Citation Nr: 0000377 Decision Date: 01/06/00 Archive Date: 01/11/00 DOCKET NO. 98-09 121 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Louisville, Kentucky THE ISSUE Entitlement to a compensable evaluation for residuals of a shell fragment wound to the left buttock. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Wm. Kenan Torrans, Associate Counsel INTRODUCTION The veteran served on active duty from January 1963 to June 1967. This matter arises from a December 1997 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Louisville, Kentucky, which denied the benefit sought. The veteran filed a timely appeal, and the case has been referred to the Board of Veterans' Appeals (Board) for resolution. FINDINGS OF FACT 1. All relevant evidence necessary for an equitable resolution of the issue on appeal has been obtained by the RO. 2. The veteran's residuals of a shell fragment of the left buttock are shown to involve a non-tender, non-disfiguring scar, with no functional impairment, and are otherwise shown to be asymptomatic. CONCLUSION OF LAW The criteria for assignment of a compensable evaluation for the veteran's residuals of a shell fragment wound of the left buttock have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §§ 3.321(b)(1), 4.1-4.14, 4.118, Diagnostic Codes 7804, 7805 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSION The veteran's claim for entitlement to a compensable evaluation for his residuals of a shell fragment wound of the left buttock is well grounded. An allegation that a service- connected disability has increased in severity is sufficient to well-ground a claim for an increased rating. See Caffrey v. Brown, 6 Vet. App. 377, 381 (1994); Proscelle v. Derwinski, 2 Vet. App. 628, 632 (1992). The Board also finds that all relevant facts have been properly developed. See 38 U.S.C.A. § 5107(a) (West 1991). The evidence includes the veteran's service medical records, records of treatment following service, reports of VA rating examinations, and personal statements issued by the veteran in his own behalf. The Board is unaware of any additional relevant evidence which is available in connection with this appeal. Therefore, no further assistance to the veteran regarding the development of evidence is required. See McKnight v. Gober, 131 F.3d 1483 (Fed. Cir 1997). Disability evaluations are determined by evaluating the extent to which the veteran's service-connected disability affects his ability to function under the ordinary conditions of daily life, including employment, by comparing his symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Rating Schedule). See 38 U.S.C.A. § 1155 (West 1991); 38 C.F.R. §§ 4.1, 4.2, 4.10 (1999). In addition, where entitlement to service connection has already been established, and an increase of a disability evaluation is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Historically, service connection for residuals of a shell fragment wound to the left buttock was granted by a July 1974 rating decision. A 10 percent evaluation was assigned, effective from March 29, 1974. By a rating decision dated in August 1982, the veteran's assigned disability rating was reduced to zero percent, effective from November 1, 1982. The noncompensable rating has remained in effect until the present time. The report of a January 1997 VA rating examination shows that the veteran sustained shell-fragment wounds all over his body, including a shell fragment wound in his left buttock, resulting from an antipersonnel mine explosion while serving in Vietnam. At that time, he had not undergone any surgery for his shell fragment wounds following his active service. The veteran reported that he experienced some tenderness on his left buttock where he had been struck by mine shrapnel in service. He stated that it became tender when he would bend over, and that sitting relieved the tenderness. On examination, the veteran was not found to experience any pain, diminished muscle strength, limp or other functional limitations. The examiner noted that the veteran had a 3- centimeter (cm) scar in the middle of his buttock where a skin graft had been performed. A depression was noted, but there was no keloid formation, no inflammation or swelling, or ulceration. The vascular supply was adequate. Further, no tenderness on palpation or on movement was found. The examiner further observed that the veteran's scar on his left buttock was prominent, but that it was nearly always covered by his briefs. No functional impairment was detected, although the examiner stated that he did not doubt that the veteran experienced some discomfort with respect to the scar approximately once per week. The examiner concluded with a diagnosis of status-post muscle damage, secondary to shrapnel in Vietnam, but that the present examination yielded normal results. In July 1998, the veteran underwent an additional rating examination. The report of that examination shows that the veteran indicated that he was employed as a security guard. He indicated that he had not undergone surgery since 1966. According to the veteran, sitting for a few minutes caused some pain, and that his scar was like a bruise. In addition, the veteran reported that his scar would involve some throbbing if he did not frequently shift his weight. On examination, and consistent with the January 1997 examination report, tenderness was not found on deep palpation and inspection. The area of the scar was hypopigmented, but was not shown to involve induration. Further, there were no adhesions or ulcerations. The largest scar had a small depression of approximately .25 cm deep. There was no tissue loss, inflammation, edema, or keloid formation. Disfigurement and limitation of motion, neuropathy, or other functional loss including weakness, were not found. A color photograph attached to the examination report shows that the scar on the left buttock was somewhat visible, but not particularly disfiguring. The examiner concluded with a diagnosis of status-post shrapnel damage to the left buttock. In support of his claim, the veteran submitted contemporaneous clinical treatment records and additional VA rating examination reports dating from January 1997 through March 1999. These records and reports fail to show any further complaint of or treatment for residuals of a shell fragment wound to the left buttock. During that time, the report of an October 1998 rating examination report shows that the veteran was employed as a "security technician" with DuPont, Inc. In addition, the veteran submitted a statement in September 1998 indicating that due to his service-connected disabilities, he was "trapped" in a $45,000 to $48,000 per year job. The veteran's residuals of a shell fragment wound to the left buttock are objectively shown to involve scarring of the left buttock. Under 38 C.F.R. § 4.118, Diagnostic Code 7804 (1999), superficial, tender, and painful scars as shown on objective demonstration warrant assignment of a 10 percent evaluation. In addition, under 38 C.F.R. § 4.118, Diagnostic Code 7805 (1999), other scars will be rated according the limitation of the part affected. Applying the objective medical evidence to the relevant rating criteria, the Board finds that the evidence does not warrant assignment of a compensable evaluation for the veteran's residuals of a shell fragment wound to the left buttock. The veteran has complained, alternatively, that his residuals of a shell fragment wound to the left buttock involve some tenderness and discomfort after sitting for extended periods making it necessary for him to shift his weight, or that his residuals of a shell fragment wound cause such pain after extended sitting that driving an automobile becomes difficult. However, the objective medical evidence, while noting the veteran's complaints does not reveal a disability picture to the degree of severity as reported by the veteran. As noted, the veteran's residuals of a shell fragment to the left buttock primarily involve superficial scarring in that area. The two examination reports, dating in January 1997 and July 1998, both show that the veteran did not objectively experience tenderness on deep palpation of the scar on his left buttock. One examiner offered his opinion that it was likely that the veteran experienced some discomfort approximately once per week, but no objective findings to that effect were noted. In addition, the veteran was not objectively shown to experience any functional limitation or weakness in any of his extremities or other body parts. Other than a .25-cm depression in part of his left buttock scar, the veteran was not shown to have any significant disfigurement, and the examiner observed that to the extent that he was shown to have any prominence with respect to his buttock scar, it would be covered by his undershorts. Accordingly, the Board finds that the currently assigned noncompensable evaluation for the veteran's residuals of a shell fragment wound to the left buttock is appropriate, and that the preponderance of the evidence is against assignment of a higher evaluation under any other diagnostic code. Therefore the benefit sought on appeal is denied. In addition, the Board has considered the potential application of various provisions of Title 38 of the Code of Federal Regulations (1999). See Schafrath v. Derwinski, 1 Vet. App. 589, 593 (1991). Here there has been no showing that the disability under consideration, residuals of a shell fragment wound to the left buttock, has caused marked interference with employment, has necessitated frequent periods of hospitalization, or otherwise renders impracticable the application of the regular schedular standards. The Board notes that in the reports of the July 1998 and October 1998 rating examinations, the veteran was noted to be employed as a security guard. Further, the examination reports show that he had not undergone treatment for his residuals of a shell fragment wound to the left buttock since he was initially wounded in 1966. The Board further observes that the veteran previously complained of being "trapped" in a $45,000 to $48,000 per year income bracket due to his service-connected disabilities. The Board acknowledges this statement, but finds that it contraindicates any contention, whether actually raised or not, that the veteran is unable to obtain or retain gainful employment as a result of his service-connected disability. In the absence of factors suggestive of an unusual disability picture, further development in keeping with the procedural actions outlined in 38 C.F.R. § 3.321(b)(1) (1999) is not warranted. See Bagwell v. Brown, 9 Vet. App. 337 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). Because there is not an approximate balance of positive and negative evidence regarding the merits of the veteran's claim that would give rise to reasonable doubt in his favor, the provisions of 38 U.S.C.A. § 5107 are not applicable. Should the veteran's disability picture change, he may apply for an increase in his assigned disability rating. See 38 C.F.R. § 4.1. At present, however, the Board finds no basis upon which to grant an increased evaluation for the veteran's residuals of a shell fragment wound to the left buttock. ORDER Entitlement to a compensable evaluation for residuals of a shell fragment wound of the left buttock is denied. WARREN W. RICE, JR. Member, Board of Veterans' Appeals