Citation Nr: 1317225 Decision Date: 05/24/13 Archive Date: 05/31/13 DOCKET NO. 09-31 832 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Juan, the Commonwealth of Puerto Rico THE ISSUES 1. Entitlement to a rating in excess of 20 percent for residuals of a gunshot wound to the right thigh. 2. Entitlement to service connection for a right hip disability, to include arthritis, and to include as secondary to service-connected gunshot wound residuals of the right thigh. ATTORNEY FOR THE BOARD A. Shawkey, Counsel INTRODUCTION The Veteran served on active duty from June 1964 to June 1966. He was awarded a Purple Heart Medal and a Combat Infantry Badge. This matter initially came to the Board of Veterans' Appeals (Board) on appeal from a January 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in San Juan, Puerto Rico. This matter was previously before the Board in January 2012 and January 2013 at which times the issues as noted on the title page were remanded for additional development. Such development included requesting additional pertinent treatment records, obtaining a medical nexus opinion and affording the Veteran a new VA examination in order to assess the present severity of his service-connected right thigh gunshot wound residual disability. There has been substantial compliance with the Board's remand directives. See Stegall v. West, 11 Vet. App. 268 (1998). Review of Virtual VA reveals additional VA outpatient records not pertinent to this appeal. FINDINGS OF FACT 1. The residuals of the Veteran's gunshot wound to the right anterior thigh have been manifested by subjective complaints of right lower extremity pain and numbness, as well as some limitation on movements and factors such as pain, fatigue, weakness and lack of endurance and/or incoordination with repeated use. There was a retained foreign body in the right anterior midthigh. Most recently it was indicated that Muscle Group XIV was involved. There was no bony involvement or other indication of severe muscle damage. 2. Initially the Veteran was rated for moderate severe damage to Muscle Group XV. 3. The Veteran's right thigh gunshot wound residuals have been found to be productive of a stable, superficial scar, which has not been painful or tender on examination and covers an area of less than 929 square centimeters. 4. The Veteran's right hip disability, diagnosed as degenerative joint disease, is not attributable to service or to a service connected disability. CONCLUSIONS OF LAW 1. With resolution of reasonable doubt in the appellant's favor, the criteria for an increased disability rating of 30 percent, but no higher, for residuals of a gunshot wound of the right thigh have been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. § 3.321, 4.7, 4.25, 4.40, 4.41, 4.45, 4.55, 4.56, Diagnostic Code 5314 (2012). 2. A right hip disability, diagnosed as degenerative joint disease, was not incurred in or aggravated by service, may not be presumed to have been incurred in service, nor is such disability proximately related to or aggravated by a service connected disability. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Veterans Claims Assistance Act of 2000 Initially, the Board notes that, in November 2000, the Veterans Claims Assistance Act of 2000 (VCAA), was signed into law. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, and 5107 (West 2002). To implement the provisions of the law, VA promulgated regulations published. See 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). The VCAA and its implementing regulations include, upon the submission of a substantially complete application for benefits, an enhanced duty on the part of VA to notify a claimant of the information and evidence needed to substantiate a claim, as well as the duty to notify the claimant what evidence will be obtained by whom. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). In addition, they define the obligation of VA with respect to its duty to assist a claimant in obtaining evidence. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c). The United States Court of Appeals for Veterans Claims (Court's) decision in Pelegrini v. Principi, 18 Vet. App. 112 (2004) held, in part, that a VCAA notice, as required by 38 U.S.C.A. § 5103(a), must be provided to a claimant before the initial unfavorable decision on a claim for VA benefits. In the present appeal, the appellant was provided with initial notice of the VCAA in May 2008, which was prior to the January 2009 decision on appeal. Therefore, the express requirements set out by the Court in Pelegrini have been satisfied. VA has fulfilled its duty to notify the appellant in this case. In the May 2008 letter, the RO informed the claimant of the applicable laws and regulations, the evidence needed to substantiate the claims being decided herein, and which party was responsible for obtaining the evidence. 38 C.F.R. § 3.159. See also Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002); McKnight v. Gober, 131 F. 3d 1483, 1485 (Fed. Cir. 1997). Thus, the Board finds that the notice required by the VCAA and implementing regulations was furnished to the claimant and that no useful purpose would be served by delaying appellate review to send out additional VCAA notice letters. The Court issued a decision in the consolidated appeal of Dingess/Hartman v. Nicholson, 19 Vet. App. 472 (2006), which 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. The Court held that upon receipt of an application for a service- connection claim, 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) require VA to review the information and the evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating or is necessary to substantiate the elements of the claim as reasonably contemplated by the application. Dingess/Hartman, supra. With respect to the claims presently on appeal, the Veteran was informed of the degree of disability and effective date elements in the May 2008 letter noted above. The Board also finds that all necessary assistance has been provided to the appellant. The RO has made reasonable and appropriate efforts to assist the appellant in obtaining the evidence necessary to substantiate his claims, including requesting information from the appellant regarding pertinent medical treatment he may have received and obtaining such records, and affording him a VA examination during the appeal period. In regard to VA examinations, the Veteran was afforded pertinent VA examinations in August 2008 (with an addendum VA opinion in February 2012), October 2009, and February 2013. The Board notes that the August 2008 VA examiner did not specifically address the Veteran's right hip disability, and the October 2009 VA examiner did not comment on factors such as the effect of pain on repeated use, fatigue, weakness, lack of endurance and incoordination with respect to the Veterans service-connected right thigh gunshot wound residuals. See January 2012 and 2013 Board remands. However, these deficiencies were cured by the February 2013 VA examination report. Thus, the Board finds that there is sufficient detail of record for the Board to make a decision in this appeal. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (holding that once VA undertakes the effort to provide an examination for a service connection claim, even if not statutorily obligated to do so, it must provide an adequate one or, at a minimum, notify the claimant why one will not or cannot be provided). The appellant was also provided with the opportunity to attend a Board Hearing which he declined. Under these circumstances, the Board finds that VA has fulfilled its duty to notify and assist the appellant in his claims being decided herein and that adjudication of these claims at this juncture, without directing or accomplishing any additional notification and/or development action, poses no risk of prejudice to the appellant. See, e.g., Bernard v. Brown, 4 Vet, App. 384, 394 (1993). The appeal is now ready to be considered on the merits. II. Facts The Veteran's service treatment records show that he sustained a gunshot wound of the right thigh in the Dominican Republic in 1965. X-rays revealed a metallic slug at the level of the femur in the coronal plane about 6 centimeters below skin surface in the medial aspect of the thigh. The slug was lying about 16 centimeters below the level of the greater trochanter. The Veteran was hospitalized and treated by secondary closure. He was discharged from the hospital in May 1965. He was subsequently hospitalized in June 1965 with complaints of pain and limitation of motion of his right leg. Findings were negative except for the right thigh where a healed gunshot wound was noted with moderate atrophy of the quadriceps and hamstrings. There was full range of motion in the extremity. The Veteran began physical therapy and was noted to have a rapid return of function to the right leg. He was diagnosed as having atrophy to quadriceps and hamstring muscles, right thigh. An April 1966 release from active duty (RAD) examination report shows that the Veteran had a normal clinical evaluation of his lower extremities. He also was noted to have a four inch scar due to a gunshot wound to his right thigh. Postservice VA examination findings in October 1966 show that the Veteran had a well healed, nontender, non adherent scar in the anterolateral aspect, middle third of the right thigh measuring 3 1/2" x 3/8". There were no other findings. The Veteran was diagnosed as having residuals of gunshot wound right thigh, as described and on x-ray report. In November 1966, the RO granted service connection for gunshot wound, right thigh, with residuals and assigned a 20 percent rating, effective in July 1966. This represented a determination that there was moderately severe damage to Muscle Group XV. There was no discussion as to how the findings equated to this rating, but that was the determination made. That decision became final. In April 2008, the Veteran filed a claim for a higher rating for his service-connected gunshot wound, right thigh, with residuals. At a VA examination in August 2008, the Veteran complained of constant right thigh numbness sensation. He denied any other major complaints. The examiner noted that the Veteran was functionally limited to standing for 15-30 minutes and walking for more than 1/4 of a mile, but less than 1 mile due primarily to his knees. The Veteran was observed with a normal gait, but his weight bearing was affected. X-rays of the left femur revealed a metallic bullet within the soft tissue in the midportion of the right thigh. There were no acute bony or soft tissue abnormalities identified. The examiner summarily reported that the Veteran had a metallic bullet in his right thigh secondary to gunshot injury in service. He remarked that the disability varied between no effects, mild effects and moderate effects on activities of daily living. This report notes that the Veteran was not employed and retired in 2003 due to eligibility by age or duration of work. Arthritis was found in other anatomical body parts, not including the right hip, which the examiner related to the normal aging process and not to a service connected condition or from military service. At a VA examination in October 2009, the Veteran was observed with an antalgic gait and no breakdown or limps from the right thigh, though he was unable to repeatedly squat due to pain and weakness in the right quadriceps. Hip range of motion included flexion from 0 to 125 degrees, extension from 0 to 30 degrees, adduction from 0 to 25 degrees, abduction from 0 to45 degrees, external rotation from 0 to 60 degrees and internal rotation from 0 to 40 degrees. The examiner reviewed an x-ray report of the Veteran's right femur in January 1998. He diagnosed the Veteran as having right thigh muscle wound secondary to gunshot with weakness in right quadriceps. A March 2011 VA outpatient record shows that the Veteran was seen for bilateral knee pain. He reported that he had had multiple body, knee, and back trauma as a skydiver in service. In February 2012, a VA supplemental opinion was requested from the August 2008 VA examiner regarding the etiology of the Veteran's variously claimed orthopedic disabilities. After reviewing the Veteran's claims file and VA medical records, the examiner reported that the Veteran was observed at the August 2008 examination with a normal gait pattern without any assistive devices and had adequate lower extremity muscle strength. He said the muscle group affected by the gunshot wound was MSG 14 (right quadriceps muscles). He reported that after reviewing the August 2008 examination report, it was noticed that the Veteran was able to perform all activities of daily living without assistance or with minimal difficulties due to right thigh pain. At a VA examination in February 2013, the Veteran complained of right thigh numbness and pain as well as cramping of his thigh muscles. He also complained of occasional locking of his right hip. In regard to his hip, the Veteran reported occasional locking and said he is unable to stand for long periods since he will feel a burning pain. He denied any direct trauma to his hip. He said the hip pain was an aching type of pain and was associated with locking of his hip joint. The Veteran also reported that prolonged standing and walking causes right hip and left pain flare ups. Range of motion studies revealed right hip flexion to 90 degrees with objective evidence of painful motion at 90 degrees, right hip extension to greater than 5 degrees objective evidence of painful motion greater than 5 degrees. Abduction was not lost beyond 10 degrees and adduction was not limited such that the Veteran could not cross his legs. Rotation was not limited such that the Veteran could not toe-outmore than 15 degrees. The Veteran was able to perform repetitive-use testing with three repetitions. The examiner reported that the Veteran did have functional loss and/or functional impairment of the hip and thigh due to less movement than normal and pain on movement, but no additional limitation in range of motion of the hip and thigh following repetitive-use testing. Additional findings at the February 2013 examination revealed localized tenderness or pain to palpation for the hip joints. Strength was normal, 5/5, for hip flexion, abduction and extension. The Veteran did not have ankylosis of the hip joint. He was also found to not have malunion or nonunion of the femur, flail hip joint or leg length discrepancy. He did not use any assistive device as a normal mode of locomotion. X-rays performed in August 2008 were noted to show a metallic bullet projecting in the medial side of the soft tissues of the mid portion of the thigh. Mild degenerative changes of the right hip were also shown. No acute fracture-dislocations were identified. The Veteran's hip and/or thigh condition was not found to impact his ability to work. The February 2013 VA examiner reported that the Veteran had right hip degenerative joint disease and right mid thigh gunshot wound residual. He noted that the Veteran had a normal gait with no visible limp or use of assistive devices. He opined that the right hip degenerative joint disease seen on the Veteran's femur x-rays in August 2008 is at least as likely as not due to the normal process of aging. He noted there was no history of direct trauma to his right hip joint and no biomechanical factors identified that could produce an abnormal stress in his right hip to cause hip degenerative joint disease. He concluded by opining that the Veteran's hip degenerative joint disease was not at least as likely as not causally related to or aggravated by his service connection right thigh gunshot wound. He said the right thigh gunshot wound had not left a muscle imbalance or a gait abnormality to cause a biomechanical alteration in gait or in forces acting on the right hip and had not at least as likely as not cause pathology in the right hip joint. The examiner went on to report that the right thigh gunshot wound residual did not at least as likely as not cause function limitations, though he said it could cause pain and/or flare-ups, fatigue, weakness, lack of endurance, and/or incoordination on repeated use. He explained that thigh pain was associated with bending and extending the right knee such as when walking for a long time, more than 10 minutes, or climbing more than two flights of stairs and/or incoordination. He remarked that the Veteran still has the residual bullet of the gunshot wound in his right thigh soft tissues. III. Law and Analysis A. Rating Greater than 20 Percent for Right Thigh Gunshot Wound Residuals Disability ratings are determined by comparing present symptomatology with the criteria set forth in VA's Schedule for Rating Disabilities found in 38 C.F.R. Part 4. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. VA has a duty to acknowledge and consider all regulations that are potentially applicable through the assertions and issues raised in the record, and to explain the reasons and bases for its conclusion. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). In cases involving a claim for an increased rating, VA's primary focus is upon the current level of disability. This will include a review of medical and lay evidence of record beginning one year prior to the time Veteran requested an increased rating. VA will also review the history of the Veteran's disability in order to ensure that the decision regarding the current disability rating accounts for all the prior treatment and the severity of the disorder. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Staged ratings are; however, appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. The relevant focus for adjudicating an increased rating claim is on the evidence concerning the state of the disability from the time period one year before the claim was filed until VA makes a final decision on the claim. Hart v. Mansfield, 21 Vet. App. 505 (2007). This practice is known as "staged" ratings. Muscle injuries are evaluated pursuant to criteria at 38 C.F.R. §§ 4.55, 4.56, and 4.73. For rating purposes, the skeletal muscles of the body are divided into 23 muscle groups in 5 anatomical regions. 38 C.F.R. § 4.55(b) (2012). The specific bodily functions of each group are listed at 38 C.F.R. § 4.73 (2012). Generally, a muscle injury rating will not be combined with a peripheral nerve paralysis rating for the same body part, unless the injuries affect entirely different functions. 38 C.F.R. § 4.55(a) (2012); see also 38 C.F.R. § 4.14 (2012). The severity of the muscle disability is determined by application of criteria at 38 C.F.R. § 4.56. First, an open comminuted fracture with muscle or tendon damage will be rated as severe, unless (for locations such as the wrist or over the tibia) the evidence establishes that the muscle damage is minimal. 38 C.F.R. § 4.56(a) (2012). A through and through injury with muscle damage shall be evaluated as no less than a moderate injury for each group of muscles damaged. 38 C.F.R. § 4.56(b) (2012). For VA rating purposes, the cardinal signs and symptoms of muscle disability are loss of power, weakness, lowered threshold of fatigue, fatigue-pain, impairment of coordination and uncertainty of movement. 38 C.F.R. § 4.56(c) (2012). Under Diagnostic Codes 5301 to 5323, muscle injuries disabilities are rated as slight, moderate, moderately severe or severe according to criteria based on the type of injury, the history and complaint, and objective findings. 38 C.F.R. § 4.56(d) (2012). The provisions of 38 C.F.R. § 4.56 provide that slight muscle disability is found where there has been a simple wound of the muscle without debridement or infection. Clinical examination would disclose the absence of fascial defect, atrophy, or impaired tonus. No impairment of function or metallic fragments retained in muscle tissue would be present. 38 C.F.R. § 4.56. A moderate muscle disability is a through and through or deep penetrating wound of short track from a single bullet, small shell or shrapnel fragment, without explosive effect of high velocity missile, residuals of debridement, or prolonged infection. A history with regard to this type of injury should include service department evidence or other evidence of in-service treatment for the wound and consistent complaints of one or more of the cardinal signs and symptoms of muscle disability, particularly lowered threshold of fatigue after average use affecting the particular functions controlled by the injured muscles. Objective findings should include entrance and (if present) exit scars, small or linear, indicating short track of missile through muscle tissue and some loss of deep fascia or muscle substance or impairment of muscle tonus and loss of power or lowered threshold of fatigue when compared to the sound side. 38 C.F.R. § 4.56(d)(2). A moderately severe muscle disability is a through and through or deep penetrating wound by a small high-velocity missile or large low-velocity missile, with debridement, prolonged infection, or sloughing of soft parts, and intermuscular scarring. A history with regard to this type of injury should include prolonged hospitalization in service for treatment of wound, consistent complaints of cardinal signs and symptoms of muscle disability, and, if present, evidence of inability to keep up with work requirements. Objective findings should include entrance and (if present) exit scars indicating the track of the missile through one or more muscle groups, and indications on palpation of loss of deep fascia, muscle substance, or normal firm resistance of muscles compared with the sound side. Tests of strength and endurance compared with sound side should demonstrate positive evidence of impairment. 38 C.F.R. § 4.56(d)(3). A severe muscle disability is a through and through or deep penetrating wound by a small high-velocity missile or large or multiple low-velocity missiles, or with shattering bone fracture or open comminuted fracture with extensive debridement, prolonged infection, or sloughing of soft parts, and intermuscular binding and scarring. A history with regard to this type of injury should include prolonged hospitalization in service for treatment of wound, consistent complaints of cardinal signs and symptoms of muscle disability, worse than those shown for moderately severe muscle injuries, and, if present, evidence of inability to keep up with work requirements. Objective findings should include ragged, depressed, and adherent scars indicating wide damage to muscle groups in missile track, and indications on palpation of loss of deep fascia, muscle substance, or soft flabby muscles in wound area. Also, muscles swell and harden abnormally in contraction. Tests of strength, endurance, or coordinated movements compared with the corresponding muscles of the uninjured side should indicate severe impairment of function. If present, the following are also signs of severe muscle disability: (A) X- ray evidence of minute multiple scattered foreign bodies indicating intermuscular trauma and explosive effect of missile; (B) adhesion of scar to one of the long bones, scapula, pelvic bone, sacrum, or vertebrae, with epithelial sealing over the bone, rather than true skin covering in an area where bone is normally protected by muscle; (C) diminished muscle excitability to pulsed electrical current in electrodiagnostic tests; (D) visible or measurable atrophy; (E) adaptive contraction of an opposing group of muscles; (F) atrophy of muscle groups not in the track of the missile, particularly of the trapezius and serratus in wounds of the shoulder girdle; and (G) induration or atrophy of an entire muscle following simple piercing by a projectile. 38 C.F.R. § 4.56(d)(4). It is possible for a Veteran to have separate and distinct manifestations from the same injury which would permit rating under several diagnostic codes, however, the critical element in permitting the assignment of several ratings under various diagnostic codes is that none of the symptomatology for any one of the conditions is duplicative or overlapping with the symptomatology of the other condition. 38 C.F.R. § 4.14; See also Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994). The Veteran is presently rated under Diagnostic Code 5315 which pertains to Muscle Group XV. Muscle Group XV includes the muscles involved in adduction of the hip and flexion of the knee. This Diagnostic Code provides for a 0 percent disability rating where the disability is slight; a 10 percent disability rating where the disability is moderate; a 20 percent disability rating where the disability is moderately severe, and a maximum 30 percent disability rating where the disability is severe. 38 C.F.R. § 4.73, Diagnostic Code 5315. As noted, this was the rating initially assigned by the RO in a rating decision that is now final. However, the VA examiner in February 2012 specified that the muscle group affected by the gunshot wound is muscle group XIV, the right quadriceps muscles. The pertinent diagnostic code for this muscle group is Diagnostic Code 5314. This muscle group involves the muscle used in extension of the knee, tension of the fascia lata and iliotibial band, acting with Muscle Group XVII in postural support of the body, and acting with the hamstrings in synchronizing the hip and knee. Under this Code, a 30 percent disability evaluation is warranted for a moderately severe disability and a 40 percent evaluation is provided for a severe disability. The evidence shows that the Veteran's right thigh disability is manifested by complaints of numbness and right lower extremity pain. In terms of findings, moderate atrophy of the quadriceps and hamstrings is noted in the Veteran's service treatment records. Also, the August 2008 VA examiner reported that the Veteran was functionally limited to standing for 15-30 minutes and walking for more than 1/4 mile, but less than one mile. In addition, an October 2009 VA examiner assessed the Veteran as having right quadriceps weakness and reported that he was unable to repeatedly squat due to pain and weakness in the right quadriceps. There is no evidence that the gunshot wound resulted in any bony abnormality or fracture. There is no evidence of significant loss of muscle tissue. There are the aforementioned complaints and findings. In light of the Veteran's credible complaints noted above and the objective findings of record, the Board finds that the Veteran's service-connected residuals of a gunshot wound do not more closely approximate a severe muscle disability and are most consistent with his present assessment for moderately-severe muscle disability. This is so when considering that there is no evidence that the Veteran's muscles swell and harden abnormally or that tests of strength, endurance or coordinated movements compared with the corresponding muscles on the uninjured side indicate severe impairment of function. In this regard, while there is documented right quadriceps weakness, it does not rise to the level of severe impairment. For one thing, the February 2012 VA examiner assessed the Veteran as having "adequate" muscle strength in his right lower extremity and strength findings at the February 2013 VA examination were normal with measured strength of 5/5. Moreover, findings at the August 2008 VA examination revealed that there was no acute bony or soft tissue abnormalities, and the examiner reported that the disability due to the metallic bullet in his Veteran's right thigh secondary to gunshot injury in service varied between no effects, mild effects and moderate effects on activities of daily living. In other words, the disability was not assessed as having more than a moderate effect on the Veteran's activities of daily living. The August 2008 examiner reiterated this in the 2012 addendum opinion when he reported that after reviewing the August 2008 examination report, it was noticed that the Veteran was able to perform all activities of daily living without assistance or with minimal difficulties due to right thigh pain. Findings at the VA examination in October 2009 revealed no breakdown or limps from the Veteran's right thigh. More recently, in February 2013, findings revealed some limitation of motion in the right lower extremity, but the examiner opined that the Veteran could still function normally for everyday activities involving walking and standing and even climbing stairs (but not excessively). He went on to opine that the right thigh gunshot wound residuals does not at least as likely as not cause functional limitations, although he reported it could cause pain and/or flare-ups, fatigue, weakness, lack of endurance, and/or incoordination on repeated use. In short, when considering additional functional loss, an evaluation in excess of a "moderately-severe" muscle injury is not warranted. That is, a disability rating equating "severe" muscle injury is not shown for the disability resulting from residuals of a bullet wound to the right thigh. See 38 C.F.R. § 4.56. Notwithstanding the Board's finding above, as noted, the February 2012 VA examiner specified that the Muscle Group affected by the Veteran's service-connected residuals of gunshot wound to the right thigh is Muscle Group 14 (right quadriceps muscles). Thus, the Veteran should be appropriately rated under Diagnostic Code 5314 which applies to Muscle Group XIV rather than his present Diagnostic Code of 5315 which applies to Muscle Group XV. He is not entitled to separate ratings under both Diagnostic Codes 5314 and 5315 since to do so would be to act on the same joints, that is the hip and knee. See 38 C.F.R. § 4.55(e). Moreover, as noted, the most recent evidence shows only involvement of Muscle Group XIV. Accordingly, since a moderately severe muscle disability under Diagnostic Code 5314 warrants a 30 percent rating as opposed to a 20 percent rating under Code 5315, the Veteran is entitled to an increased rating to 30 percent. It is concluded that while he has some evidence of moderate and moderately severe muscle damage, he more nearly approximates the findings for moderately severe impairment when consideration is given to the most recent complaints and findings. 38 C.F.R. §§ 4.7, 4.73, Diagnostic Code 5314. The Board notes that separate ratings cannot be provided for muscle damage and peripheral nerve damage at the same body part. 38 C.F.R. § 4.55(a). The nerve damage symptomatology overlaps with that of the muscle injury and includes the same complaints of pain, numbness and weakness. Evaluation of the same disability under multiple diagnostic codes is prohibited. 38 C.F.R. § 4.14. A question arises as to whether the Veteran would be entitled to a higher rating on the basis of the nerve injury than for the muscle injury. The Board must answer this question in the negative. There is no evidence that suggests complete paralysis of the anterior crural nerve, and the rating for severe incomplete paralysis under Diagnostic Code 8626 is 30 percent. See 38 C.F.R. § 4.124a. Hence, a higher rating would not be warranted given the current symptomatology. Also, a separate rating could be available for a compensably disabling scar. Esteban v. Brown, 6 Vet. App. 259 (1994). However, there is no indication from either the Veteran's complaints or findings that the Veteran's right thigh scar has become symptomatic. In this regard, beginning in service, the Veteran was found to have a normal clinical evaluation of his skin and lower extremities at his separation examination in April 1966. He was also noted at this time to have a four inch scar on his right thigh. Postservice, at a VA examination in October 1966, the scar was found to be well healed, nontender and nonadherent. It measured 3 1/2 by 3/8 inches. There have been no complaints or findings regarding the scar to the contrary since. The February 2013 VA examiner reported that the Veteran did not have any scars (surgical or otherwise) related to any conditions or to the treatment of any conditions listed which include right thigh gunshot residuals. Thus, as the Veteran's residual scar has not been found to be deep and painful on examination, and it does not involve 39 square centimeters, a separate, compensable rating for the residual right thigh scar is not warranted. 38 C.F.R. § 4.118, Diagnostic Code 7801 (for claims before October 23, 2008). In sum, under the pertinent Diagnostic Code for the Veteran's service-connected residuals of a gunshot wound to the right thigh, Diagnostic Code 5314, the Veteran's moderately severe muscle injury disability warrants an increased rating to 30 percent, and no higher. Additionally, the RO must refer a claim to the Chief Benefits Director or the Director, Compensation and Pension Service, for consideration of an extraschedular rating where a service-connected disability presents an exceptional or unusual disability picture with marked interference with employment or frequent periods of hospitalization that render impractical the application of the regular schedular standards. 38 C.F.R. § 3.321(b)(1) (2012). An exceptional or unusual disability picture occurs where the diagnostic criteria do not reasonably describe or contemplate the severity and symptomatology of a veteran's service-connected disability. Thun v. Peake, 22 Vet. App. 111, 115 (2008). If there is an exceptional or unusual disability picture, then the Board must consider whether the disability picture exhibits other factors such as marked interference with employment and frequent periods of hospitalization. Id. at 115-1116. When those two elements are met, the appeal must be referred for consideration of the assignment of an extraschedular rating, otherwise, the schedular evaluation is adequate, and referral is not required. Id. at 116. The schedular rating in this case is adequate. Ratings in excess of those assigned are provided for certain manifestations of the service-connected disorder, but the medical evidence reflects that those symptoms are not present. The diagnostic criteria also adequately describe the severity and symptomatology of the Veteran's disability. The primary symptoms of the Veteran's residuals of gunshot wound of the right thigh are numbness, pain, some limitation of movement and additional factors to include weakness, lack of endurance, and/or incoordination on repeated use. These manifestations are included in the rating criteria and have been considered under Deluca v. Brown, 8 Vet. App. 202 (1995). Therefore, the Veteran's disability picture is contemplated by the rating schedule and no extraschedular referral is required. Lastly, at no point throughout the appeal period has it been alleged or shown that the Veteran's residuals of a gunshot wound to the right thigh causes him to be unable to secure and follow substantially gainful employment. Rather, the VA examiner in February 2013 opined that the Veteran's right thigh condition does not impact his ability to work. Thus, the Board finds that a remand for such an opinion is not required in this case. See Rice v. Shinseki, 22 Vet. App. 447 (2009). B. Service Connection for Right Hip Disability As an initial matter, the Board notes that the Veteran is not asserting, nor does the evidence show, that his right hip disability, diagnosed as degenerative joint disease, is the result of engaging in combat with the enemy. Therefore, the combat provisions of 38 U.S.C.A. § 1154(b) (West 2002) are not applicable. In general, service connection may be granted for disability or injury incurred in or aggravated by active military service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303. Notwithstanding the above, service connection may be granted for disability shown after service, when all of the evidence, including that pertinent to service, shows that it was incurred or aggravated in service. 38 C.F.R. § 3.303(d) (2012). To establish a right to compensation for a present disability, a Veteran must show: "(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service." Davidson v. Shinseki, 581 F. 3d 1313, 1315-16 (Fed. Cir. 2009); Shedden v. Principi, 381 F. 3d 1163, 1167 (Fed. Cir. 2004). Where there is a chronic disease shown in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303(b). When a condition noted during service is not shown to be chronic, or the fact of chronicity in service is not adequately supported, then a showing of continuity of symptomatology after discharge is required to support the claim. 38 C.F.R. § 3.303(b); Walker v. Shinseki, 708 F. 3d 1331 (Fed. Cir. 2013) (noting that the continuity of symptomatology provisions apply only to listed chronic conditions). For veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic diseases, including arthritis, are presumed to have been incurred in service if manifested to a compensable degree within one year of separation from service. 38 U.S.C.A. §§ 1101(3), 1112(a)(1), 1113, 1137; 38 C.F.R. §§ 3.307(a), 3.309(a). Service connection may also be granted for disability which is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). Additional disability resulting from the aggravation of a nonservice-connected condition by a service-connected condition is also compensable under 38 C.F.R. § 3.310(b); Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). The Board notes that VA amended its regulation pertaining to secondary service connection, effective from October 10, 2006. See Fed. Reg. 71 Fed. Reg. 52,744 (2006) (codified at 38 C.F.R. § 3.310). The new regulation appears to place additional evidentiary burdens on claimants seeking service connection based on aggravation; specifically, in terms of establishing a baseline level of disability for the non-service-connected condition prior to the aggravation. As the Veteran's claim for service connection arthritis of the bilateral ankles was filed in April 2008, the current version of 38 C.F.R. § 3.310 as outlined above is for consideration. See 38 C.F.R. § 3.310 (2012). With that said, under the facts of this case, the regulatory change does not impact the outcome of the appeal. VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the claimant prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C.A. § 5107 (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Veteran's service treatment records do not show any complaints or treatment with respect to the right hip. They include his April 1966 separation examination report showing a normal clinical evaluation of the lower extremities - with the exception of a four inch scar gunshot wound on the right thigh. Postservice medical evidence shows that the Veteran first complained of "chronic arthritis" decades after service, beginning with his April 2008 claim. X-rays were taken of the right femur at an August 2008 VA examination. The recorded results revealed metallic bullet without the soft tissue in the midportion of the right thigh; no acute bony or soft tissue abnormalities identified. Findings were not specific to the right hip. The examiner noted the Veteran had arthritis in various anatomical parts, not including the right hip, and opined that the arthritis was related to the aging process and not to the Veteran's service connected condition. He noted that the arthritis was in different anatomical parts. The scant post service medical records on file dated prior to this time, consisting of an October 1966 VA examination report and VA outpatient treatment records dated through December 1998, are silent for right hip complaints or findings. It was not until the February 2013 VA examination that the examiner recorded the August 2008 x-rays results of the Veteran's right femur as showing degenerative changes of the right hip. Thus, the earliest showing from the evidence of right hip arthritis is the August 2008 x-ray report. The absence of documented symptoms of right hip arthritis from the time of the Veteran's service separation in June 1966 until the VA examination report in August 2008 interrupts continuity of symptomatology. 38 C.F.R. § 3.303(b); Maxson v. West, 12 Vet. App. 453, 459 (1999), aff'd sub nom. Maxson v. Gober, 230 F. 3d 1330, 1333 (Fed. Cir. 2000) (It was proper to consider the veteran's entire medical history, including a lengthy period of absence of complaints.). Though this finding is not determinative of the claim, it warrants consideration. Accordingly, as the weight of evidence does not show chronic right hip arthritis since service or continuity of symptomatology after service, service connection under the provisions of 38 C.F.R. § 3.303(b) has not been established. With respect to establishing service connection under 38 C.F.R. § 3.303(d), the evidence weighs against the Veteran's claim on both a direct and secondary basis. In this regard, the VA examiner in February 2013 negated a nexus between degenerative joint disease of the right hip and service based on his review of the Veteran's claims file and examination of the Veteran. He opined that the Veteran's right hip degenerative joint disease that was seen on his femur x-rays in August 2008 was at least as likely as not due to the normal process of aging. He explained that there was no history of direct trauma in the right hip joint and noted that no biomechanical factor had been identified that could produce an abnormal stress in his right hip to cause degenerative joint disease. He remarked that the Veteran had a normal gait with no visible limp or use of assistive devices. He went on to opine that the hip degenerative joint disease was not at least as likely as not causally related to or aggravated by the Veteran's service-connected right thigh gunshot wound. He noted that the right thigh gunshot wound had not left a muscle imbalance or gait abnormality to cause a biomechanical alteration in gait or in forces acting on the right hip and has not at least as likely as not caused pathology in the right hip joint. There is no medical opinion on file that is contrary to this opinion. As to the Veteran's statements that his postservice right hip degenerative joint disease is related to service or secondary to his service-connected gunshot wound injury to the right thigh, the Veteran is certainly competent to testify as to his symptoms. See Jandreau v. Nicholson, 492 F. 3d 1372, 1376-77 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F. 3d 1331, 1336 (Fed. Cir. 2006). In addition, lay witnesses may, in some circumstances, opine on questions of diagnosis and etiology. See Davidson v. Shinseki, 581 F. 3d 1313, 1316 (Fed. Cir. 2009) (Board's categorical statement that "a valid medical opinion" was required to establish nexus, and that a layperson was "not competent" to provide testimony as to nexus because she was a layperson, conflicts with Jandreau). Notwithstanding the fact that this matter appears to be the type of medical matter as to which the courts have held lay testimony is not competent, even if the Veteran were competent to opine as to the etiology of his right hip degenerative joint disease, the specific and reasoned opinion of the trained professional in February 2013 negating a nexus outweighs the Veteran's general lay assertion of a nexus. Based on the foregoing, the Board finds that the weight of evidence is against the Veteran's claim for service connection for a right hip disability, diagnosed as degenerative joint disease, to include as secondary to service-connected gunshot wound residuals of the right thigh. In reaching this conclusion the Board has considered the applicability of the benefit of the doubt doctrine; however, as the preponderance of the evidence is against the Veteran's claim, that doctrine is not applicable in the instant appeal. See 38 U.S.C.A. § 5107(b). ORDER An increased rating, to 30 percent, for residuals of a gunshot wound to the right thigh is granted, subject to the law and regulations governing the awards of monetary benefits. Service connection for a right hip disability, diagnosed as degenerative joint disease, and to include as secondary to service-connected gunshot wound residuals of the right thigh, is denied. ____________________________________________ MICHAEL D. LYON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs