Citation Nr: A24036734
Decision Date: 07/09/24	Archive Date: 07/09/24

DOCKET NO. 231231-404086
DATE: July 9, 2024

ORDER

For the entire appeal period, a 20 percent rating, but no higher, for residuals of an injury to right lower extremity (RLE), Muscle Group XII status-post residuals of shell fragment wound, subject to the laws and regulations governing the payment of monetary awards.

FINDING OF FACT

Resolving all doubt in the Veteran's favor, for the entire appeal period, the Veteran's residuals of an injury to the RLE, Muscle Group XII, status-post residuals of shell fragment wound, results in constant pain; weakness; fatigue; uncertainty of movements; and, an inability to keep up with work requirements, thereby more nearly approximating no more than a moderately severe disability of Muscle Groups XII.

CONCLUSION OF LAW

For the entire appeal period, the criteria for a rating of 20 percent, but no higher, for residuals of an injury to RLE, Muscle Group XII status-post residuals of shell fragment wound have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.14, 4.21, 4.55, 4.56, 4.73, Diagnostic Code (DC) 5312. 

REASONS AND BASES FOR FINDING AND CONCLUSION

The Veteran had active duty service in the United States Marine Corps from March 1969 to December 1967. The Veteran's awards and decorations include the Purple Heart Medal. 

This matter comes before the Board of Veterans Appeals (VA) on appeal from a December 2023 Appeals Modernization Act (AMA) rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). In late December 2023, the Veteran appealed this rating action by submitting a timely VA Form 10182. He selected the AMA hearing lane. In May 2024, the Veteran testified at a virtual hearing before the undersigned. A copy of these proceedings is of record. Thus, the evidence of record allowed for consideration in the appeal is limited to that of record at the time of the December 2023 rating action, the May 21, 2024 hearing testimony, and evidence received into the record within 90 days of the hearing (May 21, 2024-August 21, 2024). The Veteran's attorney waived his right to submit additional evidence in support of the Veteran's appeal. Transcript (T) at page (pg.) 15). Thus, the Board's adjudication of the appeal is limited to evidence received into the record at the time of the December 2023 rating action and May 2024 hearing testimony.

A 20 percent rating, but no higher, for residuals of an injury to RLE, Muscle Group XII status-post residuals of shell fragment wound, is granted.

The Veteran seeks a rating in excess of 10 percent for residuals of an injury to RLE, Muscle Group XII, status-post residuals of shell fragment. He contends that as a result of his RLE disability, he has constant pain; weakness; fatigue; uncertainty of movements; and, an inability to keep up with work requirements that are more commensurate with a moderately severe disability and, thus, a 20 percent rating is warranted. See Veteran's attorney's May 2024 post-hearing brief to VA.

Here, the Veteran's residuals of an injury to RLE, Muscle Group XII are rated pursuant to 38 C.F.R. § 4.73, DC 5312.  DC 5312 includes the rating of the anterior muscles of the leg affecting dorsiflexion, extension of toes, and stabilization of arch. 

Under 38 C.F.R. § 4.73, DCs 5301 to 5323 prescribe the evaluation of disabilities manifested by muscle injuries based upon the classifications of slight, moderate, moderately severe, or severe. 38 C.F.R. § 4.56 (d)(1)-(4). The corresponding level of severity of a service-connected muscle injury is determined to a significant extent by the presence or absence of cardinal signs and symptoms of muscle disability, which consist of loss of power, lowered threshold of fatigue, weakness, 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).

Turning to the evidence of record, the Veteran's service treatment records (STRs) reflect, in pertinent part, that he was hospitalized from June 11, 1968 to June 19, 1968, at 1st Hospital for a shell fragment wound of right knee. On examination, there was no significant effusion and limited range of motion; the right knee was neurovascularly intact. X-rays of the right knee showed a shell fragment in the infrapatellar tendon. The Veteran was prescribed antibiotics for five (5) days. On June 14th, the shell fragment was removed from the knee joint.  After the surgery, the Veteran was afebrile, but a large effusion remained. A March 1969 service separation examination report showed that the Veteran's lower extremities were evaluated as "normal." The examiner noted the presence of a right knee scar.   

A May 1969 examination report reflects the Veteran's history of having sustained a shell fragment wound to the right knee in June 1968, that he underwent an operation, and was subsequently hospitalized for approximately three (3) months. The Veteran indicated that his right knee occasionally felt wobbly when he stepped down from heights and that there was occasional pain when he performed a swiveling motion. He denied any episodes of locking or effusion. An examination of the right knee revealed a two (2) inch hooked anteromedial postoperative scar. The Veteran demonstrated normal range of motion of the right knee. There was evidence of visual loss of mass of the right quadriceps. The right knee showed no evidence of effusion, tenderness or crepitus, and the collateral and cruciate ligaments were firm. The examining clinician entered a diagnosis of residuals post-operative shell fragment wound, right knee.

The Board finds that, in resolving all doubt in his favor, the Veteran's residuals of an injury to RLE, Muscle Group XII status-post residuals of shell fragment wound most nearly approximates a moderately severe injury to Muscle Group XII. In this regard, to the extent the wound not result from a 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, the history of such disability does reflect evidence of a shell fragment in the infrapatellar tendon that required surgery, and reported residuals of symptoms of effusion. The Board notes that objective examinations at a June 2023 examination revealed no indication on palpation of loss of deep fascia, muscle substance, or normal firm resistance of muscles compared with sound side, and tests of strength and endurance compared with sound side did not demonstrate positive evidence of impairment. See June 2023 Muscle Injuries Disability Benefits Questionnaire (DBQ). 

Additionally, while the June 2023 VA examiner found that the Veteran did not have any of the cardinal signs and symptoms of a muscle disability, he also observed that the Veteran had fatigue/pain, especially with activity and walking on uneven ground. Similarly, the remainder of the evidence of record consistent reflects the Veteran's and his attorney's testimony and written reports of constant, nagging moderate-to-severe RLE pain, weakness as compared to his minor (left) extremity, and having to watch his step due to uncertainty of movement (i.e., has to hold handrail for balance when ascending and descending stairs). The Veteran also testified that he was unable to walk on a regular basis at his job (the Veteran runs a community center for people who work on horse farms, to include a lot of programs for minors). See May 2024 Hearing Transcript and May 2024 Veteran's attorney's Post-Hearing Brief to VA. Consequently, the Board resolves all doubt in his favor and finds that his residuals of an injury to RLE, Muscle Group XII status-post residuals of shell fragment wound more nearly approximates a moderately severe disability of Muscle Group XII. Therefore, a rating of 20 percent under DC 5312 is warranted.

However, the Board finds that a 30 percent rating is not warranted for the Veteran's residuals of an injury to RLE, Muscle Group XII, status-post residuals of shell fragment under DC 5312. Here, no through-and-through or deep penetrating wound has been shown, nor did the Veteran experience shattering bone fracture or open comminuted fracture with extensive debridement, prolonged infection, or sloughing of soft parts, or intermuscular binding and scarring. There has been no showing of ragged, depressed, and adherent scars that indicate wide damage to muscle groups in missile track, loss of deep fascia or muscle substance, or soft flabby muscles in wound area have been documented. Furthermore, the Veteran did not experience abnormal muscle swelling and hardening of the muscles in contraction, and severe impairment of function has not been shown. Consequently, as the Veteran's residuals of an injury to RLE, Muscle Group XII status-post residuals of shell fragment wound does not more nearly approximate a severe disability of Muscle Group XII, a rating in excess of 20 percent under DC 5312 is not warranted.

As a final matter, the Board notes that the Veteran testified that he had pain that radiated from his right knee into his foot that was associated with his residuals of an injury to RLE, Muscle Group XII status-post residuals of shell fragment wound. The objective evidence of record, however, fails to demonstrate that he has a separate peripheral nerve disability. Moreover, 38 C.F.R. § 4.55 (a) states that 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. In the instant case, the Veteran's complaints of pain that affect the same functions associated with his muscle group disability. Consequently, as separate rating for neurologic impairment is not warranted. (Parenthetically, the Board observes that separate ratings have been awarded for several right knee disorders and right knee scar). 

 

 

MATTHEW W. BLACKWELDER

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	Carole Kammel, 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.