Veterans Medical Advisor

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                         Case from Bureau of Veterans Appeals

Dr. Bash is a veteran of


Citation Nr: 0918959

Decision Date: 05/20/09 | Archive Date: 05/26/09

DOCKET NO. 95-20 275

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 CONCLUSIONS I. 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.




K. PARAKKAL

Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs

drbash@doctor.com

______________________

Craig N. Bash M.D., M.B.A.

Neuro-Radiologist and Associate Professor

Uniformed Services School of Medicine

NPI/UPIN-1225123318

4938 Hampden Lane
Bethesda, Md 20814

Cell/Text 240-506-1556
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