BVA9508447 DOCKET NO. 91-47 598 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUES 1. Entitlement to an increased evaluation for service-connected residuals of a gunshot wound, left calf, scars and Group XI muscle damage, currently evaluated as 10 percent disabling. 2. Entitlement to service connection for a left hip disorder, claimed as secondary to the service-connected left calf gunshot wound. 3. Entitlement to service connection for a low back disorder, claimed as secondary to the service-connected left calf gunshot wound. REPRESENTATION Appellant represented by: AMVETS WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Christopher P. Kissel, Associate Counsel INTRODUCTION The appellant served on active duty from January to May 1974, and from March to December 1979. This case comes before the Board of Veterans' Appeals on appeal from rating decisions of the Cleveland, Ohio, Department of Veterans Affairs Regional Office (VARO). The procedural history of this case has been thoroughly set forth in the Board's remand decision of April 2, 1992. In accordance with the Board's April 1992, remand, the requested development was accomplished, to the extent possible, and the case has been returned to the Board for further appellate review. CONTENTIONS OF APPELLANT ON APPEAL The appellant contends, in substance, that his service-connected residuals of a left calf gunshot wound are more disabling than currently evaluated. In addition, he contends that disabilities involving his left hip and low back were caused by the disabling effects of his left calf gunshot wound injury. He, therefore, requests service connection for these conditions on a secondary basis. 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 the combined 10 percent rating for the appellant's residuals of a gunshot wound to the left calf, manifested by scars and muscle damage to Group XI. Further, it is the decision of the Board that the evidence of record supports entitlement to service connection for the claimed disabilities involving his left hip and low back, as secondary to the left calf gunshot wound disability. FINDINGS OF FACT 1. The appellant's service-connected residuals of a gunshot wound, left calf, with scars and Group XI muscle damage, are currently manifested by subjective complaints of left leg weakness, with negative clinical findings of symptomatology attributable to the scars or muscles of the left calf noted on VAXs conducted in 1990, 1992 and 1993. 2. The medical evidence of record, as reflected by the opinions of two VA physicians who evaluated the appellant on VAX in June 1992, establishes a probable causal connection between his service-connected left calf gunshot wound injury sustained in 1979, and the currently diagnosed left hip (arthralgia with restriction of movement) and low back (chronic lumbosacral strain) disabilities. CONCLUSIONS OF LAW 1. The appellant's service-connected residuals of a gunshot wound, left calf, scars and Group XI muscle damage, are properly evaluated as 10 percent disabling according to the pertinent schedular criteria. 38 U.S.C.A. § 1155 (West 1991); 38 C.F.R. § 3.321, Part 4, Diagnostic Codes 7804-5311 (1994). 2. Disabilities involving the left hip (arthralgia with restriction of movement) and low back (chronic lumbosacral strain) are proximately due to or a result of the service- connected left calf gunshot wound disability. 38 U.S.C.A. § 5107(b) (West 1991); 38 C.F.R. § 3.310 (1994). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Initially, the Board finds that the appellant has submitted evidence which is sufficient to justify a belief that his claim is well grounded. 38 U.S.C.A. § 5107(a) (West 1991) and Murphy v. Derwinski, 1 Vet.App. 78 (1990). Furthermore, the Board believes that this case has been adequately developed for appellate purposes by VA and that a disposition on the merits is now in order. I. Increased Disability Evaluation The appellant is seeking a higher disability evaluation for his service-connected residuals of a gunshot wound of the left calf. 38 U.S.C.A. § 1155 (West 1991). Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. 38 C.F.R. Part 4 (1994). Separate diagnostic codes identify the various disabilities. Consideration of the whole recorded history is necessary so that a rating may accurately reflect the elements of disability present. 38 C.F.R. § 4.2 (1994); Peyton v. Derwinski, 1 Vet.App. 282 (1991). According to the Rating Schedule, superficial scars which are tender and painful on objective demonstration are rated 10 percent disabling. That is the highest disability rating provided in the Rating Schedule for a scar such as the one the appellant has on his left calf. 38 C.F.R. Part 4, Code 7804 (1994). However, where the Rating Schedule does not provide a zero percent evaluation for a diagnostic code, as is the case for superficial scars rated under code 7804, a zero percent evaluation shall be assigned when the requirements for a compensable evaluation are not met. 38 C.F.R. § 4.31 (1994). The more recent medical evidence of record reflects subjective complaints of weakness in the left leg; however, objective findings with respect to the gunshot wound scars are entirely negative. See Report of VA Compensation and Pension Examination (VAX), conducted in August 1993. Examination of his left calf gunshot wound on VAX in August 1993, revealed a one by one centimeter scar over the posterior distal third of the left leg where the bullet penetrated and an exit scar over the lateral leg distally. These scars were described as well healed, nonsensitive to touch, nonkeloidal, and nonadherent. In addition, there was no evidence of tissue loss, scar inflammation, swelling, depression or ulceration. Clinical findings on VAXs in May 1990 and June 1992, were essentially equivalent. According to the Rating Schedule, such findings appear consistent with a noncompensable evaluation under code 7804 since there are no current, objective findings of tenderness or pain attributable to the left calf gunshot wound scars. However, there is evidence that residuals of his service- connected left calf wound involve Muscle Group XI damage causing the appellant occasional aching-like pain and weakness. Residuals of gunshot wounds involving muscle injuries are rated for impairment of the muscles damaged by the shell fragments. 38 C.F.R. § 4.72 (1994). In this case, where the muscle damage involves the muscles of the calf (Group XI), the Rating Schedule provides a noncompensable evaluation for mild functional impairment of the lower extremity caused by the muscle injury; a 10 percent evaluation is warranted for moderate functional impairment. "Moderately severe" impairment is rated 20 percent disabling under code 5311. In the opinion of the Board, the disability picture presented approximates a combined 10 percent disability evaluation under diagnostic codes 7804-5311. 38 C.F.R. §§ 4.7, 4.25 (1994). While the Board believes that the medical evidence establishes muscle injury residuals, it appears that the extent of any damage to the Group XI muscles of the appellant's left calf is minimal; objective findings on VAXs in 1990, 1992 and 1993, were significant only for slightly decreased muscle strength in the left leg (described on VAX in June 1992, as "fairly good"). Clinical finding on the above-cited VAXs were entirely negative for muscle herniation or damage to the bones, joints or tendons of the left leg. Further, motor strength impairment was not found on the most recent VAX in August 1993; the examiner noted, "[d]istal muscles grossly normal when started when asked to push and pull against resistance." In the opinion of the Board, these findings are consistent with "slight" impairment due to muscle damage in the appellant's left calf, as contemplated under diagnostic code 5311. However, with due consideration to the appellant's subjective complaints of chronic weakness in the left leg, the Board concludes that the overall disability picture presented supports a combined 10 percent disability evaluation according to the schedular criteria set forth in diagnostic codes 7804-5311. See 38 C.F.R. §§ 4.3, 4.7 (1994). It is noted that the medical evidence establishes mild nerve damage in the left leg secondary to the gunshot wound injury; however, this condition has been rated as a separate and distinct disability and assigned a compensable evaluation. See Rating Decision, VA Form 21-6796 (October 23, 1992). Since the adequacy of the disability evaluation assigned for nerve damage caused by the gunshot wound to the appellant's left calf is not presently an issue on appeal, or which has been disputed by either the appellant or his representative, it will not be considered by the Board at this time. See 38 C.F.R. § 20.200 (1994). Application of the extraschedular provisions is not warranted in this case. 38 C.F.R. § 3.321(b) (1994). There is no evidence that the gunshot wound disability presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical the application of the regular schedular standards. Medical interventions have been primarily for diagnostic and evaluation purposes; the appellant currently takes over-the-counter pain relief medication (Motrin) for his disability. In addition, the record reflects that the appellant was never hospitalized or under regular outpatient care for his disability in the post service years. Hence, referral by VARO to VA officials under the above-cited regulation was not required. II. Secondary Service Connection: Left Hip and Low Back The appellant seeks entitlement to service connection for disabilities involving his left hip and lumbar spine which he believes were caused by his service-connected left calf gunshot wound disability. Under pertinent VA regulations, service connection may be granted for a disability which is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310 (1994). The Board is of the opinion that the evidence of record supports a grant of service connection for the left hip and low back conditions. Two VA physicians who evaluated the appellant on VAX in June 1992, have indicated in essentially equivalent terms that the appellant's left hip and low back conditions, diagnosed on joints evaluation on VAX in 1992 as respectively, arthralgia of the left hip with restriction of movement and chronic lumbosacral strain, could have been caused by weakness in his left leg attributable to the old gunshot wound injury. The VA physician who examined the appellant on the aforementioned joints evaluation specifically stated, "... the problem in his back and the hip could be due to recurrent trauma related to instability caused by the left leg." On neurological evaluation on VAX in 1992, the examining VA neurologist proffered the following diagnosis: "Gunshot wound through and through of the left calf with damage to [Muscle Group] 9 with sural and peroneal nerve damage and secondary involvement of the left knee, hip and lower back with symptoms in the right knee." (Emphasis added). It was indicated that the appellant's claims file was reviewed in conjunction with the VAX conducted in June 1992, pursuant to the instructions required by the Board's remand of April 2, 1992. There is no other competent evidence of record which contradicts the medical opinions entered on VAX in June 1992. Accordingly, it is considered that there is sufficient medical data to warrant a grant of service connection for the claimed left hip and low back conditions as residual disabilities of the service-connected left calf gunshot wound disability. 38 U.S.C.A. § 5107(b) (West 1991); 38 C.F.R. § 3.310(a) (1994). ORDER An increased disability rating above a combined 10 percent evaluation under diagnostic codes 7804-5311 for a residuals of a gunshot wound to the left calf, manifested by scars and Group XI muscle damage, is denied. Service connection for disabilities of the left hip and low back, claimed as secondary to the service-connected left calf gunshot wound disability, is granted. C. P. RUSSELL 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.