Citation Nr: 0002613 Decision Date: 02/02/00 Archive Date: 02/10/00 DOCKET NO. 98-14 093 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Jackson, Mississippi THE ISSUES 1. Entitlement to an increased evaluation for residuals of left thigh, middle third, amputation, currently evaluated as 60 percent disabling. 2. Entitlement to an increased evaluation for residuals of shell fragment wounds to the left hip and thigh, Muscle Groups XIV and XVII, severe, currently evaluated as 50 percent disabling. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD C.A. Skow, Counsel INTRODUCTION The appellant served on active duty from January 1951 to December 1952. This matter came before the Board of Veterans' Appeals (the Board) on appeal from an August 1998 rating decision of the Jackson, Mississippi, Department of Veterans Affairs Regional Office (VARO), which denied the appellant's claims for increase. A review of the claims folder discloses that additional evidence was received at the Board in October 1999, which was within the 90-day window of time following certification of the appeal to the Board. However, as this evidence is not pertinent to the issues on appeal because it concerns progressive gangrene of the nonservice-connected right foot and amputation of the first three toes of the right foot, referral of the evidence back to VARO is not necessary prior to consideration by the Board of the claims on appeal. See 38 C.F.R. § 20.1304 (1999). The recent evidentiary submissions and the accompanying statement from the appellant, however, suggests that service- connection for disability of the right foot with toe amputations secondary to service-connected left leg amputation and/or muscle group XIV and XVII injuries is sought. Therefore, this issue is referred to VARO for appropriate action. FINDINGS OF FACT 1. The appellant has a left above knee amputation at the middle third of the thigh. 2. The appellant has severe impairment of Muscle Groups XIV and XVII, with loss of quadricep femoris muscle mass and weak vastus lateralis. CONCLUSIONS OF LAW 1. The schedular criteria for a rating in excess of 60 percent for residuals of left leg amputation at the middle third of the thigh are not met. 38 U.S.C.A. §§ 1155, 5107 (West 1991 & Supp. 1999); 38 C.F.R. § 3.321, Part 4, Diagnostic Code 5162 (1999). 2. The schedular criteria for a rating in excess of 50 percent for residuals of shell fragment wounds to the left thigh, muscle groups XIV and XVII, are not met. 38 U.S.C.A. §§ 1155, 5107 (West 1991 & Supp. 1999); 38 C.F.R. § 3.321, Part 4, Diagnostic Code 5314 and 5317 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Initially, the Board finds that the appellant has submitted evidence which is sufficient to justify a belief that his claim is well grounded. 38 U.S.C.A. § 5107(a) (West 1991 & Supp. 1999) and Murphy v Derwinski, 1 Vet.App. 78 (1990). The appellant contends that the evaluations assigned his service-connected left leg amputation at the thigh and his muscle group XIV and XVII injuries do not reflect adequately the severity these disabilities. A claim for an increased evaluation is well grounded where the claimant asserts that a higher rating is justified due to an increase in severity of the service-connected condition. See Caffrey v. Brown, 6 Vet.App. 377, 381 (1994); Proscelle v. Derwinski, 2 Vet.App. 629, 631-632 (1992). As the appellant has claimed that his disabilities are more severe, his claim is well grounded within the meaning of 38 U.S.C.A. § 5107(a) (West 1991). The record reflect that, by a rating decision dated February 1953, service connection was established for residuals of amputation to the left thigh, middle third, at the 60 percent disability level, and for shell fragment wounds to the left thigh, muscle groups XIV and XVII, at the 50 percent disability level. Also, special monthly compensation was awarded for loss of a foot pursuant to 38 U.S.C.A. § 1114(k). Report of VA examination dated November 1953 reflects that the appellant sustained shell fragment wounds to the left leg in service that necessitated amputation at thigh level above the knee and resulted in multiple scars of the stump with removal of muscle tissue. The appellant, age 22, denied difficulty with the stump and the leg. It was noted that he walked well with his prosthesis, with only a slight left- sided limp. Examination revealed an amputation stump and multiple scars about the thigh and hip, which were well- healed, non-tender, and non-adherent. In the area of the scars, there was moderate loss of the gluteus maximus. There was full range of hip motion on the left and all joints of the right lower extremity. The diagnoses were amputation stump, left side, above knee, multiple healed scars of the left hip and thigh, loss of muscle tissue of muscle groups XIV and XVII, moderately severe, and retained metallic fragment. VA hospital summary dated March 1972 reflects that the appellant, age 41, was admitted for cellulitis of the left above knee stump. On admission, the stump was aspirated. By history, the appellant had good prosthetic wear and was in the process of having a new limb fabricated. The discharge diagnoses were status post left above knee amputation, secondary to old war injury, and cellulitis of the left above knee stump. A private medical statement dated December 1978 reflects that the appellant was seen for a left hip fracture in 1977, and that he had a history of repeated infections of his stump. The appellant was treated conservatively with a cast and subsequently developed stiffness and pain in the hip, precluding ambulation with prosthesis. Also, the possibility of recurrent infection within the stump precluded further use of an above the knee type prosthesis. It was noted that there were numerous scars and metallic fragments from retained shrapnel. Report of VA examination dated April 1979 reflects that, since 1973, the appellant wore his prosthesis sparingly in an effort to forestall further occurrence of infection of the left leg stump. By history, in 1977, he accidentally fell and sustained a fracture of the left hip, which was treated conservatively. The appellant reported that he has not wore a prosthesis since 1977, but rather he has used Lofstrand crutches and his remaining right lower extremity for ambulation. At this time, he worked as the labor relations officer at the Naval Oceanographic Office in Mississippi. Examination revealed multiple healed surgical scars coursing longitudinally along the thigh. There was no evidence of inflammation (redness, swelling, tenderness, or induration) or of ulceration. The impression was status post left above the knee amputation with residual multiple scarring of the skin, and residual of trauma to muscle groups XIV and XVII of the left lower extremity. An x-ray study of the left hip and thigh showed a healed fracture of the hip and multiple small metallic foreign bodies throughout the soft tissue. In May 1998, the appellant requested increased ratings for his service-connected left leg disabilities. He argued than an increase was warranted because of severe scarring related to the amputation, loss of muscle mass, loss of circulation, and the inability to wear a prosthesis. In July 1998, a VA examination was conducted to evaluate the service-connected left leg disabilities. The appellant reported that he was no longer able to walk with a prosthesis. X-rays of the left leg revealed multiple shrapnel within the left hip and thigh, along with 6 wire sutures in the upper medial thigh and an old impacted fracture of the surgical neck. Clinical findings were positive for an area of numbness and decreased sensation measuring 12 by 18 centimeters (cm.) on the diagonal that extends across the stump of the leg. Also, there was a 12 cm. long incision across the stump diagonally, a 3 cm. long incision overlying the quadricep femoris area, a 20 cm. healed incision over the vastus lateralis laterally, and a 2 cm. drained wound posterior to the greater trochanter. There was "great loss of muscle mass in the quadricep femoris area." The hamstrings were atrophic. The stump extended about 40 cm. from the anterior iliac spine. There was "great loss of lateral adduction of the hip" but there was full flexion and extension. Due to the lack of soft tissue coverage where the distal stump had been skin grafted and the difficulty with sensation, as well as, loss of quadricep femoris muscle and weak vastus lateralis, the appellant was noted to be clearly unable to use a prosthesis. ANALYSIS Disability evaluations are determined by comparing the veteran's current symptomatology with the criteria set forth in the Schedule for Rating Disabilities (rating schedule). 38 U.S.C.A. § 1155 (West 1991); 38 C.F.R. Part 4 (1999). In making its determination, the Board analyzes the extent to which a service-connected disability adversely affects a veteran's ability to function under the ordinary conditions of daily life, and bases the assigned rating, as far as practicable, on the average impairment of earning capacity in civil occupations. 38 U.S.C.A. § 1155 (West 1991); 38 C.F.R. §§ 4.1, 4.10 (1999). If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (1999). Any reasonable doubt regarding a degree of disability will be resolved in favor of the veteran. See 38 C.F.R. § 4.3 (1999). Where entitlement to compensation has already been established and an increase in disability rating is at issue, the present level of disability is of primary concern. While the entire recorded history of a disability is to be reviewed by the rating specialist, the regulations do not give past medical reports precedence over current findings. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). The Board notes that in assigning an appropriate rating, the policy against "pyramiding" of disability awards enumerated by 38 C.F.R. § 4.14 must be considered. The assignment of a particular diagnostic code is "completely dependent on the facts of a particular case." Butts v. Brown, 5 Vet.App. 532, 538 (1993). One diagnostic code may be more appropriate than another based on such factors as an individual's relevant medical history, the current diagnosis and demonstrated symptomatology. Any change in a diagnostic code by a VA adjudicator must be specifically explained. See Pernorio v. Derwinski, 2 Vet.App. 625, 629 (1992). In this case, the Board considered whether another rating code is "more appropriate" than the one used by VARO. See Tedeschi v. Brown, 7 Vet.App. 411, 414 (1995). A. Above Knee Amputation (At Middle Third) on the Left Amputation of a lower extremity warrants the assignment of a 60 percent disability evaluation where the objective evidence shows that the amputation is within the middle or lower one- third of the thigh. An 80 percent disability evaluation warrants assignment only where the objective evidence shows that an amputation is at or above a point one-third of the distance from the perineum to the knee joint, measured from the perineum. 38 C.F.R. Part 4, Codes 5161, 5162 (1999). After a careful review of the evidence of record, it is found that an increased evaluation for the left above knee amputation is not warranted. The evidence does not establish that the point of amputation is at or above a point one-third of the distance from the perineum to the knee joint, measured from the perineum, as is required to justify an 80 percent evaluation. Rather, the evidence demonstrates that the amputation level was at the junction of the middle third, not the upper third. Therefore, the evidence does not show entitlement to an increased evaluation at this time. We note that the disability evaluations assigned for leg amputations is not predicated on the ability to use prosthetic devices. Disability of the musculoskeletal system is primarily the inability, due to damage or inflammation in parts of the system, to perform normal working movements of the body with normal excursion, strength, speed, coordination and endurance. Functional loss may be due to pain supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion. 38 C.F.R. § 4.40 (1999). The factors of disability affecting joints are reduction of normal excursion of movements in different planes, weakened movement, excess fatigability, swelling and pain on movement. 38 C.F.R. § 4.45 (1999). The United States Court of Appeals for Veterans Claims (known as the United States Court of Veterans Appeals prior to March 1, 1999) has held that functional loss, supported by adequate pathology and evidenced by visible behavior of the veteran undertaking the motion, is recognized as resulting in disability. DeLuca v. Brown, 8 Vet. App. 202 (1995); 38 C.F.R. §§ 4.10, 4.40, 4.45. However, because the appellant's rating is not predicated on loss of motion, 38 C.F.R. §§ 4.40 and 4.45 are not for application. See Johnson v. Brown, 9 Vet. App. 7,11 (1995). In summary, the preponderance of the evidence is against the appellant's claim for an increased evaluation for the service- connected left above knee amputation. Application of the extraschedular provisions is not warranted in this case. 38 C.F.R. § 3.321(b) (1999). There is no evidence that the left above knee amputation presents such an exceptional disability picture with such related factors as marked interference with employment or frequent periods of hospitalization so as to render impractical the application of the regular schedular standards. B. Shell Fragment Wound Injuries to Muscle Groups XIV and XVII Diagnostic code 5314 provides the rating criteria for evaluation of injuries to Muscle Group XIV, the anterior thigh group. Under this code, the maximum schedular disability rating is 40 percent where there is objective evidence of severe muscle injury to the anterior thigh group muscles. 38 C.F.R. § 4.73, Diagnostic Code 5314 (1999). Similarly, diagnostic code 5317 provides the rating criteria for evaluation of injuries to Muscle Group XVII, the pelvic girdle group 2. Under this code, the maximum schedular disability rating is 50 percent where there is objective evidence of severe muscle injury to the pelvic girdle group 2 muscles. Id., Diagnostic Code 5317 (1999). The appellant is currently rated at the maximum schedular level for disability of Muscle Groups XIV and XVII. Therefore, an increased schedular rating for service- connected muscle injuries is not warranted. The Board has considered the potential application of various other provisions of 38 C.F.R. Parts 3 and 4, whether or not they were raised by the appellant. However, the Board concludes that evaluation of the appellant muscle injuries under 38 C.F.R. § 4.73, diagnostic codes 5314 and 5317, are the only appropriate rating criteria available. See 38 C.F.R. §§ 4.2, 4.6; cf. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). As the appellant has already received the schedular maximum 50 percent rating for his muscle disability (which is protected by regulation both as to service connection and evaluation level), an increased rating is only available on an extraschedular basis. When evaluating an increased rating claim, it is well established that the Board may affirm VARO's conclusion that a claim does not meet the criteria for submission for an extraschedular rating pursuant to 38 C.F.R. § 3.321(b)(1), or may reach such a conclusion on its own. See Floyd v. Brown, 8 Vet. App. 88, 96 (1996); Bagwell v. Brown, 9 Vet. App. 337, 338-339 (1996). In the present case, the Board notes there has been no assertion that the appellant's service-connected residuals of shell fragment wounds to the left hip and thigh causes marked interference with employment or has necessitated frequent periods of hospitalization. In the absence of such factors, the Board finds that the record does not present such "an exceptional or unusual disability picture as to render impractical the application of the regular rating schedule standards." Therefore, the Board concludes that an extraschedular rating under the provisions of 38 C.F.R. § 3.321(b)(1) is not warranted. See Bagwell, 9 Vet. App. at 338-339; Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). ORDER An increased rating for residuals of left above knee amputation is denied. An increased rating for residuals of shell fragment wounds to the left hip and thigh, Muscle Groups XIV and XVII, is denied. C.P. RUSSELL Member, Board of Veterans' Appeals