BVA9505092 DOCKET NO. 90-54 262 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida THE ISSUE Entitlement to an increased rating for the residuals of a gunshot wound to the right posterior chest with injury to Muscle Group II, evaluated as 20 percent disabling. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARINGS ON APPEAL The veteran ATTORNEY FOR THE BOARD W. Pope, Counsel INTRODUCTION The veteran had active service from May 1955 to April 1957. Service connection for a disability of the spine was denied by the Board of Veterans' Appeals (Board) in March 1989. This matter came before the Board on appeal from a June 1989 rating decision which denied an increased rating for the residuals of a gunshot wound (GSW) to the right posterior chest with injury to Muscle Group II. Personal hearings were held in November 1989 and August 1990. In April 1993, the United States Court of Veterans Appeals (Court) vacated a November 1991 decision by the Board and remanded the appeal for compliance with instructions set forth in the Court's memorandum decision, to include consideration of the issue of secondary service-connection for arthritis of the 8th, 9th and 10 vertebrae of the thoracic spine, and for additional evaluation regarding the veteran's service-connected GSW injury and the criteria enumerated by 38 C.F.R. § 4.56. In December 1993, the Board remanded the case to the RO for additional development. An October 5, 1994, Board decision granted service-connection for arthritis of the 8th, 9th and 10th vertebrae of the thoracic spine and remanded the case to the RO for additional development. An October 17, 1994, RO decision upheld a 20 percent rating for the veteran's service-connected residuals of a GSW to the right posterior chest with injury to Muscle Group II, and assigned a 10 percent disability rating for the service-connected arthritis of the 8th, 9th and 10th vertebrae of the thoracic spine, effective from March 29, 1989, the date that the veteran reopened the claim concerning arthritis of the thoracic spine. The veteran and his representative have continued the appeal of an increased rating for the residuals of a GSW to the right posterior chest with injury to Muscle Group II. CONTENTIONS OF APPELLANT ON APPEAL The veteran and his representative contend, in essence, that his service-connected residuals of the GSW to the right posterior chest are productive of greater impairment than reflected by the 20 percent rating currently assigned. 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 files. 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 an increased rating for the residuals of a GSW to the right posterior chest with injury to Muscle Group II. FINDINGS OF FACT 1. All relevant evidence referable to the current appeal has been requested by the RO. 2. The veteran has more than 25 degrees of active right shoulder flexion and abduction. 3. The veteran's residuals of the GSW to the right posterior chest are productive of no more than moderately severe injury to Muscle Group II. CONCLUSION OF LAW A rating greater than 20 percent for the residuals of the GSW to the right posterior chest with injury to muscle group II is not warranted. 38 U.S.C.A. §§ 1155, 5107, 7104 (West 1991); 38 C.F.R. §§ 3.321, 3.102, 4.40, 4.54, 4.55, 4.56, 4.59, 4.71, Code 5201, 4.73, Code 5302 (1993). REASONS AND BASES FOR FINDINGS AND CONCLUSION Initially, the Board notes that the veteran's claim is well- grounded within the meaning of 38 U.S.C.A. § 5107, and that all relevant facts have been properly developed for this appeal. Disability evaluations are determined by the application of a schedule for rating disabilities. Separate Diagnostic Codes identify the various disabilities. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. The factors to be considered in the evaluation of disabilities residual to healed wounds involving muscle groups due to gunshot or other trauma are covered by 38 C.F.R. § 4.56. Moderate muscle injury is associated with a through and through or a deep penetrating wound of relatively short track by a single bullet or by a small shell or shrapnel fragment, without the explosive effect of a high velocity missile and the residuals of debridement or of prolonged infection. The history would include hospitalization in service for wound treatment, and a record of consistent complaint, from the first examination forward, of one or more of the cardinal symptoms of muscle wounds, particularly fatigue and fatigue-pain after moderate use, affecting the particular functions controlled by the injured muscles. The objective findings include entrance and (if present) exit scars which are linear or relatively small, and so situated as to indicate a relatively short missile track through the muscle tissue, signs of moderate loss of deep fascia or muscle substance or impairment of muscle tonus, and signs of definite weakness or fatigue in comparative tests. 38 C.F.R. § 4.56(b). Moderately severe muscle injury is associated with a through and through or a deep penetrating wound by a high velocity missile of small size or by a large missile of low velocity, with debridement, prolonged infection, or sloughing of soft parts with intermuscular cicatrization. The history would include hospitalization for a prolonged period during service for treatment of a severe wound, and a record of consistent complaints of the cardinal symptoms of muscle wounds. The objective findings include relatively large entrance and (if present) exit scars, indications on palpation of moderate loss of deep fascia or muscle substance, or moderate loss of normal, firm muscle resistance as compared to the sound side. 38 C.F.R. § 4.56(c). Severe muscle injury is associated with a through and through or a deep penetrating wound due to a high velocity missile, a large or multiple low velocity missiles, or shattering bone fracture with extensive debridement, or prolonged infection and sloughing of soft parts, intermuscular binding and cicatrization. The history would be an aggravated form of the history for moderately severe muscle injury. The objective findings include extensive ragged, depressed, and adherent scars of skin, moderate or extensive loss of deep fascia or muscle substance on palpation, failing of the muscles to swell and harden normally in contraction, and possible X-ray evidence of minute multiple scattered foreign bodies. 38 C.F.R. § 4.56(d). The veteran's service medical records indicate that he sustained a penetrating wound to the right posterior chest when his weapon, an "M-1 rifle loaded with blanks," accidentally discharged while he was dismounting from a truck during training exercises on September 16, 1956. He was admitted to the service medical facility as an ambulatory patient and the wound was cleansed and dressed. Later that day he was taken to surgery where the wound was debrided and foreign materials removed. There was no artery or nerve damage. Secondary closure was performed on September 20, 1956. X-ray studies showed no evidence of any solid foreign bodies, lung injury, rib fractures or other abnormalities of the spine. The veteran's hospital course was uneventful and he was discharged in good general condition on October 1, 1956, with instructions to remain on light duty for two weeks. A preseparation examination on March 25, 1957, noted a scar over the right posterior chest. His musculoskeletal system was considered normal. A report of a March 1958 VA orthopedic examination disclosed that the veteran was left-handed. He complained of pain in the area of his back scar, with aggravation upon twisting or working overhead with the arms "outstretched forwardly." Physical examination revealed an L-shaped scar over the right back beneath the angle of the scapula, overlying the tenth and eleventh ribs. The scar measured "four inches on one side and two inches on the other side of the L." There was a depression the size of a nickel in the center of the scar. There was "a slight deficit in the latissimus dorsi and the serratus major muscles," with some pain on pressure over that area. The "right shoulder girdle [was] unremarkable." X-ray studies of the dorsal spine and right torso were reported as showing no significant pathologic abnormalities. The diagnosis was "[s]car, painful with slight muscle defect." A March 1958 rating decision established service-connection for the residuals of a GSW of the right posterior chest with injury to Muscle Group II, and assigned a 20 percent disability rating effective from April 24, 1957, the day following the veteran's separation from service. The rating was assigned under Diagnostic Code 5302, which provides a 20 percent rating for moderate or moderately severe injury of Muscle Group II (Extrinsic muscles of the shoulder girdle, involving depression of the arm from vertical overhead to hanging at the side, downward rotating of the scapula, and act with Muscle Group III in forward and backward swing of the arm.) of the minor upper extremity. Severe muscle injury warrants a 30 percent rating. 38 C.F.R. § 4.73, Code 5302. The 20 percent rating has remained in effect to date. A report of a VA examination in April 1988 disclosed that the veteran complained of long-standing discomfort over the posterolateral aspect of the right chest wall. He also complained of pain and stiffness of several joints including the right shoulder. A physical examination revealed a well-healed curvilinear scar measuring three inches in length over the posterolateral aspect of the chest wall, near the posterior axillary line. "The scar was not adherent to the underlying structures and there was no apparent atrophy in the underlying latissimus dorsi." Both shoulders displayed normal configuration "with no evidence of muscle atrophy." There was some tenderness over the right bicipital groove and rotator cuff and over the right acromioclavicular joint. The veteran had right shoulder flexion to 150 degrees, adduction to 120 degrees, extension to 30 degrees, and external and internal rotation to 70 degrees. X-ray studies of the right shoulder were reported as detecting no abnormalities. The diagnosis was that of residuals of a gunshot wound to the posterolateral aspect of the right chest wall with some damage to the musculature of Muscle Group II. The examiner specifically noted that "[t]he injury to the latissimus dorsi did not leave [the veteran] with any impairment of his function and [he] was able to extend the right shoulder as well as the left one." A report of a VA orthopedic examination in December 1993 disclosed that the veteran complained of pain of the posterolateral right chest and decreased motion of the right shoulder. A physical examination showed that he had right shoulder flexion to 120 degrees, abduction to 100 degrees, external rotation to 30 degrees, and internal rotation to the buttock. The veteran complained of pain with right shoulder motion. There was decreased strength of both upper extremities. Strength of shoulder flexion and abduction were recorded as "5+/5+". The diagnoses included decreased range of motion of the right shoulder, decreased strength of the right shoulder, and pain at site. Upon review of the evidence the Board notes that a rating greater than the currently assigned 20 percent under Diagnostic Code 5302 requires impairment which more nearly approximates a severe degree of injury to Muscle Group II. However, the veteran's service medical records disclose that his GSW from a blank round produced far less injury than the "through and through or a deep penetrating wound" associated with even a moderate degree of muscle injury, and his related medical treatment fell far short of the "hospitalization for a prolonged period...for...a severe wound," or "debridement, prolonged infection, or sloughing of soft parts with intermuscular cicatrization," criteria associated with a moderately severe degree of muscle injury. Furthermore, the April 1988 examination confirmed that the veteran's GSW "scar was not adherent to the underlying structures and [that] there was no apparent atrophy in the underlying latissimus dorsi....[or] evidence of muscle atrophy" of the right shoulder. This indicates much less damage that the "moderate loss of deep fascia or muscle substance, or moderate loss of normal, firm muscle resistance" set forth as the criteria for a moderately severe degree of muscle injury, not to mention the "extensive ragged, depressed, and adherent scars of skin, moderate or extensive loss of deep fascia or muscle substance on palpation," criteria describing a severe degree of muscle injury. See 38 C.F.R. § 4.56(b), (c), and (d). At any rate, the medical evidence shows that the impairment of the veteran's right (minor) Muscle Group II does not remotely approximate the severe degree of muscle injury required for a rating greater than the currently assigned 20 percent under Diagnostic Code 5302 of the VA rating schedule. The Board notes that the VA is obligated to consider a claim for increase under any additional Diagnostic Codes under which entitlement to an increase might potentially be established. Schafrath v. Derwinski, 1 Vet.App. 589, 593 (1991). In this case, such Diagnostic Codes must necessarily include those relating to limitation of motion of the veteran's right shoulder. However, since the medical evidence shows that the veteran has more than 25 degrees of active flexion and abduction of the right shoulder, a rating greater than 20 percent for limitation of motion of the minor shoulder is not warranted. 38 C.F.R. § 4.71a, Code 5201. Accordingly, after review and consideration of all the evidence of record, the Board finds that the evidence is against the claim of a rating greater than 20 percent for the veteran's service- connected residuals of a GSW to the right posterior chest with injury to Muscle Group II. Consideration of the assignment of a higher rating on an extraschedular basis is not indicated. Finally, since the negative evidence outweighs that which is positive on the merits of the issue, the veteran cannot be given the benefit of the doubt since no such doubt arises. ORDER An increased rating for residuals of a GSW to the right posterior chest with injury to Muscle Group II is denied. STEPHEN L. WILKINS 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.