Citation Nr: 0000241 Decision Date: 01/05/00 Archive Date: 01/11/00 DOCKET NO. 99-00 050A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New Orleans, Louisiana THE ISSUE Entitlement to an increased evaluation for residuals of a gunshot wound to the right thigh, currently evaluated as 30 percent disabling. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD Jonathan E. Taylor, Associate Counsel INTRODUCTION The appellant served on active duty from October 1942 to July 1945. This case comes before the Board of Veterans' Appeals (the Board) on appeal from an August 1998 rating decision of the New Orleans, Louisiana, Department of Veterans Affairs (VA) Regional Office (RO). FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the appellant's appeal has been obtained by the agency of original jurisdiction. 2. The appellant's service-connected residuals of a gunshot wound of the right thigh are manifested by moderate impairment from damage to Muscle Groups XIII and XIV. CONCLUSION OF LAW The criteria for an evaluation in excess of 30 percent for residuals of a gunshot wound of the right thigh have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. § 4.73, Diagnostic Codes 5313, 5314 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSION Service medical records reveal that in September 1994 the appellant sustained a gunshot wound from enemy machine gun fire, which entered the posterior thigh in the lower third, went medial to the femur, and came out of the anterior thigh in the middle third. He was initially treated with plasma and morphine. He was transferred to an evacuation hospital, with diagnosis of penetrating through and through gunshot wound to the midportion of the right thigh. The wound was treated with debridement, sulfide drug, and plasma. Three days later he was transferred to a general hospital in Oxford, England. X-ray examination of the right thigh was negative for foreign body [FB] or fracture. No nerve injury was found. Examiners noted on several occasions that the appellant's wound was dressed and doing excellently. The appellant was transferred in December 1944 to a hospital in Mississippi for treatment of unrelated rheumatoid arthritis. On December 17, 1944, it was noted that the appellant had a slight bulge over the right anterior thigh above the area where the bullet emerged. In July 1945 a medical Board of Officers noted that the appellant had recovered fully from the gunshot wound to the thigh. In May 1998 the appellant was treated as a VA outpatient for chronic pain in his right leg. The appellant reported that he had difficulty walking and climbing stairs. He explained that he often thinks that he has lifted his right leg high enough only to discover that it is dragging. At a June 1998 VA examination, the appellant complained of difficulty driving because of an inability to sense the amount of pressure he placed upon the pedals of his vehicle. He added that he had difficulty climbing stairs and walking. He complained of weakness in the right lower extremity. He complained of a sensation that his leg might give out at any time. He reported episodes of stumbling due to weakness in that extremity. He complained also of chronic pain, which he described as an aching sensation, in the right thigh and a feeling of knotting up of muscle in the right thigh. The appellant reported that he had been attack by a German tank in September 1944. He stated that he had received a gunshot wound to the right thigh. He stated that the bullet entered through the rear of his thigh and exited through the front. He stated that he lay wounded for several hours before being taken to a medical aid station. He stated that he was given plasma and later sent to a British hospital. He stated that he was sent later to an American hospital, where an unknown surgical procedure was performed. He stated that the wound was closed at a much later time. The muscles, which were damaged and destroyed, were muscle groups XIII and XIV. No evidence was found to support injury of any bony structure, nerves, or vascular structure. The appellant reported no flare-ups of residuals of the muscle injury. The examiner noted that the appellant's gait was moderately wide-based. The examiner noted that the entry wound was a 1.5 centimeter by 1.0 centimeter irregularly shaped, very slightly depressed wound, which was smooth and nontender. There was no associated disfigurement or tissue loss. The examiner stated that the exit wound was a 4.5 centimeter by 4.0 centimeter star-shaped depressed scar, which was smooth, with mild tissue loss and only mild disfigurement. The wound was nontender. The examiner noted that the muscle groups penetrated were XIII and XIV. There was no adhesions or tendon damage. There was no evidence of bone or joint damage. There was decreased sensation to pinprick of the right thigh and there were areas of the lower extremity that showed decreased sensation to pinprick including the bottom of the foot. Motor strength was 5/5 in the right lower extremity except for mild weakness with regard to dorsiflexion of the right foot. There was no evidence of muscle herniation. No joint involvement was found. The examiner diagnosed status post gunshot wound to the right thigh with damage to muscle groups XIII and XIV, with residual sensory loss in the right lower extremity and mild decrease in motor strength of the right lower extremity. The appellant's increased rating claim is well grounded. 38 U.S.C.A. § 5107(a) (West 1991); Murphy v. Derwinski, 1 Vet. App. 78 (1990). This finding is based on the appellant's contention regarding the increased severity of his service-connected residuals of a gunshot wound to the right thigh. See Jones v. Brown, 7 Vet. App. 134 (1994); Proscelle v. Derwinski, 2 Vet. App. 629 (1992). All relevant facts have been properly developed, and no further assistance to the appellant is required to comply with the duty to assist mandated by 38 U.S.C.A. § 5107(a) (West 1991). Disability evaluations are determined by the application of VA's Schedule for Rating Disabilities, which is based on average impairment of earning capacity. 38 U.S.C.A. § 1155 (West 1991); 38 C.F.R. § 4.71a (1999) (Schedule). Separate diagnostic codes identify the various disabilities. Consideration of the whole-recorded history is necessary so that a rating may accurately reflect the elements of disability present. 38 C.F.R. § 4.2 (1999); Peyton v. Derwinski, 1 Vet. App. 282 (1991). Where entitlement to compensation has already been established, and an increase in the disability rating is at issue, the present level of disability is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994); Peyton, 1 Vet. App. 282; 38 C.F.R. §§ 4.1, 4.2 (1999). An evaluation of the level of disability includes consideration of the functional impairment of the appellant's ability to engage in ordinary activities, including employment. 38 C.F.R. § 4.10 (1999). Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for the rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (1999). A disability of the musculoskeletal system is primarily the inability, due to damage or infection in parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination and endurance. It is essential that the examination on which ratings are based adequately portray the anatomical damage, and the functional loss, with respect to all these elements. 38 C.F.R. § 4.40 (1999); see DeLuca v. Brown, 8 Vet. App. 202, 205-06 (1995). As regards the joints, the factors of disability reside in reductions of their normal excursion of movements in different planes. Inquiry will be directed to less or more movement than normal (due to a variety of reasons, to include ankylosis), weakened movement, excess fatigability, incoordination, impaired ability to execute skilled movements smoothly, pain on movement, swelling, or deformity or atrophy of disuse. 38 C.F.R. § 4.45 (1999). The factors to be considered in the evaluation of disabilities residual to healed wounds involving muscle groups are found under 38 C.F.R. §§ 4.55, 4.56 (1999). 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. 38 C.F.R. § 4.55(a). 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) (1999). Muscle injuries are rated for impairment of the muscles damaged by the shell or shrapnel fragments. 38 C.F.R. §§ 4.56, 4.73 (1999). The appellant's service-connected residuals of a gunshot wound of the right thigh are currently rated under Diagnostic Code 5314 for damage to Muscle Group XIV, the anterior thigh group affecting extension of knee, simultaneous flexion of hip and flexion of knee, tension of fascia lata and iliotibial band, and acting with hamstring in synchronizing hip and knee. A 10 percent disability evaluation is assigned for moderate muscle disability. For a moderately severe muscle disability a 30 percent rating is assigned. For a severe muscle disability a 40 percent rating is assigned. A through-and-through injury with muscle damage shall be evaluated as no less than a moderate injury for each group of muscles damaged. 38 C.F.R. § 4.56(b) (1999). Muscle injuries in the same anatomical regions, e.g., the muscle groups of the pelvic girdle and thigh (38 C.F.R. § 4.73, Diagnostic Codes 5313-5318 (1999)), will not be combined, but instead, will be evaluated for the most severely injured muscle group and increased by one level of severity, i.e., moderate, moderately severe, severe, to reflect the combined evaluation for the affected muscle groups. 38 C.F.R. § 4.55(b), (e) (1999). The type of injury associated with a moderate muscle disability is described as being from 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. History should include evidence of in-service treatment for the wound, as well as a record of consistent complaints of symptoms of muscle wounds, particularly lower threshold of fatigue after average use, affecting the particular functions controlled by the injured muscles. Objective findings should include 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. 38 C.F.R. § 4.56(d)(2) (1999). The type of injury associated with a moderately severe muscle disability is described as being from through-and-through or deep penetrating wounds by small high-velocity missiles or large low-velocity missiles, with debridement, prolonged infection, sloughing of soft parts or intermuscular scarring. History should include prolonged hospitalization in service for treatment of a wound of severe grade, and consistent complaints of symptoms of muscle wounds. Objective findings should include relatively large entrance and (if present) exit scars indicating the track of the missile through important muscle groups, with moderate loss of deep fascia, or moderate loss of muscle substance or moderate loss of normal firm resistance as compared with the sound side. 38 C.F.R. § 4.56(d)(3) (1999). The type of injury associated with a severe disability of muscles includes a deep penetrating wound due to high velocity missile, or explosive effect of high velocity missile, or a shattering bone fracture with extensive debridement or prolonged infection and sloughing of soft parts, intermuscular binding and cicatrization. The history and complaint should include cardinal signs and symptoms of muscle disability (loss of power, weakness, lowered threshold of fatigue, fatigue-pain, impairment of coordination, and uncertainty of movement) worse than those shown for moderately severe muscle injuries, and if present, evidence of inability to keep up with work requirements. Objective findings show extensive ragged, depressed, and adherent scars of skin so situated as to indicate wide damage to muscle groups in the track of the muscle. Tests of strength, endurance, or coordination movements compared with the corresponding muscles of the uninjured side indicated severe impairment of function. An X-ray may show minute multiple scattered foreign bodies. Palpation of the muscles shows moderate or extensive loss of deep fascia or of muscle substance, soft or flabby muscles in the wound area. 38 C.F.R. § 4.56(d)(4) (1999). The appellant's gunshot wound was a through-and-through injury. Therefore, the injury is rated for at least moderate muscle disability. Tissue loss was not present around the entry wound. Although the exit wound is larger than the entry wound, neither is relatively large. Only mild tissue loss was noted. Accordingly, the appellant's disability more nearly approximates the criteria for moderate disability than the criteria for moderately severe disability. However, because muscle injuries to two muscle groups, XIII and XIV, in the same anatomical region are shown the evaluation of the appellant's disability is increased one level from moderate to moderately severe. Accordingly, a 30 percent disability is appropriate. Because the appellant is assigned currently a 30 percent disability rating, the preponderance of the evidence is against an increased disability rating. ORDER An increased disability rating for residuals of a gunshot wound of the right thigh is denied. JACK W. BLASINGAME Member, Board of Veterans' Appeals