BVA9502887 DOCKET NO. 93-08 377 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Portland, Oregon THE ISSUE Entitlement to a compensable evaluation for residuals of a gunshot wound of the left hip. REPRESENTATION Appellant represented by: Oregon Department of Veterans' Affairs ATTORNEY FOR THE BOARD Sandra L. Smith, Associate Counsel INTRODUCTION The veteran had active service from August 1967 to June 1969. This appeal is before the Board of Veterans' Appeals (the Board) from a March 1992 rating decision of the Regional Office (RO) which denied an increased (compensable) evaluation for residuals of a gunshot wound of the left hip. The case is now ready for appellate review. CONTENTIONS OF APPELLANT ON APPEAL The veteran contends that the current residuals of a gunshot wound to his left thigh are of sufficient severity to warrant a compensable disability evaluation. He argues that he had a significant injury, requiring 4 months hospitalization, while in service. Since his discharge from service he has continued to experience pain and some loss of motion which have increased in severity recently. The veteran requests that any and all reasonable doubt be resolved in his favor. 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 evidence warrants an increased disability evaluation, not in excess of 20 percent, for residuals of a gunshot wound of the left hip. FINDINGS OF FACT 1. All relevant available evidence necessary for an equitable disposition of the veteran's appeal has been obtained by the RO. 2. The veteran incurred a gunshot wound to the left hip as a result of enemy action in May 1968. 3. Current findings of the left hip disability include residual scarring, complaints of pain, and some limitation of motion and weakness; findings commensurate with moderate muscle damage to Muscle Group XVII are demonstrated. 4. The veteran's service-connected disability does not produce an exceptional or unusual disability picture with related factors such as need for frequent hospitalization or marked interference with employment. CONCLUSIONS OF LAW 1. The criteria for an evaluation of 20 percent for the residuals of a gunshot wound of the left hip have been met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §§ 3.321(b)(1), 4.1, 4.2, 4.7, 4.40, 4.41, 4.47-4.56, 4.72, 4.73, Code 5317 (1994). 2. The criteria for an evaluation in excess of 20 percent for the residuals of a gunshot wound of the left hip have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §§ 3.321(b)(1), 4.1, 4.2, 4.7, 4.40, 4.41, 4.47-4.56, 4.72, 4.73, Code 5317 (1994). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS A person who submits a claim for benefits has the burden of submitting evidence sufficient to justify a belief by a fair and impartial individual that the claim is well grounded. 38 U.S.C.A. § 5107. After reviewing the evidence on file we conclude that the veteran's claim is well grounded within the meaning of 38 U.S.C.A. § 5107(a). That is, the claim presented is not inherently implausible. Furthermore, we conclude that all facts pertinent to the plausible claim have been developed and that as such, there is no further duty to assist in developing the claim as contemplated by 38 U.S.C.A. § 5107(a). The Board must determine whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which case the claim must be denied. 38 U.S.C.A. § 5107(a); Gilbert v. Derwinski, 1 Vet.App. 49 (1990). Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. Where there is a question as to which of two evaluations shall be applied, the higher evaluations will be assigned if the disability more closely approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability, such doubt will be resolved in favor of the veteran. 38 C.F.R. § 4.3. An extraschedular evaluation will be assigned if the case presents an unusual or exceptional disability picture with such related factors as marked interference with employment or frequent period of hospitalization such as to render impractical the application of the regular schedular standards. 38 C.F.R. § 3.321(b)(1). The entire history of the disability will be reviewed. Schafrath v. Derwinski, 1 Vet.App. 589 (1991). The veteran is currently assigned a noncompensable disability rating for muscle injury to Muscle Group XVII, of the thigh muscles. 38 C.F.R. § 4.73, 5317. These muscles have as their function postural support of the body, extension of the hip, and abduction of the thigh. The noncompensable rating contemplates slight muscle injuries to the group affected. A higher rating would be assignable if there was moderate muscle damage. Code 5317. 38 C.F.R. § 4.56 defines a slight disability as one which would be the consequence of a simple wound of muscle without debridement, infection or effects of laceration. Objective findings of such injury would include a minimum scar with slight, if any, evidence of fascia defect or of atrophy or of impaired tonus. In addition, there would be no significant impairment of function and no retained metallic fragments. A moderate injury as defined by 38 C.F.R. § 4.56 is one which would result from a through and through or deep penetrating wound by a single bullet or small shell or shrapnel fragment. The history of such an injury would show hospitalization for treatment of the wound with consistent complaint of one or more of the cardinal symptoms of muscle wounds. Objective findings of such injury would include residual scars, signs of moderate loss of deep fascia or muscle substance or impairment of muscle tonus, and definite weakness or fatigue in comparative tests. See also 38 C.F.R. § 4.72. A moderately severe disability is one which would be the consequence of a through and through or deep penetrating wound by a high velocity missile of small size or a large missile of low velocity. Objective findings of such injury would include impairment of strength and endurance of the muscle group involved, moderate loss of deep fascia, or moderate loss of muscle substance. 38 C.F.R. §§ 4.56, 4.72. Any analysis of the disability evaluation to be assigned for the residuals of a missile injury must begin with a historical review of the extent of the original traumatic injury, and the course of the residual disability in the ensuing years. See 38 C.F.R. §§ 4.1, 4.2, 4.40, 4.41, 4.47-4.56, 4.72; Schafrath v. Derwinski, 1 Vet.App. 589 (1991). In May 1968 the veteran sustained a gunshot wound to the left hip as a result of enemy action. The service medical records show the wound was debrided twice. There was no artery or nerve involvement. X-rays taken at that time revealed a small cortical fracture at the level of the greater trochanter of the left hip. A hospital discharge report shows that the veteran was hospitalized from May 1968 to August 1968; during that time period he underwent physical therapy for his left hip and leg to improve range of motion and muscle strength. By September 1968, the veteran had complaints of occasional pain in the area of the wound, but he noticed no restriction of his activities. He was to be discharged to regular duty. When examined by the VA in September 1969 the scar on the left hip was described as a linear, slightly curved, diagonal, well healed postoperative scar about 7 cm long on the lateral side of the hip just below the iliac crest. It was noted that the area below the iliac crest was somewhat depressed as though due to atrophy. The veteran indicated that he avoided putting too much stress on the left hip joint. The diagnoses were: 1. Disfiguring scar, left hip, residuals of gunshot wound. 2. Gunshot wound, left hip, residuals of, with nerve involvement. Following this examination a 20 percent disability rating was assigned for the residuals of a gunshot wound of the left hip with nerve involvement. The veteran was examined again by a VA examiner in June 1974. The examination report noted that the veteran continued to complain of some pain and discomfort. Physical examination revealed that the scar was depressed, "probably due to some muscular atrophy in the region." However, there was no atrophy of the musculature of the left thigh; nor was there any limitation of motion noted. Also, no loss of strength was noted. The diagnosis was: "Residuals of [g]un shot wound left hip service-connected but without nerve involvement." The disability rating was reduced to noncompensably disabling after this examination. A medical report, dated in October 1988, from a private orthopaedic physician, indicated that the veteran was seen with complaints of occasional pain with various movements of the left leg and hip. However, the veteran denied any loss of function. Physical examination revealed a relatively full range of hip motion except for internal rotation of the left hip which was restricted to 10 degrees. It was noted that the veteran had a good gait and appeared quite strong. The physician concluded that "while he doesn't have a great deal of physical impairment it's pretty obvious that he has limited internal rotation and there are some calcareas changes in the capsule of the hip joint which very well could be related to that trauma." The veteran was afforded a VA orthopaedic examination in May 1989. The examination report noted complaints of occasional sudden jabbing pain. The veteran also related how his hip would "lock up" sometimes while he was in a squatting position or lying down. Physical examination revealed a well healed scar which was acutely tender to deep pressure directly over the scar. Some limitation of left hip rotation movement was noted. A statement from a private physician, dated in February 1992, indicated that the veteran complained of episodic right [sic] hip pain since injury in service. For the past year he had experienced daily pain. Physical examination revealed a nontender scar with normal range of motion of the right [sic] hip. A subsequent written statement from the veteran explained that he had seen his regular health plan doctor in February 1992 who was an internist - not an orthopaedic specialist. The veteran also pointed out that the physician did not seem "involved" in the examination and in his medical report the physician referred to the wrong leg. A medical report, dated in December 1992, from a private orthopaedic surgeon, indicated that the veteran's main complaint was of an aching sensation in the upper buttock and lateral aspect of the hip. It intensified with prolonged sitting. There was also some discomfort with prolonged walking. There was mild discomfort with direct pressure and increased aching with weather change. Physical examination revealed a slight Trendelenburg sag with full weight bearing on the right hip. This was apparently caused by the reported discomfort but might possibly result of weakness. There was no obvious atrophy. Motor and sensory exam was normal. Flexion, extension, abduction and adduction motions of both hips were symmetrical. Internal rotation of the hip was limited to 25 degrees on both hips. External rotation of the left hip was limited to 30 degrees. The examiner noted that there was a 3 1/2 inch scar just above the greater trochanter on the lateral aspect of the hip extending up to the iliac crest. There was a fascia defect under the scar. There was also some discomfort noted at the upper aspect of the scar. The examiner concluded that: This [veteran] does show some permanent impairment of his hip. He has some limitation of external rotation and some apparent weakness of abduction of the hip with full weightbearing during Trendelenburg testing. I do not find any clear-cut neurologic deficit. I feel that this impairment is permanent and will continue to give him some subjective discomfort with activity. Written statements from the veteran, dated in January 1993 and March 1993, stated that his left leg had become less useful and caused him considerable more discomfort today than it did in 1969 when he was originally granted a 20 percent disability rating. The veteran related several different activities he was unable to participate in because of lack of strength in his left leg. He also described the "ache" he experienced daily in his leg. He had consistently told examiners that he did experience numbness or tingling in his leg below and behind the area of the scar. If he touched the scar he would get the sensation of that touch lower than and behind the scar. He expressed his belief that the doctrine of reasonable doubt should require an increase in the evaluation for his left hip disability. The Board finds that the current evidence, when viewed in conjunction with the in-service injury and taking into account the doctrine of reasonable doubt, does demonstrate moderate muscle damage to Muscle Group XVII. 38 C.F.R. §§ 4.47-4.56, 4.73, Code 5317. The evidence does show a history of an injury which required debridement of the wound and several months hospitalization as well as consistent complaints of some pain and discomfort with motion from the muscle wounds. In addition, objective findings from the veteran's recent private examination, in December 1992, included a residual scar, signs of loss of fascia beneath the scar, and some definite weakness in comparative tests. Thus, the evidence does show a moderate injury to Muscle Group XVII. Consequently a 20 percent disability rating is warranted for the veteran's left hip disability. However, the Board further finds that an increased evaluation, in excess of 20 percent, is not warranted. The objective medical findings do not show impairment of strength and endurance of the muscle group involved, moderate loss of deep fascia, or moderate loss of muscle substance. 38 C.F.R. §§ 4.56, 4.72. Thus the Board concludes that an increased evaluation, in excess of 20 percent, for the veteran's left hip disability is not warranted. In reaching our decision consideration has been given to the potential application of the various provisions of 38 C.F.R. Parts 3 and 4, whether or not they were raised by the veteran as required by Schafrath v. Derwinski, 1 Vet.App. 589 (1991). We also do not find that the evidence presents such an exceptional or unusual disability picture as to render impractical the application of the regular schedular criteria, so as to warrant the assignment of an extraschedular evaluation under 38 C.F.R. § 3.321(b)(1). There is no evidence of frequent periods of hospitalization or marked interference with employment due to this disorder. ORDER A 20 percent disability evaluation for residuals of a gunshot wound of the left hip is granted subject to the law and regulations governing the award of monetary benefits. MICHAEL D. LYON 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.