Citation Nr: 18160333
Decision Date: 12/27/18	Archive Date: 12/26/18

DOCKET NO. 17-01 269
DATE:	December 27, 2018
ORDER
A disability rating of 20 percent, but no higher, for residuals of a gunshot wound to the left calf, Muscle Group XI, is granted, effective March 10, 2010.
A disability rating greater than 10 percent for multiple scars of the posterior chest, left shoulder, and back of neck is denied.
A separate disability rating of 10 percent, but no higher, for a scar of the scalp is granted, effective March 10, 2010.
A disability rating greater than 10 percent for symptomatic scars of the right chest is denied.
REMANDED
The following issues are remanded for further development: (1) entitlement to a separate compensable rating for residuals, other than scars, of shell fragment wounds to the posterior chest; (2) entitlement to a separate compensable rating for residuals, other than scars, of shell fragment wounds to the back; (3) entitlement to a separate compensable rating for residuals, other than scars, of shell fragment wounds to the neck; (4) entitlement to a separate compensable rating for residuals, other than scars, of shell fragment wounds to the left shoulder; and (5) entitlement to a separate compensable rating for residuals, other than scars, of shell fragment wounds to the right chest. 
FINDINGS OF FACT
1. Effective March 10, 2011, the residuals of a gunshot wound to the left calf are best characterized as a moderately severe disability of Muscle Group XI.
2. The Veteran’s multiple scars of the right chest, posterior chest, left shoulder, and back of neck are neither painful nor unstable.  Additionally, they do not impact an area or areas of at least 6 square inches (39 square centimeters).
3. The Veteran has 2 scars located on his scalp, each measuring 0.2 square centimeters.  One of the scars is superficial, nonlinear, not painful, and is stable.  The other is deep and stable, but leaves a slight depression on the scalp.
CONCLUSIONS OF LAW
1. The criteria for an increased disability rating of 20 percent, but no higher, for residuals of a gunshot wound to the left calf, Muscle Group XI, is granted, effective March 10, 2010.  38 U.S.C. §§ 1155, 5103A, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.55, 4.56, 4.73, Diagnostic Code 5311.
2. The criteria for a disability rating greater than 10 percent for multiple scars of the posterior chest, left shoulder, and back of neck are not met.  38 U.S.C. §§ 1155, 5103A, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.118, Diagnostic Code 7804.
3. The criteria for a separate disability rating of 10 percent, but no higher, for a scar of the scalp are met.  38 U.S.C. §§ 1155, 5103A, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.118, Diagnostic Code 7800.
4. The criteria for a disability rating greater than 10 percent for symptomatic scars of the right chest are not met.  38 U.S.C. §§ 1155, 5103A, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.118, Diagnostic Code 7804.
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
The Veteran served on active duty from June 1964 to June 1967, including service in the Republic of Vietnam.
These matters are before the Board of Veterans’ Appeals (Board) on appeal from a May 2013 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO).  Jurisdiction of the Veteran’s claims file currently resides with the Indianapolis, Indiana RO.
Increased Rating for Residuals of a Gunshot Wound to the Left Calf
Currently, the Veteran is in receipt of a 10 percent rating prior to February 9, 2015, and a 20 percent rating thereafter, for the residuals of a gunshot wound to the left calf.  Both ratings were assigned under 38 C.F.R. § 4.73, Diagnostic Code 5311 for injuries to Muscle Group XI, a muscle group of the foot and leg.  Under this diagnostic code, a 10 percent rating is assigned for moderate disability of the muscles.  A 20 percent rating is assigned for moderately severe disability of the muscles, and a 30 percent rating is assigned for severe disability of the muscles.
38 C.F.R. § 4.56 provides criteria for classifying muscle disabilities as moderate, moderately severe, and severe.  A “moderate” disability of the muscles is defined as a through and through or deep penetrating wound 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.  Objective findings must include entrance and (if present) exit scars, some loss of deep fascia or muscle substance or impairment of muscle tone and loss of power or lowered threshold of fatigue when compared to the sound side.  See 38 C.F.R. § 4.56(d)(2).
Comparatively, a “moderately severe” disability of the muscles is defined as a through and through or deep penetrating wound by small high velocity missile or large low-velocity missile, with debridement, prolonged infection, or sloughing of soft parts, and intramuscular scarring.  Service department records must show hospitalization for a prolonged period for treatment of wound.  Objective findings must include entrance and (if present) exit scars indicating track of missile through one or more muscle groups along with indications on palpation of exit scars, some loss of deep fascia or muscle substance or impairment of muscle tone and loss of power or lowered threshold of fatigue when compared to the sound side.  Tests of strength and endurance compared with sound side must demonstrate positive evidence of impairment.  Id. at § 4.56(d)(3).
Lastly, a “severe” disability of the muscles is defined as a through and through or deep penetrating wound due to 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.  Objective findings must include ragged, depressed and adherent scars indicating wide damage to muscle groups in missile track; palpation showing loss of deep fascia or muscle substance, or soft flabby muscles in wound area; and muscles swelling and hardening abnormally in contraction. Tests of strength, endurance, or coordinated movements compared with the corresponding muscles of the uninjured side indicate severe impairment of function.  Further, if present, the following are also considered signs of severe muscle disability: x-ray evidence of minute multiple scattered foreign bodies indicating intermuscular trauma and explosive effect of the missile; adhesion of scar to one of the long bones, scapula, pelvic bones, sacrum or vertebrae, with epithelial sealing over the bone rather than true skin covering in an area where bone is normally protected by muscle; diminished muscle excitability to pulsed electrical current in electrodiagnostic tests; visible or measurable atrophy; adaptive contraction of an opposing group of muscles; atrophy of muscle groups not in the track of the missile; and induration or atrophy of an entire muscle following simple piercing by a projectile.  Id. at § 4.56(d)(4).
As indicated above in the Conclusions of Law section, the Board finds that the Veteran is entitled to a rating of 20 percent, effective March 10, 2010.  Thus, to this extent, the Veteran’s claim is granted.  
In support of this determination, the Board primarily relies upon the results stated in a February 2015 VA muscle injury examination report.  In this report, the examiner identified that the Veteran’s gunshot wound impacted Muscle Group XI.  He then noted a cardinal symptom of fatigue and stated that the Veteran had intermittent pain, stiffness, and fatigability involving the left ankle region.  Muscle strength testing produced normal results and the examiner stated that x-rays taken that day of the left tibia and fibula showed superficial posteromedial calcifications as well as posterior and plantar calcaneal spurs, but no retained foreign body fragments.  A separate VA scars examination report from the same day noted entry and exit scars on the left lower leg and ankle region.
Apart from these February 2015 VA examination reports, the record is devoid of treatment records mentioning signs and symptoms associated with a disability of Muscle Group XI except a VA treatment record of x-rays from June 2012 which demonstrated no foreign bodies.  
The Board finds that a 20 percent rating is appropriate as the Veteran’s Muscle Group XI disability is best classified as moderately severe.  Specifically, the Veteran had documented entry and exit scars along with a lowered threshold of fatigue.  Comparatively, the next highest rating of 30 percent is not warranted as the record does not demonstrate that the Veteran displayed any of the symptoms described above in the definition of “severe” provided by 38 C.F.R. § 4.56(d)(4).
Lastly, the Board notes that it is assigning March 10, 2010 as the effective date for the 20 percent rating.  Under 38 C.F.R. § 3.400(o)(2), the Board may assign a retroactive effective date up to one year prior to the date of claim if it is factually ascertainable that an increase in disability occurred within the year prior to claim filing.  In this case, the Veteran’s claim was received on March 10, 2011 and it was factually ascertainable that an increase in disability occurred within a year prior to the claim filing.
Increased Rating for Multiple Scars of the Posterior Chest, Left Shoulder, Back of Neck, and Scalp; Increased Rating for Multiple Symptomatic Scars of the Right Chest
Currently, the Veteran is in receipt of separate 10 percent ratings for scars of the posterior chest, left shoulder, back of neck and scalp, as well as multiple symptomatic scars of the right chest.  According to the Veteran’s most recent rating decision codesheet from May 2017, these ratings were assigned pursuant to 38 C.F.R. § 4.118, Diagnostic Code 7804.  As indicated above in the Conclusions of Law section, after reviewing the evidence of record, the Board finds that ratings higher than 10 percent are not warranted.  However, the Board assigns a separate 10 percent rating under 38 C.F.R. § 4.118, Diagnostic Code 7800 for one of the scars of the scalp.  Thus, to this extent, the Veteran’s claim is granted.
Under Diagnostic Code 7804, a 10 percent rating is warranted when one or two scars are unstable or painful, a 20 percent rating is warranted when three or four scars are unstable or painful, and a 30 percent rating is warranted when five or more scars are unstable or painful.  In the instant case, a February 2015 VA scars examination provided that the Veteran had a total of 14 scars—2 of the left upper extremity, 2 of the left lower extremity, 10 of the posterior trunk, and 2 of the scalp.  The examination report stated that all but 1 of the scars of the scalp were superficial, nonlinear, stable, and not painful.  Additionally, the combined affected areas of the scars were as follows: (1) 2 square centimeters of the left upper extremity; (2) 0.8 square centimeters of the left lower extremity; (3) 17 square centimeters of the posterior trunk; and (4) 0.4 square centimeters of the scalp.  A review of the other evidence of record does not conflict with the examiner’s findings with respect to scar pain, stability, and affected areas.  Excluding one of the Veteran’s scalp scars—which is addressed below—the Veteran’s identified scars were neither painful nor unstable.  As such, ratings in excess of 10 percent pursuant to Diagnostic Code 7804 are not warranted.
Along these lines, in January 2017, the Veteran’s representative indicated that the Veteran should be assigned at least a 20 percent rating under 38 C.F.R. § 4.118, Diagnostic Code 7801 due to the presence of scars associated with underlying soft tissue damage in areas not of the head, face, or neck.  Although the Board acknowledges that the presence of retained foreign bodies could be characterized as underlying soft tissue damage, the Board finds this argument to be unconvincing as the Veteran’s affected areas—either in combination or isolation—did not meet the minimum requirements for a separate rating under Diagnostic Code 7801, 6 square inches (39 square centimeters).
However, the Veteran’s representative also indicated that 1 of the Veteran’s scalp scars should receive a separate compensable rating under 38 C.F.R. § 4.118, Diagnostic Code 7800 for one characteristic of disfigurement.  In this instance, the Board agrees and assigns a separate compensable rating.  In support of this determination, the Board notes that the February 2015 VA examiner indicated that one of the scars of the Veteran’s scalp was a painful, deep, transverse scar, associated with minimal tenderness and a slight depression.  Under Diagnostic Code 7800, a scar of the head, face, or neck with one characteristic of disfigurement is entitled to a 10 percent rating.  Under Note (1) to Diagnostic Code 7800, a depressed surface contour of a scar is recognized as one characteristic of disfigurement.  Accordingly, a separate 10 percent rating is warranted under Diagnostic Code 7800 for 1 of the Veteran’s scalp scars.  Similar to the increased rating for the muscle injury of the left calf, the Board assigns an effective date of March 10, 2010 for the separate compensable rating of the scalp scar as it is factually ascertainable that an increase in disability occurred within a year prior to the claim filing.  38 C.F.R. § 3.400(o).
A separate rating higher than 10 percent under Diagnostic Code 7800 is not warranted in the instant case as the Veteran’s scalp scar did not display 2 or 3 characteristics of disfigurement.  Additionally, it did not result in visible or palpable tissue loss and either gross distortion or asymmetry of one feature or paired set of features, ears, or cheeks.  As such, the Board may only assign a separate 10 percent rating.

REASONS FOR REMAND
Separate Compensable Ratings for Residuals, other than Scars, of Shell Fragment Wounds to the Posterior Chest, the Back, the Neck, the Left Shoulder, and the Right Chest
In January 2017, the Veteran’s representative stated that the February 2015 VA muscle injury examination report noted that the Veteran complained of pain and stiffness in areas in addition to the left calf, including the left upper arm, upper back, and neck region.  The examiner noted that the Veteran had a history of shell fragment wounds to the chest posteriorly, the right chest region, left shoulder region, back, neck, left upper arm, and scalp.  During a physical examination, he identified that the following muscle groups were affected in addition to Muscle Group XI: I, III, VI, XX, and XXI.
After reviewing the claims file, it is unclear whether the Veteran has ever been evaluated by the Agency of Original Jurisdiction regarding residuals other than scars of shell fragment wounds to the posterior chest, the back, the neck, the left shoulder, and right chest.  A review of the Veteran’s March 2011 formal claim form indicates that he sought increased ratings for disabilities associated with retained shrapnel, including scars.  Accordingly, remand is warranted for adjudication of these issues in the first instance
The matter is REMANDED for the following action:
Adjudicate the Veteran’s claims for separate compensable ratings for residuals, other than scars, of shell fragment wounds to the posterior chest, the back, the neck, the left shoulder, and the right chest—including, if applicable, limitations of joints and/or neurological deficits.  If VA examinations and/or medical opinions would be necessary to adjudicate these issues, they should be provided.

 
S. C. KREMBS
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	N.S. Pettine, Associate Counsel 

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