Veteranclaims’s Blog

December 19, 2010

Muscle Damage, Beyrle v. Brown, citing Myler

Excerpt from Decision below:

“In Myler, a VA medical examination had found at the time of the
prior RO decision:
Penetrating GSW [gunshot wound], right thigh. . . . [R]ight leg with
residuals of penetrating GSW, right mid thigh, without atrophy, nerve,
or vessel injury. . . .
Apparently entered at the lower border of the right hamstring group,
coursed anteriorly thru the lateral border of the quadraceps [sic]
group at mid rt. thigh. No depression, no evidence of muscle atrophy
. . . . [F]unction, right thigh muscle not impaired by GSW. No nerve or vessel injury. Id. at 572 (emphasis added). The Court held, based on this diagnosis and 38 C.F.R. 4.72 and 4.56(b), that the veteran was entitled to “a rating
`of at least a moderate degree’ . . . of disability for the `through and
through’ gunshot wound to [the] muscle”. Id. at 574. Hence, the Court in
Myler interpreted 38 C.F.R. 4.72 and 4.56(b) as providing that “a
`through and through’ [apparently muscle] wound by a `single bullet or
small shell or shrapnel fragment’ was to be rated as of at least moderate
degree of disability” regardless of whether the muscle sustained any
permanent damage. Ibid.”
==================================================

Skip navigation
U.S. Court of Appeals for Veterans Claims
View | Download | Details Previous document | Next document
. 94-688
BEYRLE1.688
Search Terms: AUTOMATIC UNITED STATES COURT OF VETERANS APPEALS

No. 94-688

Joseph R. Beyrle, Sr., Appellant,

v.

Jesse Brown,

Secretary of Veterans Affairs, Appellee.

On Appeal from the Board of Veterans’ Appeals

(Decided September 6, 1996 )

Joseph R. Beyrle, Sr., pro se.

Mary Lou Keener, General Counsel; Ron Garvin, Assistant General
Counsel; David W. Engel, Deputy Assistant General Counsel; and Adam K.
Llewellyn were on the brief for the appellee.

Before NEBEKER, Chief Judge, and HOLDAWAY and STEINBERG, Judges.

STEINBERG, Judge: The pro se appellant, World War II veteran Joseph R.
Beyrle, Sr., appeals an April 29, 1994, Board of Veterans’ Appeals (BVA or
Board) decision denying an increased (compensable) rating for residuals of
a gunshot wound of the right upper extremity [hereinafter residuals] and
finding no clear and unmistakable error (CUE) in a May 26, 1947,
Department of Veterans Affairs (VA) regional office (RO) final decision.
Record (R.) at 4-12. For the reasons that follow, the Court will vacate
the Board decision, reverse as to one finding, and remand the case to the
Board for readjudication of both claims.

I. Background

The veteran served on active duty in the United States Army from
September 1942 to November 1945 (R. at 18), and was held as a prisoner of
war (POW) by the German government from June 1944 until January 1945 (R.
at 41, 47, 49, 123, 241). Service medical records do not contain any
notations with respect to the veteran’s having received a gunshot wound to
his upper right shoulder. See R. at 22-47. An undated “Personal History”
related by the veteran indicated that he had suffered an injury to his
upper right arm while a POW. R. at 32.
An April 1947 VA physical examination report noted that, although the
veteran’s complaints at that time did not include right-shoulder residuals (
R. at 50), the report noted “two elliptical shaped, slightly elevated,
well healed cicatrices” of the “right deltoid area” which were “not bound
down” and had “no disturbance of underlying muscular function” and were ”
the residual of superficial through and through bullet wound” which had
been received while he was in the German prison camp. R. at 54. The
diagnosis included “[c]icatrices, healed, right deltoid area, residual
through and through bullet wound”. R. at 56. In a May 1947 decision, a
VA regional office (RO) granted service connection for “scars, right
deltoid area” and assigned a 0% rating. R. at 59.
At a May 1949 VA examination, the veteran’s complaints did not
include residuals in the deltoid area, and the diagnosis did not include a
reference to the scar in the deltoid area or any residuals of the deltoid
area. R. at 68, 73. A neuropsychiatric examination report of the same
date noted that the veteran had been “shot in the upper arm in the P.O.W.
camp”. R. at 74. Written notes accompanying the May 1949 examination
reported “normal range of motion” as to the veteran’s right shoulder. R.
at 77. A June 1949 RO decision noted that the current VA examination did
not show any change of conditions affecting, inter alia, the previously
awarded 0% rating for “wound[ ], slight, r[ight] deltoid”. R. at 82-83.
In April 1952, the veteran sought an increased rating (R. at 87) and
provided a March 1952 medical report from Dr. Teifer (R. at 89). The
report stated: “Examination of the right shoulder shows a penetrating
type of scar which is approximately one inch in diameter, indicating that
the foreign body penetrated the [d]eltoid [m]uscle of the right
shoulder. [The veteran] has pain on motion of the affected shoulder.” R.
at 89. On a June 1952 VA medical examination report, the veteran stated
that his present complaints included soreness to his right shoulder and
arm. R. at 91. The physician noted the existence of two “10cm flat
scars over [the] r[igh]t deltoid lateral to r[igh]t shoulder” and reported
: “[The veteran h]as no muscle atrophy in [his] shoulder but alleges pain
on extremes of motion. [He h]as full motion [of his] r[igh]t shoulder [
with] no crepitation.” R. at 93. A September 1952 RO decision again
denied an increase in the assigned 0% disability rating. R. at 104.
A VA medical examination report in February 1982 recorded the
veteran’s complaints of, inter alia, “pain in arms [and] hands”. R. at
108. An examination of the musculoskeletal system included a reference to
two “faint[,] [1-inch,] pliable[,] non-adherent scars of [his] upper r[igh]
t arm over deltoid muscle[, three inches] below [the] acromion.” R. at
110. (Acromion is “the lateral extension of the spine of the scapula,
projecting over the shoulder joint and forming the highest point of the
shoulder”, Dorland’s Illustrated Medical Dictionary 20 (28th ed. 1994) [
hereinafter Dorland’s].) The report noted a normal range of motion of
the shoulders and elbows with “no loss of muscle tone or strength”. R. at
110. An October 1982 RO decision denied, inter alia, an increased rating
for residuals of right deltoid-area scars. R. at 118-19.
A March 1983 VA physical examination report noted a 2 -inch diagonal
scar on the veteran’s right arm “over [the] deltoid [with a inch] bridge
of unscarred skin (thru [and] thru wound)”. R. at 153. A VA x-ray report
of the veteran’s right shoulder in September 1983 revealed “proliferative
changes at the acromio-clavicular [(AC)] joint”. R. at 136-37. A VA ex-
POW protocol consultation report of the same month included a diagnosis of
“[s]car[,] SFW [shell fragment wound of the] r[igh]t arm over r[igh]t
deltoid”. R. at 143. A December 1983 RO decision, inter alia, denied an
increased rating for residuals of the deltoid-area scar. R. at 159-64.
In May 1991, the veteran’s representative submitted a letter to the
RO claiming CUE in the May 1947 RO decision and subsequent decisions as to
the veteran’s right deltoid. R. at 191-93. In its May 1992 decision, the
RO, noting that the provisions of 38 C.F.R. 4.56(b) and 4.72 had been
considered in its 1947 RO decision, denied the veteran’s CUE claim. R. at
199-201. At a November 1992 hearing on appeal to the Board, the veteran’s
representative argued that the evidence showed that the veteran had a
through-and-through gunshot wound and that the RO had failed to properly
apply the regulations which “required a rating for moderate injury for
muscle group of the deltoid and [that its] failure to do so was
prejudicial to the veteran”. R. at 235. A February 1993 Board decision,
inter alia, remanded the CUE claim to the RO for it to provide the veteran
with “a VA special orthopedic examination to determine the nature and
extent of the veteran’s service-connected residuals of a gunshot wound of
the right deltoid.” R. at 260. The Board further directed:
The report of examination should contain a complete account of all
manifestations of residuals of a gunshot wound to the right deltoid
found to be present. It is requested that the examiner review the
various examination reports on file pertaining to the right deltoid
wound and attempt to reconcile the findings so as to determine
whether the wound resulted in muscle damage or was superficial and
without muscle damage. . . . The report of examination should
contain a complete rationale for all conclusions and opinions
expressed.
R. at 260.
The veteran submitted a May 1993 private orthopedic examination
report prepared by Dr. Mead; the report related that the veteran had been
shot in the right shoulder while he was a German POW, that the bullet ”
went in the front [of his shoulder] and came out the back”, and that the
veteran had stated that “he has had trouble with both shoulders ever since
that episode”. R. at 263. Examination reportedly revealed “quite a bit
of shoulder girdle atrophy” and two “scar[s, each 1½-inch long] in the
area of the lateral aspect of the [right]” shoulder”. Ibid. The report
stated:
It appears [that the bullet] would go through a portion of the
deltoid muscle. His shoulder has forward flexion to about 110
degrees, but has pain at the extremes. . . . Any movement of the
shoulder causes him quite a bit of discomfort. He has AC arthritic
change as well. He has no gross clinical instability of the shoulder
. . . . There[ ]does appear to be some generalized weakness of the
shoulder, especially with internal external rotation of the rotator
cuff but equal right versus left. . . . He has about 3/4’s now [sic]
mobility of the shoulder in all plains [sic]. He has tenderness over
the AC joint as well.
R. at 263-64. The impression was “[r]emote gunshot wound [of the] right
shoulder”, “[o]steoarthritis of the shoulders and [AC] joints[,]” and “[m]
ild joint contractures of the
capsule”. R. at 264. The physician noted that he thought “with the
treatment necessary that [the veteran] would lose some deltoid function[,]”
that “[i]t appeared[,] however[,] to involve only about 1/3[ ] of the
deltoid muscle[,]” and that the veteran “may always after these [capsules]
healed developed [sic] a sympathetic degree of contractures bilaterally”.
Ibid. As to the question of how much of the veteran’s condition was due
to the gunshot wound and how much to “wear and tear”, the physician noted
that it was “very hard” for him to state but that he believed “the gunshot
did affect the deltoid function to a degree” and that the veteran ”
definitely has some weakness and arthritic change in the shoulder”. Ibid.
On a July 1993 examination report, a VA physician noted that the
veteran’s scar in the deltoid area “is a thin, white line” and “is an
extremely superficial wound”. R. at 268. He reported:
[The scar] is at a point of entry, point of exit approximately no
more than three inches in length with an island of normal tissue in
between. This is, to all intents and purposes, a penetration of the
subcutaneous tissue. In exit, a few muscle fibers may have been
severed but the degree of that injury is, I believe, minimal.

. . . .

No evidence of pain in the wound itself, but there is some
degenerative disease in the shoulder. This may be degenerative
disease unassociated with any injuries that he may have sustained in [
WWII].
R. at 268. The diagnosis included “no muscle wasting of the deltoid” and ”
no significant degeneration or loss of tissue or penetrating injury
causing severe loss of function of the deltoid muscle”. Ibid. The
physician noted that “the muscle injury is so small that I do not believe
it has a serious bearing on the deltoid muscle or the use of that shoulder
.” Ibid. The examination “show[ed] minimal invasion of the deltoid muscle
“. Ibid. A VA x-ray report of the same date for the right shoulder
revealed: A “prominent caudal spurring at the distal clavicle which could
impinge the rotator cuff as could the spur formation at the acrominion
process. However, no other specific lesion is detected.” R. at 269. The
impression was “spur development at the right AC joint and rotator cuff
impingement is possible.” Ibid.
In July 1993, an RO decision on remand denied an increased rating for
the residual of the right-shoulder gunshot wound and denied the CUE
claim. R. at 272-75. In August 1993, the RO issued a Supplemental
Statement of the Case identifying the CUE claim as the issue on appeal. R.
at 278. A September 1993 letter from the veteran to the RO stated that he
disagreed with the RO’s July 1993 decision “denying service connection for
a through[-]and[-]through bullet wound to upper right shoulder”, and noted
that he was planning to “file a statement of [the] case [sic] through my
service representative”. Supplemental R. at 4. (This letter constitutes
the veteran’s Notice of Disagreement as to the compensable-rating
residuals claim now on appeal. See Beyrle v. Brown, 9 Vet.App. 24, 28-29 (
1996).)
In the April 1994 BVA decision here on appeal, the Board found that
during his active military service “the veteran sustained a gunshot wound
to the right shoulder” and that the “bullet pierced the skin of the
shoulder, followed a short track between the skin and the deltoid muscle
and exited.” R. at 6. The Board also found that there was no “through
and through wound of the right deltoid muscle”; that there was “no more
than a slight injury to the right deltoid muscle”; that the “right
shoulder is currently manifest by small asymptomatic scars”; and that
referral for consideration of extraschedular ratings under 38 C.F.R. 3.
321(b)(1) (1993) was not warranted. R. at 6. The Board concluded that
the criteria for a compensable rating for residuals had not been met, and
that previous RO decisions assigning noncompensable ratings for residuals
did not contain CUE. R. at 6.

II. Analysis

A. CUE as to Prior RO Decisions

Section 3.105(a) of title 38, Code of Federal Regulations, provides:
Where evidence establishes [CUE], the prior decision will be reversed
or amended. For the purpose of authorizing benefits, the rating or
other adjudicative decision which constitutes a reversal of a prior
decision on the grounds of [CUE] has the same effect as if the
corrected decision had been made on the date of the reversed
decision.
38 C.F.R. 3.105(a) (1995). A claim of CUE is a collateral attack
on a final RO decision. See Smith (William) v. Brown, 35 F.3d 1516,
1521 (1994); Duran v. Brown, 7 Vet.App. 216, 223-34 (1994).
In Russell v. Principi, this Court defined CUE as follows:
Either the correct facts, as they were known at the time, were not
before the adjudicator or the statutory or regulatory provisions
extant at the time were incorrectly applied. . . . [CUE] is the sort
of error which, had it not been made, would have manifestly changed
the outcome . . . [, an error that is] undebatable so that is can be
said that reasonable minds could only conclude that the original
decision was fatally flawed.
Russell, 3 Vet.App. 310, 313 (1992) (en banc).
For a claim of CUE to be reasonably raised, the claimant must provide
some degree of specificity as to what the alleged error is, and, unless it
is the kind of error that, if true, would be CUE on its face, “persuasive
reasons must be given as to why the result would have been manifestly
different but for the alleged error”. Fugo v. Derwinski, 6 Vet.App. 40,
44 (1993). On appeal of a BVA determination that there was no CUE in a
prior RO decision, the Court’s review is limited to determining whether
the Board’s conclusion is “arbitrary, capricious, an abuse of discretion,
or otherwise not in accordance with law” (38 U.S.C. 7261(a)(3)(A)) and
whether it is supported by an adequate statement of “reasons or bases” (38
U.S.C. 7104(d)(1)). See Eddy v. Brown, 9 Vet.App. 52, 57 (1996); Glynn
v. Brown, 6 Vet.App. 523, 530-31 (1994); Damrel v. Brown, 6 Vet.App. 242,
246 (1994); Russell, 3 Vet.App. at 315.
The Board is required by 38 U.S.C. 7104(d)(1) to provide a written
statement of the reasons or bases for its findings and conclusions on all
material issues of fact and law presented on the record, including its
denial of any assistance specifically sought by the claimant. See Godwin
v. Derwinski, 1 Vet.App. 419, 427 (1991). The statement must be adequate
to enable a claimant to understand the precise basis for the Board’s
decision, as well as to facilitate review in this Court. See Simon v.
Derwinski, 2 Vet.App. 621, 622 (1992); Masors v. Derwinski, 2 Vet.App. 181,
188 (1992); Gilbert v. Derwinski, 1 Vet.App. 49, 57 (1990). To comply
with this requirement, the Board must analyze the credibility and
probative value of the evidence, account for the evidence which it finds
to be persuasive or
unpersuasive, and provide the reasons for its rejection of all material
evidence favorable to the veteran. See Caluza v. Brown, 7 Vet.App. 498,
506 (1995), aff’d, 78 F.3d 604 (Fed. Cir. 1996) (table); Gabrielson v.
Brown, 7 Vet.App. 36, 39-40 (1994); Gilbert, supra.
The veteran asserts CUE in prior final RO decisions of May 1947, June
1949, September 1952, October 1982, and December 1983. R. at 191-92, 235;
see also Brief (Br.) at 17. He asserts, in effect, that the evidence of
record before the RO at the time of each of these prior decisions,
specifically “the April 1947 and July 1952 VA examinations, established
through[-]and[-]through gunshot wound injury of his right deltoid
musculature” and that he was therefore entitled to a rating for moderate
injury to the right deltoid muscle pursuant to “38 C.F.R. [] 4.56(b)” and ”
38 C.F.R. [] 4.72″. R. at 192; see R. at 234-35; see also Br. at 17, 18.
The veteran’s contention that the RO misapplied 38 C.F.R. 4.56 and 4.72
as interpreted by this Court’s precedent — specifically, that the
diagnosis of a through-and-through bullet wound in April 1947 and a March
1952 diagnosis of a penetrating muscle wound require a compensable rating (
see R. at 191-92, 235; see also R. at 56, 89) — gives rise to a valid CUE
claim. See Russell, 3 Vet.App. at 313; Myler v. Derwinski, 1 Vet.App. 571 (
1991); cf. Eddy, 9 Vet.App. at 57-58.
Moderate muscle damage of the deltoid muscle is rated as 20%
disabling under 38 C.F.R. 4.73, Diagnostic Code (DC) 5303 (1995). The
Schedule for Rating Disabilities in existence from 1947 through 1965
provided, as it does now in 38 C.F.R. 4.47 (1995), in a section
pertaining to the musculoskeletal system, entitled “Effect of missiles”,
that “[t]hrough and through wounds and other wounds of the deeper
structures almost invariably destroy parts of muscle groups”. Schedule
for Rating Disabilities 14-15 (1945) [hereinafter Schedule]. Another
section of that Schedule (currently 38 C.F.R. 4.56(b) (1995)) provided:
Factors to be Considered in the Evaluation of Disabilities Residual
to Healed Wounds Involving Muscle Groups Due to Gunshot or Other
Trauma.

. . . .

(2) Moderate Disability of Muscles.

Type of injury. Through and through or deep penetrating wound of
relatively short track by single bullet or small shell or shrapnel
fragment are to be considered as of at least moderate degree.
Absence of explosive effect of high velocity missile and of residuals
of debridement or of prolonged infection.
History and complaint. Service department record or other
sufficient evidence of hospitalization in service for treatment of
wound. Record in file of consistent complaint on record 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.
Objective findings. Entrance and (if present) exit scars linear
or relatively small, and so situated as to indicate relatively short
track of missile through muscle tissue; signs of moderate loss of
deep fascia or muscle substance or impairment of muscle tonus, and of
definite weakness or fatigue in comparative tests. (In such tests
the rule that with strong efforts, antagonistic muscles relax is to
be applied to insure validity of tests.)
Schedule at 18-19 (boldface-italic emphasis added); see also 38 C.F.R. 4.
56(a), (b). Finally, a note under the title “Muscle Injuries”, currently
38 C.F.R. 4.72 (1995), provided:
In rating disability from injuries of the musculoskeletal system,
attention is to be given first to the deeper structures injured,
bones, joints, and nerves. A compound comminuted fracture, for
example, with muscle damage from the missile, establishes severe
muscle injury, and there may be additional disability from malunion
of bone, ankylosis, etc. The location of foreign bodies may
establish the extent of penetration and consequent damage. It may
not be too readily assumed that only one muscle, or group of muscles
is damaged. A through and through injury, with muscle damage, is
always at least a moderate injury, for each group of muscles damaged.
Schedule, note, at 44-45 (emphasis added).
The appellant contends that Myler held that a through-and-through
wound with muscle damage is always rated at least moderate. Br. at 16.
In Myler, this Court found CUE in a previous November 1953 RO decision’s
failure to apply properly the predecessors of 38 C.F.R. 4.72 and 38 C.F.
R. 4.56(b) for muscle injury to a veteran’s thigh. Myler, 1 Vet.App. at
574. In Myler, a VA medical examination had found at the time of the
prior RO decision:
Penetrating GSW [gunshot wound], right thigh. . . . [R]ight leg with
residuals of penetrating GSW, right mid thigh, without atrophy, nerve,
or vessel injury. . . .
Apparently entered at the lower border of the right hamstring group,
coursed anteriorly thru the lateral border of the quadraceps [sic]
group at mid rt. thigh. No depression, no evidence of muscle atrophy
. . . . [F]unction, right thigh muscle not impaired by GSW. No
nerve or vessel injury.
Id. at 572 (emphasis added). The Court held, based on this diagnosis and
38 C.F.R. 4.72 and 4.56(b), that the veteran was entitled to “a rating
`of at least a moderate degree’ . . . of disability for the `through and
through’ gunshot wound to [the] muscle”. Id. at 574. Hence, the Court in
Myler interpreted 38 C.F.R. 4.72 and 4.56(b) as providing that “a
`through and through’ [apparently muscle] wound by a `single bullet or
small shell or shrapnel fragment’ was to be rated as of at least moderate
degree of disability” regardless of whether the muscle sustained any
permanent damage. Ibid.
In the instant case, the evidence of record prior to 1952 contains no
indication that the gunshot wound penetrated muscle tissue or resulted in
muscular damage. The record does contain a diagnosis of “[c]itatrices,
healed, right deltoid area, residuals through and through bullet wound”.
R. at 56. A “through and through” bullet wound that does not result in
muscle damage fails to meet the criteria in 38 C.F.R. 4.73 for a
moderate rating under DC 5303 and in 38 C.F.R. 4.72. Additionally, 4.
56 applies to wounds “involving muscle groups”, requiring a moderate
rating for “through and through or deep penetrating wounds”. See 38 C.F.R
. 4.56(b). Although the veteran’s injury was diagnosed as a “through
and through bullet wound” (R. at 56), at the time of the May 1947 and June
1949 RO decisions there was no evidence of a through-and-through gunshot
wound involving muscle tissue, which 4.56 appears to require. Therefore,
the BVA decision finding that the RO decisions of May 1947 and June 1949
were not the products of CUE was not arbitrary and capricious. See Eddy
and Russell, both supra.
However, in the March 1952 medical report, Dr. Teifer stated: ”
Examination of the right shoulder shows a penetrating type of scar which
is approximately one inch in diameter, indicating that a foreign body
penetrated the [d]eltoid [m]uscle of the right shoulder.” R. at 89. The
April 1947 VA examination diagnosed the veteran as having had a through-
and-through bullet wound to the “right deltoid area”. R. at 56. In this
case, then, as in Myler, the veteran had a diagnosis of a “through and
through” penetrating muscle
wound at the time of the relevant RO decision. Additionally, neither
veteran was diagnosed with muscle damage or atrophy resulting from the
gunshot wound. (The Court notes that the RO in Myler apparently had
provided a compensable rating for a moderate muscle injury involving
muscles in proximity to those that were the subject of the CUE claim.
This possible distinction does not affect Myler’s interpretation of 4.
56, however, because that regulation does not require muscle damage
.)
The BVA found that the veteran’s scars indicate that the bullet went ”
through and through the skin, and not through and through the underlying
muscles” and that therefore the injury was correctly rated under 38 C.F.R
. 4.118, DC 7805 (1993) (scars) as opposed to 38 C.F.R. 4.73 (DC) 5303 (
1993) (muscle injuries). R. at 10. The Board stated that “[e]ven at the
time of the May 1947 RO determination, the rating schedule required muscle
damage” in order to award a compensable rating under DC 5303. Ibid. The
Board also stated that the “record shows that the service-connected
shoulder wound produced asymptomatic scars and no more than slight muscle
impairment” and that therefore there was no error in the prior RO
decisions. Ibid. The record at the time of the 1952 RO decision, however,
clearly contains medical evidence — in the form of Dr. Teifer’s statement
that the bullet had penetrated the deltoid muscle — in support of a
through-and-through penetrating muscle wound with little or no evidence to
the contrary. If the RO had applied the predecessors of 4.56(b) as
interpreted by Myler, then the veteran would apparently have been entitled
to a moderate rating for muscle injury as a residual of his gunshot wound
The Board decision must be vacated and the matter remanded for this
application to be made by the Board in the first instance.
The Court notes that the current BVA decision impermissibly
intermingled the two issues before the Board. The Board made no effort to
separate its discussion of the veteran’s CUE claim and his claim for an
increased rating, as required by Russell, 3 Vet.App. at 313-14 (
determination of CUE must be based on record and law in existence at time
of prior RO decision). Rather, the decision outlined all the evidence of
record together, including the two 1993 examinations, before denying in a
single step the veteran’s CUE claim and his current claim for an increased
rating. These later diagnoses were
irrelevant as to the Board’s decision on CUE in the previous RO decisions
. See Russell, supra. Furthermore, the Board failed to discuss, or even
note, this Court’s precedential opinion in Myler that had been issued by
the Court approximately two-and-one-half years prior to the Board decision
here and which both involves very similar facts and interprets
authoritatively the relevant regulations. The Court thus holds that the
BVA failed to provide an adequate statement of reasons or bases for its
rejection of the veteran’s CUE claim as to the 1952 RO decision. See
Simon, Masors, and Gilbert, all supra. The Court will thus remand the CUE
claim to the Board for it to consider and discuss all the evidence before
the RO in 1952, in a manner separate from the current evidence, and
analyze it in terms of the holding of Myler, regarding 4.56(b).
Moreover, the Board should discuss, based on appropriate medical evidence,
the required characteristics of a through-and-through wound, that is,
whether a through-and-through muscle wound requires more than penetration
of the muscle.
B. Current Claim for Increased Rating

A claim for an increased rating is a new claim, not subject to the
provisions of 38 U.S.C. 7104(b) and 7105(a) prohibiting reopening for
previously disallowed claims except upon new and material evidence. See
Proscelle v. Derwinski, 2 Vet.App. 629, 631-32 (1992); Suttman v. Brown, 5
Vet.App. 127, 135 (1993). The Court reviews BVA factfinding under a ”
clearly erroneous” standard; “if there is a `plausible’ basis in the
record for the factual determinations of the BVA, . . . [the Court] cannot
overturn them”. Gilbert, 1 Vet.App. at 53; 38 U.S.C. 7261(a)(4).
The veteran is currently service connected for right-shoulder scars
resulting from the gunshot wound, and is rated under 38 C.F.R. 4.118, DC
7805, which provides for basing a rating on the limitation of function of
the part affected. The Board found that neither the May 1993 private
orthopedic examination nor the July 1993 VA examination showed that the
scars limited shoulder function to a compensable degree. R. at 9.
Specifically, the Board noted that the private physician “did not indicate
that the scars limited shoulder function and he could not distinguish
shoulder limitations due to the wound from the limitations associated with
non[-]service[-]connected causes”; and that the VA examiner “was
empathic [sic] that the wound had no serious affect on the muscle or the
shoulder”. Ibid. However, the Court finds that the Board explained the
evidence that did not support the veteran’s claim while failing to discuss
the evidence in support thereof. See Caluza and Gabrielson, both supra.
The private physician actually stated that the veteran “has about 3/4’s
now [sic] mobility of the shoulder in all plains [sic]” and that it was ”
very hard” to distinguish the effects of the gunshot versus “wear and tear
“, but that he believed “the gunshot did affect the deltoid muscle to a
degree”. R. at 263-64. The VA examiner also stated that there was “no
significant degeneration or loss of tissue or penetrating injury causing
severe loss of function of the deltoid muscles” and that he did not
believe that the gunshot wound had “a serious bearing on the deltoid
muscle or the use of [the right] shoulder”, thus indicating that the wound
had some bearing on the muscle’s use and had caused some loss of the
muscle’s function. R. at 268 (emphasis added).
The Board found that the veteran was not entitled to an increased
rating for his service-connected scars under DCs 7803 and 7804. R. at 9.
These DCs provide that a 10% rating shall be granted if scars are ”
superficial, poorly nourished, with repeated ulceration” (DC 7803) or if
they are “superficial, tender and painful on objective demonstration” (DC
7804). Hence, a compensable rating for the scars would not appear to be
indicated if the veteran were eligible to be rated only under DC 7803 or
7804 relating to scars. However, as noted in part II. A., above, the
evidence of record may warrant a compensable rating for muscle injury
under DC 5303.
As previously noted, the Board erroneously commingled its discussions
of the CUE claim and the increased-rating claim. That was not the extent
of its reasons-or-bases errors. In addition, as to the current rating-
increase claim, the BVA misstated physician findings and failed to
consider adequately this Court’s binding precedent in Myler, supra. The
Board correctly noted that 38 C.F.R. 4.72 provided, as to “Rating muscle
injuries”, that “[a] through and through injury, with muscle damage, is
always at least a moderate injury”. R. at 10. The Board then found:
The scars are so situated as to indicate that the missile did not
actually go through muscle tissue. The scars indicate that the
bullet went through and through the skin, and not through and through
the underlying muscles.

. . . .

Although the veteran’s private physician has expressed an opinion
that there is muscle injury, neither his findings [n]or opinion have
been corroborated on any other medical examination accorded the
veteran. All the other examinations support the finding that there
is little if any muscle injury.
Ibid. (emphasis added).
However, although section 4.72 appears to require “muscle damage”, no
minimum degree of “muscle damage” is specified; rather, it appears that
once a through-and-through muscle wound is found to contain “muscle damage”
the rating becomes Previous DocumentautomaticNext Document. In that regard, the 1993 VA and private
examinations focused on by the Board appear to support a finding of some
muscle damage, contrary to the Board’s findings. In fact, the Board
appeared to contradict itself by stating that other physicians have not
corroborated the veteran’s private physician’s findings of muscle injury,
but then stated that other physicians have found “little if any muscle
injury”, suggesting that some physicians have found muscle injury. The
Court notes that “little” injury is still injury. The May 1993 private
physician report stated that “the gunshot did affect the deltoid function
to a degree” (R. at 264), and the July 1993 VA physician report noted that ”
a few muscle fibers may have been severed” (R. at 269). Regardless of the
Board’s finding as to muscle damage and the applicability of 4.72,
however, 4.56(b) as interpreted by Myler clearly does not require muscle
damage if there is a through-and-though wound (that is, “a `through and
through’ wound [to a muscle] by a `single bullet or small shell or
shrapnel fragment’ [is] to be rated as of at least moderate degree of
disability”, Myler, 1 Vet.App. at 574).
The fact that the veteran suffered a through-and-through gunshot
wound appears to be uncontradicted. The veteran’s wound was twice
specifically diagnosed as through and through (R. at 56, 153), several
physicians note two distinct scars (R. at 56, 93, 110, 263), and both 1993
examinations referenced a point of entry and exit (R. at 263, 268).
Additionally, the most recent medical examinations both mention some
muscle penetration or severing of muscle fibers. R. at 263-64, 238. This
evidence would appear to provide strong support for finding that the
veteran has a through-and-through muscle wound or a
through-and-through wound involving a muscle group which, pursuant to 4.
56, is to be rated as moderate and thus as 20% disabling under DC 5303.
In concluding that the gunshot wound was through and through the skin
rather than muscle, the Board appeared to rely on the 1993 VA examination,
which did not support such a finding (or perhaps on its own
unsubstantiated medical findings contrary to this Court’s precedent in
Colvin v. Derwinski, 1 Vet.App. 171, 175 (1991)). The Court finds that
such finding does not have a plausible basis in the record. See Gilbert,
supra. Beginning in 1947 when the veteran was first diagnosed with a
through-and-through bullet wound (R. at 56), the record does not contain a
medical opinion to the effect that the bullet was merely through and
through the skin. Dr. Teifer’s March 1952 medical report found “that the
foreign body penetrated the [d]eltoid [m]uscle of the right shoulder” (R.
at 89); the 1982 VA examination noted the veteran’s scars, but made no
comment as to whether or not the bullet penetrated the deltoid muscle (R.
at 118-19); the March 1983 VA examination noted a through-and-through
wound, but did not discuss muscle damage (R. at 153); the May 1993 private
examination noted that “[it] appears [that the bullet] would go through a
portion of the deltoid muscle” (R. at 263-64); and the July 1993 VA
examination reported: “This is, to all intents and purposes, a penetration
of the subcutaneous tissue. In exit, a few muscle fibers may have been
severed but the degree of that injury is, I believe, minimal” (R. at 268).
On the basis of the foregoing discussion, the Court will thus reverse
as clearly erroneous the BVA’s factual finding that the wound was a
through-and-through wound only of the skin. Further, the Court holds that
the BVA, in denying the veteran’s current increased rating-claim, failed
to provide an adequate statement of reasons or bases as to its rejection
of the material evidence favorable to the veteran. See Simon, Masors, and
Gilbert, all supra. Accordingly, the Court will vacate the decision and
reverse as to the clearly erroneous factual finding and will remand the
current increased-rating claim to the Board for it to provide an adequate
statement of reasons or bases in evaluating the evidence favorable to the
veteran, including a full discussion as to both 1993 examinations, the
requirements for a through-and-through muscle wound, and 38 C.F.R. 4.56(
b) and 4.72
as interpreted by Myler and as they apply to this case. Additionally, on
remand the Board should comport with the Court’s holding in Colvin by
relying only on independent medical evidence in support of its conclusions.

III. Conclusion

On consideration of the foregoing, the record on appeal, and the
briefs of the parties, the Court vacates the April 29, 1994, BVA decision
as to both claims, reverses the Board finding identified above as to the
nature of the through-and-through wound based on the current record, and
remands for expeditious readjudication of both claims, on the basis of all
applicable law and regulation, see Fletcher v. Derwinski, 1 Vet.App. 394,
397 (1991), and issuance of a new decision supported by an adequate
statement of reasons or bases — all consistent with this opinion and in
compliance with section 302 of the Veterans’ Benefits Improvements Act,
Pub. L. No. 103-466, 302, 108 Stat. 4645, 4658 (1994) (requiring
Secretary to provide for “expeditious treatment” for claims remanded by
BVA or the Court). See Allday v. Brown, 7 Vet.App. 517, 533-34 (1995).
On remand, the claimant will be free to submit additional evidence (to the
extent appropriate) and argument on the remanded claims. See Quarles v.
Derwinski, 3 Vet.App. 129, 141 (1992). A final decision by the Board
following the remand herein ordered will constitute a new decision which,
if adverse, may be appealed to this Court only upon the filing of a new
Notice of Appeal with the Court not later than 120 days after the date on
which notice of the new Board decision is mailed to the appellant.
REVERSED IN PART; VACATED AND REMANDED IN PART.

Advertisements

Leave a Comment »

No comments yet.

RSS feed for comments on this post. TrackBack URI

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out / Change )

Twitter picture

You are commenting using your Twitter account. Log Out / Change )

Facebook photo

You are commenting using your Facebook account. Log Out / Change )

Google+ photo

You are commenting using your Google+ account. Log Out / Change )

Connecting to %s

Create a free website or blog at WordPress.com.

%d bloggers like this: