Citation Nr: 0001266 Decision Date: 01/14/00 Archive Date: 01/27/00 DOCKET NO. 98-01 959 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Newark, New Jersey THE ISSUES 1. Entitlement to an increased rating for residuals of a shell fragment wound (SFW) of the middle one-third of the back with healed scar and Muscle Group (MG) XX involvement, currently evaluated as 10 percent disabling. 2. Entitlement to an increased (compensable) rating for residuals of a shell fragment wound (SFW) of the right leg with Muscle Group (MG) XI involvement. REPRESENTATION Appellant represented by: New Jersey Department of Military and Veterans' Affairs ATTORNEY FOR THE BOARD Debbie A. Riffe, Associate Counsel INTRODUCTION The veteran served on active duty from April 1943 to October 1945. This case comes to the Board of Veterans' Appeals (Board) from an October 1997 RO decision which denied increases in a 10 percent rating for residuals of a SFW of the middle one-third of the back with healed scar and MG XX involvement, and a noncompensable rating for residuals of a SFW of the right leg with MG XI involvement. FINDINGS OF FACT 1. The residuals of a SFW of the middle one-third of the back (dorsal/thoracic region) are manifested by no more than a moderate injury to MG XX and a well-healed scar. 2. The residuals of a SFW of the right leg are manifested by a moderate injury to MG XI. CONCLUSIONS OF LAW 1. The criteria for an evaluation in excess of 10 percent for residuals of a SFW of the middle one-third of the back with healed scar and MG XX involvement have not been met. 38 U.S.C.A. § 1155 (West 1991); 38 C.F.R. §§ 4.56, 4.73, Code 5320 (1997 and 1999). 2. The criteria for a rating of 10 percent for residuals of a SFW of the right leg with MG XI involvement have been met. 38 U.S.C.A. § 1155 (West 1991); 38 C.F.R. §§ 4.56, 4.73, Code 5311 (1997 and 1999). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Factual Background The veteran served on active duty from April 1943 to October 1945. Service medical records show that on a March 1943 physical examination for enlistment purposes there were no musculoskeletal defects and the veteran's skin was normal. On July 26, 1944, the veteran was wounded in action in France, sustaining shell wounds of the left posterior chest and right leg. The wounds were noted to be penetrating and mild. The veteran underwent a debridement of the wounds, and a foreign body was removed from the veteran's chest. The veteran was subsequently evacuated to the 188th General Hospital in England. An examination there showed a small, clean superficial wound of the right leg and a 4 inch long wound over the left chest axillary line that was clean, not penetrating, and slightly gaping. On July 30, 1944, the veteran's general condition was noted to be good and his wounds were dressed clean. On August 19, 1944, it was noted that the wounds were well-healed. A final hospital summary stated that the wounds were superficial and healed without "Lec Closure" and that he was ready for duty. The veteran returned to duty on August 24, 1944. On an October 1945 separation physical examination, there were no musculoskeletal defects and the veteran's skin was noted to have a 1/2 inch well-healed scar on the right calf, without abnormalities, and a 3 inch scar on the left back. The examination report indicated that the veteran had sustained shrapnel wounds to the right calf and back for which he was hospitalized in July 1944. In a March 1946 decision, the RO granted service connection for a moderate wound of the left back involving MG II and for a slight, healed wound of the right leg with involvement of MG XI, assigning ratings of 10 percent and noncompensable, respectively. From August to December 1947, the veteran received physiotherapy for residuals of a gunshot wound of the left side of the back, specifically for chronic neuritis of the left 6-10 intercostal nerves due to a scar in the anterior axillary line. A December 1947 record indicates that the veteran's condition was improved and that treatment could be interrupted for the present time, unless his pains should recur in which case additional treatments would be necessary. On a January 1948 VA examination, the veteran complained that his back scar was intermittently painful. On examination, there was a 3 inch by 3/4 inch well-healed scar on the middle third of the left side of the back. It was beneath the scapula, overlying the eighth rib in the posterior axillary line. The scar was not depressed, adherent, or tender. There was moderate damage to MG XX, not MG II, and no atrophy. There was good muscle power and no limitation of motion or spasm. It was noted that the body cavity was not penetrated and that there was no nerve, bone, or joint damage. The veteran had normal chest expansion. There was also a SFW of the upper third of the right leg with a well- healed scar the size of a penny on the calf, postero- medially. The scar was 1 cm. in diameter, insignificant, and not adherent, tender, or depressed. There was no muscle damage or bone, joint, or nerve injury. The veteran had normal sensation and gait. X-rays of the chest and dorsal spine show in part minimal scoliosis of the upper dorsal spine with convexity to the left. The diagnoses were scars of the left back and right calf, secondary to wounds, asymptomatic. In an April 1948 decision, the RO denied an increase in a 10 percent rating for residuals of a penetrating shrapnel wound of the middle one-third of the back with healed scar and MG XX (previously MG II) involvement, and in a noncompensable rating for a slight, healed wound of the right leg with MG XI involvement. In a February 1997 statement, Richard Salzer, Jr., M.D., indicated that the veteran was under his care from 1993 to 1995 for various medical reasons including his back. In an April 1997 statement, the veteran requested increases in his service-connected SFW disabilities. He indicated that he still had shrapnel in his right leg. In June 1997, the RO requested treatment records from Dr. Salzer. He did not respond. On an August 1997 VA examination, the veteran reported that he was hit by shrapnel in July 1944 and sustained injuries to the left side of his back. He stated that he was operated on and healed up very well. He reported that his operation entailed the removal of a rib before he was sent back to his unit after his month-long hospitalization. He now complained that he was unable to sit steadily for more than an hour and that he usually could manage driving somewhere only for 40 to 50 minutes before he would have to stop and walk around. He stated that if he stood for a long period of time he needed support for his back. He reported that he walked one to two miles a day. When asked to localize his pain, the veteran pointed first to his lumbar area and then the area where he had his injury. There was pain between L1 and L3, with some minimal spasm, on physical examination. The scar on his back was noted to be about 10 cm. on the lateral left posterior back. It was well-healed and nontender. Examination of the lumbar spine showed range of motion of flexion to 80 degrees, extension to 10 degrees, decreased lateral flexion to 10 degrees to the left and right, and full truncal rotation. Examination of the right leg showed an indentation, like a dimple and crease mark, extending about 2 cm. in width. In the area under the dimple, the veteran still had shrapnel in his gastrocnemius muscle posteriorly. X-rays of the chest, kidneys, ureters, bladder, and lumbosacral spine revealed collapse and destruction of L1 vertebral body and metastatic disease myeloma. The diagnoses were status post shrapnel injury with residual muscle impairment in the thoracic area, injury to the right gastrocnemius muscle of the right leg, and compression fracture and destruction of L1 vertebral body. In an October 1997 decision, the RO denied increases in the veteran's residuals of a SFW of the middle one-third of the back with healed scar and MG XX involvement and SFW of the right leg with MG XI involvement. In his November 1997 notice of disagreement and January 1998 substantive appeal, the veteran stated that his back condition was causing more pain and discomfort since the last VA examination and that his right leg still had shrapnel fragments and caused him more pain. On a February 1998 VA examination, the veteran reported that he sustained a shrapnel injury to his back and right calf area in 1944 for which he was hospitalized for 45 days and then returned to regular duty. He stated that after discharge from service he became a student and then a store manager for approximately 40 years. He was presently retired. The veteran complained that he was unable to stand for long periods of time and unable to drive longer than 40 minutes at a time. On examination, the veteran could dress and undress normally. His gait, toe walk, and heel walk were normal. He had difficulty squatting. There was a 4 inch well-healed scar in the left posterior lateral thorax area which was tender to palpation. Examination of the lumbosacral spine showed decreased lumbar curvature and tenderness. There were no paraspinal muscle spasms. There was full range of motion. Straight leg raising was positive on the left side at 40 degrees and on the right side at 35 degrees. The right calf area, posteriorly, had a 1 inch scar which was nontender to palpation. There was no muscle atrophy noted. An X-ray of the lumbosacral spine revealed a complete compression fracture at L1 and severe bony demineralization. An X-ray of the right tibia and fibula revealed a metallic foreign body in the upper right calf and intact bones. The diagnosis was post-traumatic arthritis of the lumbosacral spine. In August 1998, the VA examiner in February 1998 was requested to indicate whether the veteran had muscle atrophy in the area of the thoracic spine, especially in the area of the scar. The examiner did not remember. VA X-rays of the lumbosacral spine in October 1998 revealed fracture and deformity of L1 with mild listhesis of L1 on L2. VA X-rays of the tibia and fibula in October 1998 revealed a small shrapnel fragment adjacent to the proximal tibia and an osteolytic lesion; there was no acute fracture or dislocation. On a February 1999 VA examination, the veteran reported that he was injured in service by shrapnel which entered his right leg and lower back. He stated that he underwent an operation on his lower back and that a rib was cut in order to remove shrapnel. He reported he had aching pain in the lower back ever since that time. He stated that he could not stand for longer than 10 minutes at one time and that he had limited bending and lifting. He reported difficulty in finding the right sleeping position. He noticed weakness in the lower back which fatigued easily. He stated that he did not have either braces or canes and that he utilized no medications. He stated that he has not had any further surgery on his back. Examination of the right lower extremity showed the veteran's gait appeared normal and the soles of both shoes had a normal wear pattern. The right lower extremity fatigued somewhat easily. The veteran reported he could walk for up to one-half mile without difficulty before he noted a mild aching pain. There was a 1 inch dimpling in the posteromedial aspect of the veteran's calf, 11 inches above the medial malleolus. There was no evidence of atrophy to palpation or to circumferential measurements 4 inches below the tibial tubercle. The veteran could heel-and-toe walk without difficulty. There was no pain to palpation over the dimpling site. There was no swelling or adherent bone. The right knee had full and painless range of motion. Examination of the lower back showed scarring 2 inches in length on the left lateral aspect of the distal thoracic spine in the area of the tenth rib. There was no pain to palpation. The veteran utilized no braces, crutches, or canes, and he did not take any medication. The veteran reported that he could not stand for longer than 10 minutes at a time. Sitting was "okay." The veteran noticed his lower back to be weak and to fatigue easily. The range of motion of the lumbar spine was 20 degrees of flexion, 5 degrees of hyperextension, no lateral deviation toward the right or left, 10 degrees of rotation toward the right, and 15 degrees of rotation toward the left. Straight leg raising was negative, except for hamstring tightness on the right. A neurological examination was within normal limits. An X-ray of the lumbosacral spine revealed severe compression deformity of the L1 vertebral body, disc space narrowing noted at T12-L1, and facet joint osteoarthritis at L5-S1. The diagnoses were post shrapnel injury to the gastrocnemius of the right leg and degenerative joint disease of the lower back. II. Analysis Initially, it is noted that the veteran's claims for increased ratings for his residuals of a SFW of the mid back and a SFW of the right leg are well grounded within the meaning of 38 U.S.C.A. § 5107(a). That is, he has presented claims which are plausible. The Board is satisfied that all relevant evidence has been properly developed and that no further assistance is required to comply with the duty to assist as mandated by 38 U.S.C.A. § 5107(a). When rating the veteran's service-connected disabilities, the entire medical history must be borne in mind. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). However, the present level of disability is of primary concern in a claim for an increased rating; the more recent evidence is generally the most relevant in such a claim, as it provides the most accurate picture of the current severity of the disability. Francisco v. Brown, 7 Vet. App. 55 (1994). Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C.A § 1155; 38 C.F.R. Part 4. A. Residuals of a SFW of the Mid Back The veteran's service-connected residuals of a SFW of the back involve the middle back area (i.e, the dorsal/thoracic area). Recent medical records show he now has a low back (i.e., lumbar area) disorder; however, the low back disorder is not service connected and associated impairment may not be considered when rating the service-connected residuals of a SFW of the middle back. 38 C.F.R. § 4.14. The veteran is evaluated for his residuals of a SFW of the middle one-third of the back under 38 C.F.R. § 4.73, Diagnostic Code 5320, for injury to muscle group (MG) XX, the muscles that function to provide postural support of the body and extension and lateral movements of the spine. These spinal muscles are the sacrospinalis (erector spinae and its prolongations in thoracic and cervical regions). Code 5320 contains rating criteria for disabilities involving (1) the cervical and thoracic region and (2) the lumbar region. Regarding the dorsal/thoracic area (which is the location of the veteran's SFW), a moderate disability warrants a 10 percent rating, a moderately severe disability warrants a 20 percent rating, and a severe disability warrants a 40 percent rating. The veteran's residuals of a SFW of the mid back are currently evaluated as 10 percent disabling, indicating a moderate muscle disability in the thoracic region. In order for an increased rating to be assigned, the veteran must be shown to have a moderately severe injury to MG XX. 38 C.F.R. § 4.73, Diagnostic Code 5320. It is noted that the regulations for rating muscle injuries were revised effective July 3, 1997, while the veteran's claim for an increased rating was pending. However, there were no substantive changes to Code 5320. See 62 Fed. Reg. 30235-30240 (1997). The factors to be considered in evaluating residuals of a SFW are listed in 38 C.F.R. § 4.56. Information in this regulation provides guidance only and is to be considered with all other factors in the individual case. Robertson v. Brown, 5 Vet. App. 70 (1993). (38 C.F.R. § 4.56 was also subject to minor revisions, effective July 3, 1997, but there were no substantive changes to this regulation. See 62 Fed. Reg. 30235- 30240 (1997).) "Moderately severe" disability results from through and through or deep penetrating wounds with debridement or with prolonged infection or with sloughing of soft parts, and intermuscular cicatrization. The record must show a prolonged hospitalization for treatment of a wound of a severe grade, as well as consistent complaints of the cardinal symptoms of muscle wounds and evidence of unemployability because of inability to keep up with work requirements, if present. Objective findings should include scar evidence of the missile track through important muscle groups. There should be moderate loss of deep fascia, or moderate loss of muscle substance, or moderate loss of normal firm resistance of muscles when compared with the sound side. Tests of the strength and endurance of the muscle groups involved when compared to the sound side should show positive evidence of marked or moderately severe loss. 38 C.F.R. § 4.56. "Severe" disability results from through and through or deep penetrating wounds with extensive debridement or prolonged infection and sloughing of soft parts, intermuscular binding and cicatrization. The record must show a history and complaints similar to those required for a moderately severe disability, but in aggravated form. Objective findings include extensive ragged, depressed, and adherent scars of skin so situated as to indicate wide damage to muscle groups in track of the missile. Palpation should demonstrate moderate or extensive loss of deep fascia or of muscle substance. There may be soft or flabby muscles in the wound area, and the muscles may not swell or harden normally in contraction. Tests of strength and endurance may show positive signs of severe impairment of function. Adaptive contraction of opposing groups of muscles or adhesion of scar tissue to bone in an area where bone is usually protected by muscle is indication of severe disability. 38 C.F.R. § 4.56. The veteran's residuals of a SFW of the back also includes a healed scar. Under applicable criteria, a 10 percent evaluation is warranted for superficial scars that are poorly nourished with repeated ulceration. 38 C.F.R. § 4.118, Diagnostic Code 7803. A 10 percent evaluation is warranted for superficial scars that are tender and painful on objective demonstration. 38 C.F.R. § 4.118, Diagnostic Code 7804. When the requirements for a compensable rating under a diagnostic code are not shown, a 0 percent rating is assigned. 38 C.F.R. § 4.31. Scars may be evaluated for limitation of functioning of the part affected. 38 C.F.R. § 4.118, Diagnostic Code 7805. The historical and recent medical records to include the VA examinations in 1997, 1998, and 1999 show that the veteran had residual muscle impairment in the thoracic area as the result of a mild, penetrating SFW to the left posterior chest in service. Within a month of the injury, the veteran returned to duty. Following service in 1948, moderate damage to MG XX was noted, without any evidence of atrophy. There was no evidence of complaints or treatment of his service- connected disability from 1948 until 1993 when he was treated for an unspecified back disorder by Dr. Salzer. Thereafter, the veteran was examined three times by VA for complaints regarding his inability to sit steadily, drive, or stand for long periods of time without rest or support. No atrophy of muscle was noted. These complaints and findings of the veteran's SFW more closely approximate the criteria for a moderate muscle disability. While the veteran's SFW of the mid back was a penetrating wound requiring debridement, which is contemplated by a moderately severe muscle injury, the historical evidence does not show that the veteran's wound was of severe grade when initially treated, that he was hospitalized for a prolonged period, that there was a consistent record of complaint of the cardinal symptoms of muscle wounds, or that he was unable to keep up with work requirements following service. Moreover, there is no objective evidence of marked or moderately severe loss of muscle strength. Accordingly, the Board finds that the residuals of a SFW of the mid back are properly rated as 10 percent disabling under Code 5320. As for the scar residuals, within a month of his SFW injury of the back (or left posterior chest, as noted in service medical records) the veteran's wound was noted to be superficial and well-healed. After service, the veteran's scar continued to be well-healed, and it showed no signs of being depressed, adherent, or tender, with the single exception of the 1998 VA examination wherein the scar was tender to palpation. This finding was not repeated on the most recent VA examination in 1999. The evidence as a whole shows the scar is asymptomatic. Accordingly, the Board finds that a separate 10 percent rating for a scar under Codes 7803 or 7804 is not warranted. For the above-stated reasons, the preponderance of the evidence is against the claim for an increase in the 10 percent rating for residuals of a SFW of the back. Thus, the benefit-of-the-doubt rule does not apply, and the claim must be denied. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). B. Residuals of a SFW of the Right Leg The veteran is evaluated for his residuals of a SFW of the right leg under 38 C.F.R. § 4.73, Diagnostic Code 5311, for injury to muscle group (MG) XI, the muscles that function to provide propulsion in plantar flexion of the foot, stabilization of the arch, flexion of the toes, and flexion of the knee. These muscles consist of the posterior and lateral crural muscles and muscles of the calf, that is, triceps surae (gastrocnemius and soleus), tibialis posterior, peroneus longus, peroneus brevis, flexor hallucis longus, flexor digitorum longus, popliteus, and plantaris. Under Code 5311, a slight disability warrants a noncompensable rating, a moderate disability warrants a 10 percent rating, a moderately severe disability warrants a 20 percent rating, and a severe disability warrants a 30 percent rating. The veteran's residuals of a SFW of the right leg are currently evaluated as noncompensable. In order for an increased rating to be assigned, the veteran must be shown to have a moderate injury to MG XI. 38 C.F.R. § 4.73, Diagnostic Code 5311. As noted above, the regulations for rating muscle injuries were revised effective July 3, 1997, while the veteran's claim for an increased rating was pending, but there were no substantive changes to Code 5320. See 62 Fed. Reg. 30235-30240 (1997). Under the governing regulation, 38 C.F.R. § 4.56, "slight" (insignificant) disability results from a simple wound of muscle without debridement, infection or effects of laceration. The record must show a wound of slight severity or relatively brief treatment and return to duty, healing with good functional results, and no consistent complaint of the cardinal symptoms of muscle injury or painful residuals. Objective findings should include minimum scar and slight, if any, evidence of fascial defect or of atrophy or of impaired tonus. There should be no significant impairment of function and no retained metallic fragments. 38 C.F.R. § 4.56. "Moderate" disability results from through and through or deep penetrating wounds of relatively short track, without residuals of debridement or of prolonged infection. The record must show hospitalization for treatment of a wound and consistent complaints from the 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 the injured muscles. Objective findings should include evidence of linear or relatively small scars indicating the relatively short track of the missile through muscle tissue. There should be signs of moderate loss of deep fascia or muscle substance or impairment of muscle tonus, and of definite weakness or fatigue in comparative tests. 38 C.F.R. § 4.56. The factors in 38 C.F.R. § 4.56 to be considered in evaluating residuals of a SFW as either moderately severe or severe are listed in the preceding section pertaining to a SFW of the back. The historical and recent medical records to include the VA examinations in 1997, 1998, and 1999 show that the veteran had residual muscle impairment as the result of a mild, penetrating SFW to the right leg in service. Within a month of the injury, the veteran returned to duty. After service in 1948, the only noted residual of the SFW was an insignificant, asymptomatic scar on the right calf. There was no evidence of complaints or treatment of his service- connected disability from 1948 until 1997 when the veteran requested an increase in his disability rating due to shrapnel that he claimed was still in his right leg. Thereafter, the veteran was examined three times by VA. In 1997, VA noted injury to the right gastrocnemius muscle of the right leg. At that time, the right leg showed an indentation under which there was shrapnel. An X-ray confirmed the metallic foreign body in 1998. On the 1999 VA examination, he could heel-and-toe walk without difficulty, his gait was normal, and there was no pain to palpation over the dimpling site, although the veteran reported a mild aching pain after walking one-half mile. Moreover, his right lower extremity fatigued somewhat easily. The Board finds that, with application of the benefit-of-the- doubt rule (38 U.S.C.A. § 5107(b)), these complaints and findings of the veteran's SFW of the right leg more closely approximate the criteria for a 10 percent rating under Code 5311 for moderate muscle disability. However, for the same reasons cited in regard to a SFW of the mid back, the record does not support a rating in excess of 10 percent under Code 5311. That is, the veteran's SFW of the right leg was a penetrating wound requiring debridement, which is contemplated by a moderately severe muscle injury, but the historical evidence does not show that the veteran's wound was of severe grade when initially treated, that he was hospitalized for a prolonged period, that there was a consistent record of complaint of the cardinal symptoms of muscle wounds, or that he was unable to keep up with work requirements after service. Also, there is no objective evidence of marked or moderately severe loss of muscle strength. Thus, no more than a 10 percent rating for residuals of a SFW of the right leg is warranted under Code 5311. ORDER An increased rating for residuals of a SFW of the middle one- third of the back with healed scar and MG XX involvement is denied. An increased rating to 10 percent for residuals of a SFW of the right leg with MG XI involvement is granted. L. W. TOBIN Member, Board of Veterans' Appeals