191125-48058
191125-48058
| Board of Vet. App. | Oct 29, 2021Background
- Veteran sustained a through‑and‑through right thigh gunshot wound in 1968 (entrance and exit wounds, ~3×6 cm) with prolonged hospitalization and debridement; service records noted healed wounds with no acute neurovascular deficit.
- Service‑connected right thigh residuals were previously rated 10% under Diagnostic Code 5314 (Muscle Group XIV).
- Claim history: increased‑rating claim filed 2003 with multiple denials and remands; Veteran opted into AMA Direct Review (identifying the Oct 2019 SSOC) so the Board considered evidence of record as of that SSOC. A July 2020 Board denial was vacated by the CAVC in March 2021 and remanded.
- Examinations across the appeal period showed: entrance/exit scars, intermittent pain, fatigue, weakness, variable objective strength findings (some 4/5, others 5/5), and no consistent evidence of severe destructive muscle pathology or shattering fracture.
- The Board found both Muscle Group XIII (posterior/hamstrings) and Muscle Group XIV (anterior/quadriceps) were affected and, resolving conflicts in the Veteran’s favor, concluded each manifested a ‘‘moderately severe’’ muscle disability.
- Disposition: granted separate 30% ratings (but no higher) for residuals of the right thigh gunshot wound under DC 5313 (Muscle Group XIII) and DC 5314 (Muscle Group XIV).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Appropriate rating level for Muscle Group XIII | Injury produced moderately severe disability (prolonged hospitalization, debridement, cardinal signs: pain, fatigue, weakness, objective 4/5 strength) — warrants 30% | Examinations show largely mild impairment or normal strength; symptoms attributable to other conditions (knees, spine); no evidence of severe muscle destruction | Awarded 30% (moderately severe); not higher — Board resolved conflicting exam evidence in Veteran’s favor |
| Appropriate rating level for Muscle Group XIV | Same factual basis as XIII; through‑and‑through wound with objective and functional impairment supports 30% | Same VA position as above for XIV | Awarded 30% (moderately severe); not higher |
| Entitlement to separate ratings for two affected muscle groups in same anatomical region | Both Muscle Groups XIII and XIV were separately injured and each should be rated | VA could have argued combined evaluation or that only one group should be rated higher | Board found both groups in same region but affecting the same joint are separately rated here and granted separate ratings |
| Standard for resolving conflicting medical evidence | Veteran urged that inconsistent objective findings should be construed in his favor under benefit‑of‑the‑doubt rule | VA relied on later exams showing minimal objective deficits and alternative attributions | Board applied Gilbert and resolved reasonable doubt for the Veteran, adopting findings supportive of a moderately severe rating |
Key Cases Cited
- Robertson v. Brown, 5 Vet. App. 70 (1993) (interpreting §4.56(d) muscle‑injury evaluation as a totality‑of‑the‑circumstances test)
- Tropf v. Nicholson, 20 Vet. App. 317 (2006) (confirming that §4.56(d) requires holistic assessment of muscle injury factors)
- Gilbert v. Derwinski, 1 Vet. App. 49 (1990) (establishing the benefit‑of‑the‑doubt rule: resolve reasonable doubt in claimant’s favor)
- Jones v. Principi, 18 Vet. App. 248 (2008) (through‑and‑through wounds to multiple muscle groups are to be separately rated)