BVA9509791 DOCKET NO. 93-10 611 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to an increased rating for residuals of shrapnel wounds of the left thigh, currently rated as 10 percent disabling. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD K. J. Kunz, Associate Counsel INTRODUCTION The veteran served on active duty from May 1943 to October 1945. This appeal arises from a May 1992 rating decision of the St. Petersburg, Florida, Regional Office (RO). In that decision, the RO confirmed the current 10 percent rating for residuals of shrapnel wounds of the left thigh. CONTENTIONS OF APPELLANT ON APPEAL The veteran contends that a higher disability rating is warranted for the residuals of shrapnel wounds of his left thigh. He asserts that he has increasing pain and weakness in his left leg that limits his ability to stand for prolonged periods or to walk more than a short distance. DECISION OF THE BOARD The Board, in accordance with the provisions of 38 U.S.C.A. § 7104 (West 1991), has reviewed and considered all of the evidence and material of record in the veteran's claims file. Based on its review of the relevant evidence in this matter, and for the following reasons and bases, it is the decision of the Board that the record supports a disability rating of 10 percent for scars as residuals of shrapnel wounds of the left thigh, and a separate rating of 10 percent for muscle injury as a residual of shrapnel wounds of the left thigh. FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the veteran's appeal has been obtained by the originating agency. 2. The veteran had penetrating shrapnel wounds to the left thigh in service. 3. The veteran has three scars from shrapnel wounds of the left thigh, including one scar that is tender. 4. The veteran has consistently complained of weakness in the left leg. 5. Loss of muscle strength of the left leg, compared with the right, is not shown on the most recent VA testing, but medical reports over several years document such muscle weakness. 6. Neither an exceptional nor an unusual disability picture has been presented so as to render impractical the application of the regular schedular standards. CONCLUSIONS OF LAW The criteria for a rating of 10 percent for scars as residuals of shrapnel wounds to the left thigh have been met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §§ 3.321(b), 4.1, 4.2, 4.7, 4.10, 4.25, 4.40, 4.41, 4.46, 4.48, Part 4, Codes 7800-7805 (1994). The criteria for a rating of 10 percent for muscle injury as a residual of shrapnel wounds to the left thigh have been met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §§ 3.321(b), 4.1, 4.2, 4.7, 4.10, 4.25, 4.40, 4.41, 4.48, 4.50, 4.51, 4.54, 4.56, Part 4, Code 5314 (1994). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Board notes that the veteran's claim is well grounded within the meaning of 38 U.S.C.A. § 5107 (West 1991). A well grounded claim is a plausible claim, one which is meritorious on its own or capable of substantiation. Murphy v. Derwinski, 1 Vet.App. 78, 81 (1990). We are also satisfied that all relevant facts have been properly developed, so that the statutory obligation of the Department of Veterans Affairs (VA) to assist the veteran in the development of his claim has been satisfied. 38 U.S.C.A. § 5107 (West 1991). The report of the veteran's entrance examination in May 1943 indicated no defects. Service medical records indicated that in January 1944 the veteran received a severe penetrating wound in the left thigh from an exploding grenade. The wound was debrided and foreign bodies were removed. A treatment record from February 1944 noted that the wounds had closed quite well, and that a large wound of the anterior thigh still had some granulation. In May 1944, the veteran was seen with infectious hepatitis, and it was noted that a wound on the left thigh was incompletely healed. The report of the October 1945 separation examination noted a shrapnel wound of the left thigh, slightly symptomatic, with a 7 inch scar. In June 1949, J. Melvin Young, M.D., wrote that the veteran complained of cramps in the posterior left thigh and weakness in the leg when he walked or ran. Examination revealed three scars on the left thigh. One scar on the anterior lateral surface of the thigh had a fascial defect and muscle hernia. The scars were all freely movable and healed, with no keloid or drainage. The circumference of the legs was equal. There were no sensory changes or edema, and function was not impaired at all. In January 1955, Rhett E. Enzor, M.D., wrote that the veteran complained of numbness, tenderness and pain in the left leg that had recently become more severe. Examination revealed paresthesia of the outer surface of the left thigh, and a large tender scar with destruction of muscle on the anterior left thigh. In June 1955, J. R. Emlet, M.D., of the Medical Center Clinic in Pensacola, Florida, reported on an examination of the veteran for compensation and pension purposes. Dr. Emlet reported that in 1944 the veteran sustained multiple shrapnel wounds to the left thigh, and that he was hospitalized and operated on for removal of fragments and debridement of the wounds. The veteran reported that after recovery he was returned to duty, but that he continued to have some pain at the sites of the wounds, and numbness over the lateral aspect of the thigh. On examination in 1955, the veteran reported that he worked as a carpenter. He reported that his leg bothered him some in climbing, and that with changes of weather he had some aching in the thigh. He reported that he continued to have some paresthesia over the left lateral thigh. He reported that his left knee gave way occasionally, and he reported some tiredness in left calf with extended walking. Examination revealed a scar that measured 1½ by 6 inches that was well healed and very slightly tender to firm palpation. There was a palpable fascial defect beneath the scar, but no evidence of muscle hernia. There was a second scar that measure ½ by 2 inches, and was non-tender. There was an area "approximately the size of one's hand" that was hyperesthetic to pin prick. There was no wasting of the muscles. There was good function of both hips and knees, and reflexes were equal bilaterally. In July 1963, John L. Arzaga, M.D., wrote that he had examined the veteran, who complained of worsening pain in both hips, the right chest, and the back. On examination, Dr. Arzaga noted a painful long antero-medial scar of the left thigh, with some herniation of the muscles. On VA orthopedic examination in September 1963, the veteran complained of bursitis in his side and shoulders, and increased pain in his left hip and thigh. Reports of x-rays indicated that the left hip and both knees were within normal limits. The spine was normal on examination, and straight leg raising was negative bilaterally. Examination of the left thigh revealed three scars, all well healed non-tender. No gross loss of muscle tissue was observed, and deep tendon reflexes were within normal limits. The claims file contains treatment records from January 1968 through September 1973 from Orthopedics at the Medical Center Clinic in Pensacola, and notes from C. F. Smith, Jr., M.D., the physician who treated the veteran there. The veteran reported the onset in January 1968 of left hip and leg pain, occurring on the job while laying brick. He reported an old shrapnel wound that he had never had difficulty with since the original healing of the wound itself. He reported that he currently had pain at the hip and the back of the femur. Dr. Smith observed lumbar muscle spasm, and noted that the veteran was guarding his back and left leg. X-rays revealed degenerative changes of the lumbar spine at L5-S1. X-rays revealed no lesions or abnormalities of the femur. In October 1970, George W. Barrow, Jr., M.D., wrote that he had seen the veteran for two years with low back and left sciatic pain. Dr. Barrow wrote that the veteran felt that part of the low back trouble was due to his service-connected shrapnel injury of the left thigh. In July 1974, Dr. Barrow wrote that his office had treated the veteran since 1961, and had treated him for over six years for low back spasm with left sciatic syndrome. He wrote that the veteran felt that alteration of ambulatory movement due to his shrapnel wound had contributed over the years to the development of degenerative joint disease of the lower spine. Dr. Barrow wrote that, "This may have merit but would be difficult to prove." In May 1975, George S. Kerr, M.D., reported that since receiving shrapnel wounds during the Second World War, the veteran was doing well except for minor discomfort in the left thigh. The veteran's chief complaint was back pain that he related to an industrial injury several weeks earlier. He also complained of pain in anterior aspect of the left thigh, and some knee pain. Examination revealed equal leg lengths, and equal thigh and calf dimensions. A 5 by 1¼ inch scar on the anterior aspect of the left thigh had a small muscle hernia and was slightly tender, with no paresthesia. A 2 inch scar on the medial aspect of the left thigh was non- tender, with no hernias noted. There was full range of motion in the upper and lower extremities. Neurologic examination was within normal limits. Sensory function was slightly depressed on lateral aspect of the left calf and over the anterior aspect of the left thigh. The sensory depression was reported as noted since the wound to his thigh, and not associated with the recent back injury. Straight leg raising on the left produced back pain, but no leg pain. X-rays of the femur revealed no fracture, and no metallic fragments. Record from 1979 and 1980 indicated that John E. Wimberly, M.D., treated the veteran for heart disease, including bypass surgery. 1979 and 1981 statements from Al C. Fulford, D.C., indicated that the veteran reported injuring his back in 1979 as a result of making an awkward step while getting out of a van, and reinjuring his back in 1980. In January 1981 and March 1982 statements, Maxwell G. Carroll, M.D., noted scars on the veteran's left thigh and weakness of the left lower extremity. He noted that the veteran had a loss of muscle tissue and progressive weakness of the left thigh. He opined that the veteran was 50 percent disabled due to his war wounds, and 100 percent disabled overall, including his heart disease and surgery. In January and May 1981 statements, John W. Crosby, M.D., wrote that the veteran had heart surgery in 1979 and 1980, and that he had degenerative disc disease and degenerative arthritis. In March 1982, Dr. Crosby stated the opinion that the veteran had had progression in the disability in his left leg from a shrapnel wound with muscle injury and weakness with herniation and sciatica. He opined that the veteran's disability from his leg injury had progressed from 10 percent to 50 percent disabling. In May 1981, Dr. Barrow wrote that the veteran had a long- standing disability from his leg injury, and that he was now totally disabled due to heart and other problems. In March 1982, Dr. Barrow wrote that the veteran continued to have low back , left sciatic pain, and left lower abdominal pains related to a misstep or partial fall. Dr. Barrow concurred with the veteran's belief that these problems were related to the veteran's shrapnel injury. In May 1982, Samuel L. Clifford, M.D., wrote that the veteran had had problems with his leg giving way secondary to a gunshot wound to the left thigh, and that when his leg gave way he injured his back. On examination he noted a bulging of the muscle through a defect in the fascia on the anterior lateral surface of the left thigh. In September 1982, Dr. Clifford reported that the veteran had sustained a gunshot wound of the back which had produced problems with his back since that time. In August 1986, Dr. Carroll wrote that the veteran continued to complain of pain and weakness in his left leg, and that because of his war wounds he had developed a nervous disorder, anxiety reaction. He opined that the veteran was 50 percent disabled due to his war wounds and associated anxiety reaction. The veteran was seen by Lee Thigpen, M.D., in November 1989. The veteran reported that the pain in his left thigh had increased, and that he was having occasional instability of the left knee and leg. He reported that on two occasions his knee gave way while he was walking and he fell. On physical examination, Dr. Thigpen noted decreased strength in the left thigh compare to the right, and decreased sensory perception on the left. X-rays revealed some calcification in the left knee, no bony abnormality of the left femur, and some soft tissue calcification of the left hip. Dr. Thigpen stated the opinion that the veteran's service connected injury was limiting the veteran's routine activities. On VA examination in January 1990, the examiner noted three scars, some smaller scars just above the knee, and some superficial varicosities. The veteran reported that in recent years the would leg give way, and that he had injured his back in a fall when this occurred. He was noted to walk with a limp and a broad base, apparently to protect the left leg from giving way. The examiner's impression was status post shell fragment wound of the left thigh, with probable lumbosacral strain secondary to this. In November 1991, Wayne E. Campbell, M.D., reported that he had seen the veteran regarding his left leg. The veteran reported having had several surgeries on the leg, and having some residual paresthesia which had worsened over the past several months. He reported that the lower half of his anterior thigh was very numb. Dr. Campbell noted three well- healed scars. There was no redness or obvious atrophy. Reflexes were equal bilaterally. Dr. Campbell noted some decreased sensation over an area above the patella and the lower aspect of the upper left leg. His impression was an old shrapnel wound injury with paresthesia and possible loss of some motor function. In December 1991, Dr. Carroll noted three scars on the left thigh, with pain and tenderness at the longest scar. Dr. Carroll noted weakness in the left lower extremity. He indicated that the condition had worsened over the past two years. He opined that the VA disability rating, which was 20 percent (including the rating for varicose veins), should be 50 percent. On VA examination in January 1992, the veteran reported recurrent pain at the left thigh, for which he took medication. Examination revealed a scar that was 12 centimeters long by 2.5 centimeters wide. The scar had no adhesions. The muscle was penetrated. There was no damage to tendon, bone, joint, or nerve. Muscle strength was normal, 5/5, compared with the right leg. There was no evidence of muscle hernia. On x-ray, surgical staples in the soft tissues of the thigh were noted. The left femur, knee and hip were normal. In a letter dated in October 1992, Dr. Thigpen wrote that he had been following the veteran for ten years for complaints of progressive pain and weakness in his left leg. He indicated that the veteran reported his leg giving way frequently. Dr. Thigpen wrote that he had encouraged the veteran to use a crutch or cane to walk, and that he felt that it would be a necessity to do so in the near future. On examination, Dr. Thigpen noted atrophy of the left leg and tenderness even to slight palpation. He reported that the veteran needed assistance to stand, and that he listed to the left when walking. Dr. Thigpen opined that within a few years the veteran would not be able to walk without a cane or crutch, and that wheeled transport might even become necessary. Disability evaluations are based upon the average impairment of earning capacity as determined by a schedule for rating disabilities. 38 U.S.C.A. § 1155 (West 1991); 38 C.F.R. Part 4 (1994). Separate rating codes identify the various disabilities. 38 C.F.R. Part 4 (1994). In determining the current level of impairment, the disability must be considered in the context of the whole recorded history, including service medical records. 38 C.F.R. §§ 4.1, 4.2, 4.41 (1994). An evaluation of the level of disability present also includes consideration of the functional impairment of the veteran's ability to engage in ordinary activities, including employment, and the effect of pain on the functional abilities. 38 C.F.R. §§ 4.10, 4.40 (1994). The residuals of the veteran's left thigh shrapnel wounds should be evaluated based on the disabling effect of those residuals on the veteran's industrial capacity and other activities. The disability should be evaluated according to the Diagnostic Codes appropriate to the current manifestations of the wounds as shown by the record, including scars, muscle injury, and any other functional effect on the veteran. We note that the veteran previously claimed entitlement to service connection of for low back disability as secondary to the left leg disability. This claim was denied by the Board in a July 1983 decision. Therefore, that issue is not before us on appeal. Medical records have consistently noted that the veteran has scars on his left thigh from his shrapnel wounds. Scars are evaluated under Diagnostic Codes 7800-7805. Diagnostic Code 7800 is used to evaluate scars that of the head, face or neck; and Diagnostic Codes 7801 and 7802 are used to evaluate burn scars. Under Diagnostic Code 7803, superficial scars that are poorly nourished, with repeated ulceration, are rated as 10 percent disabling. A rating under that Code is not warranted in this case, as none of the medical records regarding the scars on the veteran's left thigh have described the scars as poorly nourished or ulcerated. Under Diagnostic Code 7804, superficial scars that are tender and painful on objective demonstration are rated as 10 percent disabling. In October 1992, Dr. Thigpen stated that there was tenderness of the left leg even to slight palpation. In December 1991, Dr. Carroll noted tenderness at the longest scar. The report of the VA examination in January 1992 did not state whether or not any of the scars were tender. The most recent evidence establishes that the veteran has a least one tender scar. Therefore, a 10 percent rating is warranted under Diagnostic Code 7804. Scars are also evaluated based on the limitation of function of the part affected. 38 C.F.R. Part 4, Diagnostic Code 7805 (1994). In evaluating residuals of a shrapnel wound, it is necessary to also consider such factors as muscle hernia, and impairment of joint movement or muscle weakness due to muscle injury. 38 C.F.R. §§ 4.48, 4.50, 4.51 (1995). The RO has evaluated the residuals of the veteran's shrapnel wounds of the left thigh under Diagnostic Code 5314, for muscle injuries to muscle group XIV, the anterior thigh group. Under that Code, a slight muscle injury is rated as 0 percent disabling, a moderate injury as 10 percent, a moderately severe injury at 30 percent, and a severe injury at 40 percent. The factors considered in evaluating disabilities residual to healed wounds involving muscle groups due to gunshot or other trauma, include the type of injury, the history and complaints, and the objective findings. 38 C.F.R. § 4.56 (1994). The cardinal symptoms of muscle disability are weakness, fatigue-pain, uncertainty of movement, loss of power, lowered threshold of fatigue, and impairment of coordination. 38 C.F.R. § 4.54 (1994). Service medical records indicated that the veteran was wounded by fragments of a grenade that exploded. Shrapnel fragments penetrated his left thigh, and were surgically removed along with debridement of the wound. The penetrating shrapnel wound with debridement is characteristic of at least a moderate muscle disability under 38 C.F.R. § 4.56(b). As service medical records do not indicate prolonged infection, sloughing of soft parts, or intramuscular cicatrization, the type of injury more closely resembles an injury characteristic of a moderate disability than an injury characteristic of a moderately severe disability. 38 C.F.R. §§ 4.56(b), (c) (1994). Although muscle hernia of the largest scar was noted in the earlier history of the wound, no muscle hernia had been noted on any records of examination or treatment from 1990 forward. Testing of muscles strength as recently as the January 1992 VA examination indicated that muscle strength of the left leg was normal compared with the right leg. Medical records over the years did not report a substantial loss of muscle substance in the left leg. Moderate muscle disability is characterized by a record of consistent complaints of one or more of the cardinal symptoms of muscle wounds. A moderately severe disability is characterized by a record of consistent complaints of cardinal symptoms of muscle wounds. The veteran has complained of weakness in the left leg. In 1989 decreased strength and decreased sensory perception were noted with respect to the left thigh. Medical reports as recent as 1991 and 1992 noted progressive weakness on the left. However, the most recent VA examination showed normal muscle strength. Taking all of the evidence into consideration, the manifestations of the veteran's left leg disability, including medical reports of muscle weakness, most closely resemble the criteria for a moderate disability of muscles, in spite of the VA physician's findings of normal muscle strength on examination, and a 10 percent disability rating for muscle injury is warranted. 38 C.F.R. § 4.7 (1994). The disabilities arising from the shrapnel wounds to the veteran's left leg include scars warranting a 10 percent rating, and muscle injury warranting a 10 percent rating. Except as otherwise provided in the rating schedule, all disabilities, including those arising from a single disease entity, are to be rated separately, and then all ratings are to be combined pursuant to 38 C.F.R. § 4.25 (1994). See Esteban v. Brown, 6 Vet.App. 259, 261 (1994). Evaluation of the same disability or same manifestation under various diagnoses is to be avoided. 38 C.F.R. § 4.14 (1994). In this case, the tender scar and the muscle injury are not the same disability or the same manifestation, but two separate manifestations of the shrapnel wounds. The rating schedule does not establish that scars and muscle injuries resulting from the same wound must be evaluated under only one percentage rating. Thus, the veteran is entitled to two separate ratings of 10 percent each, for tender scars under Diagnostic Code 7804, and for muscle injury under Diagnostic Code 5314. An exceptional or unusual disability picture has not been presented such as would warrant an extra-schedular evaluation under 38 C.F.R. § 3.321(b) (1994). Specifically, there has been no demonstration of marked interference with employment or frequent periods of hospitalization so as to render impractical the application of the regular schedular criteria. We note that the veteran worked for many years after his wound, and evidence of marked interference with employment is only shown in the years after the veteran required treatment for non-service connected back problems and heart disease. ORDER A disability rating of 10 percent is granted for scars as residuals of shrapnel wounds of the left thigh. A disability rating of 10 percent is granted for muscle injury as a residual of shrapnel wounds of the left thigh. BETTINA S. CALLAWAY Member, Board of Veterans' Appeals The Board of Veterans' Appeals Administrative Procedures Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, ___ (1994), permits a proceeding instituted before the Board to be assigned to an individual member of the Board for a determination. This proceeding has been assigned to an individual member of the Board. NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West 1991), a decision of the Board of Veterans' Appeals granting less than the complete benefit, or benefits, sought on appeal is appealable to the United States Court of Veterans Appeals within 120 days from the date of mailing of notice of the decision, provided that a Notice of Disagreement concerning an issue which was before the Board was filed with the agency of original jurisdiction on or after November 18, 1988. Veterans' Judicial Review Act, Pub. L. No. 100-687, § 402 (1988). The date which appears on the face of this decision constitutes the date of mailing and the copy of this decision which you have received is your notice of the action taken on your appeal by the Board of Veterans' Appeals.