BVA9504976 
DOCKET NO.  93-10 737     )       DATE
          )
          )

On appeal from the decision of the
Department of Veterans Affairs Regional Office in New York, New
York

THE ISSUE

Entitlement to an evaluation in excess of 10 percent for the
residuals of a shell fragment wound of the left thigh muscle,
involving muscle group XV.

REPRESENTATION

Appellant represented by: New York Division of Veterans'
Affairs

ATTORNEY FOR THE BOARD

J. Johnston, Associate Counsel

INTRODUCTION

The veteran had active service from December 1942 to January
1946.

This matter comes before the Board of Veterans' Appeals (Board)
on appeal from an April 1992 rating decision of the New York, New
York, Department of Veterans Affairs (VA) Regional Office (RO)
which re-established previously severed service connection for
the residuals of a shell fragment wound of the left thigh.  The
RO subsequently conducted an administrative review of the
veteran's claim and increased the evaluation to 10 percent based
upon findings that the shell fragment wound injury had been
through and through.  Additionally, his 10 percent evaluation was
made effective back to 1951 based upon clear and unmistakable
error at that time.  The sole issue remaining on appeal is
whether the service-connected disability now warrants an
evaluation in excess of 10 percent.

CONTENTIONS OF APPELLANT ON APPEAL

In essence, it is maintained by and on behalf of the appellant
that the impairment caused by his service-connected residuals of
a shell fragment wound of the left leg are very severe.  It is
averred that the left thigh still contains shell fragments.  It
is maintained that following the right below-the-knee amputation
(due to nonservice-connected disability), great strain was placed
on the left leg.  Because of the retained foreign bodies in the
left thigh, he has less mobility in the left lower extremity;
therefore, a higher rating is justified.

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
appellant's claim for entitlement to and increased rating for the
residuals of a shell fragment wound of the left thigh muscle,
involving muscle group XV.

FINDINGS OF FACT

1.  All relevant evidence necessary for an equitable disposition
of the appeal has been obtained.

2.  Residuals of a shell fragment wound of the left thigh muscle,
involving muscle group XV is manifested by motor strength of 5/5,
with well-healed, nontender, non-erythematous scars of entrance
and exit, causing no more than moderate disability.

3.  The veteran has not submitted evidence tending to show that
the residuals of a shell fragment wound of the left thigh muscle,
involving muscle group XV are unusual, require frequent periods
of hospitalization or cause unusual interference with work other
than that contemplated within the schedular standards.

CONCLUSION OF LAW

The schedular criteria for a rating in excess of 10 percent for
residuals of a shell fragment wound of the left thigh muscle,
involving muscle group XV, have not been met.  38 U.S.C.A.
§ 1155, 5107 (West 1993); 38 C.F.R. §§ 3.321, 4.1, 4.7, 4.40,
4.56, 4.72, Diagnostic Code 5315 (1994).

REASONS AND BASES FOR FINDINGS AND CONCLUSION

The appellant's claim is well grounded, that is, it is not
inherently implausible.  The facts relevant to the issue on appeal
have been properly developed and the statutory duty of the VA to
assist the appellant in the development of his claim has been
satisfied.  38 U.S.C.A. § 5107(a) (West 1991).

Service medical records reveal that in December 1944, the veteran
sustained a penetrating would of the lateral aspect of the upper
1/3 of the left thigh.  The wound was described as 6 inches by 5
inches, in the lateral aspect, with a surgical incision on the
anterior aspect of the left thigh.  The wound was clean and
healing.  In March 1945, he was returned to duty in a general
assignment.  At the time of his separation physical examination
in January 1946, a nonsymptomatic left thigh scar was noted.

A rating decision in January 1946 awarded service connection and
assigned a 10 percent rating for a shell fragment wound of the
left thigh, muscle group XV.  As explained in the INTRODUCTION
portion of this decision was discontinued from August 1951 to
September 1991, when the rating was reinstated.

Received in September 1991, was the veteran's application for
compensation or pension.  Concerning the residuals of a shell
fragment wound of the left thigh muscle, involving muscle group
XV, the veteran did not indicate on the application that left
thigh disorder had required treatment.

In October 1991, the veteran was afforded a VA medical
examination.  A nonservice-connected right below-the-knee
amputation was described.  Regarding the left lower extremity,
the veteran was described as a 70-year old male, with a history
of a gunshot wound of the left thigh.  Physical examination
revealed an anterolateral thigh scar from a bullet.  The wound
was well-healed, and not tender.  There was also a 5 cm scar,
well-healed, without erythema, over the anterolateral aspect of
the thigh.  Motor strength was describe as 5/5.  An X-ray study
of the thigh revealed an irregular fragment of metal at the
anterolateral portion of the proximal thigh.  The fragment was
not related to any bony structure.

The veteran is in receipt of a 10 percent rating for residuals of
a shell fragment wound of the left thigh.  This rating
contemplates moderate impairment of the muscle group.  Moderately
severe impairment would require the assignment of a 20 percent
rating under 38 C.F.R. § 4.73, Diagnostic Code 5315.

Moderate disability of muscles is shown to exist when there are
through and through or deep penetrating wounds of relatively
short track by single bullet or small shell or shrapnel fragment.
Absence of explosive effect of high velocity missile and of
residuals of debridement or of prolonged infection.  Objective
findings include entrance and (if present) exit scars linear or
relatively small and so situated as to indicate relatively short
track of missile through muscle tissue; signs of moderate loss of
deep fascia or muscle substance or impairment of muscle tonus,
and of definite weakness or fatigue in comparative tests.  (In
such tests the rule that with strong efforts, antagonistic
muscles relax is to be applied to insure validity of tests.)  In
contrast, moderately severe disability of muscles is present with
through and through or deep penetrating wound by high velocity
missile of small size or large missile of low velocity, with
debridement or with prolonged infection or with sloughing of soft
parts, intermuscular cicatrization.  Objective findings include
entrance and (if present) exit scars relatively large and so
situated as to indicate track of missile through important muscle
groups.  Indications on palpation of moderate loss of deep
fascia, or moderate loss of muscle substance or moderate loss of
normal firm resistance of muscles compared with sound side.
Tests of strength and endurance of muscle groups involved
(compared with sound side) give positive evidence of marked or
moderately severe loss.  38 C.F.R. § 4.56(b)(c).

The veteran argues that the retained metallic foreign bodies in
the left thigh prevent full functioning of the left lower
extremity, and that following the right below-the-knee amputation
(due to nonservice-connected disability), great strain was placed
on the left leg.  Because of the retained foreign bodies in the
left thigh, he has less mobility in the left lower extremity;
therefore, a higher rating is justified.  In this regard, we note
that during the most recent VA medical examination performed in
1991, normal motor strength of 5/5 was recorded.  The scars were
described as well-healed and not tender.  It does not appear that
the left thigh impairment has required any treatment subsequent
to service.  Inasmuch as tests of strength and endurance of
muscle group XV do not give positive evidence of marked or
moderately severe loss, a rating in excess of 10 percent is not
justified.

In its review, the Board has considered the history of the
injuries, 38 C.F.R. § 4.1, the higher of two evaluations where
the disability picture more nearly approximates the criteria
required for the next higher rating, 38 C.F.R. § 4.7, and
functional loss due to pain, 38 C.F.R. § 4.40.

In exceptional cases where the schedular standards are found to
be inadequate, an extraschedular evaluation commensurate with the
average earning capacity impairment due exclusively to the
service-connected disability may be approved provided the case
presents such an exceptional or unusual disability picture with
related factors such as marked interference with employment or
frequent periods of hospitalization so as to render impractical
the application of the regular schedular standards.  38 C.F.R.
§ 3.321(b)(1).  The veteran has not submitted evidence tending to
show that either the disability caused by the residuals of a
shell fragment wound of the left thigh muscle, involving muscle
group XV are unusual, or that they cause marked interference with
work other than as contemplated within the schedular provisions
discussed herein, or require frequent periods of hospitalization
as to warrant an extraschedular increased evaluation.  Id.

ORDER

Entitlement to an increased rating for the residuals of a shell
fragment wound of the left thigh muscle, involving muscle group
XV is denied.

______________________________
          RENÉE M. PELLETIER
          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.