Citation Nr: 0005898 Decision Date: 03/03/00 Archive Date: 03/14/00 DOCKET NO. 96-43 300 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUES 1. Entitlement to service connection for a right leg disorder. 2. Entitlement to a higher (compensable) initial rating for residuals of shell fragment wounds of the right lower extremity and left buttocks with retained foreign bodies. 3. Entitlement to a higher (compensable) initial rating for residuals of a fracture of the right fifth toe. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Michael Martin, Counsel INTRODUCTION The veteran had active service from November 1981 to December 1991. This matter came before the Board of Veterans' Appeals (Board) on appeal from a July 1995 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri. In July 1998, the Board remanded the issues set forth above for additional development of evidence. The case is now ready for further appellate review. FINDINGS OF FACT 1. The veteran has not presented any competent evidence that he has a right leg disorder other than the disabilities for which he has already established service connection. 2. The residuals of shell fragment wounds of the right lower extremity and left buttocks with retained foreign bodies primarily consist of superficial scars which are not poorly nourished with repeated ulceration, are not painful and tender on objective examination, and do not interfere with function of the right lower extremity or left buttocks. 3. There is no evidence that the residuals of a fracture of the right fifth toe are currently productive of any disability. CONCLUSIONS OF LAW 1. The claim for service connection for a right leg disorder is not well grounded. 38 U.S.C.A. § 5107 (West 1991). 2. The criteria for a compensable initial rating for residuals of shell fragment wounds of the right lower extremity and left buttocks with retained foreign bodies are not met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. § 4.118, Diagnostic Codes 7803, 7804, 7805 (1999). 3. The criteria for a compensable initial rating for residuals of a fracture of the right fifth toe are not met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §§ 4.71a, 4.40, 4.45, 4.56, Diagnostic Code 5284 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS In reviewing any claim for VA benefits the initial question is whether the claim is well grounded. The veteran has the burden of submitting evidence sufficient to justify a belief by a fair and impartial individual that the claim is well grounded. See 38 U.S.C.A. § 5107(a); Robinette v. Brown, 8 Vet. App. 69, 73 (1995). A well-grounded claim is "a plausible claim, one which is meritorious on its own or capable of substantiation. Such a claim need not be conclusive but only possible to satisfy the initial burden of § [5107]." See Murphy v. Derwinski, 1 Vet. App. 78, 81 (1991). If not, the claim must be denied and there is no further duty to assist the veteran with the development of evidence pertaining to that claim. See 38 U.S.C.A. § 5107(a) (West 1991). I. Entitlement To Service Connection For A Right Leg Disorder. In general, service connection may be granted for disability due to disease or injury incurred in or aggravated by service. See 38 U.S.C.A. §§ 1110, 1131 (West 1991). If a chronic disorder such as arthritis is manifest to a compensable degree within one year after separation from service, the disorder may be presumed to have been incurred in service. See 38 U.S.C.A. §§ 1101, 1112, 1113, 1137 (West 1991); 38 C.F.R. §§ 3.307, 3.309 (1999). Service connection may also be granted for disability shown to be proximately due to or the result of a service-connected disorder. See 38 C.F.R. § 3.310(a) (1999). This regulation includes service connection for a disorder which is caused by a service-connected disorder, or for the degree of additional disability resulting from aggravation of a nonservice- connected disorder by a service-connected disorder. See Allen v. Brown, 7 Vet. App. 439 (1995). In order for a claim for service connection to be well grounded, there must be competent evidence of a current disability, of incurrence or aggravation of a disease or injury in service, and a nexus between the in-service injury or disease and the current disability. Medical evidence is required to prove the existence of a current disability and to fulfill the nexus requirement. Lay or medical evidence, as appropriate, may be used to substantiate service incurrence. See Caluza v. Brown, 7 Vet. App. 498, 506 (1995). Competent medical evidence is also required to satisfy the medical etiology or medical diagnosis issues in secondary service connection claims. See Libertine v. Brown, 9 Vet. App. 521, 522 (1996). The nexus to service may also be satisfied by the presumption noted above. See Traut v. Brown, 6 Vet. App. 495, 497 (1994); Goodsell v. Brown, 5 Vet. App. 36, 43 (1993). Alternatively, a claim may be well grounded by showing a link to service based on the application of the rule for chronicity and continuity of symptomatology, set forth in 38 C.F.R. § 3.303(b). See Savage v. Gober, 10 Vet. App. 488, 495-97 (1997). The Board notes that the veteran is currently service connected for residuals of a fracture of the right fifth toe and residuals of shell fragment wounds of the right lower extremity and left buttocks with retained foreign bodies. The veteran was previously service-connected for shell fragment wounds of the left lower extremity, however, this was corrected by the RO after the case was remanded. The service connection award has been revised to show that the wounds were actually to the right lower extremity. The veteran's representative has indicated that this action by the RO has rendered moot the issue of entitlement to service connection for a right leg disorder. However, in light of the fact that the veteran himself has not specifically withdrawn his appeal with respect to this issue, the Board will render a decision. The veteran's post-service service medical treatment records do not contain any references to a right leg disorder. The report of an orthopedic consultation conducted by Gordon L. Thorn, D.O, F.A.O.A.O., in August 1996 shows that the veteran reported complaints pertaining to the shoulders and the left ankle, but he did not report complaints pertaining to the right leg. The physical examination findings and diagnoses also did not pertain to the right leg. The report of an examination of the veteran's bones conducted by the VA in November 1998 shows that the veteran gave a history of being injured in service in 1989 when an explosive device detonated and threw shrapnel into his lower extremities. The VA examiner noted that an emergency room note from service indicated that the shrapnel wounds were to the right thigh and calf and the left buttocks. The wounds were debrided and the veteran was placed on antibiotics. He was on light duty one to two weeks, and then returned to duty. The veteran reported that he subsequently continued to have intermittent areas of involvement, but received no definitive treatment other than periodic pain pills. After leaving service, he had no further medical evaluation or definitive treatment for the lower extremity problems. He was also not receiving treatment or taking medications for a lower extremity disorder at the time of the examination. He reported complaints of having an occasional dull throbbing pain in the right thigh which was precipitated by running. On examination, the veteran walked from the waiting room to the examination room with an essentially normal gait. He was able to walk on his tiptoes and heels without difficulty. He could duck walk without apparent pain. He had multiple punctate scars over the posterior and medial aspect of the right thigh and right proximal calf. He also had a small scar over the left buttock. The pertinent diagnosis was soft tissue wounds to the left buttock and right lower extremity, service-connected. The examiner noted that he had reviewed the veteran's records. As stated above, the original emergency room record stated that the wounds were to the right thigh and calf and the left buttock. The x-ray request on that day gave a history of a 20 year old infantryman with shrapnel of the right lower extremity and left buttock. The interpretation of the films indicated that there was metallic density throughout the left lower extremity and buttocks with no bony involvement. The VA examiner stated that he felt that it could safely be assumed that the x-ray report was incorrect [with respect to which lower extremity was involved]. Finally, the examiner indicated that in his opinion the veteran had been left with no functional impairment due to the "shrapnel" wounds that he received to the left buttock and right lower extremity. After reviewing all of the evidence of record, the Board finds that the veteran has not presented any competent evidence that he has a right leg disorder other than the disabilities for which he has already established service connection. No disorder of the right leg was noted in the private orthopedic consultation report of August 1996, and the only right leg disorders noted on the VA examination in November 1998 were the shrapnel wound residuals for which service connection has already been granted. A service- connection claim must be accompanied by evidence which establishes that the claimant currently has the claimed disability. See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); Rabideau v. Derwinski, 2 Vet. App. 141, 144 (1992). Accordingly, the Board concludes that the claim for service connection for a right leg disorder is not well grounded. II. Entitlement To A Higher (Compensable) Initial Rating For Residuals Of Shell Fragment Wounds Of The Right Lower Extremity And Left Buttocks With Retained Foreign Bodies. The veteran's claim for a higher initial disability rating is "well-grounded" within the meaning of 38 U.S.C.A. § 5107(a) (West 1991). The Board also finds that all relevant facts have been properly developed, and that all evidence necessary for equitable resolution of the issue on appeal has been obtained. The evidence includes the veteran's service medical records, and post-service medical treatment records. The veteran has been afforded a disability evaluation examination. He has declined a personal hearing. The Board does not know of any additional relevant evidence which is available. Therefore, no further assistance to the veteran with the development of evidence is required. Disability evaluations are determined by the application of a schedule of ratings which is based on the average impairment of earning capacity in civil occupations. See 38 U.S.C.A. § 1155 (West 1991). Separate diagnostic codes identify the various disabilities. The assignment of a particular diagnostic code is dependent on the facts of a particular case. See Butts v. Brown, 5 Vet. App. 532, 538 (1993). One diagnostic code may be more appropriate than another based on such factors as an individual's relevant medical history, the current diagnosis, and demonstrated symptomatology. In reviewing the claim for a higher rating, the Board must consider which diagnostic code or codes are most appropriate for application in the veteran's case and provide an explanation for the conclusion. See Tedeschi v. Brown, 7 Vet. App. 411, 414 (1995). Since the appeal for higher evaluations arises from the initial rating decisions which established service connection for each disability and assigned the initial disability evaluations, the entire rating period is to be considered including the possibility of staged ratings; that is, separate ratings for separate periods of time based on the facts found. See Fenderson v. West, 12 Vet. App. 119 (1999). The issues have been characterized accordingly. Under 38 C.F.R. § 4.118, Diagnostic Code 7803 (1999), a 10 percent rating may be granted for a superficial scar that is poorly nourished with repeated ulceration. Under Diagnostic Code 7804, a 10 percent rating may be assigned if the scar is painful and tender on objective examination. A compensable rating may be assigned under Diagnostic Code 7805 if there is limitation of function of the affected part. Under 38 C.F.R. § 4.31 (1999), however, when the requirements for a compensable evaluation are not met, a zero percent rating shall be assigned. The Court has emphasized that when assigning a disability rating, it is necessary to consider functional loss due to flare-ups, fatigability, incoordination, and pain on movements. See DeLuca v. Brown, 8 Vet. App. 202, 206-7 (1995). The rating for an orthopedic disorder should reflect functional limitation which is due to pain which is supported by adequate pathology and evidenced by the visible behavior of the claimant undertaking the motion. Weakness is also as important as limitation of motion, and a part which becomes painful on use must be regarded as seriously disabled. A little used part of the musculoskeletal system may be expected to show evidence of disuse, either through atrophy, the condition of the skin, absence of normal callosity, or the like. See 38 C.F.R. § 4.40 (1999). The factors of disability reside in reductions of their normal excursion of movements in different planes. Instability of station, disturbance of locomotion, and interference with sitting, standing, and weight bearing are related considerations. See 38 C.F.R. § 4.45 (1999). It is the intention of the rating schedule to recognize actually painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimal compensable rating for the joint. See 38 C.F.R. § 4.59 (1999). The pertinent evidence has been summarized above in connection with the discussion of the claim for service connection for a right lower extremity disorder. As noted above, the private orthopedic examination report from August 1996 did not contain any complaints, findings, or diagnoses pertaining to a right lower extremity disorder. Moreover, the VA examination report dated in November 1998 shows that the examiner concluded that the shrapnel wounds caused no functional impairment. After considering all of the relevant evidence, the Board finds that the evidence shows that the residuals of shell fragment wounds of the right lower extremity and left buttocks with retained foreign bodies have not resulted in poorly nourished scars with repeated ulceration; the residual scars are not painful and tender on objective examination, and the residuals do not interfere with function of the right lower extremity or left buttock. The Board also notes that a compensable rating may not be assigned on the basis of disfigurement unless the scar is located on the head, face, or neck. See 38 C.F.R. § 4.118, Diagnostic Code 7800 (1999). Accordingly, the Board concludes that the criteria for a compensable initial rating for residuals of shell fragment wounds of the right lower extremity and left buttock with retained foreign bodies are not met. III. Entitlement To A Higher (Compensable) Initial Rating For Residuals Of A Fracture Of The Right Fifth Toe. The veteran's service medical records show that the veteran was injured in May 1986 when he dropped weightlifting equipment on the fifth toe of his right foot. He was diagnosed as having a fracture of the right fifth proximal phalanx. The service medical records do not reflect any subsequent problems pertaining to that injury. Under Diagnostic Code 5284, a 10 percent rating is warranted for an injury of the foot which is moderate in degree. A 20 percent rating is warranted for a moderately-severe injury. A 30 percent rating is warranted for a severe injury. A 40 percent rating may be assigned if there is actual loss of use of the foot. Under 38 C.F.R. § 4.31 (1999), however, a zero percent rating shall be assigned when the requirements for a compensable evaluation are not met. After considering all of the relevant evidence, the Board finds that there is no evidence that the residuals of a fracture of the right fifth toe are currently productive of any disability. Neither the private orthopedic examination report, nor the VA examination report contains any mention of impairment due to the fracture of the right fifth toe. A moderate injury of the foot has not been demonstrated. Accordingly, the Board concludes that the criteria for a 10 percent rating for residuals of a fracture of the right fifth toe are not met. Further, the record does not present such "an exceptional or unusual disability picture as to render impractical the application of the regular rating schedule standards." See 38 C.F.R. § 3.321(b)(1)(1999). There has been no showing that the veteran's service-connected disability has resulted in marked interference with employment or necessitated frequent periods of hospitalization. He has not been hospitalized for the disorder and there has been no objective evidence submitted that the veteran is unemployable due to the disability or that he has lost substantial periods of time from work. Under these circumstances, the Board finds that the veteran has not demonstrated frequent periods of hospitalization or marked interference with employment so as to render impractical the application of the regular rating schedule standards. In the absence of such factors, the Board finds that criteria for submission for assignment of an extraschedular rating pursuant to 38 C.F.R. § 3.321(b)(1) are not met. See Bagwell v. Brown, 9 Vet. App. 337 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). ORDER 1. Service connection for a right leg disorder is denied. 2. A higher (compensable) initial rating for residuals of shell fragment wounds of the right lower extremity and left buttocks with retained foreign bodies is denied. 3. A higher (compensable) initial rating for residuals of a fracture of the right fifth toe is denied. WARREN W. RICE, JR. Member, Board of Veterans' Appeals