BVA9506254 DOCKET NO. 91-21 957 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUE Entitlement to an increased (compensable) evaluation for right foot gunshot wound residuals. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESSES AT HEARING ON APPEAL Appellant and his wife ATTORNEY FOR THE BOARD M. Siegel, Counsel INTRODUCTION The veteran served on active duty from May 1939 to April 1944. This appeal initially arose from a rating decision of December 1990 from the Houston, Texas, Regional Office (RO). By means of a Remand decision dated in November 1991, the Board of Veterans' Appeals (Board) requested additional evidentiary development. The RO, in rating decisions of December 1992 and May 1993, in part confirmed and continued its prior determination that right foot gunshot wound residuals were noncompensable. In a Remand decision of May 1994, the Board requested further development of the evidence with regard to issues that are no longer before the Board. The prior Remand decisions of the Board also concerned, in part, the issues of entitlement to an increased rating for a dysthymic disorder, to include entitlement to a total schedular rating pursuant to the provisions of 38 C.F.R. § 4.16(c) (1994); and entitlement to a total rating for compensation purposes based on individual unemployability due to service-connected disabilities. In a rating decision dated in December 1994, the RO granted the veteran a 100 percent schedular evaluation for his dysthymic disorder, effective as of August 7, 1989, the date of receipt by the Department of Veterans Affairs (VA) of his claim therefor. The RO concomitantly determined that, in view of the granting of a total schedular rating, the issue of entitlement to a total rating based on individual unemployability was rendered moot. Accordingly, these issues are no longer before the Board. CONTENTIONS OF APPELLANT ON APPEAL The veteran contends, in essence, that the RO erred when it denied a compensable evaluation for right foot gunshot wound residuals. He specifically alleges that he has right foot pain and discomfort, and must avoid weight-bearing on that foot. 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 evidence favors the granting of a 10 percent rating for right foot gunshot wound residuals. FINDINGS OF FACT 1. All evidence necessary for an equitable disposition of the veteran's claim has been developed. 2. Right foot gunshot wound residuals are manifested primarily by complaints of pain, by objective findings of mid-foot pain, by tenderness, and by an antalgic gait. These residuals are productive of no more than moderate impairment. 3. Neither an exceptional nor unusual disability picture has been demonstrated so as to render impractical application of the regular schedular standards. CONCLUSION OF LAW The criteria for a 10 percent rating for right foot gunshot wound residuals are met. 38 U.S.C.A. §§ 1155, 5107(b) (West 1991); 38 C.F.R. § 3.321(b)(1), Part 4, §§ 4.47, 4.56, Diagnostic Codes 5284, 5310, 7803, 7804, 7805 (1994). REASONS AND BASES FOR FINDINGS AND CONCLUSION Initially, the Board finds that the veteran's claim is "well grounded" within the meaning of 38 U.S.C.A. § 5107(a) (West 1991); that is, he has presented a claim that is plausible. He has not asserted that any records of probative value that may be obtained and which have not already been associated with his claims folder are available. The Board accordingly finds that all relevant facts have been properly developed and that the duty to assist him, mandated by 38 U.S.C.A. § 5107(a) (West 1991), has been satisfied. Service connection for a disability classified for rating purposes as "arthritis (fracture old, healed), proximal phalanx, 1st. toe right," was granted in July 1945 by a VA Rating Board located in San Francisco, California, based on a review of evidence to include service medical records and the report of a July 1945 VA examination. A 10 percent rating for this disability was assigned for the period from April 22, 1944, through October 9, 1945, after which a noncompensable evaluation was in effect. By means of a rating decision dated in November 1948, a VA Rating Board located in San Francisco determined that a 10 percent rating for the veteran's right foot disability, now classified as "residuals [gunshot wound through and through, right] foot, arthritis, [right] ankle and foot," was appropriate as of September 13, 1948, the date of the most recent VA examination thereof. In February 1951, the veteran was again examined by VA, after which a VA Rating Board located in Lubbock, Texas, by means of a February 1951 rating decision, reduced to noncompensable, as of April 28, 1951, the rating assigned for this disability, which was now classified simply as right foot gunshot wound residuals. The veteran's right foot gunshot wound residuals have remained noncompensable since April 1951. He currently contends, however, that a compensable evaluation for these residuals is warranted. After a review of the record, the Board finds that his contentions are supported by the evidence, and that a compensable rating is appropriate. The severity of gunshot wound residuals is determined, for VA rating purposes, by determining the nature of the wound, so that the residuals thereof can be identified. The veteran's service medical records show that, in September 1943, he incurred a self- inflicted gunshot wound to the right foot, described as follows: entrance, dorsum, lateral to proximal end, first metatarsal, exit, plantar surface, proximal end of 2nd metatarsal, course of bullet being from dorsal to plantar surface through the tarso-metatarsal area.... Service medical records also note that retained metallic foreign bodies were discerned, "extending from the 2nd cuneiform to the plantar surface of the right foot...." The Board notes that prior rating decisions indicate that the veteran's right foot gunshot wound residuals were evaluated on the basis of the severity of traumatic arthritis, which, under VA's Schedule for Rating Disabilities, 38 C.F.R. Part 4 (1994) (Schedule), is in turn primarily evaluated on the basis of limitation of motion of the affected body part (in this case, the right foot). See Diagnostic Codes 5010 and 5003 of the Schedule. However, it must be pointed out that these two diagnostic codes stipulate that arthritis must be demonstrated by radiographic evidence. The report of the most recent radiographic study of the veteran's right foot, conducted in March 1993, does not show that arthritis of the right foot has been identified. The Board accordingly finds that the rating criteria set forth in Diagnostic Codes 5003 and 5010, with associated reference to limitation of motion, are not for application in this case. Rather, the Board is of the opinion that the severity of the veteran's foot disability should, in part, be determined, for VA rating purposes, by application of the criteria set forth at Diagnostic Code 5284 of the Schedule. Under these criteria, the noncompensable evaluation currently in effect contemplates the manifestation of a right foot disability less than moderate in nature, with application of 38 C.F.R. § 4.31 (1994); a compensable evaluation would be appropriate for a foot disability that was at least moderate in severity. Regulatory provisions also stipulate that "[t]hrough and through wounds...almost invariably destroy parts of muscle groups...." 38 C.F.R. § 4.47 (1994). The Board must therefore consider the criteria set forth at Diagnostic Code 5310 of the Schedule, under which the rating currently in effect contemplates slight disability of the muscles of the foot; a compensable rating would be appropriate under these criteria if such disability were at least moderate in nature. In addition, it is noted that the gunshot wound was productive of scars at the gunshot entrance and exit sites; accordingly, the diagnostic criteria pertinent to the nature and severity of scars, set forth at Diagnostic Codes 7803, 7804 and 7805 of the Schedule, must also be considered. These criteria stipulate that a compensable evaluation is warranted for superficial scars that are poorly nourished, with repeated ulceration (Diagnostic Code 7803); for superficial scars that are tender and painful on objective demonstration (Diagnostic Code 7804); and for scars that are productive of limitation of function of a specific body part (Diagnostic Code 7805), in which case they are rated pursuant to such limitation. The most recent clinical evidence indicating the nature and severity of the veteran's right foot gunshot wound residuals, which is the report of the VA examination conducted in March 1993, shows that he complained of "progressive pain with his right foot with increasing activity," and that "[h]e continues to have occasional exacerbations and pain which force him to be strictly nonweight bearing on that side." The report also shows that, on examination, he had a mild antalgic gait on the right, that mid-foot motion was painful, and that there was tenderness to palpation over the cuneiform region. There was a 6-cm. longitudinal scar over the dorsal aspect of the mid-foot that was described as "well-healed," and there was a 1-cm. exit wound "[u]nder the sole of this foot...with hyperkeratotic over growth (sic)." In addition, medical records dated prior to 1993 show complaints of right foot pain, along with treatment, in May 1991, for right foot effusion and a right foot plantar callus. It is not clear from the report of the March 1993 VA examination whether the veteran's painful mid-foot motion was a product of, or was otherwise related to, his mid-foot scar; in the absence of such evidence, the Board cannot find that the criteria set forth at Diagnostic Codes 7803, 7804, and 7805, as pertain to compensable evaluations for scars, are satisfied. Similarly, the May 1991 treatment records cited above do not indicate whether the right foot plantar callus observed at that time could be deemed to have been a residual of the right foot gunshot wound, or that it reflected right foot functional impairment. Nonetheless, the Board is of the opinion that the right foot problems noted in March 1993, to include antalgic gait, pain, and tenderness, demonstrate a level of right foot impairment that is moderate in nature, under the criteria of either Diagnostic Code 5284 or 5310. In that regard, the Board also notes that the provisions of 38 C.F.R. § 4.56 (1994) stipulate that "[t]hrough and through...wounds of relatively short track by a single bullet...are to be considered as of at least moderate degree." The Board does not, however, find that the veteran's right foot gunshot wound residuals are productive of more than moderate impairment. Both Diagnostic Codes 5284 and 5310 provide that a rating greater than that appropriate for moderate foot impairment is warranted when it is demonstrated that the disability at issue is in fact productive of at least moderately severe impairment. The Board is of the opinion that the right foot gunshot wound residuals exhibited by the veteran during the most recent examination, in March 1993, which, as discussed above, include a mild antalgic gait, mid-foot painful motion, and tenderness to palpation, are not of such a nature as to be productive of moderately severe impairment. The Board is also of the opinion that this case does not present such an exceptional or unusual disability picture, with such related factors as marked interference with employment or frequent periods of hospitalization, that would render impractical the application of the regular schedular standards. 38 C.F.R. § 3.321(b)(1) (1994). ORDER A 10 percent rating for right foot gunshot wound residuals is granted, subject to the laws and regulations governing the disbursement of monetary benefits. LAWRENCE M. SULLIVAN 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 (CONTINUED ON NEXT PAGE) 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.