Citation Nr: 0002798 Decision Date: 02/04/00 Archive Date: 02/10/00 DOCKET NO. 94-22 284A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUES 1. Entitlement to an increased (compensable) evaluation for residuals of a shell fragment wound (SFW) of the left anterior leg. 2. Entitlement to an increased rating for residuals of a shell fragment wound (SFW) of the left upper arm, with retained metallic fragment, currently evaluated as 10 percent disabling. ATTORNEY FOR THE BOARD Richard Giannecchini, Associate Counsel INTRODUCTION The veteran had active military service from January 1968 to September 1971, with 182 days lost from August 1969 to January 1970 and 412 days lost from January 1970 to March 1971. The veteran is unrepresented in his current appeal. A perfected appeal to the Board of Veterans' Appeals (Board) of a particular decision entered by a Department of Veterans Affairs (VA) regional office (RO) consists of a Notice of Disagreement (NOD) in writing received within one year of the decision being appealed and, after a Statement of the Case (SOC) has been furnished, a substantive appeal (VA Form 9) received within 60 days of the issuance of the Statement of the Case or within the remainder of the one-year period following notification of the decision being appealed. The present appeal arises from a February 1994 rating decision, in which the RO denied the veteran an increased (compensable) rating for residuals of a SFW of the left anterior leg and left upper arm. The granting of service connection was effective from September 1971. In addition, the RO denied the veteran service connection for a back disorder. The veteran filed an NOD in March 1994, and the RO issued an SOC in April 1994. The veteran filed a substantive appeal in June 1994. In a January 1995 rating decision, the RO increased the veteran's disability rating for a SFW of the left upper arm to 10 percent, with an effective date from February 1993. A supplemental statement of the case (SSOC) was issued that same month. Subsequently, the veteran's appeal came before the Board, which, in a March 1998 decision, denied the veteran's claim for service connection for a back disorder, and remanded the issues with respect to residuals of a SFW of the left anterior leg and left upper arm to the RO for additional development. An SSOC was issued in July 1999. FINDINGS OF FACT 1. All evidence necessary for an equitable disposition of the veteran's appeal has been obtained by the RO. 2. The veteran has not contended that his left anterior leg scar limits the function of any particular body part. 3. Upon VA examination in March 1999, the veteran's left leg exhibited a scar over the mid-shaft of the tibia, and the scar did not evidence a lack of sensation or tenderness to palpation or percussion, and the examiner reported a lack of any discernable left leg deficit. 4. The veteran's service medical records did not reflect that his left upper arm exhibited muscular, vascular, or neurological damage as a result of his shell fragment wound. 5. During a separation medical examination in May 1971, the veteran complained of intermittent pain and weakness in his left upper arm. 6. Upon VA examinations in November 1994 and September 1998, clinical examination of the veteran's left upper arm, including associated muscle and nerve groups, revealed normal findings, with the left arm scar site not painful or tender to palpation. 7. The medical evidence of record does not demonstrate that the veteran's left upper arm is functionally impaired as a result of his SFW scar. CONCLUSIONS OF LAW 1. The schedular criteria for an increased (compensable) rating for residuals of a SFW of the left anterior leg are not met. 38 U.S.C.A. §§ 1155, 5107, (West 1991 & Supp. 1998); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.10, 4.40, 4.45, 4.56, 4.118, Diagnostic Code 7805 (1999). 2. The schedular criteria for a disability rating greater than 10 percent for residuals of a SFW of the left upper arm, with retained metallic fragment, are not met. 38 U.S.C.A. §§ 1155, 5107, (West 1991 & Supp. 1998); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.10, 4.40, 4.45, 4.56, 4.118, Diagnostic Code 7805 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Factual Basis A review of the veteran's service medical records reflects that, in October 1968, he incurred a shell fragment wound to his left upper arm and left anterior leg, after a .45 caliber round exploded in a campfire. A Clinical Record Cover Sheet (DA Form 8-275-3), noted a diagnosis of fragment wound of the left arm, without artery or nerve involvement. Medical treatment included debridement of the wound at the left biceps under local anesthesia (Lidocaine). The veteran was noted to have convalesced and returned to duty. No treatment was noted for the left anterior leg. In May 1971, the veteran was medically examined for purposes of separating from active service. He complained of intermittent pain in his left arm since his injury in Vietnam, with an increase in pain frequency when the left arm was strained. The examiner noted that there had been no paresthesias or decrease in use of the left arm since the injury. The left arm scar was reported to be tender. In addition, it was noted that the veteran had sustained a superficial SFW to the left shin at the same time he sustained the SFW to the left upper arm. On clinical evaluation, no physical deficits were reported. In October 1971, following his release from active service, the veteran was service connected for residuals of a SFW to the left upper arm, with retained metal fragment, as well as residuals of a SFW to the left anterior leg. In March 1993, the RO received Dorn Veterans' Hospital treatment records, dated from November 1992 to March 1993. In particular, a treatment record, dated in January 1993, noted the veteran's complaint of left arm pain. In February 1993, the veteran was noted to complain of an aching pain in his left elbow. The elbow was noted to have a normal range of motion without effusion, and deep tendon reflexes were 2+ bilaterally. A March 1993 treatment report noted an assessment of degenerative joint disease of the left elbow. In December 1993, the veteran was medically examined for VA purposes. He was noted to be right-hand dominant, and reported problems with his left arm, primarily with cold intolerance. The veteran also reported that he worked in construction, and that he had a history of problems with pain and loss of strength in his left upper arm, along with a decrease in strength in his left hand. On clinical evaluation, there was a full range of motion in his left elbow. He also had full supination and pronation, with restriction of motion at the hand and wrist. The veteran was noted to have a small scar over the anteromedial upper arm, 3.5 cm x 5 mm, which was slightly repressed but not fixed to the underlying skin. In addition, it was noted that the anterior muscles of the upper arm had been penetrated but there had been no obvious muscle loss. There were no reported adhesions. Furthermore, the veteran was found to have normal strength in the upper arm in both the biceps and triceps area, with no evidence of pain on palpation or muscle hernia. An associated X-ray revealed a small foreign body in the anterior arm, which measured 2-3 mm. The examiner's impression was of a previous shrapnel wound to the left arm, with minimal evidence of scarring or tissue loss or penetration, and no evidence of limitation of muscle strength or motion from injury. Thereafter, the RO received Dorn Veterans' Hospital and Greenville outpatient clinic (VAOPC) treatment records, dated from May 1981 to November 1993. Those records noted the veteran's complaints and treatment for left upper arm pain and weakness. In particular, a February 1993 X-ray report noted shrapnel in the soft tissues of the distal upper arm, as well as an osteoarthritic change involving the coronoid process of the ulna. In May 1994, the veteran submitted additional medical records to RO. In particular, a progress note, dated in February 1993, noted the veteran's complaint of chronic left arm pain. The veteran was noted to be employed doing manual labor, and it was reported that he complained of his left upper arm aching at the shrapnel site after he finished working for the day. On clinical evaluation, there was a well-healed scar site, normal range of motion of the left arm, and a slight decrease in sensation distal to the wound. In June 1994, the veteran submitted a VA Form 9 (Appeal to the Board of Veterans' Appeals), dated that same month. He reported that his left arm had been causing him pain and problems for 26 years. With respect to his left leg, the veteran reported that there was a scar and that he experienced pain in his leg which he had not experienced prior his duty in Vietnam. In November 1994, the veteran again underwent VA medical examination. He reported having developed left elbow pain and weakness, as well as subjective left hand numbness, over the years following his injury in service. The examiner noted that the veteran was not able to expound on the problem with left hand numbness. Upon clinical evaluation, there was no swelling or deformity of the left elbow, or medial or lateral instability. There was no evidence of olecranon bursitis. Range of motion testing revealed hyperextension to 10 degrees and flexion to 140 degrees. There was no pain or crepitus with passive range of motion. The veteran was reported to have full pronation and supination, and there was no palpable or visible defect in the biceps or brachialis musculature. Motor testing was done which included shoulder abduction and upper arm flexion-extension, as well as finger abduction, and there was no reported weakness bilaterally. In addition, there was no numbness to touch in the left hand, and no pain to palpation of the shrapnel scar. An associated radiographic study of the humerus revealed no fractures or significant arthritic change, but did reveal an opaque metallic foreign body alongside the mid left humoral shaft. The examiner's diagnosis was normal left elbow examination without clinical evidence of cubital tunnel syndrome, osteoarthritis, bursitis, or medial or lateral epicondylitis. In September 1998, the veteran was again medically examined for VA purposes. He complained of pain along the lateral aspect of his elbow, especially when doing any heavy lifting exercises. The veteran also stated that he could comfortably lift about 20 pounds but had difficulty lifting anything heavier. In addition, the veteran complained of decreased sensation at the radial three digits of his left hand. He noted that his discomfort in his left arm improved with muscle relaxants. On clinical evaluation, the left elbow was noted to have 0 to 140 degrees of flexion, 85 degrees of supination, and 75 degrees of pronation. There was tenderness to palpation at the lateral epicondyle. There was a 2-cm scar along the mid lateral aspect of the left biceps which was well-healed, and there was no muscle atrophy of the left upper arm noted. In addition, motor examination revealed 5/5 for the veteran's biceps and triceps, as well as deltoids, wrist extensors, and wrist flexors. Sensation was intact at the ulnar, median, and radial nerve distribution. Furthermore, there was a negative Tinel's sign, Phalen's sign, and median nerve compression sign. An associated radiographic study revealed no acute bony or joint abnormalities of the left humerus or elbow, in addition to a radiopaque foreign body projected over the soft tissues of the mid-shaft of the left humerus. The examiner's impression noted that the veteran had signs and symptoms consistent with lateral epicondylitis of his left elbow. In an October 1998 addendum to the September 1998 VA examination report, the examiner noted that the veteran had give-away weakness in the triceps and biceps muscle function of the left upper extremity. Deltoid function was strong, as well as function of the pronator, supinator, flexor, and extensor groups for the fingers and the wrists. There was no muscle atrophy noted. The measurement of the left arm five inches above the lateral epicondyle was 12 and 6/8 inches, while a similar measurement of the right arm was 12 and 5/8 inches. The examiner also noted that there was no objective neurologic dysfunction. In addition, pinprick was not as sharp and vibration was not as keen on the entire left upper extremity, as compared to the right. This, the examiner noted, did not conform to any anatomic derangement of the peripheral nerve or spinal cord function. The veteran was noted to complain that the left arm bothered him when working as a mechanic or carpenter. Furthermore, the examiner reported that the SFW scar was l.5 inches long by .05 inches wide, and located about five inches above the lateral epicondyle on the lateral surface of the left arm. There was no tenderness or pain on palpation of the scar tissue. The examiner's impression was that the SFW of the left upper arm did not demonstrate any neuromuscular abnormality. In a subsequent January 1999 addendum, the examiner reported that residuals of the veteran's SFW of the left upper arm did not involve any muscles or bone, although the veteran's lateral epicondylitis did appear to be a remnant of the injury. In March 1999, the veteran underwent an additional VA examination. Upon clinical evaluation of his left leg, there was noted a 2-cm transverse scar over the anteromedial aspect of the mid shaft of the tibia. There was no hypertrophy of the scar, and no tenderness to palpation or percussion along the tibial shaft or along the scar site. The veteran's tibialis anterior, gastrocnemius, and extensor hallucis longus muscles were all 5/5 for motor strength. Sensation was intact to the deep and superficial peroneal nerves, as well as the sural nerve distribution. Pulses were palpable at the dorsalis pedis and posterior tibial. The examiner reported that the veteran's left lower extremity did not demonstrate any deficit. Furthermore, the examiner also reported that the veteran complained of a dull aching pain, especially with weather changes, in his left upper arm. This was noted as possibly being the result of scar tissue which had formed subsequent to his shrapnel injury. However, the examiner reported that the veteran's main problem appeared to be lateral epicondylitis, and he opined that any correlation between the shrapnel wound and the lateral epicondylitis could not be determined at that time. Thereafter, the RO received Dorn Veterans' Hospital medical records, dated from October 1997 to July 1998, as well as medical records from Jay Bishop, M.D., dated from June 1999 to August 1999. These records noted the veteran's treatment for basal cell cancer of the nose and eyebrow, and did not pertain to the issues on appeal. II. Analysis The veteran has submitted well-grounded claims for increased ratings within the meaning of 38 U.S.C.A. § 5107(a). See Murphy v. Derwinski, 1 Vet.App. 78, 81 (1990); Gilbert v. Derwinski, 1 Vet.App. 49, 55 (1990). That is, the Board finds that he has submitted claims which are plausible. This finding is based in part on the veteran's assertion that his service-connected residuals of a SFW to the left anterior leg and SFW of the left upper arm, with retained metallic fragment, are more severe then previously evaluated. See Jackson v. West, 12 Vet.App. 422, 428 (1999), citing Proscelle v. Derwinski, 2 Vet.App. 629 (1992). The Board is also satisfied that all relevant evidence necessary for an equitable disposition of the veteran's appeal has been obtained, and that no further assistance is required to comply with the duty to assist him as mandated by 38 U.S.C.A. § 5107(a). Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities. Where there is a reasonable doubt as to the degree of disability, such doubt shall be resolved in favor of the claimant, and 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. 38 C.F.R. §§ 3.102, 4.3, 4.7 (1999). The RO has assigned a noncompensable evaluation for the veteran's service-connected residuals of a SFW of the left anterior leg, and a 10 percent evaluation for residuals of a SFW of the left upper arm, in accordance with the criteria set forth in the VA Schedule for Rating Disabilities. In doing so, specific consideration was given to 38 C.F.R. § 4.118, Diagnostic Code (DC) 7805. Under this provision, scars may be evaluated on the basis of any related limitation of function of the body part which they effect. With respect to the veteran's left leg, in evaluating limitation of function, the Board finds that the veteran has not contended that his left anterior leg scar limits the function of any particular body part. A review of the evidence reflects that the veteran's SFW of the left anterior leg was noted in service as a superficial wound. There is no medical evidence of record that the veteran has received treatment for any residual disability associated with his SFW to the left anterior leg or the resulting scar. On VA examination in March 1999, there was no hypertrophy of the left leg scar, nor was there tenderness to palpation or percussion along the tibial shaft or along the scar site. The veteran's tibialis anterior, gastrocnemius, and extensor hallucis longus muscles were all 5/5 motor strength. Sensation was intact to the deep and superficial peroneal nerves, as well as the sural nerve distribution. Pulses were palpable at the dorsalis pedis and posterior tibial. The examiner reported that the veteran's left lower extremity did not demonstrate any deficit. Therefore, the Board finds that the preponderance of the evidence reflects that the degree of disability associated with the veteran's left anterior leg scar is not commensurate with the manifestations required for a compensable disability evaluation under DC 7805. While the veteran has complained of pain in his left leg which he contends was not present before he served in Vietnam, we conclude that the objective medical evidence, as noted above, does not reflect any residual disability associated with the veteran's left lower extremity as a result of the SFW or the resulting scar. Thus, the veteran's claim for an increased rating must be denied. 38 U.S.C.A. §§ 1155, 5107; 38 C.F.R. §4.118, DC 7805. With respect to the left upper arm, we are cognizant that the veteran's service medical records did not reflect muscular, vascular, or neurological damage as a result of his shell fragment wound. At separation, the veteran complained of intermittent pain and weakness in his left arm. Post-service medical records have reflected the veteran's continuous complaints of pain in his left upper arm and elbow, especially after extensive use. On VA examinations in November 1994 and September 1998, clinical examination of the veteran's left upper arm, including associated muscle and nerve groups, revealed normal findings. Furthermore, the left arm scar site was not found painful or tender to palpation. During his September 1998 examination, and in subsequent addenda, the veteran was reported to suffer from lateral epicondylitis of the left elbow. The VA examiner reported in January 1999 that the disorder appeared to be a remnant of the veteran's SFW of the left upper arm. The examiner subsequently reported in March 1999 that any such correlation between the veteran's SFW of the left upper arm and his lateral epicondylitis could not be determined at that time. As noted above, determinations under DC 7805 are based on limitation of function associated with the scar site. The medical evidence of record does not demonstrate that the veteran's left upper arm is functionally impaired as a result of his SFW scar, and therefore, any greater rating than is currently in effect under DC 7805 is not warranted. Furthermore, we have also considered any additional pain or functional loss that might be warranted with respect to the finding of lateral epicondylitis of the left elbow. As noted above, the examiner has given conflicting opinions as to whether this disorder is associated with the veteran's SFW residuals of the left upper arm. While this inconclusiveness might warrant a remand for a more definitive finding, in this instance we find the 10 percent rating the veteran currently receives adequately compensates him for any pain on use, given the lack of any other objective evidence of demonstrable deficit in the veteran's left upper arm. See DeLuca v. Brown, 8 Vet.App. 202, 206-08 (1995); 38 C.F.R. §§ 4.40, 4.45 (1999). Accordingly, the Board concludes that the degree of impairment caused by the veteran's service-connected residuals of a SFW of the left upper arm does not more nearly approximate the next higher, or 20 percent, rating but is appropriately compensated by the current 10 percent rating. 38 C.F.R. § 4.7 (1999). Finally, the Board is cognizant that, in our March 1998 remand order, we instructed the RO to consider the veteran's SFW residuals for both the left anterior leg and left upper arm under the old and revised regulations for evaluating disabilities due to muscle injuries. See 38 C.F.R. § 4.73, DC 5301-5329 (1996 and 1999). The veteran's disabilities were then, as they are now, rated under 38 C.F.R. § 4.118, DC 7805. In its July 1999 SSOC, the RO did not evaluate the veteran's disabilities as instructed by the Board, but continued to rate the veteran's SFW residuals of his left anterior leg and left upper arm under DC 7805. We are mindful that a remand by the Board confers on the veteran or other claimant, as a matter of law, the right to compliance with the remand order. Where the remand orders of the Board are not complied with, the Board itself errs in failing to insure compliance. See Stegall v. West, 11 Vet.App. 268 (1998). In this instance, however, the medical evidence received since the Board's 1998 decision reflects a lack of any objective clinical finding of muscle disability associated with the veteran's residuals of a SFW of the left anterior leg or left upper arm. Furthermore, if the veteran's disabilities were evaluated under those Codes for muscle injuries pertaining to the left leg and arm, they still would not warrant increased ratings. See 38 C.F.R. § 4.73, DC's 5305-5307 and 5310-5312 (1996 and 1999). Therefore, after careful review of the record, the Board can find no reason that a remand of the veteran's appeal, for noncompliance with the remand order, would be judicially expedient or otherwise result in a different finding. Thus, such a remand would result in unnecessarily imposing additional burdens on VA with no benefit flowing to the veteran. The Court has held that such remands are to be avoided. See Winters v. West, 12 Vet.App. 203, 207 (1999) (en banc); Soyini v. Derwinski, 1 Vet.App. 540, 546 (1991); Sabonis v. Brown, 6 Vet.App. 426, 430 (1994). Therefore, we conclude that the RO's noncompliance with the full scope of the remand order is nonprejudicial error, and the veteran's residuals of a SFW of the left anterior leg and left upper arm are appropriately rated under 38 C.F.R. § 4.118, DC 7805. ORDER 1. Entitlement to an increased (compensable) rating for residuals of a SFW of the left anterior leg is denied. 2. Entitlement to an increased rating for residuals of a SFW wound of the left upper arm, with retained metallic fragment, is denied. ANDREW J. MULLEN Member, Board of Veterans' Appeals