BVA9503587 DOCKET NO. 93-07 430 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Manchester, New Hampshire THE ISSUE Entitlement to an increased (compensable) rating for residuals of a shrapnel wound on the lateral aspect of the right calf. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Richard F. Williams, Counsel INTRODUCTION The veteran served on active duty from March 1943 to January 1946. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a decision by the Department of Veterans Affairs (VA), Manchester, New Hampshire, Regional Office (RO), which denied a compensable rating for a shell fragment wound scar of the right calf. CONTENTIONS OF APPELLANT ON APPEAL The veteran contends that his service-connected shell fragment wound scar of the right calf constitutes a compensable disability. It is argued on his behalf that relevant clinical findings of record, including the depth and pigmentation of the scar at issue, support the veteran's claim. A representative asks the Board to consider the note after 38 C.F.R. § 4.118, Code 7804 (1994) and 38 C.F.R. § 4.59 (1994). 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 in this matter, and for the following reasons and bases, it is the decision of the Board that the evidence is in relative equipoise and, therefore, supports the claim for a 10 percent rating for a shell fragment wound scar of the right calf. FINDINGS OF FACT The veteran's shrapnel wound residuals of the right calf consist of a scar which is tender and painful on palpation. CONCLUSION OF LAW The criteria for a 10 percent rating for a shell fragment wound scar of the right calf have been met. 38 U.S.C.A. § 1155 (West 1991); 38 C.F.R. § 4.118, Code 7804. REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Factual Background The veteran served on active duty from March 1943 to January 1946. The service medical records show that he sustained burns of various areas including his right leg in an explosion in January 1945, when attempting to rescue the crew of a downed aircraft. The separation examination contains a history of shell fragment wounds involving his right thigh, right finger and right eye. Upon a VA medical examina-tion in July 1946, he gave a history of pain in the right thigh in damp weather, and the clinical evaluation revealed a scar on the right leg that was 1 inch in diameter, well healed, nontender, nonadherent, and with no loss of subcutaneous tissue. The veteran complained of right leg pain upon a VA medical examination in February 1947; no pertinent clinical findings were noted. VA examination in August 1947 revealed a shrapnel wound scar the size of a quarter on the inner aspect of the middle third of the right leg. There was a slight loss of subcutaneous tissue, but no muscle loss. The scar was non-tender. An RO decision on September 1947 granted service connection and assigned a noncompensable rating for a shell fragment wound scar on the lateral aspect of the right calf. The noncompensable rating has been in effect ever since. VA hospital and outpatient clinic records, dated from 1962 to 1990, are negative for any findings indicative of a symptomatic shell fragment wound scar of the right calf. The veteran underwent a VA compensation examination in July 1991. His complaints included occasional muscle cramps in the right calf at night. There was no tenderness, loss of sensation, or other abnormal findings attributed to a shell fragment wound scar of the right calf. The impression included multiple skin scars secondary to shrapnel and gunshot wounds, most notably on the distal anterior forearms. The veteran underwent a VA compensation examination in February 1992. He gave a history of a right calf injury in World War II in Germany in March 1945 when he was involved in a crash-landing of an airplane, where he sustained either a shrapnel or a bullet wound to his right calf, and multiple other injuries. He reported that, since the time of the accident, he has had mild tenderness with prolonged walking, and some mild weakness in the right leg. Over the past 1 to 2 years, he had noted some increased weakness and pain in his right leg, particularly with prolonged standing and with walking any significant distance. The pain was described as a deep ache without any associated cramping. There was a mild degree of discomfort at rest at all times, and the pain was accentuated with standing and activity. Physical examination revealed no evident atrophy. Bilateral calf varicosities were noted, slightly worse on the right. There was no edema. The veteran complained of mild tenderness on deep palpation of the belly of the gastrocnemius muscle on the right side. He also had some mild pain on deep palpation of the anterior aspect of the tibia in the midtibial shaft region. He was able to plantar flex while standing on his right foot only two times in a period of five seconds on the right side, compared to four times on the left. He was able to walk up a flight of stairs without any obvious disability. The range of motion of both knee and ankle joints was within normal limits. The right calf scar was described as a circular, 2-centimeter-in-diameter area of depigmentation over the medial aspect of the right upper calf region. An X-ray examination of the right lower leg was normal. A transcript of testimony presented by the veteran at a hearing conducted at the RO in December 1992 is on file. The hearing officer observed that the veteran had a shell fragment wound scar on the inside or medial aspect of his right calf, which looked approximately the size of a quarter, and some slight indentation to the skin was noted. The veteran testified that he had pain and muscle cramps in his right calf region, particularly with any prolonged standing or walking and in cold, damp weather. He indicated that he had decreased strength in his right leg and that his shell fragment wound scar in that area was sensitive to touch. He also said that he took medications for the pain and muscle cramps in his right calf, although one of the medications had to be discontinued because of side effects. It was his belief that his right calf muscle was softer and weaker. II. Analysis The Board initially finds that the veteran has presented a well- grounded claim within the meaning of 38 U.S.C.A. § 5107(a). That is, he has presented a claim which is not inherently implausible. The relevant evidence has been obtained by the RO and there is no further duty to assist him in developing the facts pertinent to his claim. Id. Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. Separate diagnostic codes identify the various disabilities. Superficial scars that are poorly nourished, with repeated ulceration, or tender and painful on objective demonstration, warrant a 10 percent rating. Scars may also be rated on the basis of limitation of function of the part affected. 38 C.F.R. § 4.118, Codes 7803, 7804, and 7805. The veteran sustained a wound of his right calf region approximately 50 years ago while on active duty. The veteran complained of right leg pain during the years immediately after service, but clinical evaluations during that time failed to objectively demonstrate a painful or tender scar, or any muscle damage attributable to this wound. The scar was specifically reported to be well healed, nontender, and nonadherent upon a VA medical examination in July 1946. There is no medical evidence on file dated subsequent to a 1947 VA medical examination (which noted a complaint of right leg pain) to suggest that the scar at issue has been symptomatic until 1991 and 1992 VA medical examinations. Thus, it would appear that the veteran's shell fragment wound scar of the right calf was asymptomatic for decades. However, when the issue is an increase in the disability rating, the present level of disability is of primary concern. Francisco v. Brown, 7 Vet.App. 55, 58 (1994). The veteran has testified that he has had pain and cramps in his right calf region and those symptoms have been clinically confirmed in recent years. The VA physician who examined him in February 1992 noted pain in the right calf region on deep palpation. The examiner did not, however, relate those findings to a scar and, moreover, non-service-connected varicose veins of the legs, particularly on the right, were noted. While the record suggests that the veteran may have right calf symptoms due to non-service-connected disability, it has been clinically confirmed that he has pain on palpation of the area involving or proximate to his scar. It is my judgment that the evidence is in relative equipoise and, therefore, the benefit of the doubt doctrine is applicable. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet.App. 49 (1990). Accordingly, an increased rating to 10 percent under 38 C.F.R. § 4.118, Code 7804 is warranted. I further note that the scar in question is not poorly nourished with repeated ulceration (Code 7803) and is not productive of any limitation of motion (Code 7805) or painful motion (38 C.F.R. § 4.59) of the right knee, leg or ankle. I also have considered the representative's reference to the note following Code 7804, but this merely refers to the assignment of a 10 percent rating for any scar in a location where such a rating would normally be precluded by the amputation rule, and is not relevant for purposes of this appeal. ORDER An increased rating to 10 percent for a shell fragment wound scar of the right calf is granted. 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.