Citation Nr: 0812652 Decision Date: 04/16/08 Archive Date: 05/01/08 DOCKET NO. 03-32 808 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office in Reno, Nevada THE ISSUES 1. Entitlement to an increased rating for muscle injury, status post shell fragment wound to the right leg with retained fragments, currently evaluated as 10 percent disabling. 2. Entitlement to an increased rating for status post shell fragment wound to the left ankle, currently evaluated as 10 percent disabling. WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Suzie S. Gaston, Counsel INTRODUCTION The veteran served on active duty from January 1967 to January 1969. This matter comes before the Board of Veterans' Appeals (hereinafter Board) on appeal from a December 2002 rating decision, by the Reno, Nevada, Regional Office (RO), which denied the claims for increased ratings for muscle injury, status post shell fragment wounds to the right leg and status post shell fragment wound to the left ankle. The veteran perfected a timely appeal to that decision. On April 13, 2004, the veteran appeared at the Las Vegas, Nevada RO and testified at a videoconference hearing before the undersigned Veterans Law Judge, sitting in Washington, DC. A transcript of the videoconference hearing is of record. In August 2005, the Board remanded the case to the RO for evidentiary development. The case was again remanded in November 2006. In October 2007, the Board received additional evidence from the veteran for which he did not waive his right to have initially considered by the RO. See 38 C.F.R. §§ 20.800, 20.1304(c). A November 2007 Board letter informed him and his representative of this and their options. In his November 28, 2007 response, the veteran waived his right to have the RO initially consider this evidence. FINDINGS OF FACT 1. Clinical manifestations of the veteran's service- connected muscle injury, status post shell fragment wound to the right leg with retained fragments, are no more than moderate in severity. 2. Status post shell fragment wound to the left ankle is manifested by no more than moderate injury and impairment. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 10 percent for muscle injury, status post shell fragment wound to the right leg with retained fragments, have not been met. 38 U.S.C.A. §§ 1155, 5102, 5103, 5103A, 5106, 5107 (West 2002 &. Supp. 2007); 38 C.F.R. §§ 3.159, 3.321, 4.1, 4.2, 4.40, 4.41, 4.45, 4.56, 4.73, Diagnostic Code 5311 (2007). 2. The criteria for a rating in excess of 10 percent for status post shell fragment wound to the left ankle have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.102, 3.159, 4.40, 4.45, 4.56, 4.73, Diagnostic Code 5311 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duty to Notify and Assist. The Veterans Claims Assistance Act of 2000 (VCAA) enhanced VA's duty to notify and assist claimants in substantiating their claims for VA benefits, as codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.159, 3.326(a) (2007). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant of the information and evidence not of record that is necessary to substantiate the claim; to indicate which information and evidence VA will obtain and which information and evidence the claimant is expected to provide; and to request that the claimant provide any evidence in the claimant's possession that pertains to the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). The U.S. Court of Appeals for Veterans Claims has held that VCAA notice should be provided to a claimant before the initial RO decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004). However, if VCAA notice is provided after the initial decision, such a timing error can be cured by subsequent readjudication of the claim, as in an SOC or Supplemental SOC (SSOC). Mayfield v. Nicholson, 20 Vet. App. 537, 543 (2006); Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). The U.S. Court of Appeals for the Federal Circuit recently held that any error in a VCAA notice should be presumed prejudicial. VA bears the burden of rebutting the presumption, by showing that the essential fairness of the adjudication has not been affected because, for example, actual knowledge by the claimant cured the notice defect, a reasonable person would have understood what was needed, or the benefits sought cannot be granted as a matter of law. Sanders v. Nicholson, 487 F.3d 881 (Fed. Cir. 2007). Here, the claimant has not demonstrated any error in VCAA notice, and therefore the presumption of prejudicial error as to such notice does not arise in this case. Id. In this case, VA satisfied its duty to notify by means of a letter dated in September 2002 from the RO to the veteran which was issued prior to the RO decision in December 2002. Additional letters were issued in January 2004 and December 2006. Those letters informed the veteran of what evidence was required to substantiate the claim and of his and VA's respective duties for obtaining evidence. The veteran was also asked to submit evidence and/or information in his possession to the RO. The Board finds that the content of the above-noted letter provided to the veteran complied with the requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) regarding VA's duty to notify and assist. He was provided an opportunity at that time to submit additional evidence. In addition, the September 2003 SOC, the March 2004 SSOC, the February 2006 SSOC, and the July 2007 SSOC each provided the veteran with an additional 60 days to submit additional evidence. Thus, the Board finds that the purpose behind the notice requirement has been satisfied because the veteran has been afforded a meaningful opportunity to participate effectively in the processing of his claims. Effective VCAA notification post-dated adjudication of this claim. See Mayfield v. Nicholson, 19 Vet. App. 103 (2005). However, the Board finds no prejudice to the veteran in proceeding with the issuance of a final decision. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993) (where the Board addresses a question that has not been addressed by the agency of original jurisdiction, the Board must consider whether the veteran has been prejudiced thereby). The SSOCs provided subsequent process and readjudication subsequent to the various notification letters. In addition, to whatever extent the decision of the Court in Dingess v. Nicholson, 19 Vet. App. 473, 484 (2006), requires more extensive notice in claims for compensation, e.g., as to potential downstream issues such as disability rating and effective date, the Board finds no prejudice to the veteran in proceeding with the present decision, since the veteran was informed of the provisions of Dingess in December 2006. Accordingly, we find that VA has satisfied its duty to assist the veteran in apprising him as to the evidence needed, and in obtaining evidence pertinent to his claim under the VCAA. Therefore, no useful purpose would be served in remanding this matter for yet more development. Such a remand would result in unnecessarily imposing additional burdens on VA, with no additional benefit flowing to the veteran. The Court of Appeals for Veterans Claims has held that such remands are to be avoided. Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). Given the ample communications regarding the evidence necessary to establish entitlement to increased ratings for muscle injury, status post shell fragment wounds to the right leg with retained fragments, and status post shell fragment wound to the left ankle, and considering that the veteran is represented by a highly qualified veterans service organization, we find that any notice deficiencies are moot. See Conway v. Principi, 353 F.3d 1369, 1374 (2004), hold that the Court of Appeals for Veterans Claims must "take due account of the rule of prejudicial error." In light of the August 2005 and November 2006 Board remands, the Dingess letter issued in December 2006, and the July 2007 SSOC, the Board finds that the veteran was informed of the criteria for establishing increased ratings for muscle injury, status post shell fragment wound to the right leg and status post shell fragment wound to the left ankle. Specifically, the veteran was told that ratings were assigned with regard to severity from 0 percent to 100 percent, depending on the specific disability. Therefore, the veteran has been provided with all necessary notice regarding his claims for increased evaluations. Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008). It also appears that all obtainable evidence identified by the veteran relative to his claims has been obtained and associated with the claims file, and that neither he nor his representative has identified any other pertinent evidence, not already of record, which would need to be obtained for a fair disposition of this appeal. He has been afforded VA examinations and attempts have been made to obtain Social Security Administration (SSA) records; some SSA records are contained on CDs in the file. It is therefore the Board's conclusion that the veteran has been provided with every opportunity to submit evidence and argument in support of his claim, and to respond to VA notice. II. Factual background. Service medical records show the veteran sustained multiple fragment wounds of the right thigh and calf as well as a through-and-through fragment wound to the left ankle. The wounds were debrided and dressed. Approximately one week later it was noted that he would be kept until he could walk without difficulty, and approximately 6 weeks later he was discharged from treatment. By a rating action in May 1979, the RO granted service connection for status post multiple shrapnel fragment wounds to both legs and the right arm with two retained fragments, evaluated as 10 percent disabling. In a March 2000 rating action the shell fragment wounds were separately rated, resulting, in relevant part, in a 10 percent rating for muscle injury, status post shell fragment wound to the right leg with retained fragments and a 10 percent rating for status post shell fragment wound to the left ankle. The veteran's claim for an increased rating (VA Form 21-4138) was received in March 2002. Submitted in support of his claim were the results of an EMG/NCV, performed in November 1999, which revealed no electrodiagnostic evidence of radiculopathy and possible mild axonal motor neuropathy. The veteran was afforded a VA compensation examination in October 2002. He complained of pain below the knees with numbing, aching, weakness, swelling, instability, fatigability, lack of endurance and daily mild to moderate symptom flare-ups. On examination, knee flexion was from 0 degrees to 130 degrees, extension was to 0 degrees. He had no pain during motion. He had about a 10 degree limitation of movement during flare-up and this was characterized more by pain. He had no pain on motion. No edema, effusion, instability, weakness or tenderness on palpation was found. He had no redness, heat or abnormal movement, and no guarding. He had a linear gait. He was unable to stand greater than 10 minutes or walk for more than 25 feet. He had no calluses and no breakdown. There was no ankylosis, and no inflammatory arthritis. Range of motion in the ankle was revealed as dorsiflexion from 0 degrees to 20 degrees, and plantar flexion was from 0 to 45 degrees, bilaterally. He had no varus or valgus angulation. The pertinent diagnosis was bilateral knee osteoarthritis with positive x- rays; also on the right tibia-fibula, there were two metallic fragments post gastrocnemius. On the occasion of another VA examination in March 2004, the veteran indicated that he has noticed some swelling involving the right calf wounding site over the last few years; he stated that he had noticed no swelling involving the right thigh or left ankle wounding sites. He had had no treatment directed towards the right thigh, right calf or left ankle wound sites since discharge from service. His present complaints regarding the right calf involved episodes of swelling occurring approximately two months ago. The episodes of swelling occurred no more than three to four times per year and lasted for as long as a few days with the swelling resolving spontaneously. The swelling when present was not associated with any drainage, redness or tenderness. His right thigh wounding site had no swelling, drainage, redness, or tenderness. The veteran did not report any swelling, redness or drainage in the left ankle wound site; however, he stated that he had noticed some chronic swelling involving his left ankle and foot ever since his discharge from military service. The veteran also reported noticing pain and numbness in a stocking like distribution extending from the upper calves to the toes of both feet. He stated that the pain and numbness extending from the proximal calves, just distal to the knees, and involving both legs, ankles, and feet was always present with the aching pain being of a "7/10" intensity and aggravated to a "9/10" intensity with any standing or walking. He noted no limited motion of his knees, ankles or feet. The veteran stated that his bilateral leg condition was stable without "flare-up" other than the right calf. The right thigh wound involved a puncture wound over the lateral distal thigh consisting of a puncture wound to the vastus lateralis with no evident muscle tissues debrided. The right posterior calf wound occurred to the gastrocnemius muscle and there was no evident muscle tissue debrided. The left ankle wound involved the anterior medial aspect of the distal tibia approximately a few inches above the ankle with no evident muscle tissue debrided. There was no injury to any specific nerves or vascular structures. There was no fracture. Treatment had been local debridement and dressing changes. The veteran's present complaints regarding his legs were of constant aching pain and numbness involving both legs from just distal to the knee joints to the toes in a circumferential fashion which he stated limited his ability to stand and walk. The veteran indicated that he was able to stand and walk for no more than 15 minutes, and required a cane when doing any standing or walking. The veteran also noted that he last worked in July 2003 as an armed security guard; he stated that his inability to work was due to his inability to stand or walk for more than 15 minutes and the need for a cane. On examination, it was noted that the veteran entered the examining room carrying a brand new appearing cane. He did not require the cane to ambulate into the office. He was able to walk on his heels and toes without evident weakness. He performed 50 percent of normal squatting maneuver. At the left ankle, there was an anterior medial transverse ancient scar measuring 2.5 inches x 1.5 inch in width wherein the skin of the scar was thin but intact. There was no ulceration. There was swelling of the left ankle and left foot distal to the scar on the left leg which was approximately 2 inches above the medial malleolus of the ankle. There was no tissue loss involving the right thigh or right calf scars; with respect to the left medial ankle scar, there was no tissue loss, and there was no ulceration. All the scars were well-healed and nontender without any evidence of acute or chronic inflammation; there was no adhesion to underlying tissue. There was no swelling involving the thigh or calf; there was swelling involving the left ankle and left foot. There was no bone, joint or nerve damage associated with the scarring involving the right thigh, right calf or left lower leg. There was no evident muscle weakness involving the legs. There was no muscle herniation. There was no loss of muscle function. He had normal strength with resistance of flexion and extension of the knees, ankles and feet. Both knees had 100 percent active, normal range of motion flexing from 0 to 140 degrees against moderate resistance with a complaint of pain involving the medial joint spaces at the extreme of flexion. There was tenderness over the medial joint spaces of both knees. Both knees had the ligaments intact at varus and valgus stress with normal drawer signs and negative McMurray's and Lachman's signs. Both ankles had a normal appearance and 100 percent normal pain-free range of motion dorsiflexing 20 degrees and plantar flexing 45 degrees without pain. Examination of the feet revealed a normal appearance other than swelling and tenderness about the right great toe metatarsophalangeal joint, which had painful restricted motion. The left foot had a normal appearance and 100 percent normal pain free range of motion of all joints in the foot including the great toe metatarsophalangeal joint. The veteran claimed decreased sensation to pinprick and light touch involving both legs in a circumferential fashion from the proximal tibia to the toes in a circumferential fashion. He had normal vibratory sense in both feet. He had normal pedal pulses. X-ray study of the left knee revealed moderately advanced osteoarthritis. The right knee had advanced osteoarthritis involving the medial compartment and patellofemoral joint with mild osteoarthritis involving the lateral compartment. X-rays of the right tibia revealed an irregularly shaped metallic foreign body within the soft tissue of the posterior medial tibia at the junction to the proximal and middle thirds of the tibia without any bony defects. X-rays of the left tibia were normal showing no fractures or foreign bodies. X-rays of both ankles were normal. X-rays of the right foot revealed advanced osteoarthritis involving the metatarsophalangeal joint to the great toe. X-rays of the left foot were normal. The pertinent diagnoses were right distal thigh puncture wound, secondary to grenade fragment in 1967, without neurologic, tendon, bony or mechanical defect or any sequelae; grenade fragment wounds, right calf, with a retained small metallic fragment involving the posterior medial tibia without associated bony defect, neurologic or tendon defect or inflammation. A second wound at the proximal and middle thirds of the posterior tibia was well healed without neurologic, mechanical or tendon defect, but with claims of occasional spontaneous swelling; advanced osteoarthritis, right great toe at the metatarsophalangeal joint due to advancing age and obesity unrelated to the grenade fragment wounding; and advanced tricompartmental osteoarthritis, right knee, unrelated to wounding episode; and left knee moderate osteoarthritis, unrelated to wounding episodes. The pertinent diagnoses also included status post grenade wound, left distal tibia with persistent 0.25 inch swelling at the left ankle and left foot secondary to the wounding episode due to blockage of lymph edema without vascular, bony or neurologic injury, and with complaints of bilateral leg pain and numbness from the proximal calves to the toes in a circumferential fashion secondary to obesity and advancing age and unrelated to grenade fragment wounding episodes. The examiner stated that the veteran's left ankle and 0.25 inch foot swelling were most likely due to the transverse scar just proximal to the ankle joint which was well-healed, although it had healed with somewhat thin skin. The veteran otherwise had no evident residuals regarding any of the wounds to the right thigh or right calf, although there was a small metallic fragment retained within the muscles of the posterior medial right calf. At his personal hearing in April 2004, the veteran testified that his legs had gotten worse and they bothered him more and more. The veteran indicated that he had pain in his legs all the time from the knees all the way down; he described the pain as a numbing aching pain that never went away. The veteran indicated that he did not have pain from the thighs to the ankles; however, he got pain in the left ankle where the wound was located. The veteran stated that he had cramping in his thighs and calves, and the muscles got tired. The veteran related that he had difficulty standing for any significant period of time or walking any distance. The veteran indicated that he used to work as an armed security guard, a position that required a lot of standing; he stated that he had not worked since last year because of his leg problems. Of record is the report of an EMG/NCV study of the legs, performed in September 2005, which revealed a mild sensorimotor (sensory greater than motor) peripheral neuropathy, with predominantly axonal features. Also of record are medical records from the Social Security Administration (SSA), dated from August 2004 to May 2007, which show that the veteran received ongoing evaluation and treatment for bilateral leg pain. A September 2005 orthopedic surgeon's examination resulted in an impression of status post ancient shrapnel wounds to both right and left lower legs without neurologic or mechanical residual. The veteran was afforded another VA examination for evaluation of the muscles in March 2007. The veteran reported no flare-ups. However, he claimed that he was always in constant agitation and numbness from the upper part of the lower extremities, that is, below the knees, all the way to the ankle, right worse than the left. It was noted that there were no precipitating factors because the numb and burning sensation was always present. He claimed that there were no alleviating factors. The veteran indicated that the condition of his lower extremities interfered with sleep and his ambulation because he was very conscious to the fact that the lower extremities had a burning sensation. The examiner noted that the muscles that were injured by the missile was the gastrocnemius muscle and the soleus muscle in the right lower extremity; the missile also struck the peroneous brevis muscle and the extensor hallucis muscle. Bony and vascular structures had not been affected. There were no tumors in the muscles. No tissue loss was present. No adhesions were noted. No tendon damage, no bone damage, and no joint damage were noted. The examiner noted that the veteran had a neuropathy, but it did not appear that he ever sustained any nerve damage; in other words, he had neuralgia. The muscle strength seemed to be good. No muscle herniation was noted. There did not appear to be any loss of muscle function. Both ankles had dorsiflexion from 0 to 18 degrees, and plantar flexion was 0 to 44 degrees; there was no evidence of any varus or valgus angulation of the os calcis in relationship to the long axis of the tibia and fibula. There was no additional malfunction because of pain as far as the ankle was concerned. The x-rays showed no bone destruction or any joint destruction. With respect to the ankles, he had no pain, no weakness, no stiffness, no swelling, no heat, no redness, no instability, no fatigue, and no lack of endurance. The veteran was not taking any pain medication. He reported no flare-ups. It was noted that the veteran used a cane, but no crutches and no corrective shoes. He has had no episodes of dislocation or recurrent subluxation and had no inflammatory arthritis. After repetitive motions, there was no pain, no discomfort, and no change in the range of motion. The joint was not painful and there was no lack of coordination, no edema, no painful motion, no weakness, no tenderness, no redness, no heat, no abnormal movements, and no guarding. He had normal gait, and no ankylosis was found. Both lower extremities showed the same length. The pertinent diagnosis was no significant injury to both ankles with normal range of motion and normal DeLuca requirements. The examiner noted that the veteran's problems with peripheral neuropathy reminded him of diabetes mellitus type II. The examiner noted that range of motion in the right knee was 0 to 112 degrees; x-rays of the knee or both knees were within normal limits. There was no evidence of any ankle or knee disability during the examination. The examiner opined that the service-connected muscle injury to the right leg and the status post shell fragment wound to the left ankle were moderate. Of record is a statement from a VA physician's assistant, dated in June 2007, indicating that the veteran was seen at the VA clinic June 18, 2007, and that he was permanently disabled due to severe pain in both lower extremities secondary to shrapnel wounds in both lower extremities causing muscle injury and peripheral nerve injuries. III. Legal Analysis-Increased rating. Initially, the Board notes that disability evaluations are determined by the application of a schedule of ratings, which is in turn based on the average impairment of earning capacity caused by a given disability. 38 U.S.C.A. § 1155 (West 2002 & Supp. 2007); 38 C.F.R. § 4.1 (2007). Each service-connected disability is rated on the basis of specific criteria identified by diagnostic codes. 38 C.F.R. § 4.27. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. When, after careful consideration of all the evidence of record, a reasonable doubt arises regarding the degree of disability, such doubt shall be resolved in favor of the claimant. 38 C.F.R. § 4.3. When rating the veteran's service-connected disabilities, the entire medical history must be borne in mind. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). However, where entitlement to compensation already has been established and an increase in the disability rating is at issue, the present level of disability is of primary concern. Although a rating specialist is directed to review the recorded history of a disability in order to make a more accurate evaluation, the regulations do not give past medical reports precedence over current findings. 38 C.F.R. § 4.2; Francisco v. Brown, 7 Vet. App. 55 (1994). After the evidence has been assembled, it is the Board's responsibility to evaluate the entire record. 38 U.S.C.A. § 7104(a). When there is an approximate balance of evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107; 38 C.F.R. §§ 3.102, 4.3. In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the Court stated that "a veteran need only demonstrate that there is an 'approximate balance of positive and negative evidence' in order to prevail." To deny a claim on its merits, the preponderance of the evidence must be against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert at 54. The cardinal signs and symptoms of muscle disability are loss of power, weakness, lowered threshold of fatigue, fatigue- pain, impairment of coordination and uncertainty of movement. Under the criteria for rating muscle injuries, disabilities are characterized as either slight, moderate, moderately severe, or severe. 38 C.F.R. § 4.56. A slight muscle injury involves a simple wound of muscle without debridement or infection. The service medical records should reflect a superficial wound with brief treatment and return to duty, and healing with good functional results. There should be no consistent complaint of loss of power, weakness, lowered threshold of fatigue, fatigue-pain, impairment of coordination, or uncertainty of movement. The scar should be minimal, and there should be no evidence of fascial defect, atrophy, or impaired tonus. There should be no impairment of function or retained metallic fragments. 38 C.F.R. § 4.56(d) (1). A moderate disability of the muscles anticipates a through and through or deep penetrating wound of short track from a single bullet, small shell or shrapnel fragment, without explosive effect of high velocity missile, residuals of debridement, or prolonged infection. There should be a history of hospitalization for a prolonged period of treatment of the wound with a record of cardinal symptoms consisting of loss of power, weakness, lowered threshold of fatigue, fatigue-pain, impairment of coordination and uncertainty of movement. Objective findings should include some loss of deep fascia or muscle substance or impairment of muscle tonus and loss of power or lowered threshold of fatigue when compared to the sound side. 38 C.F.R. § 4.56(d) (2). Moderately severe disability of the muscles anticipates a through and through or deep open penetrating wound by a small high velocity missile or a large low-velocity missile, with debridement, prolonged infection, or sloughing of soft parts, and intermuscular scarring. There should be a history of hospitalization for a prolonged period of treatment of the wound with a record of cardinal symptoms consisting of loss of power, weakness, lowered threshold of fatigue, fatigue- pain, impairment of coordination and uncertainty of movement. Objective findings should include indications on deep palpation of loss of deep fascia, muscle substance, or normal firm resistance of muscles compared with sound side. Tests of strength and endurance compared with sound side should demonstrate positive evidence of impairment. 38 C.F.R. § 4.56(d) (3). The criteria of 38 C.F.R. § 4.56 are only guidelines for evaluating muscle injuries from gunshot wounds or other trauma, and the criteria are to be considered with all factors in the individual case. Robertson v. Brown, 5 Vet. App. 70 (1993). A. I/R muscle injury, S/P shell fragment wound to the right leg with retained fragments. The veteran's muscle injury, status post shell fragment wound to the right leg with retained fragments, has been evaluated as 10 percent disabling under the provisions of 38 C.F.R. § 4.73, Diagnostic Code 5311, pursuant to which the severity of injuries to Muscle Group XI is evaluated. Diagnostic Code 5311 states that Muscle Group XI includes those muscles responsible for propulsion, stabilization of the arch, flexion of the toes, and flexion of the knee. Muscles listed as part of this group include the posterior and lateral crural muscles and muscles of the calf; triceps surae (gastrocnemius and soleus), tibialis posterior, peroneus longus, peroneus brevis, flexor hallucis longus, flexor digitorum longus, popliteus, and plantaris. Pursuant to this code, a 10 percent rating is warranted if impairment of this muscle groups is moderate; a 20 percent rating is warranted if impairment of this muscle group is moderately severe; and a 30 percent rating is warranted if it is severe. A review of the evidence, described in detail in the factual background, reflects that the veteran's muscle injury is currently negative for any signs of a moderately severe muscle damage of the right leg. Normal strength is currently shown and no evidence of muscle herniation or loss of muscle function is shown on the muscle injuries examinations of March 2004 and March 2007; and, the VA medical evidence is silent for evidence of right leg muscle problems. Significantly, on the occasion of a VA examination in March 2004 range of motion of the right knee and ankle was within normal limits and knee motion was only slightly decreased on examination in March 2007 while ankle motion was again full. The VA examiner stated that the DeLuca requirements were normal. The examiner described the muscle injury to the right leg as moderate. Thus the evidence does not reflect more than moderate muscle impairment of the right leg. In sum, the Board has reviewed the evidence and finds that the preponderance of the evidence is against a rating in excess of 10 percent disabling for the residuals of shell fragment wound to the right leg. B. I/R S/P shell fragment wound to the left ankle. The veteran's service-connected status post shrapnel wound to the left ankle is evaluated as 10 percent disabling under Diagnostic Code 5311, which reflects moderate injury to Muscle Group XI. That Muscle Group encompasses the posterior and lateral crural muscles and the muscles of the calf, and their functions include propulsion and plantar flexion of the foot, stabilization of the arch, flexion of the toes, and flexion of the knee. 38 C.F.R. § 4.73, Diagnostic Code 5311. The veteran has claimed that he is entitled to a higher evaluation for status post shrapnel wound to the left ankle. As noted above, a 20 percent evaluation is warranted for a muscle disability that is moderately severe and a 30 percent evaluation is warranted for a muscle disability that is severe. Diagnostic Code 5311. After having carefully reviewed the evidence of record, the Board finds that the evidence is against a grant for an evaluation in excess of 10 percent disabling for status post shell fragment wound to the left ankle. Reviewing 38 C.F.R. § 4.56(d) (2) (iii), objective findings of status post shell fragment wound of the left ankle are consistent with the findings of no more than a moderate disability of the muscle. While the veteran has reported feeling numbness in the left lower extremity from the knee down to the ankle, no bone, joint or nerve damage was noted during examination in March 2004. X-ray study of the left ankle was normal. Similarly, on examination in March 2007, range of motion in the left ankle was normal; he had no pain, no weakness, no swelling, no heat, no redness, no instability, no fatigue and no lack of endurance. There was no evidence of any tendon or nerve damage; the muscle strength in both legs was equal. It was noted that the veteran walked extensively from the waiting room all the way to the examining room without any problems. There has also been no reported loss of muscle substance or function. The examiner specifically noted that there was no evidence of any ankle disability during the examination. The examiner described the injury to the left ankle as moderate. Accordingly, the preponderance of the evidence is against a finding that the veteran's service-connected status post shell fragment wound to the left ankle meets the criteria for a higher evaluation under Diagnostic Code 5311. The Board has considered the statement from the VA physician assistant, dated in June 2007, indicating that the veteran was seen at the VA clinic June 18, 2007, and that he was permanently disabled due to severe pain in both lower extremities secondary to shrapnel wounds in both lower extremities causing muscle injury and peripheral nerve injuries. However, that statement is conclusory and is not supported by the evidence of record. Significantly, during the March 2007 VA examination, the examiner noted that the veteran had a neuropathy, "but it does not appear that he ever sustained any nerve damage; in other words, he has neuralgia." And, following the examination, with a complete review of the claims folder, the VA examiner stated that the veteran's problems with peripheral neuropathy reminded him of diabetes mellitus type II. Although a subsequent April 2007 medical note reflects that the veteran does not have diabetes, nevertheless, after two extensive evaluations, one in 2004 and one in 2007, the physicians did not attribute the veteran's neurological problems to his service connected disabilities. The 2004 examiner specifically noted that the veteran's complaints of bilateral leg pain and numbness, circumferential in nature, were unrelated to the fragment wound episodes. In addition, the VA examiner opined that the service-connected muscle injury to the right leg and the status post shell fragment wound to the left ankle were moderate. Consequently, the more probative evidence of record has not attributed any peripheral neuropathy to the service connected fragment wounds in the right leg and left ankle; and, the overall medical evidence has described the disabilities in the lower extremities as moderate. The Board also notes that the thorough 2004 and 2007 examinations did not find significant manifestations of fatigability, lack of coordination, strength or endurance, weakness or painful motion as would warrant a higher rating. 38 C.F.R. § 4.40; DeLuca v. Brown, 8 Vet. App. 202 (1995). Moreover, the evidence does not show such unusual factors of disability or frequent hospitalization as to render the schedular criteria inadequate. The veteran has not submitted evidence of marked interference with employment due to the service-connected disabilities, and, as discussed above, the 2007 note from the physician's assistant is insufficient to show that the condition purporting to cause unemployability is related to his service-connected disabilities. Therefore, the RO's failure to refer this case to the Under Secretary for Benefits or the Director, Compensation and Pension Service, was not improper. 38 C.F.R. § 3.321 (2007) For the reasons discussed above, the Board finds the preponderance of the evidence is against evaluations in excess of 10 percent for service-connected muscle injury, status post shell fragment wounds to the right leg, and status post shell fragment wound to the left ankle. The evidence in this case is not so evenly balanced so as to allow application of the benefit of the doubt rule. See Gilbert, 1 Vet. App. at 55. ORDER Entitlement to a rating in excess of 10 percent for muscle injury, status post shell fragment wound to the right leg with retained fragments, is denied. Entitlement to a rating in excess of 10 percent for status post shell fragment wound to the left ankle is denied. ____________________________________________ HOLLY E. MOEHLMANN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs