Citation Nr: 0001112 Decision Date: 01/13/00 Archive Date: 01/27/00 DOCKET NO. 97-03 803A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Buffalo, New York THE ISSUES 1. Entitlement to a rating in excess of 20 percent for residuals of multiple incisions, drainage, and debridement of the left tibia, with scarring. 2. Entitlement to a higher (compensable) evaluation for inactive chronic osteomyelitis of the left tibia. 3. Entitlement to a higher (compensable) evaluation for donor site scars of the left posterior thigh. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD G. R. Gleeson, Associate Counsel INTRODUCTION The veteran served on active military duty from January 1989 to September 1996. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 1996 rating decision of the Department of Veterans Affairs (VA) Regional Office in Buffalo, New York (RO), which granted service connection for residuals of a puncture wound of the left leg, initially evaluated as noncompensable, from September 21, 1996 (day after the veteran's separation from service as the veteran's original claim for service connection was received within one year of service). In a May 1997 hearing examiner decision, evaluation of the left leg disability was divided into three separate disabilities, and the veteran was given a noncompensable evaluation for donor site scars of the left thigh, a noncompensable evaluation for chronic osteomyelitis of the left tibia, and a 20 percent evaluation for residuals of multiple incisions, drainage, and debridement of the left tibia with scarring, effective from September 21, 1996. The veteran testified at a September 1999 Travel Board hearing before the undersigned Board member. At that time he stated that he wished to file claims for increased ratings for hypertension and left scrotal surgical scar. These matters are referred to the RO for appropriate action. FINDINGS OF FACT 1. The RO has obtained all relevant evidence necessary for an equitable disposition of the claims. 2. The veteran's residuals of incisions, drainage and debridement of the left tibia are productive of moderate muscle damage and tender scars. 3. The veteran also has inactive chronic osteomyelitis of the left tibia, without evidence of active infection within the past five years. 4. The veteran's donor site scars of the left thigh are well healed and are not painful or tender, nor do they cause limitation of function of the left lower extremity. CONCLUSIONS OF LAW 1. The criteria for an evaluation in excess of 20 percent for residuals of incisions, drainage and debridement of the left tibia with scarring have not been met. 38 U.S.C.A. § 1155, 5107 (West 1991); 38 C.F.R. § 4.73, 4.118, Diagnostic Codes 5312, 7804 (1999). 2. The criteria for an evaluation of 10 percent for chronic osteomyelitis, since September 21, 1996, have been met. 38 U.S.C.A. § 1155, 5107 (West 1991); 38 C.F.R. § 4.71a, Diagnostic Code 5000 (1999). 3. The criteria for a compensable evaluation for donor site scars of the left thigh have not been met. 38 U.S.C.A. § 1155, 5107 (West 1991); 38 C.F.R. § 4.118, Diagnostic Codes 7804, 7805 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The veteran's claim is an appeal of the original assignment of disability evaluations, and, as such, the claims for higher evaluations are well grounded. 38 U.S.C.A. § 5107(a); Shipwash v. Brown, 8 Vet. App. 218, 224 (1995). Moreover, the severity of the disabilities at issue is to be considered during the entire period from the initial assignment of disability rating to the present time. See Fenderson v. West, 12 Vet. App. 119, 126 (1999). The Board is satisfied that all relevant facts have been properly and sufficiently developed with regard to these issues. Accordingly, no further development is required to comply with the duty to assist the veteran in establishing his claims. See 38 U.S.C.A. § 5107(a). Disability evaluations are determined by evaluating the extent to which a veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing his symptomatology with the criteria set forth in the Schedule for Ratings Disabilities. 38 U.S.C.A. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10. If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the veteran. 38 C.F.R. § 4.3. The veteran's entire history is reviewed when making a disability evaluation. 38 C.F.R. § 4.1. The veteran was granted service connection for residuals of a puncture wound to the left leg in an October 1996 rating decision, with an initial noncompensable evaluation. The history of the injury is that the veteran received a puncture wound from a tree branch in December 1991, which did not heal and later developed into a necrotic ulcer. In late 1992, findings were consistent with osteomyelitis. The veteran apparently underwent two surgeries of the area: first, a drainage and debridement, and later a skin graft repair of the wound, with the donor skin taken from the left thigh. Thereafter, the veteran continued to suffer from pain in his left lower leg, especially with activity. The veteran had a VA examination in March 1997. The veteran stated that he had most of the pain in his leg when standing or walking. He was working in a machine shop, a job which did not involve heavy working, walking or lifting; the job was primarily sedentary in nature. He had not lost any time from work due to his left leg. He had had no recent treatment to the left lower extremity. He was taking aspirin for pain. On examination, the veteran's left thigh had two rectangular areas of donor skin graft sites. Both were well- healed, non-tender, and not adherent to the underlying tissue, and there was no evidence of muscle atrophy in the left thigh. He had good strength in the left knee. Range of motion was flexion of 120 degrees, extension of 0. Muscle testing revealed 5/5 strength of the quadriceps, hamstring, gastrocnemius, soleus, tibialis anterior, and peroneus longus. The left leg seemed warmer than the right. The veteran could heel and toe walk without difficulty, however the entire scarred area on the anterior surface of the left tibia was exquisitely tender. The scarred area of the left tibia, including the site of the incision, drainage and debridement as well as the rotation graft host site were well-healed, but somewhat fixed to the underlying tissue. There was no evidence of atrophy of the underlying musculature. Diagnosis was chronic osteomyelitis of the left tibia. X-rays showed normal left tibia and fibula with three metallic clips. Photos were also taken of the veteran's left lower extremity, and these are of record. Another VA examination to assess the veteran's scars was performed in August 1997. The veteran stated that his leg scar was occasionally painful after walking long distances. On examination, there was a 15-centimeter x 13-centimeter scar on the left anterior lateral thigh, consistent with a split thickness graft donor site. The scar was slightly elevated, but nontender to palpation, well-healed, and without evidence of infection, ulceration or limitation of motion. On the left anterior lateral leg was a 6-centimeter x 7-centimeter rotational flap, appearing well-healed. Adjacent to the flap was a 10-centimeter x 11-centimeter graft, appearing to be well-healed except for a depressed area. The graft scar was nontender to palpation, without evidence of keloid formation, hernia formation, limitation of motion, vascular supply alteration, or inflammation. The leg scars, both on the anterior thigh and left lateral leg, were prominent but not overtly severe in cosmetic disfigurement. (Scars that are rated on the basis of disfigurement are of the head, face, and neck. 38 C.F.R. § 4.118, Code 7800.) None of the scars appeared to significantly limit function, with the exception of causing pain on long walking. The claims file contains VA Medical Center (VAMC) outpatient treatment records. These records primarily relate to complaints other than the veteran's left leg disabilities. In January 1997, the veteran complained of inability to run, walk long distances, or stand for too long. The skin graft site was clear and dry. The assessment was stable. In May 1997, the veteran's leg was examined. Scars were noted, including that there was some keloid formation on the area of skin graft on the upper lateral aspect of the left thigh. The area of surgical debridement on the lower left leg was minimally tender with slight hyperesthesia, but predominantly numb in the area. The examiner felt these were considerably disfiguring. There was no limitation to range of motion or function. The veteran testified at a Travel Board hearing in September 1999. The veteran stated that it was difficult for him to get a job due to his left leg. He was currently working for the postal service, but his leg was painful and swollen on some days. He was hoping to get an indoor position with the postal service at some time, but he was currently working as a mail carrier. He stated that he could not wear shorts, as people would look at his legs. He was unable to play sports and do other activities with his son. His symptoms were primarily pain with walking in the lower leg, next to the bone. He also had occasional swelling of the bottom of his leg. He had sought treatment at the emergency room and had only been given aspirin. He stated that at the time of the injury, the bone became infected and there was drainage, including foul smelling liquids. He returned several times for treatment and was given antibiotics. The leg continued to swell up and eventually he was sent to a specialist, who recommended surgery. Incisions, drainage, debridement of the left tibia The veteran's incisions, drainage, debridement of the left tibia, with scarring, has been evaluated as 20 percent disabling since September 21, 1996, or the date that service connection went into effect for residuals of the injury to the left leg. This disability is evaluated pursuant to criteria for evaluating muscle injuries and scars. Under 38 C.F.R. § 4.73, Diagnostic Code 5312, muscles of Group XII are afforded a 20 percent evaluation for moderately severe disability, and a 10 percent evaluation for moderate muscle damage. Under 38 C.F.R. § 4.118, Diagnostic Code 7804, scars which are tender and painful on objective demonstration are afforded a 10 percent evaluation. The veteran's symptoms are currently evaluated as causing moderate muscle disability with tender and painful scarring. The Board acknowledges that certain provisions in the Schedule for Rating Disabilities dealing with muscle injuries were amended effective July 3, 1997. See 62 Fed. Reg. 30,235 (June 3, 1997). Such criteria are primarily for muscle injuries due to gunshot or shell fragment wounds but, as the veteran's injury was penetrating in nature and involved muscle of the left leg, the criteria are set forth below. The Board notes this change took effect subsequent to the receipt of the veteran's claim. When a law or regulation changes after a claim has been filed, but before the administrative or judicial appeal process has been concluded, the version most favorable to the veteran generally applies. Karnas v. Derwinski, 1 Vet. App. 308, 313 (1991); White v. Derwinski, 1 Vet. App. 519, 521 (1991). Under the circumstances, the veteran's increased rating claims must also be reviewed in light of the regulatory changes dealing with the pertinent rating criteria as well as under the applicable regulations in effect when the veteran's claims were filed. See also Fischer v. West, 11 Vet. App. 121, 123 (1998) (applying Karnas to change in rating criteria for muscle injuries). Under the rating criteria in effect prior to July 3, 1997, (hereinafter the "former rating criteria") four grades of severity of disabilities due to muscle injuries are recognized for rating purposes: slight, moderate, moderately severe and severe. The type of disability pictures are based on the cardinal symptoms of muscle disability (weakness, fatigue-pain, uncertainty of movement) and on the objective evidence of muscle damage and the cardinal signs of muscle disability (loss of power, lowered threshold of fatigue and impairment of coordination). 38 C.F.R. § 4.54 (1996). For purposes of the present case, the following criteria is pertinent with regard to the former rating criteria: (b) Moderate disability of muscles. Type of injury. Through and through or deep penetrating wounds of relatively short track by single bullet or small shell or shrapnel fragment are to be considered as of at least moderate degree. Absence of explosive effect of high velocity missile and residuals of debridement or of prolonged infection. History and complaint. Service department record or other sufficient evidence of hospitalization in service for treatment of wound. Record in the file of consistent complaint on record from 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 injured muscles. Objective findings. Entrance and (if present) exit scars linear or relatively small and so situated as to indicate relatively short track of missile through muscle tissue; signs of moderate loss of deep fascia or muscle substance or impairment of muscle tonus, and of definite weakness or fatigue in comparative tests. (In such tests the rule that with strong efforts, antagonistic muscles relax is to be applied to insure validity of tests.) (c) Moderately severe disability of muscles. Type of injury. Through and through or deep penetrating wound by high velocity missile of small size or large missile of low velocity, with debridement or with prolonged infection or with sloughing of soft parts, intermuscular cicatrization. History and complaint. Service department record or other sufficient evidence showing hospitalization for a prolonged period in service for treatment of wound of severe grade. Record in the file of consistent complaint of cardinal symptoms of muscles wounds. Evidence of unemployability because of inability to keep up with work requirements is to be considered, if present. Objective findings. Entrance and (if present) exit scars relatively large and so situated as to indicate track of missile through important muscle groups. Indications on palpation of moderate loss of deep fascia, or moderate loss of muscle substance or moderate loss of normal firm resistance of muscles compared with sound side. Tests of strength and endurance of muscle groups involved (compared with sound side) give positive evidence of marked or moderately severe loss. 38 C.F.R. § 4.56 (1996). Under the rating criteria in effect from July 3, 1997, (hereinafter the "current rating criteria"), 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, and disabilities resulting from muscle injuries shall be classified as slight, moderate, moderately severe or severe. 38 C.F.R. § 4.56(c-d) (1999). For purpose of the present case, the criteria of moderate and moderately severe are pertinent. Under the current rating criteria: (2) 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 injury 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. (3) 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. 38 C.F.R. § 4.56 (1999). Under both the current and former criteria the veteran's muscle damage due to incision, drainage and debridement is no more than moderately disabling. Under former criteria, there is no evidence that the veteran's wound was of severe grade, requiring prolonged hospitalization. There is no evidence of unemployability, in that the veteran has maintained relatively steady employment since separation from service. There is no evidence on palpation of moderate loss of deep fascia, or moderate loss of muscle substance or moderate loss of normal firm resistance of muscles compared with sound side. The Board notes that the veteran had 5/5 muscle strength at his March 1997 examination in all relevant muscles. The same criteria are not met under current regulations, including a lack of prolonged hospitalization, and no indication on palpation of loss of deep fascia, muscle substance or normal firm resistance of muscles. Although the leg is impaired to the extent that it causes the veteran pain with activity, this is contemplated in the criteria for a moderate disability, which include a lower threshold for fatigue. The Board finds that 10 percent for moderate symptomatology is sufficient to compensate for the degree of muscle damage present. In addition, however, the veteran is entitled to compensation for painful and tender scars at the site of the incision and debridement. Under 38 C.F.R. § 4.118, Diagnostic Code 7804, scars which are tender and painful on objective demonstration are assigned a 10 percent evaluation. Evaluation for disfigurement due to scarring is available only for scars on the head face or neck. 38 C.F.R. § 4.118, Diagnostic Code 7800. It was noted at the veteran's March 1997 VA examination that the scarring on the anterior left leg was exquisitely tender. Further, at his appointment in May 1997, some tenderness was noted. Based on this evidence, the Board finds a 10 percent evaluation for scar tenderness at the site of debridement is warranted. Thus, the total evaluation for muscle disability and scarring at the site of debridement is continued at 20 percent. As the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not applicable, and the claim for a rating in excess of 20 percent for residuals of multiple incisions, drainage, and debridement of the left tibia, with scarring, must be denied. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Osteomyelitis After the veteran's left leg wound became infected, he was treated periodically in service. A service medical record dated in October 1992 states that there are findings consistent with osteomyelitis. The diagnosis at the veteran's VA examination in March 1997 was "chronic osteomyelitis of the left tibia, residuals of multiple surgical procedures for incision and drainage and debridement of the anterior aspect of the left tibia." As the veteran has a diagnosis of chronic osteomyelitis, his disability should be evaluated as such. 38 C.F.R. § 4.43 provides: Chronic, or recurring, suppurative osteomyelitis, once clinically identified . . . should be considered as a continuously disabling process, whether or not an actively discharging sinus or other obvious evidence of infection is manifest from time to time, and unless the focus is entirely removed by amputation will entitle to a permanent rating to be combined with other ratings for residual conditions, however, not exceeding amputation ratings at the site of election. Further, osteomyelitis is afforded a 10 percent evaluation if inactive, following repeated episodes, without evidence of active infection in past five years; and a 20 percent evaluation with discharging sinus or other evidence of active infection within the past five years. 38 C.F.R. § 4.71a, Diagnostic Code 5000. In this case, there is no evidence of infection in the past five years, however there is evidence that the veteran had a prolonged infection while in service, and has been given a diagnosis of chronic osteomyelitis. The Board concludes that a 10 percent evaluation for inactive chronic osteomyelitis is warranted. Donor site scarring Finally, the veteran has asked for a compensable evaluation for the scar on his left thigh, the donor site for the skin graft on his lower left leg. As noted above, superficial scars which are tender and painful on objective demonstration are assigned a 10 percent evaluation. 38 C.F.R. § 4.118, Diagnostic Code 7804. However, on examination in both March and August 1997, the veteran's donor site scar of the left thigh was well-healed, nontender, and not adherent to underlying tissue, without evidence of muscle atrophy. A scar may also be assigned compensation based on limitation of function of the affected part. 38 C.F.R. § 4.118, Diagnostic Code 7805. However, it was specifically noted at the August 1997 examination that there is no limitation of function due to scarring. The veteran has full strength and muscle development of the left thigh. Further, the veteran has not described his left thigh scar as causing any pain or limitation of function. On range of motion testing, the veteran had range of motion of the left leg of from 0 to 120 degrees, with the normal range being 0 to 140 degrees. See 38 C.F.R. § 4.71, Plate II. The Board concludes that a compensable evaluation for the donor site scar is not warranted. As the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not applicable, and claim for a compensable rating for donor site scars of the left thigh must be denied. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER A rating in excess of 20 percent for residuals of multiple incisions, drainage, debridement of the left tibia, with scarring, since September 21, 1996, is denied. An evaluation of 10 percent for inactive chronic osteomyelitis of the left tibia, since September 21, 1996, is granted, subject to the laws governing the granting of monetary benefits. A higher (compensable) evaluation for donor site scars of the left posterior thigh, since September 21, 1996, is denied. R. F. WILLIAMS Member, Board of Veterans' Appeals