BVA9506080 DOCKET NO. 92-03 398 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Oakland, California THE ISSUES 1. Entitlement to service connection for recurrent perineal abscesses, secondary to service-connected residuals of gunshot wounds to the right buttock and right upper tibia. 2. Entitlement to an increased evaluation for residuals of gunshot wounds to the right buttock and right upper tibia, with retained metal bodies, currently rated 10 percent disabling for scars. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Charles G. Sener, Associate Counsel INTRODUCTION The appellant had active service from June 1967 to June 1970. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 1991 rating decision of the Department of Veterans Affairs (VA) San Francisco, California, Regional Office, which denied a claim of entitlement to an increased evaluation for the residuals of gunshot wounds to the right buttock and right upper tibia with retained metal bodies. The Board notes that the San Francisco, California, Regional Office is now the Oakland, California, Regional Office (RO). A June 1993 Board decision remanded the issue of entitlement to an increased evaluation for residuals of gunshot wounds to the right buttock and right upper tibia with retained metal bodies to the RO for further medical evaluation as to whether any causal relationship existed between the service-connected residuals of the gunshot wounds to the right buttock and right upper tibia and the recurrent perineal abscesses. A July 1994 RO decision again denied the appellant's claim. Review of the claims file indicates that the appellant may also be seeking entitlement to a total disability rating (100 percent) for convalescence, under the provisions of 38 C.F.R. § 4.30 (1994), following surgery performed in September 1991. This claim is not inextricably intertwined with the current claims and has not been developed for appellate consideration by the RO. Therefore, this matter is referred to the RO for appropriate action. CONTENTIONS OF APPELLANT ON APPEAL In a March 1991 statement, the appellant claimed that his service connected scars, residuals of gunshot wounds to the right buttock and right upper tibia with retained metal bodies, were more severely disabling than currently evaluated. The appellant also believes that his perineal abscesses are caused by retained metal bodies that are residuals of his service-connected gunshot wounds to the right buttock and right upper tibia. In a January 1995 statement, the appellant's representative asserted that the medical evidence of record concerning the relationship between the appellant's recurrent perineal abscesses and the residuals of his service-connected gunshot wounds with retained metal bodies was in relative equipoise; therefore, the doctrine of reasonable doubt must be resolved in favor of the appellant, and service connection should be granted for recurrent perineal abscesses. 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 appellant'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 there is an approximate balance between the positive and negative evidence pertaining to the claim of entitlement to service connection for recurrent perineal abscesses, secondary to service-connected residuals of gunshot wounds to the right buttock and right upper tibia. Because the benefit of the doubt regarding this claim is extended to the appellant by statute when the evidence is in equipoise, the Board finds that service connection is warranted for recurrent perineal abscesses, secondary to service-connected residuals of gunshot wounds to the right buttock and right upper tibia. Based on its review of the relevant evidence in this matter, and for the following reasons and bases, it is also the decision of the Board that the preponderance of the evidence is against the appellant's claim of entitlement to an increased evaluation for residuals of gunshot wounds to the right buttock and right upper tibia, with retained metal bodies, currently rated 10 percent disabling for scars. FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the appellant's appeal has been obtained by the agency of original jurisdiction. 2. The appellant is service-connected for residuals of gunshot wounds to the right buttock and right upper tibia that resulted in multiple, retained metal bodies projected over the region of the sacroiliac notch and the coccyx and presumed to be in the soft tissues. 3. The symptomatology of the appellant's recurrent perineal abscesses is distinct and separate from the symptomatology of his service-connected residuals of gunshot wounds to the right buttock and right upper tibia. 4. The appellant has had recurrent perineal abscesses that are shown to be related to the service-connected residuals of gunshot wounds to the right buttock and right upper tibia. 5. The appellant's right buttock and right upper tibia scars, the residuals of gunshot wounds with retained metal bodies, are healed and asymptomatic, and do not cause any abnormal sensory pattern or functional limitation. 6. Neither an exceptional nor unusual disability picture has been presented so as to render impractical the application of the regular schedular standards. CONCLUSIONS OF LAW 1. Recurrent perineal abscesses are due to or the result of service-connected residuals of gunshot wounds to the right buttock and right upper tibia. 38 U.S.C.A. § 5107 (West 1991); 38 C.F.R. § 3.310 (1994). 2. The schedular criteria for a disability evaluation in excess of 10 percent for scars, as residuals of gunshot wounds to the right buttock and right upper tibia, with retained metal bodies, are not met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §§ 4.2, 4.7, 4.10, 4.118, Diagnostic Codes 7803, 7804, 7805 (1994). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS In accordance with 38 U.S.C.A. § 5107 (West 1991), and Murphy v. Derwinski, 1 Vet.App. 78 (1990), the appellant has presented well-grounded claims. The facts relevant to this appeal have been properly developed, and the obligation of the VA to assist the appellant in the development of the claim has been satisfied. Id. I. Perineal Abscesses Service connection may be granted for disability which is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310 (1994). An April 1973 rating decision granted the appellant service connection for residuals of gunshot wounds that included healed scars. A copy of a May 1989 VA radiology report of the appellant's lumbosacral spine and pelvis disclosed calcific or metallic densities over the region of the bladder, right pelvis, and proximal right femur of uncertain etiology. Copies of various VA medical records for the period March 1991 to March 1992 showed various treatments for recurrent perineal abscesses. A copy of a March 1991 VA medical record indicated that the appellant was seen for a recurrent infection involving his perineum. Physical examination showed evidence of infection and induration, and an x-ray revealed metallic foreign bodies; however, no palpable foreign bodies were reported. The impression of an April 1991 VA radiology report was "multiple[,] metallic bodies projected over the region of the sacroiliac notch and the coccyx and presumed to be in the soft tissues." A copy of a May 1991 VA medical record noted that the appellant had persistent perineal drainage, and a sinogram showed a "small pocket." A copy of a September 1991 VA medical record disclosed that the appellant had been treated for a recurrent draining perineal sinus. It was reported that a previous sinogram, which had shown a short-segment fistula without connection to a foreign body, revealed metallic pieces in the region of the sacroiliac notch. According to copies of a September 1991 VA operative report and hospital summary, the appellant underwent surgical excision of a perianal sinus that had an underlying 2 cm. x 2.5 cm. abscess cavity, which was also excised. It was noted that a fistulogram had not shown any communication of foreign bodies with the parent sinus. In a December 1992 medical opinion, a medical advisor at the Board commented that "the evidence against a relationship between the service-connected metallic fragments and the perineal abscess is rather overwhelming" because more than 20 years had elapsed from the time of the appellant's shrapnel wounds until onset of a perineal infection. The physician stated that the failure to identify a metal fragment within or adjacent to either the abscess cavity or sinus tract at the time of surgery showed conclusively that a retained foreign body was not responsible for the appellant's infection. Furthermore, he remarked that no metal fragments had been shown to have been situated in the perineal area. A copy of a March 1992 VA operative report disclosed that the appellant underwent perineal surgery that revealed a 3 cm. to 4 cm., indurated, fluid-filled mass at the base of the right side of the scrotum. An incision yielded a grayish hematoma fluid, and the wound was debrided. In a certified copy of an April 1992 private medical statement, R. S. Milligan, M.D., opined that the appellant's recurrent perineal abscesses are due to retained shrapnel fragments. X-rays were taken at the appellant's August 1993 VA medical examination that revealed "metal shrapnel-like fragments projected over the lower mid and right pelvis and right hip." Physical examination of the perineum, scrotal area, and the inner aspect of the thigh showed only one area of scar tissue that was on the upper right thigh, medial side. There was no active drainage of fistulae reported. The examining physician stated that the appellant does have retained, multiple metallic fragments in the perineal area, and that "there is more than reasonable doubt that they may be contributing" to the appellant's recurrent perineal abscesses. Implicit within [the language of 38 U.S.C.A. § 1155] is the concept that the rating schedule may not be employed as a vehicle for compensating a claimant twice (or more) for the same symptomatology; such a result would overcompensate the claimant for the actual impairment of his earning capacity. In the field of workers' compensation law, such duplication has often been referred to as "pyramiding of benefits," "pyramiding of disabilities," or "pyramiding of compensation". Brady v. Brown, 4 Vet.App. 203, 206 (1993). "The critical element [in determining whether appellant's disabilities may be rated separately] is [whether any] of the symptomatology for any one of these . . . conditions is duplicative of or overlapping with the symptomatology of the other . . . conditions." Esteban v. Brown, 6 Vet.App. 259, 262 (1994). In accordance with 38 C.F.R. § 4.14 (1994), and Brady v. Brown, 4 Vet.App. 203, 206 (1993), the evaluation of the same disability under various diagnoses is to be avoided. The Board notes that the appellant's symptomatology for recurrent perineal abscesses is not duplicative of or overlapping with the symptomatology of his service-connected residuals of gunshot wounds to the right buttock and right upper tibia. Therefore, we find that the appellant's recurrent perineal abscesses are distinct and separate from his service-connected residuals of gunshot wounds to the right buttock and right upper tibia, which are rated as for scars. After a careful and longitudinal review of the evidence presented in this case, the Board finds that the April 1992 private medical statement, which indicated that the appellant's recurrent perineal abscesses are due to retained shrapnel fragments, and the August 1992 VA medical examination, which indicated that the retained metal bodies may be contributing to recurrent perineal abscesses, create at least an approximate balance of the evidence. Extending the benefit of doubt to the appellant, as required by 38 U.S.C.A. § 5107(b) (West 1991) and 38 C.F.R. § 3.102 (1994), we find that service connection is warranted for recurrent perineal abscesses, secondary to the appellant's service-connected residuals of gunshot wounds to the right buttock and right upper tibia. In light of the grant of service connection for recurrent perineal abscesses, secondary to service-connected residuals of gunshot wounds to the right buttock and right upper tibia, the RO should develop the issue of a total (100 percent) rating under 38 C.F.R. § 4.30 (1994) for the appellant's September 1991 surgery to resect a perineal sinus with abscess. II. Scars, Residuals of Gunshot Wounds Disability evaluations are based upon the average impairment of earning capacity as determined by a schedule for rating disabilities. 38 U.S.C.A. § 1155 (West 1991); 38 C.F.R. Part 4 (1994). Separate rating codes identify the various disabilities. In determining the current level of impairment, the disability must be considered in the context of the whole recorded history. 38 C.F.R. § 4.2 (1994). An evaluation of the level of disability present also includes consideration of the functional impairment of the appellant's ability to engage in ordinary activities, including employment. 38 C.F.R. § 4.10 (1994). 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 (1994). A 10 percent evaluation is warranted for superficial, poorly nourished scars with repeated ulceration. 38 C.F.R. § 4.118, Diagnostic Code 7803 (1994). A 10 percent evaluation is warranted for superficial scars that are tender and painful on objective demonstration. 38 C.F.R. § 4.118, Diagnostic Code 7804 (1994). Scars may be evaluated on the basis of any related limitation of function of the body part that they affect. 38 C.F.R. § 4.118, Diagnostic Code 7805 (1994). Although the appellant's service medical records are negative for gunshot or shrapnel wounds, a copy of his Department of Defense (DD) Form 214 disclosed that he had received the Purple Heart. A March 1973 VA medical examination listed a healed gunshot wound of the right leg as a diagnosis. Physical examination of the right leg demonstrated no functional deficit, with normal muscle power, and full range of motion of the hips, knees, and ankles. A physician observed that the appellant had a healed scar at the right, lateral buttock and at the right pre-tibia. No abnormal sensory pattern or functional limitation was noted. An April 1973 rating decision granted the appellant service connection for healed scars, residuals of gunshot wounds to the right buttock and right upper tibia, and assigned a noncompensable evaluation. A copy of a May 1989 VA radiology report demonstrated that "calcific or metallic densities over the region of the bladder, right pelvis[,] and proximal right femur of uncertain etiology." The report indicated that the bodies could possibly represent old shrapnel wounds or calcifications from multiple injections. An October 1989 rating decision subsequently assigned a 10 percent evaluation, under Diagnostic Code 7805, for retained metal fragments in combat wounds. Although the appellant believes that his right buttock and right upper tibia scars, the residuals of gunshot wounds with retained metal bodies, are more severely disabling than currently evaluated, his assertions regarding the nature and severity of his disability are not probative because lay persons (i.e., persons without medical expertise) are not competent to offer medical opinions. Moray v. Brown, 5 Vet.App. 211 (1993); Grottveit v. Brown, 5 Vet.App. 91 (1993); Espiritu v. Derwinski, 2 Vet.App. 492 (1992). In applying the schedular criteria under Diagnostic Codes 7803, 7804, and 7805, the Board finds that there is no competent medical evidence suggesting that the appellant's right buttock and right upper tibia scars, the residuals of gunshot wounds with retained metal bodies, are poorly nourished with repeated ulceration, tender and painful on objective demonstration, or are causing functional limitation. Rather, the right buttock and right upper tibia scars are asymptomatic. Therefore, an increased schedular evaluation may not be assigned. Consideration has also been given to the potential application of the various provisions of 38 C.F.R., Parts 3 and 4, whether or not they were raised by the appellant as required by Schafrath v. Derwinski, 1 Vet.App. 589 (1991). As discussed above, the medical evidence explicitly reveals that a 10 percent evaluation is in order for the appellant's scars, the residuals of gunshot wounds to the right buttock and right upper tibia with retained metal bodies. In particular, the evidence does not suggest that the right buttock and right upper tibia scars present such an exceptional or unusual disability picture as to render impractical the application of the regular schedular standards. Specifically, the right buttock and right upper tibia scars, the residuals of gunshot wounds with retained metal bodies, have not demonstrated a marked interference with employment or required frequent periods of hospitalization so as to render impractical the application of the regular schedular criteria. Therefore, the assignment of an extraschedular evaluation under the provisions of 38 C.F.R. § 3.321(b)(1) (1994) is not warranted. ORDER Service connection is granted for recurrent perineal abscesses, secondary to service-connected residuals of gunshot wounds to the right buttock and right upper tibia. An increased evaluation for residuals of gunshot wounds to the right buttock and right upper tibia with retained metal bodies is denied. BETTINA S. CALLAWAY 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 so assigned. 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 that 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 that appears on the face of this decision constitutes the date of mailing and the copy of this decision that you have received is your notice of the action taken on your appeal by the Board of Veterans' Appeals.