On appeal from the Department of Veterans Affairs (VA) Regional Office in Indianapolis, Indiana
THE ISSUE
Entitlement to a higher initial evaluation for residuals of a
gunshot wound to the right foot, with a third metatarsal
fracture and retained foreign body.
REPRESENTATION
Veteran represented by: Sean Kendall, Attorney
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
K. Hudson, Counsel
INTRODUCTION
The veteran served on active duty from October 1974 to March
1979 and from August 1984 to February 1993. Recent evidence
indicates an additional tour of active duty, from September
to January 2006.
This matter comes before the Board of Veterans' Appeals
(Board) on appeal from a regional office (RO) rating decision
of July 1994, which, in pertinent part, granted service
connection for gunshot wound residuals of the right foot. In
a May 1996 rating decision, the RO assigned a 10 percent
rating to the residuals of a gunshot wound to the right foot,
with a third metatarsal fracture and retained foreign body.
In a May 1998 decision, the Board denied a rating higher than
10 percent for the right foot gunshot wound residuals. The
veteran then appealed to the U.S. Court of Appeals for
Veterans Claims (Court). In an October 1999 memorandum
decision, the Court vacated and remanded the Board's
decision, citing failure to consider the old and new versions
of the pertinent rating criteria. In June 2000, the Board
remanded the case to the RO for additional development. The
appeal was again remanded in February 2004. In a decision
dated in February 2005, the Board denied the appeal. The
veteran then appealed to the U.S. Court of Appeals for
Veterans Claims (Court). In an October 2007 memorandum
decision, the Court set aside the Board's decision as to the
issue of a higher rating for right foot gunshot wound
residuals, and remanded the case for further action. In
turn, the Board remanded the case for the ordered development
in May 2008.
FINDINGS OF FACT
1. Prior to July 19, 2004, the Veteran's residuals of a
gunshot wound to the right foot was manifested by a healed
third metatarsal fracture and retained metallic foreign
bodies, nontender surgical scars, full range of motion,
productive of more than moderate disability.
2. Beginning July 19, 2004, additional findings of
limitation of motion of the toes and tenderness of deep
palpation of the scar areas, not previously shown, together
with other manifestations including a healed third metatarsal
fracture and retained metallic foreign bodies, more closely
approximates moderately severe disability.
CONCLUSIONS OF LAW
1. Prior to July 19, 2004, the criteria for a rating in
excess of 10 percent for residuals of gunshot wound to the
right foot, Muscle Group X, were not met. 38 U.S.C.A. § 1155
(West 2002); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.40, 4.45, 4.46,
4.47, 4.48, 4.49, 4.50, 4.51, 4.52, 4.53, 4.54, 4.55, 4.56,
4.72, 4.73, Diagnostic Code 5310 (1996); §§ 4.7, 4.55, 4.56,
4.73, Diagnostic Code 5312 (2008).
2. Effective July 19, 2004, the criteria for a 20 percent
rating residuals of a gunshot wound to the right foot, Muscle
Group X, have been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002
& Supp. 2008); 38 C.F.R. §§ 4.7, 4.55, 4.56, 4.73, Diagnostic
Code 5312 (2008).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONSI. Notification and Assistance
The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L.
No. 106-475, 114 Stat. 2096 (2000) (codified at 38 U.S.C.A.
§§ 5100, 5102-5103A, 5106, 5107, 5126 (West 2002 & Supp.
2007)), imposes obligations on VA in terms of its duties to
notify and assist claimants.
In a letter dated in March 2004, the RO advised the claimant
of the information necessary to substantiate the claim for a
higher rating, and of his and VA's respective obligations for
obtaining specified different types of evidence. He was
advised of various types of lay, medical, and employment
evidence that could substantiate the claim. See Quartuccio
v. Principi, 16 Vet. App. 183 (2002). Once service
connection has been granted, and an effective date and rating
assigned, the claim has been substantiated, and VA's duty to
notify under 38 U.S.C.A. § 5103(a) is discharged. See
Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Sutton
v. Nicholson, 20 Vet. App. 419 (2006). Further, the notice
requirements enumerated in Vazquez-Flores v. Peake, 22 Vet.
App. 37 (2008) do not apply to initial rating claims. In
this case, service connection was granted, and a disability
rating and effective date assigned, in a July 1994 decision
of the RO. Nevertheless, in May 2008, he was furnished a
letter in which the RO advised the claimant of the
information considered in assigning a specific rating, as
well as information regarding effective dates, and the
specific rating criteria. Thus, the duty to notify has been
satisfied.
With respect to the duty to assist, the veteran's service
treatment records as well as identified VA and private
medical records have been obtained. 38 U.S.C.A. § 5103A; 38
C.F.R. § 3.159. The veteran was afforded VA examinations in
1994, 1997, 2002, and 2004. He failed to report for an
examination scheduled for August 2008, and a supplemental
statement of the case dated in October 2008 informed him that
in addition to written notice, the RO had attempted to
contact him by phone regarding the examination. Later, the
RO learned that the Veteran was deployed until December 2008.
Examinations were scheduled for January 2009, but the Veteran
failed to report, with no reason given. Accordingly, good
cause not having been shown, the Board will decide the case
on the evidence of record.
Thus, the Board finds that all necessary notification and
development possible in light of the Veteran's failure to
report for an examination has been accomplished, and
therefore appellate review may proceed without prejudice to
the appellant. See Bernard v. Brown, 4 Vet. App. 384 (1993).
Significantly, neither the appellant nor his representative
has identified, and the record does not otherwise indicate,
any additional existing evidence that is necessary for a fair
adjudication of the claim that has not been obtained. Hence,
no further notice or assistance to the appellant is required
to fulfill VA's duty to assist the appellant in the
development of the claim. Smith v. Gober, 14 Vet. App. 227
(2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v.
Principi, 15 Vet. App. 143 (2001); see also Quartuccio v.
Principi, 16 Vet. App. 183 (2002).
II. Factual Background
The veteran's service treatment records reflect that on
August 31, 1992, the Veteran was seen after having been
accidentally shot in the right foot with a 22-caliber weapon
two days earlier, while away from the base. He had initially
been treated by a private physician. Initial examination
disclosed a clean entry wound at the 4th toe, and a clean
exit wound behind the great toe. He was hospitalized at a
service department medical facility from August 31 to
September 4, 1992. It was noted that he had sustained
multiple fractures of the third metatarsal. On August 31, he
underwent open irrigation and debridement of the wound, with
removal of retained fragments, and fixation of the third
metatarsal. On September 3, the remaining large bullet
fragment (0.5 cm) was removed, and delayed primary closure of
the wound was performed. At discharge he was reported to be
afebrile with minimal pain in the right foot. The dressing
was clean, dry and intact. He was instructed to keep the
dressing and cast nonweight bearing, clean and dry and was
given 30 days of convalescent leave. An X-ray study of his
right foot in October 1992 showed a shattered third
metatarsal with metallic fragments within the soft tissue.
It was indicated that the fracture was comminuted and was in
the distal right third metatarsal.
The veteran was afforded a VA orthopedic examination in June
1994. It was indicated that his wound had healed well and
had healed without infection or neurologic injury and his
foot was entirely intact. His only current complaint was
that after any type of repetitive use such as jogging or
using a shovel he would notice irritation in the area several
days after the use.
On examination the veteran ambulated with a comfortable heel-
to-toe gait in his bare feet. He was able to walk on his
toes for a distance of 10 feet and walk on his heels for a
distance of 10 feet without difficulty. There were no
postural or fixed deformities of the right foot. The gunshot
wound was noted to have entered on the dorsal side and exited
on the plantar side between the 3rd and 4th toes, just
proximal to the metatarsal heads. The wound was described as
well healed. It was indicated that there seemed to be no
residual neurovascular impairment. The foot was completely
normal to palpation. The contour of the foot was normal.
Range of motion of the foot and ankle were normal compared
with the left side. The impression was gunshot wound from a
pistol of the right foot which was well healed and exhibited
no objective evidence of impairment from the examination.
Outpatient treatment records dated in 1995 show that the
Veteran complained of pain and swelling in the right foot;
however, no tenderness or swelling was shown on examination.
An X-ray in March 1995 disclosed multiple metallic fragments
from prior gunshot wound with a fracture of the 3rd
metatarsal, with no evidence of acute abnormality.
The veteran reported continued irritation, swelling, and
occasional hot shooting pains in the right foot during a
January 1996 RO hearing.
During a September 1997 VA foot examination, the veteran
reported right foot pain after sustained jogging. The
examination revealed normal posture and a normal heel and toe
gait walking for about ten feet. Two surgical scars, one
measuring two centimeters and the other measuring four to
five centimeters over the dorsal surface along the metatarsal
areas, were noted. There was no deformity, tenderness, skin
or vascular changes, or weakness of the regional muscle
groups. Range of motion of all toes was normal and painless.
An X-ray study of the right foot showed scattered metallic
foreign body densities overlying the 1st, 2nd and 3rd
midmetatarsals. There was an old healed third metatarsal
fracture.
The veteran underwent a further VA foot examination in May
2002, during which he reported pain and swelling of the right
foot with vigorous activity. The examination revealed normal
sensation of the feet, with well-healed dorsal incisions from
his previous injury. The veteran had normal flexion at his
second through fifth metatarsophalangeal joints to 60
degrees, as well as extension to 30 degrees. There was no
numbness of tingling in any of the toes and normal sensation.
The examination was also negative for tenderness and pain in
the metatarsal heads and for obvious deformity of the foot.
The veteran was able to do a single straight leg raise on the
foot without any obvious pain or limitation. The examiner
noted that, in view of both the spine and foot symptoms, the
veteran could do moderate activities, but vigorous activities
were significantly limited.
In a September 2002 statement, C. Bash, M.D., stated that the
Veteran had a back injury with pain radiating to his right
foot. He attributed foot pains to sciatica.
The veteran underwent a further VA feet examination in July
2004, during which he described right foot pain as hot, and
stated the pain occurred with activities such as lifting
objects over fifty pounds, walking over one mile, or standing
one hour. He also reported swelling on the dorsal aspect of
the right foot and noted that he could not move the foot at
all during flare-up periods. He stated that he was currently
working as a teacher and had difficulty moving audio and
video equipment. The examination revealed a two centimeter
dorsal incision over the second metatarsal, a four centimeter
dorsal incision over the fourth metatarsal, and a one-half
centimeter plantar incision ball under the second metatarsal.
The foot was otherwise normal in appearance. Range of motion
of the right ankle revealed dorsiflexion to zero degrees with
no pain, plantar flexion to 50 degrees with no pain,
inversion to 35 degrees with no pain, and eversion to 15
degrees with no pain. Range of motion studies of the toes
revealed right great metatarsophalangeal flexion to 20
degrees and extension to 10 degrees, right second
metatarsophalangeal flexion to 20 degrees and extension to 10
degrees, right third metatarsophalangeal flexion to 20
degrees and extension to 20 degrees, right fourth
metatarsophalangeal flexion to 20 degrees and extension to 20
degrees, and right fifth metatarsophalangeal flexion to 20
degrees and extension to 20 degrees. The normal range of
motion for all of these movements was noted to be 40 degrees,
which was obtained in all corresponding tests in the left
foot. Range of motion of the right interphalangeal great toe
flexion to zero degrees actively and to 45 degrees passively,
with normal range of motion noted to be to 90 degrees, which
was obtained in the left toe. Right proximal interphalangeal
second toe flexion to was zero degrees actively and to 35
degrees passively; normal range of motion noted to be to 35
degrees, which was obtained in the left toe. Right proximal
interphalangeal motion in the third, fourth, and fifth toes
was to 35 degrees actively and passively, noted to be normal.
The examiner noted that all motions were performed without
pain. There was no evidence of edema, weakness, or
impairment of propulsion thrust in walking, but the examiner
did note mild tenderness over incision sites on the right
foot on deep palpation. The veteran could walk for up to a
mile and stand for up to an hour. No other abnormalities of
the feet were noted on examination. X-rays revealed metallic
foreign bodies and an old fracture deformity of the right
third metatarsal, with no acute abnormalities.
As noted above, the Veteran did not report for scheduled
examinations concerning his condition. He was apparently
deployed to Iraq at the time of the first of these
examinations, and no response was received as to the second,
although he had reportedly returned from deployment.
III. Analysis
Disability evaluations are determined by the application of a
schedule of ratings which is based on average impairment of
earning capacity. Separate diagnostic codes identify the
various disabilities. 38 U.S.C.A § 1155; 38 C.F.R. Part 4.
Although the disability must be considered in the context of
the whole recorded history, including service medical
records, the present level of disability is of primary
concern in determining the current rating to be assigned.
See 38 C.F.R. § 4.2 (2007); Francisco v. Brown, 7 Vet. App.
55 (1994); Schafrath v. Derwinski, 1 Vet. App. 589 (1991).
If the disability has undergone varying and distinct levels
of severity throughout the entire time period the increased
rating claim has been pending, staged ratings may be
assigned. See Hart v. Mansfield, 21 Vet. App. 505 (2007);
Fenderson v. West, 12 Vet. App. 119 (1999).
Generally, injuries affecting gunshot and shell fragment
wounds are evaluated as muscle injuries, under 38 C.F.R. §
4.73. The criteria for evaluating muscle injuries were
revised during the pendency of this appeal, effective July 3,
1997. Where a law or regulation changes during the course of
an appeal, the version most favorable to an appellant
applies, except that the revised version can be applied no
earlier than the effective date of that change. VAOPGCPREC
3-2000 (2000).
Under both sets of criteria, Diagnostic Codes 5301-5323
explain the function and location of 23 muscle groups for
which rating criteria are provided. Ratings are assigned
under each code based on whether the disability resulting
from muscle injury is slight, moderate, moderately severe, or
severe. To determine the severity of the injury, it is
necessary to look at the type of injury, history and
complaint, and objective findings. 38 C.F.R. § 4.56 (1996);
38 C.F.R. § 4.56(d) (2008).
Under both sets of criteria, Diagnostic Code 5310 concerns
Muscle Group X, which encompasses the intrinsic muscles of
the foot. Functions of these muscles include movements of
the forefoot and toes and propulsion thrust in walking.
Under this section, a 10 percent evaluation is warranted for
moderate disability of the muscles of Group X, while a 20
percent evaluation is in order for moderately severe
disability, and a 30 percent rating is warranted for severe
disability. 38 C.F.R. § 4.73, Code 5310.
Additionally, under both the new and old regulations, the
cardinal signs and symptoms of muscle disability for VA
purposes are loss of power, weakness, lowered threshold of
fatigue, fatigue-pain, impairment of coordination, and
uncertainty of movement. 3 8 C.F.R. § 4.54 (1996), § 4.56(c)
(2008).
Old Criteria
Under the prior rating criteria, "slight" (insignificant)
disability of muscles reflects a simple wound of muscle
without debridement, infection or effects of laceration.
Service department record of wound of slight severity or
relatively brief treatment and return to duty, and healing
with good functional results. No consistent complaint of
cardinal symptoms of muscle injury or painful residuals.
Objective findings consist of 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" muscle disability was characterized by a
through-and-through or deep penetrating wound of relatively
short track by single bullet or a small shell or a shrapnel
fragment and there is an absence of explosive effect of high
velocity missile and of residuals of debridement or of
prolonged infection. There is a service department record or
other sufficient evidence of hospitalization in service for
treatment of the wound. There is record in the file of
consistent complaint from first examination forward 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 injured muscles. The
objective findings include entrance and (if present) exit
scars linear or relatively small and so situated as to
indicate relatively short track of the missile through muscle
tissue with signs of moderate loss of deep fascia or muscle
substance or impairment of muscle tonus and of definite
weakness or fatigue in comparative tests. 38 C.F.R. §
3.56(b) (1996).
"Moderately severe" disability of muscle is contemplated
when there is a through-and-through or deep penetrating wound
by high velocity missile of small size or large missile of
low velocity with debridement or with prolonged infection or
with sloughing of soft parts and intramuscular cicatrization.
There is a service department record or other sufficient
evidence showing hospitalization for a prolonged period in
service for treatment of a wound of severe grade. There is
record in the file of consistent complaint from first
examination forward of one or more of the cardinal symptoms
of muscle wounds. The objective findings include entrance
and (if present) exit scars relatively large and so situated
as to indicate track of the missile through important muscle
groups. There are indications on palpation of moderate loss
of deep fascia or moderate loss of muscle substance or
moderate loss of normal firm resistance of muscles compared
with the sound side. 38 C.F.R. § 4.56(c) (1996).
"Severe" disability of muscles is contemplated when there
is a through-and-through or deep penetrating wound due to a
high velocity missile or large or multiple low velocity
missiles or the explosive effect of high velocity missiles or
a shattering bone fracture with intensive debridement or
prolonged infection and sloughing of soft parts and
intramuscular binding and cicatrization. The objective
findings include extensive ragged, depressed and adherent
scars of the skin so situated as to indicate wide damage to
muscle groups in the track of the missile. An X-ray may show
minute multiple scattered foreign bodies indicating spread of
intramuscular trauma and explosive effect of the missile.
Palpation shows moderate or extensive loss of deep fascia or
of muscle substance. There are soft or flabby muscles in the
wound area. The muscles do not swell and harden normally in
contraction. Tests of strength or endurance compared with
the sound side or of coordinated movement show positive
evidence of severe impairment of function. 38 C.F.R. §
4.56(d).
The prior regulations also included a number of regulations
pertaining to the analysis and evaluation of muscle injuries,
in 38 C.F.R. §§ 4.47-4.54. These were omitted when the
regulations were revised, on that basis that they consisted
largely of background medical information, and were not
appropriate for a regulation. 62 Fed. Reg. 30235-30240 (June
3, 1997). The Board observes that at the time these
regulations were promulgated, there was not the strict
demarcation between medical and adjudicatory functions and
expertise as presently exists. See, e.g, Espiritu v.
Derwinski, 2 Vet.App. 492 (1992) (a layman is not competent
to offer a diagnosis or medical opinion); Jones v. Principi,
16 Vet. App. 219, 225 (2002) (Board must provide a medical
basis other than its own unsubstantiated conclusions to
support its ultimate decision); Colvin v. Derwinski,
1 Vet.App. 171 (1991) (Board is prohibited from making
conclusions based on its own medical judgment).
Nevertheless, prior to June 3, 1997, they were in fact
regulations. As pointed out by the Court, one of these
regulations provided that "[t]hrough and through wounds and
other wounds of the deeper structures almost invariably
destroy parts of muscle groups and bring about intermuscular
fusion and binding by cicatricial tissue and adherence of
muscle sheath." 38 C.F.R. § 4.47 (1996) (emphasis added).
Further, "[a]fter prolonged exertion the stresses and
strains due to these disarrangements bring about fatigue and
pain, thus further interfering with the function of the
part." Id. The Court also pointed out that there was no
evidence of whether the veteran had intermuscular scarring,
and directed the Board to correctly apply the law, and to
gather additional medical evidence of intermuscular scarring.
In further discussing scarring in the muscles, the old
regulations provided: "Shrapnel and shell fragments and
high velocity bullets may inflict massive damage upon muscles
with permanent residuals. The principal symptoms of
disability from such muscle injuries are weakness, undue
fatigue-pain, and uncertainty or incoordination of movement.
The physical factors are intermuscular fusing and binding,
and welding together of fascial planes and aponeurotic
sheaths. In those scar-bound muscles strength is impaired,
the threshold of fatigue is lowered and delicate coordination
is interfered with." 38 C.F.R. § 4.50 (1996).
The Veteran failed to report for an examination, to determine
whether he has intermuscular scarring. However, on the 1994
examination, the Veteran's wound was well-healed, and
completely normal to palpation. In 1997, there was no
weakness of the regional muscle groups, and range of motion
of all toes was normal and painless. The 2002 examination
disclosed well-healed scars. Range of motion was normal,
there was no tenderness or pain, and there was no obvious
deformity of the foot. The 2004 examination disclosed the
foot to be normal except for incision scars. There was no
additional limitation on repetitive motion. There was no
evidence of weakness or impairment of propulsion thrust in
walking, and other than tenderness (discussed below) no
abnormalities in the feet were noted. There was no weakness.
Thus, there is no positive evidence of intermuscular
scarring. Examinations have stated that there is no
weakness, including on additional limitation on repetitive
motion. Weakness is noted to be one of the principal
symptoms of muscular scarring. In addition, the wound was
normal to palpation, whereas the pertinent regulations
indicate that physical manifestations are intermuscular
fusing and binding, adherence of muscle sheath, and welding
together of fascial planes and aponeurotic sheaths.
Moreover, under those prior regulations, "disabilities due
to residuals of muscle injuries will be evaluated on the
basis laid down in §§ 4.55 and 4.56 and on the type of
disability pictures appended to the ratings listed." 38
C.F.R. § 4.54 (1996). "The type of disability pictures are
based on the cardinal symptoms of muscle disability
(weakness, fatigue, pain, uncertainty of movement) and on the
objective evidence of muscle damage and the cardinal signs of
muscle disability (loss of power, lowered threshold of
fatigue and impairment of coordination)." Id.
This suggests that 38 C.F.R. § 4.47 should not operate as a
presumption of intermuscular scarring, where there is a
through and through wound. In this regard, it points to
38 C.F.R. § 4.56 as the primary regulation for rating muscle
injuries. Under 38 C.F.R. § 4.56, a through and through
wound is specifically identified as a type of wound that may
constitute moderate injury, which would not be the case if a
through and through wound was presumed to cause intermuscular
cicatarization, a criteria listed for moderately severe
disability. See also 38 C.F.R. § 4.72, noting that a
"through-and-through injury, with muscle damage, is always
at least a moderate injury for each group of muscles
damaged." Moreover, the intermuscular scarring is listed in
38 C.F.R. § 4.56 under the "type of injury," rather than
under "objective findings." The inservice hospital report
did not disclose any intermuscular scarring, suggesting that
it was not that type of injury.
Therefore, the Board finds that the prior regulation,
38 C.F.R. § 4.7, does not require that a through and through
wound be considered to be moderately severe, absent some
positive evidence of intermuscular cicatarization, which has
not been shown in this case.
New Criteria
"Slight" disability of muscles results from a simple wound
of muscle without debridement or infection. There is service
department record of superficial wound with brief treatment
and return to duty, and of healing with good functional
results. There are no cardinal signs or symptoms of muscle
disability, minimal scar, and no evidence of fascial defect,
atrophy, or impaired tonus. There is no impairment of
function or metallic fragments retained in muscle tissue.
38 C.F.R. § 4.56(d)(1).
"Moderate" disability of the muscles is shown by through
and through or deep penetrating wounds of short track by a
single bullet, small shell, or shrapnel fragment, without the
explosive effect of a high velocity missile, residuals of
debridement or prolonged infection. The history of a
moderate muscle disability includes service department
records of in-service treatment for the wound and a record of
consistent complaint of one or more of the cardinal signs and
symptoms of muscle disability, particularly a lowered
threshold of fatigue after use which affects the particular
functions controlled by the injured muscles. Objective
findings include small or linear entrance and (if present)
exit scars which indicate a short track of the missile
through muscle tissue, some loss of deep fascia or muscle
substance, impairment of muscle tonus and loss of power, or a
lowered threshold of fatigue when compared to the sound side.
38 C.F.R. § 4.56(d)(2).
A "moderately severe" disability of the muscles is shown by
a through and through or deep penetrating wound, by a small
high velocity missile or a large low velocity missile, with
debridement, prolonged infection, or sloughing of soft parts,
and intermuscular scarring. History and complaints of this
injury include a record of hospitalization for a prolonged
period for treatment of a wound, a record of consistent
complaint of cardinal signs and symptoms of muscle
disability, and, if present, evidence of an inability to keep
up with work requirements. Objective findings of a
moderately severe muscle wound are entrance and (if present)
exit scars indicating the track of the missile through
important muscle groups; indications on palpation of moderate
loss of deep fascia, muscle substance, or normal firm
resistance of muscles compared with the sound side; and tests
of strength and endurance compared with the sound side
demonstrating positive evidence of impairment. 38 C.F.R. §
4.56(d)(3).
"Severe" disability consists of 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. Furthermore, objective
findings of a severe disability include the following:
ragged, depressed, and adherent scars that indicate wide
damage to the muscle groups in the missile track; palpation
shows loss of deep fascia or muscle substance, or soft flabby
muscles in the wound area; muscles swell and harden
abnormally in contraction; and tests of strength, endurance,
or coordinated movements in comparison to the corresponding
muscles of the uninjured side indicate severe impairment of
function. 38 C.F.R. § 4.56. If present, the following are
also signs of severe muscle disability: (1) X-ray evidence of
minute multiple scattered foreign bodies indicating
intermuscular trauma and explosive effect of the missile; (2)
adhesion of a 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 the bone
is normally protected by muscle; (3) diminished muscle
excitability to pulsed electrical current in
electrodiagnostic tests; (4) visible or measurable atrophy;
(5) adaptive contraction of an opposing group of muscles; (6)
atrophy of muscle groups not in the tract of the missile,
particularly of the trapezius and serratus in wounds of the
shoulder girdle; and (7) induration or atrophy of an entire
muscle following simple piercing by a projectile. 38 C.F.R.
§ 4.56.
While the Veteran has X-ray evidence of multiple foreign
bodies in the soft tissues, none of the other criteria for a
severe muscle disability are suggested; in particular, there
is no evidence of impairment of muscle function, let alone
the severe impairment contemplated by this rating.
Both New and Old Criteria
The Veteran's disability has been rated as moderate. With
respect to the injury, it was a through-and-through wound of
very short track, entering at the 4th toe, and exiting behind
the great toe, and consisted of a single bullet. There is no
evidence of explosive effect of high velocity missile or
prolonged infection. A question has arisen, however,
regarding whether debridement of the wound is at least a
moderately severe injury. The rating criteria provide that
for "slight" disability, the wound was "without
debridement"; for moderate disability, an "absence of"
(old criteria) or "without" (new criteria) "residuals of
debridement"; and for moderately severe disability, "with
debridement." As can be seen, only the "slight" and
"moderately severe" criteria categorically require that
debridement of the wound did or did not occur. The criterion
for "moderate" disability, in contrast, is less specific,
requiring that there be no "residuals of debridement"
(emphasis added). Thus, the Board interprets this to mean
that a history of debridement of the wound, alone, is not
dispositive of moderately severe disability. No specific
residuals of debridement have been identified.
With respect to the treatment of the injury, the
hospitalization in this case of 5 days was not prolonged.
Both "moderate" and "moderately severe" disabilities
contemplate the presence 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 injured muscles.
For moderate disability, entrance and (if present) exit scars
linear or relatively small and so situated as to indicate
relatively short track of the missile through muscle tissue
with signs of moderate loss of deep fascia or muscle
substance or impairment of muscle tonus and of definite
weakness or fatigue in comparative tests. For moderately
severe, entrance and (if present) exit scars are relatively
large and so situated as to indicate track of the missile
through important muscle groups. There are indications on
palpation of moderate loss of deep fascia or moderate loss of
muscle substance or moderate loss of normal firm resistance
of muscles compared with the sound side.
As noted above, the track in this case was short, with the
bullet entering the top of the foot at the 4th toe, and out
the bottom behind the great toe. The entrance and exit
wounds were not extensive; indeed, the wound had to be
enlarged during the course of surgery to gain access to the
retained metallic fragments and shattered metatarsal bone.
As to objective findings, prior to the 2004 examination, the
examinations disclosed retained metallic fragments, a healed
fracture, and well healed scars. There was no evidence of
weakness. The VA examinations have not disclosed any
neurologic injury as a result of the gunshot wound and range
of motion of his right foot and ankle were normal. The
evidence does not indicate that the gunshot wound of the
veteran's right foot resulted in more than moderate
disability. While the Veteran has subjective complaints of
pain, range of motion testing, however, revealed no pain in
the individual joints, and there was no decrease in function
on repetitive movements. See DeLuca v. Brown, 8 Vet. App.
202, 204-07 (1996); 38 C.F.R. §§ 4.40, 4.45.
There is also no evidence of severe unilateral flat foot,
with objective evidence of marked deformity, pain on
manipulation and use accentuated, an indication of swelling
on use, and characteristic callosities (20 percent under
Diagnostic Code 5276); unilateral claw foot, with all toes
tending to dorsiflexion, limitation of dorsiflexion of the
ankle to a right angle, shortened plantar fascia, and marked
tenderness under metatarsal heads (20 percent under
Diagnostic Code 5278); or a moderately severe foot injury (20
percent under Diagnostic Code 5284). Thus, prior to July 19,
2004, the preponderance of the evidence is against the claim,
the benefit-of-the-doubt does not apply, and the claim must
be denied. 38 U.S.C. § 5107(b); see Ortiz v. Principi, 274
F.3d 1361 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App.
49 (1990).
However, the July 2004 examination disclosed symptoms not
previously shown. There was limitation of motion in all of
the metatarsal joints of the toes, and three of the proximal
interphalangeal (PIP) joints. In addition, there was mild
tenderness over the incision sites of the right foot on deep
palpation. This is the first objective indication of
functional impairment resulting from the Veteran's gunshot
wound. In view of the documented retained metallic
fragments, and fracture residuals, the Board finds that
beginning July 19, 2004, the Veteran's symptomatology may be
considered to more closely approximate moderately severe
disability, under both the new and old criteria.
Accordingly, a higher, 20 percent rating is warranted as of
that date. In reaching this determination, the benefit-of-
the-doubt rule has been applied. 38 U.S.C. § 5107(b); see
Ortiz, supra; Gilbert, supra.
ORDER
Prior to July 19, 2004, entitlement to an initial evaluation
in excess of 10 percent for residuals of a gunshot wound to
the right foot is denied.
Beginning July 19, 2004, entitlement to an evaluation of 20
percent for residuals of a gunshot wound to the right foot is
granted.
