BVA9503274 DOCKET NO. 91-37 323 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Albuquerque, New Mexico THE ISSUES Entitlement to an increased evaluation for residuals of a shell fragment wound of the left calf, currently rated as 10 percent disabling Entitlement to an increased evaluation for residuals of a shell fragment wound of the left thumb, currently rated as 10 percent disabling. Entitlement to restoration of a 10 percent evaluation for residuals of a shell fragment wound of the left shoulder. Entitlement to an increased (compensable) evaluation for a shell fragment wound scar of the left buttock. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The veteran ATTORNEY FOR THE BOARD Richard V. Chamberlain, Counsel INTRODUCTION The veteran served on active duty from July 1967 to July 1969. This appeal arises from an April 1990 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Albuquerque, New Mexico, that denied a rating in excess of 10 percent for residuals of a shell fragment wound of the left calf, denied a rating in excess of 10 percent for residuals of a shell fragment wound of the left thumb, decreased the evaluation for residuals of a shell fragment wound of the left shoulder from 10 percent to zero percent, and denied an increased (compensable) evaluation for a shell fragment wound scar of the left buttock. The Board of Veterans' Appeals (Board) remanded the case to the RO in February 1992, and the case was returned to the Board in November 1994. The issues on appeal in February 1992 included entitlement to an increased evaluation for post-traumatic brain concussion that was rated 30 percent disabling, and the Board instructed the RO at that time to adjudicate an "inextricably intertwined" claim for service connection for a seizure disorder. A July 1994 RO rating decision granted service connection for a seizure disorder and reclassified the post-traumatic brain concussion to post- traumatic stress disorder (PTSD) with post traumatic brain concussion and seizure disorder, and increased the rating from 30 percent to 100 percent. This disorder was rated based on the psychiatric symptoms rather than the neurological deficits associated with the post-traumatic brain concussion and seizure disorder, including left side hemiparesis, because these symptoms were considered to represent the major degree of disability. The veteran was notified of these determinations in an August 1994 supplemental statement of the case and expressed no further disagreement concerning these matters. His representative, in a statement dated in October 1994, noted that these matters had been disposed of by the July 1994 RO rating decision. Hence, these matters will not be addressed by the Board. CONTENTIONS OF APPELLANT ON APPEAL The veteran contends that the disorders listed on the first page of this decision are more severe than currently rated, and he requests higher evaluations for these disorders. Additionally, he alleges that the reduction in the evaluation for residuals of a shell fragment wound of the left shoulder from 10 to zero percent was based on one examination and improper. He requests restoration of the 10 per percent rating for residuals of a shell fragment wound of the left shoulder. DECISION OF THE BOARD The Board, in accordance with the provisions of 38 U.S.C.A. § 7104 (West 1991), has reviewed and considered all of the evidence and material of record in the veteran's claims file. Based on its review of the relevant evidence, and for the following reasons and bases, it is the decision of the Board that the preponderance of the evidence is against the claims for an increased evaluation for residuals of a shell fragment wound of the left calf, an increased evaluation for residuals of a shell fragment wound of the left thumb, and an increased (compensable) evaluation for a shell fragment wound scar of the left buttock. It is also the decision of the Board that the evidence supports restoration of a 10 percent evaluation for residuals of a shell fragment wound of the left shoulder. FINDINGS OF FACT 1. Residuals of a shell fragment wound of the left calf are productive of no more than moderate impairment of Muscle Group XI, manifested by subjective pain but no objective functional impairment. 2. Residuals of a shell fragment wound of the left thumb are manifested primarily by a small retained foreign body, slight limitation of motion, and weakness. 3. Residuals of a shell fragment wound of the left shoulder are manifested primarily by complaints of pain and a very small scar; the scar is not poorly nourished with repeated ulceration, not tender and painful on objective demonstration, and does not affect limitation of function of any body part; sustained improvement in this disorder which is reasonably certain to continue under ordinary conditions of life is not demonstrated. 4. The shell fragment wound scar of the left buttock is not poorly nourished with repeated ulceration, not tender and painful on objective demonstration, and does not affect limitation of function of any body part. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 10 percent for residuals of a shell fragment wound of the left calf are not met. 38 U.S.C.A. § 1155 (West 1991); 38 C.F.R. §§ 3.321, 4.7, 4.40, 4.45, 4.54, 4.55, 4.56, 4.59, 4.73, Part 4, Code 5311 (1993). 2. The criteria for a rating in excess of 10 percent for residuals of a shell fragment wound of the left thumb are not met. 38 U.S.C.A. § 1155 (West 1991); 38 C.F.R. §§ 3.321, 4.7, 4.40, 4.45, 4.59, 4.73, 4.118 (and Note (3) above Code 5220), Part 4, Codes 5224 and 5309 (1993). 3. The criteria for restoration of a 10 percent rating for residuals of a shell fragment wound of the left shoulder are met. 38 U.S.C.A. § 1155 (West 1991); 38 C.F.R. §§ 3.344, 4.118, Part 4, Codes 7803, 7804, 7805. 4. The criteria for a compensable rating for a shell fragment wound scar of the left buttock are not met. 38 U.S.C.A. § 1155 (West 1991); 38 C.F.R. §§ 3.321, 4.7, 4.40, 4.45, 4.59, 4.118, Part 4, Codes 7803, 7804, 7805. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Factual Background The veteran served on active duty from July 1967 to July 1969. Service medical records show that the veteran was seen for post head injury and a grazing fragment wound of the left shoulder, and slight wounds of the left buttock and left leg. The service medical records do not indicate that the wounds of the left thumb, buttock and shoulder caused any significant bony or muscle impairment. In the early 1970's, the veteran requested service connection for various disorders, including residuals of shell fragment wounds of the right side of the head, left thumb, buttock, and shoulder. The veteran underwent VA examinations in 1972. On general medical examination in October 1972 he reported, in part, an injury of the left shoulder in the form of a healing crust laceration that was 1" by 1/2" in size and had occurred 5 or 6 days earlier. He gave a history of various injuries from shrapnel wounds on different occasions. X-rays of the chest showed multiple densities in the thorax. The diagnoses were metallic densities in the thorax, shrapnel wounds of the lower left leg, superficial shrapnel wound of the dorsum of the left thumb (3 by 1 mm.), recent healing laceration of the left shoulder, and recent abrasion of the right buttock. A special VA neurological examination in November 1972 concluded that the veteran might be having post-traumatic headaches and it was possible that he was having seizures. The blackout spells sounded more syncopal or akinetic in nature rather than like focal seizures. He had a normal neurologic examination. A special medical examination in October 1974 diagnosed shortening of the left leg, not found; and vascular disturbance of the left lower extremity, not found. Service connection is currently in effect for PTSD with post- traumatic brain concussion and seizure disorder (previously rated as post-traumatic brain concussion) which was rated 30 percent disabling from August 1972 and 100 percent disabling from December 1989; residuals of a shell fragment wound of the left calf, Muscle Group XI, with retained foreign bodies, rated 10 percent disabling from August 1972; residuals of a shell fragment wound of the left thumb with retained foreign bodies, rated 10 percent disabling from August 1972; residuals of a shell fragment wound of the left shoulder with retained foreign bodies, rated 10 percent disabling from August 1972 and zero percent disabling from July 1990 under diagnostic code 7804; a shell fragment wound scar of the left thumb, rated zero percent from August 1972; and a shell fragment wound scar of the left buttock, rated zero percent disabling from August 1972. VA medical records of the veteran's treatment from 1989 to 1992 indicate that he was treated primarily for problems associated with PTSD with post-traumatic brain concussion and a seizure disorder. The record show that the symptoms of this disorder include left side hemiparesis. These records also indicate that the veteran complained of pain of the left lower extremity. The veteran underwent VA examination in February 1990. He complained of pain in the left calf and he walked with a limp. X-rays of the left lower leg taken in July 1989 reportedly showed two small metallic fragments in the soft tissues of the left leg. The largest was posterior within the lower portion of the soft tissue of the calf, and the smaller was anterolateral within the soft tissues adjacent to the fibula. No bony abnormalities were noted, and there was no evidence of appreciable soft tissue injury or reactive change. He was not having any significant left shoulder pain at the time of the examination. One "tiny minute little scar" over the left shoulder laterally was seen. Movement of the left shoulder was within normal range. There were two small wounds or scars in the left calf posteriorly. There was no weakness of any muscle group on the left leg in any area. He complained of pain in the left calf. The examiner did not feel any scarring. The soleus and gastrocnemius muscles functioned normally, as did the tibial group. The knee and ankle jerks were one and equal. The examiner found that the veteran was not "suffering any real residuals" from the small fragments from the left calf, and could not find "any true residuals" from the small metallic fragments in the left shoulder. A private medical report from M. Freeman, M.D., shows that the veteran underwent neurological examination in May 1990. It was noted that he had chronic discomfort in the left leg. The veteran testified at a hearing at the RO in December 1990. He stated that he had limitation of motion and constant pain of the left shoulder, extending to the top of his brain, for which he took Valium and "folklore herbs." A statement from the veteran's mother, dated in February 1991, is to the effect that the veteran has a bad shoulder. A May 1992 VA neurologic consultation resulted in the examiner's impression that the veteran's complaints of left-sided weakness were functional. The veteran underwent an examination for VA in August 1992. There was a 1-centimeter scar at the volar aspect of the metacarpophalangeal (MP) joint of the left thumb in the region of the crease. Extension at the metacarpophalangeal joint of the left thumb was limited to 15 degrees and flexion to 20 degrees. He had good sensation at the time of the examination. X-ray reportedly showed a 2- by 3-millimeter superficial shell fragment in the subcutaneous area not near the bone or the joint. Examination of the left shoulder showed a well-healed scar posteriorly. Range of motion showed abduction to 90 degrees, flexion to 70 degrees, external rotation to 70 degrees, and internal rotation to 45 degrees. There was no tenderness present. Examination of the left buttock showed a 1-centimeter well-healed scar. There were normal sensation and good muscle tone. There was a full range of motion of the back and the hip. The diagnoses were shrapnel wounds, left thumb with superficial fragments still present, very limited decreased range of motion and some weakness; shrapnel wounds of the left shoulder with significant decrease in range of motion; and shrapnel wound of the left buttock that did not present any significant problem at the time of examination. The veteran underwent VA examination in March 1994. He stood with his left leg abducted, externally rotated, and said he could not stand on his left leg due to pain in the left foot, lateral leg, medial knee, back of the hip, and the lower back. He could not move his left foot up or down actively, but he could hold passive dorsiflexion. Any active motion, either up or down, inversion or eversion was not available. The right thigh measured 51 whereas the left thigh measured 49 centimeters. The right calf and left calf measured 37 centimeters, measured equidistant to the tibia tubercle. He had no atrophy of his calves. He had good pulses, and knee jerks were equal and bilateral. Right ankle jerk was present. The left ankle jerk was trace, barely. The pulses were good, bilaterally. Straight leg raising was negative to 90 degrees when sitting, bilaterally. Straight leg raising was negative on the right when supine and positive at 45 degrees on the left, and it hurt him very much to even allow left knee flexion. He could not actively straight leg raise on the left. He could straight leg raise on the right very well. He had scars laterally in the distal one-third of the calf. They were soft, freely movable, and the examiner could not feel any deep scarring. The left buttock wound was 1 centimeter and freely movable. There was a 1.5-centimeter very soft and hard to see scar on the left posterior shoulder. The right biceps, his major side, measured 32 centimeters, as did the left side biceps. The right forearm was 27 centimeters, as was the left forearm. The left arm was weak and painful at the shoulder, elbow, and wrist. His grip on the right was 260, whereas he had no grip strength on the left. He did not appear to do any motions with his left shoulder, arm and hand. There was no atrophy noted of his left shoulder, arm or hand muscles. His left shoulder abducted actively to 60 degrees, forward flexion was to 60 degrees, external rotation was to 40 degrees, internal rotation was to 60 degrees, and extension was to 0 degrees. There was some passive motion, about 20 degrees better in all ranges. He stated that the whole left side of his body was poor. X-rays of the left tibia and fibula showed two metallic foreign bodies which projected within the soft tissues. No other abnormalities were seen. X-rays of the left thumb showed a small shrapnel superficial which could be palpated. X-rays of the left shoulder showed no abnormalities. X-rays of the left buttock showed no abnormalities. The diagnoses were status post gunshot wound, multiple areas with retained small shrapnel fragments, lower leg and thumb; and status post head injury with left hemiresidual of a "serious but curious nature." The examiner stated that he could find no major reason for the veteran's severe impairment in anatomical function by looking at his anatomy or muscles. II. Legal Analysis Initially, the Board notes that the veteran's claims are well- grounded. By this, I mean he has submitted claims which are plausible. I further conclude that VA has met its duty to assist the veteran in the development of his claims, and that no further development is required to meet the provisions of 38 U.S.C.A. § 5107(a) (West 1991). In order to establish entitlement to a higher rating for a service-connected disability, the evidence must show symptoms of the disorder which meet or more nearly approximate the criteria for higher ratings under the applicable diagnostic codes in the Schedule for Rating Disabilities. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.7. A. Increased Evaluation for Residuals of a Shell Fragment Wound of the Left Calf A 10 percent evaluation is warranted for moderate injury to Muscle Group XI (posterior and lateral crural muscles). A 20 percent evaluation requires moderately severe injury. 38 C.F.R. § 4.73, Code 5311. The evidence shows that the veteran has limitation of motion of various joints of the left lower extremity, but the evidence indicates that this limitation of motion is due to neurological or functional (see May 1992 neurologic consultation) deficits associated with left-side hemiparesis due to his service- connected PTSD with post-traumatic brain concussion and seizure disorder. These symptoms have been considered in the evaluation of this service-connected disorder and cannot be again reconsidered in the evaluation of the service-connected left calf disorder. 38 C.F.R. § 4.14 (1993). The evidence does not indicate that the shell fragment wound of the left calf produces any significant bony or muscle abnormality. It indicates that the veteran complains of left leg pain and shows that he has small freely movable scars of the left calf, and VA X-rays of his left tibia and fibula in 1994 showed that he has two metallic foreign bodies within the soft tissues of his left calf. The evidence, however, does not indicate that the total residuals of the shell fragment wound of the left calf, including the scars, produce more than slight muscle impairment. See 38 C.F.R. §§ 4.54, 4.55, 4.56, and certainly no more than moderate muscle injury to warrant a rating in excess of 10 percent under Diagnostic Code 5311. While the veteran complains of pain of the left lower extremity, the evidence does not associate any functional limitation of the left lower extremity to the residuals of a shell fragment wound of the left calf to warrant a higher rating. 38 C.F.R. §§ 4.40, 4.45, 4.59. An extraschedular rating is not appropriate, as frequent hospitalization or marked interference with employment is not shown due to this disorder. The Board finds that the current 10 percent rating for the residuals of a shell fragment wound of the left calf best represents the veteran's disability picture and that the evidence is not in relative equipoise concerning the claim for a higher rating for this disorder. Thus, he is not entitled to favorable resolution of this claim based on reasonable doubt. 38 U.S.C.A. § 5107(b) (West 1991); Gilbert v. Derwinski, 1 Vet.App. 49 (1990). The preponderance of the evidence is against the claim and it must be denied. B. Entitlement to an Increased Evaluation for a Shell Fragment Wound of the Left Thumb Damage to Muscle Group IX (intrinsic muscles of the hand) will be rated based on limitation of motion, with a minimum evaluation of 10 percent. 38 C.F.R. § 4.73, Code 5309. A 10 percent evaluation is warranted for superficial, poorly nourished scars with repeated ulceration. 38 C.F.R. § 118, Code 7803. A 10 percent evaluation is warranted for superficial scars which are tender and painful on objective demonstration. 38 C.F.R. § 4.118, Code 7804. Scars may be evaluated on the basis of any related limitation of function of the body part which they affect. 38 C.F.R. § 4.118, Code 7805. The VA fee-basis examination of August 1992 indicates that the veteran has some weakness and slight limitation of motion of the left thumb. This warrants a 10 percent rating for limitation of motion of this finger under 38 C.F.R. § 4.71a, Diagnostic Code 5224 and Note (3) above Diagnostic Code 5220. VA X-rays of the veteran's left thumb in 1994 show the presence of a small, superficial shrapnel fragment that could be palpated by the physician on examination at that time. There is no finding of damage to Muscle Group IX under Diagnostic Code 5309 or a tender scar under Diagnostic Code 7804. The evidence does not indicate that any pain or tenderness associated with the scar causes any functional limitation to warrant a rating in excess of 10 percent. 38 C.F.R. §§ 4.40, 4.45, 4.59. The report of the VA fee-basis examination in August 1992 indicates a l centimeter scar at the volar aspect of the MP joint in the region of the crease of the left thumb, but the evidence does not indicate that this scar is poorly nourished with repeated ulceration to establish entitlement to a separate 10 percent rating under diagnostic code 7803. Nor is an extraschedular rating warranted for this disorder, as the evidence does not show that it causes frequent hospitalization or marked interference with employment. 38 C.F.R. § 3.321. I find that the current 10 percent rating for the residuals of shell fragment wound in addition to the separate zero percent rating assigned for the scar of the left thumb, best represents the veteran's disability picture and that the evidence is not in relative equipoise concerning the claim for a higher rating for the residuals of a shell fragment wound of the left thumb. Thus, the veteran is not entitled to favorable resolution of this claim based on reasonable doubt. 38 U.S.C.A. § 5107(b); Gilbert, 1 Vet.App. 49. The preponderance of the evidence is against the claim and it must be denied. C. Restoration of a 10 percent Rating for Residuals of a Shell Fragment Wound of the Left Shoulder Rating agencies will handle cases affected by change of medical findings or diagnosis, so as to produce the greatest degree of stability of disability evaluations consistent with the laws and VA regulations governing disability compensation. It is essential that the entire record of examinations and the entire medical history be reviewed and that examinations less full and complete than those on which payments were authorized or continued not be used as a basis of reduction. Ratings on account of diseases subject to temporary or episodic improvement will not be reduced on any one examination, except in those instances where all the evidence of record clearly warrants the conclusion that sustained improvement has been demonstrated. Moreover, though material improvement in the physical or mental condition is clearly reflected, the rating agency will consider whether the evidence makes it reasonably certain that the improvements will be maintained under the ordinary conditions of life. These provisions apply to ratings which have continued for long periods at the same level (five years or more). 38 C.F.R. § 3.344(a), (c). The evidence indicates that the RO rating decision of April 1990 reduced the evaluation for a shell fragment wound of the left shoulder from 10 percent to zero percent, but does not reflect consideration of the provisions of 38 C.F.R. § 3.344. While the symptoms of the left shoulder disorder may not support a 10 percent rating, the evaluation may not be reduced without consideration of the regulatory provisions for correction of a prior rating based on clear and unmistakable error (38 C.F.R. § 3.105(a)), severance of service connection (38 C.F.R. § 3.105(d)), or sustained improvement reasonably certain to continue under ordinary conditions of life (38 C.F.R. § 3.344(a)). Absent one of these bases, the 1990 rating reducing the evaluation for residuals of a shell fragment wound of the left shoulder from 10 percent to zero percent was erroneous and void ab initio. Brown v. Brown, 5 Vet.App. 413 (1993). In short, the 10 percent rating for this disorder should be restored. The Board notes that the evidence, including the veteran's testimony, indicates the presence of a small left shoulder scar and significant limitation of motion of the left arm, but the limitation of motion of the left arm and subjective pain have been considered in the assignment of the evaluation for PTSD with post-traumatic brain concussion and a seizure disorder, and may not be considered in the evaluation of the residuals of a shell fragment wound of the left shoulder. Thus, a rating in excess of 10 percent under Diagnostic Code 5200 for limitation of motion is not warranted for this disorder. Nor does the evidence show that the left shoulder scar is poorly nourished with repeated ulceration to meet the criteria for a separate 10 percent rating under diagnostic code 7803. The evidence indicates that the residuals of the shell fragment wound of the left shoulder are manifested primarily by a well-healed scar that is hard to see. Under the circumstances in this case, the 10 percent rating for the residuals of a shell fragment wound of the left shoulder, previously assigned under Diagnostic Code 7804, should be restored, but no more. D. Increased Evaluation for a Shell Fragment Wound Scar of the Left Buttock The evidence shows that the veteran has a well-healed scar of the left buttock that causes no significant problem. The evidence does not indicate that the shell fragment wound scar of the left buttock is poorly nourished with repeated ulceration, nor does the evidence indicate that the scar is painful or tender on objective demonstration. Hence, a compensable rating for this scar is not warranted under diagnostic codes 7803, 7804 or 7805 and related codes for limitation of motion of a joint of the left lower extremity. While the evidence indicates that the veteran has pain and limitation of the left lower extremity, the evidence does not indicate that these symptoms are attributable to the shell fragment wound scar of the left buttock. Thus, an increased evaluation based on functional limitation of the left lower extremity due to pain is not warranted. 38 C.F.R. §§ 4.40, 4.45, 4.59. Nor is an extraschedular rating appropriate as frequent hospitalization or marked interference with employment is not shown due to this disorder. 38 C.F.R. § 3.321. I find that the current zero percent rating for the shell fragment wound scar of the left buttock best represents the veteran's disability picture and that the evidence is not in relative equipoise concerning the claim for a compensable rating for this disorder. Hence, he is not entitled to favorable resolution of this claim based on reasonable doubt. 38 U.S.C.A. § 5107(b); Gilbert, 1 Vet.App. 49 (1990). The preponderance of the evidence is against the claim and must be denied. ORDER An increased evaluation for residuals of a shell fragment wound of the left calf is denied. An increased evaluation for residuals of a shell fragment wound of the left thumb is denied. Restoration of a 10 percent rating for residuals of a shell fragment wound of the left shoulder is granted. An increased (compensable) evaluation for a shell fragment wound scar of the left buttock is denied. J. E. DAY Member, Board of Veterans' Appeals The Board of Veterans' Appeals Administrative Procedures Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, ___ (1994), permits a proceeding instituted before the Board to be assigned to an individual member of the Board for a determination. This proceeding has been assigned to an individual member of the Board. NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West 1991), a decision of the Board of Veterans' Appeals granting less than the complete benefit, or benefits, sought on appeal is appealable to the United States Court of Veterans Appeals within 120 days from the date of mailing of notice of the decision, provided that a Notice of Disagreement concerning an issue which was before the Board was filed with the agency of original jurisdiction on or after November 18, 1988. Veterans' Judicial Review Act, Pub. L. No. 100-687, § 402 (1988). The date which appears on the face of this decision constitutes the date of mailing and the copy of this decision which you have received is your notice of the action taken on your appeal by the Board of Veterans' Appeals.