Citation Nr: 1127928	
Decision Date: 07/26/11    Archive Date: 08/02/11

DOCKET NO.  94-23 967	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Lincoln, Nebraska


THE ISSUES

1. Entitlement to an increased rating for residuals of a gunshot wound of the left posterior thigh, involving Muscle Group XIII, currently evaluated as 10 percent disabling.  

2. Entitlement to an increased rating for residuals of a gunshot wound of the left anterior thigh, involving Muscle Group XIV, currently evaluated as 30 percent disabling.  

3. Entitlement to an increased rating for gastritis and duodenitis, with history of peptic ulcer disease, currently evaluated as 20 percent disabling.  


REPRESENTATION

Appellant represented by:	Robert A. Laughlin, Attorney



ATTORNEY FOR THE BOARD

M. Tenner, Counsel


INTRODUCTION

The Veteran served on active duty from September 1961 to December 1965.  

This case comes before the Board of Veterans' Appeals (Board) on appeal from decisions rendered by the Lincoln, Nebraska Regional Office (RO) of the Department of Veterans Affairs (VA).  
 
The complex procedural history of these matters was recited in the Board's September 2010 Remand directive and will not be repeated herein.  Following the Board's remand, the RO conducted additional development but continued the denial of the claims on appeal.  Most recently, in May 2011, the RO issued a supplemental statement of the case.  Thereafter, the RO re-certified the claims on appeal to the Board.  


FINDINGS OF FACT

1.  Residuals of the gunshot wound to the left posterior thigh, involving Muscle Group XIII, are manifested by pain, minimal loss of muscle strength, mild loss of muscle bulk and is not more than moderate in severity.

2.  Residuals of the gunshot wound to the left anterior thigh, involving Muscle Group XIV, are manifested by pain, minimal loss of muscle strength, and no muscle atrophy and is not more than moderately severe.  

3.  Gastritis and duodenitis, with history of peptic ulcer disease is manifested by abdominal pain, with weight loss, without evidence of anemia, lesions, or ulcerations, or incapacitating episodes.  


CONCLUSIONS OF LAW

1.  The criteria for an evaluation in excess of 10 percent for residuals of a gunshot wound to the left posterior thigh, involving Muscle Group XIII, have not been met.  38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.56 (as in effect both prior and subsequent to July 3, 1997), 4.72 (as in effect prior to July 3, 1997), Diagnostic Code 5313 (2010).  

2. The criteria for an evaluation in excess of 30 percent for residuals of a gunshot wound to the left anterior thigh, involving Muscle Group XIV, have not been met.  38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.56 (as in effect both prior and subsequent to July 3, 1997), 4.72 (as in effect prior to July 3, 1997), Diagnostic Code 5314 (2010). 

3.  The criteria for an evaluation in excess of 20 percent for gastritis and duodenitis, with history of peptic ulcer have not been met.  38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.655, 4.7, 4.112, 4.114, Diagnostic Code 7305 (2010).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Board has thoroughly reviewed all the evidence in the Veteran's claims folder.  Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the evidence submitted by the Veteran or on her behalf.  See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence).  The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim.

The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant.  Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value.  When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied.  Gilbert v. Derwinski, 1 Vet. App. 49 (1990).

I.  The Veterans Claims Assistance Act of 2000 (the VCAA)

With respect to the Veteran's claims decided herein, VA has met all statutory and regulatory notice and duty to assist provisions.  See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2010).

Under the VCAA, when VA receives a complete or substantially complete application for benefits, it is required to notify the claimant and his representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim.  See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002).  In Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II), the United States Court of Appeals for Veterans Claims held that VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claims; (2) that VA will seek to provide and (3) that the claimant is expected to provide. 

Further, the Court has observed that a claim of entitlement to service connection consists of five elements, of which notice must be provided prior to the initial adjudication: (1) Veteran status; (2) existence of a disability; (3) a connection between the Veteran's service and the disability; (4) degree of disability; and (5) effective date.  See Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 490 (2006); see also 38 U.S.C.A. § 5103(a).  

Here, the Veteran was sent letters dated in April and December 2003 and February and March 2006.  These letters satisfied the duty to notify provisions regarding claims for increased ratings.  

Although the letters were not sent prior to initial adjudication of the Veteran's claims, the claims were properly re-adjudicated in a statement of the case.  See Prickett v. Nicholson, 20 Vet. App. 370, 376-77 (2006).  In addition, the Court has noted that once service connection has been granted, as is the case here, VA's VCAA notice obligations are fully satisfied.  See Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007).

The Board also concludes VA's duty to assist has been satisfied.  Available service treatment records are in the file, including records documenting treatment for the shell fragment wound to the left thigh.  The Veteran identified VA outpatient treatment records.  VA obtained those records and they are associated with the Veteran's claims file.  The Veteran has not referenced outstanding records that he wanted VA to obtain or that he felt were relevant to the claims.

The duty to assist includes, when appropriate, the duty to conduct a thorough and contemporaneous examination of the Veteran.  See Green v. Derwinski, 1 Vet. App. 121 (1991).  In addition, where the evidence of record does not reflect the current state of the Veteran's disability, a VA examination must be conducted.  See Schafrath v. Derwinski, 1 Vet. App. 589 (1991); 38 C.F.R. § 3.327(a) (2010).  The Veteran was provided VA examinations in 1997, 1999, 2003, 2006, 2007, and 2009.

Concerning these VA examinations, when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate.  See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007).  The reports of the examinations reflect that the examiners reviewed the Veteran's medical history, recorded his current complaints, conducted appropriate physical examinations, and rendered appropriate diagnoses and opinions consistent with the remainder of the evidence of record.  The Board therefore concludes that the examinations are adequate for rating purposes.  See 38 C.F.R. § 4.2 (2010).

Finally, the Board finds that there has been substantial compliance with its September 2010 Remand directive.  Specifically, the RO was directed to make additional efforts to obtain outstanding Social Security Administration (SSA) records.  The RO requested the records in November 2010.  It received a response from SSA that same month indicating that the Veteran received retirement benefits only and that there were no medical records found.  In March 2011, the Veteran responded that he had no additional SSA records.  Later, that month, the RO received an additional response from SSA indicating that the medical records were destroyed and additional efforts to locate them would be futile.  The Veteran and his attorney were advised of the RO's efforts to obtain the records.  The RO readjudicated the claims by way of a May 2011 supplemental statement of the case.  Given these efforts, the Board finds that remanding the matters again for further efforts to obtain SSA records would only result in unduly delaying the adjudication of the claims on appeal with no benefit flowing to the Veteran.  

II.  Legal Criteria

Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R. Part 4.  Disability ratings are intended to compensate impairment in earning capacity due to a service-connected disorder.  38 U.S.C.A. § 1155 (West 2002).  Evaluation of a service-connected disability requires a review of the Veteran's entire medical history regarding that disability.  38 C.F.R. §§ 4.1, 4.2 (2010).  When a reasonable doubt arises regarding the degree of disability, such doubt will be resolved in favor of the claimant.  38 C.F.R. § 4.3 (2010).  If there is a question as to which evaluation to apply to the Veteran's disability, the higher rating will be assigned if the disability picture more nearly approximates the criteria for that rating.  Otherwise, the lower rating will be assigned.  38 C.F.R. § 4.7 (2010).  

Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary concern.  See Francisco v. Brown, 7 Vet. App. 55, 58 (1994).  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.  Id.; Powell v. West, 13 Vet. App. 31, 35 (1999).  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.  See Hart v. Mansfield, 21 Vet. App. 505 (2007).
 
The rating schedule may not be employed as a vehicle for compensating a claimant twice or more for the same symptomatology; such a result would overcompensate him or her for the actual impairment of earning capacity.  See 38 C.F.R. § 4.14 (2010); See Esteban v. Brown, 6 Vet. App 259 (1994).  As noted above, words such as "mild" and "severe" are not defined in the VA Schedule for Rating Disabilities.  Rather than applying a mechanical formula, the Board must evaluate all of the evidence to the end that its decisions are "equitable and just."  38 C.F.R. § 4.6 (2010).   

Muscle Injuries:

During the pendency of this appeal, the Rating Schedule was revised with respect to the ratings applicable to muscle injuries, as set forth in 38 C.F.R. §§ 4.55, 4.56, and 4.72.  See 62 Fed. Reg. 30237-240 (1997).  For instance, 38 C.F.R. §§ 4.55 and 4.72 were removed altogether.  These changes were effective July 3, 1997.  The defined purpose of these changes was to incorporate updates in medical terminology, advances in medical science, and to clarify ambiguous criteria.  The comments clarify that the changes were not intended to be substantive.  See 62 Fed. Reg. No. 106, 30235- 30237.  

In Karnas v. Derwinski, 1 Vet. App. 308 (1991), the United States Court of Appeals for Veterans Claims (Court) held that, where a law or regulation changes during the pendency of a claim or appeal, the Board must apply the version of the law that is more favorable to the claimant.  See also Dyment v. Principi, 287 F.3d 1377 (Fed. Cir. 2002); Bernklau v. Principi, 291 F.3d 795 (Fed. Cir. 2002).

However, as stated above, a review of the new regulations indicates that no substantive changes were made to the applicable rating criteria, to include Diagnostic Code 5314.

Prior to the revision, the regulations in effect provided that in rating injuries of the musculoskeletal system, attention is first given to the deeper structures injured bones, joints, and nerves.  A compound comminuted fracture, for example, with muscle damage from the missile, establishes severe muscle injury, and there may be additional disability from malunion of bone, ankylosis, etc.  The location of foreign bodies may establish the extent of penetration and consequent damage.  It may not be too readily assumed that only one muscle, or group of muscles is damaged.  A through and through injury, with muscle damage, is always at least a moderate injury for each group of muscles damaged.  This section is to be taken as establishing entitlement to a rating of severe grade when there is a history of compound comminuted fracture and definite muscle or tendon damage from the missile.  There are locations, as in the wrist or over the tibia, where muscle damage might be minimal or damage to tendons might be repaired by suture; in such cases, the requirements for a severe rating are not necessarily met.  38 C.F.R. § 4.72 (as in effect prior to July 3, 1997).

Muscle injuries are classified into four general categories; slight, moderate, moderately severe, and severe.  Separate evaluations are assigned for the various degrees of disability.  Residuals of gunshot and shell fragment wounds are evaluated on the basis of the following factors: the velocity, trajectory and size of the missile which inflicted the wounds; extent of the initial injury and duration of hospitalization; the therapeutic measures required to treat the disability; and current objective findings, such as evidence of damage to muscles, nerves and bones which results in pain, weakness, limited or excessive motion, shortening of extremities, scarring, or loss of sensation.  38 C.F.R. § 4.56 (1997).  

A slight disability of the muscles anticipates the following: (1) Type of injury. Simple wound of muscle without debridement, infection or effects of laceration.  (2)  History and complaint.  Service department record of wound of slight severity or relatively brief treatment and return to duty.  Healing with good functional results.  No consistent complaint of cardinal symptoms of muscle injury or painful residuals.  (3) Objective findings.  Minimum scar; slight, if any, evidence of fascial defect or of atrophy or of impaired tonus.  No significant impairment of function and no retained foreign fragments.

A moderate disability of the muscles anticipates the following: (1) Type of injury.  Through and through or deep penetrating wounds of relatively short track by single bullet or small shell or shrapnel fragment are to be considered as of at least moderate degree.  Absence of explosive effect of high velocity missile and of residuals of debridement or of prolonged infection.  (2) History and complaint.  Service department record or other sufficient evidence of hospitalization in service for treatment of wound.  Record in the file of consistent complaint on record from first examination forward, of one or more of the cardinal symptoms of muscle wounds particularly fatigue and fatigue-pain after moderate use, affecting the particular functions controlled by injured muscles.  (3)  Objective findings.  Entrance and (if present) exit scars linear or relatively small and so situated as to indicate relatively short track of missile through muscle tissue; signs of moderate loss of deep fascia or muscle substance or impairment of muscle tonus, and of definite weakness or fatigue in comparative terms.  (In such tests, the rule that with strong efforts, antagonistic muscles relax is to be applied to insure validity of tests.)

A moderately severe disability of the muscles anticipates the following: (1) Type of injury.  Through and through or deep penetrating wound by high velocity missile of small size or large missile of low velocity, with debridement or with prolonged infection or with sloughing of soft parts, intermuscular cicatrization.  (2)  History and complaint.  Service department record or other sufficient evidence showing hospitalization for a prolonged period in service for treatment of wound of severe grade.  Record in the file of consistent complaint of cardinal symptoms of muscle wounds.  Evidence of unemployability because of inability to keep up with work requirements is to be considered, if present.  (3)  Objective findings.  entrance and (if present) exit scars relatively large and so situated as to indicate track of missile through important muscle groups.  Indications on palpation of moderate loss of deep fascia, or moderate loss of muscle substance or moderate loss of normal firm resistance of muscles compared with sound side.  Tests of strength and endurance of muscle groups involved (compared with sound side) give positive evidence of marked or moderately severe loss.  

A severe muscle disability anticipates the following: Type of injury.  Through and through or deep penetrating wound due to high velocity missile, or large or multiple low velocity missiles, or explosive effect of high velocity missile, or shattering bone fracture with extensive debridement or prolonged infection and sloughing of soft parts, intermuscular binding and cicatrization.  (2)  History and complaint.  As under moderately severe (paragraph (c) of this section), in aggravated form.  (3)  Objective findings.  Extensive ragged, depressed, and adherent scars of skin so situated as to indicate wide damage to muscle groups in track of missile.  X-ray may show minute multiple scattered foreign bodies indicating spread of intermuscular trauma and explosive effect of missile.  Palpation shows moderate or extensive loss of deep fasciae or of muscle substance.  Soft or flabby muscles in wound area.  Muscles do not swell and harden normally in contraction.  Tests of strength or endurance compared with the sound side or of coordinated movements show positive evidence of severe impairment of function.  In electrical tests, reaction of degeneration is not present but a diminished excitability to faradic current compared with the sound side may be present.  Visible or measured atrophy may or may not be present.  Adaptive contraction of opposing group of muscles, if present, indicates severity.  Adhesion of scar to one of the long bones, scapula, pelvic bones, sacrum, or vertebrae, with epithelial sealing over the bone without true skin covering, in an area where bone is normally protected by muscle, indicates the severe type.  Atrophy of muscle groups not included in the track of the missile, particularly of the trapezius and serratus in wounds in the shoulder girdle (traumatic muscular dystrophy), and induration and atrophy of an entire muscle following simple piercing by a projectile (progressive sclerosing myositis) may be included in the severe group if there is sufficient evidence of severe disability.

Under the new 38 C.F.R. § 4.56, governing the evaluation of 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.  (b) A through-and-through injury with muscle damage shall be evaluated as no less than a moderate injury for each group of muscles damaged.  (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 slight disability of muscles anticipates the following.  (i) Type of injury. Simple wound of muscle without debridement or infection.  ( ii) History and complaint. Service department record of superficial wound with brief treatment and return to duty.  Healing with good functional results.  No cardinal signs or symptoms of muscle disability as defined in paragraph (c) of this section.  (iii) Objective findings.  Minimal scar.  No evidence of fascial defect, atrophy, or impaired tonus.  No impairment of function or metallic fragments retained in muscle tissue.

A moderate disability of the muscles anticipates the following:  (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 by 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.

A moderately severe disability of muscles anticipates the following:  (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.

A severe disability of muscles anticipates the following:  (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 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.  (G) Induration or atrophy of an entire muscle following simple piercing by a projectile.  (Authority: 38 U.S.C. 1155)  [29 FR 6718, May 22, 1964, as amended at 43 FR 45349, Oct. 2, 1978; 62 FR 30235, June 3, 1997].  

The revised rating criteria for muscle injuries are similar in content, if not organization, to the criteria in effect prior to the revisions.  For instance, a through-and-through injury with muscle damage shall be evaluated as no less than a moderate injury for each group of muscles damaged.  An open comminuted fracture with muscle or tendon damage will be treated as a severe injury of the muscle groups involved unless, for locations such as in the wrist or over the tibia, evidence establishes that the muscle damage is minimal.  The new criteria include such changes as the deletion of any reference to a history of unemployability as an indicator of or a prerequisite to a finding of a moderately severe injury and a deletion of the characterization of the requisite entrance and exit wounds as "large."  62 Fed. Reg. at 30238 (to be codified at 38 C.F.R. § 4.56(a), (b)).  

The Veteran asserts that an increased evaluation is warranted for the residuals of his service-connected gunshot wound to the left thigh, involving Muscle Group XIII and Muscle Group XIV. 

The record reflects that the Veteran's service treatment records disclose that he was seen in December 1964 with a 32 caliber gunshot wound to the left thigh.  It was noted that he felt fine and had no pain.  The wound looked clean and it was indicated that it should heal without trouble.  In January 1965, it was reported that the bullet had been left in place.  However, later that month, the bullet was removed from the muscle belly about one inch deep in the posterior thigh.  Following the removal, it was reported that the wound was healing well.  No erythema was noted.  On the separation examination in December 1965, the examiner noted that the gunshot wound of the left thigh was healing well.  

Post-service treatment records are primarily composed of VA records.  They reflect that the Veteran was hospitalized by the VA for unrelated complaints in January 1997.  An examination of the extremities revealed no joint, bone or muscle tenderness.  There was no edema or erythema.  No joint or bone deformities were reported.  The pertinent diagnosis was status post left leg bullet removal in the past.

The Veteran was afforded a general medical examination by the VA in March 1997.  Therein, he reported that he had no neurological sequelae from the gunshot wound, but that after walking more than a few blocks, he stated that his leg gave out.  He noted that he walked with a cane secondary to back pain.  He maintained that he had full range of motion in his left leg.  A physical examination of the musculoskeletal system revealed an entry wound in the left mid thigh.  There was good muscle strength throughout the muscle groups.  The pertinent diagnosis was trauma to the left thigh secondary to a bullet wound with subsequent pain in the left thigh and decreased functional capacity of the left leg.  

On VA examination of the muscles in September 1997, the examiner noted that he had reviewed medical records.  The Veteran reported numbness in his left leg.  He maintained that he had giving way of the leg and that it was getting worse.  He described it as a weakness.  He felt that he would fall if he did not use a cane.  He claimed that the area of the exit wound felt like a "numbing pain" ever since the surgery to remove the bullet.  He had this every day on an intermittent basis.  He alleged that he became very fatigued with one flight of stairs.  He stated that the leg pain could wake him up at night and it could be there without weight bearing.  On examination, the Veteran walked with an antalgic gait.  The entrance wound was 1.5 cm by 1.5 cm with a nonkeloid scar tissue that was nontender and nondepressed.  There was no herniation.  It went through the iliotibial tract and the vastus lateralis of the left leg in the lateral aspect.  It was about 18 centimeters above the knee and roughly midway on the lateral aspect.  The exit wound was approximately the same height above the knee, but was directly in the middle of the posterior thigh and exited between the two heads of the biceps femoris.  The exit wound was about 2.5 cm by 1.5 cm, without keloid.  It was depressed, but there was no herniation.  The exit wound was tender on palpation.  Pinprick along the entire posterior thigh appeared to be intact.  It was indicated that if you palpate with a finger, the veteran complained of an area of dyesthesia about the size of a hand, centering on the exit wound.  The Veteran could stand on his heels and toes, and squat and return to standing by standing on both feet and standing on the left leg if he had his hand supported on the table to help him.  The muscle bulk appeared symmetric.  Each thigh measured 50 cm in diameter.  There was good range of motion of the left knee, 0-140 degrees, with no complaints of pain.  Flexion of the left hip was to 110 degrees, extension was to about 10 degrees, abduction was to 25 degrees and adduction was to 20 degrees.  An X-ray study of the femur was normal, with no evidence of bony or soft tissue abnormality.  The diagnoses were status post gunshot wound to the left thigh and complaints of pain, numbness and weakness in the left thigh since the gunshot wound.  

VA outpatient treatment records show that the Veteran was seen in December 1997 and complained of chronic numbness and a tingling sensation in the left leg due to the gunshot wound.  In March 1998, he reported pain in the left hip area below the iliac crest.  There was good quadriceps strength.  Tenderness to palpation was noted below the left iliac crest.  Sensation of the left lower extremity was intact.

The Veteran was afforded a VA examination of the muscles in April 2003.  The examiner noted that he reviewed the Veteran's VA file, but not the claims folder.  The Veteran reported that his left thigh had become weaker over the past year to eighteen months.  He complained of pain daily and stated that flare-ups occur when it gives out daily.  He noted that it interfered with walking and that he used a cane because of weakness in the left thigh.  He reported muscle pain and weakness in the left leg and thigh.  There was no gross or major disfigurement.  No bone, joint or nerve damage was noted, and the Veteran appeared to have mild loss of muscle strength in the left thigh, as he used his right hand to raise the left thigh via the knee.  No muscle herniation was noted and the Veteran appeared to only have mild loss of muscle function.  He did use a cane and ambulated with a slightly antalgic gait favoring the left side.  No deformity was noted.  The examiner commented that no muscle wasting was noted and that both thighs appeared to be the same size.  The diagnosis was old gunshot wound to the left thigh with a subsequent operative removal of the bullet, with continuing musculoskeletal strain and weakness in the left thigh.  

VA outpatient treatment records show that the Veteran was seen in June 2003 and reported that the previous Friday his left leg gave out on him.  He indicated that this had been known to happen to him.  He stated that he had pain on the posterior portion of the thigh since then.  There was no numbness or tingling in the extremity.  An examination disclosed that the Veteran used a cane for ambulation.  Prior to the injury, the examiner noted that he was ambulating without any difficulty.  On examination, there were well- healed scars on the lateral posterior portion of the left thigh from a previous gunshot wound.  No atrophy was noted.  There was no muscle deformity.  There was some palpation on the belly of the quadriceps muscle on deep palpation.  The Veteran was able to flex and extend the leg with only minor discomfort.  The assessment was left leg pain, muscular in nature. 

The Veteran underwent a VA neurological examination in March 2006.  The examiner, who indicated that he reviewed the Veteran's claims file, reported that the Veteran had suffered an injury to the distal portion of the left posterior femoral cutaneous nerve.  The examiner further indicated that because of the location of the visible entry scar, that it was very possible that the damage to such nerve was a result of the Veteran's entry scar.  However, the examiner noted that it was also possible that degenerative disc disease was causing radicular type pain that was affecting the left leg.  The examiner indicated that neurophysiologic studies should help confirm such involvement.

The Veteran was afforded a VA muscles examination in April 2006.  Therein, he reported that his leg gave him trouble and gave out on him from time to time (approximately 25-30 times in the past year).  On physical examination the examiner, who indicated that he had reviewed the Veteran's claims file, reported that there was a 1.5 x 1 cm entrance wound over the left lateral thigh.  This was 15 cm above the lever of the superior pole of the patella with the leg in extension along the lateral margin.  This entrance wound, on the way to the posterior aspect of the femur, would have been expected to injure the following muscles during the flight of the missile: intermedius, semimembranosus, semitendiousus, and biceps femoris musculature.  These are muscles involving both portions of the hamstring musculature.  A 2.5 cm exit wound was noted over the posterior mid thigh from where it was operatively removed.  No gross deficiency of either quad was noted grossly.  No excess sensitivity of the scar was noted and no pain with firm palpation.  Muscle strength with flexion and extension of the knee was symmetric when compared to the contralateral side, 5/5 muscle strength was noted.  He was able to stand on his tiptoes as well as his heels.  Repetitive movements of the thigh in the form of deep knee bends were performed, isolating one side and then the contralateral side.  Repetitive deep knee bends, on the left compared to the right, was noted to have increased fatigability on the left side when compared to the contralateral side.  The examiner indicated that that there was loss of power, weakness, and a lower of threshold of fatigue with repetitive testing.  However, he did not note increased fatigue pain, impairment of coordination or uncertainty of movement in the Veteran's muscles.  The examiner indicated that he would consider that the Veteran's disability associated with his injury was moderate in the reported muscle groups with regards to the cardinal signs and symptoms.  

An October 2006 VA EMG consultation note shows that electrophysiological studies, including bilateral motor conduction and F-wave studies, bilateral sural (sensory) nerve conduction studies, and EMG sampling, of the Veteran's lower extremities were consistent with a peripheral neuropathy with superimposed L5-S1 radiculopathy, left worse than right.  

A December 2007 VA general examination report shows that the Veteran reported that his left leg gave out (secondary to his left thigh gunshot wound) periodically and that he used a cane constantly.  On physical examination, the examiner noted that the Veteran did not have a normal gait, had poor propulsion, and used a cane.  However, an examination of the Veteran's lower extremities was normal.  Likewise, there was no left side motor loss, Babinski's sign was normal, and deep tendon reflexes were 2+ for the triceps, brachioradialis, knee jerk, and ankle jerk.

In a September 2008 VA opinion, the same examiner who performed the Veteran's December 2007 VA examination reported that the Veteran could not perform any sports, secondary to his left thigh gunshot wound.  He could use a treadmill for exercise and could dress, bathe, toilet, and eat ok.  He could not get on a ladder to change a light bulb and his work functions were not affected by the gunshot wound to the left thigh as he was a duplicator of images off of a plate onto other images.

The Veteran was again afforded a VA orthopedic examination in January 2009.  He reported that his left leg gave out, but that it was a problem that began with his back.  He also indicated that he was unable to stand for more than a few minutes and that he was unable to walk more than a few yards.  The examiner, who indicated that he had reviewed the Veteran's claim file, reported the following ranges of motion for the Veteran's left hip: flexion of 110 degrees (active and passive); extension of 20 degrees (active and passive); internal rotation of 30 degrees (active and passive); external rotation of 40 degrees (active and passive); left adduction of 20 degrees (active and passive); and left abduction of 35 degrees (active and passive).  Ranges of motion for the Veteran's left knee were as follows: flexion of 110 degrees (active and passive) and extension of 0 degrees (active and passive).  X-rays of the Veteran's left hip, knee, and femur, did not show any fractures, soft tissue abnormalities, or retained bullet fragments.  The examiner reported that the Veteran had an antalgic gait and that his left leg length was 37 inches and his right leg length was 38 inches.  His calf size at the entry wound was 19" on the left side and 20" on the right side.  The examiner also reported that the entry wound on the anterolateral left thigh was 1.5 by 1 cm and it was not tender or adherent.  A 2 by 1.6 cm exit wound scar was on the left posterior thigh and it was also not tender or adherent.  The examiner's diagnosis was left thigh gunshot wound of muscle groups XIII and XIV with mild loss of muscle bulk of vastus lateralis, vastus intermedius, semimembranosus, semitendinosus, biceps femoris, hamstrings, and a portion of the quadriceps muscles.  Such disability had no effect on his ability to feed himself, a moderate effect on chores, shopping, recreation, traveling, bathing, dressing, toileting, grooming, and driving, and a severe effect on exercise and sports.  

On VA neurological examination in January 2009, the examiner reported that the Veteran had mild left foot drop.  On sensory examination, light touch, pin prick, and vibratory sense testing was not normal.  The examiner indicated that there was a decrease in sensation in both legs in the distribution of the lumbar four through sacral second nerves.  This was in the foot where the Veteran had a decrease in sensation in the distribution of the medial and lateral plantar nerves, tibial nerves, sural nerves, and deep peroneal nerves.  This was a bilateral finding.  The examiner's diagnosis was peripheral neuropathy, sciatic radiculopathy secondary to spinal stenosis, and mild left sacroiliac degenerative joint disease.  The examiner also indicated that with regard to the Veteran's prior EMG, the Veteran had a radiculopathy on that test, which could be consistent with spinal cord problems and he also had peripheral neuropathy that was present in both legs, which made it unlikely that it was due to the gunshot wound to the left leg.  Additionally, the Veteran had two conditions which were associated with a peripheral neuropathy--hepatitis C infection and the presence of chronic alcoholism.  The examiner also opined that it was more likely than not that the Veteran's hepatitis C infection and chronic alcoholism was the cause of his neuropathy.  He further stated that because of the bilateral presence of the peripheral neuropathy, it was less likely than not that it was due to the Veteran's left gunshot wound.  

A. Residuals of a Gunshot Wound to the Left Posterior Thigh, involving Muscle Group XIII

The Veteran is currently assigned a 10 percent evaluation under 38 C.F.R. § 4.73, Diagnostic Code 5313 which pertains to residuals of injury to Muscle Group XIII The function of these muscles is as follows: Extension of hip and flexion of knee; outward and inward rotation of flexed knee; acting with rectus femoris and sartorius (see XIV, 1, 2) synchronizing simultaneous flexion of hip and knee and extension of hip and knee by belt-over-pulley action at knee joint.  The muscles include the posterior thigh group, and hamstring complex of 2-joint muscles: (1) Biceps femoris; (2) semimembranosus; (3) semitendinosus.  

Under Diagnostic Code 5313, a 10 percent evaluation reflects moderate muscle disability.  38 C.F.R. § 4.56(d)(3) describes 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.

In order to achieve the next higher, 30 percent evaluation, the Veteran's left posterior thigh disability must manifest moderately severe symptomatology.  A moderately severe muscle disability is described as: (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. See 38 C.F.R. § 4.56(d)(3).

After reviewing the evidence of record, the Board finds that the current disability most closely approximates the criteria for a 10 percent evaluation.  Here, the records show that a 32-caliber bullet was removed from the Veteran's posterior thigh, using Lidocaine anesthesia.  They do not reflect a prolonged period of hospitalization for such left posterior thigh gunshot wound or show sloughing of soft parts.  

The records do show that the Veteran has consistently complained of one or more of the cardinal signs or symptoms of muscle disability as defined by 38 C.F.R. § 4.56(c), which in this case is pain in the back of his thigh.  However, there is no objective evidence of record that such pain has caused the Veteran to be unable to keep up with his work assignments.  Indeed, the September 2008 VA muscles examination report shows that the Veteran retired in 1990 and was not actively seeking employment.  The Veteran has submitted a statement from a work colleague who states that the left leg disability caused problems at work.  The available SSA records reveal that the Veteran was deemed unemployable for SSA purposes due to disability of the spine and because of psychiatric disability.  While complete medical records were destroyed, the decisional documents do not detail detrimental effects caused by the service-connected gunshot wound disabilities.  

Moreover, there is no objective evidence of record which demonstrates that the Veteran has entrance and exit scars that indicate the track of the missile through his left posterior thigh.  Indeed, examiners have only reported one scar on the posterior part of the left thigh.  Additionally, there is no evidence that the bullet caused injury to any bones.  

Further, the objective evidence of record does not demonstrate that the Veteran has any neurological damage as a result of the residuals of his right posterior thigh gunshot wound.  In this regard, although the record shows that the Veteran experienced decreased sensation in his left leg, in January 2009, a VA examiner, after a review of the Veteran's claims file and his October 2006 VA EMG study, found that such peripheral neuropathy was not due to the Veteran's gunshot wound, but rather due to his hepatitis C infection and chronic alcoholism.

The objective medical evidence of record also does not show that the residuals of the Veteran's Muscle Group XIII injury has resulted in loss of fascia, muscle substance or normal firm resistance of muscles compared with the sound side, or that tests of strength and endurance compared with sound side demonstrate positive evidence of impairment.   Indeed as noted above, on VA general medical examination in March 1997 good muscle strength was present.  On VA examination each thigh measured 50 centimeters in diameter.  Further, although the April 2003 VA examination report reflects mild loss of muscle function, there was no muscle herniation or wasting and both thighs appeared to be the same size. Additionally, on examination in June 2003, the examiner stated that no atrophy was present, nor was there any muscle deformity.  Likewise, on VA examination in April 2006, no gross deficiency of the Veteran's quad was noted, muscle strength with flexion and extension of the knee was symmetric when compared to the contralateral side, and 5/5 muscle strength was noted.  Further, on VA examination in December 2007, the examiner reported that the Veteran's lower extremities were normal with no left side motor loss. Additionally, although the January 2009 VA examiner reported that there was loss of muscle bulk, such loss was described as being mild.  Further, the April 2006 VA examiner reported that the residuals of the Veteran's left thigh gunshot wound affecting the biceps femoris, semitendinosus, and semimembranosus were moderate in severity.  

Therefore, based on these clinical findings, the Board concludes that throughout the rating period on appeal, the Veteran is not entitled to a higher, 30 percent evaluation under 38 C.F.R. § 4.73, Diagnostic Code 5313 for moderately severe symptomatology, and that the currently assigned 10 percent evaluation, for moderate symptomatology, more nearly approximates the Veteran's current disability picture.  

In making this determination, the Board has considered the evidence of record documenting the Veteran's standing limitation, difficulty with gait, as well as the effect of the disability on the Veteran's ability to perform activities of daily living.  The Veteran is reminded, however, that he is also in receipt of a separate 30 percent rating for the service-connected muscle injury to muscle group XIV and a 10 percent rating for the service-connected residual scar.  The weight of the medical evidence does not show that the difficulty with standing or any gait problems is the result of the injury to muscle group XIII.  To the extent that it is, the Board nevertheless finds that the disability is adequately compensated by the 10 percent rating assigned.  

The Board has also considered whether an increased evaluation could be afforded the Veteran under other potentially applicable diagnostic codes.  As the evidence of record demonstrates that the Veteran's thigh and knee are involved, 38 C.F.R. § 4.71a, Diagnostic Codes 5251, 5252, and 5253 (pertaining to limitation of motion of the thigh) and 5260 (pertaining to limitation of flexion of the knee) are available for application.

Under Diagnostic Code 5251, a 10 percent evaluation is warranted for limitation of extension of the thigh to 5 degrees.  Such evaluation is the maximum evaluation assignable.  Therefore, the Veteran is not entitled to an increased evaluation under such diagnostic code.  

Under Diagnostic Code 5252, flexion limited to 45 degrees warrants a 10 percent evaluation. Limitation to 30 degrees will be evaluated as 20 percent disabling, and limitation to 20 degrees will be evaluated as 30 percent disabling.  A 40 percent evaluation is warranted for limitation of thigh flexion to 10 degrees. Here, the record does not demonstrate that the Veteran's left thigh flexion was limited to 10 degrees. Indeed on VA examination in September 1997 and January 2009, he could flex his left hip to 110 degrees.  Therefore, the Board concludes that the Veteran is not entitled to an increased evaluation under Diagnostic Code 5252.  

Impairment of the thigh with limitation of adduction and an inability to cross legs, or limitation of rotation with an inability to toe-out the affected leg more than 15 degrees warrants a 10 percent evaluation.  Limitation of abduction of a thigh with motion lost beyond 10 degrees warrants a 20 percent evaluation.  Diagnostic Code 5253.  However, on VA examination in September 1997, the Veteran could abduct his left hip to 25 degrees.  Likewise, on VA examination in January 2009, the Veteran could abduct his left hip to 35 degrees.  

Diagnostic Code 5260 pertains to limitation of leg flexion.  Under this Code, a 10 percent evaluation is warranted for leg flexion that is limited to 45 degrees. In order to achieve a 20 percent evaluation under this Code, the evidence must demonstrate leg flexion that is limited to 30 degrees.  A 30 percent rating applies where leg flexion is limited to 15 degrees.  The Board observes that because a 30 percent rating is the highest evaluation available under Diagnostic Code 5260, that an increased evaluation is not possible under such code.  

Additionally, the Board has considered the provisions of 38 C.F.R. §§ 4.40 and 4.45 as interpreted in DeLuca v. Brown, 8 Vet. App. 202 (1995).  The record demonstrates that the Veteran has complained of pain in his left thigh, which has been acknowledged and confirmed by VA examiners.  The Board, however, finds that an additional evaluation for pain under these provisions is not appropriate in this instance. Pain and functional impairment are already considerations of 38 C.F.R. 4.56 and DC 5313 and, thus, the Veteran has already been compensated consistent with his symptoms for impairment of the left posterior thigh under these criteria.  Thus, he has already been compensated for painful motion and any functional loss. 38 C.F.R. §§ 4.40, 4.45; De Luca, supra.  Further, there has been no demonstration by competent clinical evidence of record that the additional functional impairment due to pain, including on use, is comparable to the criteria for a rating in excess of 10 percent under any applicable Diagnostic Code based on limitation of motion.  

In conclusion, the Board finds that throughout the rating period on appeal the preponderance of the evidence is against the Veteran's claim for an evaluation in excess of 10 percent for residuals of a gunshot wound to the left posterior thigh, involving Muscle Group XIII.  As the preponderance of the evidence is against the claim for a higher rating, the benefit of the doubt rule is not applicable, and the claim must be denied.  38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990).

B. Residuals of a Gunshot Wound to the Left Anterior Thigh, involving Muscle Group XIV

The Veteran's left leg residuals of a gunshot wound to the left anterior thigh disability, involving Muscle Group XIV is currently evaluated a 30 percent evaluation under 38 C.F.R. § 4.73, Diagnostic Code 5314, which reflects moderately severe muscle disability.  38 C.F.R. § 4.56(d)(3) describes 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.  In order to warrant the maximum 40 percent evaluation for a severe Group XIV muscle injury, the evidence must show: ragged, depressed and adherent scars indicating wide damage to muscle groups in missile track; muscles that swell and harden abnormally in contraction, X-ray evidence of minute multiple scattered foreign bodies indicating intermuscular trauma and explosive effect of the missile; 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; diminished muscle excitability to pulsed electrical current in electrodiagnostic tests; visible or measurable atrophy; adaptive contraction of an opposing group of muscles; and/ or induration or atrophy of an entire muscle following simple piercing by a projectile.

In weighing the lay and clinical evidence of record, the Board finds that the Veteran is not entitled to an evaluation in excess of 30 percent for his residuals of a gunshot wound to the left anterior thigh disability, involving Muscle Group XIV.  Although the record shows that the Veteran has entrance and wound scars, there is no evidence of wide damage to the muscle groups (here Muscle Group XIV) in the missile track due to adherent scars.  Indeed, on VA examination in January 2009, the examiner reported that the scars were not adherent.  Consequently, as the evidence does not demonstrate that the Veteran's scars are adherent, there is also no evidence of adhesion of a scar to one of the long bones, with epithelial sealing over the bone rather than true skin covering in an area where bone is normally protected by muscle.

There is also no evidence of visible or measurable atrophy, adaptive contraction of an opposing group of muscles, induration or atrophy of an entire muscle following simple piercing by a projectile, or evidence that the Veteran's thigh muscles swell and harden abnormally in contraction.  Indeed as noted above, on VA general medical examination in March 1997 good muscle strength was present.  On VA examination each thigh measured 50 centimeters in diameter.  Further, although the April 2003 VA examination report reflects mild loss of muscle function, there was no muscle herniation or wasting and both thighs appeared to be the same size. Additionally, on examination in June 2003, the examiner indicated that no atrophy was present, nor was there any muscle deformity.  Likewise, on VA examination in April 2006, no gross deficiency of the Veteran's quad was noted, muscle strength with flexion and extension of the knee was symmetric when compared to the contralteral side, and 5/5 muscle strength was noted.  Further, on VA examination in December 2007, the examiner reported that the Veteran's lower extremities were normal with no left side motor loss.  Additionally, although the January 2009 VA examiner reported that there was mild loss of muscle bulk, there is no evidence that it was due to atrophy.

Further, there is no evidence of diminished muscle excitability to pulsed electrical current in electrodiagnostic tests.  Indeed, although the record shows that the Veteran experienced decreased sensation in his left leg, in January 2009, a VA examiner, after a review of the Veteran's claims file and his October 2006 VA EMG study, found that such peripheral neuropathy was not due to the Veteran's gunshot wound, but rather due to his hepatitis C infection and chronic alcoholism.

There is also no x-ray evidence of minute multiple scattered foreign bodies indicating intermuscular trauma and explosive effect of the missile.  Indeed, a September 1997 x-ray showed that the Veteran's femur was normal.  Likewise, x-rays taken in January 2009 of the Veteran's left hip, knee, and femur, did not show any fractures, soft tissue abnormalities, or bullet fragments.  

Significantly, the April 2006 VA examiner reported that the residuals of the Veteran's left thigh gunshot wound were moderate in severity.

Therefore, based on these clinical findings, the Board concludes that throughout the rating period on appeal, the Veteran is not entitled to a higher, 40 percent evaluation under 38 C.F.R. § 4.73, Diagnostic Code 5314 for severe symptomatology, and that the currently assigned 30 percent evaluation, for moderate symptomatology, more nearly approximates the Veteran's current disability picture.    

Additionally, the Board has considered the provisions of 38 C.F.R. §§ 4.40 and 4.45 as interpreted in DeLuca v. Brown, 8 Vet. App. 202 (1995).  The record demonstrates that the Veteran has complained of pain in his left thigh, which has been acknowledged and confirmed by VA examiners.  However, the Board finds that an additional evaluation for pain under these provisions is not appropriate in this instance.  Pain and functional impairment are already considerations of 38 C.F.R. 4.56 and DC 5314 and, thus, the Veteran has already been compensated consistent with his symptoms for impairment of the left thigh under these criteria.  Thus, he has already been compensated for painful motion and any functional loss. 38 C.F.R. §§ 4.40, 4.45; De Luca, supra.  Further, there has been no demonstration by competent clinical evidence of record that the additional functional impairment due to pain, including on use, is comparable to the criteria for a rating in excess of 30 percent under any applicable Diagnostic Code based on limitation of motion.

The Board has also considered whether an increased evaluation could be afforded the Veteran under other potentially applicable diagnostic codes.  As the evidence of record demonstrates that the Veteran's left hip and thigh are involved, 38 C.F.R. § 4.71a, Diagnostic Codes 5252 (pertaining to flexion of the thigh), 5260 (pertaining to limitation of flexion of the leg) and 5261 (pertaining to limitation of extension) are available for application.  

Under Diagnostic Code 5252, where flexion of the thigh is limited to 45 degrees, a 10 percent evaluation is warranted.  Limitation to 30 degrees will be evaluated as 20 percent disabling, and limitation to 20 degrees will be evaluated as 30 percent disabling. A 40 percent evaluation is warranted for limitation of thigh flexion to 10 degrees. In this case, the record does not demonstrate that the Veteran's left thigh flexion was limited to 10 degrees.  Indeed on VA examination in September 1997 and January 2009, he could flex his left hip to 110 degrees.  Therefore, the Board concludes that the veteran is not entitled to an increased evaluation under Diagnostic Code 5252.

Diagnostic Code 5260 pertains to limitation of leg flexion.  Under this Code, a 10 percent evaluation is warranted for leg flexion that is limited to 45 degrees. In order to achieve a 20 percent evaluation under this Code, the evidence must demonstrate leg flexion that is limited to 30 degrees. A 30 percent rating applies where leg flexion is limited to 15 degrees.  The Board observes that because a 30 percent rating is the highest evaluation available under Diagnostic Code 5260, that an increased evaluation is not possible under such code.  

Diagnostic Code 5261 concerns limitation of extension of the leg.  Under this code, a noncompensable evaluation is assigned where leg extension is limited to 5 degrees.  A 10 percent rating is warranted where leg extension is limited to 10 degrees.  A 20 percent evaluation is warranted where leg extension is limited to 15 degrees.  A 30 percent evaluation is warranted where leg extension is limited to 20 degrees.  A 40 percent evaluation is warranted where leg extension is limited to 30 degrees.  A 50 percent evaluation is warranted where leg extension is limited to 45 degrees.  However, the evidence of record does not demonstrate that the Veteran's left leg extension is limited to 40 degrees.  In this regard, on VA examination in September 1997 and on VA examination in January 2009, the Veteran could extend his left knee to 0 degrees.  Therefore, the Board concludes that the Veteran is not entitled to an increased evaluation under Diagnostic Code 5261.  

Similarly, the Board has considered whether the residuals of the gunshot wound to the left thigh result in separately compensable residuals.  In its July 2009 decision, the Board previously determined that the disability resulted in a compensable tender and painful left thigh posterior exit wound scar.  That portion of the decision was not disturbed on appeal.  Other than the posterior exit wound scar, the Board does not find that the disability results in other separately compensable residuals.  While the Veteran has a left anterior thigh scar, it is not tender or painful, is not deep or cause limited motion, the Veteran is not entitled to a compensable rating under evaluation is not warranted under Diagnostic Code 7800, 7801, 7802 (effective prior to August 30, 2002).  The Board also notes that because the Veteran does not have disfigurement of the head, face or neck, a separate compensable rating is not warranted under Diagnostic Code 7800 (effective since August 30, 2002). With respect to Diagnostic Code 7805 (as in effect both prior to and from August 30, 2002), where scars are rated on limitation of function of the part affected, there is no evidence that the Veteran's scar causes limitation of motion in the Veteran's thigh. In conclusion, the Board finds that the Veteran is not entitled to a separate evaluation under the old or revised regulations pertaining to scars for his left lateral thigh gunshot wound scar.  See Diagnostic Codes 7801, 7802, 7803, or 7804 (effective since August 30, 2002).  Similarly, while the Veteran reports neurologic symptoms, those have been attributed to other non-service-connected disabilities.  

In conclusion, the Board finds that throughout the rating period on appeal that, the currently assigned 30 percent evaluation is appropriate and that the preponderance of the evidence is against the Veteran's claim for a higher evaluation for residuals of a gunshot wound to the left anterior thigh, involving Muscle Group XIV.  As the preponderance of the evidence is against the claim for a higher rating, the benefit of the doubt rule is not applicable, and the claim must be denied.  See 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 

C.  Gastritis and Duodenitis

The Veteran asserts that an increased evaluation is warranted for his service-connected gastritis and duodenitis, with history of peptic ulcer disease.  Specifically, he alleges that he is entitled to a separate rating of at least 10 percent for gastritis.  He contends that since gastritis and duodenitis involve impairment of separate organs that it would not result in pyramiding to assign multiple compensable evaluations.  At the outset, the Board notes that the Veteran filed his claim for an increased evaluation for such disability on July 30, 1999.  Therefore, the rating period for consideration on appeal begins July 30, 1998, one year prior to the date of receipt of the claim upon which the April 2000 Notice of Disagreement was based. 38 C.F.R. § 3.400(o)(2).

Weight loss is important where there is appreciable loss sustained over a period of time, as opposed to minor weight loss or a greater loss for a brief period of time. 38 C.F.R. § 4.112 (2010).

Certain provisions of 38 C.F.R. § 4.114 were revised, effective July 2, 2001.  None of the diagnostic codes applicable to this case was changed, however.  The Board takes notice of the fact that certain symptomatology may not be present at all times. In fact, the diagnostic criteria recognize this fact by referring to "occasional episodes" of pertinent symptomatology.

The Veteran's service-connected gastrointestinal disability is currently evaluated as 20 percent disabling under the provisions of 38 C.F.R. § 4.114, Diagnostic Code 7305, which pertains to duodenal ulcers.  Such evaluation is warranted for moderate duodenal ulcer disease with recurring episodes of severe symptoms two or three times a year averaging 10 days in duration or with continuous moderate manifestations.  In order to achieve, the next highest, 40 percent evaluation, the evidence must demonstrate moderately severe duodenal ulcer disease with less than severe symptoms, but with impairment of health manifested by anemia and weight loss or recurrent incapacitating episodes averaging 10 days or more in duration at least four or more times a year.  

The record reflects that between 1998 to 2008, the Veteran complained of, and sought treatment for constant abdominal pain in the epigastric area on numerous occasions, including for compensation and pension purposes.  Such abdominal pain has been diagnosed by examiners as peptic ulcer disease and/or gastritis and it has been treated with various medications, including Lansoprazole, Sucralfate, Prilosec, Prevacid, and Simethicone.  During this time, the record reflects that the Veteran's weight was consistently between 170 pounds and 200 pounds.  However, a June 2002 VA outpatient treatment record reflects that the examiner noted that the Veteran had weight loss and that the Veteran would be worked up for the possible causes of it.  

On VA gastrointestinal examination in September 1998, the Veteran reported that he had difficulty keeping food down and had constipation regularly without any diarrhea.  He also reported that he had continued to have a burning sensation in his stomach and that he experienced episodes of colon colic distension, nausea, and vomiting about three times per day on a daily basis.  On examination, the examiner reported that the Veteran currently weighed 167 pounds, but had had a 25 pound weight loss.  The examiner also reported that the Veteran did not have any pain or tenderness on examination and was without any distension, hepatosplenomegaly, or evidence of hypertension.

On VA gastrointestinal examination in November 1999, the Veteran complained of experiencing abdominal discomfort.  He also reported that he vomited when he ate greasy foods and that this would occur two to three times per week, depending on his diet.  He also indicated that if he did not eat those foods, then he would not vomit.  The Veteran denied hemoptysis or disturbances after meals.  Diarrhea occurred two to three times per week.  He occasionally got abdominal colic, but no nausea.  He further indicated that he had not had an appetite for 25 to 35 years and that it was very difficult to maintain his weight. 

On physical examination, the examiner reported that the specific site of the Veteran's ulcer disease seemed to be his stomach and duodenum.  The examiner further reported that the Veteran weighed 176 pounds, but that he had had a weight loss of 20-30 pounds over the last one to two months.  However, the examiner indicated that there were no signs of anemia.  On VA examination in April 2006, the Veteran complained of experiencing gas and dyspepsia, for which he took Simethicone and Omeprazolee.  He specifically denied problems with dysphagia, constipation, or diarrhea.  The Veteran admitted to using enemas daily for his bowels, but could not really specify why.  The examiner diagnosed him with chronic reflux and dyspepsia with a history of gastritis, duodenitis and possible diagnosis of ulcer disease in 1965, although the radiologic studies were not definitive.  The examiner further reported that the Veteran had a positive hepatitis C antibody test and evidence of past hepatitis A and B infection and well-documented past intravenous drug use.  There was no active hepatitis C disease at that time.  Although the Veteran indicated that he had underwent a flexible sigmoidoscopy in the past, the examiner stated that without a specific diagnosis, she was unable to verify the results of such evaluation because the Veteran was an unreliable historian and there was no evidence of flexible sigmoidoscopy in the records available on that day.

On VA examination in December 2007, the Veteran reported that his current symptoms were an annoying type of aching pain in his stomach all the time and that he did not have any appetite at all when the pain was there.  He further reported that he experienced pain every day at no particular time before or after meals.  He also indicated that he took Omeprazole and over-the-counter Simethicone and Tums-like tablets so frequently that he called them "candy."  The Veteran denied a history of nausea, constipation, hemorrhoids, abdominal mass, abdominal swelling, regurgitation, jaundice, hematemsesis, melena, pancreatitis, gall bladder attacks, or fecal incontinence.  However, he reported a history of abdominal pain in the mid to low central abdomen, vomiting, diarrhea, indigestion, and heartburn.  The examiner reported that the Veteran currently weighed 185 pounds, but that he had weighed about 205 pounds six months prior.  The examiner also indicated that there was no history of anemia.  Further, although the Veteran denied undergoing any abdominal surgery, the examiner noted that he had undergone an upper GI endoscopy in October 2007 after throwing up bright red blood and that the impression was that of chronic gastritis without hemorrhage and that that the examination was otherwise normal.  

On physical examination, the examiner reported that the Veteran's bowel sounds were normal and that there was no other abnormality of auscultation.  The examiner reported that the mid abdomen was aching throughout, but there was not rebound or guarding.  He also indicated that there was not a palpable mass, a hernia, or ascites present, or abnormal guarding, and that the liver and spleen were normal.  The examiner also indicated that there were no periods of incapacitation.  The record reflects that blood was tested.  However, the examiner noted that the Veteran's hemic exam was normal.  The examiner's diagnosis was gastritis, duodenitis and history of peptic ulcer disease.  

VA outpatient treatment records in 2008, 2009, and 2010 only contain isolated references to gastritis or duodenitis.  Laboratory results in December 2009 showed normal white and red cell counts and did not include findings of anemia.  His weight in April 2010 was 189 pounds.  

It is not until January 2011 that he was seen again for treatment with a chief complaint of stomach pain.  He reported that he took 6 alka-seltzers a day plus drank milk to alleviate the pain.  Other alleviating factors were "putting food in the stomach; alcoholic beverage."  The examiner noted, however, that by the time of examination, he was not having any pain and the pain was likely gastritis.  His abdomen was soft; there was no tenderness, guarding, or rigidity.  He was restarted on omeprazole and simethicone.   

In weighing the clinical evidence of record, the Board finds that an evaluation greater than 20 percent is not warranted.  The Board acknowledges that the Veteran has experienced some weight loss.  However, the weight of the probative evidence does not demonstrate that the Veteran experiences anemia.  In fact, in November 1999 and December 2007 VA examiners specifically indicated that there was no history of anemia.  Further, there has been no demonstration of recurrent incapacitating episodes.  Indeed, the December 2007 VA examiner specifically indicated that there were no periods of incapacitation.  As such, the Board finds that the manifestations of the disability at issue more nearly approximate the criteria for the current 20 percent disability rating.

In reaching this decision, the Board has also considered other applicable Diagnostic Codes.  Here, because the evidence of record shows that the Veteran has been diagnosed with gastritis, 38 C.F.R. § 4.114, DC 7307, pertaining to chronic hypertrophic gastritis is applicable.  Under this diagnostic code, chronic hypertrophic gastritis, with small nodular lesions and symptoms, warrants a 10 percent evaluation.  A 30 percent evaluation is warranted in cases of multiple small eroded or ulcerated areas and symptoms.  A 60 percent evaluation is warranted in cases of severe hemorrhages or large ulcerated or eroded areas. 38 C.F.R. § 4.114, DC 7307.  However, the evidence of record does not demonstrate that the Veteran's gastritis is manifested by multiple small eroded or ulcerated areas severe hemorrhages and/or large ulcerated or eroded areas.  Therefore, the Board finds that an increased evaluation is not warranted under Diagnostic Code 7307.  It also follows that a separately compensable evaluation for gastritis is not warranted.  Here, the duodenal ulcer disability is the predominant condition.  38 C.F.R. § 4.114 instructs that rating under Diagnostic Codes 7301 to 7329 "will not be combined with each other."  Rather, a single evaluation will be assigned under the Diagnostic Code that reflects the predominant disability.  

The Board has also considered Diagnostic Code 7304 (pertaining to gastric ulcers) and Diagnostic Code 7306 (pertaining to marginal (gastrojejunal) ulcers)).  However, inasmuch as no stomach ulceration has been shown by the medical evidence of record, there is no basis for a compensable evaluation for a gastric or marginal (gastrojejunal) ulcer under Diagnostic Codes 7304 or 7306.  

Pursuant to Diagnostic Code 7319, a rating of 30 percent is warranted only for severe diarrhea, or alternating diarrhea and constipation, with more or less constant abdominal distress.  The record reflects that the Veteran has reported experiencing a constant aching pain in his stomach.  With respect to whether the Veteran experiences diarrhea, on VA examination in September 1998 and April 2006, the Veteran denied a history of diarrhea.  However, he reported experiencing such condition on VA examination in November 1999.  Likewise, on VA examination in December 2007, he reported a history of diarrhea.  However, the clinical evidence of record does not demonstrate that any diarrhea that the Veteran experiences is severe.  Indeed, on VA examination in November 1999, he reported that his diarrhea occurred two or three times per week. Moreover, the record does not reflect that the Veteran consistently experiences constipation.  In this regard, on VA examination in September 1998, the Veteran reported that he experienced constipation regularly.  However, on VA examination in April 2006 and December 2007, he denied experiencing constipation.  Additionally, the clinical evidence of record does not demonstrate that there is alternating diarrhea and constipation. Therefore, in weighing such clinical evidence, the Board finds that a higher evaluation is not warranted under Diagnostic Code 7319 (irritable colon syndrome, spastic colitis, mucous colitis, etc.).

Pursuant to Diagnostic Code 7346, pertaining to hiatal hernias, a 30 percent evaluation is warranted when there is persistently recurrent epigastric distress with dysphagia, pyrosis, and regurgitation, accompanied by substernal or arm or shoulder pain, productive of considerable impairment of health.  However, although the Veteran has reported a history of heartburn, he has also denied a history of dysphagia and regurgitation. T here is also no evidence of substernal or arm or shoulder pain.  Therefore, the Veteran is not entitled to a higher evaluation under Diagnostic Code 7346.

In conclusion, for all of the foregoing reasons, the Board finds that throughout the rating period of appeal, the 20 percent evaluation in effect for the Veteran's gastritis and duodenitis, with history of peptic ulcer disease is appropriate and a higher evaluation is not warranted.  As the preponderance of the evidence is against the claim, the benefit of the doubt rule is not applicable.  See 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990). 

D.  Extra-Schedular Consideration

Pursuant to § 3.321(b)(1), the Under Secretary for Benefits or the Director, Compensation and Pension Service, is authorized to approve an extraschedular evaluation if the case "presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical the application of the regular schedular standards."  38 C.F.R. § 3.321(b)(1) (2010).

The question of an extraschedular rating is a component of a claim for an increased rating.  See Bagwell v. Brown, 9 Vet. App. 337, 339 (1996).  Although the Board may not assign an extraschedular rating in the first instance, it must specifically adjudicate whether to refer a case for extraschedular evaluation when the issue either is raised by the claimant or is reasonably raised by the evidence of record. Barringer v. Peake, 22 Vet. App. 242 (2008).  

If the evidence raises the question of entitlement to an extraschedular rating, the threshold factor for extraschedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service- connected disability are inadequate. Therefore, initially, there must be a comparison between the level of severity and symptomatology of the claimant's service-connected disability with the established criteria found in the rating schedule for that disability.  Thun v. Peake, 22 Vet. App. 111 (2008).

Under the approach prescribed by VA, if the criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule, the assigned schedular evaluation is, therefore, adequate, and no referral is required. In the second step of the inquiry, however, if the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, the RO or Board must determine whether the claimant's exceptional disability picture exhibits other related factors such as those provided by the regulation as "governing norms."  38 C.F.R. 3.321(b)(1) (related factors include "marked interference with employment" and "frequent periods of hospitalization").

Here, the evidence reveals that the Veteran has been unemployed for an extended period of time, that he is in receipt of Social Security benefits and that he is totally disabled for VA purposes as a result of a service-connected psychiatric disability.  As described above, however, the Veteran's symptoms pertaining to the residuals of the gunshot wound or to gastritis and duodenitis are contemplated by the pertinent rating criteria.  Hence, referral for consideration of an extraschedular rating is not warranted.



ORDER

Entitlement to an increased rating in excess of 10 percent for residuals of a gunshot wound of the left posterior thigh involving Muscle Group XIII is denied.  

Entitlement to an increased rating in excess of 30 percent for residuals of a gunshot wound of the left anterior thigh involving Muscle Group XIV is denied.  

Entitlement to an increased rating in excess of 20 percent for gastritis and duodenitis with history of peptic ulcer disease is denied.  



____________________________________________
ROBERT E. SULLIVAN
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs