Citation Nr: 0006337 Decision Date: 03/09/00 Archive Date: 03/17/00 DOCKET NO. 97-34 467 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Pittsburgh, Pennsylvania THE ISSUE Entitlement to an increased (compensable) rating for the service-connected residuals, penetrating wound, T12-L1. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARINGS ON APPEAL The veteran ATTORNEY FOR THE BOARD M. E. Larkin, Associate Counsel INTRODUCTION The veteran served on active duty from February 1944 to May 1946. He is a recipient of a Purple Heart. This matter is before the Board of Veterans' Appeals (Board) on appeal from a September 1997 rating action of the Pittsburgh, Pennsylvania Regional Office (RO) of the Department of Veterans Affairs (VA). In April 1998, the veteran testified at a personal hearing at the RO. In May 1999, he testified at a personal hearing before the undersigned Member of the Board in Washington, D.C. Transcripts of both hearings are associated with the record. In a January 1999 Informal Hearing Presentation, the veteran's accredited representative presented argument on the issue of clear and unmistakable error in a December 1987 RO decision; however, that issue was withdrawn at the May 1999 personal hearing. In March 2000, the Board denied a motion for reconsideration of the Board's June 15, 1990, decision which denied entitlement to a compensable rating for the residuals of a shell fragment wound at T12-L1. As such, the only issue before the Board is as noted on the title page. FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the veteran's appeal has been obtained. 2. The residuals of the penetrating wound to T12-L1 are not shown to involve more than slight injury to Muscle Group XX. CONCLUSION OF LAW The criteria for the assignment of an increased (compensable) rating for the service-connected residuals, penetrating wound, T12-L1 have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §§ 4.55, 4.56, 4.72 (1996); 38 C.F.R. §§ 4.7, 4.40, 4.55, 4.56, 4.73 including Diagnostic Code 5320 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Background A careful review of the service medical records reveals that in March 1945, the veteran sustained a puncture wound to the back. The wound was dressed and he was returned to duty two days later. The report of a May 1946 separation examination noted a scar on the back and shrapnel wound, nonsymptomatic. The history portion of that examination noted that the veteran had sustained a shrapnel wound to the back but had not required army hospitalization. The veteran filed his original claim for service connection in July 1987. He was afforded a VA examination in October 1987 at which time his in-service history of "minimal" shrapnel wound to the back was recorded. It was noted that, at the time of the injury, the veteran had received a small bandage for the wound and was not removed from combat. It was further noted that the veteran felt occasional "slight irritation" in the left upper lumbar area. The veteran's history was also considered significant for a recent whiplash injury which had resulted in head and neck pain. Physical examination of the skin was considered normal and the examining physician noted that he was unable to find a scar on the back attributable to the shrapnel injury. X-ray studies revealed a 6 x 2 mm metallic fragment midline over the T12-L1 disc space. The diagnostic impression was that of no cosmetic or functional residuals of shrapnel injury. In a December 1987 rating action, the RO granted service connection and assigned a noncompensable evaluation for the residuals of a penetrating wound, T12-L1, effective from July 29, 1987. The veteran presented to a VA examination in June 1989 and reported that he had shrapnel in his back which caused discomfort when he moved or lay down. On physical examination of the back, the thoraco-lumbar region was noted to look normal, with no swelling or tenderness. The examiner commented that he was unable to feel any shrapnel. X-ray studies of the lumbar spine revealed no evidence of fracture, subluxation, or lesion. Degenerative arthritis was noted at the L4-5 and L5-S1 articular facets; the sacroiliac joint was normal. There was opaque foreign matter in the lower back posteriorly. The diagnosis was that of shrapnel wound, history of discomfort around thoraco-lumbar spine when he moves or when lying down. In a June 1990 decision, the Board denied the veteran's claim for a compensable rating. In February 1997, the RO received a letter from the veteran's senator which was considered a claim for increase. The veteran was afforded VA orthopedic and muscle examinations in April 1997 at which time his pertinent medical history was reviewed. The veteran reported that he did not initially have any complaints following his in-service injury. His complaints dated from 1994 when, following knee surgery, he had to lie on his back, rather than his side, and that resulted in pain. The veteran stated that the pain came only when he lay down at night and he was unable to sleep. He reported that the pain did not radiate "to any place" and did not involve any other part of the body. The veteran stated that the pain was along the lumbar area at L5 between the mid thoracic and lower lumbar area. The examiner noted that he had seen an x-ray provided by the veteran which showed shrapnel located at the T12-L1 area and some degenerative changes of the lumbosacral spine. Physical examination of the back revealed no postural abnormalities or tenderness on palpation. There was no limitation of movement of the back or extremities and no objective evidence of pain on motion. There was no numbness or tingling in the extremities. The examiner specifically noted no visible muscle penetration, scar or damage to tendons. Strength seemed to be within normal limits and there was no evidence of pain or muscle hernia. The examiner also noted that there was no damage to bones, joints or nerves seen, but such damage was possible because of the penetration of a metallic foreign body at the thoracolumbar area of the spine. X-ray studies revealed the presence of an opaque foreign body in the superficial tissues of the mid back, with no fracture or lytic lesions. The diagnoses included back pain, metallic foreign body (shrapnel) at the thoracolumbar area and degenerative joint disease of the lumbosacral spine. Private medical records submitted in support of the veteran's claim include a November 1996 x-ray study which noted the presence of a radiopaque foreign body posteriorly in the soft tissues at the level of T12. In a statement dated that same month, a private physician noted that the veteran has the retained shrapnel in his upper back and disc changes at the level of L4-5. During the course of his appeal, the veteran appeared at an April 1998 hearing before personnel at the RO and at a May 1999 hearing before the undersigned Member of the Board. At both hearings, he reiterated his claim that his service- connected back disability warrants the assignment of a compensable rating. At the April 1998 hearing, the veteran testified that he feel pressure in his back which he tries to alleviate by rubbing the area. At that hearing, he submitted the November 1996 statement from the private physician and indicated that that physician did not treat him on a regular basis and there were no additional treatment records available. (See Transcript (T.) pg. 9). At the most recent hearing, the veteran testified that he had suffered back pain since service and continued to experience that pain, with occasional numbness, weakness and fatigue. II. Analysis The Board finds the veteran's claim for increased compensation benefits is "well grounded" within the meaning of 38 U.S.C.A. § 5107(a) (West 1991 & Supp. 1999). The United States Court of Appeals for Veterans Claims (formerly the United States Court of Veterans Appeals) (hereinafter, the Court) has held that, when a veteran claims a service- connected disability has increased in severity, the claim is well grounded. Proscelle v. Derwinski, 2 Vet. App. 629 (1992). The Court has also stated that where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary concern. Francisco v. Brown, 7 Vet. App. 55 (1994). The Board further finds that this matter has been adequately developed for the purpose of appellate review. Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule), found in 38 C.F.R. Part 4. The Board attempts to determine the extent to which the veteran's disability adversely affects his ability to function under the ordinary conditions of daily life, and the assigned rating is based, as far as practicable, upon the average impairment of earning capacity in civil occupations. 38 U.S.C.A. § 1155; 38 C.F.R. §§ 4.1, 4.10 (1999). Initially, the Board notes that the criteria for evaluating muscle injuries were changed, effective July 3, 1997. The Court has stated that where laws or regulations change after a claim has been filed or reopened but before the administrative or judicial appeal process is completed, unless Congress provides otherwise, the version of the law most favorable to the appellant will apply. Karnas v. Derwinski, 1 Vet. App. 308 (1990). Residuals of gunshot and shell fragment wounds are evaluated on the basis of the following factors: The velocity, trajectory and size of the missile which inflicted the wounds; extent of the initial injury and duration of hospitalization; the therapeutic measures required to treat the disability; and current objective findings, such as evidence of damage to muscles, nerves and bones which results in pain, weakness, limited or excessive motion, shortening of extremities, scarring, or loss of sensation. 38 C.F.R. § 4.56. Under the version of 38 C.F.R. § 4.56 in effect prior to July 3, 1997, a slight disability of the muscle was a simple wound of muscle without debridement, infection, or effects of laceration. The service medical records would show a record of a wound of slight severity or relatively brief treatment and return to duty and healing with good functional results. There would be no consistent complaints of cardinal symptoms of muscle injury or painful residuals. Objectively, the medical evidence would show a slight injury to a muscle group manifested by a minimum scar; slight, if any, evidence of fascial defect or of atrophy or of impaired tonus. No significant impairment of function and no retained metallic fragments. 38 C.F.R. § 4.56(a) (1996). A moderate disability of muscles was a through and through or deep penetrating wound of relatively short track by single bullet or small shell or shrapnel fragment. Absence of the explosive effect of a high velocity missile, and of residuals of debridement or of prolonged infection. The service medical records would show a record of hospitalization in service for treatment of the wound. In addition, there would be records following service of consistent complaints of one or more of the cardinal symptoms of muscle wounds particularly fatigue and fatigue-pain after moderate use, affecting the particular functions controlled by the injured muscles. Objectively, the medical evidence would show a moderate injury to a muscle group manifested by entrance and (if present) exit scars linear or relatively small and so situated as to indicate relatively short track of missile through tissue; signs of moderate loss of deep fasciae or muscle substance or impairment of muscle tonus, and definite weakness on comparative tests. 38 C.F.R. § 4.56(b) (1996). The Board notes that the new version of 38 C.F.R. § 4.56 is otherwise basically the same as the old version. Additionally, the current provisions of 38 C.F.R. § 4.56(a) and (b) were formerly contained in 38 C.F.R. § 4.72, effective prior to June 3, 1997. However, for the sake of clarity and in order to show that both versions have been fully considered by the Board, the version in effect on July 3, 1997 is set forth hereinbelow. As the rating criteria applicable to the veteran's appeal have not undergone a substantive change, the Board finds that the veteran would not be prejudiced by the Board's consideration of his claim under both the old and new criteria. Bernard v. Brown, 4 Vet. App. 384 (1993). 38 C.F.R. § 4.56(b) (1999) provides that a through-and- through injury with muscle damage shall be evaluated as no less than a moderate injury for each group of muscles damaged. Under Diagnostic Codes 5301 through 5323, disabilities resulting from muscle injuries shall be classified as slight, moderate, moderately severe or severe. 38 C.F.R. § 4.56(d) (1999). Slight disability of muscles is described as a simple wound of muscle without debridement or infection, with service department record of superficial wound with brief treatment and return to duty; healing with good functional results; no cardinal signs or symptoms of muscle disability as defined in paragraph (c) of this section. Objective findings of minimal scar; no evidence of fascial defect, atrophy, or impaired tonus; no impairment of function or metallic fragments retained in muscle tissue. Moderate disability of muscles is described as through and through or deep penetrating wounds of short track from a single bullet, small shell or shrapnel fragment, without explosive effect of high velocity missile, residuals of debridement, or prolonged infection. The history would include service department record or other evidence of in- service treatment for the wound; record of consistent complaint of one or more of the cardinal signs and symptoms of muscle disability as defined in paragraph (c) of this section, particularly lowered threshold of fatigue after average use, affecting the particular functions controlled by the injured muscles. Objective findings consist of entrance and (if present) exit scars, small or linear, indicating short track of missile through muscle tissue. Some loss of deep fascia or muscle substance or impairment of muscle tonus and loss of power or lowered threshold of fatigue when compared to the sound side. 38 C.F.R. § 4.56(d)(2) (1999). Under 38 C.F.R. § 4.72 (1999), a through and through injury with muscle damage is always at least a moderate injury, for each group of muscles damaged. The veteran's service-connected residuals of a penetrating wound, T12-L1, is presently assigned a noncompensable evaluation under the provisions of 38 C.F.R. § 4.73, Diagnostic Code 5320. As noted, the revised regulations detailed hereinabove do not significantly affect the evaluation of the veteran's disability. Diagnostic Code 5320 provides criteria for rating muscle injures to Muscle Group XX, which includes spinal muscles, the erector spinae and its prolongations in thoracic and cervical regions. The muscles perform the function of postural support of the body; extension and lateral movements of the spine. In the cervical and dorsal region, a slight disability of Muscle Group XX warrants a noncompensable evaluation. A moderate disability warrants the assignment of a 10 percent evaluation; moderately severe disability, 20 percent; and a severe disability, 40 percent. In the lumbar region, a slight disability of Muscle Group XX warrants a noncompensable evaluation. A moderate disability warrants the assignment of a 20 percent evaluation; moderately severe disability, 40 percent; and a severe disability, 60 percent. In the present case, the veteran sustained a puncture wound injury to his back during service, was offered brief treatment at that time and returned to duty two days later. The report of a separation examination noted the wound but described it as asymptomatic. Regarding the post-service history of the injury, the Board notes that the veteran has made inconsistent statements. The report of the April 1997 VA examination included the veteran's own report that he did not initially have any complaints following the in-service injury but dated the onset of the present complaints to 1994. At the May 1999 hearing, however, the veteran offered a contrasting picture of his history, claiming to have suffered pain since the in-service injury. Nevertheless, the Board notes that there is no medical evidence of complaints pertaining to the muscle injury or residuals prior to the October 1987 VA examination, many years after service. The report of that examination disclosed no cosmetic or functional residuals of a shrapnel injury and the examiner's comment that he was unable to find a scar attributable to the shrapnel wound. The June 1989 VA examination included that examiner's comment that he was unable to feel any shrapnel; however, the presence of the shrapnel was disclosed on x-ray. The most recent VA examination disclosed no significant orthopedic or neurological findings attributable to the service-connected gunshot wound residuals. There was no evidence of pain. Strength was considered to be within normal limits and there was no evidence of pain or muscle hernia. The examiner specifically noted that there was no visible muscle penetration, scar or damage to tendons. While there was no damage to bones, joints or nerves visible, the examiner noted the possibility of such damage existed because of the penetration of a metallic foreign body. The Board notes, however, that x-ray studies conducted as part of that examination revealed the presence of the foreign body in the superficial tissues of the mid back. While the record includes diagnoses of degenerative changes of the lumbosacral spine, it has not been shown, nor has it been contended, that those changes are a residual of the wound to T12-L1. In addition, the veteran reported that the pain occurred only when lying on his back. In order to justify a rating for a moderate muscle injury, under both the old and new versions of 38 C.F.R. § 4.56, the medical evidence would have to show entrance and (if present) exit scars indicating short track of missile through muscle tissue; at least some loss of deep fascia or muscle substance or impairment of muscle tonus and loss of power or lowered threshold of fatigue when compared to the sound side. A review of the evidence does not show that the veteran's wound resulted in greater than a slight level of disability. In fact, there has been no loss of muscle or defect in the fascia and the veteran has retained good strength in his back. Thus, based on a review of the record, the Board finds that no more than slight involvement of Muscle Group XX is shown. In making its decision, the hearing testimony of the veteran has been considered by the Board. The Board notes, however, that the veteran is not competent to testify as to medical diagnosis or etiology. His testimony is considered credible insofar as he described his subjective symptoms. Therefore, a preponderance of the evidence is against a compensable rating for the residuals of a penetrating wound, T12-L1. In making this determination, the Board has considered functional loss due to pain, as required by 38 C.F.R. § 4.40. On the report of the April 1997 VA examination, however, the examiner noted the veteran's complaints of pain, but there was no evidence of pain on examination. Thus, 38 C.F.R. § 4.40 also does not provide a basis for an increase to a compensable evaluation. The Board has also considered whether an increased rating would be warranted under Diagnostic Codes pertaining to scars or bone or nerve damage; however, there is no medical evidence that the residuals of the veteran's service- connected disability include scarring or damage to nerves or bones. As such, consideration of rating criteria pertaining to such findings is not warranted. ORDER An increased rating for the service-connected residuals, penetrating wound, T12-L1, is denied. BARBARA B. COPELAND Member, Board of Veterans' Appeals