Citation Nr: 0002991 Decision Date: 02/07/00 Archive Date: 02/10/00 DOCKET NO. 97-29 267 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Juan, Puerto Rico THE ISSUE Entitlement to increased evaluations for bilateral hernias of the anterior tibia muscles, each currently evaluated as 10 percent disabling. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD J. L. Tiedeman, Associate Counsel INTRODUCTION The appellant served on active duty from December 1948 to December 1949, and again from August 1950 to April 1955. This case comes before the Board of Veterans' Appeals (the Board) on appeal from a rating decision of the San Juan, Puerto Rico, Department of Veterans Affairs (VA) Regional Office (RO). It is noted that service connection is in effect for the residuals of a fasciotomy of a muscle hernia of each leg. Ten (10) percent ratings have been assigned for each leg since 1955. Those ratings are in effect as protected ratings, and the question to the Board is whether an increased rating as to either leg is warranted. In view of the symmetry of the findings and the complaints, the disabilities are discussed as bilateral impairment for the purpose of convenience below. FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the appellant's appeal has been obtained by the RO. 2. The appellant's bilateral hernias of the anterior tibia muscles are manifested by moderate impairment, but no more, of Muscle Group XII of either leg. CONCLUSION OF LAW The criteria for a rating in excess of 10 percent for hernia of the anterior tibia muscle in either the right or left leg have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §§ 3.102, 3.321, Part 4, 4.56, 4.71a, Diagnostic Code 5312 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Board finds that the appellant has presented sufficient evidence to conclude that his claim for an increased evaluation for bilateral hernias of the anterior tibia muscles is well grounded within the meaning of 38 U.S.C.A. § 5107(a). The credibility of the appellant's evidentiary assertions is presumed for making this initial well grounded determination. The Board is also satisfied that the duty to assist mandated by 38 U.S.C.A. § 5107(a) has been fulfilled with respect to this issue as there is no indication that there are other records available that would be pertinent to the adjudication of this issue. In adjudicating a well grounded claim, the Board determines whether (1) the weight of the evidence supports the claim or, (2) whether the weight of the "positive" evidence in favor of the claim is in relative balance with the weight of the "negative" evidence against the claim. The appellant prevails in either event. However, if the weight of the evidence is against the appellant's claim, the claim must be denied. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; 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. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities. Where there is a reasonable doubt as to the degree of disability, such doubt shall be resolved in favor of the claimant, and 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 required for that rating. 38 C.F.R. §§ 3.102, 4.3, 4.7. In addition, the Board will consider the potential application of the various other provisions of 38 C.F.R., Parts 3 and 4, whether or not they were raised by the appellant, as well as the entire history of the appellant's disorder in reaching its decision, as required by Schafrath v. Derwinski, 1 Vet. App. 589 (1991). The provisions regarding the rating of muscle injuries have been amended by recently promulgated regulatory changes at 62 Fed. Reg. 30235-30240 (June 3, 1997), (codified at 38 C.F.R. §§ 4.56, 4.73 (1999)) (hereinafter "new criteria.") As these amendments have not resulted in any major substantive change in the manner in which disability due to muscle injuries is rated, the citations below will be to the new criteria for rating muscle injuries for the sake of convenience. In addition, the Board concludes that given the lack of substantive changes in the criteria for rating disability due to muscle injuries, the adjudication below will not result in any prejudice to the appellant. See Bernard v. Brown, 4 Vet. App. 384 (1993). For VA rating 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). Additionally, 38 C.F.R. § 4.56(d)(1),(2),(3),(4) (1999) provides that disabilities resulting from muscle injuries under diagnostic codes 5301 through 5323, shall be classified as "slight," "moderate," "moderately severe" or "severe" as follows: Slight Disability of Muscles: (i) Type of injury: Simple wound of muscle without debridement or infection. (ii) History and complaint: Service department record of superficial wound with brief treatment and return to duty. Healing with good functional results. No cardinal signs or symptoms of muscle disability as defined in paragraph (c) of this section. (iii) Objective findings: Minimal scar. No evidence of fascial defect, atrophy, or impaired tonus. No impairment of function or metallic fragments retained in muscle tissue. Moderate Disability of Muscles: (i) Type of injury: Through and through or deep penetrating wound of short track from a single bullet, small shell or shrapnel fragment, without explosive effect of high velocity missile, residuals of debridement, or prolonged infection. (ii) History and complaint: Service department record or other evidence of in-service treatment for the wound. Record of consistent complaint of one or more of the cardinal signs and symptoms of muscle disability as defined by 38 C.F.R. § 4.56(c), particularly lowered threshold of fatigue after average use, affecting the particular functions controlled by the injured muscles. (iii) Objective findings: Entrance and (if present) exit scars, small or linear, indicating short track of missile through muscle tissue. Some loss of deep fascia or muscle substance or impairment of muscle tonus and loss or power or lowered threshold of fatigue when compared to the sound side. Moderately Severe Disability of Muscles: (i) Type of injury: Through and through or deep penetrating wound by small high velocity missile or large low velocity missile, with debridement, prolonged infection, or sloughing of soft parts, and intermuscular scarring. (ii) History and Complaint: Service department record or other evidence showing hospitalization for a prolonged period for treatment of wound. Record of consistent complaint of cardinal signs and symptoms of muscle disability as defined by 38 C.F.R. § 4.56(c) of this section and, if present, evidence of inability to keep up with work requirements. (iii) Objective Findings: Entrance and (if present) exit scars indicating track of missile through one or more muscle groups. Indications on palpation of loss of deep fascia, muscle substance, or normal firm resistance of muscles compared with sound side. Tests of strength and endurance compared with sound side demonstrate positive evidence of impairment. Severe Disability of Muscles: (i) Type of injury: Through and through or deep penetrating wound due to high-velocity missile, or large or multiple low velocity missiles, or with shattering bone fracture or open comminuted fracture with extensive debridement, prolonged infection, or sloughing of soft parts, intermuscular binding and scarring. (ii) History and complaint: Service department record or other evidence showing hospitalization for a prolonged period for treatment of wound. Record of consistent complaint of cardinal signs and symptoms of muscle disability as defined in paragraph (c) of this section, worse than those shown for moderately severe muscle injuries, and, if present, evidence of inability to keep up with work requirements. (iii) Objective findings: Ragged, depressed and adherent scars indicating wide damage to muscle groups in missile track. Palpation shows loss of deep fascia or muscle substance, or soft flabby muscles in wound area. Muscles swell and harden abnormally in contraction. Tests of strength, endurance, or coordinated movements compared with the corresponding muscles of the uninjured side indicate severe impairment of function. If present, the following are also signs of severe muscle disability: (A) X-ray evidence of minute multiple scattered foreign bodies indicating intermuscular trauma and explosive effect of the missile. (B) Adhesion of scar to one of the long bones, scapula, pelvic bones, sacrum or vertebrae, with epithelial sealing over the bone rather than true skin covering in an area where bone is normally protected by muscle. (C) Diminished muscle excitability to pulsed electrical current in electrodiagnostic tests. (D) Visible or measurable atrophy. (E) Adaptive contraction of an opposing group of muscles. (F) Atrophy of muscle groups not in the track of the missile, particularly of the trapezius and serratus in wounds of the shoulder girdle. (G) Induration or atrophy of an entire muscle following simple piercing by a projectile. Slight disability affecting Muscle Group XII (anterior muscles of the leg) warrants a noncompensable rating. 38 C.F.R. § 4.71a, DC 5312. Moderate disability affecting Muscle Group XII warrants the assignment of a 10 percent rating. Id. A 20 percent rating for disability affecting Muscle Group XII requires moderately severe disability. Id. A 30 percent rating for disability affecting Muscle Group XII requires severe disability. Id. With the above legal principles in mind, the relevant evidence will be summarized briefly. During service in May 1954, the appellant was treated for bilateral fascial hernias of the anterior tibial muscles. A fasciotomy was performed in May 1954. A June 1961 VA examination revealed that the appellant had well healed, non-keloid, non-tender, non- adherent, post-operative scars in the anterior lateral aspect of each leg. The examining physician concluded that there were bilateral, large muscle hernias of both tibial anticus muscles. VA outpatient records for the period from November 1976 to January 1977 revealed intermittent claudication and questionable lack of circulation. Physical examination revealed no varicose veins and no edema; the appellant had adult onset diabetes mellitus. During a May 1977 VA examination, the appellant complained of weakness and numbness in his lower limbs. Examination of the lower limbs showed that the appellant was in no distress; he had an excellent gait, with good range of motion in all joints in the lower limbs, and good muscle strength. He had mild to moderate hypertrophy of the anterior tibialis muscles with slight tendency to herniate upon contraction. He had longitudinal surgical scars in the anterolateral aspects of his right and left legs. He was able to squat, stoop, and walk on his tiptoes and heels. Diagnosis was of bilateral fasciotomy of the legs, with hypertrophy of both anterior tibialis muscles. A VA examination was conducted in September 1996. On comparative examination, there was no tissue loss, there were well healed scars that were brownish colored and tender to palpation. There was no damage to the tendons, there was normal strength, and no muscle atrophy. Bilateral 2 inch hernias, not tender to palpation were reported. More recently, a January 1997 letter from Dr. V. A. Toro indicated that the appellant suffered from edema of both legs and rheumatoid arthritis with frequent bilateral pain and cramping, particularly when walking or standing for long periods of time. A March 1999 VA examination revealed that the appellant's muscles were not penetrated and that he has well-healed scars on both distal aspects of his legs, bilaterally. There was no sensitivity or tenderness to palpation. There were no adhesions; no damage to tendons on the right distal leg; no damage to bones, joints, nerves. There was no evidence of pain. The appellant had normal muscle strength in all muscles of the legs and no muscle atrophy. Examination revealed small palpable soft tissue masses on the legs on the scar area, which were not thought to be muscle hernias. Muscle hernias of the legs by history was the diagnosis. Applying the pertinent legal criteria to the facts summarized above, the Board concludes that entitlement to greater than a 10 percent rating for either leg under DC 5312 for "moderate" disability is not shown for any time period in question. In making this determination, all reasonable doubt has been resolved in favor of the appellant. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.10, 4.3, 4.7; Gilbert, 1 Vet. App. at 49. The appellant has also been afforded the benefit of the provisions of 38 C.F.R. §§ 4.40 with regard to giving proper consideration to the effects of pain in assigning a disability rating, as well as the provisions of 38 C.F.R. § 4.45 and the holding in DeLuca v. Brown, 8 Vet. App. 202 (1995). As for entitlement to a rating in excess of 10 percent under DC 5312, the Board concludes that the "moderately severe" disability required for a 20 percent rating is not shown. In this regard, the Board notes that the appellant does not suffer from debridement, prolonged infection, sloughing of soft parts, or intermuscular scarring. There are no records of any prolonged periods of hospitalization and no loss of deep fascia, muscle substance or normal firm resistance of muscles. On the contrary, the appellant exhibits good muscle strength and range of motion. While the Board has carefully considered the appellant's contentions that his claimed condition has worsened, it finds the probative weight of this subjective "positive" evidence to be overcome by that of the recent objective "negative" clinical evidence, which is the most probative evidence to consider in determining the proper rating to be assigned for a service-connected disability. Francisco v. Brown, 7 Vet. App. 55 (1994). In short, the post-service clinical evidence simply does not demonstrate disability warranting entitlement to a rating in excess of 10 percent bilaterally under DC 5213 or any other potentially applicable diagnostic code. Further, recent evidence does not reveal tender scarring, or any limitation of function caused by the scarring. The provisions of DC 5326 provide for compensation where the hernia is extensive, without damage to the muscle. These provisions to not provide a basis for an increased rating. The currently assigned 10 percent for each leg is appropriate, but no increase is warranted. Also considered by the Board are the provisions of 38 C.F.R. § 3.321(b)(1), which state that when the disability picture is so exceptional or unusual that the normal provisions of the rating schedule would not adequately compensate the appellant for his service-connected disabilities, an extraschedular evaluation will be assigned. To this end, the Board notes that neither frequent hospitalization nor marked interference with employment due to the appellant's service- connected bilateral leg disability is demonstrated, nor is there any other evidence that this disorder involves such disability that an extraschedular rating would be warranted under the provisions of 38 C.F.R. § 3.321(b)(1). (CONTINUED ON NEXT PAGE) ORDER Entitlement to a rating in excess of 10 percent for either the right or left leg hernia disorder is denied. MICHAEL D. LYON Member, Board of Veterans' Appeals