BVA9508021 DOCKET NO. 93-11 741 ) 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 rating for residuals of a shell fragment wound of the chest, currently evaluated as 10 percent disabling. REPRESENTATION Appellant represented by: North Carolina Division of Veterans Affairs ATTORNEY FOR THE BOARD K. Ehrman, Associate Counsel INTRODUCTION The veteran had honorable active service from September 1967 to July 1970. The appeal comes before the Board of Veterans' Appeals (Board) from a February 1992 rating decision of the Winston-Salem, North Carolina Regional Office (RO) of the Department of Veterans Affairs (VA). That determination established service connection for residuals, shell fragment wound of the chest and a 10 percent evaluation was assigned from December 1991. CONTENTIONS OF APPELLANT ON APPEAL The veteran contends that his service-connected residuals of a shell fragment wound to the chest warrant at least a 30 percent evaluation due to soreness, tenderness and discomfort. He additionally contends that this disability included a retained foreign body in the left lower one-third of the sternum, which recently extruded. 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 a preponderance of the evidence is against the claim for increase. FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the veteran's appeal has been obtained. 2. The veteran's service-connected residuals of a shell fragment wound of the chest are shown to be manifested by a faint, erythematous, round "spot" or scar overlying the middle of the sternum about the level of the fourth intercostal space, which is slightly tender to vigorous palpation, and complaints of soreness and discomfort. CONCLUSION OF LAW The criteria for an evaluation in excess of 10 percent for residuals of a shell fragment wound of the chest are not met. 38 U.S.C.A. §§ 1155, 5107, 7104 (West 1991); 38 C.F.R. §§ 3.102, 3.321, and Part 4, § 4.118, Diagnostic Code 7804 (1994). REASONS AND BASES FOR FINDINGS AND CONCLUSION Historically, the veteran's service medical records show no complaints of, or treatment for shell fragment wounds in service. While a report of physical examination at separation from service was not included with the veteran's service medical records, an October 1985 statement of the veteran, made in support of later claims, indicates that no such separation examination was performed. However, the veteran's discharge document, DD Form 214 MC, indicates that the veteran received a Combat Action Ribbon, and correspondence from the United States Marine Corps, dated in September 1968, indicates that the veteran was awarded the Purple Heart for wounds received in combat in August 1968. The January 1992 VA examination report notes a medical history to include a shell fragment wound in service, with some debridement and removal of the shell fragments from the anterior sternum and chest. The veteran reported that a piece of metal retained in the left lower third of the sternum recently extruded from his chest, leaving a tender small red "spot." He also reported some discomfort upon raising his shoulders above his head and on stretching of his ribs. Upon physical examination, the examiner noted the veteran to be "obviously comfortable." He was able to take full deep breaths without discomfort in his lungs, and he had completely clear, full and equal four inch excursions bilaterally. A faint erythematous, round 'spot' or scar was noted overlying the middle of the sternum about the level of the fourth intercostal space at the site of the extrusion of the retained metal body. The veteran reported that the area of the scar was slightly tender to the examiner's "vigorous" palpation. The examiner noted that there was no pain on compressing of the rib cage. A chest X-ray was normal. The diagnosis was history of shell fragment wound of the chest with residual. The examiner also remarked that although the veteran was sensitive in the area overlying the lower third of the sternum at the site of the shell fragment wound, "it is difficult to see now that the [retained foreign bodies] are removed, why the veteran would have any residual soreness or discomfort enough to be of any consequence for any reasonable activity." An August 1992 private examination report indicates the veteran's complaints of intermittent, occasional swelling and draining of the area of the shell fragment wound at the anterior chest wall above the sternum. The physical findings include notation of a minimally inflamed lesion in the anterior chest wall, nonspecific. Additionally, the examiner noted that there was no definite foreign body palpable. The diagnoses included intermittent inflamed area on the anterior chest, and "questionable" foreign body reaction. The veteran's prognosis included excision, if the lesion on the anterior chest wall continued to cause discomfort. No additional treatment was indicated. The Board has found that the veteran's claim is well grounded within the meaning of 38 U.S.C.A. § 5107 (West 1991); that is, he has presented a claim that is "plausible." Murphy v. Derwinski, 1 Vet. App. 78 (1990). The severity of service-connected residuals, shell fragment wound of the chest may be ascertained for VA rating purposes by application of 38 C.F.R. § 4.118, Part 4, Diagnostic Code 7804 (1994), of the Schedule for Rating Disabilities (Schedule). Under the provisions of Diagnostic Code 7804, a 10 percent evaluation is assigned when superficial scars are shown to be tender and painful on objective demonstration. A higher schedular evaluation would require limitation of function of the affected part. Diagnostic Code 7805. In this case, the Board notes that service connection has been established only for currently existing residuals of a shell fragment wound to the chest. Service medical records provide no additional insight as to the extent of his original injuries since those records are silent as to any such injury. The Board is satisfied, however, that all of the available service medical records have been obtained. In such cases, evidence of postservice treatment could also be helpful. However, the veteran alleges no such treatment, and the Board notes that the veteran's June 1982 VA application for compensation, made in support of a claim for service-connection for a hearing loss disability, is silent as to any symptoms of, or treatment for, residuals of a shell fragment wound in service or at any time thereafter. Since the objective clinical evidence of record does not support the finding that his service-connected residuals include any injury to muscles or other structures of the musculoskeletal system, or any limitation of function of an affected part, the evaluation of the veteran's service-connected disability under Diagnostic Code 7804 is appropriate. In this case, both VA and private treatment records show residuals of a shell fragment wound manifested by a "faint" scar overlying the middle of the sternum about the level of the fourth intercostal space, which was objectively demonstrated to be "slightly" tender to "vigorous" palpation. The Board has also considered the veteran's associated complaints of pain, soreness and discomfort. It is noted by the Board that the VA's Schedule contemplates pain as a factor for evaluating the degree of impairment due to service-connected disability. 38 C.F.R. §§ 4.40, 4.45 and 4.59 (1994). Greater impairment than that contemplated by a 10 percent evaluation under Diagnostic Code 7804 is not shown. Since the objective, clinical evidence of record shows essentially a superficial, slightly tender and painful scar of the chest, and without a showing of greater disability or impairment, no more than a 10 percent evaluation is warranted under Diagnostic Code 7804 and the VA's Schedule. The evidence on this issue is not in equipoise; rather, the preponderance of the evidence weighs against the assignment of an increased evaluation. Further, no basis is provided for consideration of an extraschedular evaluation under 38 C.F.R. § 3.321(b)(1) (1994). ORDER The claim for an evaluation in excess of 10 percent for residuals of a shell fragment wound of the chest is denied. BARBARA B. COPELAND 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.