Citation Nr: 1007696 Decision Date: 03/02/10 Archive Date: 03/11/10 DOCKET NO. 06-38 900 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Providence, Rhode Island THE ISSUES 1. Entitlement to an initial disability evaluation in excess of 10 percent from March 2, 2006 to July 26, 2009 and in excess of 30 percent from July 27, 2009 for the service- connected posttraumatic stress disorder (PTSD). 2. Entitlement to a disability evaluation in excess of 20 percent for the service-connected shell fragment wound residuals to the right thigh with damage to the femoral nerve. 3. Entitlement to an increased disability rating in excess of 10 percent for service-connected scar as the residual of a shell fragment wound to the right thigh. REPRESENTATION Appellant represented by: Rhode Island Division of Veterans Affairs WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD C. L. Krasinski, Counsel INTRODUCTION The Veteran served on active duty from December 1965 to December 1967. He was awarded a Purple Heart while serving in the Republic of Vietnam. This case originally came before the Board of Veterans' Appeals (Board) on appeal from a rating decisions dated in July 2006, January 2008 and September 2009. Service connection was granted for PTSD in July 2006 and a 10 percent rating was assigned effective on March 2, 2006. In a September 2009 rating decision, the rating was increased to 30 percent effective on July 27, 2009. The Veteran presented testimony at a videoconference hearing before the undersigned Veterans Law Judge in December 2009. A transcript of the hearing is associated with the Veteran's claims folder. The issues of a higher initial rating for the service- connected PTSD and a separate rating for the service- connected shell fragment wound to the right thigh on the basis of muscle damage and any claim for a total compensation rating based on individual unemployability are addressed in the REMAND portion of this document and are being remanded to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. The service-connected disability picture attributable to the residuals of the shell fragment wound is shown to more nearly approximate that of severe incomplete paralysis of the femoral nerve. 2. The service-connected scar as a residual of a shell fragment wound to the right thigh is superficial, hypopigmented, and stable; is located in the anterior right thigh and is 4.6 centimeters by 1 centimeter in size; and is manifested by complaints of pain, tenderness and hypesthesia on palpation without adherence to the underlying tissue, elevation, induration or inflexibility of the skin in the area of the scar, inflammation, edema, keloid formation, or functional impairment of the thigh due to the scar. CONCLUSIONS OF LAW 1. The criteria for the assignment of an 30 percent rating, but not higher for the service-connected residuals of a shell fragment wound to the right thigh on the basis of damage to the femoral nerve have been met. 38 U.S.C.A. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.40, 4.45, 4.55, 4.56, 4.71a, 4.73, 4,124a including Diagnostic Codes 5250, 5252, 5314, 8526 (2009). 2. The criteria for the assignment of an evaluation in excess of 10 percent for the service-connected scar as a residual of a shell fragment wound to the right thigh have not been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.118 including Diagnostic Codes 7801-7805 (in effect prior to October 23, 2008). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duty to Notify and Duty to Assist 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; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim and of the relative duties of the VA and the claimant for procuring that evidence. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). The Board concludes that the Veteran has been afforded appropriate notice under VCAA. The RO provided VCAA notice letters to the Veteran in February 2006, April 2006, November 2007, May 2008, and October 2008. The letters notified the Veteran of what information and evidence must be submitted to substantiate the claim for an increased rating, as well as what information and evidence must be provided by the Veteran and what information and evidence would be obtained by VA. The Veteran was also told to inform VA of any additional information or evidence that VA should have, and was told to submit evidence in support of his claim to the RO. The content of the letters complied with the requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b). The requirements of VCAA also include notice of a disability rating and an effective date for award of benefits if service connection is granted. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The May 2008 and October 2008 letters provided the Veteran with notice of the laws regarding degrees of disability or effective dates. The claims were readjudicated in November 2008 and August 2009. The Board finds that all relevant evidence has been obtained with regard to the Veteran's claim, and the duty to assist requirements have been satisfied. All available service treatment records were obtained. VA treatment records dated from October 2001 to November 2008 are associated with the claims folder. There is no identified relevant evidence that has not been accounted for. The Veteran underwent VA neurological, muscle, and scar examinations in March 2006, November 2007, December 2007, July 2009, and August 2009 to obtain medical evidence as to the nature and severity of the Veteran's residuals of the shell fragment wound to the right thigh to include the scar, muscle injury, and nerve damage to the femoral nerve. Under the circumstances, the Board finds that there is no reasonable possibility that further assistance would aid the Veteran in substantiating the claim. Hence, no further notice or assistance to the Veteran is required to fulfill VA's duty to assist him in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000); Dela Cruz v. Principi, 15 Vet. App. 143 (2001). Legal Criteria Disability evaluations are determined by the application of VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4. 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 the residual conditions in civil occupations. 38 U.S.C.A. § 1155; 38 C.F.R. §§ 3.321(a), 4.1. 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. Where entitlement to compensation has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Nevertheless, where the evidence contains factual findings that show a change in the severity of symptoms during the course of the rating period on appeal, assignment of staged ratings would be permissible. Hart v. Mansfield, 21 Vet. App. 505 (2007). In Fenderson v. West, 12 Vet. App. 119 (1999), it was held that evidence to be considered in the appeal of an initial assignment of a disability rating was not limited to that reflecting the then current severity of the disorder. Cf. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). In Fenderson, the Court of Appeals for Veterans Claims (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. Id. at 126-127. The 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 and functional loss due to weakness, fatigability, incoordination or pain on movement of a joint under 38 C.F.R. § 4.45. See DeLuca v. Brown, 8 Vet. App. 202 (1995). Disability of the musculoskeletal system is primarily the inability to perform the normal working movements of the body with normal excursion, strength, speed, coordination and endurance. 38 C.F.R. § 4.40. Consideration is to be given to whether there is less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, pain on movement, swelling, deformity or atrophy of disuse, instability of station, or interference with standing, sitting, or weight bearing. 38 C.F.R. § 4.45. The evaluation of the same disability under various diagnoses is to be avoided. Both the use of manifestations not resulting from service-connected disease or injury in establishing the service-connected evaluation, and the evaluation of the same manifestation under different diagnoses are to be avoided. 38 C.F.R. § 4.14 (2009). The Court has emphasized that a claimant may not be compensated twice for the same symptomatology as "such a result would overcompensate the claimant for the actual impairment of his earning capacity." Brady v. Brown, 4 Vet. App. 203, 206 (1993). Notwithstanding 38 C.F.R. § 4.14, VA is required to provide separate ratings for separate manifestations of the same disability which are not duplicative or overlapping. Esteban v. Brown, 6 Vet. App. 259 (1994), 38 C.F.R. § 4.25 (2009). Rating Muscle Disabilities Muscle injuries are evaluated pursuant to criteria at 38 C.F.R. §§ 4.55, 4.56, and 4.73. For rating purposes, the skeletal muscles of the body are divided into 23 muscle groups in 5 anatomical regions. 38 C.F.R. § 4.55(b) (2009). The specific bodily functions of each group are listed at 38 C.F.R. § 4.73 (2009). Generally, a muscle injury rating will not be combined with a peripheral nerve paralysis rating for the same body part, unless the injuries affect entirely different functions. 38 C.F.R. § 4.55(a) (2009); see also 38 C.F.R. § 4.14 (2009). There will be no rating assigned for muscle groups which act upon an ankylosed joint, with exceptions to this rule relating only to the knee and the shoulder. See 38 C.F.R. § 4.55(c) (2009). Additionally, the combined evaluation of muscle groups acting on a single unankylosed joint must be lower than the rating for unfavorable ankylosis of that joint, except when muscles groups I and II are acting on the shoulder. 38 C.F.R. § 4.55(d) (2009). When compensable muscle group injuries are in the same anatomical region, but do not act on the same joint, the rating for the most severely injured muscle group will be increased by one level, and used as the combined evaluation for all affected muscle groups. 38 C.F.R. § 4.55(e) (2009). Otherwise, for muscle group injuries in different anatomical regions (not acting on ankylosed joints), each injury is separately rated, and ratings are then combined under VA's "combined ratings table" at 38 C.F.R. § 4.25, for the purposes of determining schedular compensation ratings. The severity of the muscle disability is determined by application of criteria at 38 C.F.R. § 4.56. First, an open comminuted fracture with muscle or tendon damage will be rated as severe, unless (for locations such as the wrist or over the tibia) the evidence establishes that the muscle damage is minimal. 38 C.F.R. § 4.56(a) (2009). 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) (2009). 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) (2009). Under Diagnostic Codes 5301 to 5323, muscle injuries disabilities are rated as slight, moderate, moderately severe or severe according to criteria based on the type of injury, the history and complaint, and objective findings. 38 C.F.R. § 4.56(d) (2009). Diagnostic Code 5314 pertains to Muscle Group XIV, which affects extension of the knee; simultaneous flexion of hip and flexion of knee; tension of fascia lata and iliotibial (Maissiat's) band, acting with XVII in postural support of body; acting with hamstrings in synchronizing hip and knee. A slight impairment in Muscle Group Function XIV receives a noncompensable rating. A moderate impairment receives a 10 percent rating; a moderately severe impairment receives a 30 percent rating; and a severe impairment receives a 40 percent rating. 38 C.F.R. § 4.73, Diagnostic Code 5314. 38 C.F.R. § 4.68 provides that the combined rating for disabilities of an extremity shall not exceed the rating for the amputation at the elective level, were amputation to be performed. 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. 38 C.F.R. § 4.56. The type of injury associated with a moderate muscle disability is 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. A history with regard to this type of injury should include service department evidence or other evidence of in-service treatment for the wound and consistent complaints of one or more of the cardinal signs and symptoms of muscle disability, particularly lowered threshold of fatigue after average use affecting the particular functions controlled by the injured muscles. Objective findings should include entrance and (if present) exit scars, small or linear, indicating short track of missile through muscle tissue and some loss of deep fascia or muscle substance or impairment of muscle tonus and loss of power or lowered threshold of fatigue when compared to the sound side. 38 C.F.R. § 4.56(d)(2). The type of injury associated with a moderately severe muscle disability is a through and through or deep penetrating wound by a small high-velocity missile or large low-velocity missile, with debridement, prolonged infection, or sloughing of soft parts, and intermuscular scarring. A history with regard to this type of injury should include prolonged hospitalization in service for treatment of wound, consistent complaints of cardinal signs and symptoms of muscle disability, and, if present, evidence of inability to keep up with work requirements. Objective findings should include entrance and (if present) exit scars indicating the track of the missile through one or more muscle groups, and indications on palpation of loss of deep fascia, muscle substance, or normal firm resistance of muscles compared with the sound side. Tests of strength and endurance compared with sound side should demonstrate positive evidence of impairment. 38 C.F.R. § 4.56(d)(3). The type of injury associated with a severe muscle disability is a through and through or deep penetrating wound by a small 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, and intermuscular binding and scarring. A history with regard to this type of injury should include prolonged hospitalization in service for treatment of wound, consistent complaints of cardinal signs and symptoms of muscle disability, worse than those shown for moderately severe muscle injuries, and, if present, evidence of inability to keep up with work requirements. Objective findings should include ragged, depressed, and adherent scars indicating wide damage to muscle groups in missile track, and indications on palpation of loss of deep fascia, muscle substance, or soft flabby muscles in wound area. Also, muscles swell and harden abnormally in contraction. Tests of strength, endurance, or coordinated movements compared with the corresponding muscles of the uninjured side should 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 missile; (B) adhesion of scar to one of the long bones, scapula, pelvic bone, 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). Rating Peripheral Nerve Disabilities In rating peripheral nerve injuries and their residuals, attention should be given to the site and character of the injury, the relative impairment and motor function, trophic changes, or sensory disturbances. 38 C.F.R. § 4.120 (2009). Under 38 C.F.R. § 4.124a, disability from neurological disorders is rated from 10 to 100 percent in proportion to the impairment of motor, sensory, or mental function. With partial loss of use of one or more extremities from neurological lesions, rating is to be by comparison with mild, moderate, severe, or complete paralysis of the peripheral nerves. The term "incomplete paralysis" indicates a degree of lost or impaired function substantially less than the type of picture for complete paralysis given with each nerve, whether due to varied level of the nerve lesion or to partial regeneration. When the involvement is only sensory, the rating should be for the mild, or at most, the moderate degree. In rating peripheral nerve disability, neuritis, characterized by loss of reflexes, muscle atrophy, sensory disturbances, and constant pain, at times excruciating, is to be rated on the scale provided for injury of the nerve involved, with a maximum equal to severe, incomplete paralysis. The maximum rating to be assigned for neuritis not characterized by organic changes referred to in this section will be that for moderate incomplete paralysis, or with sciatic nerve involvement, for moderately severe incomplete paralysis. 38 C.F.R. § 4.123 (2009). Neuritis and neuralgia of the peripheral nerves is to be rated with a maximum equal to moderate incomplete paralysis. 38 C.F.R. §§ 4.123, 4.124 (2009). Neuralgia, cranial or peripheral, characterized usually by a dull and intermittent pain, of typical distribution so as to identify the nerve, is to be rated on the same scale, with a maximum equal to moderate incomplete paralysis. See nerve involved for diagnostic code number and rating. 38 C.F.R. § 4.124. Under Diagnostic Code 8526, relating to anterior crural (femoral) nerve, a 10 percent rating is warranted for mild incomplete paralysis, a 20 percent rating is warranted for moderate incomplete paralysis of the anterior crural nerve, and a 30 percent rating is warranted for severe incomplete paralysis of the anterior crural nerve. A 40 percent rating is warranted for complete paralysis of the quadriceps extensor muscles. 38 C.F.R. § 4.124a, Diagnostic Code 8526. Rating Scars Scars, other than head, face, or neck, that are deep or that cause limited motion are rated as follows: area or areas exceeding 144 square inches (929 sq. cm.) are rated as 40 percent disabling; area or areas exceeding 72 square inches (465 sq. cm.) are rated as 30 percent disabling; area or areas exceeding 12 square inches (77 sq. cm.) are rated as 20 percent disabling; and area or areas exceeding 6 square inches (39 sq. cm.) are rated as 10 percent disabling. 38 C.F.R. § 4.118, Diagnostic Code 7801 (in effect prior to October 23, 2008). A deep scar is one associated with underlying soft tissue damage. 38 C.F.R. § 4.118, Diagnostic Code 7801, Note 2. Scars, other than head, face, or neck, that are superficial and that do not cause limited motion covering an area or areas of 144 square inches (929 sq. cm.) or greater are rated as 10 percent disabling. 38 C.F.R. § 4.118, Diagnostic Code 7802 (in effect prior to October 23, 2008). A superficial scar is one not associated with underlying soft tissue damage. 38 C.F.R. § 4.118, Diagnostic Code 7802, Note 2. Diagnostic Code 7803 provides that a 10 percent rating is warranted for scars that are superficial and unstable. 38 C.F.R. § 4.118, Diagnostic Code 7803 (in effect prior to October 23, 2008). Note 1 to Diagnostic Code 7803 provides that an unstable scar is one where, for any reason, there is frequent loss of covering of skin over the scar. Note 2 to Diagnostic Code 7803 provides that a superficial scar is one not associated with underlying soft tissue damage. Scars which are superficial and painful on examination are rated as 10 percent disabling. 38 C.F.R. § 4.118, Diagnostic Code 7804 (in effect prior to October 23, 2008). A superficial scar is one not associated with underlying soft tissue damage. 38 C.F.R. § 4.118, Diagnostic Code 7804, Note 1. Other scars are rated based upon limitation of function of affected part. 38 C.F.R. § 4.118, Diagnostic Code 7805 (in effect prior to October 23, 2008). Standard of Review Once the evidence has been assembled, it is the Board's responsibility to evaluate the evidence. 38 U.S.C.A. § 7104(a). The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107; 38 C.F.R. §§ 3.102, 4.3. In Gilbert v. Derwinski, 1 Vet. App. 49, 54 (1990), the Court stated that "a veteran need only demonstrate that there is an 'approximate balance of positive and negative evidence' in order to prevail." To deny a claim on its merits, the evidence must preponderate against the claim. See also Alemany v. Brown, 9 Vet. App. 518, 519 (1996). Analysis Entitlement to a disability evaluation in excess of 20 percent for the shell fragment wound to the right thigh on the basis of damage to the femoral nerve. In applying the law to the existing facts, the Board finds that a 30 percent evaluation is warranted for the shell fragment wound to the right thigh with damage to the femoral nerve under Diagnostic Code 8526 because the medical evidence shows that this disability is productive of severe impairment. The medical evidence shows that the Veteran has severe causalgic pain in the right thigh secondary to the right femoral nerve injury. A March 2006 VA neurological examination report indicates that the Veteran had complaints of severe continuous pain in the right thigh. The Veteran stated that the pain interfered with his daily life and was exacerbated by activity. An examination revealed that motor, sensory and cerebellar examination was non-focal. The diagnosis was that of severe causalgic pain at the site of the injury. A March 2006 VA muscle examination report stated that the Veteran reported having a sharp stabbing pain in the right thigh. He reported that the pain was an 8 out of a 10, with the 10 being the worst pain. He stated that the pain disrupted his sleep. The examination showed that the Veteran walked with an antalgic gait and used a cane. The right and left thighs were symmetrical. Muscle strength was 5/5. There was normal range of motion of the legs without difficulty. A November 2007 VA neurological examination report indicates that the Veteran reported having continuous and severe pain in the right thigh. The pain was exacerbated by activity. The pain was a 6 out of a 10. The examination revealed normal muscle tone, bulk and strength in all muscle groups in the right lower extremity. The diagnosis was that of status post shrapnel wound and surgery to the right upper anterior thigh and posttraumatic causalgic pain at the site of the injury likely severe. The examiner indicated that there was no change in the neurological examination from March 2006. A December 2007 VA examination noted that the right thigh circumference was 57 centimeters and the left thigh circumference was 57.5 centimeters. A July 2009 VA neurological examination report indicates that there was no evidence of atrophy and the muscles of the left and right thighs were symmetrical. He reported having give- away weakness in the right quadriceps secondary to pain. The impression was that of causalgia secondary to the right femoral nerve injury. The examiner noted that the pain appeared to be worse. An August 2009 VA muscle examination report indicates that the Veteran walked with an antalgic gait and used a cane. He was taking Gabapentin, Ibuprofen, and amitriptyline for the pain in the right thigh. The Veteran reported that the medications helped for a short period of time but the pain returned. On examination, the Veteran had equal muscle mass in the thighs without atrophy. Muscle strength of the right hip extensor was 4.5/5. The Veteran had increased pain in the right thigh after repetitive movements. Pain was the predominant factor. The VA treatment records show that the Veteran was treated for severe neuropathic pain. An October 2004 VA treatment record shows that the Veteran reported having severe intermittent right thigh pain with both a neuritic and myalgic component. Neurontin was started. The VA treatment records dated in September 2005, September 2006, and September 2007 show that the Veteran continued to have severe neuropathic and chronic myalgic pain. A September 2008 VA treatment record notes that the Veteran's pain was not well controlled. 38 C.F.R. § 4.123 provides that in rating peripheral nerve disability, neuritis, characterized by loss of reflexes, muscle atrophy, sensory disturbances, and constant pain, at times excruciating, is to be rated on the scale provided for injury of the nerve involved, with a maximum equal to severe, incomplete paralysis. 38 C.F.R. § 4.123. The Board finds that the medical evidence of record supports the assignment of a 30 percent rating under Diagnostic Code 8526 for the service-connected shell fragment wound to the right thigh with damage to the femoral nerve based upon the findings of severe and continuous neuropathic pain and causalgia. There are no findings of loss of reflexes or muscle atrophy. However, the medical evidence shows that severe neuropathic pain is the predominant symptom and there are also objective findings of sensory loss to the affected nerve as shown upon neurological examination in July 2009. The July 2009 VA examination showed sensory loss to light touch and pain in an area of 10 to 12 centimeters around the scar on the right thigh. The medical evidence shows that the Veteran has functional impairment in the right leg and thigh due to the pain with give-way weakness and increased pain with repetitive movement. There is objective evidence of antalgic gait. VA regulations require that a claimant's pain be considered in evaluating the disability at issue. See 38 C.F.R. §§ 4.40, 4.45; Schafrath v. Derwinski, 1 Vet. App. 589, 593 (1991). Based upon the evidence of record, the Board finds the Veteran's service-connected shell fragment wound to the right thigh with damage to the femoral nerve is currently productive of a disability picture that more nearly approximates that of severe incomplete nerve paralysis. A rating in excess of 30 percent under Diagnostic Code 8526 for the service-connected shell fragment wound to the right thigh with damage to the femoral nerve neuropathy of the right femoral nerve is not warranted. The 30 percent rating is the maximum rating possible under Diagnosis Code 8526 in the absence of complete paralysis of quadriceps extensor muscles. The overall evidence in this case is not indicative of complete paralysis of the femoral nerve with paralysis of the quadriceps extensor muscles. Although the Veteran has severe neuropathic pain in the right thigh, some function remains in the right thigh. Therefore, a rating in excess of 30 percent is not warranted on the basis of nerve damage. The Board finds that the 30 percent rating under Diagnostic Code 8526 for causalgia and neuropathic pain due to the femoral nerve injury is separate and distinct from the criteria used to evaluate the Veteran's scar. As discussed, the neuropathic pain is severe and constant; it occurs with activity and at times with rest and causes weakness and giving-way of the right leg. The neuropathic pain due to the femoral nerve injury affects the entire right thigh and leg. A separate 10 percent rating is assigned for the scar as a residual of the shell fragment wound of the right thigh under Diagnostic Code 7804 for pain on palpation of the scar. The scar pain is separate and distinct from the neuropathic pain since it only occurs with palpation of the scar and it is only in the area of the scar. The Board finds that a separate 30 percent rating under Diagnostic Code 8526 in addition to the 10 percent rating under Diagnostic Code 7804, is not pyramiding under 38 C.F.R. § 4.14 since the disability rating under Diagnostic Code 8526 is for the neurological disability manifested by constant neuropathic pain and resulting weakness and the rating assigned under Diagnostic Code 7804 is for the pain due to the scar and this pain occurs with palpation and is not constant. See 38 C.F.R. § 4.14; Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994) (where a veteran with a service- connected facial injury sought an increased rating, the veteran's disability was to be properly assigned compensable ratings under separate codes for disfigurement, tender and painful scars and muscle injury). The residuals scarring was noted to be depressed, but not ragged or adherent. There is no indication on palpation of loss of deep fascia, muscle substance, or soft flabby muscles in wound area. The right thigh muscles do not swell or harden abnormally in contraction. There is no evidence of severe impairment of strength or coordination when compared with the corresponding muscles of the uninjured side. As would be expected, there was evidence of impairment endurance due to pain. See the VA examination reports dated in March 2006, November 2007, December 2007, July 2009 and August 2009. The X-ray evidence shows the presence of a metallic density in the posterior medical thigh. See the September 2003 x-ray examination report. There is no evidence of adhesion of scar to one of the bones, visible or measurable atrophy; atrophy of muscle groups not in the track of the missile, or induration or atrophy of an entire muscle. See the VA examination reports dated in March 2006, November 2007, December 2007, July 2009 and August 2009. The shell fragment wound to the right thigh may be rated, in the alternative, under the Diagnostic Codes pertinent to orthopedic disabilities. A rating in excess of 30 percent is available under Diagnostic Code 5250 for ankylosis of the hip and under Diagnostic Code 5252 for limitation of flexion of the thigh. 38 C.F.R. § 4.71a, Diagnostic Codes 5250 and 5252. However, the medical record reflects that the Veteran was able to flex the right hip to 125 degrees which is full flexion. See the March 2006 and August 2009 VA examination reports. There is no evidence suggesting ankylosis of the right hip joint. Thus a rating in excess of 30 percent is not warranted under Diagnostic Code 5250. A rating in excess of 30 percent is not warranted under Diagnostic Code 5252, because the Veteran is able to flex the right thigh well beyond 10 degrees. The veteran had full motion of the right thigh despite the severe pain. See 38 C.F.R. §§ 4.40 and 4.45 and DeLuca v. Brown, 8 Vet. App. 202, 206-07 (1995). Thus a rating in excess of 30 percent is not warranted under Diagnostic Code 5252. Finally, in view of the Court's holding in Hart, supra, the Board has considered whether the Veteran was entitled to staged ratings for his service-connected shell fragment wound to the right thigh, as the Court indicated can be done in this type of case. As demonstrated, the disability has essentially remained stable for the entire appeal period and there is no credible evidence for application of any staged rating. Entitlement to an increased disability rating in excess of 10 percent for service-connected scar as a residual of a shell fragment wound to the right thigh. The service-connected scar as a residual of a shell fragment wound to the right thigh is superficial, hypopigmented, and stable. It is located in the anterior right thigh and is 4.6 centimeters by 1 centimeter in size. There is evidence of pain, tenderness and hypesthesia on palpation. See the VA scar examination reports dated in March 2006, December 2007, and August 2009. There is no objective evidence of adherence to the underlying tissue, elevation, induration or inflexibility of the skin in the area of the scar, inflammation, edema, keloid formation or functional impairment of the thigh due to the scar. A 10 percent rating is currently assigned to the scar under Diagnostic Code 7804, scars, superficial, painful on examination. An evaluation in excess of 10 percent is not possible under Diagnostic Code 7804. 38 C.F.R. § 4.118, Diagnostic Code 7804. Moreover, an evaluation in excess of 10 percent is not warranted under Diagnostic Code 7801, scars other than the head, face or neck that are deep or that cause limitation of motion. See 38 C.F.R. § 4.118, Diagnostic Code 7801. The scar also measures 4.6 centimeters by 1 centimeter; thus, it does not exceed 77 square centimeters. The scar is superficial and there is no evidence that this scar is associated to underlying soft tissue. Diagnostic Code 7805 also provides for rating of a scar on the basis of limitation of function of the part affected. The medical evidence shows that right thigh scar itself is not productive of an ascertainable limitation of motion or functional loss that would be separately ratable in this case. See the August 2009 VA scar examination. Thus, a higher rating is not warranted under Diagnostic Code 7805. The Board finds that a staged rating is not warranted in this case. The Board has examined the record and finds that a 10 percent evaluation is warranted for the service-connected scar for the entire appeal period. It appears from the medical evidence that the disability has remained essentially constant over the entire period. Accordingly, a staged rating under Hart is not warranted. There is no showing that the service-connected scarring in and of itself has resulted in marked interference with employment or required any periods of recent hospitalization. Nor does it otherwise presents an unusual or exceptional disability picture that would call into question the application of the established rating standards. The Board finds that the Veteran's manifestations are fully addressed by the criteria in the Rating Schedule. The Veteran's symptoms are contemplated under the rating schedule. In the absence of unanticipated factors, the criteria for submission for assignment of an extraschedular rating pursuant to 38 C.F.R. § 3.321(b)(1) are not met. See Bagwell v. Brown, 9 Vet. App. 237 (1996); Floyd v. Brown, 9 Vet. App. 88 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). In conclusion, a disability evaluation in excess of 10 percent the service-connected scar of the right thigh due to a shell fragment under the provisions of 38 C.F.R. § 4.118 for the period of the appeal must be denied. ORDER An increased rating of 30 percent, but no more for the service-connected residuals of the shell fragment wound to the right thigh on the basis of damage to the femoral nerve is granted, subject to the regulations controlling disbursement of VA monetary benefits. An increased rating in excess of 10 percent for service- connected scar as the residual of a shell fragment wound to the right thigh is denied. REMAND The Veteran asserts that he had to retire from his position with the highway maintenance department because of his right leg pain and weakness. See the VA examination reports dated in September 2003, November 2007, August 2009. The November 2007 VA psychiatric examination report indicates that the Veteran reported that he operated heavy equipment for the Highway Department. He would drive a truck to salt the highways in the winter. The Veteran stated that his right leg pain worsened and he had to take a lot of sick leave. He stated that in 2003, he felt he had to retire because he could not longer run heavy equipment with his leg pain. The Veteran submitted evidence showing that he retired in 2003. Moreover, to fully address the Veteran's assertions of incapacity caused by the service-connected shell fragment wound residuals, the Board finds that another VA examination is required to evaluate the current extent of any separately ratable muscle damage cause to the service-connected injury in service. There is evidence of record which tends to show that the service-connected PTSD may have worsened since the July 2009 VA examination. At the hearing before the Board in December 2009, the Veteran stated that his PTSD had worsened and he sought treatment a few months ago. Because of the evidence of possible worsening since the last examination, a new examination is needed to determine the severity of the PTSD. Snuffer v. Gober, 10 Vet. App. 400 (1997); Caffrey v. Brown, 6 Vet. App. 377 (1994); VAOPGCPREC 11-95 (1995). Accordingly, these remaining matters are REMANDED to the RO for the following action: 1. The RO should take appropriate steps to obtain all records of the Veteran's treatment of the shell fragment wound to the right thigh with injury to the femoral nerve from the VA Healthcare System dated from November 2008. 2. The RO should schedule the Veteran for a psychiatric examination to determine the severity of the service- connected PTSD. The Veteran's VA claims folder must be made available to the examiner for review in connection with the examination. The examiner should identify all symptoms and functional impairment due to the PTSD (i.e., distinguish the symptoms attributable to the service-connected PTSD only versus those attributable to non-service-connected psychiatric disorder(s)). The examiner should provide a global assessment of functioning (GAF) score based on the Veteran's service-connected PTSD. The examiner should indicate whether the PTSD causes occupational and social impairment with reduced reliability and productivity, impairment of short- and long-term memory, impaired judgment, impaired abstract thinking, disturbances of motivation and mood, or difficulty in establishing effective work and social relationships; or occupational and social impairment, with deficiencies in most areas, including work, school, family relations, judgment, thinking, or mood; or total occupational and social impairment. Any opinions expressed by the examiner must be accompanied by a complete rationale. 3. The RO should schedule the Veteran for a VA examination to determine the current extent of the muscle damage due to the service-connected shell fragment wound of the right thigh. The pertinent evidence in the claims file, along with a copy of this remand, must be made available to the examiner for review. All indicated testing should be done in this regard. The examiner in this regard should assess the severity of the service-connected right thigh wound residuals in terms of overall impairment of his ability to perform substantially gainful employment, as asserted by the Veteran. 4. Following completion of all indicated development, the RO should readjudicate the Veteran's claims for a higher initial rating for the service-connected PTSD and for a separate compensable rating for the service-connected shell fragment wound residuals of the basis of muscle damage, as well as any claim for a total compensation rating based on individual unemployability in light of all the evidence of record. If any benefit sought on appeal is not granted, a fully responsive Supplemental Statement of the Case should be furnished to the Veteran and his representative and they should be afforded an appropriate period for response. Thereafter, if indicated, the case should be returned to the Board for the purpose of appellate disposition. The Veteran has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2009). ______________________________________________ STEPHEN L. WILKINS Veterans Law Judge Board of Veterans' Appeals Department of Veterans Affairs