Citation Nr: 9918168 Decision Date: 06/30/99 Archive Date: 12/06/99 DOCKET NO. 89-11 393 DATE JUN 30, 1999 RECONSIDERATION On appeal from the Department of Veterans Affairs Regional Office in Portland, Oregon THE ISSUES 1. Entitlement to service connection for residuals of shell fragment wounds to the buttocks. 2. Entitlement to a rating in excess of 10 percent for deep venous thrombosis of the right lower extremity. (The issues of entitlement to a compensable evaluation for shell fragment wounds of the abdominal area and entitlement to an effective date earlier than November 28, 1990, for the grant of a total rating based on individual unemployability due to service connected disabilities will be the subjects of a separate appellate decision.) REPRESENTATION Appellant represented by: Jonathan M. Raney, Attorney WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD E. J. McCafferty, Counsel INTRODUCTION The veteran served on active duty from May 1969 to December 1972, including service in Vietnam from January 1970 to March 1971. His decorations and medals include the Purple Heart and the Combat Infantryman Badge. This case comes before the Board of Veterans' Appeals (Board) on appeal of a June 1987 decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Phoenix, Arizona. The appellant now resides within the jurisdiction of the RO in Portland, Oregon. In a January 1994 decision, the Board denied the issues set out on the title page as well as the veteran's attempt to reopen his claim for service connection for residuals of a shell fragment wound to the abdominal area based on the submission of new and material evidence. The veteran sought reconsideration of that decision and in June 1994 reconsideration was granted under the provisions of 38 U.S.C.A. 7103(b). Thereafter, the case was taken up by an expanded panel of the Board for reconsideration. The decision of this enlarged panel will replace the Board's decision of January 1994, and will be the final decision of the Board on these issues. 2 - In May 1995, the reconsideration panel determined that new and material evidence had been submitted to reopen the claim of entitlement to service connection for residuals of shell fragment wounds to the abdominal area and remanded the case to the RO for additional development with respect to that issue. In an October 1995 rating action, the RO granted entitlement to service connection for residuals of shell fragment wounds to the abdominal area, which represented a complete grant of the benefit sought with respect to that issue. The only remaining issues properly before the reconsideration panel at this time are the two issues set out on the title page. The case was remanded again in August 1996 for correction of a procedural defect and has now been returned to the Board for further action. A review of the current record shows that the appellant has perfected appeals regarding the issues of entitlement to a compensable rating for shell fragment wounds to the abdominal area, and entitlement to an effective date earlier than November 28, 1990, for the grant of a total rating based upon individual unemployability due to service-connected disabilities. However, these issues are not within the jurisdiction of the reconsideration panel and therefore will be addressed in a separate appellate decision. Further, statements of the case were furnished to the veteran on the additional issues of entitlement to an effective date earlier than August 17, 1987, for the grant of service connection for deep venous thrombosis of the right lower extremity and entitlement to reimbursement of unauthorized medical expenses; however, timely substantive appeals were not filed with respect to these issues and they are not in appellate status at this time. Finally, it is noted that service connection is now in effect for pulmonary embolism with moderate pulmonary hypertension secondary to recurrent emboli, evaluated as 30 percent disabling from November 1990 and 60 percent from June 1998. A claim placed in appellate status by disagreement with the original or initial rating award but not yet ultimately resolved, as is the case herein with regard to the deep venous thrombosis of the right lower extremity, remains an "original claim" and is - 3 - not a new claim for increase. Fenderson v. West, 12 Vet. App. 119 (1999). In such cases, separate compensable evaluations must be assigned for separate periods of time if such distinct periods are shown by the competent evidence of record during the pendency of the appeal, a practice known as "staged" ratings. Id. at 126. Where entitlement to compensation has already been established in a prior final rating action, an appellant's disagreement with a subsequent rating is a new claim for an "increased rating" based on the level of disability presently shown by the evidence. Suttman v. Brown, 5 Vet. App. 127, 136 (1993). Thus, the Board no longer characterizes the issue of the proper rating for the deep venous thrombosis of the right lower extremity as an "increased rating." FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the veteran's appeal has been obtained by the RO. 2. Any shell fragment wounds to the buttocks were very superficial and healed without any residual disability. 3. The veteran's deep venous thrombosis of the right lower extremity is manifested by complaints of pain and intermittent swelling without clubbing or cyanosis. CONCLUSIONS OF LAW 1. Residuals of shell fragment wounds to the buttocks were not incurred in or aggravated by service. 38 U.S.C.A. 1110, 1154, 5107 (West 1991 & Supp. 1998). 2. An evaluation in excess of 10 percent for deep venous thrombosis of the right lower extremity is not warranted. 38 U.S.C.A. 1155, 5107 (West 1991 & Supp. 1998); 38 C.F.R. Part 4, Code 7121, prior to and as of January 12, 1998. - 4 - REASONS AND BASES FOR FINDINGS AND CONCLUSION Service Connection for Residuals of Shell Fragment Wounds to the Buttocks Factual Background. The service medical records reveal that the veteran was seen in November 1969 for back pain after a tank he was riding in hit a mine. A report of medical history in November 1970 shows that the veteran stated that he had been riding in a tank one year earlier when it hit a land mine and that shrapnel hit his right thigh and hands. No mention was made of any injury or wounds to the buttocks. Similarly, the only reference to fragment wounds on the separation examination in November 1972 concerned a wound to the right leg. At those times, the veteran failed to report any wounds or injuries of the buttocks and no such wounds or injuries were otherwise identified. The veteran's original claim for benefits filed immediately after service failed to identify any wound or injury of the buttocks by history or findings. VA examination in March 1973 is negative for pertinent complaints or findings. VA medical records reflect that when the veteran was seen in August 1978 he reported that he had been a helicopter door gunner and had shrapnel fragments all over his abdomen. He had an abscess in his right lower quadrant "secondary to a shrapnel fragment." Examination revealed a lot of very dense scar tissue. Three pieces of black metallic fragments were removed and specimens were referred for biopsy. A pathological report dated later in August 1978 resulted in the following diagnosis: granulating skin with epidermal hyperplasia, right lower quadrant (biopsy). The report of VA examination for disability evaluation purposes in September 1979 is negative for pertinent complaints or findings. - 5 - In 1980, the veteran filled a claim for service connection for residuals of shell fragment wounds of the abdomen, but again did not refer to any such wounds of the buttocks. VA medical records reflect that in August 1980 the veteran was seen for sores on his lower abdomen and right groin. It was reported that he had had similar occurrences in the past which began with a mine explosion which resulted in multiple foreign bodies being embedded in his abdomen and groin. X-ray examination of the abdomen demonstrated no metallic foreign bodies. A diagnosis of multiple foreign body granuloma was given. In September 1980, the veteran underwent excision of chronic draining sinus tracts on the abdomen. It was reported that the veteran had sustained fragmentary shrapnel injuries in Vietnam and since then had suffered from chronic draining sinus tracts of the lower abdomen. The operative diagnosis was as follows: foreign body reaction to the lower abdomen. Pathological examination of excised fragments resulted in the following diagnosis: sinus tract and scar, skin, abdomen, resection. At a hearing on appeal in March 1981, the veteran furnished a detailed account of his various service injuries to include his shrapnel wounds, but again made no mention of any shrapnel wound injuries to the buttocks. When the veteran was examined by VA for disability evaluation purposes in July 1981, he reported that he had sustained a large number of shrapnel wounds of the abdomen and right leg, and many small shrapnel wounds over the rest of his body in November 1969. Examination revealed hundreds of small one-half inch to one- quarter inch diameter scars over the back, chest, abdomen, pelvic area, thighs, legs and feet from shrapnel wounds. No complaints or findings referable to the buttocks were noted. In November 1982 the veteran was admitted to a VA hospital with a 10-day history of feeling bloated, constipated and nauseated. It was noted that he had been hospitalized in 1981 for approximately 30 days and that the following studies had been performed: an upper GI that was normal; barium enema that was normal; oral - 6 - cholecystogram that was normal; localized cystography that was normal; small bowel follow-through film that was normal; an esophogram that was normal; and a CT of his abdomen and pancreas which was normal. The only positive finding had been for a small, esophageal tear seen on endoscopy. Rectal examination revealed no external hemorrhoids. Sigmoidoscopy was performed twice; the first one demonstrated internal hemorrhoids, the second one was done and a 3 mm polyp was removed from a distance of 8 cm. from the rectum. Barium enema was significant for what was thought to be a 3-5 mm. polyp present in the rectosigmoid region. No findings indicative of shrapnel wounds to the buttocks were noted. VA outpatient treatment records reflect that when the veteran was seen in December 1984 he stated that he had an abscess between his legs from shrapnel wounds. It was noted that he had a history of shrapnel wounds to the abdomen and perirectal area with several episodes in the past of abscess formation with drainage. He left the emergency room because he did not want to wait any longer to see a doctor. The following diagnosis was given: perineal abscess secondary to scrapnel (sic) injury. On January 14, 1985, the veteran was seen in the emergency room of a VA facility for complaints of increasing pain and drainage from a right perianal swelling of six weeks duration. An incision and drainage was performed. He had good relief of pain and swelling for a period of approximately 2 weeks and then had another episode of increasing perianal pain and swelling. Incision and drainage was again performed. He was seen in the emergency room in February 1985 with complaints of increasing pain and fever. It was reported that he had had shrapnel wounds to the lower abdomen and pelvis in 1969. Examination revealed two previous incision and drainage wounds of the right buttock, approximately 6 and 8 cm lateral to the anus. The diagnosis was right buttock abscess. A VA outpatient treatment progress note dated in July 1985 reflects that the veteran was seen for cystic masses in the lower chest. The following impression was given: Shrapnel injury in 1969 with abscess formation secondary to foreign body. X-rays revealed no shrapnel fragments. - 7 - VA hospital reports dated in August 1985 reflect excision of lipomas on the anterior chest wall and left thigh. A pathological report diagnosed adipose tissue, angiolipoma. In October 1985 he underwent revision of an abdominal scar. A pathological report diagnosed cicatrix with mature adipose tissue. In January 1986 he underwent a Stage II panniculectomy for redundant abdominal scar tissue. In September 1986 he underwent removal of a subcutaneous nodule in the suprapubic area. A pathological report diagnosed subcutaneous tissue in the suprapubic area consistent with angiolipoma. In a statement dated in September 1986, the veteran claimed that he had sustained shrapnel wounds to his buttocks. The veteran testified at a hearing in February 1987 that while on a patrol in November 1969 the tank he was riding on hit a mine. He stated: "I was blown up against a tree, shrap metal, a large piece entered my right leg, the thigh area, and numerous pieces went into my abdomen and rear." He reported that about 1977 he developed an abscess in his buttocks which he could squeeze and extract a fine white milky fluid but that it was not until 1983 or 1984 the he first sought medical treatment for the wounds to the buttocks. He stated that the shrapnel in his buttocks resulted in infections and that he had two areas in his buttocks that were left open by doctors for drainage. In May 1987 the veteran was admitted to a VA hospital for complaints of headache and vomiting. It was reported that he had a history of intermittent bleeding from around the rectal area on and off for several months. During the hospitalization, flexible sigmoidoscopy revealed several sinus tracts "presumably related to the patient's multiple shrapnel wounds." It was felt that the sinus tracts were the most likely source for the veteran's "GI bleeding." Diagnoses included the following: multiple shrapnel wounds with chronic bloody drainage. By a rating dated in June 1987 the RO denied the veteran's claim for service connection for residuals of shell fragment wounds to the buttocks on the grounds 8 - that there was no evidence in the service medical records of any complaints or treatment for shell fragment wounds to the buttocks and VA examinations conducted shortly after service and over the last 14 years had not revealed any complaints or findings of wounds to the buttocks. Clinical records during VA hospitalization in July 1987 show that the veteran stated that "he tried to move his bowels and blood has come out," and blood with small pieces of metal from the rectum were reportedly observed. A doctor then noted that digital rectal examination was not remarkable, but that the veteran's obesity precluded a thorough examination. There was a raised knot in the left groin perirectal area which drained pus when pressure was applied. Subsequently, a fistulectomy of anal cutaneous fistulas was performed for chronic infection in the perianal region. The operative report is negative for any indication of shrapnel. In a statement dated in October 1987, the veteran reported that he was wounded in November 1969 and again on June 10, 1970, when his unit was attacked with ground fire and grenades and he sustained wounds to his chest, arm and buttocks, with a large gaping hole in his leg from a rifle round. A report of VA psychiatric examination dated in March 1988 reflects that the veteran reported that when he had been in Vietnam he was wounded on 4 separate occasions and on 2 occasions required being air evacuated for intensive medical care. The veteran testified at a hearing in May 1990 that he had had 14 separate minor surgeries to remove metal from his stomach "and stuff," as well as 3 major surgeries to remove scarring. A report of psychiatric evaluation dated in December 1990 reflects that the veteran reported that he was wounded several times while in Vietnam. He stated that he subsequently learned that he had shell fragments and bullet fragments in his body. He reported that he was also wounded in 1985 when he was shot through the abdomen while doing intelligence work for the CIA. 9 - At a hearing on appeal in November 1991, the veteran stated that he had incurred shrapnel wounds to the lower legs, in the stomach area and the buttocks in March 1970; that the shrapnel particles didn't go into the muscle and were small enough that they were easily pulled out with tweezers. He reported that he was again injured in June 1970. He indicated that the shrapnel wounds were not noted on subsequent examination because they were "well healed, very small, like you scratch yourself. That's all they were. They were superficial wounds and we felt - I felt most of them were gone." He stated that the shell fragment wounds were not noted on examinations after service for several years because "They weren't of issue to me. They weren't bothering me." The veteran was accorded a VA examination in September 1992 for disability evaluation purposes. The veteran's complaints included pain in the right buttock. Examination revealed several small scars around the anus, about 2 cm. in size, which had a slight tenderness. Diagnoses included the following: the left buttock has a history of shrapnel injury in the military. The shrapnel wound is well healed. By a rating dated in October 1995, the RO established service connection for pulmonary embolism and deep vein thrombosis of the right lower extremity as secondary to the service-connected shell fragment wound of the right leg. The RO also granted service connection for residuals of shell fragment wounds to the abdomen on the grounds that it is as likely as not that the veteran sustained shell fragment wounds to his abdomen while on active military service and that they did not surface until years later. By a rating dated in December 1995, the RO held that the veteran was entitled to a total rating based upon individual unemployability due to service-connected disabilities from November 1995 (later made effective from November 1990). In March 1997, the veteran underwent surgery for a buttock lift. There was no indication of the presence of shrapnel at that time. - 10 - Criteria. Under the governing criteria, service connection may be granted for residuals of shell fragment wounds of the buttocks which were incurred in or aggravated by service. 38 U.S.C.A. 1110. Establishing service connection generally requires medical evidence of a current disability; medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and medical evidence of a nexus between the claimed in- service disease or injury and the present disease or injury. See Caluza v. Brown, 7 Vet.App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table). In the case of any veteran who engaged in combat with the enemy during a period of war, VA shall accept as sufficient proof of service connection of any disease or injury alleged to have been incurred in or aggravated by such service satisfactory lay or other evidence of service incurrence or aggravation of such injury or disease, if consistent with the circumstances, conditions or hardships of such service, notwithstanding the fact that there is no official record of such incurrence or aggravation in such service, and, to that end, shall resolve every reasonable doubt in favor of the veteran. 38 U.S.C.A. 1154(b); 38 C.F.R. 3.304(d). The Court noted in Caluza at 507 that the provisions of 38 U.S.C.A. 1154 deal with the question of whether a particular injury was incurred in service - that is, what happened then - not the questions of either current disability or nexus to service, as to both of which competent medical evidence is generally required. The Federal Circuit Court of Appeals, in Collette v. Brown, 82 F.3d 389, 392 (Fed. Cir. 1996), noted that 1154(b) "does not create a statutory presumption that a combat veteran's alleged disease or injury is service-connected", but "considerably lighten[s] the burden of a veteran who seeks benefits for an allegedly service- connected disease or injury and who alleges that the disease or injury was incurred in, or aggravated by, combat service." Essentially, while 38 U.S. C.A. 1154 provides a factual basis upon which a determination can be made that a particular disease or injury was incurred or aggravated in service, it does not provide a basis to link etiologically the appellant's service to the current condition. See Libertine v. Brown, 9 Vet. App. 521, 524 (1996); Caluza v. Brown, 7 Vet. App. 498, 507 (1995). Analysis. The service medical records disclose no shell fragment wounds to the buttocks by finding or history. Further, both the veteran's original claim for benefits filed immediately after service and his initial VA examination in 1973 failed to identify any wound or injury of the buttocks by history or findings. At the hearing on appeal in 1981, the veteran furnished a detailed account of his various service wounds and injuries, but made no mention of any injury to the buttocks at that time, although he did refer to shell fragment wounds of the abdomen in his testimony. At a hearing on appeal in 1991, the veteran testified that the reason he had not mentioned the shell fragment wounds to the buttocks earlier was that they were very minor, well healed, and were not giving him any problem. He noted that there would be a little opening and when you squeezed it a little piece of metal would come out and after cleaning it up you'd be on your way. At a hearing in 1987, the veteran reported that about 1977 he developed an abscess in his buttocks from which he could extract a fluid but that it was not until 1984 that he first sought medical treatment for this condition. The medical records reflect that the veteran was first seen in December 1984 for complaints of abscess formation with drainage in the perirectal area. An incision and drainage was thereafter performed on more than one occasion and the diagnosis was right buttock abscess. While the veteran has reported having shrapnel fragments removed from his buttocks after service, there is no clinical evidence to support this claim. No shell fragment wounds of the buttocks or any residuals thereof have been demonstrated post service. The post service records contain no competent medical evidence or opinion relating any current pathology of the buttocks to any shrapnel wounds of the buttocks which the veteran may have sustained in 1969 or 1970. The veteran's assertion, first made many years after service, that he had sustained shrapnel wounds to the buttocks in service, while competent evidence as to what - 12 - happened then, is not competent evidence to link such shrapnel wounds sustained in 1969 or 1970 to the pathology first manifested in December 1984. Thus, while the present record supports a finding that the veteran did, in fact, incur shell fragment wounds to the buttocks during service, it also shows that any such wounds were very superficial and resolved without any residual impairment. With respect to the veteran's claim of postservice residuals, the only competent evidence in support of his claim are the clinical notations in May and July 1987 and the findings on VA examination in September 1992. However, this favorable evidentiary material is based solely on the veteran's history of significant surgical and clinical treatment for buttock shrapnel wounds subsequent to their incurrence in 1969. This history furnished by the veteran is not otherwise documented in the clinical data of record, but was clearly accepted as established by the medical providers in 1987 and 1992. In opposition to the veteran's claim, is the absence of any clinical documentation of any treatment for or finding of residuals of shrapnel wounds of the buttocks following service. The postservice clinical records contain no competent medical evidence or opinion establishing the presence of shrapnel wound residuals of the buttocks or relating the recurring buttock abscesses first shown in 1984 to the shrapnel wounds of the buttocks claimed to have been incurred in November 1969, March 1970, and/or June 1970. The only evidence suggesting that the abscesses of the buttocks were due to retained shell fragments is the veteran's opinion. Finally, the veteran's own statements and testimony as to the superficiality of said shrapnel wounds also is in conflict with the nature of the residuals currently claimed by him. Accordingly, the preponderance of the evidence is against the claim for service connection for residuals of shell fragment wounds to the buttocks. 13 - Rating for Deep Venous Thrombosis Of the Right Lower Extremity Factual Background. When the veteran was hospitalized in a VA facility in March 1991, it was noted that he had a past medical history of right lower extremity trauma which resulted in venous insufficiency and multiple deep venous thromboses (times 13). It was indicated that the last deep venous thrombosis had occurred in November 1990 while he was on medication. An examination of the extremities showed no cyanosis, clubbing or edema. He underwent an inferior vena cava filter replacement. The diagnoses included recurrent pulmonary embolism and deep venous thrombosis secondary to lower extremity trauma. At the personal hearing in November 1991, the veteran argued that his deep venous thrombosis should be service connected. On VA examination in September 1992, the veteran reported that his right leg swelled after he drove a car for about 30 minutes. He also noted that walking or standing was limited to 2 or 3 minutes due to swelling and discomfort. Vascular studies showed that venous duplex was normal, with no evidence of deep venous thrombosis in the right lower extremity. An opinion from a vascular surgeon was to the effect that the veteran's deep venous thrombosis was probably secondary to his service-connected right leg wound. VA orthopedic examination found that lower leg circumferences were 44/43 at the calf and 25/24 at that small part of the ankle. There was no visible swelling other than the mild amount shown in these measurements. By rating decision dated in January 1993, the RO granted service connection for deep venous thrombosis of the right lower extremity and assigned a 10 percent rating under Diagnostic Code 7121 based on the veteran's complaints and the findings of record. However, the veteran disagreed with the 10 percent evaluation assigned for his deep venous thrombosis of the right lower extremity and the current appeal ensued. 14 - Pursuant to the Board's remand in May 1995, the veteran underwent examination by a vascular surgeon. His report, dated in July 1995, noted that the veteran complained of right leg pain and inter- mittent swelling. Varicose veins were noted in the right leg. No bruit was audible. There were no lower extremity ulcerations. The lower extremity arterial examination was reported as normal. Venous recover times were noted to be normal bilaterally; however, the venous duplex examination was abnormal in that there was significant valvular reflux in the right greater saphenous vein. There also appeared to be obstruction to the venous outflow in the right leg. The physician recommended support hose and leg elevation when possible. He also opined that the veteran's pulmonary embolisms were related to his service-connected right leg wound. A rating action in October 1995 continued the veteran's rating for deep venous thrombosis at 10 percent and granted service connection on a secondary basis for pulmonary embolism. On VA hospitalization in June 1998, examination revealed no clubbing, cyanosis and trace edema of the extremities. On clinical follow-up in July 1998, the veteran denied any new lower extremity swelling and on extremity examination the examiner found no cyanosis, clubbing or edema. Criteria. 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; 38 C.F.R. Part 4. Separate diagnostic codes identify the various disabilities. Under the criteria in effect prior to January 12, 1998, a 10 percent rating was warranted for unilateral phlebitis or thrombophlebitis with persistent moderate swelling of a leg which was not markedly increased on standing or walking. A 30 percent evaluation required persistent swelling of a leg or thigh which is increased on standing or walking I or 2 hours, but is readily relieved by recumbency; with moderate discoloration, pigmentation or cyanosis. 38 C.F.R. Part 4, Diagnostic Code 7121 (effective prior to January 12, 1998). - 15 - Effective January 12, 1998, the provisions of Diagnostic Code 7121 were changed. Post-phlebitic syndrome of any etiology: when there is persistent edema and stasis pigmentation or eczema, with or without intermittent ulceration, a 40 percent evaluation is for application. When there is persistent edema, incompletely relieved by elevation of extremity, with or without beginning stasis pigmentation or eczema a 20 percent evaluation is assigned. When the disability is manifested by intermittent edema of extremity or aching and fatigue in leg after prolonged standing or walking, with symptoms relieved by elevation of extremity or compression hosiery a 10 percent evaluation is provided. If the condition is asymptomatic with palpable or visible varicose veins, a noncompensable evaluation will be awarded. The foregoing evaluations are for involvement of a single extremity. Where the law or regulations change while an appeal is pending, the version most favorable to the claimant applies, absent congressional intent to the contrary. See Karnas v. Derwinski, 1 Vet. App. 308, 312-13 (1991). In the present case, the RO has considered both versions of Code 7121 and has determined that an increased rating is not warranted under either the old or the new criteria. VA has a duty to acknowledge and consider all regulations which are potentially applicable through the assertions and issues raised in the record, and to explain the reasons and bases for its conclusion. Schafrath v. Derwinski, 1 Vet.App. 589 (1991). As noted above, this claim was placed in appellate status by disagreement with the original or initial rating award and thus remains an 44 original claim" and is not a new claim for increase. Fenderson, supra. Thus, the Board must considered whether separate compensable evaluations may be assigned for separate periods of time. Analysis. The old and the new criteria for rating the veteran's deep venous thrombosis of the right leg have been set out above. After careful review of the record, the Board concludes that an increased rating in excess of 10 percent is not - 16 - warranted under either criteria. In this regard, the Board notes that the clinical findings reported over the lengthy appeal period fail to reveal symptomatology which would warrant a rating in excess of the 10 percent currently assigned. Under the old criteria, the next higher rating of 30 percent required persistent swelling of leg, increased on standing or walking 1 or 2 hours, readily relieved by recumbency; moderate discoloration, pigmentation and cyanosis. It is clear from the clinical and test findings reported during the entire appeal period that the veteran's disability did not meet these criteria. The minimal right leg swelling was consistent with the 10 percent evaluation initially assigned. More recently, persistent swelling and cyanosis were not found. Thus, the award of a rating in excess of the 10 percent rating assigned under Code 7121 is not warranted under the old criteria. Under the new criteria for Code 7121, the next higher rating above 10 percent was changed from 30 percent to the 20 percent level. However, a review of the entire record again shows that the veteran does not meet the standards for increase under the new criteria. A 20 percent rating requires the presence of persistent edema, incompletely relieved by elevation of extremity, with or without beginning stasis pigmentation or eczema. However, the clinical data during the appeal period show the presence of an intermittent edema only and not the persistent edema required for increase to the 20 percent level under the new criteria. At the start of the appeal period, the veteran was shown to have minimal edema and on the more recent findings in 1998 was found to have no edema, clubbing or cyanosis. Thus, the evidentiary record also does not support a rating in excess of 10 percent under the new criteria. Consideration has 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 veteran, as required by Schafrath v. Derwinski, 1 Vet. App. 589 (1991). However, the Board finds no basis for a rating in excess of 10 percent for the deep venous thrombosis of the right lower extremity for any period of time during the appeal period. - 17 - ORDER Service connection for residuals of shell fragment wounds to the buttocks is denied. A rating in excess of 10 percent for deep venous thrombosis of the right lower extremity is denied. Robert E. Sullivan Member, Board of Veterans' Appeals Jane Sharp Member, Board of Veterans' Appeals Gary L. Gick Member, Board of Veterans' Appeals Renee Pelletier Member, Board of Veterans' Appeals Eileen Krenzer Member, Board of Veterans' Appeals Gordon Shufelt Member, Board of Veterans' Appeals DOCKET NO. 89-11 393 DATE JAN 12 1994 THE ISSUES 1. Whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for residuals of a shell fragment wound to the abdominal area. 2. Entitlement to service connection for residuals of a shell fragment wound to the buttocks. 3. Entitlement to an increased rating for deep venous thrombosis of the right lower extremity, currently evaluated as 10 percent disabling. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD James R. Siegel, Counsel 2 INTRODUCTION The veteran served on active duty from May 1969 to December 1972. By decision dated in July 1982, the Board of Veterans' Appeals (the Board), in pertinent part, denied the veteran entitlement to service connection for residuals of a shell fragment wound to the abdomen. Recently, he has submitted additional evidence seeking to reopen his claim of entitlement to service connection for residuals of a shell fragment wound to the abdominal area. This matter came before the Board on appeal from decisions from the Phoenix, Arizona, and Portland, Oregon, Regional offices (RO). By rating action dated in 1987, the RO continued to deny the veteran service connection for residuals of a shell fragment wound to the abdomen, and denied service connection for residuals of shell fragment wounds to the buttocks. He submitted a notice of disagreement in July 1987, and a statement of the case was issued the next month. His substantive appeal was received in September 1987. Supplemental statements of the case were issued in January and May 1988. The case was originally received and docketed at the Board in April and May 1989, respectively. By decision dated in January 1990, the Board denied service connection for residuals of shell fragment wounds to the abdomen and buttocks. By separate decision of the same date, the Board remanded the issue of entitlement to service connection for deep venous thrombosis of the right lower extremity. The case was again received and docketed at the Board in March 1991. A hearing was held on November 5, 1991, in Washington, D.C., before a section of the Board. In January 1992, the Board vacated the January 1990 decision since the veteran had not been afforded the hearing he had requested prior to the Board's decision. The case was sent to this section for review. In June 1992, the Board remanded the case to the RO for additional development. By rating action of January 1993, the RO granted the veteran service connection for deep venous thrombosis of the right lower extremity. A supplemental statement of the case was issued later that month. The veteran submitted a notice of disagreement with the evaluation assigned for deep venous thrombosis of the right lower extremity in February 1993. A statement of the case concerning this issue was prepared by the RO in June 1993, and, later that month, the veteran's substantive appeal as to this issue was received. The case was then returned to the Board in July 1993. Throughout his appeal, the veteran has been represented by the Disabled American Veterans, and that organization submitted additional written argument to the Board in August 1993. The case is now ready for appellate review. In a statement received in November 1990, the veteran referred to a claim for service connection for heart disease secondary to the residuals of the shell fragment wound to the right leg. In addition, in June 1993, the veteran submitted a letter which may be construed as a notice of disagreement with the effective date assigned for the grant of service connection of deep venous thrombosis of the right lower extremity. He also has claimed that 3 he is unemployable as a result of his service-connected disabilities. Since these matters have not been developed or certified for appeal, and inasmuch as they have no impact on the issues currently before the Board, they are referred to the RO for appropriate action. CONTENTIONS OF APPELLANT ON APPEAL The appellant and his representative assert that the RO committed error in failing to find that the additional evidence he submitted is new and material. He claims that he received treatment for a shell fragment wound to the stomach in service, but that the wounds were not subsequently recorded in the service records since they were superficial. He states that he received the shell fragment wounds to his buttocks at the same time. He relates that he has undergone many procedures to remove metal fragments from his stomach. He refers to records showing pieces of fragments being removed from his stomach. He requests consideration of 38 U.S.C.A. 1154 (West 1991). The veteran and his representative assert that a higher rating should be assigned for deep venous thrombosis of the right lower extremity. He states that his symptoms include severe pain, swelling, discoloration and occasional numbness. He reports that he is unable to walk for more than three blocks. 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 the evidence and material of record in the veteran's claims files. The Board has determined that only those items listed in the "Certified List" attached to this decision and incorporated by reference herein are relevant evidence in the consideration of the veteran's claim. 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 new and material evidence has been submitted to reopen a claim of entitlement to service connection for residuals of a shell fragment wound to the abdomen, but that the cumulative evidence is against the claim for service connection. It is also the decision of the Board that the preponderance of the evidence is against the claims for service connection for residuals of a shell fragment wound to the buttocks and the claim,for an increased rating for deep venous thrombosis of the right lower extremity. FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the veteran's appeal has been obtained by the RO. 4 2. The Board denied the veteran entitlement to service connection for residuals of a shell fragment wound to the abdomen in July 1982. 3. The evidence submitted subsequent to the Board's July 1982 decision includes evidence which has not previously been considered and is relevant, probative and capable of changing the outcome of this case. 4. The cumulative evidence of record fails to establish that the veteran sustained a shell fragment wound to the abdomen in service. 5. The credible evidence does not show that the veteran sustained shell fragment wound to the buttocks in service. 6. The veteran's deep venous thrombosis of the right lower extremity is manifested by complaints of pain, swelling and discoloration. 7. Recent VA examination showed minimal swelling; no deep venous thrombosis was noted. 8. More than persistent moderate swelling of the right leg has not been demonstrated. CONCLUSIONS OF LAW 1. The evidence received since the Board denied entitlement to service connection for residuals of a shell fragment wound to the abdominal area is new and material and the claim is reopened. 38 U.S.C.A. 5107, 5108, 7104 (West 1991); 38 C.F.R. 3.156(a), 20.1105 (1992). 2. Residuals of a shell fragment wound of the abdominal area were not incurred in or aggravated by service. 38 U.S.C.A. 1110, 1154, 5107 (West 1991). 3. Residuals of a shell fragment wound to the buttocks were not incurred in or aggravated by service. 38 U.S.C.A. 1110, 1154, 5107 (West 1991). 4. An evaluation in excess of 10 percent for deep venous thrombosis of the right lower extremity is not warranted. 38 U.S.C.A. 1155, 5107 (West 1991); 38 C.F.R. 3.321(b)(1), 4.1, 4.2, 4.7, 4.10, 4.40, Part 4, Code 7121 (1992). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS We have found that the veteran's claims are well grounded within the meaning of 38 U.S.C.A. 5107(a). That is, we find that he has presented claims which are plausible. The Board is also 5 satisfied that all relevant facts have been properly developed. No further development is required in order to comply with the duty to assist mandated by 38 U.S.C.A. 5107(a). Under the governing criteria, service connection for residuals of a shell fragment wound of the abdominal area or the buttocks may be granted if it is shown that they were incurred in or aggravated by service. 38 U.S.C.A. 1110. In the case of any veteran who engaged in combat with the enemy in active service with a military, naval or air organization of the United States during a period of war, campaign or expedition, the Secretary shall accept as sufficient proof of service connection of any disease or injury alleged to have been incurred in or aggravated by such service satisfactory lay or other evidence of service incurrence or aggravation of such injury or disease, if consistent with the circumstances, conditions or hardships of such service, notwithstanding the fact that there is no official record of such incurrence or aggravation in such service, and, to that end, shall resolve every reasonable doubt in favor of the veteran. Service connection of such injury or disease may be rebutted by clear and convincing evidence to the contrary. The reasons for granting or denying service connection in each case shall be recorded in full. 38 U.S.C.A. 1154(b). I. Whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for residuals of a shell fragment wound to the abdominal area. As noted above, by decision of July 1982, the Board denied the veteran's claim for entitlement to service connection for residuals of a shell fragment wound to the abdominal area. When a claim is disallowed by the Board, it may not thereafter be reopened and allowed and a claim based upon the same factual basis may not be considered. 38 U.S.C.A. 7104(b). The exception to this rule provides that, if new and material evidence is presented or secured with respect to a claim which has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. 38 U.S.C.A. 5108; 38 C.F.R. 20.1105. The United States Court of Veterans Appeals (the Court) has set forth a two-step analysis to be applied when a claimant seeks to reopen a claim. The Board must first determine whether the evidence is new and material and, if so, the case will be considered to be reopened, and the claim must then be evaluated in light of the entire evidence of record, both new and old. Manio v. Derwinski, 1 Vet.App. 140, 145 (1991). New evidence means more than evidence which was not previously physically of record. To be "new," additional evidence must be more than merely cumulative. Colvin v. Derwinski, 1 Vet.App. 171, 174 (1991). However, even if the additional evidence is relevant and probative, it must be demonstrated that this evidence, when viewed in the context of all the evidence, both new and old, would change the outcome. Smith v. Derwinski, 1 Vet.App. 178 (1991). 6 The additional evidence submitted in this case includes voluminous VA and private medical records, a statement from an acquaintance of the veteran and his testimony at hearings on appeal. The veteran testified during hearings in 1987 and 1991 that he was wounded in 1969 and 1970. The evidence also includes a VA outpatient treatment report of March 1988 at which time the veteran reported that he had removed a small metal fragment that evening. It was indicated that a piece of shrapnel was noted on exploration, but the examiner was unable to remove it. The diagnosis was shrapnel foreign body. Based on a review of the record, the Board concludes that the additional evidence submitted by the veteran is new and material. That is, it is evidence which has not previously been considered and which is relevant and probative of the issue under review. Colvin, 1 Vet.App. 174. it is apparent that this evidence raises the possibility that the veteran's claim is valid. This evidence suggests that there was, in fact, shrapnel in the veteran. Accordingly, the Board concludes that with the submission of new and material evidence, the veteran's claim for service connection for residuals of a shell fragment wound of the abdominal area is reopened. The Board will, therefore, review the entire evidence of record on a de novo basis. Since the veteran has submitted new and material evidence warranting reopening of his claim, the Board must next consider whether the due process requirements of Bernard v. Brown, 4 Vet.App. 384 (1993), have been satisfied prior to addressing the issue of entitlement to service connection for residuals of a shell fragment wound to the abdominal area. As noted above, the RO in a June 1987 decision, in effect found that new and material evidence had not been submitted to reopen the claim of entitlement to service connection for residuals of a shell fragment wound to the abdominal area. The Board concludes, however, that the due process requirements of Bernard have been met, and that the veteran will not be prejudiced by the Board's decision on the merits of the claim. His arguments and testimony clearly relate to the inservice onset of the purported injury and show that he understood the nature of the evidence needed to substantiate his claim on the merits. Moreover, the August 1987 statement of the case apprised him of the pertinent law and regulations governing in a decision on the merits. The service medical records show that the veteran was seen in May 1970 and reported a one-month history of abdominal pain. Following an examination, the impression was gastrointestinal complaints with possible gastritis secondary to hyperactivity, secondary to anxiety. The only other reference in the service medical records to findings concerning the abdomen was in October 1971 when the veteran reported sporadic left lower quadrant pain. The impression was probable muscle pain. The significance of these entries stems from the fact that they reflect treatment the veteran received in service for abdominal complaints following the date of his alleged gunshot wound. In this regard, the Board notes that when the veteran testified at a hearing at the RO in 7 February 1987, he related that he was on patrol in November 1969, he hit a mine and he was blown up against a tree. He stated that pieces of metal went into his abdomen. (Transcript p. 1). When he testified at a hearing at the Board in November 1991, he stated that he received the shrapnel wound to the abdomen in March 1970. (Transcript p. 4, 5). Thus, although the veteran was seen for complaints of stomach pain at least approximately two months after the claimed shrapnel wound to his abdominal area, no mention was made of his wound during service. The Board also points out that when the veteran was examined in November 1972, prior to his separation from service, a fragment wound of the right leg with residuals was noted. There was no mention of any wound of the abdomen. Similarly, the veteran's service personnel records reveal that the only wounds he received were in June 1971 when he sustained shrapnel injuries to the right leg and right arm. There was no indication of any shell fragment wound to the abdomen. The veteran filed an original claim for compensation benefits in January 1973, less than two weeks after the date of his separation from service. On the claim form, he provided what appears to have been a comprehensive list of disabilities he attributed to service, including "acne." On this list he specified several problems he attributed to "WIA" (wounded in action). None of these involved fragment wounds of the stomach or buttocks. He did refer to "stomach problems" in May 1972. When the veteran was examined by the VA in March 1973, he described in detail the fragment wound to his right leg. He specifically denied experiencing any stomach problems in service, and gave no history of fragment wounds of the stomach. The veteran's current assertions are not credible in light of the contemporaneous documentary and medical evidence. While he has argued that he did not begin to have problems with the fragment wounds to the abdomen for several years following service, his failure to make reference to the wounds, when it was logical for him to do so, becomes highly relevant in light of the circumstances. The veteran has referred to the fact that he has undergone numerous surgical procedures to remove metal fragments from his abdomen. The veteran was seen in a VA outpatient treatment clinic in August 1978 and reported an abscess in his right lower quadrant secondary to a shrapnel fragment. He indicated that he had been a helicopter door gunner and had shrapnel all over his abdomen. Examination of his abdomen showed that there were many scars. The examiner opened up his abdomen; there was a lot of very dense scar tissue that was gritty to the point that it almost felt like mesh. Three pieces of black metallic fragments were removed. A tissue report showed granulating skin with epidermal hyperplasia of the right lower quadrant. There was no indication in the report that the material was, in fact, shrapnel fragments from a wound in service. He was seen in a private facility later in August 1978 and it was reported that he had a 'shrapnel opened" in a VA 8 facility three days earlier and was in for a dressing change and removal of a drain. As noted above, the veteran has made reference to surgical procedures he underwent reportedly to remove metal fragments. An X-ray of the abdomen in August 1980 revealed no metallic foreign bodies. He was hospitalized by the VA about four weeks later and reported a history of shrapnel to the lower abdomen. While hospitalized, he underwent an excision of a chronic draining sinus tract in his abdomen. Tissue studies showed a sinus tract and scar of the skin of the abdomen. This was attributed to a "foreign body reaction." When hospitalized at a VA facility in October 1985, he related that he had received shrapnel fragment wounds to his abdomen and that, subsequently, very small fragments had worked their way to the surface resulting in cyst formation and multiple infections. During the hospitalization, he underwent a revision of the abdominal scar. The tissue report showed subcutaneous tissue of the abdomen with cicatrix with mature adipose tissue. The veteran was again seen in a VA outpatient treatment clinic in March 1988 and stated that more shrapnel was working its way through the abdominal surface. He stated that he had removed a small metal fragment that night, but felt that it was more slightly below the surface. An exploration was attempted. Further X-ray of the abdomen in June 1989 revealed small metallic-appearing densities which the radiologist believed were from artifacts rather than from within the veteran. There were no large metal fragments identified. The veteran's credibility in this case is suspect. He has both failed to report the alleged abdominal wounds on multiple occasions during and proximate to service and he has failed to provide the type of consistent accounts of the circumstances of the alleged wounds that permits confident reliance upon his recollections offered years after service. While on at least one occasion he attributed the abdominal wound to the fact that he had been hit by a mine, an operation report dated in October 1985 shows he had been hit by shrapnel from a hand grenade. In addition, in a Vet Center report dated in October 1987, the veteran described an incident in service when he was a door gunner on an assault helicopter and sustained several wounds, including one to the buttocks. No mention was made of an abdominal wound, although the veteran has sworn in testimony at a hearing that the wounds were incurred at the same time. He also noted that one of his friends, [redacted] had been killed within six months of being sent to Vietnam. However, Mr. [redacted] reported, in a statement dated in March 1987, that he took the veteran to a VA outpatient treatment clinic in 1976 or 1977 and observed a physician remove lumps from the veteran's abdomen. The record establishes that the veteran received numerous medals, including the Purple Heart and the Combat Infantryman Badge. Accordingly, the provisions of 38 U.S.C.A. 1154(b) apply. While the veteran has vigorously insisted that he did receive shell fragment wounds to the abdomen in service, his lay evidence has 9 not been "satisfactory" for the reasons noted above, and the lay evidence presented on his behalf has been rebutted by clear and convincing evidence to the contrary. Tn addition to the fact that there is no official record of the veteran receiving a shell fragment wound to the abdomen in service, the evidence also demonstrates that metal fragments attributable to an inservice wound have not been found by medical providers. The numerous tissue reports following surgical procedures have never identified a metal fragment. These medical findings are of greater probative value than the veteran's unsupported assertions made in connection with his claim for monetary benefits or the recollections of Mr. [redacted]. What the veteran has claimed are metal fragments have been variously noted to be granulomas or a sinus tract. The overwhelming weight of the credible evidence is against the veteran's claim for service connection for residuals of a shell fragment wound to the abdominal area. II. Service Connection for Residuals of a Shell Fragment Wound to the Buttocks The veteran has also argued he sustained shell fragment wounds to the buttocks at the same time he sustained the wounds to the abdominal area. However, the service medical records disclose no findings indicative of a shell fragment wound to the buttocks. A report of medical history in November 1970 reveals that the veteran stated that he had been riding in a tank one year earlier when it hit a land mine and that shrapnel hit his right thigh and hands. No mention was made of any injury or wounds to the buttocks. Similarly, the only reference to fragments on the separation examination in November 1972 concerned a wound to the right leg. Accordingly, when the veteran was reporting his history in November 1970 and again in November 1972, these would have been appropriate times to report any wounds he received to the buttocks. It is highly significant, therefore, that no mention was made of a shell fragment wound to the buttocks at those times. As we noted above, both the veteran's original claim for benefits filed immediately after service and his original VA examination in 1973 failed to refer by history or findings to these alleged wounds. In February 1985, the veteran was hospitalized in a VA facility and indicated that he had multiple soft tissue abscesses of the right lower abdomen and perianal region, following a shrapnel wound to the lower abdomen and pelvis in 1969. He had reported to the emergency room of a VA facility the previous month with a complaint of increasing pain and drainage from a right perianal swelling of six weeks, duration. At that time, an incision and drainage was performed. Following another episode of increasing perianal pain and swelling, another incision and drainage was done. He was seen in the emergency room on the night prior to admission with complaints of increasing pain and fever. Rectal examination revealed normal sphincter tone. There was no tenderness. The diagnosis was right buttock abscess. It is significant to note that while the veteran was seeking treatment 10 for complaints involving the buttocks, he made no reference to a shell fragment wound of that area. Moreover, neither this hospital report nor any other medical evidenced of record indicates that the veteran had sustained a shell fragment wound to the buttocks in service. No fragments have been demonstrated. The veteran's assertions, first made many years after service, that he had sustained a shrapnel wound to the buttocks in service are not persuasive in light of the negative findings in the medical records of any reference to shell fragment wounds to the buttocks. The evidence is clear and convincing and rebuts the veteran's assertions of an inservice shell fragment wound to the buttocks. 38 U.S.C.A. 1154. The only evidence in support of his claim consists of his statements, which provide an inconsistent history of a shell fragment wound to the buttocks, as discussed earlier. These are not persuasive in light of the medical records which are of far greater probative value than his self-serving statements. Accordingly, the preponderance of the evidence is against the claim for service connection for residuals of a shell fragment wound to the buttocks. III. An Increased Rating for Deep Venous Thrombosis of the Right Lower Extremity Some of the basic facts are not in dispute. Service connection is in effect for deep venous thrombosis of the right lower extremity, for which a 10 percent evaluation has been assigned effective from August 1987. The schedular evaluation has been assigned pursuant to the provisions of Diagnostic Code 7121 of VA's Schedule for Rating Disabilities, 38 C.F.R. Part 4. Matters which are in dispute will be discussed below. Under the applicable criteria, 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; 38 C.F.R. Part 4. Separate diagnostic codes identify the various disabilities. VA has a duty to acknowledge and consider all regulations which are potentially applicable through the assertions and issues raised in the record, and to explain the reasons and bases for its conclusion. Schafrath v. Derwinski, 1 Vet.App. 589 (1991). These regulations include, but are not limited to 38 C.F.R. 4.1, 4.2, 4.7, 4.10, 4.40. These requirements for the evaluation of the complete medical history of the claimant's condition operate to protect claimants against adverse decisions based upon a single, incomplete or inaccurate report, and to enable VA to make a more precise evaluation of the level of the disability and of any changes in the condition. Schafrath, 1 Vet.App. at 593-94. Under the governing criteria, a 30 percent evaluation is warranted for phlebitis or thrombophlebitis, unilateral when there is persistent swelling of leg or thigh, increased on standing or walking 1 or 2 hours, readily relieved by recumbency; moderate discoloration, pigmentation and cyanosis or persistent swelling of arm or forearm, increased in the dependent position; moderate 11 discoloration, pigmentation or cyanosis. A 10 percent evaluation is assignable when there is persistent moderate swelling of leg not markedly increased on standing or walking or persistent swelling of arm or forearm not increased in the dependent position. Code 7121. By rating decision dated in January 1993, the RO granted service connection for deep venous thrombosis of the right lower extremity and assigned a 10 percent rating. This determination was based on private and VA medical opinions that deep venous thrombosis of the right lower extremity was proximately due to his service-connected residuals of a shell fragment wound to the right leg. The veteran has disagreed with the evaluation assigned for deep venous thrombosis of the right lower extremity. The veteran was hospitalized in a VA facility in March 1991. it was noted that he had a past medical history of right lower extremity trauma which resulted in venous insufficiency and multiple deep venous thromboses (times 13). It was indicated that the last deep venous thrombosis had occurred in November 1990 while he was on medication. An examination of the extremities showed no cyanosis, clubbing or edema. He underwent an inferior vena cava filter replacement. The diagnoses included recurrent pulmonary embolism and deep venous thrombosis secondary to lower extremity trauma. On VA examination in September 1992, the veteran reported that his right leg swelled after he was driving a car for about 30 minutes. He also noted that walking or standing was limited to 2 or 3 minutes due to swelling and discomfort. Vascular studies showed that venous duplex was normal, with no evidence of deep venous thrombosis in the right lower extremity. VA orthopedic examination found that lower leg circumferences were 44/43 at the calf and 25/24 at that small part of the ankle. There was no visible swelling other than the mild amount shown in these measurements. Minimal swelling is consistent with the 10 percent evaluation now assigned for deep venous thrombosis of the right lower extremity. Since the requisite findings for a higher rating have not been demonstrated, the Board finds that an increased rating is not warranted. The evidence also does not show that the veteran's service- connected deep venous thrombosis of the right lower extremity presents such an exceptional or unusual disability picture as to render impractical the application of the regular schedular standards so as to warrant the assignment of an extraschedular rating under 38 C.F.R. 3.321(b)(1). This disability has not required frequent hospitalizations, nor has it caused marked interference with employment. The symptoms of his right lower extremity disability most closely approximate the 10 percent evaluation now in effect. 38 C.F.R. 4.7. 12 ORDER New and material evidence has been submitted to reopen a claim of entitlement to service connection for residuals of a shell fragment wound to the abdominal area, but service-connection for residuals of a shell fragment wound to the abdominal area is denied based on the complete evidence of record. Service connection for residuals of a shell fragment wound to the buttocks is denied. An increased rating for deep venous thrombosis of the right lower extremity is denied. BOARD OF VETERANS' APPEALS WASHINGTON, D.C. 20420 MEMBER TEMPORARILY ABSENT THOMAS J. DANNAHER RICHARD B. FRANK *38 U.S.C.A. 7102(a)(2)(A) (West 1991) permits a Board of Veterans' Appeals Section, upon direction of the Chairman of the Board, to proceed with the transaction of business without awaiting assignment of an additional member to the Section when the Section is composed of fewer than three Members due to absence of a Member, vacancy on the Board or inability of the Member assigned to the Section to serve on the panel. The Chairman has directed that the Section proceed with the transaction of business, including the issuance of decisions, without awaiting the assignment of a third Member. 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. 13 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.