Citation Nr: 18124078
Decision Date: 08/07/18	Archive Date: 08/03/18

DOCKET NO. 08-30 025
DATE:	August 7, 2018
ORDER
Entitlement to a combined evaluation of 50 percent for gunshot wound residuals of the right leg (muscle groups XI and XII) with a 30 percent evaluation and of the right foot (muscle group X) with a 30 percent evaluation is granted.
FINDING OF FACT
The medical evidence of record shows that the Veteran’s service-connected gunshot wound residuals of the right leg (muscle groups XI and XII) and of the right foot (muscle group X) would necessitate an above-the-knee amputation.
CONCLUSION OF LAW
The criteria for a combined rating of 50 percent have been met for service-connected gunshot wound residuals of the right leg (muscle groups XI and XII) with a 30 percent evaluation and of the right foot (muscle group X) with a 30 percent evaluation have been met.  38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.1, 4.2, 4.7, 4.68, 4.71a, Diagnostic Codes 5163, 6164.
REASONS AND BASES FOR FINDING AND CONCLUSION
The Veteran served on active duty from June 1956 to March 1960.
This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a January 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas.
A November 2011 Board decision denied the Veteran's claims for increased ratings concluding that, under the amputation rule, his combined rating for his gunshot wound residuals could not exceed 40 percent.  See 38 C.F.R. § 4.25 (2017).  A May 2013 memorandum decision of the Court of Appeals for Veterans Claims (Court) vacated and remanded the Board decision as to entitlement to a higher combined rating, noting the Veteran did not dispute the individually assigned ratings.
An April 2014 Board decision again denied entitlement to a combined rating in excess of 40 percent for gunshot wound residuals under the amputation rule.  See 38 C.F.R. § 4.25.  A June 2015 memorandum decision of the Court again vacated and remanded the Board decision with regard to the issue of entitlement to a combined rating in excess of 40 percent for the Veteran's gunshot wound residuals.
In a March 2017 decision, the Board remanded the matter for additional evidentiary development.  A supplement statement of the case (SSOC) was issued in October 2017.
In May 2018, the Board sought a medical opinion from the Veterans Health Administration (VHA) in accordance with 38 C.F.R. § 20.901(a).  The requested opinions were obtained in July 2018, and associated with the claims file.
1. Entitlement to a combined evaluation in excess of 40 percent (under the 'amputation rule') for gunshot wound residuals of the right leg (muscle groups XI and XII) with a 30 percent evaluation and of the right foot (muscle group X) with a 30 percent evaluation.
The Veteran is service-connected for gunshot wound residuals of the right leg (involving Muscle Groups XI and XII), and gunshot wound residuals of the right foot (involving Muscle Group X).  Each disability has been assigned a separate 30 percent rating under Diagnostic Codes 5312 and 5310, respectively, since November 4, 1961.  Although the combined rating for the two disabilities would be 50 percent under 38 C.F.R. § 4.25, the law contains an “amputation rule,” which provides that the combined rating for disabilities of an extremity shall not exceed the rating for an amputation at the elective level, were amputation to be performed.  38 C.F.R. § 4.68 (2017).
Under the amputation rule, the combined rating of disabilities below the knee generally shall not exceed the 40 percent evaluation provided under Diagnostic Code (DC) 5165.  See 38 C.F.R. § 4.71a (2017).  The combined rating for disabilities above the knee (i.e., amputation of a leg with a defective stump or amputation not improvable by prosthesis controlled by natural knee action) generally shall not exceed the 60 percent evaluation provided under DC 5162.
Given these criteria, the legal issue in this case is what the appropriate level of elective amputation would be to fully address the Veteran’s service-connected disability – below or above the knee.
Pursuant to instructions from the Court, in January 2014, VA obtained a medical opinion to address the appropriate level of elective amputation in this matter.  In that opinion.  In the January 2014 opinion, a VA orthopedic surgeon concluded that the Veteran’s wound residuals spared the musculature of the upper third of the Veteran’s right leg, and that his gunshot wound residuals would therefore be addressed by an amputation of his leg at a lower level.  He noted that, because the function of the muscles from group XI includes ‘flexion of the knee,’ the Veteran felt that an amputation of the leg at a lower level permitting prosthesis would not address his wound residuals.  The orthopedic surgeon indicated that “[t]he muscles in group XI that cross the knee joint (gastrocnemius, popliteus, plantaris) minimally aid in knee flexion as the primary and main knee flexors are the medial hamstrings and the biceps femoris.  An amputation at a transtibial level with proper myodesis would permit use of a prosthesis and would not affect flexion of the knee.”
In June 2015, the Court held that the January 2014 opinion was inadequate because it was internally inconsistent.  The Court noted that the orthopedic surgeon did not adequately explain why, when the muscles in group XI do aid in knee flexion (albeit minimally), that the Veteran’s gunshot wound injuries to that muscle group would have no effect on his knee flexion.  Thus, the Court held that the Board should remand this matter to obtain a medical opinion explaining why a below-the-knee amputation would adequately address the Veteran’s right lower extremity gunshot wound residuals.
The Veteran was afforded a VA examination in December 2015 and a supplemental opinion in July 2016.  The VA examiner noted that a below-the-knee amputation is preferable to a disarticulation (or above-the-knee amputation), but failed to clarify what elective level of an amputation would fully address the Veteran’s gunshot wound residuals.  In addition, the VA examiner similarly noted that the muscles in group XI minimally aid in knee flexion, as the main flexors of the knee are the hamstrings and biceps femoris muscles that are intact in the Veteran and provide good knee flexion.  However, the examiner again failed to explain why the Veteran’s gunshot wound injuries to muscle group XI would have no effect on his knee flexion.  In light of these inadequacies, the Board again remanded the matter in March 2017.
In a July 2017 addendum opinion, the VA examiner indicated that the Veteran would ideally require only a below-the-knee amputation.  However, the examiner opined, “the level of amputation is also dependent on the level of sensation and the limb is insensate at a fairly proximal level.”  The July 2017 examiner continued, “IF one were to do an amputation, clearly it would be best that knee flexion be preserved and the amputation be performed as distally as allowed.  This later condition depends on the level of sensation.”  The examiner further stated, “[w]orst case scenario is a disarticulation at the knee.  Thus, the level of amputation would ideally be below-the-knee, but this is dependent on the level of sensation.”
As the July 2017 VA opinion failed to clarify at what elective level an amputation would fully address the Veteran’s gunshot wound residuals of his right leg (muscle groups XI and XII) and right foot (muscle group X), the Board referred this matter for a VHA opinion in May 2018.
As indicated above, a VHA opinion was obtained in July 2018.  The VHA reviewer stated, “[i]t is this examiner’s opinion that a below-the-knee amputation would be less likely than not (less than 50% likely) to fully address the Veteran’s service-connected gunshot wound residuals of his right leg (muscle groups XI and XII) and right foot (muscle group X).”  The examiner explained, “[t]his opinion is based primarily on the presence of a skin graft on what was documented to be a chronic wound in this anatomic location, which would become weight-bearing after a below knee amputation and provision of a prosthesis.”  The examiner continued, “[a]n insensate skin graft would, in this examiner’s opinion, be more likely than not to fail (greater than 50% probability) and leave an open wound on the amputation stump.  The Veteran’s history of both arterial and venous insufficiency also represent significant risk factors for this contemplated procedure.”
The July 2018 examiner additionally reported,
It is this examiner’s opinion that it is more likely than not (greater than 50% likelihood) that the residuals of the service-connected muscles of group XI would be more likely than not (greater than 50% probability) have an effect to diminish the strength of the Veteran’s knee flexion after a contemplated below knee amputation, although this expected difference in strength would not be large, the difference could be significant for this Veteran considering the multiple other problems he has had with this limb.
As reviewed in detail above, it is this examiner’s opinion that it is more likely than not (greater than 50% likelihood) that an above knee amputation would be necessary to fully address the Veteran’s service-connected gunshot wound residuals of his right leg and right foot.  This opinion is rendered in the undocumented expectation that the Veteran is at least partially insensate in the region of the anterior tibial tubercle area, secondary to documented previous skin necrosis and skin grafting performed by Dr. Niland in 1960 as described in the STR.  Such an insensate area in a weight-bearing area of the anterior stump after a below knee amputation would, in this examiner’s opinion, be more likely than not (greater than 50% likelihood) to erode and create another problematic wound, with in turn, a more likely than not (greater than 50% probability) necessity for revision to an above knee amputation.

Accordingly, as indicated above, the Veteran’s service-connected gunshot wound residuals of the right leg (involving Muscle Groups XI and XII) are evaluated as 30 percent disabling and his service-connected gunshot wound residuals of the right foot (involving Muscle Group X) are also assigned a 30 percent rating.  The combined rating for the two disabilities is 50 percent under 38 C.F.R. § 4.25.  However, as noted above, the law contains an “amputation rule,” which provides that the combined rating for disabilities of an extremity shall not exceed the rating for an amputation at the elective level, were amputation to be performed.  38 C.F.R. § 4.68 (2017).
As detailed above, the July 2018 VHA opinion indicated that the Veteran’s service-connected gunshot wound residuals of the right leg and foot would at least as likely as not require an above-the-knee amputation.  See 38 C.F.R. § 4.71a, DC 5163.  The July 2018 VHA opinion was thorough and based upon a detailed analysis of the record, including the lay statements and evidence submitted by the Veteran, and the VHA reviewer explained the reasons for his conclusions based on an accurate characterization of the evidence of record.  The Board therefore places significant weight on the findings of the July 2018 VHA reviewer.  See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008) (“It is the factually accurate, fully articulated, sound reasoning for the conclusion, not the mere fact that the claims file was reviewed, that contributes probative value to a medical opinion”); see also Bloom v. West, 12 Vet. App. 185, 187 (1999) (the probative value of a physician’s statement is dependent, in part, upon the extent to which it reflects “clinical data or other rationale to support his opinion”).
Accordingly, the preponderance of the medical evidence of record demonstrates that an amputation of the Veteran’s right leg would require an above-the-knee amputation.  Thus, pursuant to 38 C.F.R. § 4.71a, DC 5163, the Veteran may receive a combined rating up to 60 percent for his service-connected gunshot wound residuals of the right lower extremity.  As such, the Board finds that a combined rating of 50 percent may properly be assigned for the Veteran’s service-connected gunshot wound residuals of the right leg (involving Muscle Groups XI and XII) and of the right foot (involving Muscle Group X) pursuant to 38 C.F.R. § 4.25.
(Continued on the next page)
 
The Veteran has not raised any other issues, nor have any other issues been reasonably raised by the record.  See Doucette v. Shulkin, 28 Vet. App. 366, 369-70 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record).
 
K. Conner
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	K. K. Buckley, Counsel 

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