Citation Nr: A21018071 Decision Date: 11/09/21 Archive Date: 11/09/21 DOCKET NO. 200401-75484 DATE: November 9, 2021 ORDER Entitlement to an increased rating higher than 10 percent for non-penetrating muscle injury, muscle group XIX, status post chondrosarcoma removal is denied. Entitlement to an increased rating of 10 percent, but no higher, for non-penetrating muscle injury, muscle group XXI, status post chondrosarcoma removal is granted, subject to the laws and regulations governing the payment of monetary benefits. Entitlement to an increased rating higher than 0 percent for scars, status post chondrosarcoma removal is denied. FINDINGS OF FACT 1. The impairment associated with the non-penetrating injury to muscle group XIX is more closely associated with a moderate muscle disability, as the finding of absent right rectus abdominus muscle is consistent with 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; but there is no moderately severe muscle disability in that there are no cardinal signs and symptoms of a muscle disability; muscle strength testing was normal; there was no muscle atrophy; and while a CT scan noted the absent right rectus abdominus muscle, physical palpation of the abdomen did not show loss of deep fascia, muscle substance, or normal firm resistance of muscles compared with the sound side. 2. Without consideration of the respiratory condition and right rib removal, which are separately rated and not on appeal, the only other impairment associated with the non-penetrating injury to muscle group XXI is pain in the chest area that increases with movement of the torso, which involves at least one cardinal sign and symptom of a muscle disability, particularly lowered threshold of fatigue, fatigue-pain, and impairment of coordination, and uncertainty of movement; but there is no moderately severe muscle disability in that muscle strength testing was normal; and there was no muscle atrophy. 3. The Veteran's scars, status post chondrosarcoma removal are not manifest by any disabling effects not considered under Diagnostic Codes 7800-04; without consideration of the separate rating under Diagnostic Code 7804 for unspecified nerve damage that is separately rated and not on appeal. CONCLUSIONS OF LAW 1. The criteria for entitlement to an increased rating higher than 10 percent for non-penetrating muscle injury, muscle group XIX, status post chondrosarcoma removal are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.6, 4.7, 4.10, 4.56, 4.73, Diagnostic Code 5319. 2. The criteria for entitlement to an increased rating of 10 percent, but no higher, for non-penetrating muscle injury, muscle group XXI, status post chondrosarcoma removal are met, effective August 26, 2016. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.102, 3.321, 4.1, 4.2, 4.3, 4.7, 4.10, 4.21, 4.56, 4.73, Diagnostic Code 5321. 3. The criteria for a compensable disability rating for scars status post chondrosarcoma removal are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.118, Diagnostic Code 7805. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty service from June 1983 to April 1986, January 1991 to October 1991, and February 2003 to May 2004. On August 23, 2017, the President signed into law the Veterans Appeals Improvement and Modernization Act, Pub. L. No. 115-55 (codified as amended in scattered sections of 38 U.S.C.), 131 Stat. 1105 (2017), also known as the Appeals Modernization Act (AMA). AMA became effective on February 19, 2019. Under AMA, an AMA appeal may come to the Board in three ways: (1) through a RAMP rating decision; (2) an appeal of a rating decision with a notification letter dated on or after February 19, 2019; or (3) an appeal of a Statement of the Case (SOC) or Supplemental Statement of the Case (SSOC) issued on or after February 19, 2019. As part of the legacy appeals system, in a February 2017 rating decision, the Department of Veterans Affairs (VA) Regional Office (RO), in pertinent part, granted service connection for non-penetrating muscle injury, muscle group XIX, status post chondrosarcoma removal, assigning a 0 percent rating, effective August 26, 2016; granted service connection for non-penetrating muscle injury, muscle group XXI, status post chondrosarcoma removal, assigning a 0 percent rating, effective August 26, 2016; and granted service connection for scars, status post chondrosarcoma removal, assigning a 0 percent rating, effective August 26, 2016. (Note that the rating decision and code sheet, in error, notes August 26, 2017 as the effective date for the scars, but the body of the rating decision notes the correct date.) The Veteran filed a notice of disagreement in January 2018. On February 19, 2019 he elected to participate in RAMP and selected higher-level review. Thereafter, the RO issued a RAMP rating decision in April 2019, which, in pertinent part, granted an increased rating of 10 percent for non-penetrating muscle injury, muscle group XIX, status post chondrosarcoma removal, effective August 26, 2016; and denied an increased rating higher than 0 percent for non-penetrating muscle injury, muscle group XXI, status post chondrosarcoma removal, and for scars, status post chondrosarcoma removal. In the April 2020 VA Form 10182, Decision Review Request: Board Appeal, the Veteran elected the Direct Review docket. Of note, the Veteran in section for the specific issues that he was appealing listed evaluation for non-penetrating muscle group injury, muscle group XIX, twice on two separate lines. However, the Board infers that he meant to appeal muscle group XXI in addition to muscle group XIX. Based on the Veteran's elections, the Board may only consider the evidence of record at the time of the RAMP opt-in. 38 C.F.R. § 20.301. 1. Entitlement to an increased rating higher than 10 percent for non-penetrating muscle injury, muscle group XIX, status post chondrosarcoma removal 2. Entitlement to an increased rating higher than 0 percent for non-penetrating muscle injury, muscle group XXI, status post chondrosarcoma removal The Veteran seeks a rating higher than 10 percent for non-penetrating muscle injury to muscle group XIX, and higher than 0 percent for non-penetrating muscle injury to muscle group XXI, status post chondrosarcoma removal. Disability ratings are based on the average impairment of earning capacity resulting from a disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. An evaluation of the level of disability present includes consideration of the functional impairment of the Veteran's ability to engage in ordinary activities, including employment. 38 C.F.R. § 4.10. Separate diagnostic codes identify the various disabilities. Where there is a question as to which of two evaluations shall be applied, the higher evaluations will be assigned if the disability more closely approximates the criteria required for that rating. 38 C.F.R. § 4.7. Otherwise, the lower rating will be assigned. Id. The factors to be considered in evaluating disabilities residual to healed wounds involving muscle groups are set forth in 38 C.F.R. §§ 4.55, 4.56. A muscle injury evaluation will not be combined with a peripheral nerve paralysis evaluation of the same body part unless the injuries affect entirely different functions. 38 C.F.R. § 4.55 (a). 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). The type of injury associated with a slight muscle disability is a simple wound of muscle without debridement or infection. The history with regard to this sort of injury would include service department records of superficial wound with brief treatment and return to duty, healing with good functional results and no cardinal signs or symptoms of muscle disability. Objective findings should 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). The type of injury associated with a moderate muscle disability is 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. A history with regard to this type of injury should include service department evidence or other evidence of in-service treatment for the wound and consistent complaints 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 should include 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). The type of injury associated with a moderately severe muscle disability is a through and through or deep penetrating wound by a small high-velocity missile or large low-velocity missile, with debridement, prolonged infection, or sloughing of soft parts, and intermuscular scarring. A history with regard to this type of injury should include prolonged hospitalization in service for treatment of wound, consistent complaints of cardinal signs and symptoms of muscle disability, and, if present, evidence of inability to keep up with work requirements. Objective findings should include entrance and (if present) exit scars indicating the track of the missile through one or more muscle groups, and indications on palpation of loss of deep fascia, muscle substance, or normal firm resistance of muscles compared with the sound side. Tests of strength and endurance compared with sound side should demonstrate positive evidence of impairment. 38 C.F.R. § 4.56 (d)(3). The type of injury associated with a severe muscle disability is a through and through or deep penetrating wound by a small 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, and intermuscular binding and scarring. A history with regard to this type of injury should include prolonged hospitalization in service for treatment of wound, 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, and indications on palpation of loss of deep fascia, muscle substance, or soft flabby muscles in wound area. Also, muscles swell and harden abnormally in contraction. Tests of strength, endurance, or coordinated movements compared with the corresponding muscles of the uninjured side should indicate severe impairment of function. 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 missile; (B) adhesion of scar to one of the long bones, scapula, pelvic bone, 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; and (G) induration or atrophy of an entire muscle following simple piercing by a projectile. 38 C.F.R. § 4.56 (d)(4). Finally, 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. 38 C.F.R. § 4.56 (a). 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 (b). The Board observes that the words "mild," "moderate," and "severe" as used in other various diagnostic codes are not defined in the VA Schedule for Rating Disabilities. 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. The RO evaluated the Veteran's service-connected non-penetrating muscle injury to muscle group XIX under muscle Diagnostic Code 5319 for Group XIX muscles, which affect support and compression of abdominal wall and lower thorax; flexion and lateral motions of spine; synergists in strong downward movements of arm (1), Muscles of the abdominal wall: (1) Rectus abdominis; (2) external oblique; (3) internal oblique; (4) transversalis; (5) quadratus lumborum. Impairment is rated based on whether it is slight, in which case it receives a 0 percent rating, moderate (10 percent rating), moderately severe (30 percent rating), or severe (50 percent rating). 38 C.F.R. § 4.73, Diagnostic Code 5319. The RO evaluated the Veteran's service-connected non-penetrating muscle injury to muscle group XXI under Diagnostic Code 5321 for Group XXI muscles, which affect muscles of respiration in the thoracic muscle group. A noncompensable rating is warranted for a slight disability, a 10 percent rating is warranted for a moderate disability, and a 20 percent rating is warranted for a severe or moderately severe disability. 38 C.F.R. § 4.73, Diagnostic Code 5321. A February 2006 computed tomography (CT) scan notes absent right rectus abdominus muscle, which might be due to previous surgery or radiation treatments and post-operative changes in the right hemothorax. A January 2017 VA examination report notes that the Veteran had a history of a surgery in May 2005 to remove a tumor from the chest wall with reconstruction and then radiation. There was pain on the right chest wall. The muscle examination notes that the Veteran had a non-penetrating muscle injury from the right chest wall removal from tumor removal and abdominal wall muscle from chest wall reconstruction. Muscle group XIX for muscles of the abdominal wall of the right side were affected; and muscle group XXI for muscles of respiration, thoracic muscle group on the right side also were affected. The Veteran did not have any cardinal signs and symptoms of a muscle disability. Muscle strength testing also was normal. There was no muscle atrophy. A July 2017 private treatment record notes that the Veteran had a history of chondrosarcoma of the right rib, status post resection and radiation in 2005. Recent pulmonary function tests demonstrated findings suggestive of restrictive impairment. It was noted that by way of history, in 2005, the Veteran was diagnosed with 9cm chondrosarcoma of the right rib. Subsequently he underwent right chest wall resection and radiation therapy at Roanoke Memorial Hospital. Since then he had remained disease free. Recently he visited the VA treatment facility and mentioned slightly limited exercise tolerance due to previous surgery and scarring in the lung. He reported limitation in performing exertional activity. He also reported chronic chest discomfort on the right side of the chest, that had been present for many years. An independent rating evaluation was submitted by the Veteran in October 2018 that based on the findings on the private treatment record in July 2017 demonstrating a suggestive restrictive respiratory impairment with positive stable but chronic shortness of breath and no use of accessory muscles of respiration; as well as a follow-up examination in August 2017 noting full "PTF" revealed restrictive respiratory impairment likely secondary to previous surgery, the Veteran met the criteria for a 20 percent rating for muscle group XXI (muscles of respiration) for severe or moderately severe impairment. The independent evaluation also noted that based on the July 2017 finding of absent right rectus muscle, the Veteran was eligible for a 50 percent rating for severe impairment under muscle group XIX, for support and compression of abdominal wall and lower thorax. A November 2018 VA examination report shows that the Veteran's respiratory condition secondary to pleural effusion, status post right chest wall surgery for chondrosarcoma was at least as likely as not due to the non-penetrating muscle injury to muscle group XXI. The Veteran was granted service connection for the respiratory impairment and has a separate disability rating assigned for the pleural effusion, status post right chest wall surgery for chondrosarcoma under 38 C.F.R. § 4.97, Diagnostic Code 6845. This rating is not a part of this appeal; therefore, the respiratory impairment involved with the Veteran's surgery for chondrosarcoma will not be addressed in connection with the muscle injury to muscle group XXI. As noted, the October 2018 independent rating evaluation found that due to the findings demonstrating restrictive respiratory impairment with positive stable but chronic shortness of breath and no use of accessory muscles of respiration, the Veteran met the criteria for a 20 percent rating for muscle group XXI (muscles of respiration) for severe or moderately severe impairment. To the extent that the Veteran's injury to muscle group XXI results in respiratory impairment, the Veteran is presently rated as 10 percent disabled from August 26, 2016, and 30 percent disabled from November 8, 2018, under Diagnostic Codes 5329-6845 for pleural effusion, status post right chest wall surgery for chondrosarcoma. Therefore, the impairment noted involving respiration has already been compensated by the disability ratings assigned. Without consideration of the respiratory condition, the only other impairment associated with the non-penetrating injury to muscle group XXI is pain in the chest area. A February 19, 2019 pain questionnaire shows the Veteran reported pain in the right chest area. The pain was constant, and at its best the pain was described as mild, and at its worst, horrible. The types of things that increased the pain were bending and reaching with the right side for any period of time that caused the muscle to contract against the Gore-Tex patch. Of note, the Veteran presently has a separate 10 percent rating, effective August 26, 2016, based on impairment from right rib status post resection with synthetic mesh repair in the surgical defect, under Diagnostic Code 5297. Therefore, he is already being compensated for removal of the right rib and this disability rating is not on appeal. However, this rating does not contemplate pain associated with movement of the torso or chest. The Veteran has pain in the right chest area that increases with bending and reaching, which is one of the cardinal signs of a muscle disability, particularly fatigue-pain, lowered threshold of fatigue after average use affecting the particular functions controlled by the injured muscles. See 38 C.F.R. § 4.56 (c). While there is not any other type of impairment associated with a moderate muscle disability under 38 C.F.R. § 4.56 (d)(2), resolving all doubt in the Veteran's favor, the type of impairment associated with his injury to muscle group XXI more closely approximates a 10 percent rating under Diagnostic Code 5321 based on the impairment caused by painful movement of the torso and chest. Since the Veteran has complained of right chest wall pain throughout the appeal, the effective date for the 10 percent rating should be August 26, 2016. The evidence does not demonstrate any findings consistent with a moderately severe muscle injury to muscle group XXI, as the January 2017 VA examination report found that the Veteran did not have any cardinal signs and symptoms of a muscle disability. Muscle strength testing also was normal. There was no muscle atrophy. The examiner found that the muscle injury also did not result in any functional impact, including his ability to work. Thus, at most, these findings are more consistent with a 10 percent rating under Diagnostic Code 5321. As for the non-penetrating injury to muscle group XIX, this impairment also is more closely associated with a moderate muscle disability, as the February 2006 CT scan notes absent right rectus abdominus muscle, which might be due to previous surgery. This is consistent with 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. See 38 C.F.R. § 4.56 (d)(2). As noted, a 10 percent rating under Diagnostic Code 5319 is assigned for a moderate muscle injury to muscle group XIX. Id. The impairment associated with muscle group XIX does not rise to the level of a moderately severe muscle disability. As noted, notwithstanding the CT scan in 2006 of absent right rectus abdominus muscle, the January 2017 VA examination found that the abdominal wall muscle damage from chest wall reconstruction did not result in any cardinal signs and symptoms of a muscle disability. Muscle strength testing also was normal. There was no muscle atrophy. These findings are not consistent with moderately severe muscle injury, as there are no complaints of cardinal signs and symptoms of muscle disability. See 38 C.F.R. § 4.56 (d)(3). Objective findings also do not show indications on palpation of loss of deep fascia, muscle substance, or normal firm resistance of muscles compared with the sound side. Id. The absence of the right rectus abdominus muscle was discovered as a result of CT scan in 2006 and was not found based on physical palpation of the Veteran's abdomen. In addition, tests of strength and endurance compared with sound side do not demonstrate positive evidence of impairment. Id. As there are no objective findings of palpation of loss of deep fascia, muscle substance, or normal firm resistance of muscles compared, a rating based on moderately severe impairment does not apply. See 38 C.F.R. § 4.56 (d)(3). As noted, the October 2018 independent rating evaluation notes that based on the finding of absent right rectus muscle, the Veteran was eligible for a 50 percent rating for severe impairment under muscle group XIX, for support and compression of abdominal wall and lower thorax. However, notwithstanding the finding of absent right rectus muscle, the objective findings showed normal muscle strength testing and no muscle atrophy in muscle group XIX. Therefore, the 10 percent rating assigned under Diagnostic Code 5319 for non-penetrating injury to muscle group XIX is the most appropriate rating based on the Veteran's impairment. The Board has carefully reviewed the remaining record from the appeal period in its entirety but finds no other probative evidence of record showing that the Veteran's non-penetrating injuries to muscle groups XXI or XIX are more severe for compensation purposes than demonstrated on the evaluations discussed above. Based on the above, a rating of 10 percent, but no higher, is warranted for the Veteran's non-penetrating muscle injury to muscle group XXI, effective August 26, 2016; and the preponderance of the evidence is against finding that the non-penetrating muscle injury to muscle group XIX warrants a rating higher than 10 percent. See 38 U.S.C. § 1155; 38 C.F.R. §§ 4.7, 4.73, Diagnostic Codes 5319, 5321. In reaching the above conclusions, the Board has considered the applicability of the benefit of the doubt doctrine. To the extent that any further increase in disability rating is not assigned, the preponderance of the evidence is against the Veteran's claim, and that doctrine is not applicable in the instant appeal. See 38 U.S.C. § 5107 (b); 38 C.F.R. §§ 3.102, 4.3. 3. Entitlement to an increased rating higher than 0 percent for scars, status post chondrosarcoma removal The Veteran contends that he is entitled to a higher rating for his scars, status post chondrosarcoma removal. The Veteran's scars are rated under Diagnostic Code 7805 for other scars (including linear scars) and other effects of scars evaluated under Diagnostic Codes 7800, 7801, 7802, and 7804. The Board notes that VA amended the criteria for rating skin disabilities effective from August 13, 2018. However, Diagnostic Code 7805 was not changed by the August 13, 2018, amendments. Diagnostic Code 7805 instructs that any disabling effect(s) not considered in a rating provided under Diagnostic Codes 7800-04 under an appropriate Diagnostic Code. The Board finds that the preponderance of the evidence is against the assignment of a compensable rating for the Veteran's scars status post chondrosarcoma removal under Diagnostic Code 7805 as there are no other disabling effect(s) not considered in a rating provided under Diagnostic Codes 7800-04. A January 2017 VA examination report shows that the Veteran has residual scarring on the right chest wall from the removal of the chest wall tumor, abdominal wall flap for right chest reconstruction, and residual scar from chest tube in the right chest. None of the scars involved disfigurement of the head, face, or neck. The scars were on the trunk and extremities. It was noted that the Veteran had two scars, one from the chest wall removal, which was a 23-cm linear scar; and one scar on the abdomen from the abdominal flap, which also was linear, 27-cm long on the right side of the abdomen. Scars #3 and #4 were each 2-cm. The scars were not unstable or in keloid form. None of the scars was painful or unstable with frequent loss of covering of the skin over the scar. The scars were not deep and there was no functional impact. The Board has also considered the other Diagnostic Codes pertaining to scars. The Veteran has a 10 percent rating for unspecified nerve damage secondary to chondral sarcoma surgery, rated by analogy under Diagnostic Code 7804. This disability rating is not on appeal. The Veteran's scarring associated with this surgery is not of the head, face, or neck, is not deep and nonlinear, and is not associated with underlying soft tissue damage. Although it is superficial and not associated with underlying soft tissue damage, it does not cover an area or areas of 144 square inches or greater. Moreover, the Veteran's scars are not unstable or painful. Therefore, Diagnostic Codes 7800, 7801, 7802, and 7804, both prior to and from August 13, 2018, are inapplicable, as pertaining to the scarring that is on appeal. In conclusion, the Board finds that the preponderance of the evidence is against the Veteran's claim for a compensable rating for scars, status post chondrosarcoma removal. In denying such a rating, the Board finds the benefit of the doubt doctrine is not applicable. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. S. L. Kennedy Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Sarah B. Richmond, 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.