Citation Nr: 0002663 Decision Date: 02/03/00 Archive Date: 02/10/00 DOCKET NO. 96-40 861 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Los Angeles, California THE ISSUE Entitlement to an evaluation in excess of 10 percent for service-connected residuals of a shell fragment wound to the left posterior chest. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL The veteran and his spouse ATTORNEY FOR THE BOARD J.M. Daley, Associate Counsel INTRODUCTION The veteran had service from January 1968 to January 1970. This matter is before the Board of Veterans' Appeals (Board) on appeal from the Department of Veterans Affairs (VA) Regional Office (RO), located in Los Angeles, California. FINDING OF FACT Residuals of a shell fragment wound to the left posterior chest result consist of no more than a tender scar, without additional functional loss. CONCLUSION OF LAW The criteria for an evaluation in excess of 10 percent for residuals of a shell fragment wound to the left posterior chest have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. § 4.118, Diagnostic Code 7804 (1999). REASONS AND BASES FOR FINDING AND CONCLUSION Factual Background Service records reflect that the veteran incurred a fragment wound to the chest in December 1968. He is in receipt of medals and awards to include a Purple Heart, Bronze Star Medal with "V" Device, and Combat Infantryman's Badge. Clinical records note that the left chest wound was superficial, without arterial or nerve involvement. The veteran underwent debridement and delayed primary closure of his left chest wound. A service medical entry, dated in late December 1968, notes that the veteran complained of pain in his back from his wound. Physical examination revealed the lateral edge to not be completely healed, but crusted. A report of clinical evaluation dated in August 1969 indicates that the veteran's lungs and chest were normal, without note of pulmonary/respiratory disease or defect, and that he demonstrated full ranges of back and extremity motion. On the report of medical history dated in January 1969, the veteran complained of having or having had shortness of breath and indicated he had/had had epilepsy or fits. The report of examination dated in January 1970, at service discharge, notes a scar on the left posterior thorax, without other noted defect or abnormality of the lungs, chest or back. In September 1970, the veteran reported for a VA examination. The examiner noted the veteran's history of a superficial shell fragment wound to the left lower posterior chest, slightly below the lower end of the scapula, without lung damage. The examiner noted that the scar area was pulled when the veteran lifted, but was not adherent or depressed. The examiner stated that the scar and the area below it seemed a little sensitive. Musculoskeletal and respiratory examination was stated to be otherwise normal. Neurologic examination was negative. In a rating decision dated in October 1970, the RO established service connection and assigned a zero percent disability evaluation for a scar of the left lower posterior chest, residual to a shell fragment wound and effective January 23, 1970. A medical record dated in October 1983 notes the veteran's employment with the post office, a job requiring a lot of bending and lifting. He complained of low back pain of four- days' onset, localized at the left side of the tailbone, without a particular event having brought on the pain. The impression was sacral pain/muscle spasm. A report of x-ray dated in October 1983 shows a fracture of the fourth sacral segment. A medical record dated in February 1992 reflects complaints of wrist pain after the veteran lifted a heavy object; the impression was left ulnar wrist sprain. A report of x-ray dated in December 1993 references cervical changes. A medical record dated in March 1995 reflects that the veteran complained of pain along his right shoulder joint and arm of one-week's duration. There was noted to be no motor or sensory deficits. The impression was myalgia/myositis of the right shoulder. Also in March 1995, the veteran complained of intermittent pain in the left hand of one- week's duration after he fell down several steps onto his hands. The impression was bilateral hand contusions/sprains. In October 1995, a VA examination of the veteran was conducted. The veteran provided a history of shrapnel wounds to his left lateral back and mastoid areas in service. The examiner noted a scar on the left lateral back, stated to be slightly depressed and completely healed. Sensory and motor examinations, conducted in connection with evaluation of epilepsy, were normal. In a rating decision dated in July 1996, the RO denied service connection for a shrapnel wound to the neck, with retained foreign bodies, and notified the veteran of that denial by letter dated in August 1996. Thereafter the veteran expressed disagreement with that denial. In a rating decision dated in October 1996, the RO established service- connection for a shell fragment wound to the occipital skull with a retained metal foreign body and assigned a zero percent evaluation for such, effective March 26, 1996. That decision appeared to encompass the veteran's prior complaints relevant to his neck/mastoid process. In April 1997, the RO issued a statement of the case pertinent to the evaluation of the veteran's service-connected shell fragment wound to the occipital skull. As noted in its March 1999, remand, the basis for the RO's discussion of the rating evaluation appropriate to the occipital shell fragment wound is unclear absent evidence of the veteran's timely disagreement with the zero percent evaluation assigned. See Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997) (where an appealed claim for service connection is granted during the pendency of the appeal, a second notice of disagreement must thereafter be timely filed to initiate appellate review of the claim concerning the compensation level assigned for the disability); see also Barrera v. Gober, 122 F.3d 1030 (Fed. Cir. 1997). The veteran did not submit a substantive appeal with respect to that matter. At the time of an epilepsy examination conducted in July 1997, the veteran was noted to have intact sensation to light touch. Motor strength was stated to be "5/5 bilaterally with somewhat lesser strength on the left upper extremity compared to the right which the veteran attributes to an old shrapnel wound to his back." The impression, in addition to a seizure disorder, was status post gunshot wound to the right neck and head. In June 1999, the veteran testified at a local RO hearing. At that time the veteran argued that he was experiencing numbness on the wound site and tenderness to the touch. He also reported some problems with itching and stating that he experienced pain in his right upper extremity to his back when lifting or using tools. He reported taking Motrin or muscle relaxer for the pain. Transcript at 1-3. During the hearing the Hearing Officer advised the veteran that his claims pertinent to his occipital shrapnel wound and/or neck problems would appropriately be considered a new claim for an increase and not part and parcel of his increased rating claim for his chest injury. In a rating decision dated in July 1999, the RO increased the evaluation assigned to the veteran's chest scar from zero to 10 percent, effective September 12, 1995, the date of receipt of his claim for an increase. A VA neurologic examination of the veteran was conducted in September 1999. He complained of numbness/pain in his upper back and neck, more on the left side. The neurologist reviewed records to include magnetic resonance imaging and computerized tomography results, showing a retained shrapnel particle in the occipital area, and degenerative cervical changes. Examination revealed full and painless lumbar motion; tender scarring over the mid-thoracic rib cage; and limitation of cervical motion with pain. The examiner opined that the veteran's cervical complaints were probably the normal degenerative changes associated with aging. The examiner noted that the veteran "insists that his neck complaints and right arm complaints originated from the injury in 1968." The examiner thus stated that, if accepting the veteran's "statements concerning the precipitating factor of his symptoms and the fact that he has remained symptomatic since that time, then [his] neck pain would be reasonably attributed to the injury in 1968 and his military service." Diagnoses included thoracic shrapnel wound, with some residual tenderness. The claims file also contains other reports of VA and private medical evaluation pertinent to the veteran's cervical spine complaints and to epilepsy/a seizure disorder but not containing findings or diagnoses pertinent to the shell fragment scar on his chest. Analysis In general, allegations of increased disability are sufficient to establish well-grounded claims seeking increased ratings. Proscelle v. Derwinski, 2 Vet. App. 629 (1992). In the instant case, there is no indication that there are additional records which have not been obtained and which would be pertinent to the present claims. In that regard the Board notes that the veteran has been examined in connection with his claim and has also testified at a personal hearing. Thus, no further development is required in order to comply with VA's duty to assist mandated by 38 U.S.C.A. § 5107(a). In considering the residuals of injury, it is essential to trace the medical-industrial history of the disabled person from the original injury, considering the nature of the injury and the attendant circumstances, and the requirements for, and the effect of, treatment over past periods, and the course of the recovery to date. 38 C.F.R. § 4.41 (1999). Evaluation of injury includes consideration of resulting impairment to the muscles, bones, joints and/or nerves, as well as the deeper structures and residual symptomatic scarring. See 38 C.F.R. §§ 4.44, 4.45, 4.47, 4.48, 4.49, 4.50, 4.51, 4.52, 4.53, 4.54 (1999). The veteran's scarring residual to the shell fragment wound to his left chest is currently assigned a 10 percent evaluation pursuant to 38 C.F.R. § 4.118, Diagnostic Codes 7804 (1999). The competent and probative evidence in this case in fact shows that the veteran complains of tenderness at his wound site. Diagnostic Code 7804 provides a maximum schedular evaluation of 10 percent for superficial scars that are tender and painful on objective demonstration. Thus, no higher evaluation is available under Diagnostic Code 7804. Consideration has also been given to the potential application of the various provisions of 38 C.F.R. Parts 3 and 4 (1999), whether or not they were raised by the veteran, as required by Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Such consideration includes whether another rating code is "more appropriate" than Diagnostic Code 7804, the code used by the RO. See Tedeschi v. Brown, 7 Vet. App. 411, 414 (1995). However, the Board finds no basis upon which to assign a higher disability evaluation, as further discussed below. The assignment of a particular diagnostic code is "completely dependent on the facts of a particular case." 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. Any change in diagnostic code by a VA adjudicator must be specifically explained. See Pernorio v. Derwinski, 2 Vet. App. 625, 629 (1992). In this case, although the veteran's chest scar is the result of an in-service shrapnel wound, service records are clear in describing the initial wound as superficial, without any arterial or nerve involvement and without noted bone or muscle involvement. Consistent with that initial assessment are post-service records, to include the first post-service report of VA examination noting only scarring residual to the shell fragment wound, without notation of respiratory, musculoskeletal or neurologic dysfunction attributable to the shell fragment wound of the chest. Additionally, more recent medical records and examination reports show no chest or back impairment other than scarring attributed to the in-service shrapnel wound. The Board acknowledges the veteran's complaints, including extremity numbness and pain, and limitation of extremity, back and neck motion, which he attributes to his in-service shell fragment wound. However, the record does not reflect that the veteran possesses a recognized degree of medical knowledge that would render his opinions on medical diagnoses or etiology competent. Espiritu v. Derwinski, 2 Vet. App. 492 (1992). The competent medical evidence fails to associate any clinical findings beyond scarring to the veteran's shrapnel wound to the chest. Specifically, there is no competent and probative evidence attributing bony deformity or abnormalities, pulmonary symptoms, neurologic symptomatology or muscle impairment to the veteran's service- incurred chest wound. As such, evaluation under 38 C.F.R. §§ 4.56, 4.71a, 4.73, 4.97, 4.124a (1999) is not warranted. Moreover, as no additional functional loss beyond scarring is shown, consideration of 38 C.F.R. § 4.118, Diagnostic Code 7805 (1999), which provides that a rating for scars may be based upon the limitation of function of the affected part, is not warranted. The Board further notes the veteran's argument that the shrapnel from his chest wound moved into his neck and head. The Board will not discuss or dispute medical findings or the veteran's contentions relevant to his neck or head. Rather, the Board emphasizes that the veteran is not service- connected for residuals of a neck wound, nor has he pursued a claim of entitlement to an increased evaluation for his head wound. Regulations provide that when rating disability evaluations, generally, the use of manifestations not resulting from service-connected disease or injury in establishing the service-connected evaluation is to be avoided. 38 C.F.R. § 4.14 (1999). Also, although the veteran is service-connected for residuals of a head wound, that disability is separately evaluated under the schedule and symptoms attributable thereto may not be considered as the basis to assign an increased evaluation for the chest wound. Thus, arguments and findings relevant to the head and neck do not provide a basis for assignment of a higher rating for the veteran's chest wound residuals. As residuals of a shell fragment wound to the left posterior chest result consist of no more than a tender scar, without additional functional loss, the criteria for an evaluation in excess of 10 percent have not been met and the claim is denied. ORDER An evaluation in excess of 10 percent for residuals of a shell fragment wound to the left posterior chest is denied. JANE E. SHARP Member, Board of Veterans' Appeals