Citation Nr: 0815037	
Decision Date: 05/07/08    Archive Date: 05/14/08

DOCKET NO.  04-30 605	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Manila, the 
Republic of the Philippines


THE ISSUES

1.  Entitlement to an increased rating for residuals of a 
gunshot wound to the right thigh, involving Muscle Groups 
XIII and XV, currently evaluated as 30 percent disabling.

2.  Entitlement to a compensable rating for a shrapnel wound 
scar of the right knee.


REPRESENTATION

Appellant represented by:	The American Legion


ATTORNEY FOR THE BOARD

J. Barone, Counsel




INTRODUCTION

The veteran had recognized guerrilla service from January 
1944 to January 1945, and regular Philippine Army service 
from January 1945 to February 1946.

This matter comes before the Board of Veterans' Appeals 
(Board) from a rating decision of the Department of Veterans 
Affairs (VA) Regional Office (RO) in Manila, the Republic of 
the Philippines.


FINDINGS OF FACT

1.  Effective November 1965, the veteran has been in receipt 
of a 30 percent evaluation for a gunshot wound to the right 
thigh, involving Muscle Groups XIII and XV; the evaluation 
was based upon findings of moderate disability of both muscle 
groups, with elevation of to the next higher evaluation of 
moderately severe for Muscle Group XIII.

2.  Residuals of a gunshot wound to Muscle Groups XIII and XV 
is currently manifested by no more than moderate disability 
of each muscle group.

3.  The right knee shrapnel fragment wound is manifested by a 
slightly adherent, nonpainful, slightly depressed scar; there 
is no underlying soft tissue loss, induration, or loss of 
function. 


CONCLUSIONS OF LAW

1.  The criteria for an evaluation in excess of 30 percent 
for residuals of a gunshot wound to Muscle Groups XIII and XV 
have not been met.  38 U.S.C.A. § 1155 (West 1991); 38 C.F.R. 
§§ 4.3, 4.7, 4.40, 4.45, 4.55, 4.56, 4.71a, Diagnostic Codes 
5313, 5315 (2007).

2.  The criteria for a compensable evaluation for right knee 
shrapnel fragment wound scar have not been met.  38 U.S.C.A. 
§ 1155 (West 2002); 38 C.F.R. §§ 4.7, 4.118, Diagnostic Codes 
7803, 7804, 7805 (2007).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veterans Claims Assistance Act of 2000 (VCAA) describes 
VA's duty to notify and assist claimants in substantiating a 
claim for VA benefits.  38 U.S.C.A. §§ 5100, 5102, 5103, 
5103A, 5107, 5126 (West 2002 & Supp. 2007); 38 C.F.R. 
§§ 3.102, 3.156(a), 3.159 and 3.326(a) (2007).

Upon receipt of a complete or substantially complete 
application for benefits, VA is required to notify the 
claimant and his representative of any information, and any 
medical or lay evidence, that is necessary to substantiate 
the claim.  38 U.S.C.A. § 5103(a) (West 2002 & Supp. 2007); 
38 C.F.R. § 3.159(b) (2007); Quartuccio v. Principi, 16 Vet. 
App. 183 (2002).  Proper VCAA notice must inform the claimant 
of any information and evidence not of record (1) that is 
necessary to substantiate the claim; (2) that VA will seek to 
provide; and (3) that the claimant is expected to provide; 
and (4) must ask the claimant to provide any evidence in his 
possession that pertains to the claim, in accordance with 
38 C.F.R. § 3.159(b)(1).  VCAA notice should be provided to a 
claimant before the initial unfavorable RO decision on a 
claim.  See Pelegrini v. Principi, 18 Vet. App. 112 (2004); 
Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on 
other grounds, 444 F.3d 1328 (Fed. Cir. 2006).

During the pendency of this appeal, on March 3, 2006, the 
Court issued a decision in the consolidated appeal of 
Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), which 
held that the VCAA 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.  
Id. at 486.  The veteran has not been provided with notice 
regarding degree of disability.  That deficiency is discussed 
below.  The Board also observes that the veteran has not been 
provided notice with respect to the element of the effective 
date of his disability.  However, the effective date of the 
disability is not at issue in this appeal.  

A letter dated in February 2004, prior to the adjudication of 
the veteran's claim, advised him that he should submit 
evidence showing that his service-connected disabilities had 
worsened.  It noted that such evidence could be a statement 
from his doctor containing physical and clinical findings.  
He was told that he could also submit statements from 
individuals who were able to describe from their knowledge 
and personal observations in what manner the disabilities had 
worsened.  The evidence of record was listed and the veteran 
was told how VA would assist him in obtaining further 
evidence.  

The Board has considered the adequacy of the VCAA notice in 
light of the recent Court decision in Vazquez-Flores v. 
Peake, No. 05-0355 (U.S. Vet. App. January 30, 2008).  The 
February 2004 letter did not advise the veteran whether the 
Diagnostic Codes pertinent to his service-connected 
disabilities contain criteria necessary for entitlement to a 
higher rating that would not be satisfied by the veteran's 
demonstration that there was a noticeable worsening or 
increase in severity of the disability and the effect of that 
worsening on the veteran's employment and daily life.  
However, the Board's review of the record demonstrates that 
the veteran had knowledge of what was necessary to 
substantiate his claim.  In this regard, the Board notes that 
in his May 2004 notice of disagreement, the veteran described 
the functional limitation caused by his right lower extremity 
disabilities.  He stated that the disabilities had affected 
his movement and the performance of daily activities.  In his 
August 2004 substantive appeal, the veteran described severe 
pain and loss of function.  He specifically referred to 
various controlling laws and regulations.  In essence, the 
record demonstrates that the veteran was aware of the 
evidence necessary to substantiate his claim for increase.  
The Board therefore finds that the fundamental fairness of 
the adjudication process is not compromised with respect to 
this issue.

With respect to VA's duty to assist, identified treatment 
records have been obtained and associated with the record.  
VA examinations have been conducted.  Neither the veteran nor 
his representative has identified any additional evidence or 
information which could be obtained to substantiate the 
claims.  The Board is also unaware of any such outstanding 
evidence or information.  Therefore, the Board is also 
satisfied that the RO has complied with the duty to assist 
requirements of the VCAA and the implementing regulations.

For the foregoing reasons, it is not prejudicial to the 
appellant for the Board to proceed to a final decision in 
this appeal.

Analysis

Disability ratings are determined by applying the criteria 
set forth in the VA Schedule for Rating Disabilities (Rating 
Schedule), found in 38 C.F.R. Part 4 (2007).  The Board 
attempts to determine the extent to which the veteran's 
service-connected disability adversely affects his ability to 
function under the ordinary conditions of daily life, and the 
assigned rating is based, as far as practicable, upon the 
average impairment of earning capacity in civil occupations.  
38 U.S.C.A. § 1155; 38 C.F.R. §§ 4.1, 4.10 (2007).

Where there is a question as to which of two evaluations 
should 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.

The basis of disability evaluation is the ability of the body 
as a whole, or of the psyche, or of a system or organ of the 
body to function under the ordinary conditions of daily life 
including employment.  38 C.F.R. § 4.10.

In determining the degree of limitation of motion, the 
provisions of 38 C.F.R. §§ 4.10, 4.40 and 4.45 are for 
consideration.  See DeLuca v. Brown, 8 Vet. App. 202 (1995).

Disability of the musculoskeletal system is primarily the 
inability, due to damage or infection in parts of the system, 
to perform the normal working movements of the body with 
normal excursion, strength, speed, coordination and 
endurance.  Functional loss may be due to the absence or 
deformity of structures or other pathology, or it may be due 
to pain, supported by adequate pathology and evidenced by the 
visible behavior in undertaking the motion.  Weakness is as 
important as limitation of motion, and a part that becomes 
painful on use must be regarded as seriously disabled.  38 
C.F.R. § 4.40.

With respect to joints, in particular, the factors of 
disability reside in reductions of normal excursion of 
movements in different planes.  Inquiry will be directed to 
more or less than normal movement, weakened movement, excess 
fatigability, incoordination, pain on movement, swelling, 
deformity or atrophy of disuse.  38 C.F.R. § 4.45.

The intent of the Rating Schedule is to recognize actually 
painful, unstable or malaligned joints, due to healed injury, 
as entitled to at least the minimum compensable rating for 
the joint.  38 C.F.R. § 4.59.

Disability evaluations are determined by the application of a 
schedule of ratings which is based on average impairment of 
earning capacity.  38 U.S.C.A. § 1155; 38 C.F.R. Part 4.  
Separate diagnostic codes identify the various disabilities.  
When a question arises as to which of two ratings apply under 
a particular diagnostic code, the higher evaluation is 
assigned if the disability more nearly approximates the 
criteria for the higher rating; otherwise, the lower rating 
will be assigned.  38 C.F.R. § 4.7.  After careful 
consideration of the evidence, any reasonable doubt remaining 
is resolved in favor of the veteran.  38 C.F.R. § 4.3.

In general, all disabilities, including those arising from a 
single disease entity, are rated separately, and all 
disability ratings are then combined in accordance with 38 
C.F.R. § 4.25.  Pyramiding, the evaluation of the same 
disability, or the same manifestation of a disability, under 
different diagnostic codes, is to be avoided when rating a 
veteran's service-connected disabilities.  38 C.F.R. § 4.14.  
It is possible for a veteran to have separate and distinct 
manifestations from the same injury which would permit rating 
under several diagnostic codes, however, the critical element 
in permitting the assignment of several ratings under various 
diagnostic codes is that none of the symptomatology for any 
one of the conditions is duplicative or overlapping with the 
symptomatology of the other condition.  See Esteban v. Brown, 
6 Vet. App. 259, 261-62 (1994).

	Gunshot Wound of the Right Thigh

By regulatory amendment, effective July 3, 1997, changes were 
made to the schedular criteria for evaluating muscle 
injuries, as set forth in 38 C.F.R. §§ 4.55, 4.56, 4.69, 4.73 
(1996).  See 62 Fed. Reg. 30235-30240 (1997).  

Prior to July 3, 1997, 38 C.F.R. § 4.55 provided that muscle 
injuries in the same anatomical region will not be combined, 
but instead, the rating for the major group will be elevated 
from moderate to moderately severe, or from moderately severe 
to severe, according to the severity of the aggregate 
impairment of function of the extremity. 38 C.F.R. § 4.55(a) 
(1997).  

On and after July 3, 1997, 38 C.F.R. § 4.55 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.  38 C.F.R. § 4.55(d).  
For compensable muscle group injuries which are in the same 
anatomical region but which do not act on the same joint, the 
evaluation for the most severely injured muscle group will be 
increased by one level and used as the combined evaluation 
for the affected muscle groups.  38 C.F.R. § 4.55(e) (2007).

Prior to July 3, 1997, 38 C.F.R. § 4.56 provided that slight 
muscle disability is found where there has been a simple 
wound of the muscle without debridement, infection or effects 
of laceration.  Clinical examination would disclose minimal 
scarring and slight, if any, evidence of fascial defect, 
atrophy, or impaired tonus.  No significant impairment of 
function and no retained metallic fragments would be present.  
Moderate muscle disability is found where there has been 
through and through or deep penetrating wounds of relatively 
short track from a single bullet, small shell or shrapnel 
fragment, without explosive effect of high velocity missile, 
residuals of debridement, or prolonged infection.  Clinical 
examination would disclose entrance and (if present) exit 
scars that are linear or relatively small and so situated as 
to indicate relatively short track of missile through muscle 
tissue.  There must be signs of moderate loss of deep fascia 
or muscle substance or impairment of muscle tonus, and of 
definite weakness or fatigue in comparative tests.  
Moderately severe muscle disability is found where there has 
been through and through or deep penetrating wound by small 
high velocity missile or large low-velocity missile, with 
debridement, prolonged infection, or sloughing of soft parts, 
and intermuscular cicatrization.  Clinical examination would 
disclose entrance and (if present) exit scars that are 
relatively large and so situated as to indicate track of 
missile through important muscle groups.  There must be 
indications on palpation of moderate loss of deep fascia, 
muscle substance, or normal firm resistance of muscles 
compared with sound side.  Tests of strength and endurance of 
the muscle groups involved compared with the sound side must 
demonstrate positive evidence of marked or moderately severe 
loss.  With a severe muscle disability, there are extensive 
ragged, depressed, and adherent scars of skin so situated as 
to indicate wide damage to muscle groups in track of missile.  
X-ray may show minute multiple scattered foreign bodies 
indicating spread of intermuscular trauma and explosive 
effect of missile.  Palpation shows moderate or extensive 
loss of deep fascia or of muscle substance, with soft or 
flabby muscles in wound area.  Muscles do not swell and 
harden normally in contraction.  Tests of strength or 
endurance compared with the sound side or of coordinated 
movements show positive evidence of severe impairment of 
function.  38 C.F.R. § 4.56 (1997).

On and after July 3, 1997, 38 C.F.R. § 4.56 provides that 
slight muscle disability is found where there has been a 
simple wound of the muscle without debridement or infection.  
Clinical examination would disclose the absence of fascial 
defect, atrophy, or impaired tonus.  No impairment of 
function or metallic fragments retained in muscle tissue 
would be present.  Moderate muscle disability is found where 
there has been 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 must be indications of 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.  Moderately severe muscle disability is found 
where there has been through and through or deep penetrating 
wound by small high velocity missile or large low-velocity 
missile, with debridement, prolonged infection, or sloughing 
of soft parts, and intermuscular scarring.  There must be 
indications on 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 
the sound side must demonstrate positive evidence of 
impairment.  With severe muscle disability, there is evidence 
of wide damage to muscle groups in the missile track.  There 
must be indications on palpation of loss of deep fascia or 
muscle substance, or soft, flabby muscles in the wound area.  
There must be severe impairment of function, that is, 
strength, endurance and coordination, of the involved muscle 
group.  In addition, X-ray evidence of minute multiple 
scattered foreign bodies, or visible evidence of atrophy, may 
indicate a severe muscle disability.  38 C.F.R. § 4.56 
(2007).

The available service medical records indicate that the 
veteran sustained a shrapnel wound to his right leg in 
January 1945.  One account notes the wound to be slight; 
another states that it was penetrating.  The veteran was 
treated with Sulfa and returned to duty.

A March 1952 VA examination report indicates a diagnosis of 
residual shrapnel wound right thigh and healed cicatrix.  The 
examiner noted that there was involvement of Muscle Groups 
XIII and XV, without manifestation.

On VA examination in October 1965, the narrative history 
indicated that the veteran suffered a through and through 
gunshot wound to the right thigh in 1945 and that he was 
hospitalized for one month.  The examiner noted that the 
muscles involved were the gracilis, adductor magnus, and 
semitendinousus.  He indicated that there was moderate muscle 
strength impairment of the adductor muscles of the thigh and 
flexor muscles of the knee.  He stated that there was no bone 
involvement.  The diagnosis was gunshot wound, through and 
through, old with healed scars, right thigh.  

In a November 1965 rating decision, the RO granted a 30 
percent evaluation for the veteran's right thigh gunshot 
wound residuals.  It specifically found that Muscle Groups 
XIII and XV were each moderately impaired, and that as they 
belonged to the same anatomical region, the next higher 
evaluation of moderately severe for the principal muscle 
group was applied.  This assessment was correct under the 
regulations in effect prior to July 3, 1997.

The instant claim for increase was received in January 2004, 
after the change in regulations.

VA examinations were carried out in March 2004.  On muscle 
examination, the examiner noted that the veteran had 
sustained a through and through gunshot wound to the right 
thigh in 1945, and that Muscle Groups XIII and XV were 
involved.  The veteran reported moderate pain four to five 
times per week, lasting for several minutes and aggravated by 
prolonged walking and cold weather.  Range of motion of the 
right hip and knee was full.  There was no pain on motion of 
the hip, and slight pain on full range of motion of the knee.  
There was no instability.  The veteran was noted to walk with 
a slightly impaired gait, using a cane.  The examiner 
concluded that there was slight to moderate interference in 
occupational and daily activities.  There was no tendon, 
bone, joint, or nerve damage.  There was no weakness or gross 
atrophy due to the gunshot wound.  The examiner concluded 
that there was no significant loss of muscle function.  The 
diagnosis was healed scars, right thigh, residuals of gunshot 
wound, through and through; with residuals of injury to 
Muscle Groups XIII and XV.  

With respect to associated scars, the examiner noted a 1 1/4 by 
1 cm. entry scar at the medial aspect of the right thigh, and 
a 1 1/4 by 1/2 cm. exit scar at the posterior aspect of the right 
thigh.  The entry scar showed very slight adherence to 
underlying tissue and the exit scar was not adherent.  There 
was no pain on examination.  The scars were stable and 
nondepressed.  There was no underlying tissue loss, and no 
inflammation, edema, or keloid formation.  The scars were 
almost the same color as normal skin.  There was no 
induration or inflexibility.  The diagnosis was healed scars, 
right thigh, residuals of gunshot wound, through and through.

As the current claim for increase was received after the 
change in regulation discussed above, the Board must 
determine whether separate evaluation of the injuries to 
Muscle Groups XIII and XV result in an evaluation higher than 
the currently assigned 30 percent.  The current evaluation 
contemplates moderate muscle injury to each muscle group.  

Diagnostic Code 5313 provides evaluations for disability of 
Muscle Group XIII.  The functions of these muscles include 
extension of hip and flexion of knee; outward and inward 
rotation of flexed knee; and acting with rectus femoris and 
sartorius (see XIV, 1, 2) synchronizing simultaneous flexion 
of hip and knee and extension of hip and knee by belt-over-
pulley action at knee joint.  The muscle group includes the 
posterior thigh group, hamstring complex of 2-joint muscles: 
(1) biceps femoris; (2) semimembranosus; and (3) 
semitendinosus.  Disability under this provision is evaluated 
as noncompensable for slight disability, 10 percent for 
moderate disability, 30 percent for moderately severe 
disability, and 40 percent for severe disability38 C.F.R. § 
4.73, Diagnostic Code 5313 (2007).

Diagnostic Code 5315 provides evaluations for Muscle Group 
XV.  The functions of this muscle group include adduction of 
hip, flexion of hip and flexion of knee.  It includes the 
mesial thigh group muscles: (1) adductor longus; (2) adductor 
brevis; (3) adductor magnus; and (4) gracilis.  Diagnostic 
Code 5315 provides for a 10 percent evaluation for moderate 
disability, a 20 percent evaluation for moderately severe 
disability, and a 30 percent evaluation for severe 
disability.  38 C.F.R. § 4.73, Diagnostic Code 5315 (2007).

Under the current diagnostic criteria, moderate disability is 
evaluated as 10 percent disabling under Diagnostic Code 5313 
and as 10 percent disabling under Diagnostic Code 5315.  The 
combined evaluation under 38 C.F.R. § 4.25 would be 20 
percent.  In order to result in a higher combined evaluation, 
the evidence must show moderately severe disability of Muscle 
Group XIII, which would warrant a 30 percent evaluation and 
combine with the current 10 percent evaluation assigned to 
Muscle Group XV for a 40 percent evaluation.  The Board also 
notes that evidence showing moderately severe disability of 
both muscle groups would result in a 30 percent evaluation 
for Muscle Group XIII and a 20 percent evaluation for Muscle 
Group XV, which would also result in a combined 40 percent 
evaluation.

Review of the evidence leads the Board to conclude that 
higher evaluations are not warranted for the veteran's 
gunshot wound residuals of the right thigh.  While the 
veteran complains of pain and functional limitation due to 
the injury, there is no evidence of tendon, bone, artery, 
nerve, or joint damage, or objective findings more nearly 
approximating a moderately severe muscle injury of either 
group.  Review of the veteran's medical history does not 
reveal hospitalization following his injury.  In fact, the 
service records clearly show that he was returned to duty 
after treatment with Sulfa.  The initial VA examination in 
1952 indicated that Muscle Groups XIII and XV were involved, 
but that there was no manifestation.  There is no evidence 
documenting debridement, prolonged infection, sloughing of 
soft parts, or intermuscular scarring.  Post-service records 
also fail to document indications on palpation of loss of 
deep fascia, muscle substance, or normal firm resistance 
compared with the sound side.  Most recently, the 2004 VA 
examiner concluded that the impairment was slight to moderate 
and that there was no tendon, bone, joint, or nerve damage 
associated with the injury.  Moreover, there was no weakness 
or gross atrophy and no significant loss of muscle function.

There is no evidence that the veteran's right thigh 
symptomatology more nearly approximates a moderately severe 
muscle disability for either muscle group involved.  In this 
regard, the 2004 VA examiner noted full range of motion, no 
instability, and only slight to moderate interference in 
occupational and daily activities.  There was no tendon, 
bone, joint, or nerve damage, and no weakness or gross 
atrophy.  

The Board has also considered the provisions of DeLuca.  
However, the 2004 VA examiner specifically stated that there 
was no significant loss of muscle function and that range of 
motion of the hip and knee were full.  Thus, ratings in 
excess of 10 percent are not warranted based on limitation of 
motion of the knee (Diagnostic Codes 5260 and 5261) or 
limitation of motion of the hip (Diagnostic Code 5252).

While the veteran has associated scars, they are not of a 
severity or of size to warrant additional compensation under 
the rating criteria pertaining to scars.  Specifically, the 
scars has been described as 1 1/4 by 1 cm. and 1 1/4 by 1/2 cm.  
The Board concludes that these manifestations are 
contemplated in the current 30 percent evaluation under 
Diagnostic Code 5313.  In this regard the Board notes that 
the currently evaluation of moderately severe muscle 
disability under Diagnostic Code 5313 contemplates objective 
findings of entrance and exit scars that are relatively large 
and so situated as to indicate the track of the missile 
through the muscle groups.  As such, to assign a separate 
evaluation under a diagnostic code pertinent to scars would 
constitute pyramiding as the veteran would be compensated 
twice for the same manifestations.  See 38 C.F.R. § 4.14; 
Esteban.

The Board has also considered the applicability of the 
benefit of the doubt doctrine.  However, the preponderance of 
the evidence is against the veteran's claim for a rating in 
excess of 30 percent for residuals of a gunshot wound to the 
right thigh.  Therefore, the benefit of the doubt doctrine is 
not applicable in the instant appeal.  38 U.S.C.A. § 5107 
(West 2002); 38 C.F.R. §§ 4.3, 4.7.

	Scars

The veteran seeks a compensable evaluation for a shrapnel 
fragment wound scar of the right knee.

The scar is currently evaluated as noncompensably disabling 
pursuant to 38 C.F.R. § 4.118, Diagnostic Code 7805, which 
directs that a scar be evaluated based on limitation of 
function of the affected part.  

Diagnostic Code 7803 provides that superficial, unstable 
scars warrant assignment of a 10 percent evaluation.  Note 
(1) defines an unstable scar as one where, for any reason, 
there is frequent loss of covering of skin over the scar.  
Note (2) defines a superficial scar as one not associated 
with underlying soft tissue damage.  Diagnostic Code 7804 
provides that superficial scars that are painful on 
examination warrant a 10 percent evaluation.  Note (1) 
defines a superficial scar as one not associated with 
underlying soft tissue damage.  

Available service medical records do not include any notation 
of an injury to the veteran's right knee.  They indicate only 
that the veteran sustained a shrapnel wound to his right leg 
in January 1945.  

VA examination report dating from February 1952 indicates 
that the veteran had a scar over his right knee which was 
depressed, nonadherent, and nonpainful.  The scar has been 
measured as approximately 1 1/4 by 3/4 inches.  Limitation of 
motion and atrophy associated with the scar have not been 
noted.  

The record also reflects a diagnosis of degenerative 
arthritis of the right knee.

In response to the veteran's most recent claim for increase, 
a VA examination was carried out in March 2004.  The examiner 
noted that the veteran had received a shrapnel wound on his 
right knee in 1945.  The scar was measured as 2 by 3/4 cm.  It 
was not painful and there was slight adherence to underlying 
tissue.  Sight cicatrices were noted.  The scar was stable.  
Slight depression was identified.  There was no underlying 
soft tissue loss.  There was no inflammation, edema, or 
keloid formation.  The scar had the same color as normal 
skin.  There was no induration or inflexibility, and no 
limitation of motion or other limitation of function caused 
by the scar.  The diagnosis was healed scar, right knee, 
residual of shrapnel fragment wound.

Having reviewed the evidence pertaining to the veteran's 
right knee shrapnel fragment wound scar, the Board has 
determined that a compensable evaluation is not warranted.  
The medical evidence of record indicates that the scar is not 
tender, painful, poorly nourished, subject to repeated 
ulceration, or productive of functional impairment.  No other 
functional impairment has been attributed to the scar on the 
veteran's right knee.  As such, the currently assigned 
noncompensable rating for this disability is appropriate.

The Board acknowledges the veteran's report of pain and 
tenderness associated with his right knee.  However, the 
medical evidence pertaining to this disability is more 
probative of the degree of impairment than the veteran's 
subjective statements, and that evidence demonstrates that 
there is no functional impairment that can be attributed to 
the scar.  

The preponderance of the evidence is against the claim and 
there is no doubt to be resolved.  38 U.S.C.A. § 5107 (West 
2002); 38 C.F.R. §§ 4.3, 4.7.


ORDER

Entitlement to an increased rating for residuals of a gunshot 
wound to the right thigh, involving Muscle Groups XIII and XV 
is denied

Entitlement to a compensable rating for a shrapnel wound scar 
of the right knee is denied.




____________________________________________
H. N. SCHWARTZ
Veterans Law Judge, Board of Veterans' Appeals




 Department of Veterans Affairs