BVA9506003 DOCKET NO. 93-01 722 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to an increased rating for a shell fragment wound of the right arm, muscle group VI, currently rated as 10 percent disabling. 2. Entitlement to an increased rating for shell fragment wounds of the neck and face, with neuralgia of the facial nerve, currently rated as 10 percent disabling. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD K. J. Kunz, Associate Counsel INTRODUCTION The veteran served on active duty from October 1949 to November 1952. This appeal arises from an October 1991 rating decision of the Waco, Texas, Regional Office (RO). In that decision, the RO assigned a 10 percent disability rating for a shell fragment wound above the right elbow, involving muscle group VI, and a 10 percent rating for shell fragment wounds of the neck and face, with neuralgia of the facial (seventh cranial) nerve. The claims file contains correspondence in which the veteran referred to a claim for a total disability rating due to individual unemployability. The veteran perfected his current appeal for increased ratings in December 1992. In subsequent correspondence, he indicated that his employer had forced him to retire due to his service-connected disabilities, and that he had filed a claim for a total rating for unemployability. We refer the veteran's claim to entitlement to a total disability rating based on individual unemployability to the RO. CONTENTIONS OF APPELLANT ON APPEAL The veteran contends that higher disability ratings are warranted for his service-connected residuals of shrapnel wounds of the neck, face and right arm. He asserts that he has increased pain, and a reduced range of motion in his arm. He reports that he is not able to lift items over his head and at certain angles. He also contends that over the years small pieces of shrapnel have worked their way out of his neck. He states that he has neck pain and pain in his left temple area and upper left jaw area due to shrapnel wounds. 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 a rating in excess of 10 percent for a shell fragment wound of the right arm, muscle group VI; and that the preponderance of the evidence is against a rating in excess of 10 percent for shell fragment wounds of the neck and face, with neuralgia of the facial nerve. FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the veteran's appeal has been obtained by the originating agency. 2. Residuals of a shell fragment wound of the right arm, muscle group VI, are manifested by no more than slightly decreased flexion and extension of the right elbow and no more than moderate muscle injury, without evidence of loss of muscle substance, or loss of muscle strength or resistance. 3. Shell fragment wounds of the neck and face are manifested by neuralgia of the facial nerve, including intermittent pain and paresthesia of the left side of the face. CONCLUSIONS OF LAW 1. The criteria for a disability rating in excess of 10 percent for a shell fragment wound of the right arm, muscle group VI, have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.10, 4.56, Part 4, Code 5306 (1994). 2. The criteria for a disability rating in excess of 10 percent for shell fragment wounds of the neck and face, with neuralgia of the facial nerve, have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.10, 4.124, Part 4, Codes 8207, 8307, 8407 (1994). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Board notes that the veteran's claim is well grounded within the meaning of 38 U.S.C.A. § 5107 (West 1991). A well grounded claim is a plausible claim, one which is meritorious on its own or capable of substantiation. Murphy v. Derwinski, 1 Vet.App. 78, 81 (1990). We are also satisfied that all relevant facts have been properly developed so that further assistance to the veteran is not required. 38 U.S.C.A. § 5107 (West 1991). Disability evaluations are based upon the average impairment of earning capacity as determined by a schedule for rating disabilities. 38 U.S.C.A. § 1155 (West 1991); 38 C.F.R. Part 4 (1994). Separate rating codes identify the various disabilities. 38 C.F.R. Part 4 (1994). In determining the current level of impairment, the disability must be considered in the context of the whole recorded history, including service medical records. 38 C.F.R. §§ 4.1, 4.2, 4.41 (1994). An evaluation of the level of disability present also includes consideration of the functional impairment of the veteran's ability to engage in ordinary activities, including employment. 38 C.F.R. §§ 4.10, 4.40 (1994). I. Right Arm The veteran suffered a shrapnel fragment wound to his right arm in combat in Korea in April 1951. Service medical records documented that the wound was on the posterior of the veteran's right arm, just above the elbow. He was initially treated in Korea, and then transferred to a hospital in Japan for further treatment and convalescence. The veteran reported pain and limitation of motion. Examination revealed a tiny puncture wound, with tenderness in the triceps muscle, but no evident nerve or artery damage. Flexion was limited at 80 degrees by pain. The wound was not debrided, and it healed without incident. The veteran reportedly made a rapid recovery with physical therapy. About one month after the injury, clinical records noted that the wound was well healed. A 1953 rating decision initially established service connection for a shrapnel fragment wound above the elbow on the right (major) arm, with involvement of muscle group VI. A 10 percent disability rating was assigned under Diagnostic Code 5306. In 1991, the veteran requested that his claim be reopened. He reported that after service connection was established in 1953, he had received monthly compensation checks for about six months, and then he stopped receiving any checks. In an October 1991 rating decision, the RO reported that the veteran's compensation had been terminated in November 1953 because the veteran failed to report for a scheduled examination. The RO resumed compensation effective with the receipt of the veteran's request to reopen the claim in 1991. On VA examination in September 1991, the veteran reported that he had extensive right elbow pain, with a feeling of catching or grinding. He reported that his elbow felt tight most of the time. The VA examiner noted good functioning of the forearm, hand, and entire right upper extremity. The veteran demonstrated full range of motion of the elbow and shoulder assembly. Wrist deviation was normal, and the function of fingers opposing the thumb was normal. He exhibited no sensory or motor deficiency. X-rays revealed a normal right elbow, with bones intact and unremarkable contiguous soft tissue shadows. In an orthopedic consultation, Robert R. Smeyne, D.O., reported that the veteran had slightly decreased flexion and extension of the right elbow, with excellent hand function, and good sensation and circulation distally. Upper extremity reflexes were active and symmetrical. Diagnostic Code 5306 is used to rate injuries of muscle group VI: the extensor muscles of the elbow, including the triceps and anconeus. Under that Code, a slight injury of that muscle group in the major arm warrants a 0 percent disability rating. A moderate injury warrants a 10 percent rating, and a moderately severe injury warrants a 30 percent rating. A severe injury warrants a 40 percent rating. The veteran had a penetrating shrapnel fragment wound in his right arm, with the residual effect of slightly decreased flexion and extension of the right elbow. These characteristics are sufficient to constitute a moderate disability of muscles under 38 C.F.R. § 4.56(b) (1994). Loss of muscle strength or resistance, loss of muscle substance, or other impairment warranting a rating greater than 10 percent has not been demonstrated. 38 C.F.R. § 4.56(c), (d) (1994). In accordance with the criteria under Diagnostic Code 5306, a no more than moderate injury, rated at 10 percent, is shown by only slight limitation of motion, excellent hand function and lack of neurological impairment. II. Neck and Face The veteran is service-connected for shell fragment wounds of the posterior neck and left preauricular areas, with neuralgia of the seventh cranial nerve, or facial nerve. This disability is currently rated 10 percent disabling under Diagnostic Code 8407. Neuralgia is characterized usually by a dull and intermittent pain, of typical distribution so as to identify the nerve involved. Cranial neuralgia is rated on the scale for injury of the nerve involved, with a maximum equal to the rating for moderate incomplete paralysis. 38 C.F.R. § 124 (1994). Neuritis is characterized by loss of reflexes, muscle atrophy, sensory disturbances, and constant pain, at times excruciating; it is rated with a maximum of the rating for severe incomplete paralysis. 38 C.F.R. § 4.123 (1994). Injuries of the seventh cranial (facial) nerve are rated Diagnostic Codes 8207 (paralysis), 8307 (neuritis) and 8407 (neuralgia). Moderate incomplete paralysis of the facial nerve is assigned a 10 percent rating, severe incomplete paralysis a 20 percent rating, and complete paralysis a 30 percent rating. On VA examination in September 1991, the veteran reported small pieces of shrapnel working out of his neck, and pain in his left temple and upper left jaw, where a large piece of shrapnel was removed during service. The VA examiner noted the veteran's complaints of dull ache and neuralgia, from time to time extending over the surface of the face. The examiner's impression was neuralgia of the left seventh nerve, the result of shrapnel injury. Cervical spine x-rays revealed no significant abnormalities for the veteran's age. X-rays of the jaw and temple area revealed dental prostheses. The veteran had no temporomandibular syndrome and his chewing was normal. On orthopedic consultation, Dr. Smeyne noted a full range of neck motion and some degenerative changes on VA x-rays of the neck, but no major osseous pathology, and no evidence of retained metallic foreign bodies. The impression was mild cervical spondylosis. Records of 1992 VA outpatient treatment reported that the veteran complained of recurrent cycles, approximately once every ten days, of pain and local swelling, eye twitch, and paresthesia of the left part of the face. A physical examination in August 1992 noted no facial weakness, no areas of anesthesia, and no temporomandibular crepitation. The examiner's impression was left facial nerve entrapment secondary to scar tissue from an old shrapnel injury. No metallic fragments have been shown on the most recent x-rays of the veteran's neck. His facial nerve symptoms are reported to be intermittent, and to include pain, swelling, a twitch in the eye area, and paresthesia of the left part of the face. The type and frequency of symptoms are consistent with neuralgia, which is assigned a maximum 10 percent rating. A higher rating is not warranted, as his condition is not manifested by characteristics of neuritis: constant, at times excruciating, pain; loss of reflexes; muscle atrophy; and sensory disturbances. The Board notes that a VA outpatient treatment report in 1992 appears to suggest that a neurological evaluation be conducted with respect to the veteran's face and neck wound residuals. In this regard, we point out that the veteran may again request entitlement to an increased disability evaluation based on evidence showing that the disorder has increased in severity. ORDER A disability rating in excess of 10 percent for a shell fragment wound of the right arm, muscle group VI, is denied. A disability rating in excess of 10 percent for shell fragment wounds of the neck and face, with neuralgia of the facial nerve, is denied. BETTINA S. CALLAWAY 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.