BVA9502103 DOCKET NO. 92-18 335 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Seattle, Washington THE ISSUES 1. Entitlement to an increased rating for residuals of a shell fragment wound, left buttock, with sciatic neuritis, left leg, and with limited range of motion, left hip, currently evaluated as 40 percent disabling (formerly evaluated under Diagnostic Codes 5317, 8520). 2. Entitlement to service connection for left hip disability, secondary to service-connected disability. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD K. Ehrman, Associate Counsel INTRODUCTION The veteran had honorable active service from May 1943 to December 1945. The appeal comes before the Board of Veterans' Appeals (the Board) from a June 1992 rating decision of the Seattle, Washington, Regional Office (the RO). That determination denied the claim for entitlement to an evaluation in excess of 20 percent for residuals of a gunshot wound left buttock (evaluated under Diagnostic Code 5317), and the RO denied the claim for entitlement to an evaluation in excess of 10 percent for left leg sciatic neuritis (evaluated under Diagnostic Code 8520). That determination also denied a claim for entitlement to service connection for left hip disability, secondary to service- connected disability, formerly characterized as residuals of a shell fragment wound, left buttock. The Board remanded the appeal in November 1993 for additional development of the record, and for consideration of 38 C.F.R. §§ 4.14, and 4.55(g) (1993). Upon completion of the requested development, and by rating decision of August 1994, the RO established a 40 percent evaluation for disability characterized as residuals of a shell fragment wound, left buttock, with sciatic neuritis, left leg, and with reduced range of motion, left hip (formerly evaluated under Diagnostic Codes 5317, 8520). The Board notes that the rating decision of August 1994 also found that new and material evidence had not been received to reopen a claim for entitlement to service connection for chronic low back disability. The veteran has not appealed that determination, and the issue is, accordingly, not for consideration in the appeal. CONTENTIONS OF APPELLANT ON APPEAL The veteran contends, essentially, that the RO erred when it denied the claim for entitlement to an evaluation in excess of 40 percent, for service-connected disability characterized as residuals of a shell fragment wound, left buttock, with sciatic neuritis, left leg, and with limited range of motion, left hip (formerly evaluated separately under Diagnostic Codes 5317, 8520). Specifically, the veteran contends that this service- connected disability includes pain and tenderness, weakness and fatigue, and difficulty walking for extended periods of time. As such, he claims this disability warrants an evaluation in excess of 40 percent. He also contends that service connection should be established for left hip disability, secondary to service- connected residuals of shell fragment wounds, and he has stated that he should be assigned a separate disability rating for pain associated with the service-connected disability. 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 preponderance of the evidence is against the claim for entitlement to an increased rating for residuals of a shell fragment wound, left buttock, with sciatic neuritis, left leg, and with limited range of motion, left hip, currently evaluated as 40 percent disabling (formerly evaluated under Diagnostic Codes 5317, 8520). It is also the decision of the Board that the preponderance of the evidence is against the claim for entitlement to service connection for left hip disability, secondary to service-connected disability. FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the veteran's claim has been developed. 2. In July 1944, the veteran suffered a small penetrating shell fragment wound of the left buttock, 11/2 cm., moderately severe, with subsequent removal of a retained foreign body in 1960. 3. The current residuals of a shell fragment wound, left buttock, with sciatic neuritis, left leg, and with limited range of motion, left hip, include a scar measuring a total of 15 inches, with some muscle atrophy over the left buttock, leg, and thigh. Tenderness was noted throughout the left buttock scar, anesthesia, medial to the wound, and hypesthesia lateral to the wound, with tenderness over the left sciatic notch and trochanter. There was some limitation of motion of the left hip, and hip tilt when standing, left lower than the right. Sensory testing revealed decreased pin sensation over the entire left leg including thigh, calf, foot, and the buttock below the scar. All left hip motions were associated with significant pain response. 4. Neither an unusual nor exceptional disability picture has been demonstrated so as to render impractical the application of the regular schedular standards. 5. A left hip disability, separate and distinct from service- connected residuals of a shell fragment wound, left buttock, with sciatic neuritis, left leg, and with limited range of motion, left hip, is not demonstrated. CONCLUSIONS OF LAW 1. The criteria for an evaluation in excess of 40 percent for residuals of a shell fragment wound, left buttock, with sciatic neuritis, left leg, and with limited range of motion, left hip, are not met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §§ 3.321, 4.55, 4.56, Part 4, Diagnostic Codes 5317 and 7804 (1993). 2. A left hip disability, is not proximately due to or the result of a service-connected disease or injury. 38 U.S.C.A. § 5107 (West 1991); 38 C.F.R. § 3.310 (1993). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Board has found that the veteran's claims are well grounded within the meaning of 38 U.S.C.A. § 5107 (West 1991); that is, he has presented claims that are plausible. Murphy v. Derwinski, 1 Vet. App. 78 (1990). The Board is also satisfied that all relevant facts have been properly developed. Neither the appellant, nor his representative contends that records not already associated with his claims file exist. Accordingly, the Board is satisfied that all relevant facts have been properly developed to their full extent and that the Department of Veterans Affairs (the VA) has met its duty to assist, as mandated by 38 U.S.C.A. § 5107 (West 1991). Service connection was initially established by rating decision of March 1946 for scars, left elbow, and left buttock, residuals of a shell fragmentation wound. By rating decision of December 1948, separate 10 percent disability evaluations were assigned for scar, left elbow, and for scar, left buttock, with retained foreign body near the left hip. The rating decision of April 1958 assigned a 20 percent evaluation for penetrating gunshot wound of the left buttock, with retained foreign metal body. A VA hospital summary of July 1960 reveals that the veteran was admitted in June 1960 with complaints of left buttock pain. A psychiatric consultation indicated a strong conversional element present, but in view of a retained shell fragment in the left hip, the diagnosis of conversional hysteria could not be definitely given. Surgical exploration of the left sciatic nerve was performed, and no definite evidence of cicatrix formation around the sciatic nerve was found. A metallic foreign body, posterior to the left hip was extracted from a position approximately 1 cm. lateral to the sciatic nerve, and post- operative course was uneventful, with some slight relief from pain noted. The rating decision of August 1960 continued a 20 percent evaluation for residuals gun shot wound, left buttock, following the assignment of a temporary total rating for convalescence following hospitalization in May 1960 and following surgery in June 1960. Service connection was established for left leg sciatic neuritis by Board decision of May 1963, and by rating decision of June 1963, the RO assigned a separate 10 percent evaluation for sciatic neuritis, left side. The veteran has appealed the June 1992 rating decision which denied the claim for entitlement to an evaluation in excess of 20 percent for residuals of a gunshot wound left buttock (evaluated under Diagnostic Code 5317), and which also denied the claim for entitlement to an evaluation in excess of 10 percent for left leg sciatic neuritis (evaluated under Diagnostic Code 8520). That determination also denied a claim for entitlement to service connection for left hip disability, secondary to service- connected gunshot wound, left buttock. Upon the completion of the development requested in the Board's November 1993 Remand determination, the RO, by rating decision of August 1994, established a 40 percent evaluation for disability classified as residuals of a shell fragment wound, left buttock, with sciatic neuritis, left leg, and with reduced range of motion, left hip (formerly evaluated separately under Diagnostic Codes 5317, 8520). The veteran appealed this determination claiming only that his service-connected disability warrants an evaluation in excess of 40 percent, that a separate disability evaluation for complaints of associated pain is warranted, and that service- connection for left hip disability is warranted. In assessing the severity of service-connected disability of the musculoskeletal system under the Schedule for Rating Disabilities (the Schedule herein), the VA primarily considers 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. The functional loss may be due to absence of part, or all, of the necessary bones, joints, and muscles, or associated structures, or to deformity, adhesions, defective innervation, or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by the visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and a part which becomes painful on use must be regarded as seriously disabled. A part of the musculoskeletal system which becomes little used due to disability, may be expected to show evidence of disuse, either through atrophy, the condition of the skin, absence of normal callosity or the like. 38 C.F.R. § 4.40, Part 4 (1993). Disability from injuries of muscles presents a special problem. Shrapnel and shell fragments and high velocity bullets may inflict massive damage upon muscle with permanent residuals. The principal symptoms of disability from such muscle injuries are weakness, undue fatigue-pain, and uncertainty or incoordination of movements. The physical factors are intermuscular fusing and binding, and welding together of fascial planes and aponeurotic sheaths. 38 C.F.R. § 4.50 (1993). Disabilities due to residuals of muscle injuries are evaluated by application of 38 C.F.R. §§ 4.55 and 4.56, and on the type of disability pictures appended to the rating listed. Under § 4.55, muscle injuries in the same anatomical region, i.e., pelvic girdle and thigh, will not be combined, but instead, the rating for the major group will be elevated from moderate to moderately severe, or from moderately severe to severe, according to the severity of the aggregate impairment of function of the extremity. Additionally, muscle injury ratings will not be combined with peripheral nerve paralysis ratings for the same part, unless affecting entirely different functions. 38 C.F.R. § 4.55(a) and (g) (1993). In this case, the service-connected muscle injuries are shown to involve muscles in the same anatomical region, Muscle Group XVII, including the gluteus maximus (Pelvic Girdle Group II). The severity of the veteran's service-connected disability, characterized as residuals of a shell fragment wound, left buttock, with sciatic neuritis, left leg, and with reduced range of motion, left hip, may be more specifically ascertained for VA rating purposes by application of 38 C.F.R. § 4.73, Part 4 (1993), Diagnostic Code 5317 of the Schedule. Diagnostic Code 5317 applies to injuries to Muscle Group XVII, Pelvic Girdle Group 2, including the gluteus maximus, and involves the following functions: Extension of hip (1), abduction of thigh, elevation of opposite side of pelvis (2, 3), tension of fascia lata and iliotibial (Maissat's band, acting with XIV, 6, in postural support of body steadying pelvis upon head of femur and condyles of femur on tibia (1).) Pursuant to Diagnostic Code 5317, if severe impairment is demonstrated, a 50 percent evaluation is assigned, and if moderately severe disability is demon-strated, a 40 percent evaluation is assigned. The criteria for the evaluation of residuals of a healed shell fragment wound involving muscle groups are set forth in 38 C.F.R. § 4.56 (1993). The criteria consists of the type of injury, the history and complaint, and the objective findings. A moderately severe disability of muscles involves a through-and-through or deep penetrating wound by a high velocity missile of small size or a large missile of low velocity, with debridement or with prolonged infection or with sloughing of soft parts, intermuscular cicatrization. There must be evidence of a hospitalization for a prolonged period in service for treatment of a wound of severe grade. The record must contain consistent complaints of cardinal symptoms of muscle wounds. Evidence of unemployability because of inability to keep up with work requirements, if present must be considered. The objective findings are entrance and, if present, exit scars which are relatively large and so situated as to indicate a track of a missile through important muscle groups. There are 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 the sound side. The tests of strength and endurance of the muscle groups involved (compared with the sound side) give positive evidence of marked or moderately severe loss. Under Diagnostic Code 5317, and § 4.56, severe disability of muscles involves a through-and-through or deep penetrating wound due to a high-velocity missile, or a large or multiple low- velocity missiles, or the explosive effect of a high-velocity missile, or shattering bone fracture, with extensive debridement or prolonged infection and sloughing of soft parts, intermuscular binding and cicatrization. The history and complaints are similar to the criteria set forth for a moderately severe level, in an aggravated form. The objective findings include extensive ragged, depressed and adherent scars of skin so situated as to indicate wide damage to muscle groups in the track of the missile. X-rays may show minute multiple scattered foreign bodies indicating spread of intermuscular trauma and explosive effect of the missile. Palpation shows moderate or extensive loss of deep fascia or of muscle substance. Soft or flabby muscles are in the wounded area. The muscles do not swell and harden normally in contraction. Tests of strength or endurance compared with the sound side or of coordinated movements show positive evidence of severe impairment of function. In electrical tests, reaction of degeneration is not present, but a diminished excitability to faradic current compared with the sound side may be present. Visible or measured atrophy may or may not be present. Adaptive contraction of opposing group of muscles, if present, indicates severity. Adhesion of the scar to one of the long bones, scapula, pelvic bones, sacrum or vertebrae, with epithelial sealing over the bone without true skin covering, in an area where bone is normally protected by muscle, indicates the severe type. The evidence of record demonstrates that the veteran's shell fragment wound of the left buttock results in moderately severe impairment, warranting no more than a 40 percent evaluation. The type of injury, history, complaint, and objective findings do not demonstrate a severe type injury contemplated by a 50 percent evaluation. Service medical records indicate that the veteran sustained a "moderate" and/or "moderately severe" penetrating shell fragment wound to the left buttock on July 5, 1944, with a retained foreign body in the lateral aspect of the left hip. That shell fragment was later removed in June 1960, as further detailed earlier in this opinion. At the time of the in-service injury, the veteran's injury was noted as being "small (1 1/2 cm.)," just above the left hip region, lateral aspect. X-rays showed a "small (1 cm.)" retained foreign body in the left hip region. There was no bone involvement, no indication of any muscle injuries other than to the gluteus maximus, no indication of nerve involvement, and no indication of the type of wound contemplated by a 50 percent evaluation under the schedule for severe injuries. The veteran was hospitalized for less than a month, and on August 1, 1944 he was released from the hospital. On VA examination in March 1947, a 6 cm. long, 2 cm. wide, scar was described at the lateral aspect and above the left hip joint. The scar was freely movable, and caused no limitation of motion of the left hip joint, with no deformity, no swelling, and no atrophy of muscle. On VA examination of December 1993, objective findings included a hip tilt when standing, left lower than the right. The veteran limped favoring the left leg, tandem gait was performed with some difficulty, and he was able to stand and hop on the right leg, but he was unable to hop on the left. He did a 50 percent squat. A diagonal scar was noted over the left buttock, with some retraction. There was tenderness over the left sciatic notch and trochanter. There was no tenderness over the lumbosacral midline, or the sciatic nerve. Back flexion was 50 degrees, with extension at "25/10", and thigh tilting was "25/10", rotation was "25/10", and extension on sitting was 180 degrees. Ankle, femur to back was 90 degrees, with hip flexion of 110 degrees. Straight leg raising was 65 degrees on the right, and 55 degrees on the left. Lasegue's and reverse Lasegue's tests were normal. Sensory testing revealed decreased pin sensation over the entire left leg including thigh, calf, foot, and the buttock below the scar. Motor examination revealed 5/5 strength of hip flexion/extension, abduction, adduction, knee flexion/extension, dorsiflexion, and plantar flexion, inversion/exertion, toe flexion and extension. Deep tendon reflexes were 1 plus at the quadriceps and Achilles, with his toes downgoing, and he performed a 20 percent sit-up in the supine position. Diagnoses were sciatic neuritis, by history and examination, with decreased sensation of the left leg secondary to the sciatic neuritis, and history of ulnar nerve involvement on the left. X-rays of the pelvis, left tibia and fibula, left femur, sacrum and coccyx, were all negative. A VA consultation report of December 1993 noted similar objective findings upon physical examination, warranting no more than the current 40 percent evaluation for moderately severe disability. Additionally, the examiner noted that the veteran had a very antalgic gait, favoring the left lower extremity, and the veteran had obvious difficulty in changing positions, as from sitting to standing to lying down. There was a very extensive scar over the left buttock with multiple areas of significant tenderness. The scar measured a total of 15 inches, with some atrophy noted over the left buttock, leg, and thigh. The examiner noted 2 plus pitting pre-tibia edema of both lower extremities. Subjective hypesthesia was noted involving the entire left lower extremity, especially the posterior aspect. Straight leg raising was 70 degrees on the right, 45 degrees on the left, and hip flexion was 110 degrees on the right, 70 degrees on the left, with hip extension on the right of 0 degrees and minus 5 on the left. Hip internal rotation was 35 degrees on the right and 20 degrees on the left. Hip external rotation was 40 degrees on the right and 30 degrees on the left, with hip abduction of 30 degrees on the right and 25 degrees on the left. Hip adduction was 30 degrees on the right, and 20 degrees on the left All left hip motions were associated with significant pain response, with tenderness noted throughout the left buttock scar, anesthesia, medial to the wound, and hypesthesia lateral to the wound. Reflexes appeared normal in the lower extremities, with motor power in the entire left lower extremity, including hip, knee, ankle and foot, very difficult to judge due to pain responses. However, pulses in the right and left ankles were faint compared to radial pulses. Diagnoses were as noted in the earlier VA examination report, with the addition of heart disease, with implanted pacemaker, history of gouty arthritis and history of hypertension. The Board notes the argument, raised by the veteran, that he should be rated separately for pain, presumably for left hip pain or for painful scars, as evidenced by the medical records and the veteran's testimony. However, in rating muscle injuries, the scar is one of the criteria in determining the severity of the disability and is not rated separately. The Board has considered the veteran's complaints of pain. However, greater impairment than that contemplated by the current 40 percent evaluation was not shown on examination. Similarly, the veteran claims entitlement to service connection for left hip disability, secondary to service-connected residuals of a shell fragment wound, left buttock, with sciatic neuritis, left leg, and with reduced range of motion, left hip (formerly evaluated separately under Diagnostic Codes 5317, 8520). However, neither the December 1993 VA examiner nor the consulting examiner gave a separate and distinct diagnosis of left hip disability. These examiners noted impairment due to residuals of a shell fragment wound to the left buttock, including some limited range of motion of the left hip, painful motion of the hip, and a tender scar of the left buttock. While the VA consulting examiner opined that there was a "cause and effect relationship between the shell fragment wound to the left buttock and the 'hip disability,'" the examiner entered no diagnosis of a hip disability. Furthermore, the examiner's "specific findings relative to the conclusion above relates to his extensive scarring, his tenderness on palpation of the wound, his pain on motion about the left hip, and the absent or decreased sensations in the various parts of the lower extremity." As such, a left hip disability, separate and distinct from service-connected residuals of a shell fragment wound, left buttock, with sciatic neuritis, left leg, and with limited range of motion, left hip, was not demonstrated on examination. The evaluation of the same disability under various diagnoses is to be avoided. Disability from injuries to the muscles, nerves, and joints of an extremity may overlap to a great extent, so that special rules are included in the appropriate bodily system for their evaluation. Dyspnea, tachycardia, nervousness, fatigability, etc., may result from many causes; some may be service connected, other, not. Both the use of manifestations not resulting from service-connected disease or injury in establishing the service-connected evaluation, and the evaluation of the same manifestation under difference diagnoses are to be avoided. 38 C.F.R. § 4.14 (1993). A left hip disability, separate from manifestations of service- connected disability, is not shown. Accordingly, service connection for left hip disability is not warranted, and the claim must be denied. In exceptional cases, where the schedular evaluations are found to be inadequate, an extraschedular evaluation may be awarded commensurate with the average earning capacity impairment due exclusively to the service-connected disability. 38 C.F.R. § 3.321 (1993). We do not believe that this case presents such an exceptional or unusual disability picture, inasmuch as there has been no demonstration of such related factors as marked interference with employment, or frequent periods of hospitalization so as to render impractical the application of the regular schedular standards. We accordingly conclude that the preponderance of the evidence is against entitlement to an evaluation in excess of 40 percent for residuals of a shell fragment wound, left buttock, with sciatic neuritis, left leg, and with limited range of motion, left hip. When all the evidence is assembled, the VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether the fair preponderance of the evidence is against the claim, in which case, the claim is denied. 38 U.S.C.A. § 5107 (West 1991); Gilbert v. Derwinski, 1 Vet.App. 49 (1990). The type of initial penetrating wound, the history and complaint, as well as the more recent clinically objective finding, demonstrate impairment no greater than that contemplated by the current 40 percent evaluation. The criteria for a 50 percent evaluation are not met, since the veteran's initial injury was not severe, did not include bone involvement, and the veteran had only one retained foreign body, which was subsequently removed. Furthermore, with consideration of the veteran's contentions and the evidence of record, the preponderance of the evidence is against the claim for entitlement to service connection for left hip disability, as no such separate disability of the hip has been diagnosed. ORDER An evaluation in excess of 40 percent for residuals of a shell fragment wound, left buttock, with sciatic neuritis, left leg, and with limited range of motion, left hip, is denied. The claim for entitlement to service connection for a left hip disability is denied. LAWRENCE M. SULLIVAN 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.