Citation Nr: 1031294 Decision Date: 08/19/10 Archive Date: 08/24/10 DOCKET NO. 02-11 418 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUES 1. Entitlement to an initial disability evaluation in excess of 20 percent for service-connected right leg shrapnel fragment wound residuals with Muscle Group XIV injury and scars. 2. Entitlement to an initial compensable disability evaluation for service-connected right axilla shrapnel fragment wound residuals. 3. Entitlement to an initial compensable disability evaluation for service-connected post-operative right inguinal hernia repair residuals. REPRESENTATION Appellant represented by: National Association of County Veterans Service Officers WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD T. Stephen Eckerman, Counsel INTRODUCTION The Veteran had active service from January 1966 to January 1968. This matter came before the Board of Veterans' Appeals (Board) on appeal from a December 2000 rating decision of the Cleveland, Ohio, Regional Office (RO). In October 2004, and December 2008, the Board remanded the claims for additional development. In August 2004, the Veteran was afforded a videoconference hearing before the undersigned Veterans Law Judge. The Veteran is shown to have sustained a number of shell fragment wounds during his service, and several post-service chest X-ray reports note the presence of a retained metallic fragment. Under the circumstances, the issue of entitlement to service connection for a retained metallic fragment has been raised by the record, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. FINDINGS OF FACT 1. The Veteran's service-connected right leg shrapnel fragment wound residuals with Muscle Group XIV injury and scars are not shown to be productive of scars exceeding 12 square inches, right knee limitation of flexion to 15 degrees, right knee limitation of extension to 20 degrees, a limitation of flexion of the right thigh to 20 degrees, an impairment of the femur with marked knee or hip disability, or more than a moderate muscle disability. 2. The Veteran's service-connected right axilla shrapnel fragment wound residuals are not shown to be productive of a scar of an area or areas exceeding 6 square inches (38.7 cm. squared), a scar that is superficial and poorly nourished, with repeated ulceration, that is tender and painful on objective demonstration, or that is unstable, or to be productive of a limitation of function. 3. The Veteran's service-connected post-operative right inguinal hernia repair residuals are not shown to be productive of a scar of an area or areas exceeding 6 square inches (38.7 cm. squared), a scar that is superficial and poorly nourished, with repeated ulceration, that is tender and painful on objective demonstration, or that is unstable, or to be productive of a limitation of function. CONCLUSIONS OF LAW 1. The criteria for an initial evaluation in excess of 20 percent for service-connected right leg shrapnel fragment wound residuals with Muscle Group XIV injury and scars have not been met. 38 U.S.C.A. §§ 1155, 5103(a), 5103A, 5107(a) (West 2002 & Supp. 2005); 38 C.F.R. § 3.102, 3.159, 3.321(b)(1), 4.7, 4.56, 4.71a, 4.73, Diagnostic Codes 5252, 5255, 5260, 5261, 5314 (2009); 38 C.F.R. § 4.118, Diagnostic Codes 7801, 7805 (as in effect prior to August 30, 2002, and thereafter). 2. The criteria for an initial compensable evaluation for service-connected right axilla shrapnel fragment wound residuals have not been met. 38 U.S.C.A. §§ 1155, 5103(a), 5103A, 5107 (West 2002 & Supp. 2005); 38 C.F.R. §§ 3.102, 3.159, 4.7, 4.71a, 4.118, Diagnostic Codes 5200, 5201, 5202, 5203 (2009); 38 C.F.R. § 4.118, Diagnostic Codes 7801 - 7805 (as in effect prior to August 30, 2002, and thereafter). 3. The criteria for an initial compensable rating for service- connected post-operative right inguinal hernia repair residuals have not been met. 38 U.S.C.A. §§ 1155, 5103(a), 5103A, 5107 (West 2002 & Supp. 2005); 38 C.F.R. §§ 3.102, 3.159, 4.7, 4.118, Diagnostic Codes 7801- 7805 (as in effect prior to August 30, 2002, and thereafter). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Increased Initial Evaluations The Veteran asserts that increased initial evaluations are warranted for his right leg shrapnel fragment wound (SFW) residuals with Muscle Group XIV injury and scars, his right axilla SFW residuals, and his post-operative right inguinal hernia repair residuals. As for the history of the disabilities in issue, see 38 C.F.R. § 4.1 (2009), the Veteran's service treatment reports show that during service in Vietnam with the Marine Corps in April 1967, he was struck by enemy mortar fire. He sustained shell fragment wounds to areas that included the right axilla, and right thigh, with a fractured 7th rib, and with no artery or nerve involvement. A June 1967 naval hospital summary, and associated clinical documentation, indicates that the Veteran's wounds were surgically debrided, irrigated, and closed with wire. He was air-evacuated initially to the Philippines, and then to the Continental United States. Upon admission to the Philadelphia, Pennsylvania, naval hospital, the Veteran exhibited multiple healed shrapnel fragment wounds. At that time, he was noted to have a moderately large right inguinal hernia, which was repaired. The Veteran's January 1968 separation examination report shows that his lungs and chest, and his lower and upper extremities, were clinically evaluated as normal. It notes multiple shrapnel wounds NCD (not considered disabling), a six- centimeter (cm.) scar on his right leg, and a right inguinal hernia scar. Disability evaluations are determined by comparing the veteran's present symptomatology with the criteria set forth in the VA's Schedule for Ratings Disabilities. 38 U.S.C.A. § 1155; 38 C.F.R. § Part 4. The words "slight," "moderate" and "severe" as used in the various diagnostic codes are not defined in the VA Schedule for Rating Disabilities. Rather than applying a mechanical formula, the Board must evaluate all of the evidence, to the end that its decisions are "equitable and just." 38 C.F.R. § 4.6 (2009). Use of terminology such as "severe" by VA examiners and others, although an element of evidence to be considered by the Board, is not dispositive of an issue. All evidence must be evaluated in arriving at a decision regarding an increased rating. 38 C.F.R. §§ 4.2, 4.6 (2009). The Veteran is appealing the original assignments of disability evaluations following awards of service connection. In such cases, it is not the present level of disability which is of primary importance, but rather the entire period is to be considered to ensure that consideration is given to the possibility of staged ratings; that is, separate ratings for separate periods of time based on the facts found. See Fenderson v. West, 12 Vet. App. 119, 126 (1999); see also Hart v. Mansfield, 21 Vet. App. 505 (2007). The Board notes that the medical evidence shows that the Veteran is right-handed. See e.g., June 2005 and February 2009 VA examination reports. A. Right Leg SFW Residuals with Muscle Group XIV Injury and Scars In December 2000, the RO granted service connection for "residuals, shrapnel wound right leg," evaluated as noncompensable (0 percent disabling), with an effective date of April 26, 2000. The Veteran appealed the issue of entitlement to an initial compensable evaluation. In October 2007, the RO recharacterized the Veteran's disability as "residuals, shrapnel wound of right leg (to include multiple scars and injury to Muscle Group XIV)," and assigned a 20 percent evaluation, with an effective date of April 26, 2000. Since this increase did not constitute a full grant of the benefits sought, the increased initial evaluation issue remains in appellate status. AB v. Brown, 6 Vet. App. 35, 39 (1993). The Veteran's right leg disability is currently evaluated under 38 C.F.R. § 4.118, Diagnostic Code (DC) 7801. Under 38 C.F.R. § 4.118, DC 7801 (as in effect prior to August 30, 2002), a 30 percent evaluation is warranted for third degree burn scars of an area or areas exceeding 12 square inches (77.4 cm. squared). Under 38 C.F.R. § 4.118, DC 7805 (as in effect prior to August 30, 2002), other scars will be rated on limitation of function of the part affected. The relevant evidence is summarized as follows: a November 2000 report from the Ohio State University, University Medical Center (OSU), notes that the Veteran had an 8 cm. x 2 cm. scar on his right leg that was nontender and not painful to palpation, with no underlying muscle loss. The only complaint was that there were some paresthesias. A second wound at the right lateral leg was 14 cm. x 1 cm., and was non-painful to palpation, with no underlying muscle loss and no decreased function. A third right leg wound at the right thigh was 10 cm. x 1 cm., which had no pain to palpation, with slight underlying muscle loss, but no loss of function; the Veteran denied having any weakness in his legs due to this scar. The impressions noted multiple shrapnel wounds, status post right inguinal hernia repair, and paresthesias around the scars on the right leg due to shrapnel wounds. An August 2001 OSU report notes that a neurological examination was normal. VA progress notes, dated in 2003, note 5/5 strength in the right lower extremity, and normal strength in the lower extremities. See reports dated in March and June of 2003. An August 2003 VA Agent Orange protocol examination report, notes that the extremities had no edema, pain or atrophy. A VA general medical examination report, dated in June 2005, notes that the Veteran has normal coordination, and that, as to the right lower extremity, there is fatigability and paresthesia, mild weakness, and no sensory loss. A VA muscle examination report, dated in April 2006, appears to indicate the following: the Veteran has three right thigh scars; one scar is productive of tissue loss and muscle strength of 3/5, with no muscle herniation; one scar (at the anterior right thigh) affects the vastus externus muscle/Muscle Group XIV, and is productive of tissue loss and muscle herniation, and 2/5 strength; one scar (at the anterior right thigh) affects the vastus intermedius muscle/Muscle Group XIV with no tissue loss or muscle herniation, and strength of 4/5. An OSU report, dated in November 2006, shows that the Veteran asserted that he had a loss of muscle strength secondary to his right thigh scars, and that he denied any right knee problems. On examination, there was a 5-inch (in.) x 1 in. depressed hyperpgimented vertical scar with loss of subcutaneous tissue and muscle in the anteromedial aspect of the upper half of the right thigh, a 5 in. x 1 in. hyperpigmented vertical scar on the lateral aspect of the upper third of the right thigh, and a 4 in. x 1 in. hyperpgimented, depressed, vertical scar on the posterior gluteal aspect of the right thigh with loss of muscle and subcutaneous tissue underneath. All of the scars were stable and regular, with no inflammation, edema, keloid formation, or limitation of motion due to the scars. There was no induration of the skin or inflexibility of the skin due to the scars. None of the scars were tender to palpation. The range of motion in the right knee was characterized as "normal," and noted to show extension to 0 degrees, and flexion to 150 degrees. See also March 2004 OSU report (containing identical right knee range of motion findings). The report is accompanied by color photographs. A VA report, dated in February 2008, shows that the Veteran had a deep scar at his right posterior upper leg that was 8.5 cm. x 1.7 cm. at its widest; a deep right posterior upper leg scar that was 14 cm. x 2 cm. at its widest, and which was productive of limited motion, a right posterior upper leg scar that was 11 cm. x .2 cm., and a right posterior upper leg deep "exit wound" that was 9.5 cm. x .6 cm. (in fact, a "through-and-through" shell fragment wound is not shown). None of the scars were unstable. The report notes residual muscle damage to Muscle Group XIV at the anterior thigh vastus lateralis muscle on the upper right thigh. Two VA examination reports, dated in February 2009, note that the Veteran's right lower extremity scars are not productive of tendon or bone damage. The reports note that the Veteran stated that he had weakness and pain, that he could walk more than 1/4- mile but less than one mile, and that he could stand for 15 to 30 minutes; and that he stated that he could not stay on his feet for more than an hour. The reports note that a weight-bearing joint was not affected, and that there was no abnormal weight bearing. On examination, one right thigh scar was productive of tissue loss, but not muscle herniation, and muscle strength of 3/5; one scar (at the anterior right thigh) was noted to affect the vastus externus muscle/Muscle Group XIV, and to be productive of tissue loss and muscle herniation, and 2/5 strength. The scars were noted to have from no effect, to severe effects, on various daily activities, and to prevent participation in sports. The Board finds that an initial evaluation in excess of 20 percent is not warranted under DC 7801 (as in effect prior to August 30, 2002). The evidence does not show that the Veteran has third degree burns, or that his scars exceed 12 square inches. Therefore, the criteria for a rating in excess of 20 percent are not shown to have been met under DC 7801 (as in effect prior to August 30, 2002). The regulations for evaluation of skin disabilities were revised, effective on August 30, 2002. 67 Fed. Reg. 49590 (July 31, 2002). In Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003), the United States Court of Appeals for the Federal Circuit overruled Karnas v. Derwinski, 1 Vet. App. 308 (1991), to the extent it conflicts with the precedents of the Supreme Court and the Federal Circuit. See Karnas v. Derwinski, 1 Vet. App. 308, 312-313 (1991) (The Court of Appeals for Veterans Claims held that where the law or regulations change while a case is pending, the version most favorable to the claimant applies, absent Congressional intent to the contrary). In VAOPGCPREC 7-2003, 69 Fed. Reg. 25179 (2004), the General Counsel held that Karnas is inconsistent with Supreme Court and Federal Circuit precedent insofar as Karnas provides that, when a statute or regulation changes while a claim is pending before the VA or a court, whichever version of the statute or regulation is most favorable to the claimant will govern unless the statute or regulation clearly specifies otherwise. The General Counsel held that the rule adopted in Karnas no longer applies in determining whether a new statute or regulation applies to a pending claim. The General Counsel indicated that pursuant to Supreme Court and Federal Circuit precedent, when a new statute is enacted or a new regulation is issued while a claim is pending before VA, VA must first determine whether the statute or regulation identifies the types of claims to which it applies. If the statute or regulation is silent, VA must determine whether applying the new provision to claims that were pending when it took effect would produce genuinely retroactive effects. If applying the new provision would produce such retroactive effects, VA ordinarily should not apply the new provision to the claim. If applying the new provision would not produce retroactive effects, VA ordinarily must apply the new provision. VAOPGCPREC 7-2003. The Board observes that, in addition to the revisions in 2002, the Secretary of the VA recently amended that portion of the Schedule for Rating Disabilities pertaining to scars. As application of the amended diagnostic criteria is expressly limited to claims filed received by the VA on or after October 23, 2008, they are not for consideration in the instant appeal. 38 C.F.R. § 4.118 (2008 as amended). Under 38 C.F.R. § 4.118, DC 7801 (scars other than scars of the head, face, or neck, that are deep or cause limited motion) (as in effect August 30, 2002), a 30 percent evaluation is warranted for an area or areas exceeding 72 square inches (465 square centimeters) but less than 144 square inches (929 square centimeters). Scars in widely separated areas, as on two or more extremities or on anterior and posterior surfaces of extremities or trunk will be separately rated and combined in accordance with 38 C.F.R. § 4.25. Note (1). A deep scar is one associated with underlying soft tissue damage. Note (2). Under 38 C.F.R. § 4.118, DC 7805 (as in effect August 30, 2002), scars, other, are to be evaluated based on limitation of function of the affected part. Here, the medical evidence does not reflect that the manifestations required for an evaluation in excess of 20 percent are present under the revised criteria. There is no medical evidence to show that the Veteran's scars exceed 72 square inches. Therefore, the criteria for a rating in excess of 20 percent are not shown to have been met under DC 7801 (as in effect August 30, 2002). With regard to DC 7805 (as in effect prior to August 30, 2002, and thereafter) (this diagnostic code is unchanged from the version in effect prior to August 2002) and functional loss, the Board has considered the following diagnostic codes: Under 38 C.F.R. § 4.71a, DC 5252, limitation of flexion of the thigh to 20 degrees warrants a 30 percent rating. Under 38 C.F.R. § 4.71a, DC 5255, a 30 percent evaluation is warranted for: Femur, impairment of: Malunion of: with marked knee or hip disability. Under 38 C.F.R. § 4.71a, DC 5260, a 30 percent evaluation is warranted where knee flexion is limited to 15 degrees. Under 38 C.F.R. § 4.71a, DC 5261, a 30 percent evaluation is warranted where knee extension is limited to 20 degrees. The standardized description of joint measurements is provided in Plate II under 38 C.F.R. § 4.71. Normal extension and flexion of the knee is from 0 to 140 degrees. The standard range of motion for the hip is flexion to 125 degrees and extension to 0 degrees, and abduction from 0 degrees to 45 degrees. As an initial matter, service connection is currently in effect for disabilities that include peripheral neuropathy of the right lower extremity (granted as secondary to diabetes mellitus), currently evaluated as 30 percent disabling. Therefore, the evaluation of the same manifestations of this disability under different diagnoses, a practice known as "pyramiding," is to be avoided. See 38 C.F.R. § 4.14 (2009). The critical inquiry in making such a determination is whether any of the symptomatology is duplicative or overlapping. See Esteban v. Brown, 6 Vet. App. 259 (1994). In this case, the claims files include a number of reports pertaining to his diabetes and peripheral neuropathy which note symptoms that include lower extremity burning, tingling, numbness, lack of strength, stumbling, tripping, and right foot drop, with use of an ankle brace. See e.g., March 2003 VA EMG (electromyograph) report; OSU reports, dated in March 2004, December 2005 (to include a NCS (nerve conduction studies) report), and November 2006; VA general medical examination report, dated in June 2005. The evidence is sufficient to show that these symptoms are manifestations of his peripheral neuropathy, and are not attributable to his residuals of shell fragment wounds. See Mittleider v. West, 11 Vet. App. 181 (1998). There are no findings to show that the Veteran's right knee is productive of flexion limited to 15 degrees, or extension is limited to 20 degrees, that he has a limitation of flexion of the right thigh to 20 degrees, or that he has an impairment of the femur with marked knee or hip disability. See e.g., OSU reports, dated in March 2004 and November 2006 (noting "a full range of motion of the knees," with knee extension and flexion from 0 to 150 degrees); March 2004 OSU report (noting "a full range of motion of the hips," with hip extension to 30 degrees and flexion to 100 degrees); April 2006 VA X-ray report for the right femur (noting no bony deformity or soft tissue abnormalities). Accordingly, the criteria for an initial evaluation in excess of 20 percent under DC's 5252, 5255, 5260, and 5261, have not been met. A higher evaluation is not warranted for functional loss. See 38 C.F.R. §§ 4.40 and 4.45; DeLuca v. Brown, 8 Vet. App. 202, 204- 206 (1995); VAGCOPPREC 9-98, 63 Fed. Reg. 56704 (1998). In this case, the right leg scars are shown to be productive of some muscle weakness, with some tissue loss, and some muscle herniation. However, the evidence is insufficient to show that they are productive of neurological impairment, incoordination, or other findings that would support a higher initial evaluation on the basis of functional loss due to pain. See e.g., June 2005 VA examination report (noting "mild" muscle weakness in the right lower extremity). The Board finds that, when the ranges of motion in the right knee and right hip are considered together with the evidence of functional loss due to right knee and right hip pathology, the evidence does not support a conclusion that the loss of motion in the right knee or right hip more nearly approximates the criteria for a 30 percent rating under DC's 5252, 5260 or DC 5261, even with consideration of 38 C.F.R. §§ 4.40 and 4.45. Finally, the Board has considered whether an increased initial evaluation is warranted under 38 C.F.R. §§ 4.55, 4.56 and 4.73. Muscle injuries are evaluated pursuant to criteria at 38 C.F.R. §§ 4.55, 4.56, and 4.73 (2009). 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). The specific bodily functions of each group are listed at 38 C.F.R. § 4.73. A muscle injury evaluation will not be combined with a peripheral nerve paralysis evaluation of the same body part unless the injuries affect entirely different functions. 38 C.F.R. § 4.55(a). 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. See 38 C.F.R. § 4.56(c). Evaluation of muscle injuries as slight, moderate, moderately severe, or severe, is based on the type of injury, the history and complaints of the injury, and objective findings. 38 C.F.R. § 4.56(d). Furthermore, 38 C.F.R. § 4.56(d) is essentially a totality-of-the-circumstances test and that no single factor is per se controlling. Tropf v. Nicholson, 20 Vet. App. 317 (2006). DC 5314 provides evaluations for disability of Muscle Group XIV, the anterior thigh group: (1) sartorius; (2) rectus femoris; (3) vastus externus; (4) vastus intermedius; (5) vastus internus; (6) tensor vaginae femoris. 38 C.F.R. Part 4, Diagnostic Code 5314. The function of these muscles are as follows: extension of knee (2, 3, 4, 5); simultaneous flexion of hip and flexion of knee (1); tension of fascia lata and iliotibial (Maissiat's) band, acting with XVII (1) in postural support of body (6); acting with hamstrings in synchronizing hip and knee (1, 2). Under 38 C.F.R. 4.73, DC 5314, a 30 percent evaluation is warranted for a moderately severe muscle injury. The provisions of 38 C.F.R. § 4.56(c), (d) (2009) offer guidance for evaluating muscle injuries caused by various missiles and other projectiles. The regulation directs, in pertinent part, that: (c) 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. (d) Under diagnostic codes 5301 through 5323, disabilities resulting from muscle injuries shall be classified as slight, moderate, moderately severe or severe. A moderately severe disability is described as follows: (d)(3) 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. The Board finds that an initial evaluation in excess of 20 percent is not warranted, as the medical evidence is insufficient to show that this disability is productive of a moderately severe injury. The Veteran's service treatment reports do not show that he had a through-and-through injury, prolonged infection, sloughing of soft parts, or intermuscular scarring. See also April 2006 VA muscle examination report (noting that there is no history of through-and-through wound). They specifically noted that there was no artery or nerve involvement, and there is no evidence to show that they resulted in damage to any joint. Furthermore, the evidence does not show that there is a "record of consistent complaint" of the "cardinal signs and symptoms of muscle disability," or evidence of inability to keep up with work requirements. In this regard, the earliest relevant post- service medical evidence concerning the Veteran's disabilities in issue is dated in 2000, about 32 years after separation from service, and he reported that he retired that same year. Right knee extension and flexion is shown to be from 0 to 150 degrees, see March 2004 and November 2006 OSU examination reports, and right hip flexion is shown to be to 100 degrees (in the March 2004 OSU examination report). An April 2006 VA X-ray report for the right femur notes that there are no bony deformity or soft tissue abnormalities. To the extent that the Veteran's scars were noted to have from no effect, to severe effects, on various daily activities, and to prevent participation in sports, given the other findings (or absence thereof) in the record, these notations do not warrant a higher initial rating. Accordingly, the Board finds that the evidence is insufficient to show that the Veteran's right leg shrapnel fragment wound residuals with Muscle Group XIV injury and scars, are productive of a moderately severe injury. An initial evaluation in excess of 20 percent is therefore not warranted. B. Right Axilla In December 2000, the RO granted service connection for right axilla shrapnel fragment wound residuals, evaluated as noncompensable (0 percent disabling), with an effective date of April 26, 2000. The Veteran has appealed the issue of entitlement to an initial compensable evaluation. As an initial matter, service connection is currently in effect for disabilities that include peripheral neuropathy of the right upper extremity (granted as secondary to diabetes mellitus), currently evaluated as 10 percent disabling. Therefore, the evaluation of the same manifestations of this disability under different diagnoses, a practice known as "pyramiding," is to be avoided. See 38 C.F.R. § 4.14. The critical inquiry in making such a determination is whether any of the symptomatology is duplicative or overlapping. Esteban. In this case, the claims files include a number of reports pertaining to his diabetes and peripheral neuropathy which note symptoms that include right upper extremity burning, tingling, numbness, and weakness. See e.g., OSU reports, dated in December 2005 (including associated NCS report) and November 2006. The evidence is sufficient to show that these symptoms are manifestations of his peripheral neuropathy, and are not attributable to his right axilla shrapnel fragment wound residuals. Mittleider. The Veteran's right axilla shrapnel fragment wound residuals are currently evaluated under 38 C.F.R. § 4.118, DC 7805. Under 38 C.F.R. § 4.118, DC 7805 (as in effect prior to August 30, 2002, and thereafter), other scars will be rated on limitation of function of the part affected. Under the circumstances, the Board must determine whether a compensable evaluation is warranted under all applicable diagnostic codes involving the shoulder. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Therefore, the following diagnostic codes are relevant: Under DC 5200, where there is ankylosis of the scapulohumeral articulation, with abduction to 60 degrees, can reach mouth and head, a 20 percent evaluation is warranted for the minor upper extremity, and a 30 percent evaluation is warranted for the major upper extremity. Under DC 5201, a 20 percent evaluation is warranted for a limitation of motion to midway between the side and shoulder level, for both the major arm, and the minor arm. Under DC 5202, a 20 percent evaluation is warranted for a malunion or other impairment of the humerus, with moderate deformity, for both the major arm, and the minor arm; or recurrent dislocation of the scapulohumeral joint, with infrequent episodes and guarding of movement only at the shoulder level, for both the major arm, and the minor arm. Where there is recurrent dislocation of the scapulohumeral joint, with frequent episodes and guarding of all arm movements, a 30 percent evaluation is warranted for the major arm, and a 20 percent evaluation is warranted for the minor arm. Under DC 5203, a 10 percent evaluation is warranted for clavicle or scapula, impairment of, malunion of. The standardized description of joint measurements is provided in Plate I under 38 C.F.R. § 4.71. These descriptions indicate that normal forward flexion of the shoulder is from 0 to 180 degrees, normal abduction of the shoulder is from 0 to 180 degrees, normal external rotation is from 0 to 90 degrees, and that normal internal rotation is from 0 to 90 degrees. The relevant medical evidence is summarized as follows: A November 2000 OSU report notes a 6 cm. x 1 cm. scar at the axilla, which was non-painful to palpation, was nontender, and to which the Veteran "denies any complaints from the scar itself." A March 2004 OSU report shows that the Veteran denied having "any symptoms related to his upper extremities." Examination of the upper extremities were noted to be within normal limits, with no more specific findings. A VA X-ray report for the humerus, dated in April 2006, contains an impression noting that there was/were no bony deformity or soft tissue abnormalities. A VA chest X-ray report, dated in April 2006, contains an impression noting that no acute rib fractures were seen, that there was an old, healed fracture of the fifth right bib, and a single shrapnel fragment near the superior mediastinum. An OSU fee-basis examination report, dated in November 2006, shows that the Veteran denied having any problems or symptoms associated with his right shoulder, and that he denied having any residual effects due to his right axilla scar. On examination, there was a hyperpigmented scar at the right axillary region that was 1 in. x 1.5 cm., that was characterized as stable, superficial, and regular. The report notes that there was no inflammation, edema, or keloid formation, inflexibility, or induration, or limitation of motion or function due to this scar, and that it was not tender to touch. The right shoulder joint was noted to have a normal range of motion, with flexion to 180 degrees, extension to 50 degrees, abduction to 180 degrees, adduction to 50 degrees, and with internal rotation, and external rotation, both to 90 degrees. The assessments noted a normal examination of the joints. The report is accompanied by color photographs. A VA examination report, dated in February 2008, notes a deep right axilla scar of 3.5 cm. x .7 cm., and indicates that it was not productive of a limitation of motion, was not unstable, and was not painful. The examiner stated that there was no limitation of motion in flexion or extension of lateral bending or the torso in relation to the scar, and no evidence of restricted lung capacity (based on pulmonary function tests). An associated chest X-ray contains an impression noting a triangular-shaped radiopaque foreign body in the anterior mediastinum. A VA examination report, dated in February 2009, notes that the Veteran's right axilla shrapnel wound had no effects on his daily activities. In an addendum, dated in April 2010, the examiner stated that the nerve groups associated with the axilla injury were the axillary, median, and ulnar, and that the muscle groups associated with this injury were the corabrachialis, serratus anterior, long and median head of tricep, teres muscle, pectoralis major, and latissimus dorsi. The Board finds that the criteria for an initial compensable evaluation under DC 5200 and DC 5201 have not been met. In 2000, 2004, and 2006, the Veteran essentially denied having any relevant symptoms related to his upper extremities. Examination of the upper extremities were essentially within normal limits. The 2006 OSU report and the February 2008 VA examination report both show that there is no limitation of motion or function due to this scar. In summary, there is no competent evidence to show that this scar is productive of ankylosis of scapulohumeral articulation, that abduction of either shoulder is limited to 60 degrees, or that the right shoulder has a limitation of motion to midway between the side and shoulder level. In addition, there is no evidence to show a malunion of the right humerus, recurrent dislocation or malunion of the right scapulohumeral joint, or a malunion of the right clavicle or scapula. The criteria for an initial compensable evaluation under DC's 5200-5203 are therefore not met for the right shoulder. In addition, given the aforementioned findings, there is no basis for the assignment of a compensable evaluation based on functional impairment attributable to pain and weakness. DeLuca; 38 C.F.R. §§ 4.40, 4.45, 4.59; VAGCOPPREC 9-98; see also November 2006 OSU report (noting that there was no additional limitation in the range of motion on repetitive testing due to weakness or fatigue, lack of endurance, incoordination, or pain). Accordingly, the Board finds that the preponderance of the evidence is against the claim, and that the criteria for an initial compensable evaluation under DC 5200-5203 have not been met. The Board has also considered the following diagnostic codes: Under 38 C.F.R. § 4.118, DC 7801 (as in effect prior to August 30, 2002), a 10 percent evaluation is warranted for third degree burn scars of an area or areas exceeding 6 square inches (38.7 cm. squared). Under 38 C.F.R. § 4.118, DC 7802 (as in effect prior to August 30, 2002), a 10 percent evaluation is warranted for second degree burn scars of an area or areas approximating one square foot (0.1 meters squared). Under 38 C.F.R. § 4.118, DC 7803 (as in effect prior to August 30, 2002) provided a 10 percent rating for scars if they were superficial, poorly nourished, with repeated ulceration. 38 C.F.R. § 4.118, DC 7804 (as in effect prior to August 30, 2002) provided a 10 percent rating for superficial scars that were tender and painful on objective demonstration. As noted in Part I.A., the regulations for evaluation of skin disabilities were revised, effective on August 30, 2002, and may be applied to this claim as of that date. 67 Fed. Reg. 49590 (July 31, 2002); Kuzma. Under 38 C.F.R. § 4.118, DC 7801 (as in effect August 30, 2002), a 10 percent rating is warranted for: Scars, other than head, face, or neck, that are deep or that cause limited motion: Area or areas exceeding 6 square inches (39 sq. cm.). Note (1): Scars in widely separated areas, as on two or more extremities or on anterior and posterior surfaces of extremities or trunk, will be separately rated and combined in accordance with § 4.25 of this part. Note (2): A deep scar is one associated with underlying soft tissue damage. Under 38 C.F.R. § 4.118, DC 7802 (as in effect August 30, 2002), a 10 percent rating is warranted for: Scars, other than head, face, or neck, that are superficial and that do not cause limited motion: Area or areas of 144 square inches (929 sq. cm.) or greater. Note (1): Scars in widely separated areas, as on two or more extremities or on anterior and posterior surfaces of extremities or trunk, will be separately rated and combined in accordance with § 4.25 of this part. Note (2): A superficial scar is one not associated with underlying soft tissue damage. Under 38 C.F.R. § 4.118, DC 7803 (as in effect August 30, 2002), a 10 percent rating is warranted for: Scars, superficial, unstable. Note (1): An unstable scar is one where, for any reason, there is frequent loss of covering of skin over the scar. Note (2): A superficial scar is one not associated with underlying soft tissue damage. Under 38 C.F.R. § 4.118, DC 7804 (as in effect August 30, 2002), a 10 percent rating is warranted for: Scars, superficial, painful on examination. Note (1): A superficial scar is one not associated with underlying soft tissue damage. An initial compensable evaluation is not warranted under 38 C.F.R. § 4.118, DC's 7801-7804 (as in effect prior to August 30, 2002, or thereafter). There is no competent evidence to show that the Veteran's right axilla scar is productive of an area or areas exceeding 6 square inches (38.7 cm. squared), is superficial and poorly nourished, with repeated ulceration, is tender and painful on objective demonstration, or is unstable. Thus, the assignment of an initial 10 percent evaluation for the Veteran's right axilla shrapnel fragment wound residuals is not warranted, and the claim must be denied. C. Hernia With regard to the history of this disability, see 38 C.F.R. § 4.1, the Veteran's service treatment reports show that in April 1967, he was noted to have a moderately large inguinal hernia, which was repaired that same month. He did well postoperatively with removal of his sutures four days after surgery. In June 1967, he was noted to be "completely recovered," and fit to return for full duty, with a caution to avoid heavy lifting or straining for four weeks. The Veteran's January 1968 separation examination report notes that he had a right inguinal hernia scar, with no other findings provided. The relevant evidence is summarized as follows: a November 2000 OSU report notes that the Veteran had a 6 cm. x 0.5 cm. hernia scar, with a complaint of "occasional slight pain." The scar was non-painful to palpation. A VA digestive examination report, dated in April 2006, shows that the Veteran reported that he had no residual pain from his hernia operation, just occasional tingling. On examination, there was no hernia present. It was noted that there were from "none" to severe effects on daily activities. An OSU fee-basis examination report, dated in November 2006, shows that on examination, there was a 5 in. x 3 cm. hyperpigmented vertical scar in the right groin region. The scar was superficial, nontender, stable, and regular, with no inflammation, edema, keloid formation, limitation of motion, induration of the skin, or inflexibility. The scar was not tender to palpation. A VA report, dated in February 2008, shows that the Veteran had a hernia repair scar that was 11.4 cm. x .4 cm. The scar was not tender to palpation. There was no inflammation, edema, skin ulceration, keloid formation, induration, inflexibility, elevation, underlying tissue loss, or limitation of function. The Board finds that an initial compensable evaluation is not warranted under 38 C.F.R. § 4.118, DC's 7801-7804 (as in effect prior to August 30, 2002, and thereafter). There is no competent evidence to show that the Veteran's service-connected post- operative right inguinal hernia repair residuals are productive of a scar of an area or areas exceeding 6 square inches (38.7 cm. squared), that is superficial and poorly nourished, with repeated ulceration, that is tender and painful on objective demonstration, or that is unstable. There is no competent evidence to show that his residuals are productive of a limitation of function. See 38 C.F.R. § 4.118, DC 7805. Thus, the assignment of an initial 10 percent evaluation for the Veteran's service-connected post-operative right inguinal hernia repair residuals is not warranted, and the claim must be denied. Finally, as there is no medical evidence to show that he has had a recurrence of a right inguinal hernia, and there is no basis for a separate rating for a right inguinal hernia. See Note, 38 C.F.R. § 4.114, DC 7338. The Board therefore finds that the preponderance of the evidence is against the claim, and that the claim must be denied. D. Conclusion In deciding the Veteran's increased initial evaluation claims, the Board has considered the determinations in Fenderson and Hart, and whether the Veteran is entitled to an increased evaluation for separate periods based on the facts found during the appeal period. As noted above, the Board does not find evidence that the Veteran's evaluations should be increased for any period considered in the appeal, based on the facts found. The evidence in this case is not so evenly balanced so as to allow application of the benefit of the doubt rule as required by law and VA regulations. 38 C.F.R. §§ 3.102, 4.3 (2009). II. VCAA The Board is required to ensure that the VA's "duty to notify" and "duty to assist" obligations have been satisfied. See 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159 (2009). The notification obligation in this case was accomplished by way of letters from the RO to the Veteran dated in December 2004 and February 2009. Quartuccio v. Principi, 16 Vet. App. 183 (2002); 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); Dingess v. Nicholson, 19 Vet. App. 473, 484 (2006). The VCAA notices were issued after the RO's December 2000 decision that is the basis for this appeal. However, the RO's December 2000 decision was decided prior to the enactment of the VCAA. In such cases, there is no error in not providing notice specifically complying with 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b)(1) because an initial AOJ adjudication had already occurred. Rather, the appellant is to be given proper subsequent VA process, and the Board is normally to make findings on the completeness of the record or on other facts permitting the Court to make a conclusion of lack of prejudice from improper notice. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). However, in this case, these claims were granted in December 2000. In such a case, 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 was intended to serve has been fulfilled; no additional § 5103(a) notice is required. Dingess v. Nicholson, 19 Vet. App. 473, 491 (2006). The RO has provided assistance to the appellant as required under 38 U.S.C.A. § 5103A and 38 C.F.R. § 3.159(c), as indicated under the facts and circumstances in this case. It appears that all known and available service treatment reports, and post-service records relevant to the issues on appeal have been obtained and are associated with the Veteran's claims files. The RO has obtained the Veteran's VA and non-VA medical records. The Veteran has been afforded examinations. The Board concludes, therefore, that decisions on the merits at this time do not violate the VCAA, nor prejudice the appellant under Bernard v. Brown, 4 Vet. App. 384 (1993). Based on the foregoing, the Board finds that the Veteran has not been prejudiced by a failure of VA in its duty to assist, and that any violation of the duty to assist could be no more than harmless error. See Conway v. Principi, 353 F.3d 1369 (Fed. Cir. 2004). ORDER The appeal is denied. ____________________________________________ F. JUDGE FLOWERS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs