BVA9501911 DOCKET NO. 92-01 545 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in San Diego, California THE ISSUES 1. Entitlement to an increased rating for compartment syndrome of the left leg involving the peroneal nerve and Raynaud-like phenomena, currently evaluated as 20 percent disabling. 2. Entitlement to an increased (compensable) rating for a left thigh skin graft donor site. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD P. Greif, Associate Counsel INTRODUCTION The veteran had active military service from September 1979 to March 1980. This matter came before the Board of Veterans' Appeals (Board) on appeal from a June 1990 rating decision from the Portland, Oregon, Regional Office of the Department of Veterans Affairs (VA). In that rating decision the RO denied, among other things, increased ratings for compartment syndrome of the left leg involving the peroneal nerve and Raynaud-like phenomena (left leg disorder) and left thigh skin graft donor site (left thigh scar). In February 1991 a RO hearing was conducted at the San Diego, California, Regional Office (RO). The case was remanded for further development in August 1992. CONTENTIONS OF APPELLANT ON APPEAL The veteran and his representative contend, in essence, that the RO committed error in not granting increased ratings for the left leg disorder and left thigh scar. Specifically, the veteran asserts that he experiences lower leg pain and "drop foot". In regards to the left thigh scar the veteran contends that the scar oozes, occasionally bleeds, and is tender. 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(s). 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 left leg disorder, but the evidence supports a 10 percent rating, and not in excess thereof, for his left thigh scar. 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 left leg disorder is principally manifested by subjective complaints of pain and weakness, localized venous insufficiency, and an occasional increase in symptomatology; however frequent vasomotor disturbances characterized by blanching, rubor, and cyanosis are not shown and complete paralysis of the deep peroneal nerve is not shown. 3. The veteran's service-connected left thigh scar is principally manifested by continuing pain; however the scar is well healed, non tender and not productive of loss of function of the body part affected. 4. The veteran's disabilities do 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 20 percent for left leg disorder have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. Part 4, §§ 4.104, 4.124a, including Codes 7117, 8523 (1993). 2. The schedular criteria for a 10 percent rating, and not in excess thereof, for a skin graft scar on the veteran's left thigh have been met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. § 4.118, Part 4, including Diagnostic Codes 7803, 7804, 7805 (1993). 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) (1993). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The veteran's claims are "well grounded" within the meaning of 38 U.S.C.A. § 5107(a) (West 1991). That is, he has presented claims which are 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). I. Increased Rating for Left Leg Disorder Service medical records indicate that the veteran injured his left leg during basic training. He underwent preoperative procedure in service, including fasciotomy of lateral and posterior compartments as well as exploration of his left femoral artery and skin grafting. His condition was diagnosed as compartment syndrome analogous to moderate paralysis. During a physical evaluation board proceeding the veteran was found to be physically unfit for active military service. He was honorably discharged in March 1980. The veteran was hospitalized for left leg pain from May 1980 to July 1980. He was continuously urged to use his leg normally. The examiner noted that except for the pain there seemed to be no reason why the veteran shouldn't have been able to use his leg normally. Based upon the service medical record findings and the VA hospital report, the RO, in an October 1980 rating decision, granted service connection for compartment syndrome of the left leg, involving peroneal nerve and Raynaud-like phenomenon and assigned a 20 percent rating under Diagnostic Codes 7117 and 8523 of the Schedule for Rating Disabilities, 38 C.F.R. Part 4, §§ 4.104, 4.124a (1993). That rating is still in effect today. 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 regulations do not provide a specific Diagnostic Code for compartment syndrome of the left leg. However, when an unlisted condition is encountered it is permissible to rate under a closely related disease or injury in which not only the function is affected but the anatomical localization and symptomatology are closely analogous. 38 C.F.R. § 4.20 (1993). Compartment syndrome of the left leg is rated under Diagnostic Codes 7117 and 8523 and were considered by the RO to be the most analogous Codes to the veteran's conditions. Under Diagnostic Code 7117 a 20 percent rating contemplates Raynaud's disease with occasional attacks of blanching or flushing. The next higher rating. 40 percent, requires frequent vasomotor disturbances characterized by blanching, rubor and cyanosis. Under Diagnostic Code 8523 a 20 percent rating contemplates severe paralysis of the anterior tibial nerve. The next higher rating, 30 percent, requires complete paralysis of the anterior tibial nerve with lost dorsal flexion of the foot. In May 1990 the veteran sought an increased rating for several disorders including left leg disorder and left thigh disorder. In the June 1990 rating decision, the RO confirmed and continued the disability ratings for each disorder. On VA outpatient reports dated between July 1990 and February 1991 it was noted that the veteran complained of left leg pain. It was also reported that the veteran was taking several medications for relief of pain. In April 1991 the veteran was accorded a VA examination. On the examination he complained of left leg pain, paralysis, and drop foot. The examiner reported that the veteran had a great deal of pain in the lower left leg caused by his service-connected compartment syndrome. The case was remanded by the Board in August 1992 for further development and VA examinations to determine the nature and extent of the veteran's service-connected left leg disorder and left thigh scar. On a January 1993 VA general medical examination the examiner reported that the veteran's reflexes were "beautiful" with 3 plus active equal reflexes in all areas. The examiner noted that the veteran was oriented times three and had no neurological deficits. The final diagnosis included postoperative anterior tibial compartment syndrome of the left leg. The veteran was accorded a VA orthopedic examination in January 1993. The veteran's numerous health complaints included increased left lower leg pain. The examiner reported some limping with the left leg and that there was no foot drop or foot slap. He noted that the veteran was not wearing his left leg brace. The examiner reported that the veteran's toe and heel walking strength was okay and that he could walk on the medial and lateral borders of both feet. He indicated that the veteran got a "foot slap" after walking about five or ten minutes. He noted that the veteran could flex forward and reach his feet and that his legs were equal in length. The examiner reported that the veteran's left leg had scarring and muscle bulging. He noted that sensation was okay laterally distal to an anterolateral scar and medially was numb distal to the scar. Motion of the feet and ankles were normal and equal. The left ankle had medial tenderness, but no redness or swelling. The final diagnosis included left lower leg status post multiple surgeries for release of compartment syndromes, bothersome scarring causing pain and numbness, weakness caused by loss of muscular tissue and/or damage to nerve structures, and increased symptomatology due to chronic tension and/or depression. The examiner commented that the veteran had no foot drop on examination but that he believed that the veteran may get foot drop after walking 5 or 10 minutes. He noted that overall the left foot was basically pretty good, but there was some chronic pain and some foot slap after prolonged walking. Later in January 1993 the veteran was accorded a VA neurology examination. The veteran complained of left lower extremity pain, muscle spasms, and "drop foot." The examiner reported that there were several areas of skin grafting and sensory loss over those areas. The examiner reported that the veteran could stand on one foot unsupported and walk on heels and toes without difficulty. He noted that tandem was well performed, gait normal, and hopping on either foot symmetrical. The examiner reported that the veteran's motor strength was normal in the lower extremities without segmental weakness. He noted that there were areas of sensory loss over the fasciotomy sites and general decreased diffuse sensation to pinprick from mid calf on the left only. He indicated that vibratory sense and joint position seemed intact. The examiner reported that the left lower extremity was somewhat warmer to touch than the right. He noted that deep tendon reflexes were physiological and symmetrical without pathological reflexes and that Babinski responses were absent. The examiner's final impression included compartment syndrome left lower extremity treated by surgical intervention and grafting over the resulting fascial defects. The examiner commented that there was no evidence of arterial insufficiency in the lower extremity, but that there was some localized venous insufficiency at the sites of the fasciotomies. He commented that the veteran had no motor weakness or loss of joint restriction in the lower extremity, i.e. there was no foot drop. The veteran submitted VA hospital reports dated between May and July 1993 which showed that he underwent excision of a left calf neuroma. He was admitted to the hospital twice following that procedure for incision and drainage of the wound and debridement and primary closure of the wound. VA outpatient reports dated in July 1993 showed that the veteran continued to complain of left leg pain. On a July 8, 1993 report the examiner noted no drainage, no redness, and no odor associated with the left leg disorder. On a July 13, 1993 report the examiner noted that the left leg skin was warm and pink. On a July 30 , 1993 report the veteran complained of tenderness and difficulty with flexion of the right knee, and examiner reported that the wound appeared to be healing well with no obvious input. On a January 1994 rating decision the RO granted a temporary total rating for the left leg disorder, but then resumed the 20 percent disability rating. The Board acknowledges that the veteran experiences some left leg pain, localized venous insufficiency at the sites of the fasciotomies, and left ankle weakness. However, the veteran's left leg disorder does not result in frequent vasomotor disturbances characterized by blanching, rubor and cyanosis such as to warrant a 40 percent rating. In addition his left leg disorder does not result in complete paralysis of the anterior tibial nerve with dorsal flexion of the foot lost such as to warrant a 30 percent rating. 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). In weighing the evidence of record in this case, the Board carefully considered the service medical records and VA examination reports, as well as of the evidence of record, in light of the veteran's contentions. The findings, which included, some sensory loss over the fasciotomy sites, some decreased sensation to pinprick, and warmth to touch, approximate occasional attacks of blanching or flushing which is required for an assignment of 20 percent rating under Diagnostic Code 7117 and severe incomplete paralysis of the anterior tibial nerve which is required for an assignment of 20 percent rating under Diagnostic Code 8523. Although the veteran complains that his left leg disorder causes foot drop, the evidence of record establishes that the veteran does not have foot drop, but may have some foot slap after prolonged walking. This kind of phenomenon is contemplated in the current rating assigned. In addition, he does not have complete paralysis of the deep peroneal nerve such as to warrant an increased rating. The Board notes that although the veteran underwent surgery in June 1993 for his left leg disorder, the evidence demonstrated that his left leg disorder had improved and was continuing to improve. It is significant to note that one of the examiner's who saw the veteran in January 1993 reported that the veteran's chronic left lower extremity symptoms were probably significantly increased by chronic tension and/or depression. In any event, regardless of the cause, the frequency and severity of the symptoms are not sufficient to provide a basis for an increased rating. Therefore, since the veteran's left leg disorder is not shown to result in complete paralysis and does not cause frequent vasomotor disturbances characterized by blanching, rubor and cyanosis, the Board must deny his appeal. A review of the evidence of record indicates that the veteran's left leg disorder and the symptomatology associated with it are more closely analogous to the schedular criteria evaluating paralysis of the anterior tibial nerve (deep peroneal). Accordingly, the Board concludes that the service medical records and VA examination reports, in light of the veteran's contentions when taken as a whole do not reveal the symptomatology which would warrant an increased 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) (1993). II. Increased (Compensable) Rating for Left Thigh Scar Service medical records indicate that the veteran underwent a skin grafting procedure in service. On a VA hospital report dated between May and July 1980 the examiner reported that the veteran had a small skin graft area of the left anterior aspect of the left thigh. Based upon the service medical record findings and the VA hospital report, the RO, in an October 1980 rating decision granted service connection for a scar on the left thigh, skin graft donor site and assigned a noncompensable rating under Diagnostic Code 7805 of the Schedule for Rating Disabilities, 38 C.F.R. Part 4, § 4.118 (1993). That rating is still in effect today. 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. Scars are rated under Diagnostic Codes 7803, 7804, and 7805. A compensable rating under Diagnostic Code 7805 contemplates scars which result in limitation of function of the part affected. It is noted that in every instance where the schedule does not provide a zero percent evaluation for a diagnostic code, a zero percent evaluation shall be assigned when the requirements for a compensable evaluation are not met. 38 C.F.R. § 4.31 (1993). On the January 1993 VA orthopedic examination, the veteran complained of left thigh pain. The examiner reported that the veteran had a 10 by 20 centimeter area of skin donation scar anteromedially on the left thigh, overlying the distal one-half of the thigh. He noted that the scar was well healed with no symptoms. The final diagnosis included status post left thigh skin donation and well healed scars with continued pain diagnosed as bothersome scarring. VA hospital reports dated from May to June 1993 are negative for complaints of pain involving the donor skin graft site on the left thigh. The veteran is assigned noncompensable evaluation for a scar of the left thigh. The law provides that a 10 percent evaluation is warranted for superficial scars which are poorly nourished with repeated ulceration. 38 U.S.C.A. § 1155 (West 1991); 38 C.F.R. Part 4, Diagnostic Code 7803 (1993). Superficial scars which are tender and painful on objective demonstration are assigned a 10 percent rating. 38 U.S.C.A. § 1155 (West 1991); 38 C.F.R. Part 4, Diagnostic Code 7804 (1993). Other scars are rated on limitation of function of the part affected. 38 U.S.C.A. § 1155 (West 1991); 38 C.F.R. Part 4, Diagnostic Code 7805 (1993). It is the defined and consistently applied policy of the VA to administer the law under a broad interpretation, consistent, however, with the facts shown in every case. When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability such doubt will be resolved in favor of the claimant. 38 C.F.R. § 3.102 (1993). In addition, where there is 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. Part 4, § 4.7 (1993). 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). In applying the law to the existing facts, the Board finds that the veteran's scar of the left thigh is not poorly nourished with repeated ulceration or productive of limited motion of the body part affected. Indeed, recent VA examinations while revealing a scar on the left thigh, revealed that the scar was productive of no loss of function of the left thigh. In fact, a VA examiner reported that the veteran's scar on the left thigh was well healed with no tenderness. However, the VA examiner who conducted the January 1993 orthopedic examination diagnosed status post left thigh skin donation to the left lower leg, donation scars well healed, and continued pain due to bothersome scarring. As previously noted, superficial scars which are tender and painful on objective demonstration are assigned a 10 percent rating under Diagnostic Code 7804. These medical findings, along with the veteran's credible history of left thigh pain, support the veteran's claim for an increased rating to 10 percent, but not higher. A higher evaluation under Codes 5260 and 5261 are not warranted as there is not limitation of leg motion such as to warrant a 20 percent evaluation. Further, there is no objective showing of tibia or fibula impairment which could support an award of a 20 percent rating under Code 5262. The Board, after considering the service medical records and the reported findings of the VA examiners, in light of the veteran's contentions, finds that the evidence presents a disability picture that more nearly approximates the higher rating of 10 percent under Diagnostic Code 7804. In any event by virtue of the benefit of the doubt doctrine, the law dictates that the veteran should win. Therefore, the Board finds that the veteran should be granted an increased (compensable) rating. Accordingly, an increased rating for a left thigh skin graft donor site not higher than 10 percent is warranted. 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) (1993). ORDER 1. Entitlement to an increased rating for compartment syndrome of the left leg involving the peroneal nerve and Raynaud-like phenomena is denied. 2. Entitlement to an increased evaluation of 10 percent, but not higher, for a left thigh skin graft donor site is granted, subject to the applicable laws and regulations governing the payment of monetary benefits. 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.