Citation Nr: 0001311 Decision Date: 01/14/00 Archive Date: 01/27/00 DOCKET NO. 97-04 460 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Buffalo, New York THE ISSUE Entitlement to an increase in the 20 percent evaluation currently assigned for service-connected scar, status post excision of lipoblastomatosis with rib segment resection and resection of the right major pectoralis muscle. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Christopher Maynard, Counsel INTRODUCTION The veteran had active service from April 1990 to March 1993. This matter initially came to the Board of Veterans' Appeals (Board) on appeal from a March 1996 decision by the RO which granted service connection for status post cystadenoma scar, and assigned a noncompensable evaluation. A later rating decision in November 1996, found clear and unmistakable error in the initial rating action, in part, due to the failure to identify additional medical records which showed subsequent surgery for rib segment resection and resection of the right major pectoralis muscle. The Board remanded the appeal to the RO for additional development in July 1998. By rating action in February 1999, the RO assigned an increased rating to 20 percent, effective from November 7, 1995, the date of receipt of the veteran's original claim. FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the veteran's appeal has been obtained by the RO. 2. The manifestations from lipoblastomatosis with rib segment and right (major) pectoralis muscle resection, involving Muscle Groups II and III, are equivalent to moderate damage to each of those muscles. CONCLUSION OF LAW The criteria for an increased rating to 30 percent for the veteran's service-connected scar, status post excision of lipoblastomatosis with rib segment resection and resection of the right major pectoralis muscle based on the presence of moderate muscle injury to two muscle groups are met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §§ 4.3, 4.7 (1999); 38 C.F.R. §§ 4.55, 4.56, 4.73, including Diagnostic Code 5302 (as in effect prior to July 3, 1997). REASONS AND BASES FOR FINDINGS AND CONCLUSION Factual Background The evidence of record indicates that the veteran underwent surgery for removal of a soft tissue mass, initially thought to be an angiolipoma, from the right anterior chest area in August 1992 while in service. Subsequent microscopic analysis revealed findings consistent with lipoblastomatosis. After his discharge from service, the veteran was admitted to a private hospital in July 1994 for additional surgery. The evidence shows that a soft tissue semi-malignant tumor (hemangioma-vascular-lipomatous hamartia) with single rib resection of the right thoracic wall, involving the m. pectoralis major right was performed without complication in August 1994. As noted above, service connection was initially established for a scar, status post cystadenoma in March 1996, and a noncompensable evaluation was assigned, effective from November 7, 1995, the date of receipt of the veteran's claim. The characterization of the service-connected disability was corrected by a subsequent rating action in November 1996, which continued the noncompensable rating. When examined by VA in January 1997, the veteran reported a pulling sensation in the axillary region and diminished strength when using his right arm. The veteran also reported some anesthesia in the scar area. On examination, there was a well-healed scar extending from the right axilla under the right nipple and across to the midline above the xiphoid. There was no keloid formation and the scar was not tender. There was loss of the pectoralis muscle on the "left" side with visible diminution of the anterior chest wall on the right. The impression was status post resection of lipoblastoma of the chest wall. When examined by VA in November 1998, the veteran reported that he worked as a security guard, which did not require a great deal of physical activity involving his right upper extremity. The veteran reported pain in his chest area for several days after engaging in any activities requiring pushing and/or pulling. Any type of lifting with his right arm caused discomfort in his right shoulder. The veteran reported that he could not use his right arm for recreational activities, such as throwing or doing a lot of heavy lifting due to pain in his chest and right shoulder. On examination, there was a 26-mm transverse scar over the right inferior chest wall extending from the axilla and curving below, inferior to the nipple and to the sternum. The scar was well healed and showed no evidence of infection. There was a 1-inch long depression in the seventh rib area. There was an area of anesthesia inferior and superior to the scar and along the course of the interdigital nerve extending from the axilla to the sternum. There was no evidence of atrophy of the right shoulder girdle. Mild crepitus was palpable in both the glenohumeral and acromioclavicular joints of the right shoulder. The inferior half of the pectoralis major had been excised and the right nipple was depressed. There was no evidence of any recurrence of the tumor mass. Forward flexion and abduction of the right shoulder was possible to 120 degrees with discomfort in the chest area and over the anterior aspect of the shoulder. External and internal rotation was possible to 80 degrees. The diagnosis was status post resection of the tumor from the right anterior chest wall with resection of rib and resection of the inferior aspect of the pectoralis major muscle, which would include both Muscle Group II and Group III, resulting in loss of motion of the right shoulder. The examiner indicated that the examination was conducted during a period of quiescence of symptoms, and that the findings from the examination could be significantly altered during periods of flare-ups. However, the examiner indicated that he could not quantify the functional loss during flare- ups unless he was able to examine the veteran during such a period. In an addendum report, dated in December 1998, the examiner reported that there was a loss of the inferior half of the right pectoralis major muscle. The remainder of the muscle exhibited fair muscle tone, but motion in the right shoulder was restricted in abduction and flexion as well as rotation. There was obvious loss of deep fascia from the rib resection, and he estimated the extent of resection was about 1-inch or 2.5 to 3 mm. The examiner commented that as a result of the surgery, the veteran had a loss of strength and motion in the right shoulder and was subjected to a lower threshold of fatigue as compared to the left upper extremity. Analysis Increased ratings in General As noted above, service connection for the disability at issue on appeal was established by rating action in March 1996, and a 20 percent evaluation was subsequently assigned, effective from November 7, 1995, the date of receipt of the veteran's original claim. The veteran disagreed with the evaluation assigned and this appeal ensued. In Francisco v. Brown, 7 Vet. App. 55, 58 (1994) the United States Court of Appeals for Veterans Claims (known as the United States Court of Veterans Appeals prior to March 1, 1999) (hereinafter "the Court") held that "[w]here entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary importance." In Fenderson v. West, 12 Vet. App. 119 (1999), the Court held that the rule from Francisco was not applicable to the assignment of an initial rating for a disability following an initial award of service connection for that disability, and that separate [staged] ratings may be assigned for separate periods of time based on the facts found. 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. Part 4. Separate diagnostic codes identify the various disabilities. In addition, the VA has a duty to acknowledge all regulations which are potentially applicable through the assertions and issues raised in the record and to explain the reasons and bases for its conclusion. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). 38 C.F.R. § 4.1 requires that each disability be viewed in relation to its history, and that there be emphasis upon the limitation of activity imposed by the disabling condition. 38 C.F.R. § 4.2 requires that medical reports be interpreted in light of the whole-recorded history, and that each disability must be considered from the point of view of the veteran working or seeking work. These requirements for evaluation of the complete medical history of the claimant's condition operate to protect claimants against adverse decisions based on a single, incomplete or inaccurate report, and to enable the VA to make a more precise evaluation of the level of the disability and of any changes in the condition. Schafrath, 1 Vet. App. at 594. 38 C.F.R. § 4.7 provides that 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. Otherwise, the lower rating will be assigned. Except as otherwise provided in the rating schedule, all disabilities, including those arising from a single entity, are to be rated separately, and then all ratings are to be combined pursuant to 38 C.F.R. § 4.25 (1999). One exception to this general rule, however, is the anti-pyramiding provision of 38 C.F.R. § 4.14 (1999), which provides that evaluation of the "same disability" or the "same manifestation" under various diagnoses is to be avoided. In Esteban v. Brown, 6 Vet. App. 259 (1994), it was held that the described conditions in that case warranted 10 percent evaluations under three separate diagnostic codes, none of which provided that a veteran may not be rated separately for the described conditions. Therefore, the conditions were to be rated separately under 38 C.F.R. § 4.25 (1999), unless they constituted the "same disability" or the "same manifestation" under 38 C.F.R. § 4.14 (1999). Esteban at 261. The critical element cited was "that none of the symptomatology for any one of those three conditions [was] duplicative of or overlapping with the symptomatology of the other two conditions." Id. at 262. Muscle Rating Codes in General The regulations pertaining to rating muscle injuries were revised effective July 3, 1997. The United States Court of Appeals for Veterans Claims (known as the United States Court of Veterans Appeals prior to March 1, 1999) (hereinafter, "the Court") has held that where the law or regulation changes after a claim has been filed or reopened but before the administrative or judicial appeal process has been concluded, the version most favorable to the appellant will apply unless Congress provided otherwise or permitted the Secretary of Veterans Affairs (Secretary) to do otherwise and the Secretary did so. Karnas v. Derwinski, 1 Vet. App. 308, 313 (1991). The record shows that RO has considered both sets of rating criteria with respect to the veteran's claim. Accordingly, the Board has determined that the veteran would not be prejudiced if the Board proceeded with appellate consideration on the claim presented. See Bernard v. Brown, 4 Vet. App. 384 (1993). The criteria pertaining to the rating of muscle injuries under both the old and revised criteria are essentially the same. It was noted in the Summary contained in the Final rule as follows: "This document amends the Department of Veterans Affairs (VA) Schedule for Rating Disabilities of Muscle Injuries. These amendments are made because medical science has advanced, and commonly used medical terms have changed. The effect of the amendments is to update the rating schedule to ensure that it uses current medical terminology and unambiguous criteria, and that it reflected medical advances that have occurred since the last review. 62 FEDERAL REGISTER 30235 (June 3, 1997). In considering the old and new regulations, a review of the comments contained in the publication of the final rules pertaining to the revised Schedule for Rating Disabilities of Muscle Injuries included the explanation that Sec. 4.55(e) was derived from former Sec. 4.55(a) and involved no substantive change from the earlier provision. 62 FEDERAL REGISTER 30235-30240 (June 3, 1997). Applicable Criteria for Rating Motion Limitations of the Shoulder The rating criteria for an evaluation based on limitation of motion of the arm under 38 C.F.R. Part 4, Diagnostic Code 5201 are as follows: Major Minor To 25° from side............................................... 40............. 30 Midway between side and shoulder level........... 30............. 20 At shoulder level............................................... 20............. 20 Normal range of motion of the shoulder on forward elevation (flexion) is from zero degrees (arm at side) to 180 degrees (arm straight overhead); 90 degrees of flexion is achieved when the arm is parallel with the floor. Normal abduction of the shoulder is from zero degrees to 180 degrees. Normal internal or external rotation of the shoulder is from zero degrees to 90 degrees. 38 C.F.R. § 4.71, Plate I. Rating Muscle Injuries Prior to July 3, 1997 The regulations pertaining to the veteran's service-connected muscle injury under DC 5302, in effect prior to July 3, 1997, are as follows: Group II. Extrinsic muscles of shoulder girdle (1) Pectoralis major II (costosternal); (2) Latissimus dorsi and teres major; (3) pectoralis minor; (4) rhomboid. (Function: Depression of arm from vertical overhead to hanging at side, (1, 2); downward rotators of scapula, (3, 4); (teres major although technically an intrinsic muscle is included with latissimus dorsi); 1 and 2 act with Group III in forward and backward swing of the arm.) Dominant Nondominant Severe................................ 40 30 Moderately Severe............. 30 20 Moderate............................. 20 20 Slight................................... 0 0 DC 5303 as in effect prior to July 3, 1997 provides for Rating Muscle Group III. Intrinsic muscles of shoulder girdle. (1) Pectoralis major I (clavicular); (2) deltoid. (Function: Elevation and abduction of arm to level of shoulder, act with 1 and 2 Group II in forward and backward swing of arm.) Severe 40 30 Moderately Severe 30 20 Moderate 10 10 Slight 0 0 The old regulations pertaining to principles of combined ratings are as follows: § 4.55 Principles of combined ratings. The following principles as to combination of ratings of muscle injuries in the same anatomical segment, or of muscle Injuries affecting the movements of a single joint, either alone or in combination or limitation of the arc of motion will govern the ratings: (a) Muscle injuries in the same anatomical region, i.e., (1) shoulder girdle and arm, (2) forearm and hand, (3) pelvic girdle and thigh, (4) leg and foot, 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. (b) Two or more severe muscle injuries affecting the motion (particularly strength of motion) about a single joint may be combined but not in combination receive more than the rating for ankylosis of that joint at an "intermediate" angle, except that with severe injuries involving the shoulder girdle and arm, the combination may not exceed the rating for unfavorable ankylosis of the scapulohumeral joint. Claims of an unusually severe degree of disability involving the shoulder girdle and arm or the pelvic girdle and thigh muscles wherein the evaluation under the criteria in this section appears inadequate may be submitted to the Director, Compensation and Pension Service, for consideration under §3.321(b)(l) of this chapter. (c) With definite limitation of the arc of motion, the rating for injuries to muscles affecting motion within the remaining arc may be combined but not to exceed ankylosis at an "intermediate" angle. (d) With ankylosis of the shoulder, the intrinsic muscles of the shoulder girdle (Groups III or IV) are out of commission and carry no rating for injury however severe. The extrinsic muscles (Groups I and II) which act on the shoulder as a whole, may, if severely injured, elevate the rating to ankylosis at an unfavorable angle. (e) With ankylosis of the knee, the hamstring muscles (Group XIII) may, if severely injured, receive the rating for the moderately severe degree of disability as a maximum in combination, and corresponding values for less severe injuries, the major function of these muscles being hip extension. (f) With disability such as flail joint, ankylosis, faulty union, limitation of motion, etc., muscle injuries affecting function at a lower level may be separately rated and combined, always reserving the maximum amputation rating for the most severe injuries. (g) 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 (As in effect prior to July 3, 1997). Rating Muscle Injuries From July 3, 1997 The classification of muscle damage is essentially the same under both the new and the old rating criteria. 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 in paragraph (c) of this section, 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 of 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 in paragraph (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. 38 C.F.R. § 4.55. The revised rating criteria for DC 5302 from July 3, 1997 are as follows: Group II. Function: Depression of arm from vertical overhead to hanging at side (1, 2); downward rotation of scapula (3, 4); 1 and 2 act with Group III in forward and backward swing of arm. Extrinsic muscles of shoulder girdle: (1) Pectoralis major II (costosternal); (2) latissimus dorsi and teres major (teres major, although technically an intrinsic muscle, is included with latissimus dorsi); (3) pectoralis minor; (4) rhomboid. Dominant Nondominant Severe................................ 40 30 Moderately Severe............. 30 20 Moderate............................. 20 20 Slight................................... 0 0 Diagnostic Code 5303 as in effect from July 3, 1997 provides for Rating Muscle Group III. Function: Elevation and abduction of arm to level of shoulder; act with 1 and 2 of Group II in forward and backward swing of arm. Intrinsic muscles of shoulder girdle: (1) Pectoralis major I (clavicular); (2) deltoid. Severe 40 30 Moderately Severe 30 20 Moderate 20 20 Slight 0 0 Additionally, Sec. 4.55 of the revised regulations pertaining to the principles of combined ratings for muscle injuries provides as follows: (a) A muscle injury rating will not be combined with a peripheral nerve paralysis rating of the same body part, unless the injuries affect entirely different functions. (b) For rating purposes, the skeletal muscles of the body are divided into 23 muscle groups in 5 anatomical regions: 6 muscle groups for the shoulder girdle and arm (diagnostic codes 5301 through 5306); 3 muscle groups for the forearm and hand (diagnostic codes 5307 through 5309); 3 muscle groups for the foot and leg (diagnostic codes 5310 through 5312); 6 muscle groups for the pelvic girdle and thigh (diagnostic codes 5313 through 5318); and 5 muscle groups for the torso and neck (diagnostic codes 5319 through 5323). (c) There will be no rating assigned for muscle groups which act upon an ankylosed joint, with the following exceptions: (1) In the case of an ankylosed knee, if muscle group XIII is disabled, it will be rated, but at the next lower level than that which would otherwise be assigned. (2) In the case of an ankylosed shoulder, if muscle groups I and II are severely disabled, the evaluation of the shoulder joint under diagnostic code 5200 will be elevated to the level for unfavorable ankylosis, if not already assigned, but the muscle groups themselves will not be rated. (d) The combined evaluation of muscle groups acting upon a single unankylosed joint must be lower than the evaluation for unfavorable ankylosis of that joint, except in the case of muscle groups I and II acting upon the shoulder. (e) For compensable muscle group injuries which are in the same anatomical region but do not act on the same joint, the evaluation for the most severely injured muscle group will be increased by one level and used as the combined evaluation for the affected muscle groups. (f) For muscle group injuries in different anatomical regions which do not act upon ankylosed joints, each muscle group injury shall be separately rated and the ratings combined under the provisions of Sec. 4.25. 38 C.F.R. § 4.55 (As in effect from July 3, 1997). Discussion The veteran's residuals of lipoblastomatosis with rib segment and right major pectoralis muscle resection with damage to Muscle Groups II and III are currently assigned a 20 percent evaluation under DC 5302. The RO determined that the veteran's muscle injury was equivalent to moderate damage. The regulations provide that disabilities resulting from muscle injuries are to be classified as slight, moderate, moderately severe, or severe. While it is noted that 38 C.F.R. § 4.56 describes muscle damage in terms of injury due to a single bullet, small shell, or shrapnel fragment, the underlying principle is the same regardless of the nature of the injury. 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. With respect to the veteran's claim for entitlement to an increased evaluation for residuals of lipoblastomatosis with rib segment resection and resection of the right major pectoralis muscle to the right chest, a historical review of the record shows injury to Muscle Groups II and III. 38 C.F.R. § 4.73, DC's 5302, 5303. Under the old criteria as contained in 38 C.F.R. § 4.55, muscle injuries in the same anatomical region 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. That regulation also provided that two or more muscles affecting the motion of a single joint could be combined but not in combination receive more than the rating for ankylosis of that joint at the intermediate angle. 38 C.F.R. § 4.55 (as in effect prior to July 3, 1997). The comments in the Federal Register discussed above indicate that no change was intended between the old and revised regulations. The Board notes that recent objective evaluations have shown the scars resulting from the veteran's disabilities are well healed, nontender and nonadherent. In view of the lack of any specific manifestations regarding the scars, a separate compensable rating for the scarring is not warranted. See 38 C.F.R. § 7803, 7804, 7805 (1999). As such, it is unnecessary to consider whether assigning a separate evaluation for the scar would result in pyramiding under 38 C.F.R. Part 4, § 4.14 (1999). Similarly, a separate rating for removal of a rib is not warranted as only one rib was resected. 38 C.F.R. Part 4, Diagnostic Code 5297 (1999). The veteran's principal manifestations are loss of the inferior half of the right pectoralis major muscle and limitation of motion in the shoulder. The objective findings on the VA examinations of record show no more than moderate impairment of the two Muscle Groups involved in this case. In this regard, the veteran's disability is not so severe that it is analogous to the criteria for a moderately severe injury which contemplates a 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. However, each muscle group injury is analogous to a moderate injury contemplated by a through and through or deep penetrating wound of short track from a single bullet, small shell or shrapnel, without explosive effect of high velocity missile, residuals of debridement or prolonged infection. Where there are two muscle groups involved, the old regulations are clear that the evaluation for the most severely injured muscle group will be increased by one level and used as the combined evaluation for the affected muscle groups. In this case, the rating under DC 5302 will therefore be elevated to contemplate a moderately severe muscle injury. Finally, consideration has been given to rating the veteran under the criteria for limitation of motion. However, a rating in excess of 30 percent contemplates limitation of arm motion to 25 degrees from the side. A thirty percent rating contemplates limitation of motion from midway between side and shoulder level. See 38 C.F.R. Part 4, DC 5202. The veteran has motion of the shoulder greater than shoulder level. While functional loss was noted, the examiner was unable to quantify this. Thus, a rating higher than 30 percent under the criteria for limitation of motion is not warranted. Importantly, rating the veteran under both a code for muscle injury and limitation of motion would result in pyramiding, prohibited by 38 C.F.R. § 4.14 (1999), as the applicable muscle codes contemplate limitation of motion. In summary, the Board finds that a rating of 30 percent under Muscle Group 5302 of a dominant extremity is warranted. ORDER An increased rating to 30 percent under Diagnostic Code 5302 for service-connected scar, status post excision of lipoblastomatosis with rib segment resection and resection of the right major pectoralis muscle is granted, subject to VA laws and regulation concerning payment of monetary benefits. Iris S. Sherman Member, Board of Veterans' Appeals