entitlement to SMC in the April 2017 Notice of Disagreement (NOD). The Veteran did not make any specific allegations or arguments as to which type of SMC he believes he is entitled. The Veteran and his representative were provided a copy of VA Form 21-2680 "Examination for Housebound Status or Permanent Need for Regular Aid and Attendance" but a completed form was not returned. Although the Veteran has not responded to the VA's request for clarification, SMC must be inferred when evidence of record indicates potential entitlement. See Akles v. Derwinski, 1 Vet. App. 118 (1991). The Board has therefore considered entitlement to SMC based on the need for the regular need for the aid and attendance of another, housebound status, or loss of use of a limb. Here, the Veteran has not demonstrated that he has lost use of his knee or abdominal function. 38 U.S.C. § 1114(k); 38 C.F.R. § 3.350(a). Treatment records show he is able to walk and worked for a long time with his service-connected conditions. He does not meet the schedular eligibility criteria for SMC at the housebound rate, as he lacks a single service-connected disability rated as 100 percent. 38 U.S.C. § 1114(s); 38 C.F.R. § 3.350(i). The Veteran's VA treatment records, as well as his SSA records from 2010, do not show that he is so helpless as to need regular aid and attendance of another person. 38 U.S.C. § 1114(1); 38 C.F.R. § 3.350(b). Rather, in his SSA records, he reported continued ability to shop, cook, and clean; he did not return the requested form on which he could attest to actual impairment at this level. As such, based on the evidence of record, entitlement to SMC is not warranted on any reasonably identified basis. REASONS FOR REMAND Arthritis of Right Knee as Residual of Shell Fragment Wound of Right Knee The Veteran's representative has contended that in addition to the muscle injury, residuals of the shell fragment wound to the right knee include injury to the right knee joint. The Veteran was afforded a VA knee and lower leg examination in August 2021 to address whether the Veteran's arthritis was a residual of the shell fragment wound to the right knee. However, the associated medical opinion requires clarification. Although the examiner opined that right knee arthritis was not likely related to the shell fragment wound, he also stated that based on service treatment records, the Veteran was also diagnosed with bilateral knee joint degenerative changes. It appears that the examiner is indicating that the arthritis may be directly related to service, however, it is not apparent where such is evidenced in the Veteran's service treatment records. Accordingly, on remand the examiner must clarify whether the Veteran's currently diagnosed arthritis is directly related to his military service. TDIU The claim of entitlement to TDIU is inextricably intertwined with a determination of whether a separate evaluation is warranted for a right knee joint disability as a residual of the right knee shell fragment wound. Harris v. Derwinski, 1 Vet. App. 180 (1991). Thus, the claim of entitlement to TDIU must be remanded for the appropriate development, as well as contemporaneous adjudication. Id. The matters are REMANDED for the following action: 1. Obtain an addendum VA medical opinion from the examiner who provided the August 2021 opinion. The claims file must be reviewed in conjunction with such. The reviewer must clarify his statement that bilateral knee degenerative joint changes were shown in the Veteran's service treatment records, identifying where this is evidenced, and opine as to whether the Veteran's currently diagnosed right knee arthritis is at least as likely as not caused or aggravated by service. If the August 2021 examiner is not available, another, equally qualified examiner may be consulted; the need for a new physical examination is at the discretion of the examiner. 2. Upon completion of the above, readjudicate the remanded issue as well as the issue of TDIU. If the benefit sought remains denied, the Veteran should be provided with a supplemental statement of the case. The case should then be returned to the Board for appellate review if otherwise in order. WILLIAM H. DONNELLY Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S.P. Faris 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.