Citation Nr: 21023345 Decision Date: 04/20/21 Archive Date: 04/20/21 DOCKET NO. 11-20 800 DATE: April 20, 2021 ORDER Entitlement to an evaluation in excess of 10 percent for intra-abdominal adhesions and retained shrapnel fragments in abdominal musculature is denied. Entitlement to a separate rating of 10 percent for residuals of shrapnel wound damage to muscle group XIX is granted. FINDINGS OF FACT 1. Throughout the period on appeal, the Veteran’s intra-abdominal adhesions have been characterized by moderate adhesions with pulling pain on attempting work or aggravated by movements of the body, or occasional episodes of colic pain, nausea, constipation (perhaps alternating with diarrhea), or abdominal distension. 2. Throughout the pendency of the appeal, the Veteran has had abdominal weakness, fatigue and loss of strength, manifested by a moderate injury to Muscle Group XIX. It has not been manifested by a moderately severe injury. CONCLUSIONS OF LAW 1. The criteria for entitlement to a disability evaluation in excess of 10 percent for intra-abdominal adhesions and retained shrapnel fragments in abdominal musculature have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.159, 4.1, 4.2, 4.3, 4.7, 4.40, 4.45, 4.59, 4.114, Diagnostic Code 7301 (2019). 2. Throughout the pendency of the appeal, the criteria for a separate rating of 10 percent for injury of Muscle Group XIX have been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.55, 4.56, 4.73, Diagnostic Code 5319 (2019). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from February 2007 to July 2007 and from October 2008 to November 2009, as well as additional periods of active and inactive duty for training in the Army Reserves. He is a recipient of the Combat Action Badge and the Purple Heart medal. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from a July 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio. The Veteran testified at a hearing before the undersigned in September 2017. A copy of the hearing transcript is of record. This matter was previously before the Board in May 2020, and was remanded for further development. 1. Entitlement to an evaluation in excess of 10 percent for intra-abdominal adhesions and retained shrapnel fragments in abdominal musculature 2. Entitlement to a separate rating for residuals of shrapnel wound damage to muscle group XIX The Veteran claims entitlement to an evaluation in excess of 10 percent for intra-abdominal adhesions and retained shrapnel fragments in abdominal musculature. See September 2017 hearing before the undersigned. The Veteran’s intra-abdominal adhesions and retained shrapnel fragment disability is currently evaluated as 10 percent disabling pursuant to Diagnostic Codes (DCs) 7301-5319. Hyphenated DCs are used when a rating under one code requires use of an additional DC to identify the basis for the rating assigned. 38 C.F.R. § 4.27. DC 7301 refers to adhesions of the peritoneum. DC 5319 refers to muscle injuries, Group XIX. The assignment of a particular diagnostic code is “completely dependent on the facts of a particular case.” See Butts v. Brown, 5 Vet. App. 532, 538 (1993). The Board notes that the Veteran is not precluded from separate ratings for adhesions of the peritoneum and the muscle injury based on general anti-pyramiding principles. Tropf v. Nicholson, 20 Vet. App. 317, 321 (2006) (holding that two separate ratings are to be awarded where an injury manifests with two different disabilities, such as peritoneum and muscle injury); 38 C.F.R. § 4.14 ”[t]he evaluation of the same disability under various diagnoses,” a practice called “pyramiding,” “is to be avoided”). Under DC 7301, a 10 percent rating is assigned for moderate adhesions of the peritoneum with pulling pain on attempting work or aggravated by movements of the body, or occasional episodes of colic pain, nausea, constipation (perhaps alternating with diarrhea) or abdominal distension. 38 C.F.R. § 4.114. A 30 percent rating is assigned for moderately severe adhesions of the peritoneum with partial obstruction manifested by delayed motility of barium meal and less frequent and less prolonged episodes of pain. Id. A 50 percent disability rating is assigned for severe adhesions of the peritoneum with definite partial obstruction shown by X-ray, with frequent and prolonged episodes of severe colic distension, nausea or vomiting, following severe peritonitis, ruptured appendix, perforated ulcer, or operation with drainage. Under DC 5319, which pertains to Muscle Group XIX, a 0 percent rating is assigned for slight disability, a 10 percent rating is assigned for moderate disability, a 30 percent rating is assigned for moderately severe disability, and a 50 percent rating is assigned for severe disability. 38 C.F.R. § 4.73. The Veteran was afforded separate examinations for stomach, duodenum and peritoneal adhesions, and his muscle injuries in January 2009. The Veteran was afforded a muscle examination in October 2018. However, the matter was remanded by the Board in May 2020 for a more current examination of his peritoneal adhesions. The peritoneal adhesions examination of January 2009 reflects that the Veteran reported symptoms of nausea, vomiting, bloody stools and diarrhea. The Veteran also reported severe pain in the abdomen; moderate bloating twice a week; moderate nausea a couple times a week; severe vomiting a couple times a week; and severe abdominal pain. The examiner noted that the Veteran underwent exploratory surgery in April 2009, but was unable to render a firm diagnosis because the Veteran did not attend a lower GI appointment. The Veteran’s diagnosis was noted as stomach problems, assessed to have a moderate effect on usual occupation and activities of daily living due to pain and problems with eating. The Veteran also underwent a muscle examination in January 2009. The Veteran was noted to have shrapnel wound injuries to the right side of his body. Affected muscle groups included group XIX. Muscle strength was assessed to be normal. However, joint damage was noted. The Veteran was afforded another stomach and muscle examination in June 2010. The Veteran underwent an abdominal CT scan. The shrapnel injuries were identified and noted not to be in close proximity to the Veteran’s bladder. However, it was also noted that shrapnel in his musculature may account for his pain. The Veteran denied nausea and vomiting, as well as having lost 20 pounds since service. He also reported significant urgency to defecate and loose stools daily. On physical examination, visible and palpable shrapnel at the level of the abdominal subcutaneous tissue was noted. Soft and mild tenderness on palpation was also noted. There was no evidence of malnutrition anemia or debility. The Veteran complained of abdominal pain. He also complained of diarrhea. The examiner attributed these symptoms to the abdominal injuries from the retained shrapnel fragments in his musculature. The Veteran was afforded a VA intestinal examination in December 2013, as well as a muscle examination. The muscle examination did not address muscle group XIX. However, the Board notes that the intestinal examination reflects that the Veteran did not have a gastrointestinal diagnosis – though he reported occasional episodes of bowel disturbance and abdominal distress. The Veteran was afforded a VA muscles examination in October 2015. The Veteran was confirmed to have a diagnosis of abdominal adhesions and retained shrapnel fragments in muscle groups XVII and XIX on the right side. The muscle injuries were noted to affect muscle tonus. Additional signs and symptoms attributable to the Veteran’s muscle injuries were noted to include consistent weakness as well as fatigue and pain. Muscle strength was assessed to be normal. There was no muscle atrophy. The Veteran reported abdominal cramping and changes in bowel movement frequency. X-rays revealed nonobstructive bowel gas pattern. The Veteran was afforded another VA muscles examination in March 2018. The Veteran reported an increase to the frequency of his bowel movements over the previous five-year period, including up to 12 bowel movements a day and abdominal cramping. Cardinal signs and symptoms attributable to the Veteran’s muscle injuries were noted to include consistent weakness as well as fatigue and pain. Muscle strength was assessed to be normal. There was no muscle atrophy. The examiner opined that there is no evidence for a nexus between the Veteran’s report of nausea, abdominal distension, cramps and difficulty controlling his bowels and his service-connected intra-abdominal adhesions and retained fragments in the abdominal musculature. The Veteran was afforded a VA peritoneal adhesions examination in October 2020. The Veteran reported nearly constant pain in his abdomen which can be either sharp or dull. He also reported cramping in the abdomen and chronic loose stool with bowel movements multiple times a day. Some nausea was also reported. Soft tissue injury from shrapnel wounds was noted, and peritoneal adhesions were confirmed. Signs and symptoms of peritoneal adhesions were noted to include pain and nausea. The severity of said manifestations was assessed as moderately severe symptoms with less frequent episodes of pain and less prolonged episodes of pain. He was also noted to experience moderate symptoms of pulling pain on attempting work; pulling pain aggravated by movements of the body; occasional nausea; occasional diarrhea; and occasional abdominal distension. Functional impact was assessed as pain with heavy lifting. The Veteran was also afforded a VA muscle examination in October 2020. The Veteran reported muscular pain and cramping, including dull pain at rest and more intense pain with activity. It was noted the Veteran no longer runs. Muscle injuries were noted to produce some impairment of the muscle tonus on physical examination. Other cardinal signs and symptoms attributable to the Veteran’s muscle injuries were noted to include loss of power as well as fatigue and pain. Muscle strength was assessed to be normal. There was no muscle atrophy. Functional impact was noted to include potential inability to perform heavy physical demand tasks. The examiner opined that the Veteran’s adhesions do not constitute the “predominant disability.” She explained that the shrapnel affected chiefly soft tissues such as subcutaneous fat and muscle tissue, and no internal organs were perforated per the 2009 surgical report. The examiner also indicated that the etiology of the diarrhea is not entirely clear as the Veteran never followed through on a recommended colonoscopy. The examiner opined that the “predominant disability” is the shrapnel injury to the musculature causing pain and cramping, and pain/numbness along the scar site, and that much of the pain endorsed by the Veteran stems from his muscle injuries. During his hearing before the undersigned in September 2017, the Veteran testified he was having issues due to his bowels and incontinence, loss of power and nausea, resulting in a feeling that he is unable to maintain a normal lifestyle. The Veteran also reported pain. Upon review of the record, the Board finds, first, that a rating in excess of 10 percent for the Veteran’s intra-abdominal adhesions is not warranted. In this regard, in order to obtain a higher rating, it is necessary to show moderately severe adhesions of the peritoneum with partial obstruction manifested by delayed motility of barium meal in addition to less frequent and less prolonged episodes of pain. In this case, at no point during the appellate period did the record reflect that the Veteran had partial bowel obstruction or delayed mobility of the barium meal. In this regard, the October 2015 VA examination included an x-ray reflective of a nonobstructive gas pattern and the latest October 2020 VA examination specifically indicated that the Veteran has neither bowel obstruction nor delayed mobility of the barium. However, the Board finds that a separate rating for the Veteran’s residual injuries to his group XIX muscles is warranted. In this regard, the record reflects that in addition to nausea, diarrhea and bowel disturbances, the Veteran experienced symptoms of fatigue, pain and loss of power – symptoms not contemplated by DC 7301 and noted by the October 2020 VA examiner to be caused by the Veteran’s muscle injury residuals. DC 5319, it is reiterated, compensates slight, moderate, moderately severe and severe muscle disabilities pertaining to muscle group XIX. 38 C.F.R. § 4.73. The factors for determining whether muscle disability is slight, moderate, moderately severe, or severe are particular to the evaluation of healed wounds, such as those from gunshots or other missiles. 38 C.F.R. §§ 4.55, 4.56. 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 framework for rating such disabilities is as follows: (1) Slight disability of muscles--(i) Type of injury. Simple wound of muscle without debridement or infection. (ii) History and complaint. Service department record of superficial wound with brief treatment and return to duty. Healing with good functional results. No cardinal signs or symptoms of muscle disability as defined in paragraph (c) of this section. (iii) Objective findings. Minimal scar. No evidence of fascial defect, atrophy, or impaired tonus. No impairment of function or metallic fragments retained in muscle tissue. (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 disability as defined in paragraph (c) of this section, particularly lowered threshold of fatigue after average use, affecting the particular functions 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 intermuscular scarring. (ii) History and complaint. Service department record or other evidence showing hospitalization for a prolonged period for treatment of wound. Record of consistent complaints of cardinal signs and symptoms of muscle disability as defined in paragraph (c) of this section 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 wound. Record of consistent complaints of cardinal signs and 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 the missile. (B) Adhesion of scar to one of the long bones, scapula, pelvic bones, sacrum or vertebrae, with epithelial sealing over the bone rather than true skin covering in an area where bone is normally protected by muscle. (C) Diminished muscle excitability to pulsed electrical current in electrodiagnostic tests. (D) Visible or measurable atrophy. (E) Adaptive contraction of an opposing group of muscles. (F) Atrophy of muscle groups not in the track of the missile, particularly of the trapezius and serratus in wounds of the shoulder girdle. (G) Induration or atrophy of an entire muscle following simple piercing by a projectile. 38 C.F.R. § 4.56(d). Based on the aforementioned factors, the Board finds that the Veteran’s group XIX muscle disability is to be rated as moderate. In this regard, review of the medical record reflects that radiographic imaging indicates shrapnel fragments in the Veteran’s musculature, from an injury in service. See June 2010 VA examination. Additionally, VA examinations in October 2015 and March 2018 both reflect that the Veteran’s shrapnel fragment injuries affect muscle group XIX’s muscle tonus. Additionally, cardinal signs and symptoms were identified by both examiners to include weakness, fatigue and pain. The October 2020 VA examiner concurred with the 2015 and 2018 findings. In addition, the 2020 VA examiner identified loss of power as a cardinal sign and symptom of the Veteran’s muscle injury. The Board acknowledges the rule against pyramiding. See 38 C.F.R. § 4.14. However, as noted above, the symptoms compensated by the separate ratings assigned do not overlap, and have been clearly distinguished herein. Specifically, the aforementioned cardinal signs and symptoms, as well as impairment of muscle tonus, are not contemplated by DC 7301, which covers the Veteran’s additional symptoms of nausea and bowel disturbances. Given the foregoing, the Board finds that a rating of 10 percent, but no higher, for the Veteran’s intra-abdominal adhesions is warranted. In so finding, the Board notes that the Veteran’s medical records do not reflect loss of deep fascia, muscle substance, or normal firm resistance of muscles compared with the sound side. However, given the findings of impairment in muscle tonus, loss of power, lowered threshold of fatigue, and fatigue pain of Muscle Group XIX, with consistent frequency and severity that impacts the Veteran’s ability to work, the Board finds that the injuries to this muscle group are moderate in severity. Accordingly, the Board concludes that a rating in excess of 10 percent is not warranted under Diagnostic Code 7301 for intra-abdominal adhesions. A separate rating of 10 percent is warranted for Diagnostic Code 5319 for muscle group XIX. The Board notes that the Veteran’s scar disability is already assigned a separate evaluation and will not be addressed herein. The Board has considered the applicability of the benefit of the doubt doctrine; however, as the preponderance of the evidence is against any higher ratings than those now assigned, that doctrine is not applicable. 38 U.S.C. § 5107(b). Caroline B. Fleming Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Comninos, Georgio 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.