BVA9504679 DOCKET NO. 94-31 416 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Entitlement to a rating in excess of 40 percent for gunshot wound residuals, cervical and dorsal region, muscle group XX. 2. Entitlement to a rating in excess of 30 percent for gunshot wound residuals, compound fracture, right tibia, lower third with deformity, retained foreign bodies and injury, posterior tibial nerve. 3. Entitlement to a total rating based on individual unemployability due to service-connected disabilities. ATTORNEY FOR THE BOARD D. B. Weiss, Associate Counsel INTRODUCTION The veteran had active military service from January 1942 to July 1943. In October 1942, he received multiple gunshot wounds while engaged against forces of the Japanese Government on the island of Guadalcanal. A January 1995 Department of Veterans Affairs (VA) doctor's letter appears to assert that the veteran has post-traumatic stress disorder, and other information in the claims file tends to indicate that associated stressors may be alleged to have been incurred in service. A March 1993 letter from a private doctor indicates symptomatology arising out of retained shrapnel in the pelvis. These issues are not for appellate review at this time and are not inextricably intertwined with the instant claims. Therefore, they are referred to the regional office to inquire of the veteran whether he wishes to claim service connection for post-traumatic stress disorder or compensation for gunshot wound residuals not currently compensated. On January 27, 1995, the Board of Veterans' Appeals (Board) received a request to advance the instant appeal on its docket because of the serious nature of the veteran's health status. This motion was granted on February 28, 1995. Additional records, including a VA physician's aid and attendance examination in December 1994 and a VA physician's letter dated in January 1995, were added to the claims file after the statement of the case and the certification of the appeal. However, such records are largely cumulative and consistent with previously submitted evidence, and to the extent that they are not, can be considered in the decision of the appeal without prejudice to the veteran. Therefore, to avoid delay, they will not be referred to the regional office for review and the issuance of a supplemental statement of the case. The Board again points out that this case was advanced on its docket due to the veteran's dire health situation; accordingly, initial consideration by the regional office is deemed waived. 38 C.F.R. § 20.1304(a),(c) (1994). CONTENTIONS OF APPELLANT ON APPEAL The veteran contends that he is rendered totally unable to obtain and maintain substantially gainful employment solely by reason of his service-connected disabilities. He also contends that his residuals of gunshot wounds to the cervical and dorsal regions and the right tibia are more severely disabling than currently evaluated. 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 increased ratings for gunshot wound residuals, cervical and dorsal region, muscle group XX, and gunshot wound residuals, compound fracture, right tibia, lower third with deformity, retained foreign bodies and injury, posterior tibial nerve. For the following reasons and bases, it is the decision of the Board that the evidence warrants a total rating based on individual unemployability. FINDINGS OF FACT 1. Gunshot wound residuals, cervical and dorsal region, muscle group XX are manifested by findings including pain, tenderness, muscle spasm, swelling, and deformity from T1 up to the neck, painful limited cervical range of motion, post-traumatic arthritis with retained foreign body, radiculopathy and neuropathy, and injury to the thoracic 1 right tubercle, which are productive of no more than severe muscle injury. 2. Gunshot wound residuals, compound fracture, right tibia, lower third with deformity, retained foreign bodies and injury, posterior tibial nerve, are manifested by findings including pain, severe bony, skin, and muscle deformity, painful limited range of motion of the right ankle, and difficulty standing, walking, and bending, which are productive of no more than marked ankle disability. 3. The veteran's service-connected disabilities preclude him from securing or following a substantially gainful occupation. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 40 percent for gunshot wound residuals, cervical and dorsal region, muscle group XX are not met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §§ 3.321, 4.7, 4.14, 4.40, 4.45, 4.55, 4.56, 4.71a, 4.72, 4.73, Diagnostic Codes 5010, 5320 (1994). 2. The criteria for a rating in excess of 40 percent for gunshot wound residuals, compound fracture, right tibia, lower third with deformity, retained foreign bodies and injury, posterior tibial nerve, are not met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §§ 3.321, 4.7, 4.14, 4.40, 4.45, 4.55, 4.56, 4.71a, 4.72, Diagnostic Codes 5262 (1994). 3. The criteria for a 100 percent rating based on individual unemployability due to service-connected disability are met. 38 U.S.C.A. §§ 5107 (West 1991); 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.19 (1994). REASONS AND BASES FOR FINDINGS AND CONCLUSION Initially, the Board notes that the provisions of 38 U.S.C.A. § 5107 have been met, in that the claims are well grounded and adequately developed. Disability evaluations are determined by the application of the VA Schedule for Rating Disabilities, which is based on average impairment of earning capacity. Different 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 evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Total disability evaluations for compensation are assigned, where the schedular rating is less than total, when the veteran is unable to secure or retain substantially gainful employment as a result of service-connected disability, without regard to age. If only one such disability is present, it must be rated 60 percent or more; if there are two or more such disabilities, one must be rated at least 40 percent and the combined rating must be 70 percent or more. 38 C.F.R. §§ 3.340, 3.341, 4.16(a), 4.19. Disability of the musculoskeletal system is primarily the inability, due to damage or infection of parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. Functional loss may be due to the 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 may be due to pain, supported by adequate pathology and evidenced by the visible behavior, of the claimant undertaking the motion. 38 C.F.R. § 4.40. 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 considerations including pain on movement. 38 C.F.R. § 4.45(f). Muscle injuries are classified into four general categories: slight, moderate, moderately severe, and severe. Separate ratings are assigned for the various degrees of disability. A slight disability generally involves a simple wound without debridement, infection, or effects of laceration. Objective findings could include a minimal scar, slight, if any, fascia defect, atrophy, or impaired tonus. There would be no significant impairment of function and no retained metal fragments. A moderate disability would normally result from through-and-through or deep penetrating wound of a relatively short track by a single bullet or small shell or shrapnel fragments. Residuals would include signs of moderate loss of deep fascia or muscle substance, or impairment of muscle tonus, and signs of definite weakness or fatigue on comparative tests. A moderately severe disability 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 would include impairment of strength and endurance of the muscle group involved, moderate loss of deep fascia, or moderate loss of muscle substance. Tests of endurance and strength must show positive evidence of marked or moderately severe loss. A severe injury would result from a deep penetrating wound due to a high velocity missile, large or multiple low velocity missiles, explosive effects of a high velocity missile, shattering bone fracture with extensive debridement, or prolonged infection and sloughing of soft parts. Residual disability would include extensive, ragged, depressed, and adherent scars, X-ray findings of multiple scattered fragments, loss of deep fascia or of muscle substance, and atrophy and decreased strength and endurance in the affected muscle group. 38 C.F.R. §§ 4.56, 4.72. A noncompensable evaluation is assigned for damage to Muscle Group XX (spinal muscles) where the disability is slight. A 10 percent evaluation is assigned for damage to Muscle Group XX where the disability is moderate. Where the disability is moderately severe, a 20 percent evaluation will be assigned. Where the disability is severe, a 40 percent rating is assigned. 38 C.F.R. Part 4, § 4.73, Diagnostic Code 5320. A compound comminuted fracture normally establishes a severe muscle injury, except where the muscle damage might be minimal, as in the tibia or wrist, and then the criteria for severe damage are not necessarily met. 38 C.F.R. § 4.72. In this case, the veteran's residuals of gunshot wound to the right tibia have been rated as marked disability of the ankle. The Board notes that this is not in violation of § 4.72, because the current 30 percent rating is the same rating as would be accorded if this disability were rated as a severe muscle injury. See 38 C.F.R. § 4.73, Diagnostic Codes 5311, 5312. Malunion causing impairment of tibia and fibula with slight knee or ankle disability is rated 10 percent. With moderate knee or ankle disability, it is rated 20 percent. With marked knee or ankle disability, it is rated 30 percent. Nonunion of the bones, with loose motion which requires a brace is rated 40 percent disabling of the tibia and fibula. 38 C.F.R. Part 4, § 4.71a, Diagnostic Code 5262. Traumatic arthritis is rated as degenerative arthritis under Diagnostic Code 5003. 38 C.F.R. Part 4, Diagnostic Code 5010. Degenerative arthritis which is established by X-ray findings will be rated based on limitation of motion of the specific joint involved. 38 C.F.R. § 4.71a, Diagnostic Code 5003. As the veteran is currently rated 40 percent for his residuals of gunshot wound to the cervical and dorsal region, and this rating exceeds the highest applicable rating for limitation of motion of the cervical and dorsal spine, and as ankylosis of neither region is shown, it would not benefit the veteran to rate this disability as traumatic arthritis under limitation of motion. See 38 C.F.R. § 4.71a, Diagnostic Codes 5287, 5288, 5290, 5291. The Board further notes that the file indicates that there may be post-traumatic arthritis of the veteran's lower right extremity secondary to his residuals of gunshot wound to the right tibia. However, the veteran's rating for this disability, 30 percent, exceeds the highest rating in the schedule for limitation of motion of the ankle, and ankylosis is not shown. Therefore, it would not benefit the veteran to rate this disability as traumatic arthritis under limitation of motion. See 38 C.F.R. § 4.71a, Diagnostic Codes 5270, 5271. The evaluation of the same disability under various diagnoses, or the use of manifestations not resulting from service-connected disease or injury in establishing evaluation, is to be avoided. 38 C.F.R. § 4.14. 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(g). The veteran is service connected for gunshot wound residuals, cervical and dorsal regions, rated 40 percent as muscle group XX, gunshot wound residuals, compound comminuted fracture, right tibia, lower third with deformity, retained foreign bodies and injury, posterior tibial nerve, rated 30 percent as marked knee or ankle disability, gunshot wound residuals of the right foot with fracture of the third metatarsophalangeal joint and loss of bony substance, rated 30 percent as plantar muscle group X injury, and gunshot wound scars of the right leg, right buttocks, left great toe, and medial side, left foot, rated noncompensable. The combined service-connected rating is 70 percent. The veteran also has nonservice-connected disabilities characterized by arteriosclerosis, symptoms of post-traumatic stress disorder, and severe emphysema and chronic obstructive pulmonary disease, requiring supplemental use of oxygen and bronchodilators and precipitating mild dyspnea on conversation. In his application for a total rating, the veteran stated that from 1977 to 1983, he was the self employed owner of the Talk of the Town Lounge, working about 8 hours per week, and missed work almost 100 percent of the time due to illness. He could not recall his highest gross monthly earnings. His greatest yearly earnings were $33,000. He had to sell his business for $20,000 because business had gone down, reportedly because he could not properly run it with his health problems. He had applied to work for the Etowah County Commission as a contractor and for his son's construction business as a truck driver in 1991 or 1992. He stated that he had not attended school. In October 1942, the veteran was hospitalized for compound fracture of the right leg. Examination revealed several small puncture wounds on the posterior aspect of the right thigh, and 2 large, ragged wounds on the lower third of the right leg. There was a small puncture wound on the right foot, and puncture wounds on the left foot. X-rays additionally revealed a comminuted fracture of the lower third of the tibia with posterior displacement of small fragments and medial angulation, which, in the same report, was later described as a bursting fracture of the middle and distal thirds of the right tibia in fairly satisfactory alignment. There were small metallic fragments posterior to the fracture. There was a small split fracture of the head of the third metatarsal and the base of the third proximal phalanx. Wounds of the right buttock were healed. Neuropsychiatric examination in August 1944 indicated that the veteran was practically illiterate due to very little schooling and having to go to work early in life. There was no neurological abnormality. The history for that examination indicated that the veteran had held jobs building crates and running an overhead crane, but had quit these jobs due to his leg disability. At neurological examination in October 1957, the veteran reported that he was self-employed hauling with his dump truck. There was a superficial loss of sensation over the right heel, and the diagnosis was impairment right posterior tibial nerve. On orthopedic examination at that time, the right leg was 1 inch shorter, due to the fracture, and it had one inch less in circumference of the calf. An August 1962 U.S. Government memorandum indicated that the veteran earned about $75 per month working part time. In March 1982, the veteran underwent private removal of foreign body from his right leg. At VA treatment in August 1986, the veteran was described as being status post right leg injury, without edema. October 1986 VA X-ray of the right leg, knee, and ankle showed evidence of old healed fracture of the proximal shaft of the tibia, and also of the distal tibial shaft, with some scattered metallic fragments throughout. There was some deformity at the fracture site. In November 1986, the veteran was described as having an old gunshot wound of the right tibia with 1+ edema, and leg pain. W. Weaver, M.D., performed cervical spine X-rays in August 1991, which showed 3 radiodense objects which were irregular and compatible with gunshot pellets. There was a much smaller lesion below the other foreign bodies and that could be a smaller pellet. There was no abnormality in skeletal structures. The odontoid view showed no skeletal abnormality. W. Weaver, M.D., performed cervical spine X-rays in August 1992, which showed exaggeration of the lordotic curve, and 3 pellets in the soft tissue of the upper back and lower neck which could represent previous gunshot injury. The bony alignment appeared normal. There was some anterior lipping of C5-7. On the "AP" view there was distortion of the cervical vertebra toward the left due to muscle spasm. The odontoid was normal. Between August 1991 and February 1993, the veteran was privately seen approximately a dozen times for a primary complaint of neck pain, including complaints of severe pain with inability to turn his head at times, to get out of bed in the morning, a feeling like his neck would be paralyzed, and numbness in the right arm. The pain was treated primarily by narcotics. A magnetic resonance imaging (MRI) was performed around February 1993; however, the results of that study are not of record. J. Keithan, II, M.D., advised in March 1993 that the veteran's severe post-traumatic arthritis in his lower extremity secondary to shrapnel wounds impaired his ability to stand, or to walk for more than a few minutes, due to weakness and constant pain. Arthritis of the cervical and thoracic spine limited his ability to move about and perform normal activities of daily living. Dr. Keithan acknowledged that these medical problems were compounded by a history of severe emphysema which greatly limited any activity. Dr. Weaver advised in May 1993 that the veteran has long-standing chronic obstructive lung disease. At May 1993 VA feet examination, the diagnosis was old shrapnel wound to the right foot and ankle with decrease of function of the foot and ankle. The veteran needed a cane to walk and the right foot was noted to have secondary skin and vascular changes and that its pulse was not as good as the left foot's. Supination and pronation of the foot was reduced, as was flexion and extension of the ankle. Right foot X-ray at that time showed post-traumatic deformity of the base of the proximal phalanx of the third toe and a small calcaneal spur. At May 1993 VA orthopedic examination, the veteran complained of incurring a shrapnel injury in October 1942 with retained shrapnel in place which hurt his neck and back all the time and caused arthritis. Objectively, the examiner noted a tender area and muscle spasm over T1 extending up to the base of the skull. Swelling and deformity, from T1 extending up on the neck, were present. The cervical spine range of motion was to 22 degrees of flexion, 18 degrees of extension, 38 degrees of rotation, 18 degrees of abduction, and 20 degrees of adduction. The diagnosis was shrapnel in paraspinal muscles of cervical area with injury to T1 right tubercle. VA cervical spine X-ray in May 1993 showed cervical spondylosis involving C5-7 and metallic foreign bodies in the soft tissues of the left supraclavicular region. Thoracic spine X-rays showed mild degenerative joint disease without other abnormality. VA general medical examination in June 1993 showed complaints of pain in the right leg. The veteran complained of nerves both in terms of local neuropathy and nerve pain. He complained of pain with forward flexion and rotation of the neck to more than 30 degrees. There was a large bony and muscle defect in the right lower extremity secondary to shrapnel. X-ray of the right ankle in May 1993 showed evidence of old healed fracture of the distal tibial shaft. The pertinent impressions were multiple shrapnel wounds with post traumatic arthritis and radiculopathy noted in the thoracic spine area, cervical radiculopathy with neuropathy, and history of right leg shrapnel injury with difficulty in standing, walking, and bending. A June 1993 chest X-ray by Dr. Kenny Smith showed metal fragments in the left cervical region from previous shrapnel wound, and bony structures appeared normal for the veteran's age group. In October 1993 the veteran received treatment at the Kirklin Clinic. It was noted that he had degenerative arthritis at C4, 5, and 6, where encroachment on the intervertebral foramina was present. A consultation report of that clinic also dated in October 1993 shows that the veteran came in for evaluation of arthritis of the spine, which he described as a sharp, aching, burning, lightning-type pain from his hairline to his buttocks, of 8 years' duration. There was no known precipitating event. The pain ranged in severity from 6/10 to 10/10 and was worse with riding, sitting, and turning his head certain ways. He also described a numbness and weakness of his right hand and fingers associated with a certain head turn. On examination, there were noted kyphosis of the upper thoracic spine and numerous trigger points of both occipital posterior, cervical, and upper middle trapezii. The upper and lower extremities had 5/5 strength. Reflexes were 2+ and symmetrical in both upper and lower extremities. There was normal sensation to pinprick in both upper extremities, and very little tenderness to palpation of the lower thoracic and lumbar spine or sacroiliac joints. The veteran had good range of motion of the lumbar spine and could touch his toes without difficulty. He did have a leg length discrepancy, with 88 cm on the right leg and 90 cm on the left. He was noted to control his pain by use of narcotics. The medical diagnostic impressions were possible cervical radiculopathy, fibromyalgia, and leg length discrepancy. The examiner further noted that the veteran's social history included having left home at age 9 without the opportunity for schooling. At VA examination for aid and attendance in December 1994, it was indicated that the veteran was unable to work due to decompensating chronic obstructive pulmonary disease, post- traumatic stress disorder, chronic pain due to war injuries, and peripheral vascular disease. The examiner noted that the veteran could feed himself, and clothe himself slowly, and bathe with some assistance. A VA doctor's letter of January 1995 indicated that the veteran has rather severe emphysema and arteriosclerosis, and post-traumatic stress disorder. The Board has reviewed all of the VA examinations and the treatment records. First the Board will address the claim for a total rating. The Board must take into account that even when able to work, the veteran's employment opportunities were limited by what has been described as his near-illiteracy and lack of schooling. Therefore, he was limited for most of his life to jobs which require little education, such as crate building and truck driving or hauling. His success in running his own business is acknowledged, but the Board finds it would be unreasonable to expect that he could return to this type of employment, given his service-connected disabilities. In essence, the Board finds that there is no dispute in the record that the veteran is not capable of substantially gainful employment. Therefore, the Board must determine whether this unemployability would exist even absent the nonservice-connected disabilities. While the Board recognizes that the veteran has severely disabling nonservice-connected pulmonary disabilities, it also notes that the bulk of the veteran's treatment appears to be for neck and thoracic area pain. This pain is described as severe, radiating, and in some instances preventing the veteran from moving his neck or getting out of bed. The Board finds that due to the effect of all his service-connected disabilities, in particular the right foot and tibia disabilities, the veteran is precluded from significant standing, bending, or walking. It is also reasonable to infer that his slowness in such activities of daily living such as clothing himself, and his need for assistance in bathing, is due, in part, to the effect of all his service-connected disabilities. Arguably, even his best employment capability permitted him only to perform jobs which required greater physical ability than this, even though he is now even more disabled than the Board can consider here, from his nonservice-connected disabilities. The evidence as to whether the veteran would be unemployable but for his service-connected disabilities is equally balanced. When, after consideration of all evidence and material of record in a case, there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt of resolving each issue shall be given to the claimant. 38 U.S.C.A. § 5107. Therefore, the Board finds that the evidence warrants a total rating based on individual unemployability. However, the Board is unable to identify a reasonable basis on which to grant either increased rating claim. The veteran has 5/5 strength in both his upper and lower extremities, according to examination in October 1993 at the Kirklin Clinic. Range of motion is impaired in the cervical spine and right ankle; however, this impairment is anticipated by the current percent ratings. The current rating for the right tibia disability is the highest schedular rating available, whether rating this disability as a muscle group injury or a marked impairment of the ankle. No malunion of the tibia and fibula is shown. As the cervical and dorsal area disability is rated as severe muscle damage, this, too, is accorded the highest possible schedular rating. The Board appreciates that the veteran must use narcotics to control his symptoms arising out of these disabilities, particularly his neck pain. However, the most recent VA and private examinations reveal no objective findings as to either disability which could lead to an increased evaluation. The Board believes that the present ratings are the most appropriate evaluations of these disabilities. Therefore, the provisions of 38 C.F.R. § 4.7 are not for application to these claims, and they must be denied. The Board acknowledges that there has been an MRI apparently of the veteran's neck, the results of which are not of record. However, under the circumstances of this particular case, the Board finds that remanding the case to obtain the MRI report would cause unacceptable delay in the resolution of the appeal. In this connection, the Board notes that the MRI is basically a diagnostic device and not a measure of actual disability. The Board has also considered the pertinent provisions of 38 C.F.R. Parts 3 and 4 and 38 C.F.R. § 3.321(b)(1). In this regard, the veteran's gunshot wound residuals of the cervical and dorsal region and of the right tibia are not so unusual or extraordinary as to warrant extraschedular rating. That is, while the Board appreciates that these injuries were incurred in an extraordinary manner, there is nothing exceptional about the residuals of the gunshot wounds which is not anticipated by the rating schedule. For example, individually, they do not result in marked impairment with employment or in frequent hospitalization, beyond that compensated in the current ratings. Thus, the regular rating schedule applies to the evaluation of the individual disorders. ORDER A rating in excess of 40 percent for gunshot wound residuals, cervical and dorsal region, Muscle Group XX, is denied. A rating in excess of 30 percent for gunshot wound residuals, compound fracture, right tibia, lower third with deformity, retained foreign bodies, and injury, posterior tibial nerve, is denied. A total rating based on individual unemployability is granted, subject to the applicable regulations pertinent to the disbursement of monetary funds. JOHN E. ORMOND 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.