Citation Nr: 0006140 Decision Date: 03/08/00 Archive Date: 03/17/00 DOCKET NO. 94-29 497 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office and Insurance Center in St. Paul, Minnesota THE ISSUE Entitlement to an evaluation in excess of 40 percent for residuals of a shell fragment wound to the lateral aspect of the left thigh with superficial sensory nerve paralysis. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Alberto H. Zapata, Counsel INTRODUCTION The veteran served on active duty from December 1942 to February 1946. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a May 1994 rating decision of the Department of Veterans Affairs (VA) Regional Office and Insurance Center (RO&IC) in St. Paul, Minnesota. This case was previously remanded by the Board for further development in January 1999. That development has been completed and the case is now ready for appellate review. The Board notes that in its remand issued in January 1999 the docket number was incorrectly identified. The correct docket number is identified on the title page of this decision. In a May 1998 response, the veteran indicated that he wished to have a hearing before a Member of the Board. In June 1998, the veteran's representative informed the RO&IC that the veteran did not wish to appear before a Member of the Board. The Board will thus proceed with appellate review of the veteran's case. FINDINGS OF FACT 1. All available evidence necessary for an equitable disposition of the veteran's appeal has been obtained by the RO&IC. 2. The veteran's residuals of a shell fragment wound to the lateral aspect of the left thigh with superficial sensory nerve paralysis are manifested by severe injury of Muscle Group XIV. CONCLUSION OF LAW The criteria for an evaluation in excess of 40 percent for residuals of a shell fragment wound to the lateral aspect of the left thigh with superficial sensory nerve paralysis have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §§ 4.7, 4.73, Diagnostic Code 5314 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSION Initially, the Board notes that it finds the veteran's increased rating claim to be well grounded within the meaning of 38 U.S.C.A. § 5107(a) (West 1991). Additionally, the facts relevant to this claim have been properly developed, and the statutory obligation of VA to assist in the development of the claim has been satisfied. Disability evaluations 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 (1999). The Board attempts to determine the extent to which the veteran's service-connected 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. When there is a question as to which of two evaluations is to 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. Disability of the musculoskeletal system is primarily the inability, due to damage or infection in parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination and endurance. It is essential that the examination on which ratings are based adequately portrays the anatomical damage, and the functional loss, with respect to all these elements. The functional loss may be due to pain, supported by adequate pathology and evidenced by the visible behavior of the claimant undertaking the motion. 38 C.F.R. §§ 4.40, 4.45 (1999). With respect to joints, in particular, the factors of disability reside in reductions of normal excursion of movements in different planes. Inquiry will be directed to more or less than normal movement, weakened movement, excess fatigability, incoordination, pain on movement, swelling, deformity or atrophy of disuse. Instability of station, disturbance of locomotion, interference with sitting, standing and weight-bearing are related considerations. 38 C.F.R. § 4.45. The intent of the Rating Schedule is to recognize actually painful, unstable or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59. Service connection for the penetrating shell fragment wound of the lateral aspect of the left thigh with superficial sensory nerve paralysis was granted in a March 1946 rating decision and a 10 percent evaluation was assigned. The rating was increased to 40 percent in a December 1995 rating decision. That rating was made effective from February 1990 by a December 1996 rating decision. Service medical records reveal that the veteran incurred a shell fragment wound to the left thigh in April 1945. The wound was described as a penetrating wound of the lateral surface of the mid-third of the left thigh. The shell fragments were removed and the wound was debrided. He underwent secondary suturing in May 1945, and he was eventually returned to duty in June 1945, after fifty days of hospitalization. The veteran's separation examination revealed an area of severe paresthesia of the lateral aspect of the left thigh. The veteran received a non-medical discharge in February 1946. At his VA examination in May 1949, the veteran complained of intermittent pain of the left thigh, especially with changes in the weather. The examiner noted that the veteran had not sought medical treatment for his left thigh since his discharge from service. The examination showed a four inch linear scar of the left thigh that was described as sensitive; there was no muscle herniae or atrophy. The veteran exhibited full motion of the left hip and knee. There was an area of hypoesthesia behind the scar. The examiner diagnosed residuals of a gunshot wound to the left thigh. There is no evidence of further treatment until 1982, when the veteran was treated on an outpatient basis on multiple occasions for worsening left thigh pain. The veteran was hospitalized in November 1983 for left leg pain. He did not respond to multiple therapies that were attempted in order to relieve the pain. It was determined that surgery was not indicated, and the veteran was released in December 1983 with a conservative therapy plan. The veteran was again hospitalized at a VA facility for left upper thigh pain in March 1988. He underwent a lateral femoral cutaneous nerve decompression, for which he was hospitalized for 8 days. An EMG study conducted in February 1990 was compatible with a lesion of the left femoral nerve. An EMG study in July 1990 was compatible with a chronic neurogenic lesion affecting at least the L4 root. The results of this study did not account for the veteran's left lateral thigh symptoms. At his VA general medical examination in January 1991, the veteran complained of constant pain of the left thigh, prone to recurring and very severe bouts; he reported that the pain did not appear to be activity related. The veteran reported buckling of the left leg when weight is transferred to the left leg. He complained of left knee pain, and he was observed favoring the left leg upon entering the examination room. The examiner noted a 7 by 1 cm surgical scar on the lateral aspect of the left thigh, described as "nonraised" and hyperesthetic. There was tenderness to palpation with respect to the left thigh, anteriorly and laterally. The veteran exhibited full range of knee motion with crepitation on motion and marked patellar sign. The examiner diagnosed a shell fragment wound of the left thigh with residual and left knee arthralgia. The veteran also underwent VA neurological examination in February 1991. No pain was observed with walking. Some deceased range of motion of the left knee due to discomfort was noted. Left leg muscle strength was within normal limits. The examiner noted slight quadriceps atrophy at the left thigh and slight decrease in circumference of the thigh just superior to the left knee. Sensory examination revealed hyperesthesia to touch along the left lateral thigh and lateral surface of the lower leg. The examiner diagnosed, among other things, status post shrapnel wound of the left thigh with chronic pain most likely due to scar tissue. The veteran continued to seek treatment for left thigh pain in 1992 and 1993. He continued to voice complaints of pain and severe tenderness relative to his left thigh shell fragment wound scar. The veteran underwent VA examination in February 1995. At that time, he reported that he needed to use crutches in order to walk due to pain with weight bearing. He complained of reduced ability to exercise and that his left thigh pain was constant, with occasional sharp and throbbing pain. The veteran stated that his left thigh pain affected his ability to perform daily household activities and affected his sleep. When asked to walk the veteran exhibited great difficulty with weight bearing and his leg spontaneously flexed. The examiner was not able to assess the veteran's left leg muscle strength due the veteran's complaints of pain. The examiner observed a 4 centimeter, slightly depressed longitudinal scar over the left lateral thigh; the scar was not tender. Diffuse tenderness was noted across the entire left thigh upon pinprick, causing the veteran to wince as if in great agony. No muscle atrophy was noted. He was able to extend his left leg while in the supine position. X-rays revealed multiple femoral intramedullary lucencies. The examiner diagnosed status post shrapnel wound of the left lateral thigh. The examiner commented that there may be a functional component to the veteran's disability. In a November 1995 letter, a VA physician stated that after review of appropriate diagnostic tests it was his opinion that the veteran's left thigh pain was not attributable to questionable lucencies seen on x-rays. At his April 1996 personal hearing, the veteran testified that ever since he received a steroid injection for his shell fragment wound, he had experienced an increase in pain. He asserted that the pain is constant and causes him to use crutches to walk. He reported that he was not currently taking pain medication due to medication side effects. He also claimed he suffered left knee and left hip pain secondary to his left thigh shell fragment wound. The veteran underwent a pain evaluation at the Minneapolis VA Medical Center in January 1997. At the evaluation, the veteran complained of constant pain with occasional burning, numbness, and paresthesia. Musculoskeletal examination resulted in findings of scar tissue around the area of shrapnel injury with an exaggerated startle response. It was reported that the hyperesthesia and dysesthesia were not consistent or reproducible. The examiners diagnosed left thigh pain likely related to musculotendinous scarring around the area of an old shrapnel injury causing quadriceps muscle tightening that produces pain on stretching that occurs with daily activities; bizarre posturing and likely astasia- abasia. The examiners were of the opinion that the clinical data indicated a somatization disorder possibly influenced by litigation. At his March 1997 VA examination, the veteran complained of constant pain since 1991 with an escalation of pain following an injection into the scar of the thigh wound. He reported that he could not walk more than 10-15 feet without crutches. On physical examination, the examiner observed a 3-inch scar on the anterolateral aspect of the left thigh on the border of the quadriceps muscle. The examiner noted a 1/4 inch depression with respect to the scar and slight loss of the muscle of the left quadriceps. The scar was tender to palpation. The veteran had full range of motion of the hip. X-rays were negative for abnormality. The examiner diagnosed a shell fragment wound of the left thigh with slight loss of the quadriceps femoris muscle. The examiner opined that the veteran did have pain which limits his functional ability; however, there was no loss of motion due to pain or anecdotal evidence of excess fatigability and pain on movement. At his April 1997 VA neurological examination, the veteran complained of progressive weakness of his left thigh ever since his original injury. Motor examination showed 5/5 muscle strength with normal tone and bulk; slight atrophy of the left thigh was noted. After a full neurological workup, the examiner concluded that there was functional overlay with respect to the veteran's complaints and that neurologically the veteran was unchanged since his previous examination. Psychiatric therapy was recommended. No specific diagnosis was offered. The veteran was examined again in July 1997, and on that occasion he repeated his complaints voiced at earlier examinations. Physical examination revealed a well-healed scar with extreme sensitivity to palpation. Particular pain was noted over the posterior border of the left vas lateralis muscle. The circumference of the left thigh was 1/2 inch less than the right. Muscle strength and extension of the left knee and ankle were within normal limits. Deep tendon reflexes were noted to be only at trace levels with respect to the left knee jerk response and at 1+ with respect to left ankle jerk; otherwise, deep tendon reflexes were within normal limits. Straight leg raising at 60 degrees caused left thigh pain and wincing, but was within normal limits. Sensory examination was within normal limits except for extreme hypersensitivity over the lateral aspect of the left thigh. The examiner diagnosed a left thigh gunshot wound with "causalgia-like" symptoms and a possible neuroma. The examiner opined that the pain experienced due to the gunshot wound made it necessary for the veteran to use crutches. According to the report of a March 1998 VA orthopedic examination, the veteran complained of constant left thigh pain rated as a 9 out of 10. The veteran also complained of derivative pain affecting the hip and knee, and the veteran reported that he suffered pain on bending of the left knee. With regard to functional limitations, the veteran stated that he suffered left leg limitation of motion of at least 50 percent due to pain. The veteran reported drastic decrease in coordination over the previous 4 years. The veteran was able to move his left leg from 0 to 135 degrees of motion. Hip ranges of motion were flexion of 115 degrees, abduction through 45 degrees, adduction through 25 degrees, external rotation through 50 degrees, internal rotation through 30 degrees, and hyperextension through 10 degrees. Ranges of motion were the same for both passive and active ranges. The veteran complained of pain at the extremes of all of the above ranges of motion; however, there was no significant grimacing. The veteran dressed and undressed slowly and awkwardly. He complained of pain when performing heel-toe and squatting maneuvers. In his diagnosis, the examiner reported a well healed and markedly tender left thigh scar. The examiner opined that the veteran's symptoms were attributable to nerve damage. According to the report of a March 1998 VA neurological examination, the veteran exhibited full range of motion of the hip with adduction to 45 degrees and full flexion. It was the opinion of the examining VA physician that the veteran had a chronic pain syndrome resulting from his shell fragment wound to the left anterior thigh. The physician stated that there was loss of quadriceps muscle and pain in the area of the wound. The veteran was thus forced to walk with the aid of Canadian crutches. The examiner speculated that the veteran was entitled to further increase in benefits due to the increasingly progressive severity of his pain. May 1999 VA neurological examination showed that the veteran's legs were of equal girth and that the lateral thigh scar was tender to touch. No atrophy or circulatory impairment was found. Left ankle jerk was described as "almost absent." There were no toe signs. After further neurological testing, the examiner opined that the veteran had no neurological residuals of his left thigh shell fragment wound based upon the current examination and that the veteran's documented spinal impairment at L4-L5 would account for his absent left knee jerk. At his May 1999 VA muscle examination, the veteran reported symptoms consistent with those reported in earlier examinations. The veteran added that his daily activities were greatly affected by his left thigh wound. The veteran reported limitation of motion due to pain, although the degree of such loss was not specified. He complained of incoordination over the past 9 years. Right and left leg circumferences were equal. Left hip ranges of motion were: 30 degrees of abduction, 95 degrees of flexion, 20 degrees of adduction, external rotation of 40 degrees, internal rotation of 30 degrees, and hyperextension of 0 degrees. The veteran was able to move his left knee through 140 degrees of motion. Ranges of motion were both for passive and active movement. No specific extremity atrophy was found; however mild generalized muscle wasting was noted. X-rays of the left hip and femur were normal. The examiner diagnosed a well healed moderately tender left lateral thigh scar. The examiner opined that the veteran was capable of maximum employment of 20 hours per week under ideal conditions. The examiner stated that the veteran's service-connected disabilities had limited his employability to an indeterminate extent. The Board notes that during the pendency of the veteran's appeal, VA's Schedule for Rating Disabilities (Rating Schedule), found in 38 C.F.R. Part 4, was amended. Effective July 3, 1997, VA amended the schedular criteria for evaluating muscle injuries set forth in 38 C.F.R. §§ 4.55, 4.56, 4.69, 4.73 (1996). See Fed. Reg. 30235-30240 (1997). The regulatory changes concerning muscle injuries include the deletion of 38 C.F.R. §§ 4.47 through 4.54 and 38 C.F.R. § 4.72. The definitions of what constitutes a moderate, moderately severe or severe wound were modified to exclude the adjectives describing the amount of loss of deep fascia and muscle substance. After review of the regulatory changes, the Board concludes that the regulatory changes pertinent to this claim are nonsubstantive in nature. Given the nonsubstantive nature of the regulatory changes, the Board finds that the veteran will not be prejudiced by consideration of the claim decided herein, and remand of the claim is therefore unnecessary. Bernard v. Brown, 4 Vet. App. 384, 394 (1993). For VA rating purposes, 38 C.F.R. § 4.56(c) (1999) provides that the cardinal signs and symptoms of muscle disability are loss of power, weakness, lowered threshold of fatigue, fatigue-pain, impairment of coordination and uncertainty of movement. The regulation further provides that disabilities resulting from muscle injuries shall be classified as slight, moderate, moderately severe or severe. Under 38 C.F.R. § 4.56, severe wounds are through and through or deeply penetrating due to a 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. Such wounds require prolonged hospitalization. There is a record of consistent complaints 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. Tests of strength, endurance or coordinated movements compared with the corresponding muscles of the uninjured side indicate severe impairment of function. If present, the following are also signs of severe muscle disability: X-ray evidence of minute multiple scattered foreign bodies indicating intermuscular trauma and explosive effect of the missile; or visible or measurable atrophy. The maximum evaluation for injury of Muscle Group XIV, the anterior thigh group, is 40 percent, and this evaluation is warranted if the injury is severe. 38 C.F.R. § 4.73, Diagnostic Code 5314. In addition, the veteran is also receiving a separate 10 percent rating for his left thigh shell fragment wound scar and a separate 20 percent rating for left calf and left foot neuropathy. The veteran has not disagreed with these separately assigned ratings. The maximum evaluation authorized for limitation of flexion of a leg is 30 percent, and this is warranted if flexion is limited to 15 degrees. 38 C.F.R. § 4.71a, Diagnostic Code 5260. Limitation of extension of a leg warrants a 40 percent evaluation if extension is limited to 30 degrees or a 50 percent evaluation if extension is limited to 45 degrees. 38 C.F.R. § 4.71a, Diagnostic Code 5261. A 40 percent evaluation is warranted for ankylosis of a knee at a favorable angle in full extension, or in slight flexion between 0 and 20 degrees. A 50 percent rating is warranted if the knee is ankylosed in flexion between 20 and 45 degrees. 38 C.F.R. § 4.71a, Diagnostic Code 5256. Limitation of extension of a thigh warrants a maximum evaluation of 40 percent. 38 C.F.R. § 4.71a, Diagnostic Codes 5251-5253. A 60 percent rating is warranted for favorable ankylosis of the hip in flexion at an angle between 20 and 40 degrees, and slight adduction or abduction. 38 C.F.R. § 4.71a, Diagnostic Code 5250. The evaluation of the same disability under various diagnoses is to be avoided. 38 C.F.R. § 4.14. After careful review of the all the evidence of record, the Board is of the opinion that the preponderance of the evidence is against a rating in excess of 40 percent at this time. Over the course of the many examinations the veteran was afforded during the course of this appeal, he was not shown to have left knee extension limited to 45 degrees or more, as would be required in order for a 50 percent rating under diagnostic code 5261. Rather, March 1998 and May 1999 VA examinations revealed left knee motion of 0 to 135-140 degrees. Further, the veteran's left knee and hip have not been found to be ankylosed due to his service-connected shell fragment wound residuals. In addition, although the veteran uses crutches and manifests an impaired gait when observed by VA examiners, no more than slight atrophy of the left thigh has been found when comparing the veteran's left and right thighs. In this regard, the Board notes that on more than one examination, VA examiners were of the opinion that there was a functional component to the veteran's symptoms. The veteran contends that he suffers extreme pain with forms of activity involving his left leg. The Board has considered the veteran's complaints of pain and functional limitations. In this regard, the Board notes that in the March 1997 examination report, the VA examiner opined that there was no loss of motion due to pain. In addition, although the veteran complained of pain at extremes of ranges of motion at his March 1998 VA orthopedic examination, the examiner noted that the veteran did not grimace while perform range of motion maneuvers. Moreover, the May 1999 VA neurological examination resulted in a clinical conclusion that there was no neurological involvement with regard to the veteran's shell fragment wound residuals. Even when considering the veteran's complaints of pain, incoordination, and functional impairment, the Board concludes that the veteran's left thigh disability is not shown to more nearly approximate the criteria for a higher rating. 38 C.F.R. §§ 4.40, 4.45,and 4.59. Therefore, the Board concludes that the disability warrants no more than the currently assigned 40 percent rating. With respect to the disability rating discussed above, the Board has also considered whether there should be referral to the Director of the Compensation and Pension Service for extra-schedular consideration under 38 C.F.R. § 3.321(b)(1) (1999). The record reflects that the veteran has not required frequent hospitalization for the disability and that the demonstrated manifestations of the disability are consistent with the assigned evaluation. In sum, there is no indication in the record that the average industrial impairment resulting from the disability would be in excess of that contemplated by the assigned evaluation. Therefore, the Board finds that the criteria for submission for assignment of extra-schedular ratings pursuant to 38 C.F.R. § 3.321(b)(1) are not met. See Bagwell v. Brown, 9 Vet. App. 337, 339 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). ORDER Entitlement to an evaluation in excess of 40 percent for residuals of a shell fragment wound to the lateral aspect of the left thigh with superficial sensory nerve paralysis is denied. SHANE A. DURKIN Member, Board of Veterans' Appeals