Citation Nr: 0002587 Decision Date: 02/02/00 Archive Date: 02/10/00 DOCKET NO. 97-34 491 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUES 1. Whether a rating decision of June 12, 1946, involved clear and unmistakable error. 2. Entitlement to an increased rating for residuals of paralysis of the left radial nerve, currently evaluated as 20 percent disabling. 3. Entitlement to an increased rating for shrapnel wound of the left upper arm, involving muscle group V, currently evaluated as 10 percent disabling. 4. Entitlement to an increased rating for shrapnel wound of the lower third of the right leg, involving muscle group XI, currently evaluated as 10 percent disabling. 5. Entitlement to an increased rating for shrapnel wound of the right hip with scar and osteoarthritis, involving muscle group XVIII, currently evaluated as 10 percent disabling. 6. Entitlement to an increased rating for a scar over the right temporal region, currently evaluated as 10 percent disabling. 7. Entitlement to an increased rating for tinnitus, currently evaluated as 10 percent disabling. 8. Entitlement to an increased rating for hearing loss in the right ear, currently evaluated as 10 percent disabling. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD Michael A. Holincheck, Associate Counsel INTRODUCTION The veteran served on active duty from September 1942 to August 1945. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 1997 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina. The Board notes that the veteran was scheduled to appear at a hearing at the RO on April 23, 1998. He was notified of the scheduled hearing by way of a letter dated in March 1998. Evidence of record reflects that the veteran failed to report for the hearing. As the veteran has not offered any evidence of good cause as to why he failed to report and has not requested that his hearing be rescheduled, the Board will adjudicate his appeal based upon the evidence of record. 38 C.F.R. § 20.704(d) (1999). A careful review of the record in this case by the Board disclosed that there is a question as to whether the rating decision of June 12, 1946, was in accord with VA's 1945 Schedule for Rating Disabilities. Accordingly, the Board will assume jurisdiction over the issue of whether that rating decision involved clear and unmistakable error (CUE). Finally, private treatment records for the veteran from Family Medicine Associates reflect treatment for dermatitis and venous stasis of the lower right leg. Further, findings from a VA examination, dated in September 1997, attributed venous stasis and other lower leg changes to the veteran's service-connected disability involving a shrapnel wound to the lower third of the right leg. These records reasonably raise the issue of entitlement to service connection for possible venous and dermatology-related disabilities, on either a direct or secondary basis. Those issues, however, are not currently developed or certified for appellate review. Accordingly, they are referred to the RO for appropriate consideration. FINDINGS OF FACT 1. The June 12, 1946, rating decision, in failing to recognize that a compound comminuted fracture of the left humerus, with muscle damage, established the presence of a severe disability, committed an error which, had it not been made, would have manifestly changed the outcome at the time of that decision. 2. The veteran's residuals of a shrapnel wound of the lower third of the right leg, involving muscle group XI, are not manifested by more than moderate muscle damage. 3. The veteran's residuals of a shrapnel wound of the right hip with scar and osteoarthritis, involving muscle group XVIII is manifested by pain when sitting is certain areas; and is productive of no more than moderate impairment. 4. The scar of the right temporal region is moderately disfiguring. 5. Disability associated with the veteran's tinnitus does not present an exceptional disability picture such as marked interference with employment or requiring frequent periods of hospitalization. 6. The veteran is currently shown to manifest level V hearing in his right ear. CONCLUSIONS OF LAW 1. The June 12, 1946, rating decision, in failing to assign a 30 percent disability for shrapnel wound of the left upper arm, involving muscle group V, with a compound comminuted fracture of the left humerus, was clearly and unmistakably erroneous. 38 C.F.R. § 3.105(a) (1999). 2. The criteria for a rating in excess of 10 percent for shrapnel wound of the lower third of the right leg, involving muscle group XI, have not been met. 38 U.S.C.A. §§ 1155, 5107; 38 U.S.C.A. §§ 4.40, 4.45, 4.56, 4.71a, 4.73, Diagnostic Code 5311 (1999). 3. The criteria for a rating in excess of 10 percent for a shrapnel wound of the right hip with scar and osteoarthritis, involving muscle group XVIII, have not been met. 38 U.S.C.A. §§ 1155, 5107; 38 C.F.R. §§ 4.7, 4.10, 4.40, 4.45, 4.56, 4.71a, 4.73, Diagnostic Code 5318 (1999). 4. The criteria for a rating in excess of 10 percent for a scar of the right temporal region have not been met. 38 U.S.C.A. §§ 1155, 5107; 38 C.F.R. § 4.118, Diagnostic Code 7800 (1999). 5. The criteria for a rating in excess of 10 percent for tinnitus have not been met. 38 U.S.C.A. §§ 1155, 5107; 38 C.F.R. §§ 3.321(b)(1), 4.87a, Diagnostic Code 6260 (1998); Diagnostic Code 6260, 64 Fed. Reg. 25210 (1999). 6. The criteria for a rating in excess of 10 percent for right ear hearing loss have not been met. 38 U.S.C.A. §§ 1155, 5107; 38 C.F.R. §§ 3.383, 3.385, 4.7, 4.14, 4.85- 4.87, Diagnostic Code 6100 (1998); Diagnostic Code 6100, 64 Fed. Reg. 25208-09 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Background The veteran served on active duty during World War II from September 1942 to August 1945. His service medical records (SMRs) reveal that he was wounded in action in March 1945. The wounds were initially described as multiple penetrating wounds: right scalp, mild; dorsal surface upper, middle and lower third, left arm, penetrating, gutter type, severe; penetrating, right buttock, severe, course down to lower third; and penetrating gutter type, lower third, medial surface, right leg. The veteran was also noted to have a compound comminuted fracture of the left humerus and complete paralysis of the left radial nerve due to the left arm wound. All of the wounds were debrided at the time the veteran was first treated. He underwent two operations in March 1945 to remove foreign bodies from his scalp, and right thigh. His left shoulder was placed in a cast. He later underwent surgery to close the fracture of the left humerus with the insertion of a Kirschner wire. The veteran was then transferred to another hospital for continued care. He underwent surgical closure of his various wounds. The records reflect that the left arm wound was described as 6 centimeters (cm) x 30 cm. The right leg wound was 4.5 cm x 12 cm. The right thigh wound was described as 2.5 x 6 cm and the right hip wound was given as 5 cm x 8 cm. There was no further mention of the veteran's right scalp wound. The respective wounds healed well with the exception of the right leg which developed some redness and had a 2-3 cm area of dehiscence that was attributed to tension. He remained hospitalized through May 1945. During that time he received physiotherapy to try and improve the use of his left arm and hand. He also underwent neurolysis to attempt to release his radial nerve from the surrounding tissue. The veteran was transferred to another hospital, back in the United States, to continue his recovery in July 1945. Records from that period of hospitalization reflect that he originally suffered from left wrist drop but the condition improved and disappeared over time. He still had difficulty extending his fingers. Physical examination at that time described a large, adherent, somewhat elliptical scar over the middle third of the medial aspect of the right lower leg. In addition there was a very long incisional scar over the posterior aspect of the left upper arm extending from the elbow to the upper aspect of the axilla posteriorly. There was a well-healed scar of the scalp over the right parietal area. There was a rather fibrous ankylosis of the left elbow that limited his range of motion to approximately 20 degrees. There was also severe muscular atrophy with muscle loss of the left upper arm. There was also a diagnosis of partial paralysis of the left radial nerve. A subsequent orthopedic consultation of the left arm reported that the fracture was clinically healed. The elbow had a range of motion of 80 to 170 degrees. There was full pronation but the veteran lacked 50 degrees of full supination. However, examination of the hand revealed no return of power of the long extensors and abductor of the thumb. Further therapy and exercises was recommended. A peripheral nerve examination reported that there had been a gradual return of function as far down as the extensor carpi radialis muscle. However, extensors of the fingers could still not be innervated. The veteran was recommended for a "Certificate of Disability for Discharge" (CDD). The veteran was then discharged, by reason of disability, in August 1945. The disability listed on the CDD was partial paralysis of the left radial nerve, secondary to a penetrating wound. The veteran filed his original application for disability compensation in August 1945. He was granted service connection in August 1945 and assigned a 100 percent rating for his left radial nerve disability as well as his fractured left arm, and wounds to the right lower leg and right scalp. There was no breakdown of the rating, rather the 100 percent rating appeared as a composite rating. The veteran was afforded several VA medical examinations in June 1946. A surgical examination reported that the veteran complained of left arm numbness and pain in his right leg with prolonged walking or standing. Physical examination of the head revealed a 3 inch scar over the right temporal region. It was well-healed and nonadherent with no apparent cranial defect. Examination of the left arm revealed a transverse scar, 2 inches in length, lateral aspect, lower third, well-healed and nonadherent. There was a second scar, 13 inches in length, that extended from the head of the radius over the lateral aspect of the arm up to the posterior aspect of the head of the humerus at the site of exploration of the radial nerve. The scar was well-healed and nonadherent. There was evidence of moderate loss of muscle tissue. The left arm was 1 1/4 inches smaller than the right. The muscle power was fair but did not meet corresponding muscle power of the right arm. The right thigh had a scar, 2 inches in length, over the medial aspect, mid-third, that was well-healed and nonadherent. The right lower leg had a scar, 7 inches in length, extending from the mid-third, posterior aspect, around and down to the lower third, medial aspect. The scar was also well-healed but adherent in the middle. There was a dermatitis with pigmentation over the posteromedial aspect, lower third, below the scar. The muscle power and function were described as good. The examiner's diagnoses were: cicatrices, left arm, the result of shrapnel wounds, manifested by deformity and weakness; and, cicatrices, head, right hip, right thigh, and right leg, the result of shrapnel wound, manifested by pain and weakness in the right leg. The veteran was afforded a VA neurological examination in June 1946. The veteran indicated that the scar on his head, right thigh and right hip did not bother him. However, he said that his right leg would hurt if he walked a lot. He also said that his left wrist would not bend. The examiner noted the veteran's multiple shrapnel wounds. He said that the only one having any apparent neurological significance was the left arm injury. The examiner said that there was moderate atrophy of the triceps muscles and those on the flexor surface of the forearm. The left arm and forearm were measured as smaller than the right arm and forearm. The left grip was weaker and the left triceps was reported as retarded, if not absent. There was moderately impaired palmar flexion of the hand at the wrist joint with the fingers fully flexed. The examiner also reported that the cutaneous disturbance was in conformity with distribution of the radial nerve. The examiner's diagnosis was residuals of paralysis of the left radial nerve. In a rating decision, dated June 12, 1946, the RO assigned several different ratings to the veteran's respective disabilities. The veteran was assigned 20 percent for residuals of paralysis of the left radial nerve; 20 percent for shrapnel wound of the lower third of the right leg; 10 percent for shrapnel wound of the upper left arm; 10 percent for scar on the right temporal region; and, noncompensable ratings for shrapnel wound of the right hip and shrapnel scar of the right thigh. The ratings were based upon the 1933 Schedule for Rating Disabilities, under Extension 6, although the use of the 1945 Schedule for Rating Disabilities was prescribed for rating decisions after April 1, 1946. The veteran was afforded VA examinations in September 1947. Neurological findings noted the veteran's traumatic and surgical scar on the left arm to be well-healed, nontender and nonadherent. There was marked atrophy of the triceps and biceps and moderate atrophy of the extensor group of the forearm. There was full motion in the left shoulder and elbow. Flexion of the wrist was limited to 45 degrees but there was no limitation of extension, or ulnar or radial deviation. There was moderate weakness of extension of the fingers and thumb but full voluntary extension could be carried out. There was a moderate hypesthesia in the radial and lateral antebrachial cutaneous nerves. The examiner's diagnosis was partial paralysis of the left radial nerve. The veteran was afforded a VA surgical examination, also in September 1947. The findings regarding the right temporal scar were the same as the June 1946 examination. The right thigh scar was again described as well-healed, nontender, and nonadherent without loss of muscular substance. The scar on the lower right leg was also described as well-healed, nontender but adherent in its middle third. There was no loss of muscular substance. The scar over the posterior aspect of the right hip was also well-healed, nontender, nonadherent with no loss of muscular substance. Range of motion in the lower extremities was normal and there was no evidence of atrophy. The veteran did continue to experience pain and weakness in the right leg. The veteran was also afforded a VA otological examination where he was diagnosed with tinnitus aurium. In a rating decision, dated in October 1947, the veteran's disability rating for the shrapnel wound to his lower right leg was reduced to 10 percent. He was also granted service connection for tinnitus and assigned a 10 percent rating. The veteran's shrapnel wound of the left upper arm was maintained at a 10 percent rating under Diagnostic Code 5306. The remainder of the veteran's disability ratings were also kept at the same rating level as before. The veteran was also granted service connection for tinnitus, and assigned a 10 percent rating. The 1945 Schedule for Rating Disabilities was used by the RO in evaluating the veteran's various disability ratings. The veteran was afforded VA surgical and neurological examinations in August 1949. The findings were essentially the same as the 1947 VA examinations. He was also afforded VA examinations in October 1954 with much the same results although he was diagnosed with osteoarthritis in the right hip based on x-ray findings. He was also found to have a right ear hearing loss that was service connected by way of a rating decision dated in October 1954. He was assigned a 10 percent rating for the hearing loss. The veteran's shrapnel wound of the right hip was increased to 10 percent by the same rating decision based upon the osteoarthritis finding. In a claim received at the RO on July 7, 1997, the veteran sought increased ratings for his service-connected disabilities. He asserted that his disabilities had increased in severity over the years and that he experienced problems with circulation and swelling in both ankles. He said that he wore support legging and knee braces supplied by VA. Associated with the claims file are private treatment records from Family Medicine Associates for the period from February 1995 to June 1997. The records reflect laboratory test results related to monitoring of the veteran's prothrombin time. They also show treatment for venous stasis and dermatitis in the legs, with the right greater than the left and some hyperpigmentation, labeled as probable stasis dermatitis. He was treated on November 9 1996, for complaints of pain along his medial thigh and on the medial aspect of his right leg. The treating physician noted the veteran's war injuries and that the veteran had had swelling and infection of his leg previously but no deep vein thrombosis. Physical examination reported that the veteran was tender along the course of the long saphenous vein. There was a defect in the medial aspect of the right calf with scarring. There also was redness, heat and a bit of scaling around the distal lower leg. The diagnosis was cellulitis of the right leg, rule out deep vein thrombosis. An entry, dated November 10, 1996, noted that the veteran felt dramatically better and that Doppler ultrasound of the right leg was negative. A subsequent entry, dated November 25, 1996, noted that his symptoms were gone and provided a diagnosis of resolved erysipelas, right lower leg and venous stasis. The veteran was afforded VA examinations to evaluate his various disabilities in September 1997. As part of his audiology examination the veteran's audiogram revealed the following results with pure tone thresholds in decibels: HERTZ 500 1000 2000 3000 4000 RIGHT 25 30 80 100 105 LEFT 25 30 80 95 105 The average decibel loss in the right ear was 79. The average decibel loss in the left ear was 78. Speech audiometry revealed speech recognition ability of 76 percent in the right ear and of 84 percent in the left ear. The veteran was also noted to have bilateral tinnitus with it being worse in the right ear than in the left ear. The tinnitus was described as rather aggravating to the veteran. The examiner stated that the veteran had a mild hearing loss in the lower frequencies sloping to a profound hearing loss in the higher frequencies. The hearing loss was determined to be sensorineural in nature. The veteran was afforded a VA muscles examination in September 1997. He was noted to be 76 years old at the time of the examination. Physical examination of the left arm revealed a scar extending from the posterior aspect, just posterior to the acromial base, extending distally to beyond the lateral humeral condyle. The scar was well-healed although there was loss of subcutaneous tissues and fat as well as underlying musculature. The lateral head of the triceps was quite deficit [sic] although he had 5/5 strength with his triceps at that time. The strength testing did cause pain in the mid-shaft of the humerus. The humerus was palpably deformed subcutaneously with the skin adherent to underlying bone. He had 5/5 strength of his biceps although this also created pain in the mid-shaft of his humerus. He had intact radial nerve function distally and intact neurovascular status overall in the left upper extremity. The elbow range of motion was full and painless. The shoulder range of motion was described as full with the exception of about 5 degrees of active elevation when compared to right shoulder. Examination of the right calf revealed a large 16 cm healed scar overlying the medial head of the gastroc muscle. The scar was well-healed and the skin distal to the scar showed evidence of vascular changes consistent with venous stasis. Distal to the scar, the ankle and foot were quite swollen, also consistent with venous stasis. He had 5/5 strength in the gastrocnemius muscle present and excellent excursion of the ankle with gastroc contracture. The skin distal to the scar was completely insensate. The lateral border of his foot had intact sensation by comparison. The remaining scars on the right medial thigh, measuring 6 cm in the right buttock, had loss of subcutaneous tissue and slight hypertrophic scar formation but no nerve injury. There might be slight loss of underlying muscle bulk in the right buttock wound which was only minimally cosmetically noticeable. The veteran occasionally had pain in the right buttock wound with certain areas of sitting. Palpation of the shrapnel remaining in the right temporal area showed a palpable bump in the subcutaneous tissues overlying the temporal lobe of the brain. There was no pain with palpation unless deep palpation was attempted. The bump was not mobile subcutaneously. An x-ray of the left humerus was interpreted to show an old fracture of the mid-humerus. Linear collection of calcifications were seen just posterior to the humerus and appeared to be dystrophic in nature. A soft tissue defect was seen dorsal to the mid-humerus. There were no additional findings. The examiner's diagnoses were status post shrapnel wound with open fractured left humerus. There appeared to have been an excellent result from open reduction and internal fixation of the humerus fracture. The skin was quite adherent to the underlying bone but muscle function and nerve function distally appeared to be intact. He did have pain with activities of daily living and attempts at heavy lifting with the upper extremity. Right calf scar causing distal venous stasis changes. The examiner noted that the veteran was at risk for ulceration and other problems of the skin distal to the scar medially on the right calf. He was also insensate in the area. Right buttock scar with loss of subcutaneous fat but otherwise cosmetically acceptable. Right thigh medial scar also with some loss of subcutaneous fat and some hypertrophic scar formation but otherwise cosmetically acceptable. Right temporal retained subcutaneous fragment, not causing problems except occasional difficulties with hair styling and combing. The veteran was also afforded a VA neurology examination in September 1997. The examiner reported that motor system examination demonstrated a severe loss of muscle mass, including triceps and some biceps muscle, in the left arm. The veteran had a long well-healed scar which had previously been adequately described. The veteran had loss of sensation throughout the distribution of the musculocutaneous nerve on the left. He had weakness in the biceps, deltoid and triceps functions on the left. However he was able to move the elbow joint through its full range of motion, and was able to move the shoulder joint through its full range of motion. There was some diminution of grip strength, but there was no muscle atrophy and no sensory loss in the left hand. The veteran had a well-healed scar on the right lower extremity in the middle portion of the triceps sural muscle that is the gastroc soleus group. He had lost his ankle jerk on the right, and he had lost distal sensation in the distribution of the saphenous nerve on the right side. There was also absence of the distal portion of the triceps and gastrocnemius muscles. They veteran had some soft tissue loss and a well-healed surgical scar on the right hip just lateral to the sacroiliac joint. There was no absence of nerve function other than loss of sensation in the vicinity of the scar itself. The examiner's impression was that the current status of the veteran's war injuries, with damage to the musculocutaneous, the distal saphenous and the distal portion of the sciatic nerve on the right side, were unchanged. The examiner further stated that the veteran's apparent worsening was most probably due to the effects of age and other systemic illnesses rather than any change in the circumstances of his war injuries. II. Analysis A. CUE Applicable regulations provide that previous determinations which are final and binding, including decisions concerning disability evaluations, will be accepted as correct in the absence of clear and unmistakable error. Where evidence establishes such error, the prior decision will be reversed or amended. 38 C.F.R. § 3.105(a) (1999). In Damrel v. Brown, 6 Vet. App. 242 (1994) (citing Russell v. Principi, 3 Vet. App. 310, 313-4 (1992) (en banc)), the United States Court of Appeals for Veterans Claims (Court) established a three-prong test to establish a claim of clear and unmistakable error: (1) '[E]ither the correct facts, as they were known at that time, were not before the adjudicator (i.e., more than a simple disagreement as to how the facts were weighed or evaluated) or the statutory or regulatory provisions extant at the time were incorrectly applied,' (2) the error must be 'undebatable' and the sort 'which, had it not been made, would have manifestly changed the outcome at the time it was made,' and, (3) a determination that there was [clear and unmistakable error] must be based on the record and law that existed at the time of the prior adjudication in question. Damrel, 6 Vet. App at 245. The Court has further stated that a CUE is a very specific and a rare kind of "error." It is the kind of error, of fact or of law, that when called to the attention of later reviewers compels the conclusion, to which reasonable minds could not differ, that the result would have been manifestly different but for the error. Thus even where the premise of error is accepted, if it is not absolutely clear that a different result would have ensued, the error complained of cannot be, ipso facto, clear and unmistakable. Fugo v. Brown, 6 Vet. App. 40, 43-44 (1993) citing Russell v. Principi, 3 Vet. App. at 313 (Emphasis in the original). In this case, in June 1946, Diagnostic Code 5305 (or 5306) provided for a 10 percent evaluation for a moderate impairment of muscle group V (or VI) involving either the major or minor arm. A 30 percent rating was provided for a moderately severe impairment of the major arm, while a 20 percent rating was provided if it involved the minor arm. A 40 per cent evaluation was warranted for a severe impairment of the major arm, with a 30 percent rating applicable for the minor arm. At the time of the June 1946 rating decision, VA's Schedule for Rating Disabilities, 1945 Edition, also contained a note preceding the diagnostic codes for rating muscle injuries, which stated, "[I]n rating disability from injuries of the musculoskeletal system, attention is to be given first to the deeper structures injured, bones, joints and nerves. A compound comminuted fracture, for example, with muscle damage from the missile, establishes a severe muscle injury...." (Emphasis added). Here, the applicable regulations extant in 1946 and, specifically, the note in the rating schedule set forth above, were obviously incorrectly applied, in that the assignment of at least a 30 percent rating for severe muscle injury to the minor arm was mandated by the rating schedule. When the RO failed to follow that note their error was undebatable, as neither the law nor the evidence was ambiguous. Had the error not been made, the veteran would have received compensation at least at the 30 percent rate effective from June 12, 1946. Consequently, as it is absolutely clear that correct application of the rating schedule provisions would have resulted in at least a 30 percent rating, the Board concludes, that the June 12, 1946, rating decision involved clear and unmistakable error. 38 C.F.R. § 3.105(a). Hence the Board amends the June 12, 1946 rating decision, and assigns a 30 percent rating for residuals of a shrapnel wound to the left upper arm, involving muscle group V, effective from June 12, 1946. In reaching this decision, the Board acknowledges that the RO certified the issue of entitlement to an increased rating for the same disability. That issue, however, is further addressed in the REMAND portion of this decision. The Board further acknowledges that the RO never addressed the issue whether or not the June 1946 rating decision was clearly and unmistakably erroneous, and that the veteran did not raise that issue. The regulations governing ratings, however, required that the Board evaluate the veteran's disability in relation to its history. 38 C.F.R. § 4.1 (1999). Our review of his history discloses that the June 12, 1946, rating decision was clearly and unmistakably erroneous. As such, that rating decision is not correct and the Board concludes that we are authorized to take corrective action sua sponte. Cf. 38 U.S.C.A. § 7105 (West 1991). B. Increased Ratings As a preliminary matter, the Board finds that the veteran's claims for increased ratings for his service-connected disabilities 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 is a well-grounded claim). The Board is also satisfied that all relevant facts have been properly developed and no further assistance is required to comply with the duty to assist mandated by 38 U.S.C.A. § 5107(a). Disability ratings are determined by the application of a schedule of ratings which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C.A. § 1155 (West 1991); 38 C.F.R. § 4.1. Where entitlement to compensation has already been established and an increase in the assigned evaluation is at issue, it is the present level of disability that is of primary concern. Francisco v. Brown, 7. Vet. App. 55, 58 (1994). Although the recorded history of a particular disability should be reviewed in order to make an accurate assessment under the applicable criteria, the regulations do not give past medical reports precedence over current findings. Id. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (1999). Muscle Injuries The Board notes that the Rating Schedule has been revised with respect to the ratings applicable to muscle injuries, effective July 3, 1997. 62 Fed.Reg. 30235-30240 (Jun. 3, 1997) (codified at 38 C.F.R. §§ 4.55 - 4.73 (1998); 38 C.F.R. §§ 4.47-4.54 and 4.72 were removed and reserved). However, the veteran's claim was received at the RO on July 7, 1997, after the effective date of the amended regulations. Accordingly, only the revised regulatory criteria will be used to adjudicate the residuals of his muscle injuries. Under the regulations currently in effect for the evaluation of muscle disabilities, a comminuted fracture with muscle or tendon damage will be rated as a severe injury of the muscle group involved unless, for locations such as in the wrist or over the tibia, evidence establishes that the muscle damage is minimal. A through-and-through injury with muscle damage shall be evaluated as no less than a moderate injury for each group of muscles damaged. For VA rating purposes, the cardinal signs and symptoms of muscle disability are loss of power, weakness, lowered threshold of fatigue, fatigue-pain, impairment of coordination and uncertainty of movement. 38 C.F.R. § 4.56 (1999). Disabilities resulting from muscle injuries shall be classified as slight, moderate, moderately severe or severe. Slight disability of muscles is typified by a simple wound of muscle without debridement or infection. The history and complaints will reveal service department record of superficial wound with brief treatment and return to duty, healing with good functional results, and no cardinal signs or symptoms of muscle disability. Objective findings should include a minimal scar, with no evidence of fascial defect, atrophy, or impaired tonus, and no impairment of function or metallic fragments retained in muscle tissue. 38 C.F.R. § 4.56(d)(1) (1999). Moderate disability of muscles is signified by a through and through or deep penetrating wound of short track from a single bullet, small shell or shrapnel fragment, without explosive effect of high velocity missile, residuals of debridement, or prolonged infection. The service department record or other evidence of in-service treatment for the wound should show record of consistent complaint of one or more of the cardinal signs and symptoms of muscle disability, particularly lowered threshold of fatigue after average use, affecting the particular functions controlled by the injured muscles. Objective findings will include entrance and (if present) exit scars, small or linear, indicating short track of missile through muscle tissue, and some loss of deep fascia or muscle substance or impairment of muscle tonus and loss of power or lowered threshold of fatigue when compared to the sound side. 38 C.F.R. § 4.56(d)(2) (1999). For moderately severe disability of muscles, the type of injury will be a through and through or deep penetrating wound by a small high velocity missile or large low-velocity missile, with debridement, prolonged infection, or sloughing of soft parts, and intermuscular scarring. The service department record or other evidence should show hospitalization for a prolonged period for treatment of the wound, as well as evidence of consistent complaints of cardinal signs and symptoms of muscle disability and, if present, evidence of inability to keep up with work requirements. Objective findings should include entrance and (if present) exit scars indicating track of the missile through one or more muscle groups, and indications on palpation of loss of deep fascia, muscle substance, or normal firm resistance of muscles compared with sound side. Tests of strength and endurance when compared with the sound side will demonstrate positive evidence of impairment. 38 C.F.R. § 4.56(d)(3) (1999). A severe injury of the muscle contemplates a through and through or deep penetrating wound due to high-velocity missile, or large or multiple low velocity missiles, or with shattering bone fracture or open comminuted fracture with extensive debridement, prolonged infection, or sloughing of soft parts, intermuscular binding and scarring. Service department record or other evidence show hospitalization for a prolonged period for treatment of wound. There is a record of consistent complaint of cardinal signs and symptoms of muscle disability, worse than those shown for moderately severe muscle injuries, and, if present, evidence of inability to keep up with work requirements. Objective findings include ragged, depressed and adherent scars indicating wide damage to muscle groups in missile track; palpation shows loss of deep fascia or muscle substance, or soft flabby muscles in wound area; muscles swell and harden abnormally in contraction. Tests of strength, endurance, or coordinated movements compared with the corresponding muscles of the uninjured side indicate severe impairment of function. 38 C.F.R. § 4.56 (d) (1999). 1. Shrapnel Wound of the Lower Third of the Right Leg, Involving Muscle Group XI Muscle group XI consists of the posterior and lateral crural muscles, and muscles of the calf. The function of muscle group XI is propulsion and plantar flexion of the foot, stabilization of the arch, flexion of the toes, and flexion of the knee. Under Diagnostic Code 5311, a moderate disability warrants a 10 percent evaluation, and a moderately severe disability warrants a 20 percent evaluation. 38 C.F.R. § 4.73, Diagnostic Code 5311. The veteran is currently rated as 10 percent disabled under Diagnostic Code 5311. The Board notes that the veteran continued to complain of pain and weakness in his right leg at his VA examinations in 1946, 1947, 1949, and 1954. However, the wound scar itself was found to be well-healed, nontender and nonadherent through the years. The September 1997 VA examination reported 5/5 muscle strength in the gastrocnemius muscle and excellent excursion of the ankle with gastroc contracture. The neurology examiner concluded that the status of the veteran's musculocutaneous, distal saphenous and distal portion of the sciatic nerve, on the right side, were unchanged. The Board notes that the venous and skin changes noted on the VA muscle examination are addressed in the INTRODUCTION portion of this decision. In applying the regulatory criteria to the evidence of record, the Board notes that the veteran's shrapnel wound of lower third of the right leg can only be described as moderate. The veteran's wounds were not such as to meet the criteria under 38 C.F.R. § 4.56 for designation as moderately severe. There has never been a finding of prolonged infection, or loss of strength compared to the sound side. The veteran's current symptoms, to include pain and weakness, are more than adequately compensated for in his current 10 percent rating. Accordingly, the Board finds that the preponderance of the evidence is against an increased evaluation for a shrapnel wound of the lower third of the right leg, involving muscle group XI. 2. Shrapnel Wound of the Right Hip with Scar and Osteoarthritis, Involving Muscle Group XVIII The veteran's right hip wound residuals are rated by the RO under a disability of Muscle Group XVIII whose function is outward rotation of the thigh and stabilization of hip joint. 38 C.F.R. § 4.73, Diagnostic Code 5318 (1999). Under Diagnostic Code 5318, a 10 percent disability is warranted where there is a moderate disability. A 20 percent rating is for application where there is evidence of a moderately severe disability. In this case, the veteran has been noted to have no limitation of motion of the right leg on his prior VA examinations. Although no specific finding was made with respect to range of motion of the right hip on the September 1997 VA examination, there is no evidence of record to demonstrate any change. The VA muscle examiner stated that there might be slight loss of underlying muscle in the right buttock but the wound was only minimally cosmetically noticeable. The neurology examiner noted that there was no absence of nerve function other than loss of sensation in the vicinity of the scar itself. The veteran was diagnosed with osteoarthritis of the right hip in 1954 based on the results of x-ray findings. His disability rating was increased to its current 10 percent level based on that finding. In applying the regulatory criteria to the evidence of record, the Board notes that the veteran's shrapnel wound of the right hip can only be described as moderate. The wound does not meet the criteria under 38 C.F.R. § 4.56 for designation as moderately severe. There has never been a finding of prolonged infection, or loss of strength compared to the sound side. The veteran's current symptoms, to include occasional pain with certain areas of sitting and osteoarthritis, are more than adequately compensated for in his current 10 percent rating. Accordingly, the Board finds that the preponderance of the evidence is against an increased evaluation for a shrapnel wound of the right hip with scar and osteoarthritis, involving muscle group XVIII. In reaching these decisions the Board considered whether separate evaluations are warranted for tender or painful scars. In Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994), the Court held that a veteran was entitled to a separate rating for scars if none of the symptomatology was duplicative of or overlapping with the symptomatology of another condition. However, a 10 percent evaluation for moderate muscle disability specifically contemplates objective findings of entrance and exit scars as a residual of a gunshot wound which caused the muscle injury. The criteria for slight or insignificant disability of muscles contemplates a minimum scar; the criteria for moderate muscle disability contemplates relatively small entrance and exit scars as the result of a gunshot wound. 38 C.F.R. § 4.56. To provide a separate rating for a condition already contemplated by a specific diagnostic code under which the veteran is rated, Diagnostic Codes 5311 and 5318, would constitute rating the "same disability" or the "same manifestation" in violation of the rule against pyramiding. 38 C.F.R. § 4.14 (1999). 3. Scar on Right Temporal Region The veteran's scar on the right temporal region has been rated under Diagnostic Code 7800. 38 C.F.R. § 4.118 (1999). Under Diagnostic Code 7800 a 10 percent rating is warranted for moderate disfiguring scar to the head. A 30 percent rating is for consideration where there is severe disfigurement, especially if producing a marked and unsightly deformity of the eyelids, lips, or auricles. 38 C.F.R. § 4.118. The findings from the September 1997 VA examination reported that the scar presented no problems other than occasional difficulties with hair styling and combing. The scar was, and has been for over 50 years, well-healed, nonadherent, and nontender. There is no evidence of record to indicate that the veteran's residual scar is anything more than moderately disfiguring. There is no evidence that the scar is productive of marked and unsightly deformity of any part of the head. The Board has considered a higher rating under Diagnostic code 7805, where a scar is rated based upon limitation of function of part affected. 38 C.F.R. § 4.118 However, there is no evidence of record to indicate that the veteran's scar has caused any type of limitation of function, and certainly nothing beyond the 10 percent rating currently assigned. Therefore, the Board finds that the preponderance of the evidence is against an increased rating. 4. Tinnitus The Board notes that effective June 10, 1999, the VA revised the criteria for evaluating Diseases of the Ear and Other Sense Organs. 64 Fed. Reg. 25202-210 (1999). However, the changes in regulations pertaining to evaluations for tinnitus were not significant in regard to the veteran's disability rating. The Board notes that the RO has not had a chance to evaluate the veteran's claim under both the old and new rating criteria. Karnas v. Derwinski, 1 Vet. App. 308, 312- 313 (1991) (where the law or regulations change while a case is still pending, the version most favorable to the claimant applies, absent congressional intent to the contrary). However, as the changes made do not reflect any substantive change in the evaluation of the veteran's disabilities, the Board concludes that there is no prejudice to the veteran by evaluating his tinnitus (and hearing loss, considered below) for the first time under both sets of regulations. Bernard v. Brown, 4 Vet. App. 384, 394 (1993). The veteran was granted service connection for tinnitus in October 1947. The effective date was established as of September 25, 1947, the date of a diagnosis by way of a VA examination. The veteran was assigned a 10 percent rating. Subsequently, he was granted service connection for right ear hearing loss in October 1954, with an effective date of September 25, 1947. The veteran's tinnitus and right ear hearing loss were then rated together, at the 10 percent level, until October 1997 where the veteran received a separate 10 percent rating for his tinnitus, effective the date his claim for an increased rating was received, or July 7, 1997. The veteran did not express any disagreement with the RO's action. Accordingly, the only issue before the Board is whether an increased rating for tinnitus is justified. Currently, the veteran's service-connected tinnitus is rated under 38 C.F.R. § 4.87a, Diagnostic Code 6260 (1998). Under Diagnostic Code 6260, a maximum schedular rating of 10 percent is applicable for persistent tinnitus, as a symptom of head injury, concussion, or acoustic trauma. Under the amended regulations, a 10 percent rating is warranted under Diagnostic Code 6260 as the maximum for recurrent tinnitus. 64 Fed. Reg. 25210 (1999). The veteran commented at his September 1997 VA examination that his tinnitus was aggravating. There was no complaint that it was debilitating and no finding that it interfered with the veteran's employability, or caused him to be hospitalized. In reviewing the evidence of record, there is no basis to assign a higher percentage for the veteran's tinnitus. He currently is rated at the maximum level, under both the old and amended regulations. Moreover, he has not demonstrated, or asserted, that his tinnitus disability is so severe as to warrant consideration for an extraschedular rating under 38 C.F.R. § 3.321(b) (1999). Accordingly, there is no basis to justify an increased rating. 5. Right Ear Hearing Loss As noted previously, regulations pertaining to rating disabilities for hearing loss were amended effective June 10, 1999. However, the changes made for evaluating the level of disability for hearing loss were not significant. Previously, levels of impairment were evaluated under Diagnostic Codes 6100-6110, with rising disability ratings given a different diagnostic code. As a result of the revision, only Diagnostic Code 6100 applies to all levels of impairment. Evaluations of defective hearing range from noncompensable to 100 percent. This is based on organic impairment of hearing acuity as measured by the results of controlled speech discrimination tests, together with the average hearing threshold level as measured by pure tone audiometry tests in the frequencies of 1,000, 2,000, 3,000, and 4,000 Hertz. To evaluate the degree of disability from service-connected hearing loss, the rating schedule establishes eleven auditory acuity levels ranging from numeric level I for essentially normal acuity, through numeric level XI for profound deafness. 38 C.F.R. § 4.87, Diagnostic Codes 6100 to 6110 (1998); 38 C.F.R. § 4.85, Diagnostic Code 6100, 64 Fed. Reg. 25208-09 (1999). A review of the September 1997 VA audiometric study correlates to level V hearing in the right ear. See 38 C.F.R. § 4.85, Table VI (1998); 64 Fed. Reg. 25208 (1999). Where service-connection is established for only one ear, in order to determine the percentage evaluation from Table VII, the nonservice-connected ear will be assigned a Roman Numeral designation for hearing impairment of I. See VAOPGCPREC 32- 97; 64 Fed. Reg. 25206 (1999). The combination of the two ears corresponds to a noncompensable rating. See 38 C.F.R. § 4.87, Table VII, Diagnostic Code 6100 (1998); Table VII, Diagnostic Code 6100, 64 Fed. Reg. 25209 (1999). The assigned evaluation is determined by mechanically applying the rating criteria to certified test results. Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992). The Board notes that the veteran's 10 percent rating for his right ear hearing loss has been in effect for over 20 years. As such, the rating is protected, and despite the findings based on the current examination warranting a noncompensable rating, the current rating cannot be reduced. 38 U.S.C.A. § 110 (West 1991); 38 C.F.R. § 3.951(b) (1999). Accordingly, there is no basis to justify an increased rating for the veteran's right ear hearing loss under either the prior or amended regulations. ORDER The rating decision of June 12, 1946, was clearly and unmistakably erroneous in failing to assign a 30 percent disability evaluation for residuals of a shrapnel wound to the upper left arm. Appropriate benefits, are granted subject to governing criteria for the payment of monetary awards. Increased evaluations for shrapnel wound of the lower third of the right leg, shrapnel wound of the right hip, scar over the right temporal region, tinnitus, and hearing loss in the right ear are denied. REMAND As noted above, the issue of entitlement to increased ratings for residuals of paralysis of the left radial nerve, and for shrapnel wound of the left upper arm, involving muscle group V, must be deferred pending further action. The Board notes that there is no evidence in the claims file to indicate which is the dominant arm of the veteran. The veteran's service medical records do not appear to provide any amplifying information. The prior VA rating decisions do not provide an indication as they rated the veteran's left radial nerve disability at 20 percent and his left upper arm disability at the 10 percent level, evaluations that could be applicable for either the dominant (major) or nondominant (minor) arm. The Board does note that, based upon the RO's analysis as part of the October 1997 rating decision on appeal, the veteran's left arm was evaluated as the nondominant arm. However, the Board has not found any definitive evidence to support that conclusion. This information is essential in adjudicating the veteran's claim. First, it is essential in determining the proper rating to which the veteran is entitleme as a result of the CUE determination made above. Second, it is essential for adjudicating any claim for an increased rating for the residuals of paralysis of the left radial nerve and for his shrapnel wound of the left upper arm. Accordingly, the veteran's claim is REMANDED for the following action: 1. The RO must determine the handedness for the veteran in accordance with 38 C.F.R. § 4.69 (1999). The determination can be made based upon evidence of record, if there is such evidence, or credible evidence provided by the veteran. If deemed necessary by the RO, the veteran's handedness may be determined by testing on VA examination. 2. Thereafter, the RO should consider the proper rating for the veteran's left arm disability in relation to the 1946 rating action. Thereafter, the RO should undertake any other indicated development, including a current disability evaluation examination if deemed necessary, and readjudicate the issues of entitlement to increased ratings for residuals of paralysis of the left radial nerve, and for shrapnel wound of the left upper arm. 3. If the benefits sought are not granted, the veteran and his representative should be furnished with a supplemental statement of the case and provided an opportunity to respond The case should then be returned to the Board for further appellate consideration. By this action, the Board intimates no opinion, legal or factual, as to the ultimate disposition warranted for the issue on REMAND. NADINE W. BENJAMIN Acting Member, Board of Veterans' Appeals