BVA9505102 DOCKET NO. 93-06 590 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUES 1. Entitlement to an increased evaluation for residuals of shell fragment wounds of the right thigh, Muscle Group XIII, currently rated as 10 percent disabling. 2. Entitlement to a total disability rating, for compensation purposes, based on individual unemployability. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD A. S. Nemeth, Associate Counsel INTRODUCTION The veteran's active service extended from March 1943 to August 1945. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 1990 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Detroit, Michigan, which, in part, denied entitlement to individual unemployability based on total disability and an increased evaluation of a service-connected right thigh disability, currently rated as 10 percent disabling. CONTENTIONS OF APPELLANT ON APPEAL The veteran contends that the RO erred in not allowing both his claim for an increased rating for his service-connected right thigh disability and his claim for a total disability rating based on individual unemployability. He contends that the service-connected residuals of his right thigh wound have increased in severity, manifested by cramping and weakness. He also contends that he is no longer able to obtain and sustain substantially gainful employment due to his service-connected disabilities. 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 the claim for an increased evaluation for a service-connected right thigh disability but supports a total disability rating based on individual unemployability. FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the veteran's appeal has been obtained. 2. The veteran's service-connected residuals of his right thigh wound produce no more than a moderate disability. 3. The service-connected wound residuals prevent the veteran from engaging in any form of substantially gainful employment which would be consistent with his education and work experience. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 10 percent for the service-connected residuals of the veteran's right thigh wound have not been met. 38 U.S.C.A. § 1155, 5107 (West 1991); 38 C.F.R. Part 4, including §§ 4.56, 4.72, and Code 5313 (1994). 2. The criteria for a total disability rating, for compensation purposes, based on individual unemployability have been met. 38 U.S.C.A. § 5107 (West 1991); 38 C.F.R. §§ 3.340, 3.341, 4.16 and Part 4, Codes 5131, 5313, 6066, 6502, 7800 (1994). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The veteran's claim is well grounded within the meaning of 38 U.S.C.A. § 5107(a) (West 1991). That is, he has presented a claim which is plausible. All relevant facts have been properly developed. No further assistance to the veteran is required to comply with the duty to assist mandated by 38 U.S.C.A. § 5107(a). Service-connected disabilities are rated in accordance with a schedule of ratings which are based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C.A. § 1155 (West 1991); 38 C.F.R. Part 4 (1994). The veteran, a World War II airplane mechanic-gunner, received multiple injuries, in July 1944, when an anti-aircraft shell exploded near or in his airplane. His most severe wounds were caused by shrapnel hitting his left eye and left hand. The shrapnel caused multiple finger amputations of the veteran's left hand. A panopthalmitis developed in the veteran's injured left eye and the left eye was enucleated in August 1944. He was subsequently fitted for a left eye prosthesis. Service medical records reveal that the veteran had his left index finger and second metacarpal bone removed in May 1945. Other injuries included shrapnel injuries and fractures to his facial area and lacerations of his right thigh and leg. Service medical records indicate that the injuries to the veteran's right thigh were considered to be minor wounds. The veteran first underwent a VA examination in September 1948. Included among the examiner's findings were a broken nose deformity, deviation of septum to the right; and scars on the veteran's face, left hand, and thigh. Under the section for residuals of gunshot wounds or other injuries, the physician noted the following: multiple scars and bony deformity of the left ocular orbit and left side of nose; second, third, and fourth fingers of the left hand amputated - stumps not usable; fifth finger amputated proximal end of second or middle phalanx - movable at metacarpal phalangeal joint - stump well healed; scar of entrance and exit on posterior surface right thigh - well healed; multiple small masses were felt under scars which are part of tendons to the thigh muscles. There was no deformity of the thighs or atrophy of the muscle. On the November 1954 VA examination, it was noted that the veteran was right handed. I. Increased evaluation for a service-connected right thigh disability. The veteran is currently rated as 10 percent disabled by a shell fragment wound of the posterior right thigh. The veteran underwent VA examinations in February 1988 and his complaints included cramps and weakness in his right leg. A radiologic study showed multiple large metallic foreign bodies in the posterior and lateral aspects of the veteran's right thigh. The examiner noted that the veteran's gait was normal, squat was complete, and toe and heel gaits were intact. The surgeon's diagnoses included scars and retained foreign bodies in the right thigh. The veteran was given another VA examination in May 1988. The orthopedic examination disclosed normal deep tendon reflexes and crepitation at the knees, negative straight leg raising bilaterally, and a nontender, depressed, two-inch shrapnel scar on the posterior right thigh. A private physician examined the veteran in March 1990. In his examination report, the physician noted that the veteran complained of cramps in his right thigh. The physician's impression included post-traumatic scarring of the veteran's thigh with residual shrapnel. The veteran was given a VA examination in May 1990 which again revealed a retained metallic foreign body in his right leg. Gait, squat, and toe and heel gaits were normal. It also revealed two small scars on the veteran's right posterior thigh, both measuring less than one square inch each. In May 1991, the veteran testified at an RO hearing on this matter. He testified that prior to his retirement, he began experiencing numbness in his right leg, which especially concerned him since he worked on roofs and towers. A 10 percent rating can be granted where there is a moderate disability in the Group XIII muscles. The next higher evaluation, 30 percent, can be granted for a moderately severe disability. 38 C.F.R. Part 4, including § 4.72 and Code 5313 (1994). 38 C.F.R. § 4.56 (1994) outlines the criteria for rating muscle disabilities due to gunshot wounds or other trauma. A moderate disability is characterized by a through and through or deep penetrating wound by a shrapnel fragment. Additionally, for a moderate rating, there should be no evidence of the explosive effect of a high velocity missile, residuals of debridement, or of prolonged infection. Objective findings should include evidence of entrance scars, linear or relatively small and so situated so as to indicate relatively short track of missile through muscle tissue. Other signs should include moderate loss of deep fascia, muscle substance, impairment of muscle tonus, and definite weakness or fatigue. In order for the next higher rating, 30 percent for a moderately severe disability, to be granted, there should be a through and through or deep penetrating wound by a high velocity missile of small size or large missile of low velocity, with debridement, prolonged infection, or sloughing of soft parts, intermuscular cicatrization. There must also be prolonged hospitalization for the treatment of such a severe wound. Service medical records indicate that the veteran's right thigh wound was relatively minor. There is no evidence of infection or that the thigh wound required prolonged treatment. The veteran's extensive treatment following his injury was due to the eye and left hand wounds. The medical evidence attached to the claims folder additionally notes that the veteran's scars on his thigh are relatively small. Therefore, the findings do not approximate a moderately severe disability. The veteran has no more than a moderate disability in his Group XIII muscles. Consequently, an increased rating for the residuals of the veteran's service- connected right thigh injury is denied. II. Total disability rating based on individual unemployability. The veteran's service-connected disabilities, upon which a determination of individual unemployability will be made, are the following: amputations of the second, third, fourth, and fifth fingers of the left hand, 50 percent disabling; enucleation of the left eye, 40 percent disabling; residuals of multiple wounds of the face and nose and mandibular area with deformity of the left ocular orbit, 30 percent disabling; shell fragment wound, posterior right thigh, 10 percent disabling; broken nose, deformity, deviation of septum to right, 10 percent disabling. The combined disability rating for the veteran is 80 percent. The veteran underwent VA examinations in February 1988 by VA surgical, eye, and ear, nose, and throat specialists. The veteran complained of poor vision and a watery right eye in addition to cramps and weakness in his right leg. The VA eye specialist noted that the veteran removed his left eye prosthesis approximately twenty times a day due to complaints of a rough spot on the prosthesis and mucous discharge. The right eye was found to be within normal limits. The examiner found manifestations of a poorly fitting prosthesis, including the inability of the veteran to close his eyelids over the prosthesis due to dryness, mucous discharge, and injection of the conjunctiva. A surgeon noted various scars on the veteran's body, the left hand amputations, and that the veteran's gait was normal, squat was complete, and toe and heel gaits were intact. The surgeon's diagnoses included osteoporosis and degenerative arthritis in the veteran's left hand, and scars and retained foreign bodies in his right thigh. The ear, nose, and throat specialist diagnosed history of fractured nose and septal deviation to the right, left maxillary thickening, and retained foreign bodies. A radiologic study conducted in February 1988 showed multiple retained foreign bodies in the veteran's facial area. Two small densities appeared in the frontal sinus. There was a clouding of the left maxillary sinus with a retained foreign metallic body. The examiner opined that the clouding was mostly due to chronic mucous membrane thickening or previous trauma. Multiple large metallic foreign bodies were found in the posterior and lateral aspects of the right thigh. Examination of the veteran's left hand revealed amputations at the proximal interphalangeal joints of the third, fourth, and fifth fingers and at the base of the second metacarpal bone of the second finger, and old avulsion fracture of the distal phalanx of the thumb, as well as a suggestion of post-traumatic arthritis. The veteran was given another VA examination in May 1988. The ear, nose, and throat examination revealed no significant cosmetic defect and nasoseptal deviation to the right with significant airway obstruction. The orthopedic examination showed the amputations on the veteran's left hand and that the remaining portion of the fifth finger had good flexion and movement. It also disclosed normal deep tendon reflexes and crepitation at the knees, negative straight leg raising bilaterally, and a nontender, depressed, two-inch shrapnel scar on the posterior right thigh. The VA eye examiner noted treatment for epiphora of the right eye by a private opthamologist. The examiner noted that the veteran had received a new left eye prosthesis one month earlier. No abnormality of the left eyelids or conjunctiva were reported. A private physician examined the veteran in March 1990. In his examination report, the physician noted the veteran's complaints of cramps in his right thigh, and that the veteran's left eye frequently weeped, his prosthesis required cleaning four to five times per day, his right eye was not adequate for fine work, and that his vision was becoming worse. The physician's impression included the following: extensive post-war injuries with absent left eye, increased ocular drainage on the left, deformity of the maxillary sinus, absent fingers, on the left, post-traumatic 2-5, and post-traumatic scarring of the veteran's thigh with residual shrapnel. The physician offered his opinion that the veteran was now completely disabled. The veteran was given a VA examination in May 1990 which again revealed a retained metallic foreign body in his right leg. Gait, squat, and toe and heel gaits were normal. In May 1991, the veteran testified before an RO hearing officer. He testified that prior to his retirement, he began experiencing numbness in his right leg, which especially concerned him since he worked on roofs and towers. He also began having trouble grasping things with his left hand and with discharge and irritation in his left eye. The veteran testified that throughout most of his career in the radio and television repair business, he worked mainly with tube television sets which did not require fine vision or dexterity. As he approached retirement from his business, the television sets became more circuit board oriented. This technology caused the veteran problems as he could not adequately perform his work. He attempted to use trifocals which helped somewhat, but not totally. Also, his inability to grasp with his left hand and have full confidence in his right leg forced him to discontinue installing antennas. The veteran stated that his formal education ended in approximately his junior year in high school. He subsequently worked a variety of jobs and when he returned from service, he worked in the paper industry as a cutterman. Due to his injuries, he could not adequately perform that job and he eventually left the paper industry because of the dust and an eye infection. He subsequently worked in a nursery, farmed, drove a truck, and operated a crane. He eventually began work in the television repair business. He stated that he made an attempt at selling, presumably televisions and/or radios, but faced too much competition from major stores which forced him to discontinue selling. In April 1992, the veteran was given a VA examination. The physician noted the veteran's amputations of the left hand and additionally assessed the functionability of the left hand. Flexion and extension of the thumb was good. He could grasp things with his thumb, but the hand as a unit was not highly functional. The physician stated that no fine movement was possible and that the veteran could not use the hand for any type of repair or holding a screwdriver, as the hand did not have any strength. Total disability ratings may be assigned where the schedular rating for the service-connected disability or disabilities is less than 100 percent, when it is found that the service- connected disabilities are sufficient to produce unemployability without regard to advancing age or any non-service-connected disabilities. 38 C.F.R. §§ 3.340, 3.341, 4.16 (1994). The veteran is currently rated as 50 percent disabled for amputations of his second, third, fourth, and fifth fingers of his left hand. While this rating is appropriate for the injury to the minor hand, the veteran is entitled to an additional 10 percent rating under 38 C.F.R. Part 4, Code 5131(d) (1994). This section states that the "amputation ... of metacarpal bones (more than one-half the bone lost) in multiple finger injuries will require a rating of 10 percent added to (not combined with) the ratings, multiple finger amputations, subject to the amputations rule applied to the forearm." The record shows that the veteran had his left index finger and second metacarpal bone removed in May 1945. A radiology examination dated November 1954, in addition to subsequent examinations, have confirmed the absence of the second metacarpal bone. An additional 10 percent disability rating should be granted for the veteran's amputated left second metacarpal bone, bringing the rating for the left hand amputations to 60 percent. 38 C.F.R. Part 4, Code 5131 (1994) The veteran is correctly rated for the enucleation of his left eye as 40 percent disabling, as there is no evidence in the record of any injury or service-connected disability to his right eye. The Board notes the veteran's complaints, but the record does not show any chronic disorders of the right eye. Therefore, the Board finds that the veteran is properly rated under this code. 38 C.F.R. Part 4 Code 6066 (1994). Scars to the head, face, or neck can be rated as to the degree of disfigurement associated with the scars. The veteran currently has a rating of 30 percent for severe multiple scars and deformities of his face and nose and mandibular area with deformity of the left ocular orbit. A 30 percent rating can be granted for severely disfiguring scars. The next higher rating can be granted for complete or exceptionally repugnant deformity of one side of the face or for marked or repugnant bilateral disfigurement. Attached to the claims file are slides of the veteran's face which do not exhibit such a deformity to warrant a rating beyond 30 percent. Additionally, there is no other evidence of record which indicate a disfigurement beyond the current severe rating. 38 C.F.R. Part 4 Code 7800 (1994). The veteran is also service connected for a broken nose and deviation of the septum as 10 percent disabling. A 10 percent rating is the maximum rating for a traumatic deflection of the septum. A 30 percent rating could be granted for chronic atrophic rhinitis, loss of part of the nose to expose both nares, or chronic sphenoid sinusitis with severe, frequently incapacitating occurrences. There is no evidence in the record to support a higher rating for the wound to the veteran's nose. Therefore, the Board finds that the veteran is properly rated under this code. 38 C.F.R. Part 4 Code 6502 (1994). The record indicates that the veteran has approximately ten years of education. The veteran indicated in a hearing in June 1987 that he had additional study in television repair and in gunsmithing. The record also indicates the severity of the veteran's service-connected disabilities, with the apparently worsening eye disability. The Board notes that the veteran has been successful in his career despite the severity of his service-connected disabilities. He has a combined rating of 80 percent, not taking into account the additional 10 percent to be awarded for the amputation of his left second metacarpal bone, which will increase the combined rating to 90 percent. 38 C.F.R. § 4.25 (1994). He has made an extraordinary effort to work despite his profound service-connected disabilities. It is understandable that the adjustments that the veteran had made in order to work, had become too stressful, and would be so regardless of age. The veteran's service-connected disabilities have finally reached a point where they prevent him from obtaining and sustaining substantially gainful employment, in light of his education and experience. Therefore, entitlement to a total disability rating, for compensation purposes, based on individual unemployability is warranted. ORDER An increased disability rating for a service-connected right thigh disability is denied. A total disability rating, for compensation purposes, based on individual unemployability is granted, subject to the laws and regulations governing the payment of monetary awards. JAN DONSBACH 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.