Citation Nr: 21026999 Decision Date: 05/04/21 Archive Date: 05/04/21 DOCKET NO. 12-27 107A DATE: May 4, 2021 ORDER Entitlement to a rating in excess of 30 percent for fragment wounds left thigh is denied. Entitlement to a rating in excess of 30 percent for a right thigh, multiple fragment wounds with retained foreign body is denied. FINDINGS OF FACT 1. Throughout the rating period, the Veteran's residuals of shell fragment wound of left thigh involving Muscle Group XV are manifested primarily by a penetrating wound of left thigh, and are productive of moderately severe muscle injury; severe muscle injury of left thigh is not demonstrated. 2. Throughout the rating period, the Veteran's residuals of shell fragment wound of right thigh involving Muscle Group XIII are manifested primarily by a penetrating wound of right thigh, complaints of pain, and are productive of moderately severe muscle injury; severe muscle injury of right thigh is not demonstrated. CONCLUSIONS OF LAW 1. The criteria for a disability rating greater than 30 percent for residuals of shell fragment wound of left thigh involving Muscle Group XV 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 5313. 2. The criteria for a disability rating greater than 30 percent for residuals of shell fragment wounds of right thigh involving Muscle Group XIII 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 5314. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 1968 to September 1970, which included service in the Republic of Vietnam. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). This matter was previously remanded in March 2019 for further development. In a January 2019 rating decision, the RO increased the evaluation for the right and left thigh fragment wounds to 30 percent each effective May 20, 2009, the date the Veteran filed his increased rating claim. The United States Court of Appeals for Veterans Claims (Court) has held that a rating decision issued subsequent to a notice of disagreement, which grants less than the maximum available rating does not "abrogate the pending appeal." AB v. Brown, 6 Vet. App. 35, 38 (1993). Consequently, the matter of higher ratings remains in appellate status. Increased Rating Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities, which is based on average impairment in earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Separate ratings may be assigned for separate periods of time based on the facts found. This practice is known as "staged" ratings." Fenderson v. West, 12 Vet. App. 119, 126-127 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Regulations at 38 C.F.R. § 4.55 provide that (a) 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. (b) For rating purposes, 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). (c) There will be no rating assigned for muscle groups which act upon an ankylosed joint, with the following exceptions: (1) 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. (2) 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. (d) The combined evaluation of muscle groups acting upon a single non-ankylosed 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. (e) 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. (f) 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 § 4.25. Regulations at 38 C.F.R. § 4.56 provide (a) 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. (b) A through-and-through injury with muscle damage shall be evaluated as no less than a moderate injury for each group of muscles damaged. (c) 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. (d) Under Diagnostic Codes 5301 through 5323, disabilities resulting from muscle injuries shall be classified as slight, moderate, moderately severe, or severe 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 complaint 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 complaint 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. Residuals of Shell Fragment Wound of Left Thigh The Veteran's service-connected residuals of shell fragment wound of left thigh currently are rated throughout the rating period as 30 percent disabling under 38 C.F.R. § 4.73, Diagnostic Code 5313. A 30 percent rating requires moderately severe injury to Muscle Group XV (Medial thigh muscles: adductor longus, adductor brevis, adductor magnus, gracilis). A 40 percent rating requires severe injury. A December 2009 VA examination found that the Veteran had a scar on his left lower extremity. The scar did not present with skin breakdown and the Veteran denied experiencing pain. The examiner found that there was no history of trauma to the muscle, despite the Veteran's shrapnel wounds. The examiner did find weakness of the underlying muscle and that the muscle had been injured. The examiner found that only muscle group XIV was affected, not muscle groups XIII or XV. Left thigh muscle strength was normal and there was no evidence of residual nerve tendon or bone damage. There was no muscle herniation, deep fascia or muscle substance and there was no limitation of motion of any joint due to muscle injury. The examiner noted that the diagnosed shrapnel wound of bilateral thighs mild to moderately effects the Veteran's activities of daily living. A June 2017 VA examination found fragment wounds of the left thigh. The Veteran reported spontaneous episodes of pain in the thigh muscles when he runs. The examiner did find that the Veteran has a penetrating muscle injury. This examiner did not find an injury to muscle group XIV. The examiner found injuries to muscle groups XIII on the right thigh and XV on the left thigh. The examiner found that the Veteran did not have any scars associated with a muscle injury and that the injuries did not affect the muscle function. The examiner also found that the Veteran experienced occasional bilateral fatigue pain in muscle group XIII of the right thigh and XV of the left thigh. No loss of muscle strength was noted. The Veteran's right thigh was found to still have fragments within muscle group XIII. The examiner found that there was no functional impact to the Veteran. For the Veteran's left thigh, the examiner reported that the bones are intact, the joints are preserved, amorphous calcifications are seen in the posteromedial thigh which could be related to old injury or sclerosing therapy. No metallic foreign body could be identified. This examination did not include the specific findings on the severity of the Veteran's disability. During a February 2021 VA examination, the Veteran reported that he had a scar on the left thigh from a shell fragment wound. He reported pain in the left thigh, which flared-up periodically and irregularly. The Veteran reported the severity as moderate. He reported increased pain when walking, standing or running and has an altered gait because of left thigh pain. The examiner found injury to group XV muscle group but did not find any evidence of muscle atrophy. The examiner stated that the Veteran's injury as moderately impaired as this muscle group is responsible for hip adduction, assist with knee flexion and assist in stabilizing and rotating the knee inward. Veteran reports difficulties with bending, squatting and going up and downstairs. The objective evidence is against a disability rating greater than 30 percent for residuals of shell fragment wound of left thigh. No more than a moderately severe injury of Muscle Group XV involving the Veteran's left thigh is demonstrated. In the absence of any of the cardinal signs or symptoms of muscle disability, no increased evaluation can be granted. While the description of the injury warranted assignment of evaluation for moderately severe disability, current impairment does not permit a higher evaluation. The preponderance of evidence, therefore, is against a disability rating greater than the currently assigned 30 percent rating under Diagnostic Code 5313 for residuals of shell fragment wound of left thigh. Residuals of Shell Fragment Wounds of Right Thigh, Knee, and Calf The Veteran's service-connected residuals of for a right thigh, multiple fragment wounds with retained foreign body currently are rated throughout the rating period as 30 percent disabling under 38 C.F.R. § 4.73, Diagnostic Code 5314. A 30 percent rating requires moderately severe injury. A 40 percent rating requires severe injury. A December 2009 VA examination found that the Veteran had a scar on his right lower extremity. The scar did not present with skin breakdown and the Veteran denied experiencing pain. The examiner found that there was no history of trauma to the muscle, despite the Veteran's shrapnel wounds. The examiner did find weakness of the underlying muscle and that the muscle had been injured. The examiner found that only muscle group XIV was affected, not muscle groups XIII or XV. Right thigh muscle strength was normal and there was no evidence of residual nerve tendon or bone damage. There was no muscle herniation, deep fascia or muscle substance and there was no limitation of motion of any joint due to muscle injury. The examiner noted that the diagnosed shrapnel wound of bilateral thighs mild to moderately effects the Veteran's activities of daily living. A June 2017 VA examination found fragment wounds of the right thigh. The Veteran reported spontaneous episodes of pain in the thigh muscles when he runs. The examiner did find that the Veteran has a penetrating muscle injury. This examiner did not find an injury to muscle group XIV. The examiner found injuries to muscle groups XIII on the right thigh and XV on the left thigh. The examiner found that the Veteran did not have any scars associated with a muscle injury and that the injuries did not affect the muscle function. The examiner also found that the Veteran experienced occasional bilateral fatigue pain in muscle group XIII of the right thigh and XV of the left thigh. No loss of muscle strength was noted. The Veteran's right thigh was found to still have fragments within muscle group XIII. The examiner found that there was no functional impact to the Veteran. For the Veteran's right thigh, the examiner reported that the bones are intact, the joints are preserved, there are 2 metallic densities within the soft tissues of the mid-thigh consistent with bullet fragments or shrapnel, the largest one measuring 10 mm and apparently partially embedded in the cortex of the posterior femur. There was a somewhat irregular calcification within the soft tissues of the posterolateral thigh measuring about 2 cm which the examiner stated could be related to a lymph node or an old calcified hematoma. This examination did not include the specific findings on the severity of the Veteran's disability. During a February 2021 VA examination, the Veteran reported that he had a scar on the right thigh from a shell fragment wound. He reported pain in the right thigh, which flared-up periodically and irregularly. The Veteran reported the severity as moderate. He reported increased pain when walking, standing or running and has an altered gait because of left thigh pain. The examiner found injury to group XIII muscle group but did not find any evidence of muscle atrophy. The examiner stated that the Veteran's injury as moderately impaired as this muscle group is responsible for flexion of the legs at knee, extension of the thigh, rotation of the leg medially, rotation of the leg laterally and medially which basically assist movement of the leg muscles. The Veteran reports that he avoids walking and standing for long periods of time, running, bending, squatting, or even riding bikes to prevent further injuries. Here, the objective evidence reveals no more than a moderately severe injury of Muscle Group XIII involving the Veteran's right thigh. Penetrating wounds by a single bullet or shell fragment are considered to be at least a moderate muscle injury. See 38 C.F.R. § 4.56. The preponderance of evidence, therefore, is against the assignment of a rating in excess of 30 percent under Diagnostic Code 5314 for a right thigh, multiple fragment wounds with retained foreign body. Roya Bahrami Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Edward G. Lent 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.