BVA9505663 DOCKET NO. 93-01 876 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania THE ISSUES 1. Entitlement to an increased rating for residuals of a shell fragment wound of the right calf, currently evaluated as 10 percent disabling. 2. Entitlement to service connection for a circulatory disorder as proximately due, or the result of, a service-connected disability. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD P. Greif, Associate Counsel INTRODUCTION The veteran had active military service from January 1942 to August 1945. This matter came before the Board of Veterans' Appeals (Board) on appeal from an April 1992 rating decision from the Philadelphia, Pennsylvania, Regional Office (RO) of the Department of Veterans Affairs (VA). In that rating decision the RO denied the veteran's claim for entitlement to an increased rating for residuals of a shell fragment wound of the right calf (right calf disorder). The case was remanded by the Board for further development in March 1994. On a June 1994 statement, the veteran raised the issue of entitlement to an increased rating for malaria. However, since that issue is not currently on appeal it is referred to the RO for action deemed appropriate. In an August 1994 rating decision, the RO dismissed the veteran's claim for service connection for a circulatory disorder as proximately due, or the result of, a service-connected disability as not being a well grounded claim. CONTENTIONS OF APPELLANT ON APPEAL The veteran and his representative contend, in essence, that the RO committed error in not assigning a higher rating for the right calf disorder. Specifically, the veteran asserts that his right calf is painful. He claims that his right calf disorder causes cramps which makes it difficult to walk. The veteran contends that he has a circulatory disorder which is proximately due to, or the result of his service-connected right calf disorder. 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 preponderance of the evidence is against the veteran's claim for an increased rating for a right calf disorder and that the veteran has not met the initial burden of submitting evidence sufficient to justify a belief by a fair and impartial individual that his claim for service connection for a circulatory disorder is well grounded. FINDINGS OF FACT 1. The RO has obtained all relevant evidence necessary for an equitable disposition of the veteran's appeal. 2. The veteran's service-connected residuals of a shell fragment wound of the right calf are manifested by a two inch scar on the posterior aspect of the right leg which is tender to light touch and subjective complaints of pain; however, a more than moderate muscle injury is not shown. 3. The veteran has not met the initial burden of submitting evidence to justify a belief by a fair and impartial individual that his claim for service connection for a circulatory disorder is well grounded. 4. The veteran's disability does not present an exceptional or unusual disability picture rendering impractical the application of the regular schedular standards. CONCLUSIONS OF LAW 1. The schedular criteria for a rating in excess of 10 percent for residuals of a shell fragment wound of the right calf and injury to muscle group XI have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. Part 4, including Code 5311 (1994). 2. The veteran has not submitted evidence of a well grounded claim for service connection for a circulatory disorder. 38 U.S.C.A. §§ 1110, 5107(a) (West 1991); 38 C.F.R. § 3.303 (1994). 3. The failure of the RO to consider or to document its consideration of an extraschedular rating is no more than harmless error. 38 C.F.R. § 3.321(b)(1) (1994). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Entitlement to an Increased Rating for Right Calf Disorder The veteran's claim is "well grounded" within the meaning of 38 U.S.C.A. § 5107(a) (West 1991). That is, he has presented a claim which is plausible. 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). Service medical records indicate that, on June 6, 1944, the veteran was wounded in action by receiving a shrapnel wound to the right leg, postero-laterally in mid soft tissue 2 1/2 inches below the knee. He was given sulfa drugs and penicillin. On June 28, 1944, he was returned to duty as improved. The separation examination report listed, among other things, a scar on the right calf and no musculoskeletal defects. Based upon the service medical record findings, the RO, in a September 1945 rating decision granted service connection for, among other things, residual gunshot wound with scar on the right calf, and assigned a 10 percent evaluation. In December 1960, the RO continued the 10 percent rating for right calf; however, because of the discovery of retained metallic foreign body in the right calf, the disorder was rated under Diagnostic Code 5311 of the Schedule for Rating Disabilities, 38 C.F.R. Part 4, § 4.73 (1994). The 10 percent evaluation was thereafter continued until May 1991, at which time the veteran sought an increased rating for the right calf disorder. The veteran reported that he had been receiving treatment at a VA Medical Center. VA outpatient reports dated between January 1990 and August 1991 reflect treatment for various disorders including heart disease, a gastrointestinal disorder, foot disorder, and right calf disorder. In November 1990 the veteran complained of increased right calf pain with swelling. At that time he underwent surgery to remove the shrapnel from the right leg. The examiner's diagnosis following surgery was calf abscess. In January 1991 the examiner reported that the right calf wound from surgery was healing well and without evidence of infection. During a March 1992 VA examination the veteran complained of chronic right leg pain that kept him awake at night and made him walk with a limp. The examiner reported that the veteran had a two inch scar on the lateral aspect of the leg, good musculature of both legs, pain over the right calf incision site, and a shrapnel wound to the right leg. The examiner noted that since the veteran's surgery in 1990 he had become unstable on his feet. On examination of the right calf scar the examiner reported that the veteran had tenderness over the incision of the lateral aspect of the right leg. In an April 1992 rating decision, the RO denied an increased rating for right calf disorder, and continued the 10 percent disability rating. 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 (West 1991); 38 C.F.R. Part 4. Separate diagnostic codes identify the various disabilities. The current 10 percent rating under Diagnostic Code 5311 contemplates moderate muscle injury of the posterior and lateral crural muscles group. The next higher rating, 20 percent, requires moderately severe muscle injury of the posterior and lateral crural muscles group. The moderate muscle injury suggests definite weakness or fatigue on comparative testing and service department hospitalization for treatment of the wound. Moderately severe injury suggests marked or moderately severe loss of strength and endurance on testing and service department hospitalization for a prolonged period for treatment of a wound of severe grade. 38 C.F.R. § 4.56(b) and (c) (1994). The veteran was accorded a VA examination in April 1994. On musculature examination he complained of right calf pain when walking short distances. The examiner reported that there was a two inch scar on the posterior aspect of the leg, no loss of muscle mass, a scar that was tender to touch, but no tendon damage. He noted that the veteran's muscle strength was normal and that he had no muscle herniation. The diagnosis was postoperative removal of shrapnel of the right calf. In determining whether a higher rating is warranted for disease or disability, VA must determine whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C.A. § 5107(b) (West 1991); Gilbert v. Derwinski, 1 Vet.App. 49 (1990). The Board acknowledges that the veteran experiences some pain associated with the service-connected right calf disorder. In weighing the evidence of record in this case, the Board carefully considered the service medical records which reflect a relatively brief period of treatment and VA examination reports, as well as the evidence of record, in light of the veteran's contentions. The findings include a well healed somewhat tender two inch scar on the right calf and no evidence of muscle loss or tendon damage. The lack of muscle loss and tendon damage is significant because it shows that the injury was not destructive of the musculature in that area. This would need to be shown to consider a higher evaluation. This is consistent with the service department reports of a soft tissue injury requiring medication for about three weeks. The Board notes that over the years the veteran's right calf disorder has not gotten progressively worse nor has he received any treatment for the right calf disorder since 1990. The chief complaint is chronic pain especially when walking. This is contemplated under the current rating. The manifestations of the right calf disorder do not equate to a moderately severe injury to the posterior and lateral crural muscles group. A review of the examination reports shows that the right calf scar has been shown to be tender and painful on objective demonstration. The production of symptoms by objective demonstration is required by the rating criteria. The VA examiner's felt that there was a tender scar to light touch and that the veteran had pain over the incision site. However, this is one of the chief reasons for the assignment of the current rating for muscle injury. The regulatory provisions call for moderate loss of deep fascia or muscle substance or impairment of muscle tonus and definite weakness or fatigue to support a rating for moderate muscle injury. 38 C.F.R. § 4.56(b) (1994). These characteristics of muscle injury have not been suggested on the examination reports. To provide a rating under Diagnostic Code 7804 would amount to pyramiding since the same symptom would be contemplated in both ratings. Accordingly, the Board concludes that the service medical records and VA examination reports when taken as a whole do not reveal the symptomatology which would warrant a 20 percent rating. The regular schedular standards are shown to be adequate to compensate the veteran's disability. This is not an exceptional case where the regular schedular standards are shown to be inadequate. It does not present an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical the application of the regular schedular standards. 38 C.F.R. § 3.321(b)(1) (1994). II. Service Connection for a Circulatory Disorder The veteran has not contended that his circulatory disorder was incurred in or aggravated by military service. Instead, he asserts that his circulatory disorder resulted from symptomatology associated with his service-connected right calf disorder. The veteran is service-connected for a right calf disorder, rated as 10 percent disabling under Diagnostic Code 5311. The threshold question to be answered in this claim is whether the veteran has presented evidence of a well-grounded claim; that is, one which is plausible. If he has not presented a well- grounded claim, his appeal must fail and there is no duty to assist him further in the development of his claim because such additional development would be futile. 38 U.S.C.A. § 5107(a) (West 1991). As will be explained below, we find that his claim is not well-grounded and that there is no statutory duty to assist him further in the development of the claim. Furthermore, since the claim is not well-grounded the Board does not have jurisdiction over the question of whether or not the benefit sought on appeal is warranted. Boeck v. Brown, 6 Vet.App. 14 (1993). Secondary service connection may be granted for a disability which is shown to be proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a) (1994). The first indication of a circulatory disorder was noted on a May 1991 statement at which time the veteran alleged that he had had trouble with his blood since the right calf surgery. VA hospital reports dated in January 1990, November 1990, and December 1990 did not indicate any type of a circulatory disorder. On such reports is was noted that the veteran had a history of arteriosclerotic cardiovascular disease, atrial fibrillation, and essential hypertension. However, none of the examiners stated that the veteran had a circulatory disorder. On a March 1992 VA arteries and veins examination report the examiner reported that the veteran had normal pulsations and skin. He noted that the veteran had atrial fibrillation with Grade III systolic murmur of the apex. The diagnosis was arteriosclerotic cardiovascular disease, atrial fibrillation, and essential hypertension. There was no indication of a circulatory disorder. On the most recent (April 1994) VA examination report there were no complaints or findings suggestive of a circulatory disorder. The examiner reported that the veteran had normal peripheral pulses, no varicosities, and normal skin turgor. He noted that no disease was found. As demonstrated by the medical evidence of record, there is no indication that the veteran has a circulatory disorder apart from his heart condition. There is no medical evidence of record to support the veteran's allegation that he has a circulatory disorder and that it is the result of the shrapnel wound of the right calf. With respect to this particular contention, the United States Court of Veterans Appeals (Court) has held that where the determinative issue involves medical causation or a medical diagnosis, competent medical evidence to the effect that the claim is "plausible" or "possible" is required. Espiritu v. Derwinski, 2 Vet.App. 492 (1992); Grottveit v. Brown, 5 Vet.App. 91 (1993). Therefore, lay evidence, such as the veteran's opinion that he has a circulatory disorder and it is related to his service-connected right calf disorder is not competent to support a finding on a medical question requiring special experience or special knowledge. There is no credible evidence of record suggesting that he has a circulatory disorder and that it resulted from his service-connected right calf disorder. In the absence of any medical evidence to support the veteran's contentions, his claim cannot stand. Williams v. Brown, No. 91- 1777, slip op. at 2 (U.S. Vet. App. Feb. 17, 1993). ORDER 1. Entitlement to an increased rating for residuals of a shell fragment wound of the right calf is denied. 2. Entitlement to service connection for a circulatory disorder has not been established. The issue is dismissed. JAN DONSBACH 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.