Citation Nr: 0946505 Decision Date: 12/08/09 Archive Date: 12/18/09 DOCKET NO. 07-36 483 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Lincoln, Nebraska THE ISSUES 1. Entitlement to an initial increased rating, in excess of 20 percent, for neurological residuals of a gun shot wound (GSW) to the right lower extremity involving the right ankle; to include post-traumatic right peroneal and posterior tibial neuropathy. 2. Entitlement to an initial 10 percent rating for musculoskeletal residuals of a gun shot wound (GSW) to the right lower extremity involving the right ankle; to include a healed fracture of the distal right fibula. 3. Entitlement to an initial compensable rating for a scar, right lower extremity over lateral malleolus and medial aspect mid calf. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD C. Bruce, Associate Counsel INTRODUCTION The Veteran had active service from September 1964 to February 1965. This matter arises before the Board of Veterans' Appeals (Board) on appeal from a June 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Lincoln, Nebraska. In that decision, the RO awarded service connection for residuals of a GSW to the right lower extremity involving the right ankle; to include healed fracture distal right fibula, claimed as right leg condition with a noncompensable evaluation effective August 23, 2006 and for a scar, right lower extremity over lateral malleolus and medial aspect mid calf with a noncompensable evaluation effective August 23, 2006. Subsequently, in a November 2007 statement of the case (SOC), the RO increased the Veteran's disability evaluation to 20 percent, for the redefined issue of residuals of a gun shot wound (GSW) to the right lower extremity involving the right ankle; to include healed fracture distal right fibula and post-traumatic right peroneal and posterior tibial neuropathy, effective August 23, 2006. The appellant testified at a travel board hearing before the undersigned in July 2009 at the Lincoln, Nebraska RO. A transcript of the hearing is associated with the claims file and has been reviewed. FINDINGS OF FACT 1. The Veteran's service-connected neurological residuals of a gun shot wound (GSW) to the right lower extremity involving the right ankle are manifested by symptoms consistent with no more than moderate incomplete paralysis of the right peroneal and posterior tibial nerves. 2. The Veteran's service-connected musculoskeletal residuals of a gun shot wound (GSW) to the right lower extremity involving the right ankle, to include a healed fracture of the distal right fibula are manifested by no more than moderate disability. 3. The Veteran's service-connected scar, right lower extremity over lateral malleolus and medial aspect mid calf measures 3.5cms by 1.25cms at the location of the entrance wound and 2.5cms by 1.0cms at the location of the exit wound; and is found to be tender and painful. CONCLUSIONS OF LAW 1. The criteria for an initial evaluation in excess of 20 percent for neurological residuals of a gun shot wound (GSW) to the right lower extremity involving the right ankle; to include post-traumatic right peroneal and posterior tibial neuropathy have not been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.124a, Diagnostic Code 8521 (2009). 2. The criteria for an initial evaluation, not to exceed 10 percent for musculoskeletal residuals of a gun shot wound (GSW) to the right lower extremity involving the right ankle; to include healed fracture distal right fibula have been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.73, Diagnostic Code 5311 (2009). 3. The criteria for a compensable rating for a scar, right lower extremity over lateral malleolus and medial aspect mid calf have been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.31, 4.118, Diagnostic Code 7804 (2009). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VA's Duties to Notify and Assist Under the Veterans Claims Assistance Act (VCAA), when VA receives a complete or substantially complete application for benefits, it must notify the claimant of (1) the information and evidence not of record that is necessary to substantiate a claim, (2) which information and evidence VA will obtain, and (3) which information and evidence the claimant is expected to provide. 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159 (2009); see also 73 Fed. Reg. 23,353-6 (April 30, 2008) (codified at 38 C.F.R. § 3.159 (May 30, 2008)). See Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II). After careful review of the claims file, the Board finds that a letter dated in September 2006 fully satisfied the duty to notify provisions. 38 U.S.C.A. §5103(a); 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). In this regard, this letter advised the Veteran what information and evidence was needed to substantiate the Veteran's increased rating claims. The letter also requested that the Veteran provide enough information for the RO to request records from any sources of information and evidence identified by the Veteran, as well as what information and evidence would be obtained by VA, namely, records like medical records, employment records, and records from other Federal agencies. During the pendency of this appeal, on March 3, 2006, the Court issued a decision in Dingess v. Nicholson, 19 Vet. App. 473, 484 (2006), which held that the VCAA 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. The September 2006 letter provided this notice to the Veteran. The Board observes that the September 2006 letter was sent to the Veteran prior to the June 2007 rating decision. The VCAA notice with respect to the elements addressed in this letter was therefore timely. See Pelegrini v. Principi, 18 Vet. App. 112 (2004). In this regard, the notice provided in the September 2006 letter fully complied with the requirements of 38 U.S.C.A. § 5103(a), 38 C.F.R. § 3.159(b) (2009), and Dingess, supra. The Veteran is challenging the initial evaluation assigned following the grant of service connection. The Court held that in cases where service connection has been granted and an initial disability rating and effective date have been assigned, the typical service connection claim has been more than substantiated, it has been proven, thereby rendering section 5103(a) notice no longer required because the purpose that the notice is intended to serve has been fulfilled. Once the Veteran disagrees with an initial determination, other provisions apply to the remainder of the adjudication process, particularly those pertaining to the duty to assist and issuances of rating decisions and statements of the case. See 38 U.S.C.A. §§ 5103A, 5104(a), 7105(d) (West 2002); 38 C.F.R. §§ 3.103(b)(1), 3.159(c), 19.29 (2009); Dingess, 19 Vet. App. at 490-91; see also Dunlap v. Nicholson, 21 Vet. App. 112, 119 (2007). The Board acknowledges that a recent Court decision held that there are specific requirements for VCAA notices in increased rating claims. However, the Board determines that these requirements do not apply to initial rating claims, such as the one now before the Board. Specifically, the Court, after outlining the notice requirements for increased rating claims, states that the notice in an increased rating claim must also provide examples of the medical and lay evidence that are relevant to establishing entitlement to increased compensation, "[a]s with proper notice for an initial disability rating." Id. at 43. Thus, the Board concludes that the Court intended the requirements outlined in its decision to apply only to increased rating claims, and therefore, these requirements are not applicable to the instant claims. Based on the above analysis, the notice requirements for an initial rating claim have been met. There is no indication that any additional action is needed to comply with the duty to assist in connection with the Veteran's claims for an increased evaluation. The Veteran's service treatment records have been obtained and associated with the claims file, as have VA treatment records. Additionally, the Veteran was provided with various VA examinations in connection with his claims, the reports of which are also of record. The Board recognizes a duty to provide a VA examination when the record lacks evidence to decide the Veteran's claim and there is evidence of (1) a current disability, (2) an in- service event, injury, or disease, and (3) some indication that the claimed disability may be associated with the established event, injury, or disease. 38 C.F.R. § 3.159(c)(4)(i) (2009); see also McLendon v. Nicholson, 20 Vet. App. 79 (2006). The Board notes that VA examinations, to include x-ray reports, with respect to the issues of entitlement to a compensable rating for a scar, right lower extremity over lateral malleolus and medial aspect mid calf and an initial increased rating, in excess of 20 percent, for residuals of a GSW to the right lower extremity involving the right ankle; to include healed fracture distal right fibula and post-traumatic right peroneal and posterior tibial neuropathy were obtained in November 2006, February 2007, June 2007, August 2007, and October 2007. 38 C.F.R. § 3.159(c) (4). To that end, when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). As noted below, the Board finds that the VA examinations obtained in this case are more than adequate, as they are predicated on a full reading of the VA medical records in the Veteran's claims file. The report shows that the examiners considered all of the pertinent evidence of record, to include VA treatment records and the statements of the Veteran, and relied on and cited to the records reviewed. Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion has been met. 38 C.F.R. § 3.159(c) (4) (2009). Based on the foregoing, the Board finds that all relevant facts have been properly and sufficiently developed in this appeal and no further development is required to comply with the duty to assist the Veteran in developing the facts pertinent to the claim. Accordingly, the Board will proceed with appellate review. Initial Increased Ratings In Fenderson v. West, 12 Vet. App. 119 (1999), the Court held that evidence to be considered in the appeal of an initial assignment of a rating disability was not limited to that reflecting the then current severity of the disorder. As such, the Board has considered all evidence of record in evaluating the Veteran's disabilities. Also, in Fenderson, the Court discussed the concept of the "staging" of ratings, finding that in cases where an initially assigned disability evaluation has been disagreed with, it was possible for a Veteran to be awarded separate percentage evaluations for separate periods based on the facts found during the appeal period. Fenderson at 126-28. As such, in accordance with Fenderson, the Board has considered the propriety of assigning initial staged ratings for the Veteran's service- connected disabilities. Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule). 38 C.F.R. Part 4 (2008). 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 conditions in civil occupations. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.1 (2009). In considering the severity of a disability, it is essential to trace the medical history of the Veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41 (2009). Consideration of the whole-recorded history is necessary so that a rating may accurately reflect the elements of any disability present. 38 C.F.R. § 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Although the regulations do not give past medical reports precedence over current findings, the Board is to consider the Veteran's medical history in determining the applicability of a higher rating for the entire period in which the appeal has been pending. Powell v. West, 13 Vet. App. 31, 34 (1999). 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 (2009). In general, all disabilities, including those arising from a single disease entity, are rated separately, and 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). In this instance, the Board finds that the veteran suffers from both neurological and musculoskeletal symptomatology as a result of his GSW. As such, the Board will herein address, as further discussed below, the currently assigned 20 percent for neurological symptomatology and in addition will also afford a 10 percent rating for the veteran's musculoskeletal symptomatology. I. Factual Background Service treatment records dated May 27, 1968, indicate that the Veteran was injured by a self inflicted accidental gunshot wound from a 45 caliber pistol. The bullet entered the Veteran's leg in the inner side of the Veteran's right calf and exited at the right lateral malleolus (ankle). The wound was a through and through. The wound's edges were debrided and completely excised. Some small bone fragments from the fibula were found within the wound cavity and were molded back together manually. The operative report indicated that the gunshot wound resulted in a fracture of the right distal fibula. The operative report further notes that the Veteran was admitted to the hospital on December 9, 1963 for evaluation and discharged on December 11, 1963 to full active duty with no limitations of duty. The November 2006 VA examination notes that there was no subsequent osteomylitis, but there have been cold weather flare-ups with regard to residual pain. The June 2007 rating decision granted service connection at a noncompensable evaluation under Diagnostic Code 5262-5271 (2009). Subsequently, the RO increased the evaluation to a 20 percent rating under Diagnostic Code 5299-8521 because later treatment records indicate that the gunshot wound caused neurologic damage in the form of right peroneal and posterior tibial neuropathy, which limits the function of the right leg. The November 2006 VA examination revealed no circulatory, lymphatics, or nerve damage. There were no muscle limitations with walking or standing and equal calf muscle strength bilaterally. Additionally there was no muscle herniation or adhesion. The Veteran presented with a full range of motion in his ankle with respect to both dorsiflexion and plantarflexion. A subsequent February 2007 VA opinion noted that the Veteran had no disability in relation to muscle group XI with the exception of the location of the scar. The opinion further noted that the Veteran's range of motion upon examination was dorsiflexion 0 to 20 degrees and plantarflexion 0 to 45 degrees with no pain on active or passive range of motion and no additional limitation of motion on repetitive use of the joint due to pain, fatigue, weakness, incoordination or lack of endurance. A June 2007 VA examination also revealed no limitation of motion with the Veteran active and passive motion being 0 to 20 degrees with regard to dorsiflexion and 0 to 45 degrees with regard to plantarflexion. The examiner did note that the Veteran began to experience some pain when plantarflexion was at 30 degrees. X-rays taken in association with this examination revealed residual deformity of the distal right fibula which was likely the result of an old healed fracture, but no acute fracture, dislocation, or substantial degenerative joint disease in the Veteran's ankle's bilaterally. A neurology consult dated May 2007 noted 4/5 weakness with regard to the plantarflexion of the right ankle and 5/5 strength with regard to dorsiflexion of the right ankle. Sensory examination to light touch and pinprick shows intermittent areas of hypalgesia over the right medial aspect of the sole of the foot with vibration senses being impaired over the right big toe. Subsequently, an August 2007 EMG consult indicated that the motor conduction and F-wave latency studies of the right peroneal and posterior tibial nerves showed reduced CMAP amplitudes with slow conduction velocities and mildly prolonged F-wave latencies. The EMG (monopolar) sampling of the right lower extremity muscles showed chronic neurogenic changes in the innervation pattern of the right peroneal and posterior tibial nerves. Finally, in an October 2007 VA examination for peripheral nerves a slight decrease in dorsiflexion strength is noted affecting the peroneal tibial nerve. With regard to sensory function, light touch is decreased. There is no atrophy or abnormal muscle tone and the joint is not affected. Both balance and gait were found to be normal. The examiner diagnosed the Veteran with post traumatic right peroneal and posterior tibial neuropathy. II. Neurological Manifestations As shown above, the record reflects that the Veteran's neuropathy affects the right peroneal and right posterial tibial nerves. Diagnostic Code 8521 provides for a 10 percent evaluation when there is mild incomplete paralysis of the external popliteal nerve (common peroneal). 38 C.F.R. § 4.124a. A 20 percent disability rating is warranted for moderate incomplete paralysis of the external popliteal nerve, and a 30 percent disability rating is warranted for severe incomplete paralysis of the external popliteal nerve. Finally, a 40 percent evaluation is warranted when there is complete paralysis of the external popliteal nerve (common peroneal); foot drop and slight droop of first phalanges of all toes, an inability to dorsiflex the foot, extension (dorsal flexion) of proximal phalanges of toes lost; abduction of foot lost, adduction weakened; or anesthesia covering the entire dorsum of the foot and toes. Id. Under Diagnostic Code 8525, a 10 percent evaluation when there is mild or moderate incomplete paralysis of the posterial tibial nerve. 38 C.F.R. § 4.124a. A 20 percent disability rating is warranted for severe incomplete paralysis of the posterial tibial nerve. Finally, a 30 percent evaluation is warranted when there is complete paralysis of the posterior tibial nerve; paralysis of all muscles of sole of foot, frequently with painful paralysis of a causalgic natures; toes cannot be flexed; adduction is weakened; or plantar flexion is impaired. Id. The Veteran's service-connected residuals of a gun shot wound (GSW) to the right lower extremity involving the right ankle; to include healed fracture distal right fibula and post- traumatic right peroneal and posterior tibial neuropathy have been assigned an initial 20 percent evaluation pursuant to 38 C.F.R. § 4.124a, Diagnostic Code 5299-8521 (2009). Hyphenated diagnostic codes are used when a rating under one diagnostic code requires use of an additional diagnostic code to identify the basis for the evaluation assigned. 38 C.F.R. § 4.27. When an unlisted disease, injury, or residual condition is encountered, requiring rating by analogy, the diagnostic code number is 'built up' with the first two digits being selected from that part of the schedule most closely identifying the part, and the last two digits being '99' for an unlisted condition. Id. The Board observes that the Veteran's neuropathy affects both the peroneal and tibial nerves. In this regard, the Board observes that pyramiding, that is the evaluation of the same disability, or the same manifestation of a disability, under different diagnostic codes, is to be avoided when evaluating a veteran's service-connected disability. 38 C.F.R. § 4.14 (2009). However, it is possible for a veteran to have separate and distinct manifestations from the same injury which would permit rating under several diagnostic codes; the critical element in permitting the assignment of several evaluations 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). In the present case, the neurological impairment (numbness and slight decrease in dorsiflexion) of the right peroneal nerve overlaps or is duplicative of the impairment of the right posterior tibial nerve. Accordingly, the Board is of the opinion that application of Diagnostic Code 8521 is most beneficial to the Veteran as a higher rating requires a showing of symptoms consistent with severe incomplete paralysis while a higher rating under Diagnostic Code 8525 requires symptoms of complete paralysis. As noted above, the Board observes that the Veteran is currently rated at 20 percent under 38 C.F.R. § 4.124a, Diagnostic Code 8521 (2009). As noted above, the Veteran was diagnosed with post traumatic right peroneal and posterior tibial neuropathy by the October 2007 examiner because the August 2007 EMG (monopolar) sampling of the right lower extremity muscles showed chronic neurogenic changes in the innervation pattern of the right peroneal and posterior tibial nerves. The treatment records do not indicate that the Veteran suffers from symptoms consistent with severe incomplete paralysis or complete paralysis of the external popliteal nerve or complete paralysis of the posterior tibial nerve, which is required to receive a higher rating under DC 8521. In consideration of all of the above, the Board finds the Veteran is not entitled to an evaluation in excess of 20 percent under DC 8521 for neurological residuals of a GSW. In reaching its decision, the Board has considered the benefit-of-the-doubt rule. See 38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). However, as a preponderance of the evidence is against the assignment of an evaluation in excess of 20 percent for the Veteran's disability, such rule does not apply and the claim must be denied. III. Musculoskeletal In rating musculoskeletal disabilities with regard to 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). 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. 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 (2009). In evaluating the Veteran's disability, Diagnostic Code 5271, which pertains to limitation of motion of the ankle, was considered. Under this code, moderate limited motion of the ankle warrants a 10 percent rating, and marked limited motion of the ankle warrants a 20 percent rating. 38 C.F.R. § 4.71a, Diagnostic Code 5271 (2009). The Board notes that the November 2006, February 2007 and June 2007 VA examinations all note that the veteran does not have any limitation of motion of the ankle. As such the Board finds that DC 5271 is not applicable. See 38 C.F.R. § 4.71a, Diagnostic Code 5271 (2009) Additionally, Diagnostic code 5262 was considered. Under that diagnostic code, malunion of the tibia and fibula with slight knee or ankle disability is rated 10 percent disabling; malunion of the tibia and fibula with moderate knee or ankle disability is rated 20 percent disabling; and malunion of the tibia and fibula with marked knee or ankle disability is rated 30 percent disabling. Nonunion of the tibia and fibula with loose motion, requiring a brace, is rated 40 percent disabling. Treatment records revealed residual deformity of the distal right fibula, but no acute fracture, dislocation, or substantial degenerative joint disease in the Veteran's ankle's bilaterally. As such DC 5262 is not applicable. See 38 C.F.R. § 4.71a, Diagnostic Code 5262 (2009). Also under consideration was Diagnostic Codes 5311, which addresses Muscle Groups XI. Muscle Group XI 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. Under diagnostic code 5311 a 10 percent evaluation is warranted for a muscle disability that is moderate, 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. 38 C.F.R. § 4.73, Diagnostic Code 5311. In evaluating muscle disabilities, an open comminuted fracture with muscle or tendon damage will be rated as a severe injury of the muscle group involved unless, for locations such as in the wrist or over the tibia, evidence establishes that the muscle damage is minimal. 38 C.F.R. § 4.56(a). A through-and-through injury with muscle damage shall be evaluated as no less than a moderate injury for each group of muscles damaged. 38 C.F.R. § 4.56(b). For VA rating purposes, 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. 38 C.F.R. § 4.56(c). Disabilities resulting from a through and through injury with muscle damage shall be classified as moderate, moderately severe or severe as follows: Moderate disability of muscles: (i) Type of injury: 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. (ii) History and complaint: Service department record or other evidence of in-service treatment for the wound. Record of consistent complaint of one or more of the cardinal signs and symptoms of muscle disability as defined in paragraph (c) of this section, particularly lowered threshold of fatigue after average use, affecting the particular functions controlled by the injured muscles. (iii) Objective findings: Entrance and (if present) exit scars, small or linear, indicating short track of missile through muscle tissue. 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 disability of muscles: (i) Type of injury: 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. (ii) History and complaint: Service department record or other evidence showing hospitalization for a prolonged period for treatment of wound. Record of consistent complaint of cardinal signs and symptoms of muscle disability as defined in paragraph (c) of this section and, if present, evidence of inability to keep up with work requirements. (iii) Objective findings: Entrance and (if present) exit scars indicating track of missile through one or more muscle groups. 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 sound side demonstrate positive evidence of impairment. Severe disability of muscles: (i) Type of injury: 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. (ii) History and complaint: Service department record or other evidence showing hospitalization for a prolonged period for Treatment of wound. Record of consistent complaint of cardinal signs and symptoms of muscle disability as defined in paragraph (c) of this section, worse than those shown for moderately severe muscle injuries, and, if present, evidence of inability to keep up with work requirements. (iii) Objective findings: Ragged, depressed and adherent scars indicating wide damage to muscle groups in missile track. Palpation shows loss of deep fascia or muscle substance, or soft flabby muscles in wound area. Muscles 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. 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 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 electro diagnostic 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. (G) Induration or atrophy of an entire muscle following simple piercing by a projectile. 38 C.F.R. § 4.56(d). For VA rating purposes, 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. 38 C.F.R. § 4.56(c). As noted above, DC 5311 provides for a minimum of a 10 percent rating when there is a through and through injury. A 10 percent rating is for a muscle disability rating that is moderate. The Board finds that the veteran meets the criteria for a 10 percent rating under DC 5311. As previously noted, the veteran suffered a through and through wound of short track from a single bullet, small shell without explosive effect of high velocity missile, residuals of debridement, or prolonged infection that was treated while in-service with evidence of both entrance and exit scars with the residual effect of a lowered threshold of fatigue and some pain. The Board notes that both the November 2006 and the June 2007 examination reports reveal that the veteran suffers from pain in the distal fibula and lateral ankle during cold weather. The veteran reported at the October 2007 that he had experienced pain and numbness in his leg since the incident. Additionally, the Board notes a statement by the veteran's son which notes that the veteran is unsteady on his right leg and that it inhibits him from working. The son describes the veteran's inability to use his right foot while driving a tractor and therefore having to sit sideways in order to use his left leg to operate the machinery. The Board acknowledges the February 2007 examiner's opinion that the veteran suffers from no disability in relation to muscle group XI from his GSW other than the location of a scar, but the majority of the evidence indicates that the veteran suffers from pain and fatigue as a residual of his GSW. While the Board finds that the veteran's disability is deserving of a 10 percent rating, it is not severe enough to be rated any higher under DC 5311. In this regard DC 5311 provides for a 20 percent disability rating for a muscle disability that is moderately severe and a 30 percent disability rating for a muscle disability that is severe. In reviewing the treatment records at the time of the injury as well as subsequent records, there is no indication that the Veteran's gun shot wound resulted in a shattering bone fracture or that it required extensive debridement. While bone fragments were found within the wound cavity, the bone was not shattered. Debridement of the wound edges was not extensive. There is no evidence of prolonged infection or intermuscular scarring. As noted above the Veteran's period of hospitalization was also not prolonged, indeed it was only for two days and the Veteran was discharged with no limitation of duty. Additionally, there is no indication of severe impairment of function with regard to muscles affected when compared to corresponding muscles on the uninjured side. Indeed, the November 2006 VA examination report noted no muscle limitations with walking or standing and equal calf muscle strength bilaterally. And finally there is no evidence of minute multiple scattered foreign bodies indicating intermuscular trauma, no adhesion of a scar to a long bone, no diminished muscle excitability and no muscle atrophy. As such the Board finds that the Veteran's disability does not provide for a moderately severe or severe disability of a muscle under DC 5311. In reaching the above conclusions, the Board notes that the veteran is competent to report on any pain he feels with regard to his disability and consideration is given to the degree of functional loss caused by pain. DeLuca v. Brown, 8 Vet. App. 202 (1995); See also Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007); Espiritu v. Derwinski, 2 Vet. App. 492, 494-95 (1992). In consideration of all of the above, the Board finds the Veteran is entitled to a 10 percent evaluation for musculoskeletal residuals of a GSW to the right lower extremity involving the right ankle; to include healed fracture distal right fibula. In reaching its decision, the Board has considered the totality of the evidence, the Board finds that there exists an approximate balance of evidence for and against the claim. When the evidence for and against the claim is in relative equipoise, by law, the Board must resolve all reasonable doubt in favor of the Veteran. See 38 U.S.C.A. § 5107 (West 2002); 38 C.F.R. § 3.102 (2009). Accordingly, with resolution of doubt in the Veteran's favor, the Board concludes that the veteran is entitled to a 10 percent rating under DC 5311 for his musculoskeletal residuals of a GSW to the right lower extremity involving the right ankle; to include healed fracture distal right fibula. IV. Scar The Veteran's disability has been rated under Diagnostic Code (DC) 7805, the diagnostic code that pertains to scars that cannot be rated under other scar codes and therefore should be rated based on limitation of function of the affected part. See 38 C.F.R. § 4.118, Diagnostic Codes 7800 through 7805. The Board observes that the rating criteria for scars were recently revised, effective October 23, 2008. However, the Board notes that the latest revisions are applicable only to applications for benefits received by VA on or after October 23, 2008. See 73 Fed. Reg. 54708 (September 23, 2008). As the Veteran filed his initial claim in August 2006, the latest revisions are not for consideration in this case. Diagnostic Code 7801 directs that scars other than on the head, face, or neck that are deep or cause limited motion are evaluated as 10 percent disabling for areas exceeding 6 square inches, 20 percent disabling for areas exceeding 12 square inches, 30 percent disabling for areas exceeding 72 square inches, and 40 percent disabling for areas exceeding 144 square inches. Notes following the rating criteria explain (1) scars in widely separated areas, as on two or more extremities or on anterior and posterior surfaces of the extremities or trunk, will be rated separately and combined in accordance with 38 C.F.R. § 4.25, and (2) a deep scar is one associated with underlying soft tissue damage. 38 C.F.R. § 4.118 (2008). Diagnostic Code 7802 provides that scars other than head, face, or neck scars that are superficial and do not cause limited motion will be rated as 10 percent disabling for areas of 144 square inches or greater. Notes following the rating criteria explain (1) scars in widely separated areas, as on two or more extremities or on anterior and posterior surfaces of the extremities or trunk, will be rated separately and combined in accordance with 38 C.F.R. § 4.25, and (2) a superficial scar is one not associated with underlying soft tissue damage. 38 C.F.R. § 4.118 (2008). Diagnostic Code 7803 notes that unstable superficial scars are evaluated as 10 percent disabling. Note (1) following indicates that an unstable scar is one where, for any reason, there is frequent loss of covering of skin over the scar. Note (2) indicates that a superficial scar is one not associated with underlying soft tissue damage. 38 C.F.R. Part 4 (2008). The next criteria, that of Diagnostic Code 7804, provide that superficial scars that are painful on examination are rated as 10 percent disabling. Note (1) following states that a superficial scar is one not associated with underlying soft tissue damage. Note (2) states that a 10 percent evaluation will be assigned for a scar on the tip of a finger or toe even though amputation of the part would not warrant a compensable evaluation (See 38 C.F.R. § 4.68 of this part on the amputation rule). Finally, Diagnostic Code 7805 directs that other scars shall be rated on the limitation of function of the affected part. 38 C.F.R. § 4.118 (2008). As noted above, the Veteran is currently rated under DC 7805. In the June 2007 C&P examination it was revealed that the scar for the entrance wound is 3.5 by 1.25 centimeters (cms) in size, minimally depressed, shiny and white in appearance and nontender, at the time of the examination. The scar for the exit wound is 2.5 by 1.0 cms in size, nonelevated, nondepressed, white and shiny in appearance. However, in the May 2007 neurology consultation report, it is noted that pressure over the right gastrocs at the level of the entry wound scar produces a sharp pain down into the medial malleolus. According to the July 2009 travel board hearing transcript, the Veteran reported recurrent painful sensations upon palpation at the location of the entrance wound. The Veteran stated that the scar is both tender and painful. As such the Board finds that a compensable rating for the Veteran's scar, right lower extremity over lateral malleolus and medial aspect mid calf is warranted under DC 7804. Based on the foregoing evidence, the Board finds that the criteria has not been met for a higher evaluation under the Diagnostic Codes 7801, 7802, 7803, and 7805 for the Veteran's residual scar. The scar is superficial, not deep, and not associated with soft tissue damage or instability. Similarly, there is no evidence that the scar has impacted the Veteran's functioning ability of his right leg. Also, the scar does not approach the area size needed for a compensable evaluation under DC 7802. However, the Board acknowledges that under Diagnostic Code 7804, a 10 percent evaluation is warranted when a superficial scar, one that is not associated with underlying soft tissue damage, is painful on examination. As noted above, the Veteran indicated at his July 2009 travel board hearing that the entrance wound scar is painful on palpation and the May 2007 neurology consultation report notes that pressure on the entry wound scar produces a sharp pain. The Board finds that not only is the Veteran is credible and can attest to observable symptomatology, there is evidence that the scar is painful on examination. As such, the Board finds that the evidence allows for an increase in disability rating to 10 percent, under DC 7804. As a preponderance of the evidence is in favor of the assignment of a disability rating of 10 percent, but no more, as explained above, the benefit-of-the-doubt rule does apply, and the claim must be granted. 38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). Consideration has been given to the potential application of the various provisions of 38 C.F.R. Parts 3 and 4, as required by Schafrath v. Derwinski, 1 Vet. App. 589 (1991). However, the Board finds no basis upon which to assign a higher evaluation, than is assigned herein, for the Veteran's service-connected residuals of a gun shot wound (GSW) to the right lower extremity involving the right ankle; to include healed fracture distal right fibula and post-traumatic right peroneal and posterior tibial neuropathy because the competent evidence fails to reveal any additional functional impairment associated with such disability to warrant consideration of additional alternate rating codes. The evidence does not show that symptomatology associated with the Veteran's residuals of a gun shot wound (GSW) to the right lower extremity involving the right ankle; to include healed fracture distal right fibula and post-traumatic right peroneal and posterior tibial neuropathy more nearly approximates the schedular criteria associated with a higher or separate rating at any time relevant to the appeal period. Therefore, a staged rating is not in order and the currently assigned 10 percent rating under DC 5311 and 20 percent rating under DC 5299-8521 are appropriate with regard to the residuals of a gun shot wound (GSW) to the right lower extremity involving the right ankle; to include healed fracture distal right fibula and post-traumatic right peroneal and posterior tibial neuropathy, for the entire appeal period. V. Extraschedular Consideration Finally, in Thun v. Peake, 22 Vet. App. 111, 115 (2008), the Court held that the determination of whether a Veteran is entitled to an extra-schedular rating under 38 C.F.R. § 3.321(b) is a three-step inquiry, beginning with a threshold finding that the evidence before VA "presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate." In other words, the Board must compare the level of severity and symptomatology of the Veteran's disability with the established criteria found in the rating schedule for that disability; if the criteria reasonably describe the Veteran's disability level and symptomatology, then the Veteran's disability picture is contemplated by the rating schedule. Id. Furthermore, the Board notes that there is no evidence of record that the Veteran's disability warrants a higher rating based on an extraschedular basis. 38 C.F.R. § 3.321(b) (2008). Any limits on the Veteran's employability due to his disability have been contemplated in the current rating. The evidence also does not reflect that the Veteran's residuals of a GSW have necessitated any frequent periods of hospitalization or caused marked interference with employment. Indeed, the November 2006 VA examination report notes that the Veteran's residual ankle disability has no limitations on the Veteran's occupation as a farmer. Likewise, while a June 2007 VA examination report notes that the Veteran was not employed, the examiner observes that the Veteran's service connected residuals of a gunshot wound of the right lower extremity did not affect his daily activities. Thus, the record does not show an exceptional or unusual disability picture not contemplated by the regular schedular standards that would warrant the assignment of an extraschedular rating. Since application of the regular schedular standards is not rendered impracticable in this case, the Board is not required to refer this matter to the RO for the procedural actions outlined in 38 C.F.R. § 3.321(b)(1) (2009) for consideration of the assignment of an extraschedular evaluation. See Bagwell v. Brown, 9 Vet. App. 337 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). The Board has considered whether a claim for a total disability rating due to individual unemployability resulting from service-connected disability (TDIU) has been raised. In this regard, the Board notes that in Rice v. Shinseki, 22 Vet. App. 447 (2009), the Court held that a TDIU claim is part of an increased rating claim when such claim is raised by the record. While the Veteran reported that he was retired at his Board hearing, he has not alleged that his residuals of a gunshot wound resulted in an inability to work. Additionally, the record does not reflect that any health care provider has suggested that the Veteran is unable to work due to his residual gunshot wound and the Veteran himself has made no such assertion. Accordingly, the issue of entitlement to TDIU has not been raised. (CONTINUED ON NEXT PAGE) ORDER An initial increased rating, in excess of 20 percent, for neurological residuals of a gun shot wound (GSW) to the right lower extremity involving the right ankle; to include post- traumatic right peroneal and posterior tibial neuropathy is denied. An initial 10 percent rating for musculoskeletal residuals of a GSW to the right lower extremity involving the right ankle; to include healed fracture distal right fibula is granted. An initial 10 percent evaluation for scar, right lower extremity over lateral malleolus and medial aspect mid calf is granted. ____________________________________________ DAVID L. WIGHT Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs