Citation Nr: 0003844 Decision Date: 02/14/00 Archive Date: 02/15/00 DOCKET NO. 95-23 502 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Lincoln, Nebraska THE ISSUES Entitlement to an increased evaluation for right lower extremity shell fragment wound residuals, currently evaluated as 20 percent disabling. REPRESENTATION Appellant represented by: The American Legion WITNESSES AT HEARINGS ON APPEAL Appellant and his spouse ATTORNEY FOR THE BOARD Christopher J. Gearin, Associate Counsel INTRODUCTION The veteran had active service from April 1943 to March 1946. His military service awards and decorations include a Combat Infantryman Badge and the Purple Heart Medal. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Lincoln, Nebraska. In November 1996 and May 1998, the Board remanded this issue for further development. The RO, after readjudicating the claim based on the requested development in the May 1998 Remand, assigned a 20 percent rating for the veteran's right lower extremity shell fragment wound residuals. There is no indication that the veteran has withdrawn his appeal. In a claim for an increased rating the appellant is generally presumed to be seeking the maximum benefit allowed by law. AB v. Brown, 6 Vet. App. 35 (1993). Hence, it follows that such a claim remains in controversy when less than the maximum available benefit is awarded. Thus, given that the law provides for a higher evaluation for the veteran's disability, the issue now before the Board is entitlement to a rating in excess of 20 percent for right lower extremity shell fragment wound residuals. The claims file has now been returned to the Board for further appellate review. In May 1998, the Board also remanded the issue of entitlement to service connection for right lower extremity deep vein thrombosis on a direct basis, and pursuant to 38 U.S.C.A. § 1151 (West 1991). On remand, however, the RO granted service connection for right lower extremity deep vein thrombosis. Thus, having been granted in the veteran's favor, these issues are no longer on appeal. On review of the May 1999 VA examination report the issue of entitlement to a separate compensable rating for painful and tender scarring of the right lower extremity, secondary to the issue on appeal is presented. See generally Esteban v. Brown, 6 Vet. App. 259 (1994). This issue, however, is not currently developed or certified for appellate review. Accordingly, the Board refers the matter to the RO for appropriate action. FINDING OF FACT The veteran's right lower extremity shell fragment wound residuals are manifested by severe disability with associated easy fatigability, cramping on use, and weakness. CONCLUSION OF LAW The criteria for a 30 percent rating for right lower extremity shell fragment wound residuals, muscle group XV, are met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §§ 4.7, 4.56, 4.73, Diagnostic Code 5315 (1996) (1999). REASONS AND BASES FOR FINDING AND CONCLUSION Factual background According to the veteran's March 1946 service discharge examination report, the appellant sustained shrapnel wounds to the right lower leg during combat in Germany in February 1945. As a result, he was hospitalized in England for three months. During his recovery, he complained of soreness on long walking and stiffness in cold weather. Physical examination revealed normal function of the right thigh and leg, with no deformity and mild loss of the subcutaneous tissue beneath the scar. In June 1946, the RO granted service-connection for a four inch, well healed shrapnel wound scar at the lateral aspect of the mid third of the right thigh; and for a three inch well-healed scar at the post lateral aspect in the mid one third, and assigned a 20 percent rating. An April 1948 VA examination report noted the veteran's history of a gunshot wound of the right lower extremity and that he was hospitalized for three months before returning to duty. The examination and diagnosis revealed an asymptomatic three inch depressed cicatrix at the lateral aspect of the mid-third of the right thigh, with a slight loss of muscle tissue but no loss of function; a five inch cicatrix on the medial surface of the mid third of the right thigh, linear, well-healed, and non-symptomatic; a small, oval cicatrix one inch in diameter on the medial aspect of the right thigh, mid third, well-healed and non symptomatic; a two inch cicatrix on the lateral aspect of the mid third of the right leg, well-healed, with no residuals, and a two inch cicatrix at the dorsal mid third of the right leg well-healed and non- symptomatic. An April 1948 VA x-ray study of the right leg was negative for radiopaque foreign bodies. In May 1948, pursuant to Diagnostic Code 5315, the RO reduced the veteran's 20 percent rating to 10 percent for a depressed three inch cicatrix on the lateral aspect of the mid third of the right thigh, with slight muscle loss that was non- symptomatic, with no loss of function; and for a linear, well-healed, non-symptomatic five inch cicatrix on the medial surface of the mid third of the right thigh. VA outpatient records from 1983 and 1984 show treatment for his right thigh. For example, a June 1983 record shows a long depressed scar 14 to 16 centimeters in the lateral mid thigh and an adjacent scar on the medial aspect on the right thigh. The diagnosis was war wounds. A June 1983 VA orthopedic clinic report reveals old scars of the medial and lateral aspect of the right thigh with tenderness but no swelling or erythema. VA examined the veteran's right lower extremity in June 1986. He complained of a weak right leg with sore muscles but no definite pain. The shell fragment residuals did not limit his ability to walk distances. He provided no history of drainage since the original injury in World War II. Physical examination revealed that he walked normally, and was able to walk on his toes and heels. His lower extremity alignment was normal. The Lasegue's test of the right lower extremity was negative, with no paralysis. Muscle power and sensation were normal. There was a little entrance wound on the lateral aspect of the right thigh and a little exit wound, with an incision over it, on the inside of the right thigh. Testing revealed normal range of motion of the hips. Flexion was to 100 degrees, abduction to 30 degrees, adduction to 10 degrees, internal rotation to 15 degrees, and external rotation to 30 degrees bilaterally. The right knee range of motion was also normal. X-rays of the right knee and hips were normal. The examiner concluded that the veteran had some stiffness, weakness, and soreness of the right leg muscles. The physical examination was unremarkable. In October 1994, the veteran was discharged after 10 days of inpatient care from the VA Medical Center. Physical examination revealed that his right thigh and femoral area were tender. In February 1996, the veteran appeared before a hearing officer at the RO. He testified essentially that his right thigh had bothered him since service, and it was increasing in severity. In August 1996, the veteran testified before the undersigned at the RO. He echoed his February 1996 testimony at the RO. In January 1997, a neurological examination for VA purposes was performed, however, it was inadequate for adjudicatory purposes. The examiner failed to address the extent of the veteran's functional loss due to pain, weakness, and fatigability of his right lower extremity shell fragment wound residuals in light of 38 C.F.R. §§ 4.40, 4.45 (1999); and DeLuca v. Brown, 8 Vet. App. 202 (1995). Pursuant to the Board's May 1998 Remand, VA examined the veteran in September 1998. The veteran reported that he had had continual right leg and knee pain since World War II. After service, he was able to return to his railroad job that he had had before entering the service. After that, he received training and became a bricklayer for forty years, retiring at the age of 62. He complained of a numb sensation in his right leg and constantly tender leg scars. Physical examination revealed no edema of the right lower extremity. The peripheral pulses were maintained. There were surgical and trauma wounds to the right thigh that represented entrance and exit wounds. On the medial right thigh, there was a linear surgical scar measuring 10 centimeters by 1 centimeter. There was also, just medial to the scar, a round trauma wound measuring 1.5 centimeters in diameter. It was somewhat depressed and became more so with movement of the leg. It was slightly tender. On the lateral surface of the right thigh, there was a linear scar measuring 8 centimeters. The circumference of the left thigh was 21 inches. The right thigh was 21.75 inches. There was no evidence of atrophy excluding where these previously named scars were located. Straight leg raising was to 40 degrees on the right. Adduction and abduction was to 20 degrees. Strength testing showed hip flexion and extension on the left were both 3/5. Hip flexion and extension strength on the right was 2/5. Lower leg flexion and extension was 4/5 on the left, and 2/5 on the right. The diagnosis was status post shrapnel injuries, right leg and pelvis with retained shrapnel. VA examined the veteran again in March 1999. The examiner reported that he specifically questioned the veteran regarding weakened movement, excess fatigability with use, incoordination, and pain with motion or use. The veteran reported that he had had progressive pain in the right leg since his shrapnel injuries sustained during World War II. He reiterated that he walked eight blocks to town every day to the post office. He added that his pain and fatigability worsened with walking, and he was not able to walk more than eight blocks. His right leg cramped when walking, and it also intermittently swelled. He had difficulty with simple activities like getting in and out of his reclining chair. He had a chronic vague feeling of discomfort in the leg, which was present at all times, but was exacerbated by use. He had difficulty walking and he pointed out that the heel on his right leg had become abnormally worn compared to the heel on his left leg, which would seem to indicate that he put abnormal stresses on his right foot. The examiner was unable to elicit any additional historical evidence regarding excess fatigability with use. Physical examination revealed that the veteran was unchanged when compared to previous examination in September 1998. Essentially there was no new evidence on the examination, but the prior examination demonstrated the patient's debilities. The examiner's impression was severe shrapnel injuries to the right thigh, with ongoing chronic pain and fatigability in the right lower extremity, which more likely than not was related to the veteran's service-connected injuries. Color photographs of the veteran's right leg scars confirm the examiner's findings. Analysis Some of the regulations pertaining to muscle injuries were revised in June 1997. In particular, certain regulations which provide guidance as to assessing the severity of muscle injuries have been revised. Where the law or regulations change while a case is pending, the version most favorable to the claimant applies, absent congressional intent to the contrary. Karnas v. Derwinski, 1 Vet. App. 308, 312-13 (1991). However, in Rhodan v. West, 12 Vet. App. 55 (1998), it was held that new rating criteria could not have retroactive application prior to the effective date. Regulations which were revised or eliminated include 38 C.F.R. §§ 4.56 and 4.72 (1996). Previously, 38 C.F.R. § 4.72 (1996) (now removed) provided that in rating disability from injuries of the musculoskeletal system, attention must be given to the deeper structures injured, bones, joints, and nerves. A compound comminuted fracture, for example, established severe muscle injury, and there may be additional disability from malunion of the bone, ankylosis, etc. The location of foreign bodies may establish the extent of penetration and consequent damage. The old law provided that it may not be too readily assumed that only one muscle or muscle group was damaged. A through and through injury, with muscle damage, was always at least a moderate injury, for each group of muscles damaged. This section was to be taken as establishing entitlement to rating of severe grade when there was a history of a compound comminuted fracture and definite muscle or tendon damage from a missile. Title 38, Code of Federal Regulations, Section 4.56 provided that muscle wounds specifically due to gunshot or other trauma are characterized as a moderately severe muscle injury when there is a through and through wound with debridement or prolonged infection, or sloughing of soft parts and intermuscular cicatrization was required. Service records should show hospitalization for a prolonged period in service for a wound of severe grade, and evidence of unemployability as a result of inability to keep up with work should be considered. Objective findings should include a relatively large entrance, and if present, exit scar, so situated as to indicate the track of a missile through important muscle groups, moderate muscle loss, and tests of strength producing positive evidence of marked or moderately severe loss. A severe muscle injury involved a through and through or deep penetrating wound due to a high velocity missile, or large or multiple low velocity missiles, or explosive effect of high velocity missile, or shattering bone fracture with extensive debridement or prolonged infection and sloughing of soft parts, intermuscular binding and cicatrization. Objective findings were similar to the revised criteria as set forth below. See 38 C.F.R. § 4.56(c) (1996). The revised rating criteria for muscle injuries are similar in content, if not organization, to the criteria in effect prior to the revisions. For instance, a through-and-through injury with muscle damage shall be evaluated as no less than a moderate injury for each group of muscles damaged. An open comminuted fracture with muscle or tendon damage will be treated as a severe injury of the muscle groups involved unless, for locations such as in the wrist or over the tibia, evidence establishes that the muscle damage is minimal. See 38 C.F.R. § 4.56(a), (b) (1999). A moderately severe disability of the muscles anticipates a through and through or deep penetrating wound by a small high velocity missile or a large low-velocity missile, with debridement, prolonged infection, or sloughing of soft parts, and intermuscular scarring. There should be a history of a prolonged hospitalization for treatment of the wound with a record of cardinal symptoms consisting of loss of power, weakness, a lowered threshold of fatigue, fatigue-pain, impairment of coordination and uncertainty of movement. Objective findings should include entrance and exit scars indicating a track of a missile through one or more muscle groups. Objective findings should also include indications on deep palpation of a loss of deep fascia, muscle substance, or normal firm resistance of muscles compared with sound side. Tests of strength and endurance compared with sound side should demonstrate positive evidence of impairment. A severe injury of the muscle contemplates a 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. Service department record or other evidence shows hospitalization for a prolonged period for treatment of wound. There is a record of consistent complaint of cardinal signs and symptoms of muscle disability, worse than those shown for moderately severe muscle injuries, and, if present, evidence of inability to keep up with work requirements. Objective findings include ragged, depressed and adherent scars indicating wide damage to muscle groups in missile track; palpation shows loss of deep fascia or muscle substance, or soft flabby muscles in wound area; muscles swell and harden abnormally in contraction. Tests of strength, endurance, or coordinated movements compared with the corresponding muscles of the uninjured side indicate severe impairment of function. See 38 C.F.R. § 4.56(d) (1999). The new criteria include such changes as the deletion of any reference to a history of unemployability as an indicator of a moderately severe injury, and the deletion of the characterization of the requisite entrance and exit wounds as "large." The veteran's shell fragment wound residuals of the right thigh have been rated as 20 percent disabling under Diagnostic Code 5315 for injuries to muscle group XV for a three inch depressed scar of the lateral aspect of the right thigh, with slight loss of muscle tissue; a five inch linear well healed scar on the medial surface; and a one inch scar of the medial aspect of the right thigh. A 20 percent evaluation is for a moderately severe disability. A 30 percent rating is for application for a severe disability. 38 C.F.R. § 4.73, Diagnostic Code 5315. Upon reviewing the history of the right lower extremity shrapnel wounds as well as post-service evidence of record, the Board resolves reasonable doubt in the appellant's favor and finds that his right lower extremity wounds satisfy the criteria for a severe wound for the following reasons pursuant to the old and the amended regulations. In evaluating shell fragment wound ratings, it is important to review the history of the injury. For example, the service medical records show that he was injured in Germany and subsequently hospitalized in England for three months. The Board finds that this is a prolonged period of hospitalization. Moreover, although the service medical records are not detailed, the Board finds the veteran's account credible that service medical personnel operated on his right leg in order to remove shell fragments. This is corroborated by various medical examination reports that have referred to residual surgical scars on the veteran's right thigh. The service medical records also show that the veteran complained of soreness and stiffness in the right lower extremity while hospitalized. Moreover, at separation from service the right thigh had mild loss of subcutaneous tissue beneath the scarring. Hence, based on the service medical records, the Board finds that the veteran's shrapnel wound required surgery and prolonged hospitalization. Second, the post-service medical records support the veteran's contention that his right lower extremity has bothered him since service. For example, VA outpatient records from 1983 through 1986 cumulatively show that he had right leg stiffness, weakness and soreness due to his residual shell fragment wounds. In addition, the medical evidence indicates that around 1994 the residual shrapnel wounds increased in severity. The Board finds the September 1998 and March 1999 VA examination reports compelling in this regard because they cumulatively show the severity of the veteran's disability. For example, the September 1998 VA examination report indicates that the muscle strength in his right leg was essentially half the strength of his left. Furthermore, the March 1999 VA examiner noted that the veteran had severe shrapnel injuries to the right thigh with ongoing chronic pain and fatigability in the right lower extremity that was, more likely than not, related to his service-connected disabilities. Accordingly, after considering the impact of functional impairment due to pain and fatigability pursuant to 38 C.F.R. §§ 4.40, 4.45; and after resolving reasonable doubt in favor of the veteran, the Board finds that his shrapnel wound history and current symptomatology meet the criteria for a 30 percent rating pursuant to Diagnostic Code 5315. A rating in excess of 30 percent is not warranted under Diagnostic Code 5315 because that is the maximum rating available under this provision, and because greater loss of right leg function is not shown. Cf. 38 C.F.R. § 4.71a. ORDER Entitlement to a 30 percent rating for residual shell fragment wound of the right thigh is granted, subject to the law and regulations governing the payment of monetary benefits. DEREK R. BROWN Member, Board of Veterans' Appeals