Citation Nr: 1314523 Decision Date: 05/02/13 Archive Date: 05/15/13 DOCKET NO. 06-05 566 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Entitlement to a compensable evaluation for shell fragment wound (SFW) residuals to the right thigh. 2. Entitlement to an evaluation in excess of 10 percent for SFW residuals to the left upper leg. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD H. Bunker, Associate Counsel INTRODUCTION The Veteran served on active duty from August 1968 to July 1970. He is the recipient of the Combat Infantryman Badge, Purple Heart and Bronze Star Medal for such service. These claims come before the Board of Veterans' Appeals (Board) on appeal of a September 2004 rating decision of the Department of Veterans Affairs (VA) Regional Offices in Columbia, South Carolina. The case has been transferred to the jurisdiction of the Montgomery, Alabama RO. The Veteran testified in support of these claims during a hearing held at the RO in April 2010, before the undersigned Acting Veterans Law Judge. This transcript is included in the claims file. The case was brought before the Board in November 2010, at which time the claims were remanded to allow the Agency of Original Jurisdiction (AOJ) to further assist the Veteran in the development of his appeal to include scheduling him for a VA examination. The claims were again before the Board in March 2012 when they were remanded for further development, to include obtaining an addendum opinion from the most recent VA examiner. In April 2012 the examiner offered an addendum opinion. Therefore, the Board finds that there has been substantial compliance with its remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance); see also Dyment v. West, 13 Vet. App. 141, 146-47 (1999). FINDINGS OF FACT 1. As of April 2, 2002 the Veteran's SFW residuals of the right leg were manifested by a painful scar measuring .5 centimeters (cm) x 8 cm. 2. Throughout the appeal period, the Veteran's SFW residuals of the left leg are productive of no more than a moderate disability. CONCLUSIONS OF LAW 1. The criteria for an evaluation of 10 percent, but no higher, for a scar of the right leg have been met, as of April 2, 2002. 38 U.S.C.A. §§ 1155, 5107(b) (West 2002); 38 C.F.R. §§ 4.1 to 4.14, 4.118, Diagnostic Code 7804 (2001, 2008, 2012). 2. The criteria for a rating in excess of 10 percent for SFW residuals of the left leg have not been met at any point during the appeal period. 38 U.S.C.A. §§ 1155, 5107(b) (West 2002); 38 C.F.R. §§ 4.1 to 4.14, 4.73, Diagnostic Code 5311 (2012). 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 review the entire record, the Board does not have to discuss each piece of evidence reviewed. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the veteran). It is VA's defined and consistently applied policy to administer the law under a broad interpretation, consistent, however, with the facts shown in every case. When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding service origin, the degree of disability, or any other point, such doubt will be resolved in favor of the claimant. By reasonable doubt it is meant that an approximate balance of positive and negative evidence exists which does not satisfactorily prove or disprove the claim. Reasonable doubt is a substantial doubt and one within the range of probability as distinguished from pure speculation or remote possibility. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102 (2012). The Veterans Claims Assistance Act of 2000 (VCAA) The VCAA describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a). In a claim for an increased evaluation, the VCAA requirement is generic notice: the type of evidence needed to substantiate the claim, which consists of evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on employment, as well as general notice regarding how disability ratings and effective dates are assigned. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009). The notice requirements were met in this case by a letter sent to the Veteran in February 2004. The February 2004 letter advised the Veteran of the information necessary to substantiate his claim, and of his and VA's respective obligations for obtaining specified types of evidence. See Quartuccio v. Principi, 16 Vet. App. 183 (2002); 38 C.F.R. § 3.159(b). While the Veteran was not provided adequate 38 U.S.C.A. § 5103(a) notice prior to the adjudication of the claim in the September 2004 rating decision, this notice problem does not constitute prejudicial error in this case because the record reflects that a reasonable person could be expected to understand what was needed to substantiate the claim after reading the above letter as well as the rating decision, statement of the case, and supplemental statements of the case. See Shinseki v. Sanders, 129 S.Ct. 1696 (2009). The Veteran was not notified that the evidence must show an increase in severity of his service-connected disabilities to substantiate his claims for increased evaluations. However, in an October 2004 statement, the Veteran indicated that he was submitting evidence specifically to show that his disabilities had worsened. This shows that he has actual knowledge of the type of evidence needed to substantiate his claims. The Veteran has neither alleged nor proven that prejudice resulted from lack of proper VCAA notice, and therefore, the Board determines that none resulted. See Shinseki v. Sanders, 129 S.Ct. 1696, 1704, 1705, 1706 (noting that "the party that seeks to have a judgment set aside because of an erroneous ruling carries the burden of showing that prejudice resulted"). The Veteran has not alleged that VA failed to comply with the notice requirements of the VCAA, and he was afforded a meaningful opportunity to participate effectively in the processing of his claim, and has in fact provided additional arguments at every stage. See Mayfield v. Nicholson, 19 Vet. App. 103 (2005). The Veteran's service treatment records and VA treatment records are associated with his claims file. The Veteran has not indicated that there are any additional outstanding records to be obtained. The duty to assist with obtaining medical records has been satisfied. The duty to assist includes, when appropriate, the duty to conduct a thorough and contemporaneous examination of the Veteran. 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. Schafrath v. Derwinski, 1 Vet. App. 589 (1991); 38 C.F.R. § 3.327(a). The Veteran was afforded a VA medical examination in December 2010 to determine the severity of his SFW residuals. The examiner also offered an addendum opinion in April 2012. These opinions were rendered by a medical professional following a thorough examination and interview of the Veteran and review of the claims file. The examiner obtained an accurate history. The examiner provided a detailed conclusion for the conclusions that were reached. There is no objective evidence indicating that there has been a material change in the severity of the Veteran's service-connected disorders since he was last examined. 38 C.F.R. § 3.327(a). The duty to assist does not require that a claim be remanded solely because of the passage of time since an otherwise adequate VA examination was conducted. VAOPGCPREC 11-95. Therefore, the Board finds that the examination is adequate. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). In light of the foregoing, all relevant facts have been adequately developed to the extent possible; no further assistance to the appellant in developing the facts pertinent to the issue on appeal is required to comply with the duty to assist. 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. § 3.159. Increased Rating Disability evaluations are determined by comparing a Veteran's present symptomatology with criteria set forth in the VA's Schedule for Rating Disabilities (Rating Schedule), which is based on average impairment in earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. When a question arises as to which of two ratings apply under a particular diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3. The Veteran's entire history is reviewed when making disability evaluations. See generally, 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Where, as in the present case, entitlement to compensation has already been established and increase in disability rating is at issue, present level of disability is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Therefore, although the Board has thoroughly reviewed all evidence of record, the more critical evidence consists of the evidence generated during the appeal period. Further, the Board must evaluate the medical evidence of record since the filing of the claim for increased rating and consider the appropriateness of a "staged rating" (i.e., assignment of different ratings for distinct periods of time, based on the facts). See Hart v. Mansfield, 21 Vet. App. 505 (2007); see also Fenderson v. West, 12 Vet. App. 119 (1999). SFW Residuals of the Right Leg The Veteran's SFW residuals of the right leg were originally rated under Diagnostic Code 7805 which pertains to scars. However, in the December 2011 supplemental statement of the case the RO changed the Diagnostic Code to 5311, which relates to muscle group impairment. In reviewing the evidence of record, the Board finds that the Veteran's SFW residuals of the right leg would be more appropriately rated under Diagnostic Code 7804 for scars because it is more favorable to him. Assignment of a particular Diagnostic Code is "completely dependent on the facts of a particular case," Butts v. Brown, 5 Vet. App. 532, 538 (1993), and one Diagnostic Code may be more appropriate than another based on such factors as an individual's relevant medical history, the current diagnosis, and demonstrated symptomatology. Any change in Diagnostic Code by a VA adjudicator must, however, be specifically explained. See Pernorio v. Derwinski, 2 Vet. App. 625, 629 (1992). Based on the Veteran's April 2010 Board hearing testimony, the December 2010 VA examination report, and the April 2012 addendum opinion, the change of the Veteran's evaluation from Diagnostic Code 5311 to 7804 is appropriate due to his complaints of painful and tender scarring of the right leg. Accordingly, the Board will consider the appropriate rating under the diagnostic codes relating to scars. As discussed below, the Board finds that a 10 percent evaluation for SFW residuals of the right leg is warranted under 38 C.F.R. § 4.118, Diagnostic Code 7804, as of April 2, 2002, the date the Veteran's claim was received. The applicable rating criteria for skin disorders, found at 38 C.F.R. § 4.118, were amended in August 2002 (see 67 Fed. Reg. 49490-99 (July 31, 2002)) and again in October 2008 (see 73 Fed. Reg. 54708 (September 23, 2008)). As the Veteran's claim was received in April 2002, the regulation changes from both August 2002 and October 2008 forward are applicable. VA may apply the pre-2002 rating criteria for the entire time the appeal has been pending. VA may only consider the pre-October 2008 regulations since August 2002, and the October 2008 revisions following October 23, 2008. Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). Under Diagnostic Code 7804 a 10 percent evaluation is awarded for scars that are superficial and painful on examination. 38 C.F.R. § 4.118 (2001, 2008). Note (1) to this Diagnostic Code indicates a superficial scar is one not associated with underlying soft tissue damage. This is the maximum rating available under Diagnostic Code 7804. Following the October 2008 amendments, under Diagnostic Code 7804, one or two scars that are unstable or painful warrant a 10 percent rating. A 20 percent rating requires three or four scars that are unstable or painful. An unstable scar is one where, for any reason, there is frequent loss of covering of skin over the scar. If one or more scars are both unstable and painful, 10 percent is to be added to the evaluation that is based on the total number of unstable or painful scars. Scars evaluated under Diagnostic Codes 7800, 7801, 7802, or 7805 may also receive an additional evaluation under this diagnostic code, when applicable. 38 C.F.R. § 4.118 . The Veteran was afforded a VA examination in February 2004 for his SFW residuals. There were no findings reported for SFW residuals of the right leg. The Veteran was also afforded a VA examination in November 2010. The Veteran reported his right leg symptoms did not include pain, decreased coordination, increased fatigability, or weakness. The Veteran's right leg scar measured .5 cm x 8 cm. It was slightly pale, not indented, superficial, not adhering to underlying tissue, nontender, and not affecting joints. There were no separate entry and exit scars. In an April 2012 addendum opinion the examiner stated that the Veteran's SFW residuals were manifested by scars and pain associated with the scars. The Veteran also testified at his April 2010 Board hearing that his right leg scar was painful and tender to touch. The Veteran's SFW residuals cause scarring which is superficial and painful to the touch. Accordingly, the Board finds that the Veteran is entitled to a 10 percent evaluation for his SFW residuals of the right leg as of April 2, 2002, the date his original claim for increased evaluation was received. 38 C.F.R. § 4.118, Diagnostic Code 7804 (2001, 2008, 2012). This is the maximum rating available under this Diagnostic Code prior to the October 2008 amendments. Following October 23, 2008, the Veteran's disability picture is not more closely approximated by a 20 percent evaluation under Diagnostic Code 7804 because he does not have three or four right leg scars that are unstable or painful. 38 C.F.R. § 4.118, Diagnostic Code 7804 (2012). The Board has considered the requirement of 38 C.F.R. § 4.3 to resolve any reasonable doubt regarding the level of the Veteran's disability in his favor. The Board concludes that the objective medical evidence and the Veteran's statements regarding his symptomatology show disability that more nearly approximates that which warrants the assignment of a 10 percent evaluation. See 38 C.F.R. § 4.7. The Board has considered other potentially applicable Diagnostic Codes. With regard to Diagnostic Code 7800, all three applicable versions of the regulation evaluate disfigurement of the head, face, or neck. As the Veteran's service-connected scar is on his right leg, this Diagnostic Code is inapplicable. Prior to August 2002, Diagnostic Code 7801 provided a 20 percent evaluation for third degree burn scars which were in an area exceeding 12 square inches (77.4 centimeters). After the regulation change in August 2002, Diagnostic Code 7801 provided a 20 percent evaluation for scars that are not located on the head, face, or neck, that are deep, cause limited motion, and cover an area exceeding 12 square inches. Again, the Veteran's scar is on his right leg, was not the result of a burn, does not cause limited motion, and does not cover an area exceeding 12 square inches. The October 2008 revisions changed Diagnostic Code 7801 to include burn scars but did not alter the rating criteria for a 20 percent evaluation. None of the three applicable versions of Diagnostic Code 7801 are for application. 38 C.F.R. § 4.118, Diagnostic Code 7801 (2001, 2008, 2012). Prior to August 2002 as well as after the regulation change in August 2002, Diagnostic Code 7802 provides a maximum evaluation of 10 percent for scars, other than head, face, or neck, that are superficial and that do not cause limited motion, but that are in areas of 144 square inches or greater. 38 C.F.R. § 4.118, Diagnostic Code 7802 (2001 and 2008). The October 2008 revisions included burn scars, but a 10 percent evaluation remained the maximum available rating. 38 C.F.R. § 4.118. Diagnostic Code 7802 (2012). Therefore, it is unfavorable to the Veteran. Prior to August 2002, Diagnostic Code 7803 provides a maximum evaluation of 10 percent for superficial scars that are poorly nourished, with repeated ulceration. 38 C.F.R. § 4.118, Diagnostic Code 7803 (2001). Following the August 2002 amendments, a maximum evaluation of 10 percent was provided for scars that are superficial and unstable. 38 C.F.R. § 4.118, Diagnostic Code 7803 (2008). The October 2008 revisions eliminated Diagnostic Code 7803. The Veteran's right leg scar does not cover an area of 144 square inches or more and is stable. Accordingly, the Board finds that Diagnostic Code 7803 is not for application. With regard to Diagnostic Code 7805 which pertains to an evaluation based on limitation of function of the effected part, the Board finds no competent evidence of record that the Veteran's right leg scar is causing any limitation of function which could warrant a compensable evaluation under any applicable version of this Diagnostic Code. 38 C.F.R. § 4.118, Diagnostic Code 7805 (2001, 2008, 2012). The Board has also considered if the Veteran is entitled to an increased rating due to alternative Diagnostic Codes, namely those pertaining to muscle group injuries. In an April 2012 addendum opinion the VA examiner stated that the damage to Muscle Groups XI, XII, and XIV were all considered as slight. His rationale was that although there were penetrating traumas, there was not significant loss of muscle. The impact on the Veteran's activities of daily living was also considered mild. Accordingly, if the Veteran's SFW residuals of the right leg were rated under a corresponding Muscle Group Diagnostic Code, the Veteran's noncompensable rating would be continued, as a minimum finding of moderate disability is required for a 10 percent evaluation. In reviewing the evidence the Board does not find that the Veteran's SFW residuals of the right leg rise to the level of moderate disability. See also April 2012 VA addendum opinion. In addition to the medical evidence, the Board has considered the Veteran's statements in support of his claim. The Veteran, as a layman, is competent to report on that as to which he has personal knowledge, such scars which are tender to the touch. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); Barr v. Nicholson, 21 Vet. App. 303, 310 (2007); and 38 C.F.R. § 3.159(a)(2). Since his allegations of these particular symptoms appear to be uncontradicted, even by medical findings of record, the Board also finds them to be credible and probative. See Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006); Rucker v. Brown, 10 Vet. App. 67 (1997) (indicating his competency to make these proclamations must be distinguished from the weight and credibility of his lay testimony, which are factual determinations going to the ultimate probative value of this evidence). Although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), as to the specific issue in this case, the severity of a SFW injury, falls outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007) (lay persons not competent to diagnose cancer). A clinician, including the VA compensation examiner, takes into consideration the Veteran's subjective complaints and the results of the objective examination in determining the overall severity of his SFW residuals. This determination is multi-factorial, not just predicated on lay statements and other testimony, rather, all of the relevant medical and other evidence. The Federal Circuit Court has recognized the Board's "authority to discount the weight and probity of evidence in light of its own inherent characteristics and its relationship to other items of evidence." Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997). The opinion of the VA examiner is afforded more probative weight than the Veteran's lay assertion. Overall, the Board concludes that the evidence discussed above supports no more than a 10 percent rating for the Veteran's SFW residuals of the right leg as of April 2, 2002. In reaching its decision, the Board considered the benefit of the doubt rule. However, the preponderance of the evidence is against a higher evaluation and therefore, it does not apply. 38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). SFW Residuals of the Left Leg The Veteran's SFW residuals of the left leg have been rated as 10 percent disabling under the Diagnostic Code pertaining to muscle disabilities of the leg. The Veteran contends that he is entitled to a higher evaluation. 38 C.F.R. § 4.56 governs the evaluation of muscle disabilities. Specifically, (a) An open comminuted fracture with muscle or tendon 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 as follows: Moderate muscle disability contemplates a through-and-through or deep penetrating wound of short track from a single bullet, small shell, or shrapnel fragment, without the explosive effect of a high velocity missile, residuals of debridement, or prolonged infection. There should be a service department record or other evidence of in-service treatment for the wound; and a record of consistent complaint of one or more of the cardinal signs and symptoms of muscle disability, particularly lowered threshold of fatigue after average use, affecting the particular functions controlled by the injured muscles. Objective findings should include entrance and (if present) exit scars that are small or linear, indicating a short track of missile through muscle tissue; and some loss of deep fascia or muscle substance or impairment of muscle tonus and loss of power or lowered threshold of fatigue when compared to the sound side. 38 C.F.R. § 4.56(d)(2). A moderately severe disability of the muscles anticipates a through and through or deep open penetrating wound by a small high velocity missile or a large low-velocity missile, with debridement, prolonged infection, or sloughing of soft parts, and intermuscular scarring. There should be a history of hospitalization for a prolonged period of treatment of the wound with a record of cardinal symptoms consisting of loss of power, weakness, lowered threshold of fatigue, fatigue- pain, impairment of coordination and uncertainty of movement, and if present, evidence of inability to keep up with work requirements. Objective findings should include entrance and exit scars indicating a track of a missile through one or more muscle groups. Objective findings should also include indications on deep 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 should demonstrate positive evidence of impairment. 38 C.F.R. § 4.56(d)(3). Severe disability of muscles contemplates through and through or deep penetrating wounds 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. There are 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 damage: (A) x-ray evidence of minute multiple scattered foreign bodies indicating intermuscular trauma and explosive effect of missile. (B) Adhesion of scar to one of the long bones, scapula, pelvic bones, sacrum or vertebrae, with epithelial sealing over the bone rather than true skin covering in an area where bone is normally protected by muscle. (C) Diminished muscle excitability to pulsed electrical current in electro-diagnostic tests. (D) Visible or measurable atrophy. (E) Adaptive contraction of an opposing group of muscles. (F) Atrophy of muscle groups not in the track of the missile, particularly of the trapezius and serratus in wounds of the shoulder girdle. (G) Induration or atrophy of an entire muscle following simple piercing by a projectile. 38 C.F.R. § 4.56 (d)(4). Diagnostic Code 5311 pertains to impairment of Muscle Group XI, which includes muscles of the entire leg. The function of this muscle group is propulsion, plantar flexion of lower extremities. 38 C.F.R. § 4.73, Diagnostic Code 5311 (2012). Under Diagnostic Code 5311 a slight injury warrants a noncompensable evaluation, a moderate injury warrants a 10 percent evaluation, a moderately severe injury warrants a 20 percent evaluation, and a severe injury warrants a 30 percent evaluation. The Veteran's service treatment records demonstrate that he was struck by shrapnel in service. An April 1969 treatment record noted the Veteran had a large fragment in the left upper leg, which lacerated the muscle fascia and was too deep to remove. July 1969 x-rays showed a fragment in the left upper leg; the wound was closed and healed well. In an August 1970 rating decision, service connection was granted for residuals of the Veteran's shell fragment wounds. He was assigned a 10 percent evaluation for his left leg residuals. The Veteran's current claim stems from an April 2002 claim. At the Veteran's February 2004 VA examination he reported pain, weakness, stiffness, swelling, redness, instability, locking, and giving way of his left knee. On examination the Veteran's left leg scar measured 2 cm x 2.5 cm x 2 mm deep. The scar was not adherent to underlying tissue and there was no tendon, bone, nerve, or joint damage. The muscle strength was good. There was some loss of muscle function that the examiner stated was minimal and inconsequential to the left knee replacement. The Veteran was also afforded a VA examination in December 2010. He reported intermittent pain and fatigue in the left leg. The wound was not a through and through injury and there was no bone, nerve, vascular, or tendon injuries. There was pain, but no weakness, decreased coordination, or increased fatigability on examination. Muscle function was normal in terms of comfort, endurance, and strength sufficient to perform activities of daily living. There was no muscle herniation, loss of deep fascia or muscle substance and the motion of any joint was not limited by muscle disease or injury. The Veteran had 2 scars, one measuring 2 cm x 1 cm that was pink, slightly indented, superficial, and not adherent to tissue. The second scar was a circle, .5cm in diameter and pink, slightly indented, superficial, and not adherent to tissue. The scars were not painful or tender to touch. There were also no separate entry and exit scars. In an April 2012 addendum opinion the VA examiner stated that the damage to Muscle Groups XI, XII, and XIV were all considered as slight. His rationale was that although there were penetrating traumas, there was not significant loss of muscle. The residuals were due to scarring/fibrosis only, and the Veteran's strength and coordination were grossly intact. The impact on the Veteran's activities of daily living was also considered mild. The main residuals were scars and pain associated with these areas. The Veteran testified at his Board hearing in April 2010 that his left leg was stiff after sitting for periods of time and that he could not climb stairs. He also testified that his walking was limited in that his legs gave out. He also testified his scars were tender to touch. Pertinent to the current determination, these examinations and hearing testimony indicate that the Veteran has subjective complaints of some pain in his left leg, which seemed to be exacerbated by activity. The Board finds that the evidence of record does not demonstrate that the Veteran's current SFW residuals of the left leg should be rated higher. The most recent VA examination stated the Veteran's SFW residuals of the left leg were slight, which would warrant a noncompensable rating. However, the Veteran's residuals of the left leg are currently rated as moderate. The evidence does not reflect that the Veteran's left leg injury warrants a moderately severe rating. Presently, there is no evidence the Veteran's wound was a through and through or deep penetrating wound with debridement, prolonged infection, or sloughing of soft parts, and intermuscular scarring. There were also no objective findings of deep palpation of loss of deep fascia, muscle substance, or normal firm resistance of muscles compared with sound side. 38 C.F.R. § 4.56(d)(3). As such, a higher rating under Diagnostic Code 5311 is not merited. With regard to alternative diagnostic codes for scarring, the Board has considered whether the Veteran's SFW residuals of the left leg would be more appropriately rated under the Diagnostic Codes pertaining to scars. However, in reviewing the evidence, Diagnostic Codes 7800-7803, and 7805 either pertain to the head, face, or neck, require limitation of motion, or require coverage of an area of at least 6 square inches. The Veteran's SFW residuals of the left leg do not meet these criteria and as such, a higher, or different, diagnostic code could not be assigned. Diagnostic Code 7802 relates to superficial and painful scars, which the Veteran has, but has a maximum rating of 10 percent. The Veteran is already receiving 10 percent and complains that his SFW residuals also cause leg stiffness and limitation of walking. See April 2010 Board hearing transcript. Accordingly, his SFW residuals of the left leg are most appropriately rated under Diagnostic Code 5311 for muscle group injuries and residuals. The Board has considered the Veteran's statements in support of his claim. As has been discussed, the Veteran, as a layman, is competent to report on that as to which he has personal knowledge, such as pain in his left leg. See Jandreau, supra; see also Barr, supra.; and 38 C.F.R. § 3.159(a)(2). Since his allegations of these particular symptoms appear to be uncontradicted, even by medical findings of record, the Board also finds them to be credible and probative. See Buchanan, supra. Although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), as to the specific issue in this case, the severity of a SFW injury, falls outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007) (lay persons not competent to diagnose cancer). A clinician, including the VA compensation examiners, takes into consideration the Veteran's subjective complaints and the results of the objective examination in determining the overall severity of his SFW residuals. This determination is multi-factorial, not just predicated on lay statements and other testimony, rather, all of the relevant medical and other evidence. The opinion of the VA examiner is more probative than the Veteran's lay assertion. In light of the above, the Board finds that the Veteran is not entitled to an increased evaluation for his left leg SFW residuals at any point in the appeal period. The Board has considered whether the benefit of the doubt rule applies to the present appeal. 38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). However, a preponderance of the evidence is against a higher evaluation; thus, this rule does not apply and the claim for increased evaluation must be denied. Extra-Schedular Consideration There is no evidence of exceptional or unusual circumstances to warrant referring these claims for extra-schedular consideration. 38 C.F.R. § 3.321(b)(1). The United States Court of Appeals for Veterans Claims (Court) has clarified the analytical steps necessary to determine whether referral for extra-schedular consideration is warranted. See Thun v. Peake, 22 Vet. App. 111 (2008). First, there must be a determination of whether the evidence presents such an exceptional disability picture that the available schedular evaluation for the service-connected disability is inadequate. Second, if the schedular evaluation does not contemplate the Veteran's level of disability and symptomatology and is found inadequate, there must be a determination of whether the Veteran's exceptional disability picture exhibits other related factors such as those provided by the regulation as "governing norms." Third, if the rating schedule is inadequate to evaluate a Veteran's disability picture and that picture has attendant thereto related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether, to accord justice, the Veteran's disability picture requires the assignment of an extra-schedular rating under 38 C.F.R. § 3.321(b)(1). The Board finds no such evidence in this particular instance, however. The Veteran's complaints related to his SFW residuals of the legs are considered under the appropriate diagnostic codes. His primary symptoms are tender scars, pain, and some limitation of motion. All of his symptoms are accounted for in the regular schedular rating criteria. According to 38 C.F.R. § 4.1, generally, the degrees of disability specified in the Rating Schedule are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. Indeed, in Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993), the Court reiterated this, noting the disability rating, itself, is recognition that industrial capabilities are impaired. As the assigned schedular evaluation for the service-connected bilateral SFW residuals are adequate, referral for an extra-schedular rating is unnecessary. Thun, supra. Furthermore, there is no evidence of any exceptional or unusual circumstances, such as frequent hospitalizations, suggesting he is not adequately compensated for this disability by the regular Rating Schedule. Extra-schedular referral is not warranted under the circumstances presented. See Bagwell v. Brown, 9 Vet. App. 237, 238-9 (1996); Floyd v. Brown, 9 Vet. App. 88, 96 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995); and VAOPGCPREC 6-96 (August 16, 1996). Total Rating Based Upon Individual Unemployability (TDIU) When entitlement to a total disability rating based on individual unemployability (TDIU) under the provisions of 38 C.F.R. § 4.16 is raised during the adjudicatory process of evaluating the underlying disabilities, it is part of the claim for benefits for the underlying disabilities. Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009). A TDIU claim is considered reasonably raised when a veteran submits medical evidence of a disability, makes a claim for the highest rating possible, and submits evidence of service-connected unemployability. See Roberson v. Principi, 251 F.3d 1378, 1384 (Fed. Cir. 2001). In this case, the Veteran has not asserted, and the evidence does not show that the Veteran's residuals of SFW injuries have caused unemployability. Because there is no evidence of unemployability, further consideration of entitlement to TDIU is not required. Jackson v. Shinseki, 587 F.3d 1106 (Fed. Cir. 2009). ORDER Entitlement to an evaluation of 10 percent, but no higher, for the shell fragment wounds residuals of the Veteran's right leg is granted, effective April 2, 2002, subject to the applicable regulatory provisions governing payment of monetary awards. Entitlement to an evaluation in excess of 10 percent for shell fragment wounds of the left upper thigh is denied. ____________________________________________ D. MARTZ AMES Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs