BVA9504245 DOCKET NO. 92-16 678 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUE Entitlement to an increased (compensable) rating for residuals of shell fragment wound to the right leg. REPRESENTATION Appellant represented by: Division of Veterans Affairs, North Carolina WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD L. J. Vecchiollo, Associate Counsel INTRODUCTION The veteran had active military service from May 1967, to July 1973. This case came before the Board of Veterans' Appeals (Board) on appeal from a March 1991 rating decision of the Winston-Salem, North Carolina, Regional Office (RO) which granted service connection for shrapnel fragment wound of the right leg and assigned a noncompensable evaluation. The notice of disagreement was received in April 1991. A statement of the case was issued on June 1991. The substantive appeal was received on August 1991. The Board remanded the case in May 1993. The veteran has not filed a notice of disagreement to the RO's denial of entitlement to pension, reduction of the 10 percent rating for pseudofolliculitis barbae to noncompensable effective March 1, 1995, denial of entitlement to a 10 percent rating under 38 C.F.R. § 3.324 (1993) or denial of service connection for a back disorder. These issues are not in appellate status. Further the issue of entitlement to service connection for post traumatic stress disorder (PTSD) is pending before the RO so the Board will not consider it. The issue of entitlement to service connection for disability due to Agent Orange is not before the Board as service connection for pseudofolliculitis barbae (claimed as residuals of Agent Orange) was granted in an April 1992 rating action. The veteran in a June 1992 letter was asked if he was claiming other disability due to Agent Orange and there was no response. The issue of entitlement to service connection for a knot, on the back of the right leg raised by the veteran at the hearing is referred to the RO for appropriate action. CONTENTIONS OF APPELLANT ON APPEAL The veteran contends that his service-connected residuals of shell fragment wound to the right leg is manifested by spasms, numbness and a "pins and needles" sensation. 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 evidence does not support a compensable rating for the veteran's service-connected residuals of shell fragment wound to the right leg. FINDINGS OF FACT 1. The medical evidence reflects that the veteran's service- connected residuals of shell fragment wound to the right leg involves no muscle disability and is manifested by a 3.5 centimeter well-healed scar with no adhesion, tenderness or pain. The scar has no effect on the function of the veteran's right knee or leg. The scar is non-disfiguring. 2. There is no muscle damage or nerve damage due to the shrapnel wound. CONCLUSION OF LAW A disability rating higher than zero percent for the veteran's service-connected residuals of shell fragment wound to the right leg is not warranted. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. Part 4, Diagnostic Codes 7803, 7804, 7805 (1993). REASONS AND BASES FOR FINDINGS AND CONCLUSION The evaluation assigned for the veteran's service-connected residuals of shell fragment wound to the right leg is established by comparing the manifestations indicated in his medical records and with the criteria in the VA's Schedule for Rating Disabilities, 38 C.F.R. Part 4 (1993). 38 U.S.C.A. § 1155 (West 1991). When there is a question as to which of two evaluations should be applied to a disability, 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 (1993). Service medical records reveal that, in March 1968, the veteran sustained a shell fragment wound to the right calf which was closed and cleaned without incident. The veteran's medical examination pursuant to separation from service, dated in July 1973, was negative for any complaints or findings of a lower extremity injury. A VA examination was performed in March 1991 and revealed a 2 inch well-healed shrapnel fragment wound to the left [sic] leg anteriorally. An x-ray evaluation of the right lower leg was normal and the soft tissues were unremarkable. The diagnosis was of a shell fragment wound of the right leg. A March 1991 rating decision granted entitlement to service connection for shell fragment wound to the right leg and assigned a zero percent rating. A VA compensation examination of the joints was performed in March 1992. The veteran complained of occasional episodes of weakness of his right lower extremity associated with back pains during the past year. The veteran also stated that he had little or no functional impairment related to his shrapnel wound. An x- ray evaluation of the right lower leg was normal. A diagnosis of residual right leg shrapnel wound without demonstrable clinical muscular, neurologic or bony impairment was rendered. A VA compensation examination of the muscles was conducted in June 1993. The veteran presented with tingling and weakness in the right leg which, he claimed, was due to the residuals of his shell fragment wound. Examination revealed no muscle disability and the injury was manifested by a 3.5 centimeter well-healed scar with no adhesion, tenderness or pain. The scar had no effect on the function of the veteran's right knee or leg. The examiner found no evidence of muscle penetration, pain, loss of strength, damage to tendons, bones, joints or nerves. A diagnosis of status post shell fragment wound of the right lower leg with residual scar, no muscle involvement by examination, was given. A VA dermatology examination was performed that same month. The examiner stated that the scarring related to the wound of the right leg was not very noticeable or appreciable. Examination revealed the scar to be freely movable and nontender. A VA neurology examination was also performed that same month. The veteran stated that since the onset of the shrapnel injury, he has felt a vibration radiating down his legs from the site of the injury and numbness and itching at the injury site. Examination revealed normal strength in all muscle groups and a sensory examination revealed a diminution in vibration, light touch and pin prick over the right leg in regional distribution. Deep tendon reflexes were diminished throughout but symmetrical without pathological responses. Diagnoses of gunshot wound to anterior right medial leg with subjective residual complaints but with no objective findings that would relate to the injury and regional sensory changes right lower extremity, unexplained etiology, were given. The RO assigned a zero percent evaluation for residuals of shell fragment wound to the right leg in accordance with the VA Schedule for Rating Disabilities under Diagnostic Code 5312. Under this diagnostic code, slight injury to Muscle Group XII, the anterior muscles of the leg, is a basis for a noncompensable evaluation. Where the damage is moderate, a 10 percent rating is substantiated. A 20 percent evaluation requires moderately severe injury. Severe muscle injury warrants a 30 percent rating. 38 C.F.R. § 4.73, Diagnostic Code 5312 (1993). As there was no muscle damage due to the shrapnel wound this code is inapplicable. In this case, the rating criteria that are applicable are for scars. A compensable evaluation for scars (other than burn scars or disfiguring scars of the head, face or neck) requires that they be poorly nourished with repeated ulceration; that they be tender and painful on objective demonstration; or that they produce limitation of function of the body part which they affect. 38 C.F.R. § 4.118, Diagnostic Codes 7803, 7804 and 7805 (1993). As the scar is not poorly nourished with repeated ulceration; or tender and painful on objective demonstration; or produces limitation of function of the body part which it affects; the veteran is not entitled to a compensable evaluation for such scar. 38 C.F.R. § 4.118, Diagnostic Codes 7803, 7804, 7805 (1993). Under 38 C.F.R. § 4.40 (1993), functional loss of part of the body due to pain is also considered a disability. Functional loss is the inability to perform normal working movements, and must be supported by adequate pathology and evidenced by the visible behavior of the veteran. In this case, the veteran has no functional loss nor has any painful motion been demonstrated and therefore, a higher rating under this regulation is not warranted. The Board has also considered whether the veteran is entitled to an extraschedular rating under 38 C.F.R. § 3.321(b)(1) (1993). That regulation permits the application of an extraschedular rating in exceptional cases where the schedular ratings do not adequately represent the disability picture. However, the schedular ratings in this case do adequately represent the disability picture. That is, his service-connected disability does not require frequent periods of hospitalization nor has marked interference with employment been shown. 38 C.F.R. § 3.321(b)(1) (1993). There is no doubt on any material issue in this case. 38 U.S.C.A. § 5107(b) (West 1991). ORDER The appeal is denied. E. M. KRENZER Member, Board of Veterans' Appeals (CONTINUED ON NEXT PAGE) 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.