BVA9505686 DOCKET NO. 90-22 080 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Manila, Philippines THE ISSUES 1. Entitlement to a disability evaluation in excess of 30 percent for residuals of a gunshot wound of the right leg (Muscle Groups XI and XII), to include a separate evaluation for tender and painful scars on the right leg. 2. Entitlement to a disability evaluation in excess of 10 percent for residuals of fractures of the right tibia and fibula. 3. Entitlement to a disability evaluation in excess of 20 percent for residuals of a gunshot wound of the right shoulder girdle (Muscle Group II). 4. Entitlement to a disability evaluation in excess of 10 percent for residuals of a gunshot wound of the right arm (Muscle Group VI). 5. Entitlement to a total rating based upon unemployability due to service-connected disabilities. 6. Entitlement to a nonservice-connected pension, to include a special monthly pension under the provisions of 38 U.S.C.A. § 1562. 7. Entitlement to payment of Department of Veterans Affairs compensation benefits at the full-dollar rate. ATTORNEY FOR THE BOARD William W. Berg, Counsel INTRODUCTION The veteran had recognized service during World War II. When this case was previously before the Board of Veterans' Appeals (Board) in April 1994, it was remanded to the Department of Veterans Affairs (VA) Regional Office (RO) in Manila, Philippines, for additional development pursuant to a decision of the United States Court of Veterans Appeals (Court), which vacated a July 1990 Board decision and remanded the case to the Board for further proceedings consistent with the Court's decision. [citation redacted]. The veteran acts as his own advocate in this matter. The case is now before the Board for final appellate consideration. CONTENTIONS OF APPELLANT ON APPEAL The veteran contends, in essence, that the RO committed error in denying his claims of entitlement to increased evaluations for his service-connected gunshot wound residuals and for residuals of fractures of the right tibia and fibula. It is maintained that the service-connected disabilities are more severely disabling than currently evaluated. It is claimed with respect to the right tibia and fibula fractures that he now has moderate ankle disability and that an increased evaluation is therefore warranted. The veteran further claims that he is unable to secure or follow substantially gainful employment as a result of the combined impact of his service-connected disabilities. Finally, it is maintained that he is entitled to nonservice- connected pension benefits, including a special monthly pension under 38 U.S.C.A. § 1562, and to payment of compensation benefits at the full-dollar rate. He appears to maintain that 38 U.S.C.A. § 107(a), which as applied to the veteran authorizes denial of nonservice-connected pension benefits and payment of compensation at the full-dollar rate, is unconstitutional. 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 claims file. Based on its review of the relevant evidence in this matter, 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 increased evaluations for service-connected residuals of gunshot wounds of the right leg (Muscle Groups XI and XII), right shoulder girdle (Muscle Group II), and right arm (Muscle Group VI); it is the further decision of the Board that the claim of entitlement to nonservice-connected pension benefits, including a special monthly pension under 38 U.S.C.A. § 1562, and the claim of entitlement to payment of VA compensation benefits at the full-dollar rate are without legal merit. It is also the decision of the Board that the preponderance of the evidence warrants a 20 percent evaluation for residuals of fractures of the right tibia and fibula; a separate 10 percent evaluation for tender and painful scars on the right leg; and a total rating based on unemployability due to service-connected disabilities. FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of this appeal has been obtained. 2. Residuals of a gunshot wound of the right leg (Muscle Groups XI and XII) are productive of no more than severe impairment. 3. Gunshot wound scars on the right leg are tender and painful on objective demonstration. 4. Residuals of fractures of the right tibia and fibula are manifested by malunion of the tibia and fibula and by moderate ankle disability. 5. The veteran is right-handed. 6. Residuals of a gunshot wound of the right shoulder girdle (Muscle Group II) are productive of no more than moderate impairment. 7. Residuals of a gunshot wound of the right arm (Muscle Group VI) are productive of no more than moderate impairment. 8. No unusual or exceptional disability factors have been presented with respect to the veteran's individual service- connected disabilities. 9. The veteran has no significant formal education but has occupational experience in farming; he does not appear to have worked since his World War II service. 10. It is probable that the service-connected disabilities preclude the veteran from securing or following any form of substantially gainful employment consistent with his education and occupational experience. 11. The veteran had recognized guerrilla service from March 1945 to June 3, 1946, and regular Philippine Army service from June 4 to June 30, 1946. CONCLUSIONS OF LAW 1. The criteria for a disability evaluation in excess of 30 percent for residuals of a gunshot wound of the right leg (Muscle Groups XI and XII) have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §§ 3.321(b)(1), 4.7, 4.73, Codes 5311, 5312 (1994). 2. The criteria for a separate 10 percent evaluation for tender and painful gunshot wound scars on the right leg have been met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §§ 3.321(b)(1), 4.7, 4.118, Code 7804 (1994). 3. The criteria for a 20 percent evaluation for residuals of fractures of the right tibia and fibula have been met. 38 U.S.C.A. §§ 1155 , 5107 (West 1991); 38 C.F.R. §§ 3.321(b)(1), 4.7, 4.71a, Code 5262 (1994). 4. The criteria for a disability evaluation in excess of 20 percent for residuals of a gunshot wound of the right shoulder girdle (Muscle Group II) have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §§ 3.321(b)(1), 4.7, 4.73, Code 5302 (1994). 5. The criteria for a disability evaluation in excess of 10 percent for residuals of a gunshot wound of the right arm (Muscle Group VI) have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §§ 3.321(b)(1), 4.7, 4.73, Code 5306 (1994). 6. The criteria for a total rating based on unemployability due to service-connected disabilities have been met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §§ 3.340, 3.341, 4.16 (1994). 7. The veteran does not have qualifying military service for purposes of entitlement to a nonservice-connected pension, including a special monthly pension under 38 U.S.C.A. § 1562. 38 U.S.C.A. §§ 101(2), 107, 1521, 1562, 3566 (West 1991); 38 C.F.R. §§ 3.8, 3.802 (1994). 8. Payment of VA compensation benefits at the full-dollar rate is not warranted. 38 U.S.C.A. § 107 (West 1991); 38 C.F.R. § 3.8 (1994). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS As a preliminary matter, the Board finds that the veteran's claims for increased evaluations and for a total disability rating are plausible and thus well grounded within the meaning of 38 U.S.C.A. § 5107(a); see Proscelle v. Derwinski, 2 Vet.App. 629 (1992) (a claim of entitlement to an increased evaluation for a service-connected disability generally is a well-grounded claim). The Board is satisfied that all relevant evidence has been obtained with respect to these claims and that no further assistance to the veteran is required in order to comply with the duty to assist mandated by statute. Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity in civil occupations. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. Separate diagnostic codes identify the various disabilities. In assessing the degree of disability attributable to a service-connected disorder, the disorder is viewed in relation to its whole history. 38 C.F.R. §§ 4.1, 4.2, 4.41, and 4.42 (1993); Schafrath v. Derwinski, 1 Vet.App. 589 (1991). I. Factual Background to the Gunshot Wound Residuals Service medical records dated in November 1945 show that the veteran was wounded by enemy fire the previous July. It was reported that he had sustained fracture and malunion of the tibia and fibula on the "left" at the middle thirds, secondary to a perforating .30-caliber gunshot wound. The fracture was initially described as a complete compound fracture of the tibia and fibula. Chronic osteomyelitis of the "left" tibia was also diagnosed. The veteran was transferred to another hospital in May 1946, and it was noted that he had sustained a perforating gunshot wound of his right leg. The point of entrance was the junction of the middle and lower thirds of his right leg. The point of exit was the lateral aspect at the same level. It was also reported that the injury had resulted in a complete compound comminuted fracture of the right tibia and fibula. It was reported that in July 1945, he had undergone skeletal traction by means of a Kirschner wire through the os calcis. A full leg cast had been applied in September 1945. A certificate from a Philippine hospital dated in April 1947 indicates that the veteran was treated from May 1946 to February 19947 for residuals of the gunshot wounds sustained in action. A joint affidavit from his service comrades dated in September 1948 indicates that he sustained gunshot wounds through the legs, the arm, and the back as a result of enemy action in July 1945. On VA orthopedic examination in November 1949, it was reported that the veteran walked with a limp. A deformity of the right leg was noted. There was lateral angulation at the lower third level of the leg, which was found to be 2 centimeters shorter than the left. Dorsiflexion of the right ankle was nil. Plantar flexion was within normal limits. Muscle atrophy of the right leg and foot was noted. The circumference of the right calf was 2 centimeters smaller than the left. The circumference of the right foot was 1 1/2 centimeters smaller than the left. An entrance scar was noted at the lower third level on the medial aspect of the right leg. The scar was 5 centimeters by 1 1/2 centimeters and was nonadherent and not painful. An exit scar was noted at the same level as the entrance scar, but on the lateral aspect of the leg. The scar was 9 centimeters by 4 centimeters and was "elevated," adherent and painful. Hypoesthesia of the entire right foot was noted. X-rays reportedly showed a healed fracture at the distal one-third of the right tibia and fibula with slight medial angulation of the fragments. The diagnosis was residuals of a gunshot wound, right leg with healed cicatrices; healed fracture with medial angulation of the fragments; and involvement of Muscle Groups XI and XII with manifestations. In December 1949, the RO granted service connection for residuals of a gunshot wound of the right leg with injury to Muscle Groups XI and XII, a fractured fibula, 2-centimeter shortening and hypoesthesia. The service-connected disability was rated as a moderately severe injury of Muscle Group XI, and a 20 percent evaluation was assigned from June 1948. A private medical report dated in April 1951 shows that the veteran had an old fracture of the right leg, the result of a through-and-through gunshot wound. It was also reported that he had an old through-and-through gunshot wound in the right axillary region and that he had partial paresis of that region due to the old gunshot wound. A chest X-ray in November 1949 was interpreted as within normal limits. In September 1951, the Board granted a separate 10 percent evaluation for impairment of the right tibia and fibula with ankle disability under Code 5262 of the rating schedule. The RO implemented the Board's decision in a rating decision the following month, assigning an effective date in June 1948 for the 10 percent evaluation. A private medical report dated in January 1955 noted that the veteran had a scar in the right axillary and scapular region. There was also a scar on the lower one-third of the right leg, internal and external sides, with deformity of the tibia and fibula due to a gunshot wound. The diagnosis was rheumatism of the right leg and right shoulder joint, secondary to gunshot wounds of the lower one-third of the right leg and of the right axillary and scapular region. A private treatment report dated in February 1956 shows that the veteran complained of pain on motion around the right shoulder joint. An examination reportedly revealed moderate tenderness over the inferior angle of the scapula, and limited motion of the right arm. The grip strength in the veteran's right hand was less than in his left hand as a result of slight atrophy of the muscles. An examination of his right leg revealed a "marked" deformity. Bony outgrowths appeared around the site of the fractured tibia, and it was noted that his right leg was shorter than his left and that he walked with a limp. Muscular atrophy of the leg was also noted. On VA examination in June 1956, it was reported that the veteran had sustained through-and-through gunshot wounds of the right leg and right arm, including the right side of his back below the right scapula. He complained of pain, numbness, and weakness of the right leg. He reported having pain and numbness in his right arm and back. An examination revealed that he walked with a right-sided limp. A 1 1/4-inch by 3/4-inch depressed, adherent and tender scar was noted on the medial aspect of the lower half of the right leg, which was felt to be the point of entry. A 1- inch by 2-inch tender, adherent and depressed scar was noted on the lateral aspect of the lower third of the right leg, which was felt to be the point of exit. Atrophy of the muscles of the right leg and deformity of the right leg at the site of the injury were noted. The right lower extremity was shorter than the left. The circumference of the calf on the right was 10 1/2 inches and on the left was 11 1/2 inches. The right leg length was 31 1/2 inches and the left leg length was 32 1/2 inches. A 1 1/2-inch by 1-inch nondepressed, adherent, nonpainful scar was noted on the posteromedial aspect of the upper third of the veteran's right arm. A 1 1/2-inch by 1-inch nondepressed, adherent, nonpainful scar was noted on his right back below the right scapula. Involvement of the triceps brachii and the latissimus dorsi muscles was noted. X-rays of the chest were within normal limits. X-rays of the right leg showed healed fractures with deformity at the lower third of both the right tibia and fibula. X-rays of the right shoulder showed a large metallic foreign body at the level of the coracoid process. The diagnoses were consistent with the clinical and X-ray findings and also noted muscle injury involving the flexor digitorum longus, extensor digitorum longus, peroneus longus and brevis muscles, and shortening of the right lower extremity. On the basis of these findings, the RO in August 1956 granted service connection for residuals of a gunshot wound involving Muscle Group II, and assigned a 20 percent evaluation. The RO also granted service connection for residuals of a gunshot wound involving Muscle Group VI, and assigned a 10 percent evaluation. The combined service-connected evaluation was 50 percent from January 1956. Statements from private physicians dated in 1983 and 1985 show that the veteran was followed for osteomyelitis of the right tibia. Outside X-rays of the veteran's right leg performed in November 1983 were interpreted by VA in July 1985 as showing old healed malunited fractures with ankylosis, distal thirds, of the tibia and fibula; metallic wire, subcutaneous tissues, distal thirds, right leg laterally; and arthritis of the right ankle, probably post-traumatic in nature. However, osteomyelitis was not visualized. When the veteran was examined by VA in July 1985, he complained of pain at both sites of the gunshot wound of his right leg. An examination revealed healed scars of an old through-and-through gunshot wound at the lower third of the right leg. There was a slight bowing of his right lower leg with an irregular bony prominence, laterally. There was no active wound or discharge. The right ankle exhibited dorsiflexion from 0 to 10 degrees and plantar flexion from 0 to 35 degrees. A point of entry scar was noted at the inferoposterior right axillary fold and a point of exit scar was noted just below the scapular angle at the right back. There was no limitation of motion of the right shoulder. The veteran's right leg was three-quarters of an inch shorter than his left. The circumference of his right thigh was a quarter inch smaller than his left, and the circumference of his right leg was one inch smaller than his left. A special neurologic examination revealed muscle atrophy and deformity over the right leg, and it was observed that he walked with a limp favoring his right leg. Movement of his right foot was restricted because of subjective complaints of pain, and tenderness was also noted over the same area. No abnormal movements were noted, and his coordination was considered normal. His reflexes were equal and normal, except for his Achilles tendon where reflexes were somewhat diminished bilaterally. Babinski, Chaddock and Hoffman tests were negative. His nerve status was negative, and no sensory deficit was noted. His mental status was found to be clear, concise and coherent. The diagnostic impression was that there was no evidence of primary muscle or nerve disease. An X-ray of the right leg showed a slight residual angulation at the fracture sites. The fractures of the tibia and fibula were felt to be completely healed. An area of radiolucency in the tibia and in the region of the fracture was noted. "Slight" areas of periosteal reaction were noted on the medial aspect of the tibia at the level of the fracture. No evidence of active bone erosion was noted, but further radiographic follow-up or obtaining previous films for comparison in order to determine the exact nature of the irregularity on the medial aspect of the tibia was recommended. The diagnoses were consistent with clinical findings and previous examinations. It was felt that there was no clinical evidence of osteomyelitis of the right tibia at that time. A rating decision in September 1985 continued the previous evaluations. In a statement dated in June 1987, R. C. Alba, Jr., M.D., stated that the veteran had osteomyelitis of the right tibia. It was reported that the veteran was weak and unable to walk without aid. Dr. Alba made similar statements in June 1986 and March 1988. On the latter occasion, he added that the veteran had severe right shoulder and chest pains. On VA examination in September 1987, the veteran complained of pain in his right lower extremity. An examination showed healed scars in the right lower shoulder region, but no limitation of motion of the right shoulder was noted. It was reported that the veteran is right-handed. Healed scars on the lower third of the right leg were noted, as was a slight bowing of that part of the leg. The bowing was convexed outward, and there was increased bony prominence laterally. No active wound or discharge was noted. The circumference of the right leg was found to be one- half inch smaller than the left, and his right leg was found to be 1 1/2 inches shorter than his left. An X-ray of his right leg revealed old fractures of the distal thirds of the right tibia and fibula with slight overriding of the fracture fragments with residual angulation at the fracture site. The fractures were said to be completely healed, but probable ankylosis between the tibia and fibula was noted. A comparison with an outside film dated in November 1983 showed no significant change in the appearance of the old healed fractures, although a metallic wire had been visualized in the soft tissues lateral to the fibula that was not seen at this time. No evidence of active bone destruction or erosion was visualized. The diagnoses pertinently included healed scars of the right shoulder area; residuals of a gunshot wound of the right leg, including healed scars; and healed fractures of the right tibia and fibula and shortening of the right leg. Osteomyelitis of the right tibia was not found. In February 1989, the Board granted a 30 percent evaluation for residuals of a gunshot wound of the right lower leg but denied increased evaluations for residuals of fractures of the right tibia and fibula, residuals of a gunshot wound affecting Muscle Group II, and residuals of a gunshot wound affecting Muscle Group VI. The RO implemented this decision in a rating decision dated in April 1989, and a 60 percent combined evaluation was assigned from April 1987. The veteran subsequently reopened his claim for increased evaluations and submitted private medical statements in support of his claim, although these statements are essentially duplicative of evidence previously of record and previously reported. A. Increased Evaluation for Residuals of a Gunshot Wound of the Right Leg (Muscle Group XI and XII), to Include Scars on the Right Leg When evaluated by Dr. Fabreo, a private orthopedic surgeon, in May 1993, it was reported that the veteran had pain on the medial aspect of his right knee and distal third of his right leg aggravated by standing and walking. Dr. Fabreo also reported that X-ray evaluation showed diminished joint space with osteophyte formation at the medial part of the right knee consistent with a unicompartment degenerative osteoarthritis of the medial aspect of the knee. Dr. Fabreo stated that the veteran's complaints and X-ray findings were brought about by the altered biomechanical functioning of the varus malunited fracture of his right tibia-fibula as a long-term sequelae, now affecting his right knee. When examined by VA in June 1993, the veteran complained of pain at the gunshot wound sites on the right leg. The right leg circumference was 2 centimeters less than the left leg circumference, and there were adhesions to the subcutaneous tissue on the right leg. The right leg was said to exhibit poor strength, and there was tenderness on palpation and motion of the leg. There was a 3-centimeter healed depressed scar along the medial aspect of the right leg; there was a 4-centimeter by 3- centimeter flat scar along the lateral aspect of the right leg. There was no keloid formation or ulceration, but the scars were tender on palpation. The right lower extremity was 1 centimeter shorter than the left lower extremity. There was flexion of the right knee to 90 degrees. Arthritic changes in the right knee were visualized on X-rays of the right lower extremity. The radiologist's impression was that there were post-traumatic and degenerative arthritic changes, slightly increased, in the right knee and ankle joints. The veteran was again examined by VA in May 1994, pursuant to the Board's remand the previous April. The veteran complained of pain in his right leg and knee, especially when cold, although the pain was partially relieved by analgesics. An examination of the joints revealed no swelling. The veteran had flexion of the right knee to 120 degrees and full extension of the knee. There was no atrophy of the right leg muscles compared to the left. The muscles penetrated were Groups XI and XII of the right leg. Adhesions of muscle on the lateral aspect of the fibula were noted. Damage to the lateral aspect of the muscle group of the right leg due to adhesion was thought possible. There was no damage to the right ankle or right knee, nor were neurovascular deficits noted. The muscle groups affected were assessed to have good strength. The veteran claimed to have pain over the lateral aspect of the right leg and knee. There was no evidence of muscle hernia. Scars were noted on the medial and lateral aspects of the right leg. The issue with respect to the gunshot wound residuals affecting Muscle Groups XI and XII is whether the 30 percent evaluation currently assigned accurately reflects the degree of disability present. In this regard, disability evaluations are based upon a comparison of the clinical findings with the applicable schedular criteria contained in the rating schedule. The 30 percent evaluation now assigned is the maximum schedular evaluation available for severe residuals of injury to Muscle Groups XI and XII when severe residuals are shown. A compound comminuted fracture with muscle damage normally establishes severe muscle injury, 38 C.F.R. § 4.72 (1994), and this was the apparent basis for the grant of a 30 percent evaluation by the Board in February 1989. But muscle injuries in the same anatomical region such as the leg and foot may not be combined; instead, the evaluation for the major groups affected will be elevated from moderately severe to severe, according to the severity of the aggregate impairment of function of the extremity. 38 C.F.R. § 4.55(a) (1994). The functions of Muscle Group XI include flexion of the knee and plantar flexion of the foot, while Muscle Group XII's functions include dorsiflexion of the foot. 38 C.F.R. § 4.73, Part 4, Codes 5311, 5312. However, the Board is satisfied that the evidence in this case warrants no more than the evaluation currently assigned for the disability at issue. Findings indicative of more than moderately severe injury to Muscle Groups XI and XII were not shown when the veteran was examined by VA in June 1993 and May 1994. Although the veteran had right knee flexion to 90 degrees in 1993, he had flexion of the knee to 120 degrees and full extension of the knee when examined in May 1994. This represents noncompensable limitation of leg motion under the rating schedule. 38 C.F.R. § 4.71a, Codes 5260, 5261. He exhibited dorsiflexion of the right ankle to 5 degrees and plantar flexion to 10 degrees in 1993, and he had dorsiflexion to 10 degrees and plantar flexion to 20 degrees when examined in 1994. X-rays of the right lower extremity were essentially unchanged from 1987, although post- traumatic arthritic changes in the right knee and ankle were slightly increased. Moderately severe muscle damage is usually manifested by entrance and exit scars that are relatively large and so situated as to indicate the track of missile through important muscle groups, 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; and tests of strength and endurance of muscle groups involved (compared with the sound side) showing positive evidence of marked or moderately severe loss. 38 C.F.R. § 4.56(c) (1994). The aggregate impairment of function of the right leg from the combined effects of the injury to Muscle Groups XI and XII is not shown to be any more than severe in light of the criteria contained in 38 C.F.R. § 4.56(d). The Board concludes that the preponderance of the evidence is against the claim for a disability evaluation in excess of 30 percent for residuals of a gunshot wound of the right leg (Muscle Groups XI and XII). However, as recent examinations have shown that the gunshot wound scars on the right leg are tender and painful on palpation, the veteran is entitled to a separate 10 percent evaluation for these scars under Code 7804 because they affect separate functions from the muscle groups involved. See Esteban v. Brown, 6 Vet.App. 259, 261-62 (1994). Although the combined service-connected evaluation for the right lower extremity would now be 50 percent, this does not violate the amputation rule because there is right knee involvement resulting from damage to Muscle Groups XI and XII. See 38 C.F.R. § 4.68 (1994). Insofar as the scars on the right leg are in the same anatomical region, however, separate 10 percent evaluations for each scar may not be assigned. 38 C.F.R. § 4.14 (1994). B. Increased Evaluation for Residuals of Fractures of the Right Tibia and Fibula The RO in January 1990 continued the 10 percent evaluation for service-connected residuals of fractures of the right tibia and fibula. Under the rating schedule, impairment of the tibia and fibula as a result of malunion with slight knee or ankle disability warrants a 10 percent evaluation; with moderate knee or ankle disability, a 20 percent evaluation may be assigned. A 30 percent evaluation is warranted where marked knee or ankle disability is shown. 38 C.F.R. § 4.71a, Part 4, Code 5262. A 20 percent evaluation may be granted where there is marked limitation of ankle motion. 38 C.F.R. § 4.71a, Part 4, Code 5271. Arthritis as a result of trauma is rated as for degenerative arthritis. 38 C.F.R. § 4.71a, Part 4, Code 5010. Degenerative arthritis established by X-ray findings is evaluated on the basis of limitation of motion under the appropriate diagnostic code for the specific joint involved. 38 C.F.R. § 4.71a, Part 4, Code 5003. The history of the disability in this case shows that residuals of fractures of the right tibia and fibula have been rated on the basis of ankle impairment under Code 5262. Dr. Fabreo in May 1993 reported that X-ray evaluation showed a malunited fracture in varus position at the distal third of the tibia and fibula. Recent VA examinations include X-ray findings essentially unchanged from those shown in September 1987, except that arthritic changes in the right ankle are slightly increased. It appears that the veteran uses crutches for ambulation with a right-sided limp, as well as special orthopedic shoes. There is bony protuberance of the lower third of the right leg with an angulation deformity. Malunion has been visualized on X-ray studies over the years, and the right leg is shown to be at least one centimeter shorter than the left. The veteran has dorsiflexion of the right ankle to 10 degrees (normal: 20 degrees) and he has plantar flexion to 20 degrees (normal: 45 degrees). 38 C.F.R. § 4.71, Plate II (1994). The veteran thus exhibits moderate limitation of right ankle motion as a residual of the fractures of the tibia and fibula. Although moderate limitation of ankle motion warrants only a 10 percent rating under Code 5271, a 20 percent evaluation may be assigned under Code 5262 because malunion of the tibia and fibula and moderate ankle disability are demonstrated. The service- connected disability is rated on the basis of the dominant disability shown to be present, but the evaluation of manifestations of the same service-connected disability under different diagnoses is precluded by regulation. 38 C.F.R. § 4.14 (1994). A 30 percent evaluation is not warranted because the evidence does not show marked ankle disability, nor do the symptoms of the service-connected fracture residuals more nearly approximate the criteria required for the next higher evaluation. 38 C.F.R. § 4.7. After a careful review of the entire record, the Board concludes that the preponderance of the evidence warrants a 20 percent evaluation for residuals of fractures of the right tibia and fibula. C. Increased Evaluation for Residuals of a Gunshot Wound of the Right Shoulder Girdle (Muscle Group II) The record shows that the veteran is right handed, and the gunshot wounds of his right shoulder and right arm thus affect his major upper extremity. The residuals of the gunshot wound of the right shoulder girdle (Muscle Group II) have been found by the RO to result in moderate muscle injury under the rating schedule, and a 20 percent evaluation has been assigned under Code 5302. That rating is now protected. 38 C.F.R. § 3.951 (1994). However, the evidence of current impairment does not show that a higher rating is warranted. When the veteran was examined by VA in June 1993, he had a 2-centimeter scar in the right scapular area which was depressed and slightly tender but which was without keloid formation or ulceration. There was no evidence that the scar was adherent. He exhibited flexion and abduction of the right shoulder to 150 degrees. (Normal flexion and abduction: 0 to 180 degrees). 38 C.F.R. § 4.71, Plate I. This represents noncompensable limitation of arm motion under the rating schedule. 38 C.F.R. § 4.71a, Code 5201. Although multiple foreign bodies were visualized in the right scapular area on X-rays, no arthritic changes were found, and there is no showing of significant impairment as a result of the presence of the foreign bodies. When the veteran was again examined by VA in May 1994, findings concerning the right shoulder girdle were minimal. The scar on the posterior aspect of the right scapula was not shown to be adherent or otherwise affect the function of the right shoulder, nor was it shown to be ulcerative. The scar apparently remained somewhat tender, but no evidence of neurovascular deficits or of muscle herniation was found. Indeed, the examiner indicated that the affected muscle group exhibited good strength. The range of motion of the right shoulder was found to be full in all planes of excursion. The pertinent diagnosis was gunshot wound residuals of the right scapula. It is thus apparent that the gunshot wound of the right shoulder girdle is currently manifested primarily by a tender scar in the right scapular region, but such a finding cannot be said to warrant an evaluation greater than that currently in place. The Board is of the opinion that the 20 percent evaluation now assigned adequately compensates the veteran for the minimal residuals currently shown. See 38 C.F.R. § 4.7. The Board thus concludes that the preponderance of the evidence is clearly against the claim for an evaluation greater than 20 percent for residuals of a gunshot wound of the right shoulder girdle (Muscle Group II). D. Increased Evaluation for Residuals of a Gunshot Wound of the Right Arm (Muscle Group VI) The residuals of a gunshot wound of the right arm (Muscle Group VI) have been rated as 10 percent disabling for many years, and that evaluation is now protected. 38 C.F.R. § 3.951. As with the service-connected residuals of a gunshot wound affecting Muscle Group II, these residuals are not shown by recent evidence to result in more than moderate impairment of the muscle group involved. An increased evaluation under Code 5306 is warranted only where moderately severe muscle injury is shown. As with the right shoulder, the gunshot wound residuals of the right arm have been essentially static for many years. When the veteran was examined by VA in June 1993, a 5-centimeter scar on the medial aspect of the right arm and a 2-centimeter scar in the right axillary area were noted. The scars were found to be depressed and slightly tender, but they were nonadherent. There was no keloid formation or ulceration. There was no evidence that the scars were adherent or resulted in any limitation of function of the right arm. When examined by VA in May 1994, the veteran had full range of right elbow motion. X-ray studies of the right humerus in June 1993 were essentially normal; there were no retained foreign bodies or evidence of fracture or bone deformity. There was no evidence of loss of muscle strength or neurovascular deficit. The pertinent diagnosis on recent examination was gunshot wound residuals of the right arm, but as the evidence makes abundantly clear, these residuals are minimal, consisting currently entirely of slightly tender scars. Certainly, more than moderate impairment of Muscle Group VI is not demonstrated. See 38 C.F.R. § 4.7. The Board is therefore satisfied that the 10 percent evaluation now assigned adequately compensates the veteran for the minimal residuals now shown. Accordingly, the Board concludes that the preponderance of the evidence is clearly against the claim for an evaluation in excess of 10 percent for residuals of a gunshot wound of the right arm (Muscle Group VI). E. Functional Impairment and Extraschedular Evaluation In evaluating a service-connected disability, the Board attempts to determine the extent to which a service-connected disorder adversely affects the ability of the body to function under the ordinary conditions of life, including employment. 38 C.F.R. § 4.10. The Board also considers functional loss due to damage or pain. Functional loss due to impairment of the musculoskeletal system contemplates the inability to perform the normal working movements of the body with normal excursion, strength, speed, coordination and endurance, and it must be manifested by adequate evidence of disabling pathology, especially when it is due to pain. 38 C.F.R. § 4.40. However, the Board is of the opinion that the evaluations currently in effect, including the increased rating for the right leg fractures and the separate 10 percent rating for the right leg scars granted herein, adequately compensate the veteran for the functional impairment, including that due to pain, that his service-connected disabilities individually produce. There is no showing that any pain or other functional loss that the veteran might have is not contemplated in the ratings now assigned. Furthermore, the evidence with respect to the multiple gunshot wound residuals does not present such an exceptional or unusual disability picture as to render impractical the application of the regular schedular standards and thus warrant assignment of an extraschedular evaluation under 38 C.F.R. § 3.321(b)(1). The veteran has not required frequent periods of hospitalization for any individual service-connected disability, nor does the evidence show that a discrete service-connected disability has, by itself, resulted in marked interference with employment. II. The Claim for a Total Compensation Rating A total compensation rating may be assigned where the schedular rating is less than total when it is found that the veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. 38 C.F.R. §§ 3.340, 3.341, 4.16. The record indicates that the veteran is without any significant formal education and has some occupational experience in farming. He appears not to have worked since service. The combined service-connected evaluation remains 60 percent, even with the increased rating for the right leg fractures and the separate 10 percent rating for the right leg scars granted herein. No single service-connected disability is rated more than 30 percent disabling. Moreover, a recent opinion from a VA examiner is to the effect that the veteran is employable at a substantially gainful occupation such as carpentry, despite the combined effect of his service-connected disabilities. It is clear, however, that the veteran has no formal education and that his gunshot wound residuals, especially those affecting his right lower extremity, probably preclude significant physical exertion. In view of the absence of any formal education and the combined impact of the service-connected disabilities, the Board is of the opinion that more than marginal employment is probably precluded in this case. In these circumstances, the Board concludes that the record supports the grant of a total compensation rating. III. Basic Eligibility for Nonservice-connected Pension Benefits, including a Special Pension under 38 U.S.C.A. § 1562 The service department has certified that the veteran had recognized guerrilla service from March 10, 1945, to June 3, 1946, and regular Philippine army service from June 4 to June 30, 1946. The service department has also certified that the veteran, while still a member of the Philippine Commonwealth army, was released from service in the armed forces of the United States on June 30, 1946. The veteran's service under command of United States armed forces before July 1, 1946, however, is not deemed to be active military service for purposes of entitlement to nonservice-connected pension benefits, including a special monthly pension under 38 U.S.C.A. § 1562. 38 U.S.C.A. § 107(a). Because he lacks qualifying military service under the law, he is not considered a veteran for purposes of entitlement to the claimed pension benefits. 38 U.S.C.A. §101(2). Despite the veteran's contention to the contrary, section 107(a) has been upheld against constitutional challenge. Talon v. Brown, 999 F.2d 514, 517 (Fed. Cir.), cert. denied, 114 S.Ct. 643 (1993), rehearing denied, 114 S.Ct. 906 (1994); Quiban v. Veterans Administration, 928 F.2d 1154, 1159-63 (D.C. Cir. 1991); Dela Pena v. Derwinski, 2 Vet.App. 80 (1992). As the veteran lacks qualifying service, his claim for pension benefits, including a special monthly pension under 38 U.S.C.A. § 1562, is without legal merit and must be denied. Sabonis v. Brown, 6 Vet.App. 426, 430 (1994). IV. Payment of VA Compensation Benefits at the Full-Dollar Rate The veteran's service also entitles him to payment of VA compensation benefits only at a rate in pesos equal to fifty cents for each dollar authorized. 38 U.S.C.A. § 107(a). The veteran maintains that he is entitled to payment of his compensation benefits at the full-dollar rate, and he appears to suggest that the law that provides for payment of these benefits at the half-dollar rate is unconstitutional. However, the United States Court of Veterans Appeals recently rejected a challenge to the half-dollar payment provision of section 107(a) and upheld its constitutionality. In Florentino v. Brown, the Court held that payment of compensation benefits at the half-dollar rate under section 107(a) to a Filipino veteran was constitutional, even though he had become a citizen of the United States. No. 93-1025 (U.S. Vet. App. Feb. 1, 1995); see Talon v. Brown, 999 F.2d at 516-17 (payment of compensation benefits at the half- dollar rate under section 107(a) held constitutional as applied to a Filipino veteran who was a resident of the United States at the time he filed his pension claim). The veteran in this case is a citizen and resident of the Republic of the Philippines. It follows that the statute that precludes payment of his VA compensation benefits at the full-dollar rate is constitutional as applied to him. His appeal with respect to this issue is therefore without legal merit and must be denied. Sabonis v. Brown, 6 Vet.App. at 430. ORDER A disability evaluation in excess of 30 percent for residuals of a gunshot wound of the right leg (Muscle Groups XI and XII) is denied. A disability evaluation in excess of 20 percent for residuals of a gunshot wound of the right shoulder girdle (Muscle Group II) is denied. A disability evaluation in excess of 10 percent for residuals of a gunshot wound of the right arm (Muscle Group VI) is denied. Basic eligibility for entitlement to nonservice-connected pension benefits, including a special monthly pension under the provisions of 38 U.S.C.A. § 1562, is denied. Payment of VA compensation benefits at the full-dollar rate is denied. A 20 percent evaluation for residuals of fractures of the right tibia and fibula is granted, subject to controlling regulations governing the payment of monetary benefits. A 10 percent evaluation for gunshot wound scars on the right leg is granted, subject to controlling regulations governing the payment of monetary benefits. A total rating based on unemployability due to service-connected disabilities is granted, subject to controlling regulations governing the payment of monetary benefits. SHANE A. DURKIN 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.