Citation Nr: 0813009 Decision Date: 04/18/08 Archive Date: 05/01/08 DOCKET NO. 02-12 358 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUES 1. Entitlement to an increased disability rating for service-connected shell fragment wound (SFW) of the left hip and buttock to include muscle group XVII, currently evaluated as 40 percent disabling effective July 24, 2000. 2. Entitlement to an increased disability rating for scars of the left leg caused by a SFW currently evaluated as 10 percent disabling effective July 24, 2000. 3. Entitlement to an increased initial disability rating for service connected disc narrowing and degenerative changes of the lumbar spine secondary to a SFW of the left hip and buttock, currently evaluated as 10 percent disabling effective July 24, 2000. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD J. Alsup, Associate Counsel INTRODUCTION The veteran served on active duty from November 1963 to October 1965 and from December 1966 to April 1972. Service in Vietnam and award of the Purple Heart medal is evidenced in the record. This matter comes before the Board of Veterans' Appeals (the Board) on appeal from rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Chicago, Illinois. Procedural history The veteran's July 24, 2000, claim for entitlement to increased disability ratings for service connected disabilities was denied in a January 2001 rating decision. The veteran disagreed and timely appealed. In May 2003, the veteran and his representative presented testimony and evidence in support of his claim at a hearing at the RO before the undersigned Veterans Law Judge (VLJ). A transcript of that hearing has been associated with the veteran's VA claims folder. In November 2003, the Board denied two claims and remanded the remaining claims for further evidentiary and procedural development. In a January 2005 rating decision, the RO granted service connection for scars resulting from a SFW in the left leg, and initially rated the disability as 10 percent disabling from the date of the veteran's claim, July 24, 2000. The January 2005 rating decision also granted service connection for disc narrowing and degenerative changes to the lumbar spine and initially rated the disability as 10 percent disabling from the date of the veteran's claim. In June 2005, the Board denied the claim for an increased disability rating for SFW residuals to the left hip and buttock, and remanded the claims regarding SFW left leg scars and low back disabilities. In February 2006, the Court of Appeals for Veterans Claims remanded the Board's June 2005 decision. In an August 2006 decision, the Board remanded the claims noted under Issues for further evidentiary development. In a January 2007 rating decision, the RO granted an increased disability rating of 40 percent for service-connected SFW to the left hip and buttock effective July 24, 2000. Issues not on appeal As noted above, the veteran's claims for increased disability ratings for service-connected bilateral hearing loss and perforated ear drum, each evaluated as noncompensable, were denied November 2003 Board decision. There is nothing in the record which suggests either of the issues was appealed. Thus, the decision is final and those issues will not be discussed any further herein. See 38 C.F.R. § 20.1100 (2007). In his October 2006 statement, the veteran contends that he is entitled to an earlier effective date of October 25, 1977, for his back disability. Moreover, in a statement received in June 2005, the veteran appears to have raised issues of entitlement to service connection for bilateral pes planus and a left knee condition. These issues have not been adjudicated and are referred to the RO for appropriate action. FINDINGS OF FACT 1. The veteran's left hip and buttock disability is manifested complaints of moderately severe pain and stiffness, mildly antalgic gait, no loss of joint function muscles, no evidence of bone or tendon involvement and no evidence of significant vascular structures, and an inability to walk on heels or toes. 2. The veteran's left leg scars are manifested by a 1 cm by 0.5 cm oval maclar scar and a 3 cm by .5 cm depressed bound down scar, which are painful or tender, without medical evidence of an underlying muscle injury to the veteran's left leg, and which have no effect on range of motion or leg function. 3. The veteran's low back disability is manifested by pain radiating to the lower extremities, described as sciatic nerve involvement (L5 component, possibly S1) based on x-ray evidence, and by limited range of motion. CONCLUSIONS OF LAW 1. The criteria for an increased disability rating in excess of 40 percent for SFW of the left hip and buttock to include muscle group XVII have been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.73, Diagnostic Code 5317 (2007). 2. The criteria for an increased disability rating of 10 percent for SFW of the left hip and buttock to include muscle group XVIII have been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.73, Diagnostic Code 5318 (2007). 3. The criteria for an increased disability rating in excess of 10 percent for scars of the left leg caused by a SFW have not been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.118, Diagnostic Code 7805 (2007). 4. The criteria for an increased disability rating in excess of 10 percent for disc narrowing and degenerative changes of the lumbar spine secondary to a SFW of the left hip and buttock have not been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.71a, Diagnostic Code 5243 (2007). 5. Application of extraschedular provisions is not warranted in this case. 38 C.F.R. § 3.321(b) (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSION The veteran generally contends that his disabilities are worse than that accepted by VA. The Board will address preliminary concerns and then render a decision on the issues. Stegall concerns In Stegall v. West, 11 Vet. App. 268, 271 (1998), the United States Court of Appeals for Veterans Claims (the Court) held that compliance with remand instructions is neither optional nor discretionary. The Court further held that the Board errs as a matter of law when it fails to ensure compliance with remand orders. As noted above, in an August 2006 decision, the Board remanded the veteran's claim for further procedural and evidentiary development. Specifically, the Board ordered VBA to obtain medical records identified by the veteran and to provide a medical examination of the veteran pertaining to the issue of entitlement to an increased disability rating for service-connected SFW left hip and buttock, to include obtaining a complete medical history, providing complete clinical findings and an indication whether any muscle group (MG) other than MG XVII is involved in the veteran's disability. The examiner was also instructed to review the veteran's claims folder. In this case, the July 2007 medical examiner noted that he reviewed the veteran's VA claims folder, obtained a thorough medical history, and provided comprehensive physical examination findings. The examiner also determined that the disability also included MG XVIII. Although VBA is required to comply with remand orders, it is substantial compliance, not absolute compliance that is required. See Dyment v. West, 13 Vet.App. 141, 146-47 (1999) (holding that there was no Stegall violation when the examiner made the ultimate determination required by the Board's remand, because such determination "more that substantially complied with the Board's remand order"). In this case, the Board finds that VBA has substantially complied with the Board's August 2006 remand order. Duties to notify and assist Upon receipt of a substantially complete application for benefits, VA must notify the claimant what information or evidence is needed in order to substantiate the claim and it must assist the claimant by making reasonable efforts to get the evidence needed. 38 U.S.C.A. §§ 5103(a), 5103A; 38 C.F.R. § 3.159(b); see Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). The notice required must be provided to the claimant before the initial unfavorable decision on a claim for VA benefits, and it must (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; (3) inform the claimant about the information and evidence the claimant is expected to provide; and (4) request or tell the claimant to 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)(1); Pelegrini v. Principi, 18 Vet. App. 112, 120 (2004). In this case, the RO provided the veteran with notice in April 2004 prior to the initial decision on the claim for entitlement to increased disability ratings, as well as in August 2005 and August 2006. Therefore, the timing requirement of the notice as set forth in Pelegrini has been met and to decide the appeal would not be prejudicial to the claimant. Moreover, the requirements with respect to the content of the notice were met in this case. The RO informed the veteran in the notice letters about the information and evidence that is necessary to substantiate his claim for increased ratings. Specifically, all of the letters stated that the evidence must show that his service connected disabilities have increased in severity. Additionally, the January supplemental statement of the case (SSOC) notified the veteran of the reasons for the denial of his application and, in so doing, informed him of the evidence that was needed to substantiate his claims and the disability rating criteria that applied to his claims. In addition, the RO notified the veteran in that reasonable efforts would be made to help him obtain evidence necessary to support his claim, including that VA would request any pertinent records held by Federal agencies, such as military records, and VA medical records. The veteran was also informed that a medical examination would be provided or that a medical opinion would be obtained if it was determined that such evidence was necessary to make a decision on his claim. Finally, in the all of the notice letters, the RO informed the claimant to submit any evidence in his possession that pertains to the claim. Thus, because each of the four notice requirements has been fully satisfied in this case, any error in not providing a single notice to the appellant covering all content requirements is harmless error. Further, during the pendency of this appeal, the United States Court of Appeals for Veterans Claims (Court) issued a decision in the consolidated appeal of Dingess/Hartman v. Nicholson, 19 Vet. App. 473, noted above, which held that the notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim. Those five elements include: 1) veteran status; 2) existence of a disability; (3) a connection between the veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability. The Court held that upon receipt of an application for a service- connection claim, 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) require VA to review the information and the evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating or is necessary to substantiate the elements of the claim as reasonably contemplated by the application. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Additionally, this notice must include notice that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Id. In the present appeal, the veteran was provided specific Dingess notice in a letter dated August 2006. In addition, the duty to assist the appellant has also been satisfied in this case. The veteran's service medical records as well as all available VA treatment records are in the claims file and were reviewed by both the RO and the Board in connection with his claim. He was also afforded VA examinations in connection with his claims for residuals of a SFW to his left hip and buttock, and for related scars. VA has further assisted the veteran and his representative throughout the course of this appeal by providing them with a SOC, which informed them of the laws and regulations relevant to the veteran's claim. For these reasons, the Board concludes that VA has fulfilled the duty to assist the veteran in this case. Additionally, the Board finds that the veteran received appropriate notice, with respect to the increased rating claims, under Vazquez-Flores v. Peake, No. 05-0355 (U.S. Vet. App. January 30, 2008). Specifically, the January 2005 SSOC informed the veteran of the specific diagnostic code criteria which applied to his case. Significantly, in an April 2005 informal brief, the veteran's representative set out the specific criteria of the diagnostic codes pertaining to the veteran's claims for SFW disabilities, and specified the relevant symptomatology for those disabilities. Such statements make clear that the veteran through his representative had actual knowledge of the information required under Vazquez-Flores. The Board additionally observes that all appropriate due process concerns have been satisfied. See 38 C.F.R. § 3.103 (2007). As noted above, the veteran and his representative presented evidence and testimony before the undersigned VLJ in May 2003. The Board will therefore proceed to a decision on the merits. 1. Entitlement to an increased disability rating for service-connected shell fragment wound (SFW) of the left hip and buttock to include muscle group XVII, currently evaluated as 40 percent disabling effective July 24, 2000. Relevant law and regulations Increased ratings - in general Disability evaluations are determined by the application of the VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4 (2007). The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual disorders in civil occupations. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.321(a), 4.1 (2007). Assignment of diagnostic code The veteran's service-connected SFW of the left hip and buttock is rated under 38 C.F.R. § 4.73, Diagnostic Code 5317 (2007) [Group XVII; Pelvic girdle group 2]. The assignment of a particular diagnostic code is "completely dependent on the facts of a particular case." See Butts v. Brown, 5 Vet. App. 532, 538 (1993). One diagnostic code may be more appropriate than another based on such factors as an individual's relevant medical history, the diagnosis and demonstrated symptomatology. Any change in a diagnostic code by a VA adjudicator must be specifically explained. Pernorio v. Derwinski, 2 Vet. App. 625, 629 (1992). Diagnostic Code 5317 is deemed by the Board to be the most appropriate primarily because it pertains specifically to the primary diagnosed disability in the veteran's case; the November 2006 examiner described the veteran's left hip and buttock injury as "soft tissue defect left buttocks with subcutaneous loss as well as probable loss of muscle tissue of the gluteus maximus and possibly the gluteus medius . . . penetrating injury (shrapnel) involving buttocks/"hip" with injury to the gluteus maximus; gluteus medius and piriformis." As noted above, the Board's August 2007 remand included a request that the examiner identify whether any muscle group other than MG XVII was involved. It is apparent from the November 2006 examination report that MG XVIII [Pelvic girdle group 3: (1) Pyriformis; (2) gemellus (superior or inferior; (3) oburaor (external or internal); (4) quadratus femoris], is appropriate in addition to Diagnostic Code 5317. The Board can identify nothing in the evidence to suggest that another diagnostic code would be more appropriate, and the veteran has only requested that Diagnostic Code 5318 be used in addition to Diagnostic Code 5317. See April 2005 informal statement. Accordingly, the Board concludes that the veteran is appropriately rated under both Diagnostic Code 5317 and Diagnostic Code 5318 under the criteria of 38 C.F.R. § 4.55 [Principles of combined ratings for muscle injuries]; see also Jones v. Principi, 18 Vet. App. 248 (2004). Rating muscle injuries The disabilities resulting from the veteran's left leg and buttock wounds are evaluated by the RO as muscle injuries under 38 C.F.R. § 4.73, Diagnostic Code 5317. 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. For Diagnostic Codes 5301 through 5323, disabilities resulting from muscle injuries shall be classified as slight, moderate, moderately severe, or severe. 38 C.F.R. § 4.56 (2007). Disability is considered to be slight if the disability results from a simple wound without debridement, infection, shown by service medical records to be a superficial wound requiring brief treatment and return to duty and healing with good functional results, without any of the cardinal signs of muscle disability as shown above. The objective evidence of slight disability consists of a minimal scar, no evidence of facial defect, atrophy, or impaired tonus, no impairment of function or metallic fragments retained in muscle tissue. 38 C.F.R. § 4.56 (2007). Muscle disability is considered to be moderate if it was caused by a through and through or deep penetrating wound of short track from a single bullet or a small shell or shrapnel fragment, without the explosive effect of a high velocity missile, with the residuals of debridement or prolonged infection. Evidence of moderate disability consists of consistent complaints of one or more of the cardinal signs and symptoms of muscle disability as shown above, particularly lowered threshold of fatigue after average use, which affects the particular functions controlled by the injured muscles. The objective signs of moderate disability include small or linear entrance and (if present) exit scars, indicating a short track of the missile through muscle tissue, some loss of deep fascia or muscle substance, impairment of muscle tonus and loss of power, or a lowered threshold of fatigue when compared to the sound side. 38 C.F.R. § 4.56 (2007). Muscle disability is considered to be moderately severe if it results from a through and through or deep penetrating wound by a small high velocity missile or large low-velocity missile, with evidence of debridement, prolonged infection, or sloughing of soft parts, and intermuscular scarring. Evidence of a moderately severe muscle injury includes service department record or other evidence showing hospitalization for a prolonged period for treatment of the wound, consistent complaints of the cardinal signs and symptoms of muscle disability as shown above and, if present, evidence of inability to keep up with work requirements. The objective evidence of a moderately severe muscle disability includes entrance and (if present) exit scars that indicate a track of the missile through one or more muscle groups, the loss of deep fascia, muscle substance, or normal firm resistance of muscles compared with the sound side, and impairment of strength and endurance in comparison to the sound side. 38 C.F.R. § 4.56 (2007). A severe muscle disability results from a through and through or deep penetrating wound due to high velocity missile, or large or multiple low velocity missiles, or with shattering bone fracture or open comminuted fracture with extensive debridement, prolonged infection, or sloughing of soft parts, intermuscular binding and scarring. The objective findings would include ragged, depressed and adherent scars indicating wide damage to muscle groups in the missile track; palpation shows loss of deep fascia or muscle substance, or soft flabby muscles in the wound area; muscles that swell and harden abnormally in contraction; tests of strength, endurance, or coordinated movements compared with the corresponding muscles of the uninjured side indicate severe impairment of function. 38 C.F.R. § 4.56(d)(4) (2007). If present, the following are also signs of severe muscle disability: (A) x-ray evidence of minute multiple scattered foreign bodies indicating intermuscular trauma and explosive effect of the missile; (B) adhesion of the scar to one of the long bones, scapula, pelvic bones, sacrum, or vertebrae, with epithelial sealing over the bone rather than true skin covering in an area where bone is normally protected by muscle; (C) diminished muscle excitability to pulsed electrical current in electrodiagnostic tests; (D) visible or measurable atrophy; (E) adaptive contraction of an opposing group of muscles; (F) atrophy of muscle groups not in the track of the missile, particularly of the trapezius and serratus in wounds of the shoulder girdle; and (G) induration or atrophy of an entire muscle following simple piercing by a projectile. 38 C.F.R. § 4.56(d)(4) (2007). Specific rating criteria The provisions of 38 C.F.R. § 4.73, Diagnostic Code 5317 refer to evaluations of disability of Muscle Group XVII, the function of which refers to extension of the hip; abduction of the thigh; elevation of opposite side of the pelvis; ension of fascia lata and iliotibial band, acting with XIV in postural support of body steadying pelvis upon the head of the femur and condyles of femur on tibia. Under Diagnostic Code 5318, a slight injury to this muscle group warrants a noncompensable rating. A moderate injury to this muscle group is evaluated as 20 percent disabling. A moderately severe injury is evaluated as 40 percent disabling. Finally, a severe injury warrants a 50 percent rating. A note to the diagnostic code indicates that if the injury is bilateral, the Boar must review 38 C.F.R. § 3.350(a)(3) to determine whether the veteran may be entitled to special monthly compensation. Words such as "moderate", "moderately severe" and "severe" are not defined in the VA Rating Schedule. Rather than applying a mechanical formula, the Board must evaluate all of the evidence to the end that its decisions are "equitable and just". See 38 C.F.R. § 4.6 (2007). Diagnostic Code 5318 pertains to Muscle Group XVIII, the function of which consists of outward rotation of thigh and stabilization of hip joint. This diagnostic code provides a noncompensable (zero percent) rating for slight muscle injury, a 10 percent evaluation for a moderate muscle injury, a 20 percent evaluation for a moderately severe muscle injury, and a 30 percent evaluation for a severe muscle injury. See 38 C.F.R. § 4.73, Diagnostic Code 5318 (2007). 38 C.F.R. § 4.56(d) (2007) provides that the combined evaluation of muscle groups acting upon a single unankylosed joint must be lower than the evaluation for unfavorable ankylosis of that joint, except in the case of muscle groups I and II acting upon the shoulder. Muscle Groups XVII and XVIII act upon the pelvis and hip. The highest rating for unfavorable ankylosis of the hip is 90 percent. See 38 C.F.R. § 4.71a, Diagnostic Code 5250 (2007). Therefore, the highest combined rating for injuries to Muscle Groups XVII and XVIII can only be 90 percent disabling. Analysis 1. Diagnostic Code 5317 The November 2006 examiner reported the following diagnosis: 1. Shrapnel wound to left buttocks; 2. Retained foreign bodies (shrapnel) left buttocks area; 3. Soft tissue defect left buttocks with subcutaneous loss as well as probable loss of muscle tissue of the gluteus maximums and possibly the gluteus medius; 4. Penetrating injury (shrapnel) involving buttocks/"hip" with injury to the gluteus maximus; gluteus medius and piriformis; 5. Muscle weakness gluteus maximus; gluteus medius; piriformis secondary to #4; 6. Pain left "hip" secondary to #4; 10. Piriformis syndrome secondary to #4; 11. Sensory loss in distribution of cutaneous nerves to the buttocks. The examiner noted that the entrance wound overlies the gluteus maximus and is "quite extensive." The examiner reported that the wound: suggests loss of skin, subcutaneous tissue, and at least some substance of the gluteus maximus musculature . . . To determine which muscles were injured by the shrapnel, x-rays of the pelvis and hip were reviewed . . . There is a very high degree of certainty that the gluteus maximus sustained injury. It is more likely than not that the gluteus medius and piriformis were injured. It is less likely than not that the gluteus minimus; obtrurator internus and externus; quadratus femoris sustained injury. Similarly, it is less likely than not that the tensor fascia femoris was involved. Injury to the named muscles would account for the findings of weakness in hip extension and abduction and abnormal gait that was demonstrated on today's examination. The piriformis is also a lateral rotator of the hip. Weakness of lateral rotation would not be clinically detected in the presence of the normal functioning muscles that remain in group XVIII. The examiner reported there was evidence of retained metallic foreign bodies in both MG XVII and MG XVIII. As indicated, the veteran is currently rated as moderately severe and is currently evaluated as 40 percent disabled under Diagnostic Code 5317. Thus, for an increased disability rating, § 4.56(d)(4) requires that the evidence must show a ". . . deep penetrating wound due to high velocity missile, or large or multiple low velocity missiles, or with shattering bone fracture or open comminuted fracture with extensive debridement, prolonged infection, or sloughing of soft parts, intermuscular binding and scarring." The objective findings would include "ragged, depressed and adherent scars indicating wide damage to muscle groups in the missile track; palpation shows loss of deep fascia or muscle substance, or soft flabby muscles in the wound area; muscles that swell and harden abnormally in contraction; tests of strength, endurance, or coordinated movements compared with the corresponding muscles of the uninjured side indicate severe impairment of function." The objective evidence in this case establishes that the veteran's wound was caused by shrapnel; was a deep, penetrating wound; caused loss of skin, subcutaneous tissue and muscle tissue; and, evidence of a scar over an "ovoid shaped defect" with diffuse tenderness about the scar and some adherent areas of the scar. There are also findings of reduced range of motion of the pelvis and hip, muscle weakness in hip extension and abduction, abnormal gait, and x-ray evidence of the disposition of shrapnel fragments in the affected muscle groups. The prognosis for the veteran's condition is that it will likely get progressively worse in conjunction with the low back disability. In sum, after reviewing the entire record, the Board finds that the criteria for a severe muscle injury are met and that a disability rating of 50 percent under Diagnostic Code 5317 is warranted. The Board notes that a 50 percent disability rating is the maximum disability rating provided in Diagnostic Code 5317. 2. Diagnostic Code 5318 As noted above, the November 2006 examiner reported a diagnosis "4. Penetrating injury (shrapnel) involving buttocks/"hip" with injury to the gluteus maximus; gluteus medius and piriformis." The examiner also noted that the veteran presented with "piriformis syndrome" which was described as a "condition in which the piriformis muscle irritates the sciatic nerve." The examiner found that the "veteran has a positive piriformis stretch test . . . the distribution of shrapnel a seen on x-ray is consistent with injury to this muscle . . . causing fibrosis/inflammation could certainly cause a piriformis syndrome . . . it is possible that intrinsic muscle damage secondary to the shrapnel is responsible for the positive stretch test rather than irritation of the sciatic nerve." As stated above, Diagnostic Code 5318 provides a noncompensable (zero percent) rating for slight muscle injury, a 10 percent evaluation for a moderate muscle injury, a 20 percent evaluation for a moderately severe muscle injury, and a 30 percent evaluation for a severe muscle injury. See 38 C.F.R. § 4.73, Diagnostic Code 5318 (2007). Also as noted, 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, and a muscle disability is considered to be moderate "if it was caused by a . . . deep penetrating wound of short track from a single bullet or a small shell or shrapnel fragment, without the explosive effect of a high velocity missile, with the residuals of debridement or prolonged infection." Evidence of moderate disability consists of consistent complaints of one or more of the cardinal signs and symptoms of muscle disability as shown above, particularly lowered threshold of fatigue after average use, which affects the particular functions controlled by the injured muscles. In this case, the November 2006 examiner reported that the "piriformis stretch test identifies the piriformis muscle as a pain generator." Thus, one of the cardinal signs is shown by the evidence. There is no evidence of record of debridement or prolonged infection involving the piriformis. Accordingly, after review of the record, the Board finds that the evidence supports a finding that the veteran is entitled to a separate disability evaluation under Diagnostic Code 5318 for a moderate muscle disability. The Board has considered whether the evidence supports a finding for a higher disability rating under Diagnostic Code 5318 and determines that it does not. There is no evidence regarding the piriformis muscle that indicates extensive debridement, prolonged infection, or sloughing of soft parts, intermuscular binding and scarring. There are no objective findings which include ragged, depressed and adherent scars indicating wide damage to muscle groups in the missile track; palpation shows loss of deep fascia or muscle substance, or soft flabby muscles in the wound area; muscles that swell and harden abnormally in contraction; tests of strength, endurance, or coordinated movements compared with the corresponding muscles of the uninjured side indicate severe impairment of function. In short, the Board finds that the evidence portrays a wound which more appropriately fits the criteria of a moderate injury under Diagnostic Code 5318. DeLuca considerations The Court has held that evaluation of a service-connected disability involving a joint rated on limitation of motion requires adequate consideration of functional loss due to pain under 38 C.F.R. § 4.40 (2007) and functional loss due to weakness, fatigability, incoordination or pain on movement of a joint under 38 C.F.R. § 4.45 (2007). See, in general, DeLuca v. Brown, 8 Vet. App. 202 (1995). The Board observes that the cardinal signs of disability that are considered in evaluating muscle injuries incorporate all of the functional limitations that may result. Therefore, DeLuca considerations are not for application in this case. See also Johnson v. Brown, 9 Vet. App. 7, 11 (1996) [the provisions of 38 C.F.R. § 4.40 need not be separately considered unless the rating criteria are predicated only on limitation of motion]. Hart consideration In Hart v. Mansfield, 21 Vet. App. 505 (2007), the Court was presented with the question of whether it is appropriate to apply staged ratings when assigning an increased rating. In answering this question in the affirmative, the Court held that staged ratings are appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibited symptoms that would warrant different ratings. In reaching its conclusion, the Court observed that when a claim for an increased rating is granted, the effective date assigned may be up to one year prior to the date that the application for increase was received if it is factually ascertainable that an increase in disability had occurred within that timeframe. See 38 U.S.C.A. § 5110 (West 2002). Accordingly, the relevant focus for adjudicating an increased rating claim is on the evidence concerning the state of the disability from the time period one year before the claim was filed until VA makes a final decision on the claim. As noted in the Introduction above, the veteran's claim for an increased disability rating was filed in July 2000. In this case, therefore, the relevant time period is from July 1999 to the present. At all times, the assigned disability rating remained unchanged. The question to be answered by the Board, then, is whether any different rating should be assigned for the SFW of the left buttock and hip under consideration for any period from July 1999 to the present. The record reveals that no medical evidence directly addresses the veteran's left buttock and hip condition during the period beginning July 1999. Indeed, the record contains October 1972 and November 1978 VA examination reports which assess the left buttock and hip condition. Thus, throughout the period in question, there were no clinical findings sufficient to justify the assignment of a higher or lower rating. Thus, increased disability rating for the veteran's service- connected left buttock and hip disability was not warranted for the period beginning one year before his claim. Accordingly, there will be no staged ratings assigned. Extraschedular consideration Extraschedular consideration will be addressed at the end of decision. 2. Entitlement to an increased disability rating for scars of the left leg caused by a SFW currently evaluated as 10 percent disabling effective July 24, 2000. Pertinent Law and Regulations The law and regulations for Increased Ratings - general are stated above and will not be repeated here. Specific schedular criteria The applicable rating criteria for skin disorders, found at 38 C.F.R. § 4.118, were amended effective August 30, 2002. See 67 Fed. Reg. 49490-99 (July 31, 2002). Where a law or regulation changes after the claim has been filed, but before the administrative or judicial process has been concluded, the version most favorable to the veteran applies unless Congress provided otherwise or permitted VA to do otherwise and VA did so. See VAOGCPREC 7-2003. The Board notes that the veteran filed his claim July 2000, however, the veteran's service-connected lower left leg scars are rated under 38 C.F.R. § 4.118, Diagnostic Code 7805, [scars, other], which calls for rating based on limitation of function of the affected part and which was not amended. Assignment of diagnostic code The assignment of a particular diagnostic code is "completely dependent on the facts of a particular case." Butts v. Brown, 5 Vet. App. 532, 538 (1993). One diagnostic code may be more appropriate than another based on such factors as an individual's relevant medical history, the diagnosis and demonstrated symptomatology. Any change in a diagnostic code by a VA adjudicator must be specifically explained. Pernorio v. Derwinski, 2 Vet. App. 625, 629 (1992). In this case, the Board has considered whether another rating code is "more appropriate" than the one used by the RO, Diagnostic Code 7805. See Tedeschi v. Brown, 7 Vet. App. 411, 414 (1995). As noted above, the veteran's scars are rated under Diagnostic Code 7805. Under Diagnostic Code 7805, the disability is rated on limitation of function of the affected part; in this case, the lower left leg. Upon review of the record, the Board finds that Diagnostic Code 7804 , [scars, superficial, painful on examination], is more appropriate because the RO's rationale for providing a 10 percent disability rating is base on a finding of pain or tenderness manifested during the examination of the veteran's scars. See January 4, 2005, rating decision. The Board observes that there is no evidence that the veteran's left leg scars limit the movement of the veteran's left leg. Thus, Diagnostic Code 7805 is not as appropriate as Diagnostic Code 7804. The Board has considered other criterion of diagnostic codes pertaining to scar disabilities. The Board notes that Diagnostic Code 7801, [scars, other than head, face, or neck, that are deep or that cause limited motion], is not appropriate in this case because there is no indication in the medical records that the scar is deep and, as is described below, the veteran's scars have no effect on his range of motion or leg function. Diagnostic Code 7802, [scars, other than head, face, or neck, that are superficial and that do not cause limited motion] requires the scar to be in excess of 144 square inches (929 sq. cm.) or greater before such scars are deemed a compensable disability. The veteran's two lower left leg scars are described as 1 cm by 0.5 cm oval maclar scar and a 3 cm by .5 cm depressed bound down scar obviously are not compensable under this diagnostic code. Diagnostic Code 7803, [Scars, superficial, unstable], is inappropriate because, as is described below, the veteran's scars are not unstable. The Board observes in passing that there is no medical evidence of an underlying muscle injury to the veteran's left leg, and thus rating the disability under 38 C.F.R. § 4.73 is not appropriate. After having carefully reviewed the medical evidence, the Board has identified no other Diagnostic Code which is more appropriate than Diagnostic Code 7804. Neither has the veteran nor his representative. In short, the Board is of the opinion that the veteran's service-connected scar disability is most appropriately rated under Diagnostic Code 7804. Specific schedular criteria Diagnostic Code 7804 [scars, superficial, painful on examination], calls for the assignment of a 10 percent disability rating. Schedular rating As noted, the veteran is currently assigned a 10 percent disability rating under Diagnostic Code 7804. As stated above, a 10 percent disability rating is the highest schedular rating available. As such, the Board is unable to grant a higher schedular rating. DeLuca considerations The Board has taken into consideration the provisions of 38 C.F.R. §§ 4.40 and 4.45. See DeLuca, v. Brown, 8 Vet. App. 202 (1995). However, in Johnston v. Brown, 10 Vet. App. 80, 85 (1997), the Court determined that if a claimant is already receiving the maximum disability rating available based on symptomatology that includes limitation of motion, it is not necessary to consider whether 38 C.F.R. § 4.40 and 4.45 are applicable. In the instant case, the veteran is receiving the maximum rating allowable under Diagnostic Code 7804. Accordingly, the aforementioned provisions of 38 C.F.R. § 4.40 and § 4.45 are not for consideration in this case. Fenderson consideration The Court has held that an appeal from an initial rating is a separate and distinct claim from a claim for an increased rating. At the time of an initial rating, separate ratings can be assigned for separate periods of time based on facts found, a practice known as "staged ratings." See Fenderson v. West, 12 Vet. App. 119, 126 (1999). As noted, the Board has already determined that the initial rating was the maximum rating allowable under the appropriate Diagnostic Code. Accordingly, Fenderson is no applicable in this case. The Board notes in passing that there is no evidence of record showing any time during which the schedular criteria for a 10 percent rating was appropriate prior to the date of the claim, July 24, 2000. Extraschedular consideration Extraschedular consideration will be addressed at the end of decision. 3. Entitlement to an increased initial disability rating for service connected disc narrowing and degenerative changes of the lumbar spine secondary to a SFW of the left hip and buttock, currently evaluated as 10 percent disabling effective July 24, 2000. Pertinent Law and Regulations The law and regulations for Increased Ratings - general are stated above and will not be repeated here. Specific rating criteria The veteran filed his increased rating claim for his service- connected back disabilities in July 2000. During the pendency of this appeal, the applicable rating criteria for the spine, found at 38 C.F.R. § 4.71a, were amended effective September 26, 2003. See 68 Fed. Reg. 51, 454-51, 458 (Aug. 27, 2003). Where a law or regulation changes after the claim has been filed, but before the administrative or judicial process has been concluded, the version most favorable to the veteran applies unless Congress provided otherwise or permitted VA to do otherwise and VA did so. See VAOGCPREC 7- 2003. The Board will therefore evaluate the veteran's service-connected back disabilities under both the former and the current schedular criteria, keeping in mind that the revised criteria may not be applied to any time period before the effective date of the change. See 38 U.S.C.A. § 5110(g) (West 1991); 38 C.F.R. § 3.114 (2002); VAOPGCPREC 3-2000 (April 10, 2000); Green v. Brown, 10 Vet. App. 111, 117 (1997). (i.) The former schedular criteria Former Diagnostic Code 5292 [Spine, limitation of motion of lumbar]: Severe . . . . 40%; Moderate . . . . 20%; Slight . . . . 10%. See 38 C.F.R. § 4.71a, Diagnostic Code 5292 (2000). Former Diagnostic Code 5293 [Intervertebral disc syndrome] provided the following levels of disability: Pronounced; with persistent symptoms compatible with sciatic neuropathy with characteristic pain and demonstrable muscle spasm, absent ankle jerk, or other neurological findings appropriate to site of diseased disc, little intermittent relief . . . 60 %; Severe; recurring attacks, with intermittent relief . . . . 40 %; Moderate; recurring attacks . . . . 20%; Mild . . . . 10 %; Postoperative, cured . . . . 0%. See 38 C.F.R. § 4.71a, Diagnostic Code 5293 (2000). Words such as "slight", moderate and "severe" are not defined in the VA Schedule for Rating Disabilities. Rather than applying a mechanical formula, the Board must evaluate all of the evidence to the end that its decisions are "equitable and just." 38 C.F.R. § 4.6 (2007). (ii.) The current schedular criteria The current version of the General Rating Formula for Diseases and Injuries of the Spine provides as follows: (For diagnostic codes 5235 to 5243 unless 5243 is evaluated under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes): With or without symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by residuals of injury or disease 100% Unfavorable ankylosis of the entire spine; 50% Unfavorable ankylosis of the entire thoracolumbar spine; 40% Unfavorable ankylosis of the entire cervical spine; or, forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine; 30% Forward flexion of the cervical spine 15 degrees or less; or, favorable ankylosis of the entire cervical spine; 20% Forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or, forward flexion of the cervical spine greater than 15 degrees but not greater than 30 degrees; or, the combined range of motion of the thoracolumbar spine not greater than 120 degrees; or, the combined range of motion of the cervical spine not greater than 170 degrees; or, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. Note (1): Evaluate any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, separately, under an appropriate diagnostic code. See 38 C.F.R. § 4.71a, Diagnostic Codes 5235 to 5242 (2007). The current schedule for evaluating intervertebral disc syndrome provides the following criteria: Evaluate intervertebral disc syndrome (preoperatively or postoperatively) either under the General Rating Formula for Diseases and Injuries of the Spine or under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, whichever method results in the higher evaluation when all disabilities are combined under § 4.25. Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes 60 % With incapacitating episodes having a total duration of at least 6 weeks during the past 12 months; 40 % With incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months; Note (1): For purposes of evaluations under Diagnostic Code 5243, an incapacitating episode is a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician. See 38 C.F.R. § 4.71a, Diagnostic Code 5243 (2007). Assignment of diagnostic code As was noted above, the RO has rated the veteran's degenerative disease of the lumbar spine under the current diagnostic code 5243 [intervertebral disc syndrome]. However, after careful review of the record, the Board concludes that the Diagnostic Codes pertaining to intervertebral disc syndrome are not the most appropriate, given the character of the veteran's disability. The medical evidence of record indicates that the veteran's service-connected lumbar spine disability is primarily manifested by pain radiating to the lower extremities, described as sciatic nerve involvement (L5 component, possibly S1) based on x-ray evidence, and by limited range of motion. The record includes a May 2004 VA examination report which indicates the veteran had forward flexion of 0-80 degrees, extension of 0-15 degrees, left lateral flexion of 0-20 degrees and right lateral flexion of 0-25 degrees. There is little objective evidence of radiculopathy or any other neurological pathology which is consistent with symptoms of intervertebral disc syndrome found in either former Diagnostic Code 5293 or the current Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes. The veteran's complaint is of pain that is centered in the low back and that radiates into his lower extremities upon movement of the back. The objective medical evidence of such symptomatology is reported in the November 2006 examination report, which states: The veteran has lumbosacral disc disease by history and by examination. There is involvement of the L5 and possibly the S1 nerve root. These nerve roots also supply in part the superior gluteal nerve, inferior gluteal nerve, and the nerve to the piriformis. This could also account for the muscle weakness detected on today's evaluation. . . . If the muscle weakness on today's examination was caused by a nerve root condition then one would expect that there would also be weakness of the great toe long flexor and extensor. This not being the case, it is more likely than not that the weakness observed on today's evaluation is the result of direct muscle injury and not secondary to coexisting lumbosacral/intervertebral disc condition. The examiner noted that the veteran "does have an L5 radiculopathy . . . [this condition] may cause lower extremity paresthesias/dysthesias." The examiner further noted that the veteran described the parethesias/dysthesias conditions as sensations of "swelling and increased warmth." However, the Board notes that the evidence shows no treatment for incapacitating episodes of intervertebral disc syndrome, which require physician-prescribed bed rest and treatment by a physician. See the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, 38 C.F.R. § 4.71a (2007). In light of the lack of evidence of episodes of intervertebral disc syndrome, the neurological symptomatology and in light of the evidence showing limitation of motion of the lumbar spine as the predominant symptom, the Board finds that the veteran's lumbar spine disability is more appropriately rated based upon limitation of motion under the old Diagnostic Code 5292 and the current general schedule for rating spinal disabilities. Schedular rating (i) The former schedular criteria The veteran is rated as 10 percent disabled for his lumbar spine disability. Under the old Diagnostic Code 5292, the evidence would have to show that the veteran's condition is 'moderate' to warrant an increase to a 20 percent disability rating. As noted above, the May 2004 examiner reported the veteran had forward flexion of 0-80 degrees, extension of 0- 15 degrees, left lateral flexion of 0-20 degrees and right lateral flexion of 0-25 degrees. The Board notes that normal ranges of motion are as follows: forward flexion is 0-90 degrees; extension 0-30 degrees; and left and right lateral flexion of 0-30. In comparison, the veteran's ranges of motion are only slightly less than normal with the exception of extension of 15 degrees. However, the Board finds that this singular range does not push the whole of the veteran's disability into the criteria of a moderate disability. Thus, the Board finds that the veteran's lumbar spine disability is 'slight' and is properly rated as 10 percent disabling under the old criteria. (ii.) The current schedular criteria Under the current schedular criteria, to warrant a disability rating of 20 percent, the evidence must show forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or, forward flexion of the cervical spine greater than 15 degrees but not greater than 30 degrees; or, the combined range of motion of the thoracolumbar spine not greater than 120 degrees; or, the combined range of motion of the cervical spine not greater than 170 degrees; or, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. In this case, there is no evidence of muscle spasm resulting in an abnormal gait, no scoliosis, and no abnormal lordosis or kyphosis. The evidence shows forward flexion greater than 60 degrees. For those reasons, the Board finds that the criteria for an increased rating in excess of 10 percent under the new scheduler criteria are not met. Conclusion The Board finds that the criteria for an increased disability rating for the veteran's service-connected disc narrowing and degenerative changes of the lumbar spine secondary to a SFW of the left hip and buttock are not met under either the old criteria or the new criteria. Thus, an increased disability rating is not warranted. Fenderson consideration The Court has held that an appeal from an initial rating is a separate and distinct claim from a claim for an increased rating. At the time of an initial rating, separate ratings can be assigned for separate periods of time based on facts found, a practice known as "staged ratings." See Fenderson v. West, 12 Vet. App. 119, 126 (1999). As above, the evidence does not include a medical assessment of the veteran's low back condition other than the May 2004 VA examination. Thus, there is no evidence of record showing any time during which the schedular criteria for a disability rating in excess of 10 percent was appropriate. Esteban considerations Except as otherwise provided in the Rating Schedule, all disabilities, including those arising from a single entity, are to be rated separately. See 38 C.F.R. § 4.25 (2007); see also Esteban v. Brown, 6 Vet. App. 259 (1994). However, the anti-pyramiding provision of 38 C.F.R. § 4.14 (2007) provides that evaluation of the same disability under various diagnoses is to be avoided. Currently, Note (1) under the General Rating Formula directs evaluation of any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, separately, under an appropriate diagnostic code. The record on appeal, however, does not contain objective medical evidence of significant associated neurological symptomatology. No foot drop, ankle jerk or other symptom of lower extremity disability is indicated by the medical evidence. As noted above, evidence of peripheral neuropathy is of record, but the November examiner concluded that there were several possible explanations for the condition. Based on the absence of significant objectively demonstrated neurological symptomatology, the Board finds that a separate rating for neurological impairment is not warranted. Thus, Esteban considerations are not for application in this case. Extraschedular consideration Ordinarily, the VA Schedule will apply unless there are exceptional or unusual factors which would render application of the schedule impractical. See Fisher v. Principi, 4 Vet. App. 57, 60 (1993). An extraschedular disability rating is warranted only upon a finding that the case presents an exceptional or unusual disability that causes marked interference with employment or frequent periods of hospitalization which renders impractical the application of the regular schedular standards. See 38 C.F.R. § 3.321(b)(1) (2007). The Board initially observes that the issue of extraschedular application was considered in the October 2007 supplemental statement of the case. The Board will do likewise. The record shows that the veteran has not requested an extraschedular rating. The record includes evidence that the veteran has difficulty climbing ladders, kneeling, requires assistance for lifting, has difficulty driving long distances, takes frequent breaks and fatigues easily. The October 2005 examiner noted that the veteran "may be able to perform some desk job in accordance with his education and experience. There is no evidence that the veteran's service-connected disabilities have required him to be hospitalized for any period of time. While the veteran's service-connected disabilities certainly have an impact on his employability, for purposes of extraschedular consideration, however, the Board has reviewed the entire record and determines that it contains no objective evidence of the veteran's inability to work. As discussed above, the record does contain evidence that the veteran is entitled to an increased rating, but there is no evidence that the veteran is occupationally impaired beyond the level contemplated in the assigned disability rating. See Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993) [noting that the disability rating itself is a recognition that industrial capabilities are impaired]. For these reasons, the Board has determined that referral of the veteran's service-connected disability for extraschedular consideration pursuant to 38 C.F.R. § 3.321(b)(1) is not warranted. (CONTINUED ON NEXT PAGE) ORDER An increased disability evaluation of 50 percent is granted for service-connected shell fragment wound (SFW) of the left hip and buttock to include muscle group XVII, subject to governing regulations concerning the payment of monetary benefits. An increased disability evaluation of 10 percent is granted for service-connected shell fragment wound (SFW) of the left hip and buttock to include muscle group XVIII, subject to governing regulations concerning the payment of monetary benefits. Entitlement to an increased disability rating for scars of the left leg caused by a SFW is denied. Entitlement to an increased initial disability rating for service connected disc narrowing and degenerative changes of the lumbar spine secondary to a SFW of the left hip and buttock is denied. ____________________________________________ FRANK J. FLOWERS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs