Citation Nr: 0003238 Decision Date: 02/09/00 Archive Date: 02/15/00 DOCKET NO. 93-20 005 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Newark, New Jersey THE ISSUE Entitlement to an increased evaluation for residuals of a gunshot wound (GSW) to the left foot, currently evaluated as 20 percent disabling. REPRESENTATION Appellant represented by: Attorney Allen E. Falk WITNESSES AT HEARING ON APPEAL Appellant and his son ATTORNEY FOR THE BOARD Michael J. Skaltsounis, Associate Counsel INTRODUCTION The veteran had active service from January 1951 to October 1952. Initially, the Board of Veterans' Appeals (Board) notes that the original claim on appeal included a claim for an increased evaluation for schizophrenia for the period of March 10, 1993 to June 12, 1995, and that the maximum available benefit was awarded for this disability for the relevant time period by the Board's decision in April 1998. Therefore, this issue is no longer an issue in controversy pursuant to AB v. Brown, 6 Vet. App. 35 (1993). At the time of the Board's April 1998 decision, the Board remanded the remaining issue on appeal for further evidentiary development. The Board finds that the requested development has been completed to the extent possible, and that this issue is now ready for appellate review. Finally, in view of the Board's decision to assign a higher schedular rating for the veteran's left foot disability on the primary basis that said disability includes a compound comminuted fracture, and that such fracture was demonstrated in the record prior to the filing of the claim on appeal herein (March 1993), the Board requests that the regional office (RO) consider the issue of entitlement to an earlier effective date for this disability on the grounds of clear and unmistakable error (CUE) with respect to relevant prior rating decisions, beginning in June 1953. FINDINGS OF FACT 1. The veteran sustained a combat gunshot wound resulting in a compound, comminuted fracture of the proximal, distal phalanx, left big toe, and first metacarpal. A foreign body (bullet) was removed and the wound was debrided and closed secondarily. There was at one point a slight infection. 2. Residuals of a GSW of the left foot are manifested by symptoms in an unexceptional disability picture that warrant the highest schedular rating for the affected muscle group (MG). 3. The veteran is currently in receipt of the maximum benefit available for a severe injury to his affected muscle group under the "old" and "new" diagnostic criteria for muscle injuries. 3. The wound of left muscle group X is not manifested by actual loss of use of the left foot. CONCLUSION OF LAW The schedular criteria for an evaluation of 30 percent, but no higher, for residuals of a GSW of the left foot, have been met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §§ 3.321, 4.1, 4.3, 4.7, 4.10, 4.40, 4.45, 4.54, 4.55, 4.56, 4.59, 4.71a, Diagnostic Code 5284, 4.73, Diagnostic Code 5310 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Background The Board notes that the claim is well grounded and adequately developed. 38 U.S.C.A. § 5107(a); Proscelle v. Derwinski, 2 Vet. App. 629 (1992). Disability evaluations are determined by the application of a schedular rating which is based on average impairment of earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. Separate diagnostic codes identify the various disabilities. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. The rating schedule recognizes that a veteran's disability evaluation may require reratings in accordance with changes in his condition. It is thus essential, in evaluating a disability, that it be viewed in relation to its history. 38 C.F.R. § 4.1. A review of the history of this disability shows that service connection was originally granted by a rating decision in June 1953 with an assignment of a 10 percent evaluation, effective from October 1952, under Diagnostic Code 5310 (Muscle Group X), based on service medical records and Department of Veterans Affairs (VA) medical examination. Service medical records were found to reflect that during service in October 1951, the veteran sustained a combat GSW to the left foot which resulted in a compound, comminuted fracture of the proximal, distal phalanx, left big toe, and first metacarpal. A foreign body (bullet) was removed and the wound was debrided and closed secondarily. There was at one point a slight infection. VA examination at this time revealed a healed fracture with traumatic arthritis of the metatarsophalangeal joint of the first toe of the left foot. Thereafter, a July 1963 rating decision increased the evaluation for the veteran's left foot disability to 20 percent, effective from July 1963, pursuant to 38 C.F.R. § 4.71a, Diagnostic Code 5284. A May 1993 rating decision continued the 20 percent evaluation, finding that the then current symptoms associated with this disability were not reflective of severe limitation. At this time, April 1993 VA foot examination was noted to reveal no local left foot tenderness and active motion was indicated to be full in all ranges. X-rays of the left foot were interpreted to reveal a small calcaneal spur, and shattered, fragmented bullet at the base of the proximal phalanx of the left great toe. An old fracture was also noted in that area and the metatarsal joint was found to be narrow and almost obliterated. The diagnosis was history of GSW to the left foot with minimal functional defect. At the veteran's hearing before a member of the Board in March 1994, the veteran testified primarily with respect to his service-connected schizophrenia. He did note that he was shot during the service while running telephone lines for the Army in Korea (transcript (T.) at pp. 6-7). VA feet examination in July 1996 revealed that the veteran underwent surgery during service for the removal of a bullet which apparently fractured the left first metatarsophalangeal joint. The veteran reportedly worked as a janitor until June 1995, at which time his foot was painful much of the time, especially with a lot of walking. Physical examination at this time revealed a 6 centimeter scar, 3 centimeters in the first toe and another 3 centimeters into the foot. There was also a 31 degree valgus deformity of the left metatarsophalangeal joint, and an 18 degree valgus deformity of the right first metatarsophalangeal joint. The left toe was also noted to have a 30 degree arch as opposed to a 90 degree arch on the right. X-rays were interpreted to reveal no change since 1993 with plantar heel spur and hammertoes. The diagnosis was moderate degenerative joint disease, left first metatarsophalangeal joint due to his GSW. In an addendum, the examiner indicated that the veteran's foot hurt much of the time when he worked as a janitor and that it hurt even more now. A December 1996 rating decision continued the 20 percent evaluation for this disability. VA feet examination in December 1998 revealed that the veteran had a history of being shot in the left forefoot with the bullet entering in and about the tip of the left large toe. The bullet was removed surgically and since then, the veteran reported that "once in a while my foot hurts." This was approximately once a month. There was no swelling and the veteran could stand on his left foot for more than two hours. His major problem was that his foot would sometimes fall asleep. Physical examination of the left forefoot revealed that the veteran's shoes appeared normal and that he was able to heel and toe walk without difficulty. There was a 2 inch scar which was a continuation of the interspace between the large toe and the adjacent toe which extended into the dorsum of the foot. Circulation was also normal, as was nerve supply throughout. Motion of the large toe was 20 degrees of dorsiflexion, and 15 degrees of plantar flexion. There was no pain to palpation and no swelling or erythema. The December 1998 VA examiner found that the veteran had no demonstrable problems with the left foot, and that the impairment might be considered mild to moderate. Examination further revealed a hallux rigidus involving the metatarsophalangeal joint of the large toe. There was no adaptive contracture of an opposing group of muscles and no palpation of a fracture of the large toe and the adjacent toe. X-rays of the left foot were interpreted to reveal shrapnel in the first proximal phalanx and severe osteoarthritis in the first metatarsal phalangeal joint. Also noted was a fibular deviation of the first distal phalanx. Except for the aforementioned nonadherent scar, the veteran was found to have no scars, fatigability, or atrophy of any muscle group in or out of the track of the bullet. The diagnosis was post left foot bullet wound and hallux rigidus of the metatarsal phalangeal joint large toe. An addendum added in July 1999 indicated that undoubtedly there was muscular trauma due to the original wound and surgical treatment, but here was no involvement to any muscle group except group X. II. Rating Criteria and Analysis The veteran's service-connected residuals of a GSW of the left foot have most recently been evaluated as 20 percent disabling under 38 C.F.R. § 4.73, Diagnostic Code 5310, under the "old" rating criteria for muscle injuries (effective prior to July 3, 1997), and also under the "new" criteria for muscle injuries which took effect during the pendency of this appeal (on July 3, 1997). Under both the "old" and "new" criteria, Diagnostic Code 5310 pertains to MG X, which relates to the damage of the intrinsic muscles of the plantar aspect of the foot. (Function: Movements of the forefoot and toes and propulsion thrust in walking.) The disability ratings for slight, moderate, moderately severe, and severe MG X disabilities are noncompensable, 10, 20, and 30 respectively. A noncompensable evaluation was warranted for slight injury to MG X (intrinsic muscles of the dorsal aspect of the foot). A 10 percent evaluation required either moderate or moderately severe injury. A 20 percent evaluation required severe injury. 38 C.F.R. § 4.73, Diagnostic Code 5310. Muscle injuries in the same anatomical region will not be combined, but instead, the rating for the major group will be elevated from moderate to moderately severe, or from moderately severe to severe, according to the severity of the aggregate impairment of function of the extremity. 38 C.F.R. § 4.55. Prior to July 3, 1997, a moderate disability of the muscles consists of a through and through or deep penetrating wound of relatively short track by a single bullet or small shell or shrapnel fragment. Objective findings of a moderate disability of the muscle are the following: linear or relatively small entrance and (if present) exit scars so situated as to indicate a relatively short track of the missile through muscle tissue; signs of moderate loss of deep fascia or muscle substance or impairment of muscle tonus; and definite weakness or fatigue in comparative tests. 38 C.F.R. § 4.56(b), as in effect prior to July 3, 1997. Prior to July 3, 1997, a moderately severe disability is presented by evidence of a through and through or deep penetrating wound by a high velocity missile of small size, or a large missile of low velocity, with debridement or with prolonged infection or with sloughing of soft parts, and with intermuscular cicatrization. Objective findings of a moderately severe wound include the following: relatively large entrance and (if present) exit scars so situated as to indicate the track of the 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 in comparison to the sound side; and tests of strength and endurance of muscle groups involved in comparison to the sound side give positive evidence of marked or moderately severe loss. 38 C.F.R. § 4.56(c), as in effect prior to July 3, 1997. Prior to July 3, 1997, severe muscle disability consists of 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, or sloughing of soft parts; intermuscular binding; and cicatrization. The history of the injury should be similar to moderately severe muscle injury, but in an aggravated form. Objective findings should include extensive ragged, depressed and adherent scars so situated as to indicate wide damage to the muscle groups in the track of the missile. 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. 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. 38 C.F.R. § 4.56(d), as in effect prior to July 3, 1997. Prior to July 3, 1997, where there was a history of a compound, comminuted fracture and definite muscle or tendon damage from the missile, a severe grade of injury was to be presumed. 38 C.F.R. § 4.72, as in effect prior to July 3, 1997. The VA Schedule for Rating Disabilities for muscle injuries has been revised, effective July 3, 1997. See 62 Fed. Reg. 30235 (June 3, 1997). Under the new rating schedule, an open comminuted fracture with muscle or tendon damage will be rated as a severe injury of the muscle group involved, unless for locations such as the wrist or over the tibia, evidence establishes that the muscle damage is minimal. Objective findings of a moderate disability include (1) some loss of deep fascia or muscle substance, or some impairment of muscle tonus; and (2) loss of power or lowered threshold of fatigue when compared to the sound side. Moreover, objective findings of a moderately severe disability include the following: entrance and (if present) exit scars which indicated the track of a missile through one or more muscle groups; indications on palpation of loss of deep fascia, muscle substance, or normal firm resistance of muscles in comparison to the sound side; and tests of strength and endurance in comparison to the sound side demonstrate positive evidence of impairment. 38 C.F.R. § 4.56, effective July 3, 1997. Effective July 3, 1997, severe disability consists of through and through or deep penetrating wound due to high-velocity missile, or large or multiple low velocity missiles, or with shattering bone fracture or open comminuted fracture with extensive debridement, prolonged infection, or sloughing of soft parts, intermuscular binding and scarring. Furthermore, objective findings of a severe disability include the following: ragged, depressed, and adherent scars that indicate wide damage to the muscle groups in the missile track; palpation shows loss of deep fascia or muscle substance, or soft flabby muscles in the wound area; muscles swell and harden abnormally in contraction; and tests of strength, endurance, or coordinated movements in comparison to the corresponding muscles of the uninjured side indicate severe impairment of function. 38 C.F.R. § 4.56, effective July 3, 1997. If present, the following are also signs of severe muscle disability: (1) X-ray evidence of minute multiple scattered foreign bodies indicating intermuscular trauma and explosive effect of the missile; (2) adhesion of a scar to one of the long bones, scapula, pelvic bones, sacrum, or vertebrae, with epithelial sealing over the bone rather than true skin covering in an area where the bone is normally protected by muscle; (3) diminished muscle excitability to pulsed electrical current in electrodiagnostic tests; (4) visible or measurable atrophy; (5) adaptive contraction of an opposing group of muscles; (6) atrophy of muscle groups not in the tract of the missile, particularly of the trapezius and serratus in wounds of the shoulder girdle; and (7) induration or atrophy of an entire muscle following simple piercing by a projectile. 38 C.F.R. § 4.56, effective July 3, 1997. The United States Court of Appeals for Veterans Claims (known as the United States Court of Veterans Appeals prior to March 1, 1999, hereafter "the Court") has held that where the law or regulation changes after the claim has been filed, but before the administrative or judicial process has been concluded, the version more favorable to the veteran applies unless Congress provided otherwise or permitted the VA Secretary to do otherwise and the Secretary did so. Karnas v. Derwinski, 1 Vet. App. 308 (1991). With any form of arthritis, painful motion is an important factor of disability, the facial expression, wincing, etc., on pressure or manipulation, should be carefully noted and definitely related to affected joints. Muscle spasm will greatly assist the identification. Sciatic neuritis is not uncommonly caused by arthritis of the spine. The intent of the schedule is to recognize painful motion with joint or periarticular pathology as productive of disability. It is the intention to recognize actually painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. Crepitation either in the soft tissues such as the tendons or ligaments, or crepitation within the joint structures should be noted carefully as points of contact which are diseased. Flexion elicits such manifestations. The joints involved should be tested for pain on both active and passive motion, in weight bearing and, if possible, with the range of the opposite undamaged joint. 38 C.F.R. § 4.59. Severe unilateral hallux rigidus is rated at 10 percent as severe hallux valgus under 38 C.F.R. § 4.71a, Diagnostic Code 5280, 5281 (1999). For other injuries of the foot, 38 C.F.R. § 4.71a, Diagnostic Code 5284 provides that severe impairment is rated as 30 percent disabling, and the accompanying note states that impairment should be rated at 40 percent where there is actual loss of use of the foot. 38 C.F.R. § 4.71a, Diagnostic Code 5284. A 10 percent evaluation is also warranted for a superficial, tender and painful scar on objective demonstration. 38 C.F.R. § 4.118, Diagnostic Code 7804 (1999). Other scars may be rated based on the limitation of the part affected. 38 C.F.R. § 4.118, Diagnostic Code 7805 (1999). As was noted earlier, when the maximum available benefit has been awarded for a disability, entitlement to an increased evaluation is no longer an issue in controversy. AB v. Brown, supra. Moreover, it has been held that where a Diagnostic Code is not predicated on limited range of motion alone, the provisions of 38 C.F.R. §§ 4.40 and 4.45 (1999), with respect to pain, do not apply. See Johnson v. Brown, 9 Vet. App. 7, 11 (1996). In addition, degenerative arthritis which is established by X-rays findings will be rated based on limitation of motion of the specific joint involved. 38 C.F.R. § 4.71a, Diagnostic Codes 5003, 5010 (1999). The Diagnostic Codes under which the instant disability is rated (both old and new) are not predicated on range of motion alone. The Court has further held that even when the Board erred in failing to consider function loss due to pain, if it did so when the current rating was the maximum rating available for limitation of motion, remand was not appropriate. Johnston v. Brown, 10 Vet. App. 80 (1997). For reasons set forth below, however, even assuming that the provisions of 38 C.F.R. §§ 4.40, 4.45, and 4.59 are applicable, it could not change the outcome in this matter. The evidence contained in the service medical records establishes that the veteran plainly sustained a compound, comminuted fracture of the proximal, distal phalanx, left big toe, and first metacarpal, due to a combat missile wound in service. The records further show muscle injury, with debridement, secondary closure and some slight infection. The original rating action recognized that muscle injury was involved. Based upon this evidence, and the physical findings at multiple VA medical examinations since the original grant of service connection of this disability, the criteria for damage to the intrinsic muscles of the plantar aspect of the foot clearly are the most appropriate for rating the veteran's disability under Diagnostic Code 5310. The most recent examination and the medical opinion of July 1999 establish that no other muscle group was involved. Under the rating criteria in effect both before and after July 3, 1997, a compound (open), comminuted fracture with muscle or tendon injury due to missile injury establishes presumptively a severe grade of muscle injury, with exceptions not raised by this record. Thus, as a matter of legal presumption, rather than as a matter of medical fact, entitlement to a 30 percent rating under Code 5310 is established. Having now evaluated the veteran's left foot disability as 30 percent disabling, the Board notes that with a rating of 30 percent, the veteran's left foot disability is currently rated at the highest schedular rating available under either the "old" or "new" criteria for severe muscle injuries under 38 C.F.R. § 4.73, Diagnostic Code 5310. Clearly, Diagnostic Code 5284 would not provide a higher schedular rating of 40 percent as there has been no evidence of actual loss of use of the left foot. The Board further notes that a 40 percent evaluation would represent the maximum rating that could be assigned under any circumstances for disability of one lower extremity under the "amputation rule," which precludes the assignment of a rating beyond that provided for amputation of the extremity at the elective level. 38 C.F.R. § 4.68 (1999). Severe unilateral hallux rigidus of the left great toe would also not afford the veteran a higher rating since the criteria applicable to such disability provides for a maximum rating of 10 percent. See 38 C.F.R. § 4.71, Diagnostic Code 5280, 5281. A 10 percent evaluation for a tender and painful scar is also not warranted, as there has been no medical evidence that the veteran's surgical scar on the left foot is tender and/or painful. 38 C.F.R. § 4.118, Diagnostic Code 7804. The Board also notes that since any pain connected with the veteran's left foot scar and arthritis of the left foot has already been taken into account in the assignment of a 30 percent evaluation for severe disability under Diagnostic Code 5310, an additional 10 percent for a tender and painful scar, and limitation caused by the scar and/or arthritis would constitute pyramiding which is prohibited under 38 C.F.R. § 4.14 (1999). More specifically, the record does not reflect compensable limitation of motion as a result of either a left foot scar or arthritis such that any pain associated with such limitation is clearly within the parameters of the 30 percent evaluation for the veteran's muscle injury. Moreover, since there has been no finding of any neurologic deficit related to this service-connected disability, consideration for an increased rating for residuals of a GSW to the left foot based on nerve damage under 38 C.F.R. § 4.124a, Diagnostic Codes 8000-8914 (1999) is also not warranted. Finally, the Board agrees with the RO's determination that a higher rating is not appropriate under 38 C.F.R. § 3.321. As to the disability picture presented, the Board cannot conclude that the disability picture as to the veteran's residuals of a GSW to the left foot are so unusual or exceptional, with such related factors as frequent hospitalization and marked interference with employment, as to prevent the use of the regular rating criteria. 38 C.F.R. § 3.321. While the record does reflect complaints of pain on use, there has been no recent or frequent hospitalization for this disability. In summary, the Board finds that the record does not indicate an exceptional or unusual disability picture so as to warrant an extraschedular rating. ORDER A 30 percent evaluation is granted for residuals of a GSW to the left foot, subject to the applicable provisions appropriate to the disbursement of monetary funds. Richard B. Frank Member, Board of Veterans' Appeals