BVA9501604 DOCKET NO. 92-04 752 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Los Angeles, California THE ISSUES 1. Entitlement to a disability rating in excess of 30 percent (protected) for residuals of a gunshot wound to the left posterior thigh (Muscle Group XIII). 2. Entitlement to a disability rating in excess of 10 percent (protected) for residuals of a gunshot wound to the right calf (Muscle Group XI). REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD L. B. Wirt, Associate Counsel INTRODUCTION The veteran served on active duty from December 1941 to August 1945. This appeal arises from a November 1990 rating decision of the Department of Veterans Affairs (VA) Los Angeles, California, Regional Office (RO), which denied the veteran entitlement to a disability rating in excess of 30 percent (protected) for residuals of a gunshot wound to the left posterior thigh, and to a disability rating in excess of 10 percent (protected) for residuals of a gunshot wound to the right calf. The case was remanded by the Board of Veterans' Appeals (Board) in July 1993, for a VA examination and additional VA treatment records. CONTENTIONS OF APPELLANT ON APPEAL The veteran contends that the residuals from his left thigh and right calf gunshot wounds have become worse, warranting increased ratings. He contends that he has pain in his legs and is unable to walk more than one-half to one block without resting. 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 grant of entitlement to a disability rating in excess of 30 percent for residuals of a gunshot wound to the left posterior thigh. The preponderance of the evidence is also against the grant of entitlement to a disability rating in excess of 10 percent for residuals of a gunshot wound to the right calf. FINDINGS OF FACT 1. The veteran is service connected for residuals of a gunshot wound to the left posterior thigh (Muscle Group XIII), evaluated as 30 percent (protected) disabling. 2. The veteran is service connected for residuals of a gunshot wound to the right calf (Muscle Group XI), evaluated as 10 percent (protected) disabling. 3. The veteran's left thigh gunshot wound residuals produce not more than a moderately severe disability to Muscle Group XIII. Residuals of the wound consist of a non-disabling three-inch by three-inch superficial, nonadherent, nontender scar on the posterior left thigh above a two-inch incisional scar. There is no evidence of significant tissue loss or muscle atrophy, and the evidence does not show that the wound is productive of severe disability. 4. The veteran's right calf gunshot wound residuals produce not more than moderate disability to Muscle Group XI. Residuals of the wound consist of a non-disabling, nontender and nonadherent two-inch by three-quarter inch scar between the lower and middle thirds of the right calf. There is no evidence of significant tissue loss, muscle atrophy, or functional impairment. CONCLUSIONS OF LAW 1. The criteria for a disability rating in excess of 30 percent (protected) for residuals of a gunshot wound to the left posterior thigh have not been met. 38 U.S.C.A. § 1155 (West 1991); 38 C.F.R. §§ 4.56, 4.72, and Part 4, Diagnostic Code 5313 (1993). 2. The criteria for a disability rating in excess of 10 percent (protected) for residuals of a gunshot wound to the right calf have not been met. 38 U.S.C.A. § 1155 (West 1991); 38 C.F.R. §§ 4.56, 4.72, and Part 4, Diagnostic Code 5311 (1993). 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(a) (West 1991). The Board is also satisfied that all relevant facts have been properly developed and that no further assistance to the veteran is required to comply with the statutory duty to assist mandated by 38 U.S.C.A. § 5107(a). The veteran has appealed a denial of entitlement to increased disability ratings for residuals of gunshot wounds to the posterior left thigh, evaluated as 30 percent disabling, and to the right calf, evaluated as 10 percent disabling. Both of these disability ratings have been in effect for more than 20 years, and are thus protected under 38 C.F.R. § 3.951(b) (1993). The veteran served during World War II, and received his left thigh and right calf wounds in May 1944 during action with the enemy in Italy. His service medical records indicate that the left thigh gunshot wound was a perforating wound, 15 by 30 centimeters at entry, with its entrance point posterolaterally at the middle third of the left thigh, and its exit point at the posterior distal third of the thigh, measuring 3 by 2 centimeters. The right calf wound was described as "lacerated," at the posterior distal third of the calf, and measured two by six centimeters. It was noted that the size of the wounds was due to debridement. His wounds required sutures, with the left thigh wound requiring a skin graft as well. He was hospitalized until August 1944. On VA examination in 1946, the veteran complained of marked weakness of the left leg. Findings included a large scar on the left posterior thigh, a small scar below the knee and a scar over the posterior right calf. These wounds caused marked weakness of the left thigh. Peripheral nerves were normal. The left thigh disability was originally evaluated as 20 percent disabling, but this was increased to 30 percent effective since April 1946. The right calf disability has been evaluated as 10 percent disabling since August 1945. The veteran's left thigh wound residuals are evaluated under 38 C.F.R. Part 4, Diagnostic Code 5313, for posterior thigh muscles (Muscle Group XIII). Under this Code, a noncompensable evaluation is provided where residual disability is slight, a 10 percent rating is provided where residual disability is moderate, a 30 percent disability rating is provided for residuals considered moderately severe and a 40 percent evaluation is provided for residuals considered severe. His right calf wound residuals are evaluated under 38 C.F.R. Part 4, Diagnostic Code 5311, for muscles of the calf (Muscle Group XI). Under Code 5311, slight disabilities are rated as noncompensable, moderate disabilities are assigned a 10 percent rating, moderately severe conditions are given 20 percent ratings and severe conditions are evaluated as 30 percent disabling. As noted previously, the veteran is currently in receipt of a protected 30 percent rating for his left thigh wound residuals and a protected 10 percent rating for his right calf wound residuals. Guidance in rating muscle injuries is set out at 38 C.F.R. §§ 4.56 and 4.72. Section 4.72 indicates that when rating muscle injuries, attention must be given first to whether the deeper structures (bones, joints and nerves) have been injured. The section offers a compound comminuted fracture with muscle damage from the missile as an example of an injury which would be considered severe. Section 4.72 also notes that through and through wounds with muscle damage are always at least moderate injuries. In addition, the section states that severe ratings are established when there is a history of compound comminuted fracture and definite muscle or tendon damage from the missile, but notes that there are certain locations, such as in the wrist or over the tibia, where muscle damage might be minimal or damage to tendons repaired by suture; in such cases the requirements for a severe rating would not necessarily be met. 38 C.F.R. § 4.72. 38 C.F.R. § 4.56 discusses factors to be considered in the evaluation of disabilities residual to healed wounds involving muscle groups due to gunshot wounds or other trauma. Slight disabilities are described as those without debridement, infection or effects of laceration; minimum scarring with slight, if any, evidence of fascial defect or of atrophy or impaired tonus; and no impairment of function or retained metallic fragments. 38 C.F.R. § 4.56(a). Through and through or deep penetrating wounds of relatively short track by a single bullet or small fragment, without residuals of debridement or prolonged infection, are to be considered at least moderate in degree. 38 C.F.R. § 4.56(b). History should include consistent complaints from the first examination of such cardinal symptoms of muscle wounds as fatigue and fatigue-pain after moderate use, or functional impairment. Id. Objective findings for moderate disabilities should include entrance and exit wounds indicating a relatively short track of a missile, with moderate loss of deep fascia or muscle substance, or impairment of muscle tonus, and definite weakness or fatigue in comparative tests. Id. Moderately severe muscle disability is described at 38 C.F.R. § 4.56(c) as being from through and through or deep penetrating wounds by small high-velocity missiles or large low-velocity missiles, with debridement, prolonged infection, sloughing of soft parts or intermuscular cicatrization. History should include prolonged hospitalization in service for treatment of a wound of severe grade, and consistent complaints of symptoms of muscle wounds. Id. Objective findings should include relatively large entrance and exit scars indicating the track of the missile through important muscle groups, with moderate loss of deep fascia, muscle substance or normal firm resistance as compared with the sound side. Id. Severe muscle disability is described at 38 C.F.R. § 4.56(d) as being from through and through or deep penetrating wounds due to a high-velocity missile or to large or multiple low-velocity missiles, or a shattering bone fracture with extensive debridement, prolonged infection, sloughing of soft parts or intermuscular binding or cicatrization. History should be similar to that indicated in § 4.56(c), but in aggravated form. Id. Objective findings should include extensive ragged, depressed and adherent scars so situated as to indicate wide damage to muscle groups in the track of the missile. Id. X-rays may show retained metallic foreign bodies, and palpation should show moderate or extensive loss of deep fascia or muscle substance, with soft or flabby muscles in the wound area. Id. Adaptive contraction of an opposing group of muscles, if present, indicates severity, as does adhesion of a scar to one of the long bones, scapula, pelvic bones, sacrum or vertebrae, in an area where the bone is normally protected by muscle. Id. The veteran contends that his left leg has become unstable, requiring him to use a cane. He contends that he is unable to walk more than one-half to one block. He also contends that he has nerve damage from the left thigh wound which causes pain to radiate up to his waist area. Post-service VA treatment records have been associated with the file. The majority of these records pertain to shortness of breath and related complaints, but several are relevant to his left thigh and right calf. In June 1990, he was seen complaining of low back pain which hurt when he walked. The diagnosis was degenerative joint disease (of the spine). He was seen again about one month later complaining of low back pain which had begun to radiate down into his legs with edema and discoloration in his legs by the end of the day. The diagnosis was degenerative joint disease. The veteran was hospitalized in July and August 1990 for complaints of shortness of breath and chest pain. On physical examination he was noted to have 1+ pitting edema in both of his feet. On discharge his claudication was noted to be stable with increasing exercise and Trental, and it was reported that he was able to walk much farther than he could on admission, without shortness of breath or pain in his calves. In November 1990, the veteran reported a dull aching pain in both his legs, especially when walking. He stated that he was only able to walk a half a block, and had cramping two or three times a week. Muscle testing was 2/5 in the feet and legs. Temperature was warm from the proximal ankle to the distal toes bilaterally. Pain was noted with Homans sign on the left. The left knee had negative five degrees extension. The assessment was muscle weakness, and he was given Parafon Forte DSC. He presented again about one week later complaining of muscle weakness secondary to a gunshot wound to the thigh. He was noted to have 1+ edema. The veteran was seen again in January 1991, and complained of thigh and calf pain which prevented him from walking more than a half a block at a time. He had 1+ edema of both ankles. He had slightly macerated interspaces (presumably referring to those between his toes), and elongated nails. The muscle strength of his right leg was less than his left upon resistance. His hamstrings were noted as tight. The assessment was macerated interspaces, elongated nails and tight hamstrings. In March 1991, the veteran complained of left posterior thigh pain radiating to his left calf and left hip. He reported being able to walk five to six blocks without resting. No edema was noted. A scar on his left posterior thigh was noted to be black in color, with no inflammation and no exudate. The assessment included chronic pain status post gunshot wound trauma. Parafon Forte was continued. The veteran was seen in June 1991, and his complaints included left posterior thigh tenderness and pain. He reported being able to walk a quarter of a mile before having to stop, and stated that he could walk two or three miles about five years previously. His leg pain was reportedly slightly relieved by Chlorzoxazone. His extremities had no edema. The assessment included left posterior thigh tenderness, with questionable muscle weakness and questionable nerve damage due to gunshot wound. In August 1991, the veteran's complaints included numbness of both legs, particularly the left leg. No specific findings were noted, but the impression included rule out degenerative disc disease and degenerative joint disease. In September 1991, the veteran also complained of left posterior thigh pain for five years, which had decreased in intensity as compared to that experienced five years previously. His extremities showed no pedal edema. The relevant assessment was left posterior thigh pain secondary to gunshot wound, stable. In August 1992, his complaint was again pain in the left posterior thigh. It was noted that he was having trouble ambulating due to this pain. The assessment was degenerative joint disease. He was referred to prosthetics for issuance of a walking cane. In November 1992, he described his left leg pain as "achy" and "crampy." He reported that it hurt constantly, and was worse in cold weather. A traumatic scar on his left posterior thigh was reported, and 2+ edema in his calves was noted. The assessments were possible congestive heart failure and left ventricular failure. No specific diagnosis was made. The veteran was seen in January 1993, and it was noted that he had leg pain when walking which was relieved with rest. His extremities were noted to have minimal edema. The veteran was also hospitalized in January 1993, for hypoxia of unknown etiology. Physical examination on admission revealed that he extremities were nontender with 1+ pedal edema and normal pulses. His gait was normal, and no sensory deficit was noted. A stress test was aborted secondary to leg and thigh pain consistent with a diagnosis of claudication. X-rays of the veteran's left femur were taken in May 1993. The impression was evidence of degenerative changes involving the left knee. Clinical correlation was suggested. The veteran underwent a VA examination in December 1993, pursuant to the Board's July 1993 remand. He was seen by two different physicians, on December 7 and on December 15, respectively. The report from the December 7 examination indicates that the veteran reported a numbness in both of his legs, right more than left, which began in August 1991. He also reported pain in his left thigh which began in August 3, 1992. He stated that the left thigh hurt when walking, but that the right calf did not bother him too much. He also reported that the gunshot fragments in service did not hit the bone, and that he had had reparative surgery at the time of the injury but none since. The examiner measured the circumference of each thigh at the point three inches above the superior tip of the patella; the right thigh was 17¼ inches and the left thigh was 17 inches. The circumference of his calves were measured at the point eight inches below the reference point used to measure the thighs; the right calf was 13½ inches and the left calf was 13¾ inches. The examiner commented that the difference in the measurements of the thighs and calves, respectively, were not felt to be significantly different. The scar on the right calf was measured as being two inches by three-quarters of an inch. It was described as nonadherent, nontender and non-disabling. The scar was reportedly located at the junction of the lower and middle thirds of the right leg. The examiner felt that there was no impairment in the right leg due to this injury. On the left thigh, there was a superficial nonadherent, nontender scar which measured three inches by three inches. There was also a two-inch incisional scar below the other one. The examiner felt that these scars were non-disabling. The examiner recommended that the veteran be seen by another VA physician. This other VA physician saw the veteran on December 15, 1993. His report includes the veteran's history pertaining to the incurrence of the gunshot wounds, and indicates that the veteran reported that the residual scars are painful when he walks. On examination, there was a well-healed scar measuring two centimeters by five centimeters on the left posterior mid leg, as well as one seven centimeters by ten centimeters on the left posterior thigh. The examiner also reported a superficial scar on the right posterior thigh, measuring 12 centimeters by 15 centimeters, which was the donor site of the skin graft used to close the left posterior thigh wound. The diagnosis was scars, traumatic, left lower extremity, and scar, surgical, right thigh. Color photographs of the scars were taken and have been associated with the claims file. Increased Rating for Residuals of a Gunshot Wound to the Left Thigh As noted previously, 38 C.F.R. §§ 4.56 and 4.72 provide some guidance on how muscle injuries should be evaluated. The veteran's service medical records indicate that his left thigh wound was a through and through wound. Although the wound required debridement, suturing and a skin graft for closure, there is no indication that there were retained fragments, extensive loss of deep fascia or muscle substance, damage to any bones, joints or nerves, severe functional impairment or other findings which establish severe disability involving Muscle Group XIII. In addition, although the veteran has recently complained of pain radiating up and down his leg, there has been no clinical confirmation that such was due to any nerve damage secondary to the left thigh wound residuals. There is no documentation that the gunshot wound caused nerve damage. Moreover, while recent assessments have included possible nerve damage due to gunshot wound trauma, they have also included degenerative joint disease, claudication and simply pain due to gunshot wound. We also note other findings pertaining to the lower extremities, but the clinical assessments have not involved the gunshot wound. The current evidence shows that residuals of the gunshot wound consist principally of relatively small scars which have been clinically characterized as not disabling. Although the veteran has reported pain and weakness in the wound region, such symptoms are among the types of residuals contemplated by the schedular 30 percent evaluation under 38 C.F.R. Part 4, Diagnostic Code 5313. See 38 C.F.R. §§ 4.56, 4.72. He has not required frequent hospitalizations due to his left thigh wound residuals, and there is no indication of marked interference with employment such as to warrant a higher (extraschedular) evaluation under 38 C.F.R. § 3.321 (1993). Nor do his symptoms more closely approximate the criteria for the next higher rating. See 38 C.F.R. § 4.7 (1993). II. Increased Rating for Residuals of a Gunshot Wound to the Right Calf As previously noted, the veteran's service medical records describe his right calf wound as "lacerated," and do not indicate that the wound involved significant damage to muscles or fascia or damage to any bones, joints or nerves. The wound required sutures for closure, but no skin graft was necessary. The veteran's post-service complaints of leg pain and weakness have mainly pertained to his left thigh, but some complaints related to his right calf have also been noted. However, the Board finds that the right calf disability is not more than moderate in degree. At his December 7, 1993, VA examination, the residual scar from his right calf wound was reported as relatively small and not productive of any right leg impairment. He has not required frequent hospitalizations due to his right calf wound residuals, and there is no indication of marked interference with employment such as to warrant a higher (extraschedular) evaluation under 38 C.F.R. § 3.321. Nor do his symptoms more closely approximate the criteria for the next higher rating. See 38 C.F.R. § 4.7. (CONTINUED ON NEXT PAGE) ORDER Entitlement to a disability rating in excess of 30 percent (protected) for residuals of a gunshot wound to the left posterior thigh is denied. Entitlement to a disability rating in excess of 10 percent (protected) for residuals of a gunshot wound to the right calf is denied. NANCY I. PHILLIPS 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.