Citation Nr: 0005411 Decision Date: 02/29/00 Archive Date: 03/07/00 DOCKET NO. 98-10 377 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Manila, Philippines THE ISSUES 1. Entitlement to a rating in excess of 20 percent for left index finger amputation. 2. Entitlement to a rating in excess of 10 percent for the residuals of a shrapnel wound to the left thigh, Muscle Group XIV. 3. Entitlement to a compensable rating for a left knee scar. 4. Entitlement to a compensable rating for right arm scars. ATTORNEY FOR THE BOARD T. L. Douglas, Associate Counsel INTRODUCTION The veteran had recognized guerrilla service from February to November 1945. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 1998 rating decision by the Manila, Philippines, Regional Office (RO) of the Department of Veterans Affairs (VA). FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of this appeal has been obtained. 2. The veteran's left index finger amputation is manifested by a well healed amputation stump at the proximal interphalangeal joint; the veteran is right-handed. 3. The veteran's residuals of a shrapnel wound to the left thigh with involvement of Muscle Group XIV are manifested by a slightly depressed, well healed scar with no tissue loss, reports of pain, and no more than moderate injury of Muscle Group XIV. 4. Persuasive medical evidence demonstrates the veteran's left knee scar is not painful or tender on objective demonstration, and is productive of no appreciable functional impairment. 5. Persuasive medical evidence demonstrates the veteran's right arm scars are not painful or tender on objective demonstration, and are productive of no appreciable functional impairment. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 20 percent for left index finger amputation have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. § 4.71a, Diagnostic Code 5153 (1999). 2. The criteria for a rating in excess of 10 percent for the residuals of a shrapnel wound to the left thigh with involvement of Muscle Group XIV have not been met. 38 U.S.C.A. §§ 1155, 5107; 38 C.F.R. §§ 4.7, 4.56, 4.73, Diagnostic Code 5314 (1999). 3. The criteria for a compensable rating for a left knee scar have not been met. 38 U.S.C.A. §§ 1155, 5107; 38 C.F.R. §§ 4.7, 4.31, 4.118, Diagnostic Codes 7804, 7805 (1999). 4. The criteria for a compensable rating for right arm scars have not been met. 38 U.S.C.A. §§ 1155, 5107; 38 C.F.R. § 4.7, 4.31, 4.118, Diagnostic Codes 7804, 7805 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Initially, the Board notes that the veteran's higher rating claims are found to be well-grounded under 38 U.S.C.A. § 5107(a) (West 1991). That is, he has presented claims which are plausible. Murphy v. Derwinski, 1 Vet. App. 78 (1990). In general, an allegation of increased disability is sufficient to establish a well-grounded claim seeking an increased evaluation. Proscelle v. Derwinski, 2 Vet. App. 629 (1992). The Board is also satisfied that all relevant facts have been properly developed, and that no further assistance is required in order to satisfy the duty to assist mandated by 38 U.S.C.A. § 5107(a). Disability evaluations are determined by the application of the VA's Schedule for Rating Disabilities (Ratings Schedule), 38 C.F.R. Part 4. The percentage ratings contained in the Ratings Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. 38 U.S.C.A. § 1155 (West 1991); 38 C.F.R. § 4.1 (1999). It is the responsibility of the rating specialist to interpret reports of examination in the light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability present. 38 C.F.R. § 4.2 (1999). Consideration of factors wholly outside the rating criteria constitutes error as a matter of law. Massey v. Brown, 7 Vet. App. 204, 207-08 (1994). Evaluation of disabilities based upon manifestations not resulting from service- connected disease or injury is prohibited. 38 C.F.R. § 4.14 (1999). When there is a question as to which of two evaluations to apply, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating, otherwise the lower rating shall be assigned. 38 C.F.R. § 4.7 (1999). The United States Court of Appeals for the Federal Circuit has recognized the Board's "authority to discount the weight and probity of evidence in light of its own inherent characteristics and its relationship to other items of evidence." Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997). The United States Court of Appeals for Veterans Claims (Court) has held that disabilities may be rated separately without violating the prohibition against pyramiding unless the disorder constitutes the same disability or manifestations. See Evans v. Brown, 9 Vet. App. 273, 281 (1996). Left Index Finger Amputation The Rating Schedule provides compensable ratings for single finger amputation of the index finger to the minor extremity for amputation through the middle phalanx or at the distal joint (10 percent), or if the amputation is with or without metacarpal resection at the proximal interphalangeal joint or proximal thereto (20 percent). See 38 C.F.R. § 4.71a, Diagnostic Code 5153 (1999). In this case, the record reflects that during a November 1951 VA orthopedic examination the veteran reported that while assaulting enemy positions he was hit by shrapnel from a hand grenade in the left hand. Examination revealed the veteran's left index finger was amputated at the proximal interphalangeal joint with a good stump. There was no limitation of motion at the metacarpophalangeal joint. The veteran's handgrip was equal, bilaterally. X-rays of the left index finger revealed an amputated stump at the proximal phalanx with good soft tissue covering. The diagnoses included amputation of the left index finger at the proximal interphalangeal joint with a good stump. Subsequent examination reports show the veteran is right hand dominant. A November 1953 rating decision granted entitlement to service connection for amputation of the left index finger and assigned a 10 percent disability evaluation. An October 1970 rating decision assigned a 20 percent evaluation for amputation of the left index finger from March 16, 1950. That evaluation has remained in effect. A February 1993 private medical report from Dr. P.N.L. stated the veteran reported severe recurrent pain of the left index finger involving parts affecting the left hand. An examination revealed old deformity of the left hand with residuals of left index finger amputation through the proximal phalanx. It was noted the veteran complained of continuous recurrent pain of the left wrist and hand with a resulting weakness of handgrip. The physician stated there were multiple scars over the dorsum of the base of the left index finger and dorsum of the first interosseous space of the left hand with limitation of motion of the left wrist and hand, and noted the veteran could not grip a light object in his left hand due to pain. The diagnoses included amputation of the left index finger with pain and limitation of motion of the parts affected. During VA examinations in April 1993 the veteran complained of pain in the left hand and index finger. Examination revealed no inflammation or swelling. The scar to the left index finger was nondepressed, nontender, and nonadherent. It was noted the amputation was at the proximal interphalangeal joint and there was no limitation of motion in the joint above the stump. The veteran had left handgrip strength slightly weaker than the right. X-rays of the left index finger and left hand revealed left index finger amputation, as well as, gouty arthritis of the remaining fingers of the left hand. A January 1997 report from Dr. P.N.L. noted examination of the veteran's left hand revealed amputation of the left index finger with minimal tissue loss. There was fair muscle strength with difficulty in picking up objects due to pain and moderate loss of muscle substance. VA examination in July 1997 found a well-healed amputation of the left index finger at the proximal interphalangeal joint. No defects to the veteran's circulation and skin in the area were noted, and there was no evidence of infection. The metacarpophalangeal joint appeared to be intact, with no evidence of limitation of motion or instability. The examiner also noted the veteran had changes consistent with progressive gouty arthritis to the left hand and wrist. X- ray examination showed the veteran's left hand was unchanged since an April 1993 study. Neurologic examination found no defects. A March 1998 private medical report from Dr. E.U.G. stated the veteran reported recurrent pain to the area of the amputated left index finger and the joints of the left hand. It was noted examination revealed amputation with metacarpal resection, more than half the bone lost, and weakened movement of the left hand due to pain and limitation of motion of the left wrist and left forearm. The diagnoses included amputation of the left index finger with weakened movement and limitation of motion of the part affected. Based upon the evidence of record, the Board finds entitlement to a rating in excess of 20 percent for left index finger amputation is not warranted. The Board notes 20 percent is the maximum schedular rating possible for amputation of the index finger of the minor extremity. Although a higher or separate rating may be possible for limitation of motion and pain on use of the left hand and wrist, the Board finds such ratings are not warranted in this case. While the private medical reports note the veteran's pain and limitation of motion to the left hand and wrist, they do not address the extent to which the veteran's nonservice-connected gouty arthritis contributed to those symptoms. As the veteran's gouty arthritis is not shown to be related to the service-connected disability, the Board finds the April 1993 and July 1997 VA opinions which found no limitation of motion in the area of the amputation are persuasive. The latter reports do not implicate the service- connected disability as the cause of additional dysfunction in the left hand and wrist. As shown above, the Board has considered all potentially applicable provisions of 38 C.F.R. Parts 3 and 4, whether or not they have been raised by the veteran, as required by Schafrath v. Derwinski, 1 Vet. App. 589 (1991). In this case, the Board finds no provision upon which to assign a higher rating. When all the evidence is assembled VA is then responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). The Board finds the preponderance of the evidence is against the claim for a rating in excess of 20 percent for left index finger amputation. Residuals of a Shrapnel Wound to the Left Thigh The Board notes that during the course of this appeal, the rating criteria for muscle injuries were revised. See 62 Fed. Reg. 30327-28 (June 3, 1997). The Court has held where the law or regulations change while a case is pending, the version most favorable to the claimant applies, absent congressional intent to the contrary. Karnas v. Derwinski, 1 Vet. App. 308, 312-313 (1991). Therefore, the veteran's higher rating claim will be considered under both the old and new law. Under the old version of the law, VA regulations provided that in rating disability from injuries of the musculoskeletal system, attention was to be given first to the deeper structures injured, bones, joints and nerves. See 38 C.F.R. § 4.72 (in effect prior to July 3, 1997). Current VA regulations provide that for VA ratings 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. See 38 C.F.R. § 4.56(c) (1999). The Ratings Schedule provides that moderate muscle injury disability results when there is evidence of a 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; and when there are objective findings of entrance and (if present) exit scars, small or linear, indicating short track of missile through muscle tissue, with 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. See 38 C.F.R. § 4.56 (effective before and after July 3, 1997). A moderately severe muscle injury is manifested by objective findings of relatively large entrance and (if present) exit scars so situated as to indicate the track of a missile through important muscle groups, indications on palpation of moderate loss of deep fascia, moderate loss of muscle substance, or moderate loss of normal firm resistance of muscles compared with the sound side; and when tests of strength and endurance of the muscle groups involved (compared with the sound side) give positive evidence of marked or moderately severe loss. Id. Severe disability of muscles is manifested by objective evidence of extensive, ragged, depressed and adherent scars of skin so situated as to indicate wide damage to muscle groups in the track of the missile with possible x-ray evidence of minute multiple scattered foreign bodies indicating the spread of intermuscular trauma and the explosive effect of the missile, moderate or extensive loss of deep fascia, or muscle substance on palpation. Id. There would also be evidence of soft or flabby muscles in the wound area, and there would be no swelling or hardening in contraction. Tests of strength or endurance compared with the sound side or of coordinated movements would show positive evidence of severe impairment of function, and electrical tests would demonstrate diminished excitability to faradic current compared with the sound side but no reaction of degeneration. Visible or measured atrophy may or may not be present, and adaptive contraction of an opposing group of muscles would indicate severity. Adhesion of the scar to one of the long bones, scapula, pelvic bones, sacrum or vertebrae with epithelial sealing over the bone without true skin covering in an area where bone is normally protected by muscle indicates severe muscle injury. Atrophy of muscle groups not included in the track of the missile, particularly of the trapezius and serratus in wounds in the shoulder girdle (traumatic muscular dystrophy), and induration and atrophy of an entire muscle following simple piercing by a projectile (progressive sclerosing myositis), may be included in the severe group if there is sufficient evidence of severe disability. Id. The Rating Schedule also provides ratings for injuries to Muscle Group XIV when there is evidence of slight (0 percent), moderate (10 percent), moderately severe (30 percent) or severe (40 percent) muscle injury. See 38 C.F.R. § 4.73, Diagnostic Code 5314 (effective before and after July 3, 1997). In this case, a November 1951 VA orthopedic examination revealed a transverse, slightly depressed, smooth, nonadherent, nontender, 1 3/4 inches by 1/2 inch scar to the lateral aspect of the distal third of the veteran's left thigh. When tested against constant resistance the left leg was slightly weaker than the right, but there was no appreciable difference in circumference of the legs. The diagnoses included residuals of shrapnel wound, healed scar to the left thigh, with involvement of Muscle Group XIV, and slight weakness to the left leg. A rating decision in November 1953 granted entitlement to service connection for the residuals of wounds to Muscle Group XIV of the left thigh and assigned a 10 percent disability evaluation. That evaluation has remained in effect. A February 1993 private medical report from Dr. P.N.L. stated the veteran reported recurrent pain due to residuals of a shrapnel wound to the left thigh involving the left hip and left knee joint. Upon examination it was noted that the veteran walked with a severe left limp and used a cane. There was a scar on the left thigh measuring 1 3/4 inches by 1/2 inch. The veteran stated his left hip pain was aggravated by walking. The physician stated the veteran had post-traumatic osteoarthritis of the left knee or leg joints etiologically related to shrapnel wounds of the left knee. The diagnoses included residuals of a shell fragment wound of the left thigh with injury to Muscle Group XIV with limitation of motion of the left hip. VA orthopedic, muscle, and scar examinations in April 1993 noted the veteran had a limp to the left leg and complained of pain including to the thigh. Examination revealed no limitation of motion of the hips. The scar on the left thigh was nontender, nonadherent, and slightly depressed. There was no evidence of a loss of tissue in the lower extremities. The veteran had good strength to the lower extremities. The diagnoses included residuals of a shell fragment wound of the left thigh with injury to Muscle Group XIV. Reports dated in December 1995 and January 1997 from Dr. P.N.L. noted a moderately severe impairment to the veteran's left thigh muscle group. The diagnoses included residuals of a shell fragment wound to the left thigh with involvement of Muscle Group XIV. A July 1997 VA orthopedic muscle injury examination noted penetration to Muscle Group XIV, without evidence of comparative tissue loss, adhesions, tendon damage, pain, or muscle hernia. It was noted the veteran had good strength to the muscle group. The scar was shown to be well healed, and was not tender or painful on objective demonstration. There was no evidence of a limitation of function related to the scar. Neurologic examination revealed no defects. A subsequent orthopedic examination found osteoporosis and minimal osteoarthritis to the left hip, but stated the location of the veteran's left thigh injury suggested hardly any effect on the left hip. An x-ray examination revealed a normal left thigh. The studies were negative for traumatic residuals. A March 1998 private medical report from Dr. E.U.G. noted evidence of an old skin wound with left hip pain. The diagnoses included residuals of a shell fragment wound to the left thigh with left hip involvement and limitation of motion. Based upon the evidence of record, the Board finds a rating higher than 10 percent for injuries to Muscle Group XIV is not warranted under either the old or new criteria. The record does not reflect the veteran incurred a moderately severe or severe muscle injury. The medical evidence does not indicate the veteran's left thigh injury involved a through and through wound or that there was a moderate loss of deep fascia or a moderate loss of muscle substance. VA examinations found good strength to the muscle group. Although private medical opinions indicate the veteran had limitation of motion of the left hip associated with residuals of the shell fragment wound of the left thigh, they did not provide any rationale for this opinion. There is also no evidence that the private physicians reviewed the earlier medical evidence of record. Therefore, in light of the lack of objective clinical findings providing a reasonable basis for these medical opinions, the Board finds they are of limited probative value. In addition, as the July 1997 VA medical opinion found little possibility of an association between the service-connected muscle injury and the veteran's left hip disorder, the Board finds consideration of alternative or separate disability ratings for limitation of hip motion and pain is not warranted. The Board has considered all potentially applicable laws and regulations and finds no provision upon which to assign a higher rating. Schafrath , 1 Vet. App. 589. In this case, the preponderance of the evidence is against the claim for a rating in excess of 10 percent for injury to Muscle Group XIV. Gilbert, 1 Vet. App. at 55. Left Knee Scar The Ratings Schedule provides a compensable rating for superficial scars when there is evidence of tenderness and pain on objective demonstration (10 percent) or limitation of function of the part affected. See 38 C.F.R. § 4.118, Diagnostic Codes 7804, 7805 (1999). In every instance where the schedule does not provide a zero percent evaluation for a diagnostic code, a zero percent evaluation shall be assigned when the requirements for a compensable evaluation are not met. 38 C.F.R. § 4.31. VA examination in November 1951 revealed a transverse, smooth, nonadherent, nontender 3/4 inch by 1/4 inch scar at the lateral border of the left knee. Extension of the left knee was to 170 degrees. When tested against constant resistance, the left leg was slightly weaker than the right. There was no appreciable difference in circumference of the legs. X- rays of the left knee were negative. A February 1993 private medical opinion from Dr. P.N.L. stated the veteran reported recurrent swelling of the left knee and pain. Upon examination it was noted the veteran walked with a severe left limp and used a cane. There was a 3/4 inch by 1/4 inch scar on the lateral border of the left knee with signs of old swelling. Flexion of the left knee was to 45 degrees with extension to 15 degrees. The veteran reported numbness of the left lower extremity and pain. The diagnoses included residuals of shrapnel wounds to the left knee with related post-traumatic osteoarthritis. VA examinations in April 1993 found no limitation of motion of the knees and no evidence of inflammation or swelling. The left knee scar was nondepressed, nontender, and nonadherent. X-rays of the veteran's left knee were essentially negative. The diagnoses included healed scar as a residual of a left knee wound. A December 1995 private medical opinion from Dr. P.N.L. noted residuals of a shell fragment wound to the left knee with pain. Flexion of the left knee was limited to 45 degrees and extension was limited to 10 degrees. A January 1997 report noted left knee flexion to 45 degrees and extension limited to 20 degrees due to recurrent productive pain. VA examination in July 1997 found the scar to the veteran's left knee area was well healed. There was no evidence of keloid formation, adherence, inflammation, swelling, depression, or ulceration. The scar was not tender or painful on objective demonstration. There was no evidence of limitation of function of the part affected. Neurologic examination found no evidence of weakness or atrophy to the lower extremities. Deep tendon reflexes were active and equal, and gait and coordination were intact. The diagnosis was no neurologic defect. An orthopedic examination revealed knee range of motion from 0 to 120 degrees, bilaterally. The diagnoses included minimal degenerative arthritis to the knees. X-ray examination found slight narrowing of the joint compartments and very mild hypertrophic changes to the ends which were symmetrical in the right and left joints. A March 1998 private medical report from Dr. E.U.G. noted examination revealed recurrent left knee pain which was proximately due to the residuals of a shell fragment wound. Flexion of the left knee was limited to 30 degrees, and extension was limited to 30 degrees. The diagnoses included residual shell fragment wound with limitation of flexion and extension of the knee or leg. In this case, the record reflects that the February 1993 private medical opinion associated the veteran's left knee shell fragment wound with post-traumatic osteoarthritis, but that VA x-ray examination in April 1993 found no evidence of left knee osteoarthritis. Subsequent private medical reports noted left knee limitation of motion but did not provide a medical rationale as to how that disorder was related to the veteran's service-connected left knee injury. There was no explanation of why the scarring could result in limitation of function approximately 50 years after the initial injury. There is no indication that the private medical examiners reviewed or considered records of the veteran's past treatment as to the service-connected injury. The Board notes that VA medical reports dated in July and August 1997 found minimal degenerative arthritis to the right and left knees. However, as the record demonstrates degenerative arthritis to the nonservice-connected right knee as well as the service-connected left knee and as no medical rationale has been provided to substantiate a relationship between the present left knee pathology and the inservice injury, the Board finds consideration of an alternative or separate rating for left knee arthritis and limitation of motion is not warranted. Based upon the evidence of record, the Board also finds entitlement to a compensable rating for a left knee scar is not warranted. Persuasive medical evidence demonstrates the veteran's left knee scar is well healed, nonadherent, nontender, and nondepressed. The evidence does not reflect the veteran's limitation of motion of the left knee is a result of his service-connected scar. The Board has considered all potentially applicable laws and regulations and finds no provision upon which to assign a higher rating. Schafrath , 1 Vet. App. 589. In this case, the preponderance of the evidence is against the claim for a compensable rating for a left knee scar. Gilbert, 1 Vet. App. at 55. Right Arm Scars VA examination in November 1951 revealed 2 adjacent scars about 3/4 inches apart at the posterolateral aspect of the right arm which were smooth, nonadherent, nontender, and approximately 1/4 inch in diameter. There was no apparent limitation of motion of the right elbow and no apparent difference in arm circumference. X-rays of the right arm were negative. A February 1993 private medical opinion from Dr. P.N.L. stated the veteran reported recurrent swelling to the right arm. Examination revealed scars on the middle third of the right arm with old inflammation. The veteran complained of continuous recurrent pain and limitation of motion of the right elbow. The diagnoses included residuals of a shrapnel wound of the right arm with limitation of motion of the right elbow. VA examinations in April 1993 found no limitation of motion of the shoulders, elbows, or wrists. There was no evidence of inflammation or swelling and the scars of the right arm were nondepressed, nontender, and nonadherent. X-rays of the veteran's right humerus were essentially negative. The diagnoses included healed scars which were residual to shell fragment wounds to the right arm. Private medical reports dated in December 1995 and January 1997 from Dr. P.N.L. noted residual shell fragment wounds to the right arm with limitation of function of the part affected. No specific report of functional limitations was provided. VA examination in July 1997 found a well healed, shallow stellate scar to the middle posterior part of the right upper arm. There was no evidence of keloid formation, adherence, inflammation, swelling, depression, or ulceration. The scar was not tender or painful on objective demonstration. There was no evidence of limitation of function of the part affected. Neurologic examination found no defects. A March 1998 private medical report from Dr. E.U.G. noted examination of the right arm revealed loss of normal muscle substance or firm resistance with limitation of function of the part affected. There was right arm limitation of motion of to 25 degrees from side and midway between side and shoulder level. Based upon the evidence of record, the Board finds entitlement to a compensable rating for right arm scars is not warranted. Persuasive VA medical evidence demonstrates the veteran's right arm scars are not painful or tender and function is not limited. Although private medical reports found limitation of function and loss of normal muscle substance, no objective medical evidence or medical rationale was provided to substantiate those reports. There was no explanation of why the scarring could result in limitation of function approximately 50 years after the initial injury. Therefore, the Board finds entitlement to alternative or separate ratings is not warranted. The Board has considered all potentially applicable laws and regulations and finds no provision upon which to assign a higher rating. Schafrath , 1 Vet. App. 589. In this case, the preponderance of the evidence is against the claim for a compensable rating for a left knee scar. Gilbert, 1 Vet. App. at 55. ORDER Entitlement to a rating in excess of 20 percent for left index finger amputation is denied. Entitlement to a rating in excess of 10 percent for the residuals of a shrapnel wound to the left thigh, Muscle Group XIV, is denied. Entitlement to a compensable rating for a left knee scar is denied. Entitlement to a compensable rating for right arm scars is denied. THOMAS J. DANNAHER Member, Board of Veterans' Appeals