Citation Nr: 1300693 Decision Date: 01/08/13 Archive Date: 01/16/13 DOCKET NO. 99-19 930 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to an increased rating for residuals of a shell fragment wound to the left thigh with partial paralysis of the anterior crural nerve, currently evaluated as 20 percent disabling. REPRESENTATION Appellant represented by: Vietnam Veterans of America ATTORNEY FOR THE BOARD J. Hager, Counsel INTRODUCTION The Veteran had active service from November 1965 to May 1966 and from May 1967 to May 1970. He served in the Republic of Vietnam and received the Combat Action Ribbon and the Purple Heart Medal with one gold star. The current appeal arose from a February 1999 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas, which declined to reopen the Veteran's claim of entitlement to service connection for PTSD and assigned a 20 percent rating for residuals of a shell fragment wound to the left thigh with partial paralysis of the anterior crural nerve, effective July 24, 1998. When the case was before the Board in July 2003, the Board reopened the Veteran's PTSD claim and remanded that issue as well as the issue of an increased rating for the veteran's shrapnel fragment wound, which was characterized to include two residual scars. In an April 2004 rating decision, the RO established service connection for disability to muscle group XIII with a 30 percent evaluation, muscle group XV with a 20 percent evaluation, and for peripheral neuropathy of the left lower extremity with a 20 percent evaluation, all as residuals of the veteran's shrapnel fragment injury. The RO additionally issued a supplemental statement of the case regarding the issue of entitlement to separate compensable evaluations for associated scars. The Veteran did not indicate his disagreement with the April 2004 rating decision. Therefore, in its November 2005 decision, the Board limited its review to the issue of an increased rating for a shrapnel fragment wound to the left thigh with partial paralysis of the anterior crural nerve. In the November 2005 decision, the Board denied entitlement to service connection for PTSD and an increased rating for a shrapnel fragment wound to the left thigh with partial paralysis of the anterior crural nerve. The Veteran appealed the Board's November 2005 decision to the Court of Appeals for Veterans Claims (Court). In March 2008 the Court affirmed the Board's denial of service connection for PTSD, and vacated and remanded the issue of an increased rating for a shrapnel fragment wound to the left thigh with partial paralysis of the anterior crural nerve. In August 2008 and again in December 2011, the Board remanded the claim to the RO, via the Appeals Management Center (AMC). In a November 2012 informal hearing presentation, the Veteran's representative noted that the Veteran had not been assigned a compensable rating for an injury to muscle group XIV, which the June 2009 VA examiner specifically noted was involved in the injury. In this regard, the Board notes that the Veteran is in receipt of various awards of service connection for the residuals of his shrapnel fragment wound. He has not, however, expressed any disagreement with the awards and evaluations set forth in the April 2004 rating decision which increased his total evaluation from 20 percent to 60 percent. Thus, the issue of a separate rating for muscle group XIV, although raised by the record, has not been adjudicated by the Agency of Original Jurisdiction (AOJ) and is not before the Board on this appeal. Therefore, the Board does not have jurisdiction over it and it is referred to the AOJ for appropriate action. FINDING OF FACT The residuals of the shell fragment wound to the Veteran's left thigh with partial paralysis of the anterior crural nerve most nearly approximate moderate incomplete paralysis. CONCLUSION OF LAW The criteria for an evaluation in excess of 20 percent for residuals of a shell fragment wound to the left thigh with partial paralysis of the anterior crural nerve have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.2, 4.3, 4.7, 4.120, 4.123, 4.124, 4.124a, Diagnostic Code (DC) 8526 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION VCAA The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2012)) redefined VA's duty to assist claimants in the development of their claims. VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). Under the VCAA, VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; (3) that the claimant is expected to provide; and (4) must request that the claimant provide any evidence in his possession that pertains to the claim. Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004); 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). The Court has also held that the VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim. Those five elements include: 1) veteran status; 2) existence of a disability; 3) a connection between the Veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). In this case, the Veteran's claim and the February 2009 rating decision on appeal preceded enactment of the VCAA. In August 1998, October 1998, April 2000, October 2003, and September 2008 letters, the RO/AMC notified the Veteran of the evidence needed to substantiate the claim for an increased rating for residuals of a shell fragment wound to the left thigh with partial paralysis of the anterior crural nerve. The October 2003 letter also satisfied the second and third elements of the duty to notify by delineating the evidence VA would assist in obtaining and the evidence it was expected that he would provide. Quartuccio v. Principi, 16 Vet. App. 183, 186-87 (2002); Charles v. Principi, 16 Vet. App. 370 (2002). For claims pending before VA on or after May 30, 2008, 38 C.F.R. § 3.159 was amended to eliminate the requirement that VA request that a claimant submit any evidence in his or her possession that might substantiate the claim. 73 Fed. Reg. 23,353 (Apr. 30, 2008). In any event, the September 2008 letter complied with this requirement. The Veteran has substantiated his status as a veteran. The Veteran was notified of all other elements of the Dingess notice, including the disability rating and effective date elements of his claim, in the February 2008 letter. The February 2008 letter also provided additional information regarding disability ratings and the criteria applicable to the Veteran's increased rating claim in compliance with a decision of the Court that was subsequently vacated by the Federal Circuit. See Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008), vacated sub nom. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009). This complied with the first instruction in the Board's August 2008 remand, which was to send such a "Vazquez-Flores" letter. Contrary to VCAA requirements, the VCAA-compliant notice in this case was provided after the initial adjudication of the claim, which was prior to enactment of the VCAA. Mayfield v. Nicholson, 444 F.3d 1328, 1333 (Fed. Cir. 2006). The timing deficiency was cured by readjudication of the claims in multiple supplemental statements of the case (SSOCs), most recently in August 2012. Mayfield v. Nicholson, 499 F.3d 1317, 1323 (Fed. Cir. 2007). The VCAA also requires VA to make reasonable efforts to help a claimant obtain evidence necessary to substantiate his claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c), (d). This "duty to assist" contemplates that VA will help a claimant obtain records relevant to his claim, whether or not the records are in Federal custody, and that VA will provide a medical examination or obtain an opinion when necessary to make a decision on the claim. 38 C.F.R. § 3.159(c)(4). In this case, VA obtained the Veteran's service treatment records (STRs) and all of the identified post-service treatment records. The Veteran was also afforded multiple VA examinations. In its February 2008 memorandum decision, the Court found that the Board had failed to address whether the RO/AMC had complied with the Board's June 2003 remand instructions by not discussing the lack of notation of claims file review or the adequacy of the January 2004 VA orthopedic and neurologic examinations. The Board will discuss these factors below. In addition, the Veteran was afforded June 2009 VA orthopedic and neurologic examinations. These examinations were adequate and complied with the Board's August 2008 remand instructions for the reasons stated below. In addition, the RO specifically addressed entitlement to an extraschedular rating in its October 2009 SSOC, in compliance with the Board's August 2008 remand and consistent with the Court's February 2008 memorandum decision. Finally in this regard, the RO/AMC readjudicated the claim after reviewing the additional evidence received in compliance with the Board's December 2011 remand instructions. For the reasons set forth above, the Board finds that VA has complied with the VCAA's notification and assistance requirements. The claim for an increased rating for residuals of a shell fragment wound to the left thigh with partial paralysis of the anterior crural nerve is thus ready to be considered on the merits. Analysis Disability evaluations are determined by evaluating the extent to which a Veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing his symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Rating Schedule). 38 U.S.C.A. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10. If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation; otherwise, the lower evaluation will be assigned. 38 C.F.R. § 4.7. In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the Veteran's condition. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). Where, as here, 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. Francisco v. Brown, 7 Vet. App. 55 (1994). Staged ratings are appropriate for any rating claim when the factual findings show distinct time periods during the appeal period where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). Here, as explained below, the uniform 20 percent rating is proper. The Veteran's shrapnel fragment wound residuals of the left thigh with partial paralysis of the anterior crural nerve are rated under 38 C.F.R. § 4.124a, DC 8526, applicable to disease of the anterior crural nerve (femoral). Under DC 8526, a 10 percent rating is warranted for mild incomplete paralysis of the quadriceps extensor muscles, a 20 percent rating is warranted for moderate incomplete paralysis, and a 30 percent rating is warranted for severe partial paralysis. Complete paralysis of the the quadriceps extensor muscles warrants a 40 percent rating. The Rating Schedule provides guidance in rating diseases of the peripheral nerves. In rating peripheral nerve injuries and their residuals, attention should be given to the site and character of the injury, the relative impairment and motor function, trophic changes, or sensory disturbances. 38 C.F.R. § 4.120. A Note at the beginning of 38 C.F.R. § 4.124a indicates that disability from neurological disorders is rated from 10 percent to 100 percent in proportion to the impairment of motor, sensory, or mental function, and that with partial loss of use of one or more extremities from neurological lesions, rating is to be by comparison with mild, moderate, severe, or complete paralysis of the peripheral nerves. A Note at the beginning of the schedule of ratings for diseases of the peripheral nerves within 38 C.F.R. § 4.124a states that the term "incomplete paralysis" indicates a degree of lost or impaired function substantially less than the type of picture for complete paralysis given with each nerve, whether due to varied level of the nerve lesion or to partial regeneration and that, when the involvement is only sensory, the rating should be for the mild, or at most, the moderate degree. 38 C.F.R. § 4.123 provides that, in rating peripheral nerve disability, neuritis, characterized by loss of reflexes, muscle atrophy, sensory disturbances, and constant pain, at times excruciating, is to be rated on the scale provided for injury of the nerve involved, with a maximum equal to severe, incomplete paralysis. The maximum rating to be assigned for neuritis not characterized by organic changes referred to in this section will be that for moderate incomplete paralysis, or with sciatic nerve involvement, for moderately severe incomplete paralysis. 38 C.F.R. § 4.124 provides that neuralgia, characterized usually by a dull and intermittent pain, of typical distribution so as to identify the nerve, is to be rated on the same scale, with a maximum equal to moderate incomplete paralysis. The following evidence reflects that the Veteran's symptoms have approximated at most moderate incomplete paralysis with wholly sensory involvement. The STRs reflect that the Veteran was wounded by shrapnel in Vietnam in May 1968. The injury was to his left leg, and he had a laceration of the left superficial femoral artery, which was resected and repaired with a saphenous vein graft. Secondary closure was performed, and the veteran was subsequently medivaced to a the Naval Hospital at Corpus Christi. Upon admission, the Veteran complained of the inability to bend his left knee. Physical examination revealed a 10-inch scar extending from the left inguinal ligament distally across the anterior thigh. The incision was well healed and there were good femoral and pedal pulses. No motor nerve deficit was noted. Upon discharge, the Veteran's only complaints were mild numbness over the tibial area and some twitching pains inferior to the scar on the left. The Veteran had full range of motion. The Veteran submitted the instant claim for increase in July 1998. At that time, the veteran's shrapnel fragment residuals were evaluated as 10 percent disabling pursuant to the criteria for neuropathy of the anterior crural nerve. A July 1998 VA treatment record shows that the veteran was treated for cellulitis of the left thigh. On the September 1998 VA examination, the Veteran reported that he had worked as a welder, but that he was unable to perform that type of work, and that he was working as a security officer. The examiner noted that the Veteran had incurred a shrapnel injury involving extensive soft tissue damage. The Veteran reported shooting pains since that time. He denied swelling, but indicated that he had burning and shooting pains. The examiner noted that the veteran had experienced cellulitis recently. He also noted that EMG testing had revealed neuropathy of the left saphenous nerve. He indicated that the veteran's pain pattern was entirely consistent with a neuroma in a partially severed superficial nerve. He pointed out that the veteran had never had any motor deficit in the left leg. The Veteran reported flare-ups if he attempted to stand for more than 30 minutes. Physical examination revealed a large area of scarring beginning in the crease of the left groin and extending 60 percent of the way towards the knee in the middle and medial surface of the left thigh. The femoral pulse was weak on the left and strong on the right. The impression was status post shrapnel wound of the left thigh with extensive soft tissue damage and surgical repair, and post-traumatic neuropathy of the left saphenous nerve. The examiner indicated that it was common for areas of injury to superficial nerves to have burning and shooting pains that were persistent, hard to treat, and long lasting. He noted that the Veteran was unable to work as a welder due to his symptoms. In a February 1999 rating decision, the RO granted an increased evaluation for partial paralysis of the anterior crural nerve, awarding a 20 percent rating. On the September 2000 VA examination, the Veteran reported progressive weakness and pain. Physical examination revealed an 18-centimeter scar, with muscle loss along the incision site. The femoral pulse was present. The Veteran had very weak dorsiflexion of his left foot and very weak extensor longus flexion. He had weakness of the entire leg on elevation against resistance. He could flex his knee to 90 degrees and extend it to zero degrees. Range of motion of the hip was flexion to 90 degrees, extend it to 45 degrees, and abduct and adduct it to 45 degrees. There was circumferential decrease to pinprick of the thigh, leg, and foot. An X-ray in February 2000 revealed retained shrapnel in the left thigh. Diagnoses were gunshot wound to the left thigh, retained shrapnel, muscle loss of the anterior thigh, weakness of the extensor hallucis longus, and weakness of the left leg. On the June 2001 VA examination, the veteran reported weakness in the left lower extremity involving the proximal and distal muscles. He indicated that he had swelling in the left lower extremity, exacerbated by standing or walking. He stated that he had an abnormal sensation of something pricking or biting inside of his left leg muscles. He described some tingling in the nerves. He also reported episodes of extreme spasm of the left lower extremity, with shaking and jerking. Physical examination revealed full, painless range of motion of both lower extremities. There was no effusion of instability of the knee joint. While there was no pulse elicited in the left groin area, there were strong posterior tibial and dorsalis pedis pulses. Motor strength was 5/5 in all areas except the left lower extremity, where the hip flexors, hip extensors, knee flexors and extensors, and foot flexors and extensors were all 4. The veteran had decreased sensation in the lower extremity below the knee and the left foot. The impression was mild chronic neuralgia of the left lower extremity, vascular compromise of the left lower extremity, and post-traumatic neuropathy. On the January 2004 VA orthopedic examination, the examiner noted that the veteran had suffered from a shrapnel fragment wound, with the entrance being near the inguinal ligament and exit being at the posterior-medial thigh at the juncture of the upper and mid-thirds. He indicated that since the injury, the veteran had complained of pain and weakness in the leg. The veteran described pain which extended from his scar down along the medial side of the leg. He also described some numbness along the lateral side of the thigh and leg. Physical examination revealed full range of motion of the hips and knees. The veteran reported swelling of his left ankle. Femoral pulses were detected bilaterally and the veteran also had posterior-tibial and dorsalis pedis pulses in both feet. Muscle testing revealed weakness of the quadriceps, hamstrings, gluteal muscle and calf groups. The veteran was unable to toe walk, and he could carry out a "fair" heel walk. The left quadriceps broke with manual resistance of a moderate amount. As a result, the examiner concluded that the veteran had some weakness involving the calf muscles and the anterolateral group, proximal muscles of the thigh, and the gluteal area. The examiner concluded that the veteran's shell fragment wound had caused some weakened movement and excess fatigability. He indicated that he found no crepitation, incoordination, pain on movement, or deformity. He noted that there was some atrophy. He reported that he detected no pain of a notable degree. He noted that while the veteran complained of pain, he was unable to measure it to his own satisfaction. On the January 2004 VA neurological examination, the Veteran complained of permanent pain in spite of the fact that the wound had healed. The examiner indicated that such pain was described as neuralgia. On physical examination the veteran was unable to walk on his toes or heels. Strength testing revealed extension and flexion at 4/5, which the examiner noted was close to normal. The Veteran was completely numb to pinprick sensation over the left foot in a stocking distribution. The examiner noted that such finding indicated peripheral neuropathy of the peroneal and sural nerves. The diagnosis was chronic neuralgia of the left femoral nerve and peripheral neuropathy involving the peroneal and sural nerves. As noted, the Court in its memorandum decision faulted the Board for not addressing the lack of notation of claims file review and the adequacy of the January 2004 VA examinations. The Board notes that its July 2003 remand gave detailed instructions as to the examination to be conducted as well as that claims file review be noted. There was no notation of claims file review and it cannot be determined whether the claims file was reviewed. However, lack of claims file review does not in and of itself render an examination report inadequate. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301 (2008) ("This Court, however, has not required VA medical examiners to perform a complete review of the entire claims file or state that they have done so in every instance") (citing Snuffer v. Gober, 10 Vet.App. 400, 403-04 (1997); D'Aries v. Peake, 22 Vet.App. 97, 106 (2008)). See also VAOPGCPREC 20-95 (July 14, 1995) (listing circumstances in which claims folder should be reviewed prior to VA examination, but declining to adopt a rule requiring such review in every case). The January 2004 VA examination reports contain the relevant history and described the disability in sufficient detail to allow the Board to make a fully informed evaluation. Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007). It therefore substantially complied with the Board's remand instructions. See Donnellan v. Shinseki, 24 Vet. App. 167, 176 (2010) ("It is substantial compliance, not absolute compliance, that is required" under Stegall) (citing Dyment v. West, 13 Vet. App. 141, 146-47 (1999)). In an April 2004 rating decision, the Veteran was awarded service connection for disability in muscle groups XIII and XV and for peripheral neuropathy in the medial and lateral peroneal, saphenous and sural nerve distributions. On the May 2004 VA examination, the Veteran reported pain and weakness mostly in the knee and ankle joints. He also reported pain in the thigh associated with his scars. He noted that he had pain with exertion, such as walking up stairs or arising from a squatting position. He indicated that he was able to walk only one block due to the pain. He complained of difficulty walking due to balance or equilibrium problems. He stated that his daily activities were impacted by pain and weakness. Sensory examination was impossible to interpret because the veteran had loss of sharp sensation in the entire left lower extremity. The Veteran was able to heel and toe walk with some difficulty due to poor balance. Quadriceps strength was normal based on bent knee walk. Examination of the veteran's skin revealed a 23 centimeter scar from the inguinal crease, extending down the medial side of the left to above the knee. The scar was nontender to palpation and was freely movable. The scar was slightly depressed and there was a small amount of tissue loss. There was no traction of the scar. The veteran complained of some pulling sensation on movement. The examiner also noted an exit wound scar which was circularly depressed and measured one by two centimeters, and a surgical scar traversing it, which was measured at 13 centimeters. That scar was also freely moveable and nontender. All scars were noted to be well healed, without inherence to underlying tissue. The impression was shrapnel fragment wounds of the left leg secondary to mortar round explosion. The examiner indicated that the Veteran's complaints of tingling through the thigh and leg were related to superficial sensory nerve damage from his wounds. In a July 2004 supplemental statement of the case, the RO continued the veteran's 20 percent evaluation for neuralgia as a residual of the veteran's shrapnel fragment wound. A September 2005 EMG consult note indicated that the study was abnormal, that there was insufficient evidence to determine the presence or absence of a left lower extremity plexopathy or radiculopathy, and there was evidence of upper extremity neuropathy. An August 2005 neurology clinic note indicated that the Veteran complained of increased numbness of the left lower extremity, motor exam showed 4/5 in the left lower extremity and 5/5 in the right lower extremity. Proprio was normal in all extremities, Romberg was negative and gait was stable, and deep tendon reflexes were 2+/4+ in the knees and ankles. The assessment was persistent neuralgia/paresthesia in the left lower extremity. February 2006 VA EMG testing was again incomplete secondary to poor tolerance and refusal by the patient. A March 2006 VA neurology clinic note indicated that there were no clear new neurologic deficits in the leg. On the June 2009 VA orthopedic examination, the examiner indicated that he had reviewed the claims file. After reviewing the history of injury, the examiner noted that the Veteran complained of pain along the medial thigh and calf that increased with ambulation or sitting for long periods of time. The Veteran indicated that he could not exercise or ride a bicycle and leg felt weak and tired. The Veteran indicated that he lost his security job secondary to his complaints of pain in the left lower extremity and could not stand, sit, or walk for long periods of time. The entry and exit wounds were unchanged and there was minimal tissue loss along the scar with the scar measuring 8 inches by 4 inches with a half inch of indentation. There was also an exit wound scar measuring one inch by one half inch with a quarter inch indentation and no tissue loss. The scars were non tender, non-adherent, and showed no evidence of ulceration or breakdown, did not limit function of any joint and were non-disfiguring. There was no loss of muscle function, but the Veteran noted he had give away weakness at 4/5 compared to the right quad and hamstring. There was no joint involved, the vascular pulses were palpable, as were the popliteal, femoral, and distal pulses. On the June 2009 VA neurological examination, the Veteran complained of worsening numbness in the left lower extremity occurring daily and being severe and constant. He described paresthesias and dysethesias. He was able to shower, shave, and dress and the nerves involved were the sensory nerves of the left lower extremity. Physical examination revealed no evidence of sensory involvement with intact sensory to sharp/dull testing in the left lower extremity. The Veteran had full motor strength at 5/5 in the quadriceps, hamstrings, gastrocs, and anterior tibialis. There was no muscle atrophy. The diagnosis was no evidence of nerve damage in the left lower extremity other than subjective complaints of paresthesias ad dysesthesias. A January 2010 VA neurology clinic note indicated that the Veteran complained of worsening pain. Motor examination showed 4-/5 in the left lower extremity with normal range of motion and increased tone. Sensory examination showed decreased sensation in the left lower extremity, and the Veteran indicated that he felt about 60 percent of what he felt on the right lower extremity. Deep tendon reflexes were 1+ in the Achilles and 2+ in the patellar. The Veteran walked with a cane and leaned more toward the right. He was able to walk on his tip toes but slightly unsteadily. Romberg test was negative, and there was no dysdiadochokinesia or dysmetria. The assessment was of progressive left lower extremity neuralgia and weakness. The above evidence reflects that throughout the appeal period, there have been symptoms of pain, numbness, and weakness, with muscle strength between 4- and 5/5 and findings of neuralgia and many other examination findings at or near normal. These symptoms and the overall level of impairment reflect the type of neuralgia and sensory involvement that warrant at most a 20 percent rating for moderate incomplete paralysis. The single reference to "some atrophy" in the January 2004 examination report does not warrant a different result, as the degree or nature of the atrophy was not identified and the other examinations found a lack of atrophy. The only remaining issue with regard to entitlement to a higher schedular rating for an increased rating for residuals of a shell fragment wound to the left thigh with partial paralysis of the anterior crural nerve is whether the examinations complied with the Board's remand instructions and were adequate. As noted, the Court found that the Board erred in not discussing whether the January 2004 VA examinations complied with the Board's July 2003 remand instructions. Those instructions were that orthopedic and neurologic examinations be conducted by an orthopedic surgeon and neurologist or other appropriate specialist and contained detailed instructions regarding findings. Similarly, in its August 2008 remand, the Board instructed that there be orthopedic and neurologic examinations with detailed findings. Based on the above discussion, the examinations were all adequate and substantially complied with the Board remand instructions. The January 2004 VA examiners were appropriate specialists and the June 2009 examiner was a physician's assistant whose competence has not been challenged. Cox v. Nicholson. 20 Vet. App. 563, 569 (2007) (explaining that "the Board is entitled to assume the competence of a VA examiner," and the appellant bears the burden of rebutting the Board's presumption of competence); see also Rizzo v. Shinseki, 580 F.3d 1288, 1291 (Fed. Cir. 2009) ("Absent some challenge to the expertise of a VA expert, [there is] no statutory or other requirement that VA must present affirmative evidence of a physician's qualifications in every case as a precondition for the Board's reliance upon that physician's opinion"). In addition, while the examiners did not record every finding requested by the Board, the examination reports described the disability in sufficient detail to allow the Board to make a fully informed evaluation. Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007). In reaching the above decision, the Board is sympathetic to the argument of this decorated combat veteran. The Veteran is competent to make statements as to his observations and well as some matters of diagnosis and etiology. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). In this case, however, the applicable rating criteria provide that symptoms to which the Veteran has testified, such as pain, numbness, and weakness, do not warrant a rating higher than one for moderate incomplete paralysis in the absence of examination findings of non-sensory abnormalities. We also note that a separate evaluation was granted for injury to muscle group XIII; a separate evaluation for injury to muscle group XV; a separate evaluation for neuropathy of the saphenous, sural and peroneal nerves; and a separate evaluation for scars of the left thigh. The Board also notes that the RO granted service connection for a left thigh scar in October 2009 and assigned a noncompensable rating. The above evidence reflects that there was no tender or painful scar or one of significant enough area to warrant any separate or higher rating under any potentially applicable diagnostic code. See 38 C.F.R. § 4.118, DCs 7800 to 7805 (effective before and after August 30, 2002 and before and after October 23, 2008). As to consideration of referral for an extraschedular rating, such consideration requires a three-step inquiry. See Thun v. Peake, 22 Vet. App. 111 (2008), aff'd sub nom. Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). The first question is whether the schedular rating adequately contemplates the Veteran's disability picture. Thun, 22 Vet. App. at 115. 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. If the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, then the second inquiry is whether the claimant's exceptional disability picture exhibits other related factors such as those provided by the regulation as governing norms. If the Veteran's disability picture meets the second inquiry, then the third step is to refer the case to the Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether an extraschedular rating is warranted. As noted, the Court in its memorandum decision found that the evidence reasonably raised a claim for an extraschedular rating and that it should be addressed. Pursuant to the Board's remand instructions, the RO addressed this issue in the October 2009 SSOC, finding that an extraschedular rating was not warranted because there was no evidence of an unusually disability case as to render impractical the application of the regular schedular standards. The Board agrees. The discussion above reflects that the symptoms of the Veteran's residuals of a shell fragment wound to the left thigh with partial paralysis of the anterior crural nerve are fully contemplated by the applicable rating criteria. Those criteria take into account subjective symptoms such as pain, numbness, and weakness, and provide that the appropriate rating for such symptoms are those for moderate incomplete paralysis. Thus, the evidence does not reflect that the Veteran's symptoms have rendered impractical the application of the regular schedular standards, and consideration of whether the Veteran's disability picture exhibits other related factors such as those provided by the regulations as "governing norms" is not required. Referral for consideration of an extraschedular rating for residuals of a shell fragment wound to the left thigh with partial paralysis of the anterior crural nerve is therefore not warranted. 38 C.F.R. § 3.321(b)(1). For the foregoing reasons, the preponderance of the evidence is against the claim for an increased rating for residuals of a shell fragment wound to the left thigh with partial paralysis of the anterior crural nerve, currently evaluated as 20 percent disabling. The benefit-of-the-doubt doctrine is therefore not for application, and the claim must be denied. See 38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 3.102, 4.3, 4.7; Fagan v. Shinseki, 573 F.3d 1282, 1287 (Fed. Cir. 2009). ORDER Entitlement to an increased rating for residuals of a shell fragment wound to the left thigh with partial paralysis of the anterior crural nerve, currently evaluated as 20 percent disabling, is denied. ____________________________________________ H. N. SCHWARTZ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs