Citation Nr: 21029737 Decision Date: 05/14/21 Archive Date: 05/14/21 DOCKET NO. 14-43 217 DATE: May 14, 2021 ORDER For the period prior to January 19, 2018, a rating higher than 20 percent for shell fragment wound residuals of the right leg based on nerve or muscle injury is denied. For the period since January 19, 2018, a rating higher than 40 percent rating for shell fragment wound residuals of the right leg based on nerve or muscle injury is denied. Effective March 3, 2014, a separate 10 percent rating, but no higher, for shell fragment wound residuals of the right leg based on injury to Muscle Group XV is granted. Effective March 3, 2014, an additional 10 percent rating, but no higher, for scarring with underlying soft tissue damage associated with right leg shell fragment wound residuals is granted. FINDINGS OF FACT 1. Prior to January 19, 2018, the Veteran's right leg shell fragment wound residuals were manifested by nerve impairment with pain, numbness, and some decreased sensation to light tough in the right leg, consistent with moderate incomplete paralysis of the sciatic nerve. 2. Since January 19, 2018, the Veteran's right leg shell fragment wound residuals have been manifested by nerve impairment with pain, numbness, tingling, and objective evidence of some right leg weakness, right foot drop, and decreased sensation, consistent with moderately severe incomplete paralysis of the sciatic nerve. 3. Throughout the period on appeal, the Veteran's right leg shell fragment wound residuals have been productive of moderate injury to Muscle Groups XI, XIII, and XV manifested by consistent pain, some loss of muscle substance, and some impairment of hip adduction with repetitive use. 4. Throughout the period on appeal, the Veteran's right leg shell fragment wound residuals have been manifested by scarring with underlying soft tissue damage covering an area between 39 square centimeters and 77 square centimeters. CONCLUSIONS OF LAW 1. Prior to January 19, 2018, the criteria for a rating higher than 20 percent for right leg shell fragment wound residuals based on nerve or muscle injury were not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.55, 4.56, 4.73, Diagnostic Codes (DCs) 5311, 5313, 4.124a, DC 8520. 2. Since January 19, 2018, the criteria for a rating higher than 40 percent for right leg shell fragment wound residuals based on nerve or muscle injury have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.55, 4.56, 4.73, Diagnostic Codes (DCs) 5311, 5313, 4.124a, DC 8520. 3. Effective March 3, 2014, the criteria for a separate 10 percent rating, but no higher, for right leg shell fragment wound residuals based on moderate muscle injury to group XV muscles are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.55, 4.56, 4.73, DC 5315, 4.124a, DC 8520. 4. Effective March 3, 2014, the criteria for a separate 10 percent rating, but no higher, for right leg shell fragment wound residuals based on scarring with underlying soft tissue damage are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.118, DCs 7801, 7804, Note (3). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from November 1964 to November 1968. This matter is before the Board following his appeal of a September 2014 rating decision. In June 2018, the Veteran testified at a Travel Board hearing before the undersigned Veterans Law Judge. A transcript of the hearing is of record. The Board then remanded this matter in September 2018 and June 2020. In a November 2020 rating decision, the Agency of Original Jurisdiction (AOJ) granted entitlement to a TDIU for the entirety of the period on appeal. Thus, that issue is considered fully resolved. In contrast, however, because a higher 40 percent rating for the right lower extremity granted effective January 19, 2018 by the same rating decision did not represent a total grant of the benefits sought, that claim remains on appeal. Increased Rating for Right Leg Shell Fragment Wound Residuals The Veteran is seeking an increased rating for his shell fragment wound residuals affecting his right lower extremity, which involve nerve, muscle, and skin (scar) manifestations. Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R., Part 4 . The percentage ratings represent, as far as can practicably be determined, the average impairment in earning capacity in civil occupations. 38 U.S.C. § 1155. The disability must be viewed in relation to its history. 38 C.F.R. § 4.1. If two disability ratings are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Reasonable doubt as to the degree of disability will be resolved in favor of the claimant. 38 C.F.R. § 4.3. Nerve Injury Neurologically, the Veteran is currently in receipt of a 20 percent rating under Diagnostic Code (DC) 8520 based on moderate incomplete paralysis of the right sciatic nerve for the period prior to January 19, 2018, and a 40 percent rating under DC 8520 thereafter for moderately severe incomplete paralysis of the right sciatic nerve. Following a review of the record, the Board finds that higher ratings are not warranted for the right leg shell fragment wound residuals based on neurological disability at any time. Prior to January 19, 2018 Initially, for the period prior to January 19, 2018, the evidence shows no more than moderate overall neurological impairment of the right lower extremity. An August 2014 report of VA examination shows that the Veteran described subjective reports of symptoms described as moderate in severity, including constant pain and numbness, and no reports of intermittent pain or paresthesias/dysesthesias. Objectively, there was full muscle strength, full reflexes, normal vibration sense, normal pinprick sense, and only slightly decreased light touch sensation in the pretibial area. The examiner also noted the Veteran's gait to be normal and found no real involvement of any nerves in the Veteran's right lower extremity. The clinical evidence similarly supports that, prior to January 19, 2018, the Veteran's right leg neurological shell fragment wound residuals were no more than moderate in severity. In this regard, the treatment records document some complaints of right lower extremity pain, but no objective findings related to the right leg; instead, treatment records generally show reports of pain that was worse in the left leg compared to the right leg, complaints in the left leg only, and/or neurological examination that was grossly intact or non-focal during treatment. See, e.g., October 2014, April 2015, November 2015, January 2016, May 2016, November 2016, and December 2017 VA Treatment Notes; March 2015 Private Treatment Note. The clinical evidence also supports that the Veteran remained physically active despite his right leg symptoms. For example, he reported playing golf in May 2015, June 2016, August 2016, and October 2016, and walking the mall in July 2016. The Board finds that the foregoing evidence shows that, for the period prior to January 19, 2018, the Veteran's right leg neurological disability was manifested by primarily subjective symptoms self-described as moderate in severity, and minimal objective findings that were sensory in nature, consistent with the currently assigned 20 percent rating for moderate disability. Thus, a rating higher than 20 percent for the period prior to January 19, 2018, is not warranted. Period since January 19, 2018 Turning to the period since January 19, 2018, on which date the Veteran was first found to have right foot drop, the Board finds that a rating higher than 40 percent is not warranted for neurological manifestations of right leg fragment wound residuals because the evidence does not show neurological impairment of the right lower extremity that is severe in nature and productive of muscle atrophy. Instead, VA examiners in July 2018, October 2019, and October 2020 found no evidence of muscle atrophy and expressly assessed the Veteran's neurologic disability associated with his right leg shell fragment wound residuals to be mild to, at worst, moderately severe in nature. Their assessments were based on the Veteran's subjective reports of mild to moderate symptoms of pain, paresthesias/dysesthesias, and numbness, and objective findings of full strength or, at worst, active movement against some resistance in ankle plantar flexion and dorsiflexion (4/5); generally normal reflexes with the isolated exception of an absent ankle reflex in July 2018; and, some decreased sensation in the right lower extremity. In finding the Veteran's sciatic nerve impairment to be moderately-severe in nature, the October 2020 examiner also considered the Veteran's right foot drop, abnormal gait, and use of a cane and ankle foot support. The clinical evidence is consistent with the examiners' assessments that the Veteran's right leg neurological disability is no more than moderately severe in nature. In this regard, VA treatment notes show that in January 2018, when the Veteran was found to have right foot drop, his motor strength was +2/5 with limited dorsiflexion at the right ankle. Then, during an April 2018 follow up for the right foot drop, there was still some right leg weakness, but motor strength was 4/5. Thereafter, neurologic examination was generally described as grossly intact and non-focal during routine VA treatment, and neuropathy was described at times as stable. See December 2018, June 2019, and January 2020 VA Treatment Notes. Significantly, even considering his right lower extremity disability, the Veteran remained physically active and capable during the period from January 19, 2018. For example, in June 2019, despite a notation of general muscle weakness and balance deficit, it was noted that the Veteran remained independent in his activities of daily living. In November 2019, the Veteran reported that he was retired but "still very active" and played golf four days per week. Absent evidence of muscular atrophy, and given the Veteran's subjective reports of moderate symptoms, the VA examiners' assessments of no more than moderately severe disability, and the clinical evidence that is supportive of the examiners' assessments, the Board finds that a rating higher than 40 percent is not warranted for neurological manifestations of the Veteran's right leg shell fragment wound residuals. In so finding, the Board recognizes that the July 2018 and January 2020 examiners also variously noted involvement of the external popliteal, musculocutaneous (superficial peroneal), anterior tibial (deep peroneal), internal popliteal (tibial), and/or posterior tibial nerves. Nevertheless, although the Veteran may experience neuropathic symptoms of multiple nerves in the sciatic branch, assigning separate ratings for each nerve within the sciatic group would violate the rule against pyramiding, as the evidence does not support distinct, nonoverlapping symptoms. 38 C.F.R. § 4.14. Therefore, only one evaluation is allowable, and the Veteran's current rating is based on the sciatic nerve, which is most favorable as it is the highest rated nerve. Muscle Injury Turning next to muscle impairment associated with the Veteran's right leg shell fragment wound residuals, VA examiners have found involvement of Muscle Group XI, which affects propulsion, plantar flexion of the foot, stabilization of the arch, and flexion of toes; Muscle Group XIII, which affects knee flexion; and Muscle Group XV, which affects adduction of the hip. See October 2019 and October 2020 VA Muscle Examination Reports. Nevertheless, while acknowledging the evidence of muscle injury to Muscle Groups XI and XIII in addition to nerve injury to the right lower extremity, the Board points out that rating the Veteran's right lower extremity based on muscle injury would not provide for higher ratings than that assigned for the sciatic nerve injury, and ratings for both muscle injury and nerve injury of the same body part are generally precluded. 38 C.F.R. §§ 4.55(a), 4.56, 4.73, DCs 5311, 5313; Cullen v. Shinseki, 24 Vet. App. 74 (2010). Thus, because impaired right knee and foot function is already contemplated by the rating for incomplete paralysis of the sciatic nerve, additional ratings for injury to Muscle Groups XI and XIII are not permissible, as they affect the same functions. 38 C.F.R. § 4.14. An exception exists, however, that allows for the receipt of combined ratings for muscle injury and peripheral nerve paralysis of the same body part when the injuries affect entirely different functions. 38 C.F.R. § 4.55(a). The Board finds that such exception is applicable here, as the injury to Muscle Group XV affects adduction of the hip, and hip adduction is not contemplated by the rating criteria for the sciatic nerve under DC 8520. See 38 C.F.R. §§ 4.73, DC 5315, 4.124a, DC 8520. As such, the Board finds that a separate rating for muscle injury to group XV affecting right hip function is permissible in this instance. And, given the October 2019 and October 2020 VA examiners' findings of a penetrating muscle injury with entrance and (if present) exit scars indicating a short track of missile through muscle tissue, some loss of muscle substance, a consistent cardinal sign and symptom of muscle disability (specifically, consistent fatigue and/or pain), and some impairment of hip adduction with repetitive motion, the Board finds that a separate 10 percent rating is warranted for moderate disability of Muscle Group XV. 38 C.F.R. §§ 4.56(d)(2), 4.73, DC 5315. However, even considering evidence of retained small metallic foreign bodies on imaging of the right femur in May 2009, the Board finds that a rating higher than 10 percent is not warranted, as the evidence does not more nearly approximate moderately severe or severe disability. In this regard, the evidence shows a finding of only one consistent cardinal sign and symptom of muscle disability (fatigue and/or pain); full hip strength in flexion; an absence of fascial defects or indications on palpation of loss of deep fascia, muscle substance, or normal firm resistance of group XV muscles; and, an absence of atrophy, involvement of multiple muscle groups in the relevant missile track, or wide damage to muscle groups in the missile track. See October 2019 and October 2020 VA Muscle Examination Reports. Moreover, as discussed in more detail above, the Veteran has remained independent in his activities of daily living and engaged in physical activity, including golf. Thus, a rating higher than 10 percent for Muscle Group XV injury is not warranted, as the evidence is consistent with moderate muscle injury. 38 C.F.R. §§ 4.56(d)(3)(4), 4.73, DC 5315. As a final matter, the Board finds that the separate 10 percent rating for injury to Muscle Group XV is warranted effective March 3, 2014, when the Veteran's claim for an increased rating was received. In this regard, the Veteran has reported pain since receiving a shrapnel wound to the right hip adductor muscle in service. See October 2019 VA Muscle Examination Report (noting the Veteran was hit by shrapnel in his right thigh adductors and experienced pain with use to date). Although prior August 2014 and July 2018 examiners did not note involvement of group XV muscles in the right leg, neither examiner appears to have fully examined the Veteran's right lower extremity muscle injuries. Indeed, there is no discussion of muscle injury at all by the July 2018 examiner, and no discussion of specific muscles involved in the right lower extremity by the August 2014 examiner. Thus, those examinations are not probative as to extent of Muscle Group XV involvement dating back to the date of claim and, resolving doubt in the Veteran's favor, the Board finds that such impairment has been present for the duration of the appeal. Scars Lastly, the Board finds that an additional 10 percent rating is warranted for the Veteran's right leg shell fragment wound scars, in addition to the 10 percent rating currently assigned for two scars (a left forearm scar and a right posteromedial knee scar) that are unstable or painful. 38 C.F.R. § 4.118, DC 7804, Note (3). In this regard, VA examination reports in July 2018 and October 2020 documented that the Veteran's right leg residual shrapnel wound scarring involved an area of deep, non-linear scars with underlying tissue damage measuring between 39 square centimeters and 77 square centimeters. Specifically, the July 2018 examiner noted 72 square centimeters of deep nonlinear scars on the right lower extremity, and the October 2020 examiner noted 49 square centimeters of scars with underlying tissue damage on the right lower extremity. Those findings warrant an additional 10 percent rating under DC 7801. 38 C.F.R. § 4.118, DCs 7801, 7804, Note (3). However, at no time are higher or additional separate ratings warranted, as the relevant evidence does not show right leg shell fragment wound residual scarring involving more than two scars that painful or unstable; a scar that is both painful and unstable; scars associated with underlying soft tissue damage covering an area greater than 77 square centimeters; scars not associated with underlying soft tissue damage covering an area of 929 square centimeters or greater; or, disabling effects or functional impairment that is not already contemplated by current ratings for the right lower extremity. VA examination reports dated in August 2014, May 2015, July 2018, October 2019, and November 2020 documented findings of one painful scar on the right posteromedial knee (in addition to a painful left forearm scar not currently on appeal); no unstable scars; scars without underlying tissue damage covering an area of no greater than 48.9 square centimeters; and scars with underlying tissue damage covering an area of no greater than 72 square centimeters. Furthermore, the examiners affirmatively found no additional limitation of function or motion of the right lower extremity related to his scarring beyond impairment covered by the muscle and/or nerve ratings. Thus, the Board finds that apart from the grant of a separate 10 percent rating here based on scarring with underlying soft tissue damage, there is no basis upon which to grant a higher or separate rating for residual scarring from right leg shell fragment wounds. As a final matter, the Board acknowledges that during the pendency of this appeal, the rating criteria for skin disorders were amended in August 2018. Effective August 13, 2018, a new General Rating Formula for the Skin applies to Diagnostic Codes 7806, 7809, 7813 to 7816, 7820 to 7822, and 7824. See 38 C.F.R. § 4.118 (2018). However, as those diagnostic codes are not applicable to the Veteran's scars, the amended regulations do not apply. In sum, the Board finds that, effective March 3, 2014, separate 10 percent ratings are warranted for the Veteran's shell fragment wound residuals of the right leg based on injury to Muscle Group XV and scarring with underlying soft tissue damage, but that neither higher nor separate ratings are warranted at any time for nerve, muscle, or skin involvement associated with right leg shell fragment wound residuals. S. C. Krembs Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Fagan 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.