Citation Nr: 21077500 Decision Date: 12/30/21 Archive Date: 12/29/21 DOCKET NO. 16-19 236 DATE: December 30, 2021 ORDER Entitlement to degenerative joint disease of the right hip as secondary to service-connected residuals shrapnel wound, right thigh, is granted. Entitlement to degenerative arthritis of the right knee as secondary to service-connected residuals shrapnel wound, right thigh, is granted. Entitlement to a 40 percent disability rating, but no higher, for service-connected residuals shrapnel wound, right thigh, muscle group XIV, is granted. REMANDED Entitlement to a disability rating in excess of 10 percent for service-connected residuals shrapnel wound, lateral femoral cutaneous nerve, right thigh with scar, is remanded. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is remanded. FINDINGS OF FACT 1. The Veteran's right hip disability is proximately due to his service-connected residuals shrapnel wound, right thigh. 2. The Veteran's right knee disability is proximately due to his service-connected residuals shrapnel wound, right thigh. 3. The Veteran's residuals shrapnel wound, right thigh, has been manifested by severe damage/impairment to muscle group XIV. CONCLUSIONS OF LAW 1. The criteria for service connection for a right hip disability as secondary to service-connected residuals shrapnel wound, right thigh, are met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.310. 2. The criteria for service connection for a right knee disability as secondary to service-connected residuals shrapnel wound, right thigh, are met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.310. 3. The criteria for a 40 percent disability rating, but no higher, for residuals shrapnel wound, right thigh, muscle group XIV, are met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.321(b)(1), 4.55, 4.56, 4.73, Diagnostic Code (DC) 5314. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 1964 to May 1968. These matters come to the Board of Veterans' Appeals (Board) on appeal from a May 2014 rating decision issued by Department of Veterans Affairs (VA) Regional Offices. In March 2019, the Board, in part, granted a 30 percent rating for the Veteran's residuals shrapnel would, right thigh, muscle group XIV, from May 25, 2017, and denied a rating in excess of 10 percent prior to such date. The Board also denied a disability rating in excess of 10 percent for residuals shrapnel would, lateral femoral cutaneous nerve, right thigh with scar. The Veteran appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court). In September 2021, the Court granted a Joint Motion for Partial Remand (JMPR) filed by the parties to the appeal (the Veteran, through his representative, and representatives from VA General Counsel), thereby vacating those parts of the Board's decision that denied increased ratings for the Veteran's residuals shrapnel would, right thigh, muscle group XIV; and residuals shrapnel would, lateral femoral cutaneous nerve, right thigh with scar, and remanding those matters for readjudication. Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). Service connection may also be established on a secondary basis for: (1) a disability that is proximately due to or the result of a service-connected disease or injury; or, (2) any increase in the severity of a nonservice-connected disease or injury that is proximately due to or the result of a service-connected disease or injury, and not due to the natural progress of the nonservice-connected disease or injury. 38 C.F.R. §§ 3.310(a)-(b); see also Harder v. Brown, 5 Vet. App. 183, 187 (1993) (explaining 38 C.F.R. § 3.310(a)); Allen v. Brown, 7 Vet. App. 439, 448 (1995) (explaining 38 C.F.R. § 3.310(b)). 1. Entitlement to a right hip disability as secondary to service-connected residuals shrapnel wound, right thigh 2. Entitlement to a right knee disability as secondary to service-connected residuals shrapnel wound, right thigh In the above-mentioned September 2021 JMPR, the parties agreed that the Board erred when it failed to discuss whether the evidence of record showed claims of service connection for a right hip disability and for a right knee disability as secondary to the Veteran's service-connected shrapnel wound of the right thigh. The Board notes that the evidence of record includes opinions linking the Veteran's right hip and right knee disabilities to his service-connected residuals of shrapnel wound in his right thigh. Thus, the Board finds that claims for service connection for a right hip and right knee disability have been reasonably raised by the record and the issues have been added to the appeal. DeLisio v. Shinseki, 25 Vet. App. 45, 53 (2011). A May 2017 VA hip and thigh conditions examination noted that the Veteran had a diagnosis of DJD of the right hip. The VA examiner noted that the Veteran's right hip arthritis is "caused by the initial injury." The examiner added that the Veteran's pain in the hip "is likely due to the antalgic gait and compensation for the weakness in the thigh muscles and derangement of alignment." A May 2017 VA knee and lower leg conditions examination shows a diagnosis for degenerative arthritis of the right knee and right knee pain. The VA examiner noted that the Veteran's "knee is becoming progressively painful most likely due to the increased pain and weakness of the thigh muscles which control the tracking of the patella and femur/tibia relationship." The examiner added that the "knee pain and weakness is secondary to the original injury to the thigh muscles." She also noted that "it is likely due to the antalgic gait and compensation for the weakness in the thigh muscles and derangement of alignment." The Board finds that the May 2017 VA medical opinions are probative medical evidence showing that the Veteran's right hip and right knee disabilities are proximately due to his service-connected disability of residuals of shrapnel wound in his right thigh. The opinions are supported by reasons and bases; there are no competent opinions to the contrary. Accordingly, the Board finds that service connection for a right hip and right knee disability are warranted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. Increased Ratings Disability ratings are based on the average impairment of earning capacity resulting from disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. 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. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. In general, when an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, when the current appeal arises from the initially assigned rating, consideration must be given as to whether staged ratings should be assigned to reflect entitlement to a higher rating at any point during the pendency of the claim. Fenderson v. West, 12 Vet. App. 119 (1999). Moreover, staged ratings are appropriate in any increased rating claim in which distinct time periods with different ratable symptoms can be identified. Hart v. Mansfield, 21 Vet. App. 505 (2007). 3. Entitlement to a disability rating in excess of 10 percent prior to May 25, 2017, and in excess of 30 percent thereafter for service-connected residuals shrapnel wound, right thigh, muscle group XIV The Veteran contends that his right thigh muscle disability is more severe than what is represented by the current staged ratings. As addressed in the March 2016 Statement of the Case, the Board understands the Veteran's repeated contentions that he does not have a bullet wound, but instead has shrapnel that remains in his leg which causes him functional loss. His service-connected injury is accurately evaluated as such. The Veteran further contends that he has shrapnel located behind his femur and next to the sciatic nerve which has been causing lumping of the hamstring muscle, cramping of the right calf muscle and an inability to walk any distance. He also contends his pain has caused functional loss of use because he is unable to walk more than a hundred yards without increased pain, exhaustion, and functional loss. In the above-mentioned September 2021 JMPR, the parties agreed that the Board erred when it found that the Veteran is entitled to no more than a 30 percent rating for his muscle injury because the Board failed to consider whether the Veteran's symptoms were "severe" and thus warranted a 40 percent rating under 38 C.F.R. § 4.73, DC 5314. Muscle injuries are evaluated pursuant to criteria at 38 C.F.R. §§ 4.55, 4.56, and 4.73. 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 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 muscle group injuries in different anatomical regions which do not act upon ankylosed joints, each muscle group injury shall be separately rated, and the ratings combined under the provisions of Section 4.25. 38 C.F.R. § 4.55(f). Evaluation of muscle injuries as slight, moderate, moderately severe, or severe, is based on the type of injury, the history and complaints of the injury, and objective findings. 38 C.F.R. § 4.56(d). Furthermore, 38 C.F.R. § 4.56(d) is essentially a totality-of-the-circumstances test and no single factor is per se controlling. Tropf v. Nicholson, 20 Vet. App. 317 (2006). Residuals of gunshot and shell fragment wounds are evaluated on the basis of the following factors: The velocity, trajectory and size of the missile which inflicted the wounds; extent of the initial injury and duration of hospitalization; the therapeutic measures required to treat the disability; and current objective clinical findings. 38 C.F.R. § 4.56. 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, and disabilities resulting from muscle injuries shall be classified as slight, moderate, moderately severe or severe. 38 C.F.R. § 4.54 (1996); 38 C.F.R. § 4.56(c), (d). Under 38 C.F.R. § 4.56: (2) Moderate disability of muscles. (i) Type of injury. 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. (ii) History and complaint. Service department record or other evidence of in- service treatment for the wound. Record of consistent complaint of one or more of the cardinal signs and symptoms of muscle injury as defined in paragraph (c) of this section, particularly lowered threshold of fatigue after average use, affecting of particular functions that are controlled by the injured muscles. (iii) Objective findings. 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. (3) Moderately severe disability of muscles. (i) Type of injury. Through and through or deep penetrating wound by small high velocity missile or large low velocity missile, with debridement, prolonged infection, or sloughing of soft parts, and intramuscular scarring. (ii) History and complaint. Service department record or other evidence showing hospitalization for a prolonged period for treatment of the wound. Record of consistent complaint of cardinal signs or symptoms of muscle disability as defined in 38 C.F.R. § 4.56 (c) and, if present, evidence of inability to keep up with work requirements. (iii) Objective findings. Entrance and (if present) exit scars indicating track of 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. Tests of strength and endurance compared with sound side demonstrate positive evidence of impairment. (4) Severe disability of muscles. (i) Type of injury. 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. (ii) History and complaint. Service department record or other evidence showing hospitalization for a prolonged period for treatment of the wound. Record of consistent complaint of cardinal signs or symptoms of muscle disability as defined in paragraph (c) of this section, worse than those shown for moderately severe muscle injuries, and if present, evidence of inability to keep up with work requirements. (iii) Objective findings. Ragged, depressed and adherent scars indicating wide damage to muscle groups in missile track. 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, 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 bones, sacrum or vertebrae, with epithelial sealing over the bone rather than true skin covering 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(d)(2-4). The Veteran's disability has been evaluated under 38 C.F.R. § 4.73, DC 5314. Under DC 5314, Muscle Group XIV. Function; Extension of knee (2, 3, 4, 5); simultaneous flexion of hip and flexion of knee (1); tension of fascia lata and iliotibial (Maissiat's) band, acting with XVII (1) in postural support of body (6); acting with hamstrings in synchronizing hip and knee (1, 2). Anterior thigh group: (1) sartorius; (2) rectus femoris; (3) vastus externus; (4) vastus intermedius; (5) vastus internus; (6) tensor vaginae femoris. 38 C.F.R. Part 4, DC 5314. Under 38 C.F.R. § 4.73, DC 5314, a 30 percent evaluation is warranted for a moderately severe muscle injury and a 40 percent evaluation is warranted for a severe muscle injury. At an April 2014 VA examination, the Veteran was noted to have a penetrating muscle injury with the Veteran reporting pain in the 4-6 range. The Veteran was noted to have an entrance and exit scar indicating track of missile through one or more muscle groups with some loss of muscle substance and consistent loss of power. VA treatment records from December 2014 indicate progressive pain and numbness in the Veteran's right upper leg. He was noted to have severe sharp stabbing and burning pain. A January 2016 VA examination showed the Veteran experienced a penetrating muscle injury with a scar. He reported his thigh pain was variable but persistent. Further, he described the pain as "hot icepick feeling." Sometimes his entire quadricep went numb. On evaluation, he had no atrophy in the lower extremities. The right quadricep muscle bulk was decreased predominantly in the distal rectus femur but some medially with good bulk of the lateral quadricep. The scar tissue was also well healed. The scar was described as ragged, depressed, and adherent indicating wide damage to muscle groups in missile track. Further, functional loss including some loss of muscle substance as well as deep scarring in the muscle caused indentation when muscle was tensed were documented. However, the Veteran retained his full muscle strength and had no evidence of atrophy. At a May 2017 VA examination, the Veteran's injury site itself was noted to have remained the same but the Veteran has had progressively worsening issues with the rest of his leg where the nerve, blood supply, and musculature were damaged. His current symptoms included weakness in the right leg, loss of range of motion, imbalance of the muscles to the knee, and localized numbness with pain that can be both constant and intermittent. The Veteran described the symptoms as "ice picks in the leg" as well as aching in the posterior area where some metal is still in place. His muscle strength in the right knee extension was slightly diminished at 4/5. Further, he was found to have muscle atrophy. His right knee was also found to be hypoactive and he had decreased sensation in the right knee/thigh. His gait was also found to not be normal, with favoring on the right side. His nerves were found to be normal on the right lower side. Lastly, the examiner found the Veteran's pain and numbness in the anterior leg as well as posteriorly, weakness of the muscles, and knee pain all impacted his ability to work. A moderate lower extremity peripheral neuropathy was found. Another May 2017 VA examination reported the Veteran's muscle injury caused some impairment of muscle tonus and some loss of muscle substance. He suffered from loss of power, weakness, and lowered threshold of fatigue. His muscle strength testing again showed 4/5 on the right knee flexion and extension. Additionally, muscle atrophy was shown. The functional impact of the disability including difficulty standing, crouching, and running were documented. The Board finds that the evidence is at least in equipoise as to whether the Veteran's shrapnel wound, right thigh, muscle group XIV, results in a severe muscle disability. The evidence of record demonstrates some loss of muscle substance with consistent loss of power; a scar described as ragged, depressed, and adherent indicating wide damage to muscle groups in missile track; and muscle atrophy. Thus, the Board finds that a rating of 40 percent is warranted for the Veteran's shrapnel wound, right thigh, muscle group XIV. See 38 C.F.R. § 4.56, 4.73, DC 5314. Forty percent is the maximum schedular rating warranted for a Muscle Group XIV injury. See Johnston v. Brown, 10 Vet. App. 80, 85 (1997) (holding that remand for the Board to consider the appellant's functional loss due to pain under § 4.40 was not appropriate when the appellant was receiving the maximum schedular rating for his service-connected disability). Additionally, there is no other analogous diagnostic code under which the Veteran could receive a higher rating for this disability. Schafrath v. Derwinski, 1 Vet. App. 589, 593 (1991). Thus, a rating higher than 40 percent is not warranted. REASONS FOR REMAND 1. Entitlement to a disability rating in excess of 10 percent for service-connected residuals shrapnel wound, lateral femoral cutaneous nerve, right thigh with scar The Veteran contends that his residuals shrapnel wound, lateral femoral cutaneous nerve, right thigh with scar is more severe than what is represented by the current 10 percent rating. In the above-mentioned September 2021 JMPR, the parties agreed that the Board erred when it failed to consider whether separate ratings for the peroneal, femoral, and obturator nerves were warranted. In a May 2017 VA opinion, a VA examiner noted that some of the Veteran's nerve injury "is to the motor branches of the peroneal, femoral, and obturator nerves which has affected his gait as well as the use, strength, and alignment of the right knee." Notwithstanding the finding that the Veteran's nerve injury now includes the peroneal nerve, a May 2017 peripheral examination report from the same clinician noted that the peroneal nerves were normal. The examiner also modified the diagnosis to "residuals, gunshot wound, lateral femoral cutaneous nerve, right thigh" and did not include the obturator nerve in the diagnosis. Although the examiner noted that the lack of function of the obturator nerve impacted the Veteran's knee, the examination report also documents impairment of other nerves such as the sciatic nerve, saphenous nerve, and external cutaneous nerve. As a result, the progression of the Veteran's nerve injury is unclear. Although the evidence of record indicates that the Veteran's peroneal, femoral, and obturator nerves are impacted by his service-connected nerve injury, it is unclear whether his sciatic nerve, internal saphenous nerve, or external cutaneous nerve are also the result of his service-connected residuals of shrapnel wound in his right thigh. As such, the Board finds that the Veteran should be provided with a new VA examination to determine which lower extremity peripheral nerves are impacted by his service-connected right thigh disability. 2. Entitlement to a TDIU The Veteran contends that he is unable to work due to his service-connected disabilities. See VA Form 21-8940. In the above-mentioned September 2021 JMPR, the parties agreed that since the Veteran's increased rating claims were being remanded, that a remand for the issue of entitlement to a TDIU was also necessary. As such, the Board finds that the issue of entitlement to a TDIU has been raised by the record and has therefore been added to the appeal. See Rice v. Shinseki, 22 Vet. App. 447, 453, 54 (2009). The Board will remand the claim of entitlement to a TDIU for readjudication in connection with the implementation of the award of service connection for the Veteran's right hip and right knee disabilities. Additionally, the Board finds that any determinations with respect to the remanded increased rating claim would also materially affect a determination concerning the claim for TDIU. As such, the Veteran's claim of entitlement to TDIU is inextricably intertwined with the determination of the appropriate rating for his service-connected right hip and right knee disabilities as well as the increased rating claim being remanded and must therefore be remanded as well. Harris v. Derwinski, 1 Vet. App. 180 (1991). The matters are REMANDED for the following action: 1. Schedule the Veteran for a new VA examination to assess the current level of severity of his right lower extremity peripheral neuropathy. The electronic claims file must be made available to and reviewed by the examiner. All indicated tests and studies, including electromyography and nerve conduction studies, should be conducted. All pertinent symptomatology and findings should be reported in detail, and the examiner should state whether the Veteran's symptoms result in incomplete paralysis which may be classified as mild, moderate, moderately severe, or severe, or whether there is complete paralysis. The examiner should specifically address whether the Veteran's service-connected right thigh disability results in impairment to any peripheral nerves to include the sciatic nerve, peroneal, obturator, internal saphenous nerve, or external cutaneous nerve. A fully articulated medical rationale for any opinion expressed must be set forth in the medical report. The examiner should discuss the particulars of this Veteran's medical history and the relevant medical science as applicable to this case, which may reasonably explain the medical guidance in the study of this case. 2. After undertaking any additional development deemed appropriate and giving the Veteran full opportunity to supplement the record, adjudicate the Veteran's pending claim in light of any additional evidence added to the record. If any benefit sought on appeal remains denied, the Veteran and his representative should be furnished with a Supplemental Statement of the Case and be afforded the applicable opportunity to respond before the record is returned to the Board for further review. M. Donohue Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. Morrad, 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.