Citation Nr: 0007289 Decision Date: 03/17/00 Archive Date: 09/08/00 DOCKET NO. 98-11 352 DATE MAR 17, 2000 On appeal from the Department of Veterans Affairs Regional Office in San Diego, California THE ISSUES 1. Entitlement to an increased disability rating for an adherent scar of the right leg, currently evaluated as 10 percent disabling. 2. Entitlement to an increased disability rating for an adherent scar of the right heel, currently evaluated as 10 percent disabling. REPRESENTATION Appellant represented by: Military Order of the Purple Heart WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Vito A. Clementi, Counsel INTRODUCTION The appellant had active duty from October 1942 to September 1945. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 1998 rating decision of the San Diego, California Department of Veterans Affairs (VA) Regional Office (RO). The Board notes that service connection has been in effect since January 1946 for an adherent scar of the right heel resulting in limitation of motion and for a scar of the right anterior tibia. 1 By rating decision dated in January 1948, each scar was assigned a 10 percent disability rating. The appellant sought an increased rating for both the right heel and right tibia scars by statement received in May 1997. He reported that since his last evaluation, the symptoms of these service-connected disorders had worsened. The appellant also claimed service connection for disorders of the right knee and right ankle, and sought to reopen a previously denied claim of entitlement to service connection for a low back disorder. By Hearing Officer Decision dated in April 1999, an increased rating for the scars was denied. In the April 1999 hearing Officer decision, service connection was granted for a low back condition, a right knee disorder and a right ankle disability. The low back disability was assigned a 30 percent disability rating; the right ankle disorder was assigned a 20 percent disability rating, and the right knee disorder was assessed as ------------------------------------------------------------------- 1 There are also record references to the appellant having a scar of the right patella region. This resulted from an operative procedure that was occasioned as a result of a post-service industrial accident in 1948, while the appellant was employed at an aircraft manufacturing plant. See page 2, report of T.R.D., M.D., dated October 19, 1998. That scar is not service connected and will be discussed no further herein. 2 - 10 percent disabling. Review of the appellant's claim folder does not reveal that a NOD has been filed relative to these potential issues. See Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997) [where an appealed claim for service connection is granted during the pendency of the appeal, a second Notice of Disagreement must thereafter be timely filed to initiate appellate review of the claim concerning the compensation level assigned for the disability]. FINDINGS OF FACT 1. The severity of the appellant's right leg muscle injury is characterized by a well- healed, adherent scar with definite, but not marked or moderately severe weakness. 2. The appellant's right heel scar is superficial, well-healed and tender upon palpation, without resulting loss of motion. CONCLUSIONS OF LAW 1. The criteria for an increase in the 10 percent evaluation assigned for the residuals of a muscular wound of the right leg have not been met. 38 U.S.C.A. 1155, 5107 (West 1991); 38 C.F.R. Part 4, Code 5311 (1996 & 1999). 2. The criteria for an increase in the 10 percent evaluation assigned for an adherent scar of the right heel have not been met. 38 U.S.C.A. 1155, 5107 (West 1991); 38 C.F.R. Part 4, Code 7804 (1999). 3 - REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Introduction The appellant contends that the service-connected scars of the right lower leg and the right ankle have increased in severity, and requests increased disability ratings. By law, the Board's statement of reasons and bases for its findings and conclusions on all material facts and law presented on the record must be sufficient to enable the claimant to understand the precise basis for the Board's decision, as well as to facilitate review of the decision by courts of competent appellate jurisdiction. See Vargas-Gonzalez v. West, 12 Vet. App. 321, 328 (1999); Gilbert v. Derwinski, 1 Vet. App. 49, 56-57 (1990); 38 U.S.C.A. 7104(d)(1) (West 1991). With this requirement of law, and in light of the appellant's contentions, a brief factual review of evidence of record as found in the appellant's claims folder would be helpful to an understanding of the Board's decision. Because the evidence of record as to both of the appellant's claims was developed concurrently, the Board will review the evidence of record in its whole. The Board will then review the law pertinent to the appellant's claims and proceed to analyze the appellant's claims in the context of the applicable law. Factual Background The Board is required to take a veteran's entire medical history into consideration when evaluating the severity of a service- connected disability. 38 C.F.R. 4.1 (1999); Peyton v. Derwinski, 1 Vet. App. 282, 287 (1991). However, where an increase in the disability rating is at issue, the Board must look to the present level of the veteran's disability. See Francisco v. Brown, 7 Vet. App. 55 (1994). The veteran was injured in October 1944 when his right leg was caught between two landing craft. An August 1945 report of medical survey revealed an elliptical scar over the anterior tibia, adherent to the fascia of the anterior tibial muscle. In - 4 - addition, there was an adherent scar of the right heel, with shortening of the heel cord and numbness of the skin on the heel The veteran was discharged from the service due to these disabilities, and as indicated in the Introduction, service connection was granted in January 1946. A December 1947 VA examination resulted in diagnoses of (1) residuals of foot injury - adherent scar of the right heel with shortening of the Achilles tendon and numbness of the skin on the heel and (2) painful scar, right anterior tibia. It appears that there was no contact with the veteran for many decades, until the 1990s, and no relevant medical evidence was generated during that period. During the course of development of his claim for increased ratings, VA medical records generated by the Loma Linda, California VA Medical Center were obtained, reflecting treatment from February 1993 to June 1997. These reflect that the appellant was treated for leg pain attributed to osteoporosis, as well as other disorders. As to references to the appellant's lower extremities, an August 1993 medical progress note reflects that the appellant then complained of swelling of both legs and ankles, and that the edema was attributed to osteoporosis. The appellant was advised to monitor his salt intake. There were otherwise "no new complaints" recorded. In April 1994, the appellant's osteoporosis was noted to be "severe." The appellant underwent a VA physical examination in August 1997. The appellant informed examiners that he experienced decreased range of motion of the right ankle with no pain. Upon clinical evaluation, there was noted no evidence of any swelling or bony deformity of the right ankle. The appellant displayed "full" range of motion of the right ankle with 60 degrees of flexion and 30 degrees of extension. There was tenderness upon pressure of the right heel scar. The examiner observed that the appellant had normal inversion and eversion of the right ankle, and motor strength of 5/5. In part, the appellant was diagnosed to have degenerative joint disease of the right ankle. 5 - The scar of the right anterior tibia was noted to be 4.0 by 7.0 centimeters. The skin was noted to be healed but atrophic. The appellant was noted to have right anterior tibia muscle loss with no evidence of atrophy, and a motor examination of the right lower distal region resulted in normal findings. He also displayed a normal sensory examination in the right lower extremity. The examiner observed that the absence of musculature in the anterior peroneal compartment of the right tibia did not result in a functional loss, although there was a "cosmetic defect." During a May 1998 VA examination conducted in connection with the appellant's claim of service connection for a low back disorder, the appellant was noted to have intact sensation in his lower extremities. He displayed 4/5 strength in the right gastosoleus compared to the left. In part, he was diagnosed to have a post- Achilles tendon laceration on the right lower extremity with grade I weakness of the gastosoleus complex, and.a muscle herniation of the right anterior compartment of the right leg. At an August 1998 personal hearing before a hearing officer at the RO, the appellant testified in substance that his primary contention relative to his right leg and heel scar was that they caused him to limp. He stated that his heel scar was sensitive, and that if he walked on his heel he could "really feel it," but that if he walked flat then he was "all right." Transcript (T.) 2. The appellant stated that his right leg scar was tender, and he could not scratch it. He stated that it would periodically start to itch. As to his right heel scar, the appellant reported that if he rubbed his finger on the scar, he could feel it. He stated that his heel scar was somewhat numb. He added that when he was first injured, he could not feel sensation as he did in his left heel, but since the injury he had regained some sensation. The appellant underwent a VA physical examination in October 1998, conducted by T.R.D., M.D. The appellant described right ankle swelling, but no "clicking" or "popping." He reported that he limped and had experienced buckling in the right lower extremity, and described tingling of the entire right foot. Dr. T.R.D. noted - 6 - that recent radiographic examination of the appellant's right ankle revealed "significant degenerative changes." Upon clinical examination, the appellant's right ankle appeared to be somewhat stiff, and the hindfoot was inverted. The appellant had difficulty with heel and toe walking, but he did not require assistive devices in walking. Clinical examination noted that the appellant had a scar in the mid-anterolateral tibial area measuring approximately 3 centimeters in length with bulging of the muscle consistent with the anterior tibial and possible peroneal musculature. There was no instability noted. As to the appellant's right ankle, dorsiflexion was to zero degrees, and plantar flexion was within normal limits at 45 degrees. The appellant reported pain on subtalar range of motion. A scar was noted in the posterior of the right ankle, extending from the medial ankle across the Achilles' tendon. Motor strength testing of the right foot was to 5/5 on the extensor hallucis longus and 4/5 weakness of evertors. Decreased sensation was noted globally to the right foot. Radiographic examination found arthritis of the right subtalar joint, mid diffuse osteopenia of the right ankle, and narrowing and osteophyte formation at the anterior aspect of the posterior facet. Dr. T.R.D. found the appellant to have limited dorsiflexion of the right ankle, weakness in eversion of the right foot, and a laceration with muscular bulging of the mid tibial area. He observed that as to the appellant's present right ankle condition, the in-service laceration led to some loss of peroneal strength, that resulted in a loss of an ability to evert the right foot. He further observed that this loss of muscular control and balance eventually led to a chronic situation of abnormal gait mechanics, leading to degeneration of the subtalar joint. In April 1999, based largely on the findings of the October 1998 VA examination, service connection was granted for a right knee disorder and a right ankle disability on a secondary basis. 7 - Relevant Law and Regulations Disability determinations are made through the application of a schedule of ratings, which is predicated upon the average impairment of earning capacity. 38 U.S.C. 1155; 38 C.F.R. 3.321(a), 4.1. Separate diagnostic codes identify various disabilities. 38 C.F.R. Part 4. The degree of impairment resulting from a disability involves a factual determination of the current severity of the disability. Francisco v. Brown, 7 Vet. App. 55, 57-58 (1994); See Solomon v. Brown, 6 Vet. App. 396, 402 (1994). In resolving this factual issue, the Board may only consider the specific factors as are enumerated in the applicable rating criteria. See Massey v. Brown, 7 Vet. App. 204, 208 (1994); Pernorio v. Derwinski, 2 Vet. App. 625, 628 (1992). The use of the various Diagnostic Codes by VA adjudicators is "completely dependent on the facts of a particular case." See Butts v. Brown, 5 Vet.App. 532, 538 (1993). In the resolution of these issues, VA adjudicators must consider whether one rating code is "more appropriate" than another based upon an individual's relevant medical history, the current diagnosis, and demonstrated symptomatology. See Tedeschi v. Brown, 7 Vet.App. 411, 414 (1995). Any change in a Diagnostic Code by a VA adjudicator must be specifically explained. See Pernorio, 2 Vet. App. at 629. As a general matter, separate disabilities arising from a single disease entity are to be rated separately. 38 C.F.R. 4.25 (1998); Esteban v. Brown, 6 Vet. App. 259, 261(1994). However, in assigning an appropriate rating, the policy against "pyramiding" of disability awards enumerated by 38 C.F.R. 4.14 must be considered. That is, the evaluation of the same disability under various diagnoses is to be avoided. 38 C.F.R, 4.14 (1998); see Fanning v. Brown, 4 Vet. App. 225 (1993). Specific rating criteria will be discussed where appropriate below. 8 - Analysis Initial matters - well groundedness of the claims/ duty to assist/standard of proof A claim for an increased disability rating is subject to the well- groundedness requirement of 38 U.S.C.A. 5107(a) (West 1991); see Proscelle v. Derwinski, 2 Vet. App. 629, 631 (1992). In order to present a well-grounded claim for an increased rating of a service- connected disability, a claimant need only submit his or her competent testimony that symptoms, reasonably construed as related to the service-connected disability, have increased in severity since the last evaluation. Proscelle, 2 Vet. App. at 632; see also Jones v. Brown, 7 Vet. App. 134 (1994). Once it has been determined that a claim is well grounded, VA has a statutory duty to assist the veteran in the development of evidence pertinent to the claim. 38 U.S.C.A. 5107. The Board finds that the statutory duty of the VA to assist the appellant in the development of his claim has been fulfilled. In particular, reports of two relatively recent VA examinations have been associated with the veteran's claims folder. The veteran appeared and testified at a personal hearing at the RO. The Board is not aware of any evidence which might be significant to the outcome of this case which has not been obtained. Accordingly, the Board has determined that VA's statutory duty to assist the appellant in the development of his claim has been satisfied. Once the evidence has been assembled, it is the Board's responsibility to weigh the evidence. When there is an approximate balance of evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. 5107(b); 38 C.F.R. 3.102, 4.3. In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the United States Court of Veterans Appeals stated that "a veteran need only demonstrate that there is an 'approximate balance of positive and negative evidence' in order to prevail." To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. 9 - As a final initial matter, the Board notes that service connection was recently granted for two additional disabilities. Degenerative changes of the right ankle, currently evaluated as 20 percent disabling, and degenerative changes of the right knee, currently evaluated as 10 percent disabling. As noted above, VA regulations generally prohibit rating the same disease entity under different diagnostic codes. See 38 C.F.R. 4.14. Increased disability rating for an adherent scar of the right leg, currently evaluated as 10 percent disabling The Board initially notes that the veteran's service-connected right leg disability, in the area of the tibia, although denominated as an adherent scar of the right leg, has been rated by the RO under 38 C.F.R. 4.73, Diagnostic Code 5311 [muscle injuries, Muscle Group XI] rather than under 38 C.F.R. 4.118 [skin disabilities, including scars]. Rating Criteria The Board notes that during the pendency of the appeal, the rating criteria for muscle injuries were revised. See 62 Fed. Reg. 30327- 28 (June 3, 1997). Where the law or regulations change while a case is pending, the version most favorable to the claimant applies, absent congressional intent to the contrary. Karnas v. Derwinski, 1 Vet. App. 308, 312-313 (1991). As is noted in the summary section of 62 Fed.Reg. 30235-30249 (1997) the amendments to the muscle injury schedule were made to update that portion of the rating schedule to ensure that it used current medical terminology and unambiguous criteria. 2 --------------------------------------------------------------- 2 Because the provisions were not substantially changed as a result of the amendment, the Board finds that no prejudice attaches to its consideration of both the old and new criteria. As is set forth in this decision, the Board notes that as to the merits of these issues, the appellant's primary contention has not been that the service-connected leg and ankle disorders have worsened, but that they have resulted in secondary disorders. Because the appellant has secured service connection for the claimed secondary disorders, he has prevailed in this regard. See Bernard v. Brown, 4 Vet. App. 384 (1993) (Observing that when the Board addresses in its decision a question that has not - 10 - A review of the pertinent regulations reveals that no changes were made in the ratings granted for the classifications of disability from muscle injuries (slight, moderate, moderately severe, and severe). Compare 38 C.F.R. 4.56 (1996) and 38 C.F.R. 4.56(d) (1999). For VA 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). The appellant's disability of the right leg is evaluated under 38 C.F.R. 4.73, Diagnostic Code 5311, was assessed as a "moderate" disability. Under the previously applicable regulation, his right leg disability was therefore deemed as encompassing objective symptoms including entrance and (if present) exit scars linear or relatively small and so situated as to indicate relatively short track of missile through muscle tissue; and having signs of moderate loss of deep fascia or muscle substance or impairment of muscle tonus, and of definite weakness or fatigue in comparative tests. In order to be deemed a "moderately severe" disability, the symptoms would have had to approximate objective findings of entrance and (if present) exit scars relatively large and so situated as to indicate track of missile through important muscle groups. There were to be suggested indications on palpation of moderate loss of deep fascia, or moderate loss of muscle substance or moderate loss of normal firm resistance of muscles compared with sound side. The test of strength and endurance of muscle groups involved (compared with the sound side) were to have given positive evidence of marked of moderately severe loss. 38 C.F.R. 4.56 (b) and (c) (1996). Under the previously applicable Diagnostic Code 5311, the criteria for rating muscle injuries to Muscle Group XI included muscles arising from the posterior and lateral crural muscles, which includes muscles of calf, including the triceps surae (gastrocnemius and soleus), the tibialis posterior, the peroneus longus, the flexor ----------------------------------------------------------------- been addressed by the RO, in this case well-groundedness, it must consider whether the appellant has been given adequate notice to respond and, if not, whether he has been prejudiced thereby.). - 11 - hallucis longus, the flexor digitorum longus, and the popliteus. The muscle functions involved are propulsion, planter flexion of the foot, stabilizing arch, flexion of the toes and flexion of the knee. 38 C.F.R. 4.73, Diagnostic Code 5311 (1996). Under the currently applicable provision, a "moderate" disability is characterized by objective findings including entrance and (if present) exit scars linear or relatively small and so situated as to indicate relatively short track of missile through muscle tissue and some loss of deep fascia or muscle substance or impairment of muscle tonus, and loss of power or lowered threshold of fatigue when compared with the sound side. In order for a "moderately severe" disability to be found, the symptoms would need to approximate entrance and (if present) exit scars indicating tracks of missile through one or more muscle groups. Indications on palpation would include loss of deep fascia, muscle substance, or normal firm resistance of muscles compared with the sound side. The tests of strength and endurance compared with the sound side would need demonstrate positive evidence of impairment. 38 C.F.R. 4.56(d)(iii)(1999). Under the currently applicable Diagnostic Code 5311, the criteria for Muscle Group XI function include propulsion, plantar flexion of foot (1); stabilization of arch (2,3); flexion of toes (4,5); flexion of knee (6) posterior and lateral crural muscles, and muscles of the calf. (1) Triceps surae (gastrocnemius and soleus); (2) tibialis posterior; (3) peroneus longus; (4) peroneus brevis; (5) flexor hallucis longus; (6) flexor digitorum longus; (7) popliteus; (8) plantaris. A maximum 30 percent evaluation is provided where there is severe muscle damage. 38 C.F.R. 4.73, Diagnostic Code 5311 (1999). As is noted above, under both the previously applicable and the current rating criteria, a slight disability of Muscle Group )U warrants a 0 percent evaluation. A moderate disability warrants a 10 percent rating. A moderately severe disability warrants a 20 percent rating. A severe disability warrants a 30 percent rating. 38 C.F.R. 4.73, Diagnostic Code 5311 (1996); compare 38 C.F.R. 4.73, Diagnostic Code 5311 (1999). - 12 - Discussion The Board has carefully considered all of the medical and lay evidence of record with regard to the appellant's increased rating claim pertaining to the disability of his right leg. Having done so, the Board first observes that the appellant's primary contention since the onset of his claim has been that this disability (together with the service-connected scar of the right heel) has caused him to walk with a limp, and that this symptom has in turn led to degenerative joint disease of the right ankle, right knee, and lower back. (See, e.g., Hearing transcript of August 1998). As to this contention, the appellant has been granted service connection for these disorders by Hearing Officer decision dated April 1999. Accordingly, the Board's scrutiny must be upon the severity of the appellant's right leg disability, independent of those symptoms now included in those disorders granted service connection in April 1999. Any consideration of the symptoms for which service connection was then granted is prohibited by law as it would be violative of the proscription against pyramiding. See 38 C.F.R. 4.14 (1999) and Fanning, supra. In August 1997, the appellant's right leg disability was shown to be characterized by a healed scar with some atrophy of the skin. No evidence of right anterior tibial atrophy, motor strength, or sensory loss was found. Indeed, the examiner then specifically noted that although there was noted a "cosmetic defect," the appellant had no loss of function. The May 1998 VA examination report did not substantially alter the earlier findings, although a muscle herniation was identified in the area of the scar. The appellant displayed intact lower extremity sensation, and slightly diminished strength in the gastosoleus muscle. During the October 1998 examination, bulging of the muscle in the area of the scar was again noted, but no other deficits were identified. Some gait disturbance was noted, but this was ascribed to a stiff right ankle. The Board finds that the clinical evidence thus adduced does not reveal the presence of symptoms warranting the assignment of an increased (ie., a 20 percent) disability rating. Clearly, under the applicable rating criteria, the appellant - 13 - demonstrates moderate loss of deep muscle substance and minimal weakness. With application of the provisions of 38 C.F.R. 4.56(b) as both originally applicable at the outset of the claim and under the current version, the appellant is not shown to have what may be characterized as "positive evidence of marked or moderately severe" impairment of strength or endurance resulting from the service- connected right leg scar. The Board notes the Court's decision in Esteban v. Brown, 6 Vet. App. 259 (1994) [notwithstanding the provisions of 38 C.F.R. 4.14, two separate disability ratings are possible in cases in which the veteran has separate and distinct manifestations from the same injury]. With respect to 38 C.F.R. 4.73, as discussed above, scarring, to some degree, is considered part of the underlying muscle injury in the sense that it is expected that scarring will occur. However, the Board believes that it is possible to separately rate the veteran's right leg scar under 38 C.F.R. 4.118 if it may be said to constitute a separate disability. See Esteban. The Board has considered the appellant's account of periodic itching of his scar and his contention that he could "really feel it" upon palpation. That the appellant is aware of his scar by touching it, or because it would periodically itch and he would scratch it, are also not bases for a higher disability evaluation. The appellant's scar has not been shown to be tender and painful on objective demonstration, which is requisite for the assignment of a disability evaluation under 38 C.F.R. 4.118, Diagnostic Code 7804. None of the physical examination reports refer to tenderness or pain, despite what appears to be a thorough evaluation of the scar. Moreover, the scar itself does not appear to affect the function of the lower leg. See 38 C.F.R. 4.118, Diagnostic Code 7805. Accordingly, the Board does not believe that, under the circumstances, a separate disability rating is warranted for the scar as such. For the reasons and bases expressed above, the Board concludes that the preponderance of the evidence is against the veteran's claim. An increased rating is therefore denied for the service-connected right leg disability. 14 - Increased disability rating for an adherent scar of the right heel, currently evaluated as 10 percent disabling Rating Criteria The appellant's right heel scar is evaluated as 10 percent disabling, under 38 C.F.R. 4.118, Diagnostic Code 7804. Under this provision, the appellant's disorder is now evaluated under the maximum compensable rating for a superficial scar that is "tender and painful on objective demonstration." 38 C.F.R. 4.118, Diagnostic Code 7804 (1999). The only alternative provision for the evaluation of the appellant's service- connected right heel scar is Diagnostic Code 7805, providing for an evaluation based upon the limitation of function of the affected part. However, the Board again notes that as a result of the April 1999 rating decision, the appellant is now in receipt of a 20 percent disability rating for degenerative changes of the right ankle under 38 C.F.R. 4.71a, Diagnostic Codes 5010 and 5271. The former pertains to arthritis; and the latter diagnostic code provides that impairment of the ankle is evaluated upon its resulting limitation of motion. Compare 38 C.F.R. 4.71a, Diagnostic Code 5010, 5271 and 38 C.F.R. 4.118, Diagnostic Code 7805. The competent medical evidence in this matter, in particular the report of the October 1998 VA examination, reveals that to the extent that limitation of motion and/or gait disturbance has been reported, the appellant's right ankle arthritis disability, for which service connection has been recently granted, is its primary cause. In sum, the appellant's right heel loss of motion and other functional loss has been attributed to his recently service- connected disorder. To consider these symptoms in the evaluation of the appellant's right heel disorder would constitute pyramiding. The Board notes that it has given consideration to rating the right ankle scar under 38 C.F.R. 4.73 as a muscle injury, as the RO has done with respect to the right leg - 15 - disability. However, the medical evidence, in particular the report of the October 1998 examination, indicates that the entire right Achilles tendon is intact, and there is no other recent evidence referable to underlying muscle damage. In summary, for the reasons and bases expressed above, the Board concludes that the preponderance of the evidence is against the veteran's claim. The appeal is therefore denied. ORDER An increased rating for an adherent scar of the right leg is denied. An increased rating for an adherent scar of the right heel is denied. Barry F. Bohan Member, Board of Veterans' Appeals 16 -