Citation Nr: 1328400 Decision Date: 09/05/13 Archive Date: 09/16/13 DOCKET NO. 05-09 599 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to service connection for tinnitus. 2. Entitlement to an initial compensable rating for hearing loss. 3. Entitlement to an initial rating in excess of 30 percent for a shell fragment wound to the left thigh. 4. Entitlement to a compensable rating for a scar associated with the shell fragment wound to the left thigh 5. Entitlement to an initial rating in excess of 20 percent for a shell fragment wound to the left posterior mid-spine. 6. Entitlement to a compensable rating for a scar associated with a shell fragment wound to the left posterior mid-spine REPRESENTATION Appellant represented by: Vietnam Veterans of America ATTORNEY FOR THE BOARD M. Prem, Counsel INTRODUCTION The Veteran served on active duty from July 1956 to July 1958. This matter has come before the Board of Veterans' Appeals (Board) on appeal from May 1998, September 2003, and May 2010 rating decisions of the RO in Waco, Texas. With regard to the Veteran's increased rating claims for shell fragment wounds to the left thigh and left posterior mid-spine, the Board issued a decision denying the appeals in February 2009. In June 2010, the United States Court of Appeals for Veterans Claims (Court) vacated the Board's decision. With respect to the Veteran's claims for an increased rating for hearing loss, and service connection for tinnitus, the Board issued a decision denying the appeals in July 2011. In April 2012, the United States Court of Appeals for Veterans Claims (Court) vacated the Board's decision. In June 2013, the RO issued a rating decision in which it increased the Veteran's rating for a shell fragment wound to the left thigh from 10 percent to 30 percent (effective from the date of the claim). It also increased the rating for a shell fragment wound to the left posterior mid-spine from 10 percent to 20 percent (effective from the date of the claim). It continued the denial of a compensable rating for hearing loss. In September 2012, the RO granted noncompensable ratings for scars associated with the Veteran's shell fragment wounds of the left thigh and mid-spine. These are deemed to be part and parcel of the increased rating claims and thus are considered in the instant decision. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDINGS OF FACT 1. The evidence does not show that it is at least as likely as not that the Veteran has tinnitus that onset during, or was caused by, his active service. 2. Throughout the rating period on appeal, the Veteran's bilateral hearing loss has been manifested by no more than Level II hearing in the right ear and Level II hearing in the left ear. 3. The service-connected shell fragment wound of the left thigh affecting muscle group XIV is currently manifested by subjective complaints of pain and tenderness when sitting, with objective evidence of a penetrating wound to Muscle Group XIV. There was in-service treatment and hospitalization, and a retained metallic body. Objective findings include left thigh flexion to 60 degrees, left thigh abduction from 30 to 60 degrees, and left hip flexion to 100 degrees (with pain at 50 degrees), with no objective evidence of loss of deep fascia, no positive evidence of impairment of the left thigh muscles, and no nerve impairment. There is some loss of muscle substance and soft, flabby muscles in the wound area. 4. The service-connected scar as a residual of a shell fragment wound of the left thigh is manifested by a 3- centimeter by 2-centimeter scar on the posterior thigh that is well-healed, nontender, and nonadherent. It is not unstable or painful on examination, and there is no objective evidence of functional impairment of the thigh due to the scar. 5. The service-connected shell fragment wound of the mid- spine is currently manifested by objective evidence of a penetrating wound to the muscle of the mid-spine. There was in-service treatment and hospitalization, and a retained metallic body overlaying T11 vertebra. Objective findings include thoracolumbar flexion to 80 degrees and combined thoracolumbar range of motion of 280 degrees, with some loss of deep fascia; some loss of muscle substance and, some flabby muscles in the wound area. 6. The service-connected scar as a residual of a shell fragment wound of the mid-spine is manifested by a 3- centimeter by 1-centimeter scar on the mid-spine that is well-healed, nontender, superficial, and nonadherent. It is not unstable or painful on examination, and there is no objective evidence of functional impairment of the back due to the scar. CONCLUSIONS OF LAW 1. The criteria for an award of service connection for tinnitus have not been met. 38 U.S.C.A. §§ 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304 (2012). 2. The criteria for a compensable evaluation for bilateral hearing loss have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103(a), 5107(b) (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 4.85-87, Diagnostic Code 6100 (2012). 3. The criteria for a disability evaluation in excess of 30 percent for residuals of shell fragment wound to the left thigh, muscles groups XIII and XIV, have not been met. 38 U.S.C.A. § 1155 (West 2002 & Supp. 2012); 38 C.F.R. §§ 4.7, 4.55, 4.56, 4.73, Diagnostic Codes 5313-5314 (2012). 4. The criteria for a compensable disability evaluation for a scar associated with the shell fragment wound to the posterior left thigh have not been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.118, Diagnostic Codes 7801-7805 (2008). 5. The criteria for a disability evaluation in excess of 20 percent for residuals of a shell fragment wound to the mid- spine have not been met. 38 U.S.C.A. § 1155 (West 2002 & Supp. 2012); 38 C.F.R. §§ 4.1, 4.7, 4.55, 4.56, 4.73, Diagnostic Codes 5320-5322 (2012). 6. The criteria for a compensable disability evaluation for the scar due to the shell fragment wound to the mid-spine have not been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.118, Diagnostic Codes 7801-7805 (2008). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Veterans Claims Assistance Act of 2000 (VCAA) - Duty to Notify As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012). Proper notice from VA must inform the claimant of any information and medical or lay evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In addition, the notice requirements of the VCAA apply to all elements of a service-connection claim, including the degree of disability and the effective date of the disability. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Further, this notice must include information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Id. at 486. VCAA notice must be provided prior to an initial unfavorable decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). Where complete notice is not timely accomplished, such error may be cured by issuance of a fully compliant notice, followed by readjudication of the claim. See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); see also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). Here, the Veteran was sent letters in January 2004 and July 2004 that provided information as to what evidence was required to substantiate the claims and of the division of responsibilities between VA and a claimant in developing an appeal. Neither communication expressly addressed the tinnitus claim. Thus, the notice is deficient on its face as to that claim. However, defective content of VCAA notice is not prejudicial to a claimant if the error does not affect the essential fairness of the adjudication, such as where (1) the claimant demonstrates actual knowledge of the content of the required notice; (2) a reasonable person could be expected to understand from the notice what was needed; or (3) a benefit could not have been awarded as a matter of law. Sanders v. Nicholson, 487 F.3d 881, 889 (Fed. Cir. 2007), rev'd on other grounds, Shinseki v. Sanders/Simmons, 129 S.Ct. 1696 (2009). In this case, from subsequent communications, a reasonable person would understand what was required to substantiate the tinnitus claim. Moreover, the Veteran's own statements demonstrate actual knowledge of such requirements. For example, in his November 2010 VA substantive appeal, he asserted that his tinnitus was related to his military service. Thus, the deficient notice as to this issue is nonprejudicial and no additional development is required. In this case, the Veteran was not provided with notice of the degree of disability or effective date. However, with respect to the Dingess requirements, the claimant was given notice of what type of information and evidence he needed to substantiate his claims for increased ratings, as this is the premise of the claims. It is therefore inherent in the claims that he had actual knowledge of the rating element of his claim. In addition, any questions as to the appropriate effective date to be assigned are moot as the claims have been denied. Thus, there is no prejudice to the Veteran in the Board's considering this case on its merits. Likewise with the Veteran's claim for service connection for tinnitus. As the instant decision denies service connection, no disability rating or effective date will be assigned. Accordingly, any absence of Dingess notice is moot. In sum, no further development is required regarding the duty to notify. Veterans Claims Assistance Act of 2000 (VCAA) - Duty to Assist Next, VA has a duty to assist the Veteran in the development of the claim. This duty includes assisting him in the procurement of service treatment records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the appellant. See Bernard v. Brown, 4 Vet. App. 384 (1993). The claims file contains the Veteran's service treatment records, as well as post-service reports of VA and private treatment and examination. Moreover, his statements in support of the claim are of record. The Board has carefully reviewed such statements and concludes that no available outstanding evidence has been identified. The Board has also perused the medical records for references to additional treatment reports not of record, but has found nothing to suggest that there is any outstanding evidence with respect to the Veteran's claims. For the above reasons, no further notice or assistance to the appellant is required to fulfill VA's duty to assist the appellant in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd, 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). Service Connection Applicable law provides that service connection will be granted if it is shown that the Veteran suffers from disability resulting from an injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in the active military, naval, or air service. 38 U.S.C.A. § 1131; 38 C.F.R. § 3.303. For Veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities, such as tinnitus, are presumed to have been incurred in service if manifest to a compensable degree within one year of discharge from service. 38 U.S.C.A. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. That an injury occurred in service alone is not enough; there must be chronic disability resulting from that injury. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b). However, this provision only applies to chronic diseases under 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). The Veteran contends that his tinnitus is due to his period of service. The Board notes that service connection is currently in effect for bilateral hearing loss resulting from in-service noise exposure. As such, exposure to noise is conceded. The question for consideration, then, is whether any current tinnitus is attributable to such in- service exposure. A review of the service treatment records reflects no complaints of, treatment for, or diagnosis of tinnitus. Post-service, a September 2004 VA examination report indicated complaints of occasional, rare tinnitus that could not be considered pathologic or significantly disabling. A December 2008 audiological consult is silent for any tinnitus symptomatology. Upon VA examination dated in June 2009, the Veteran did not raise any complaints of tinnitus. Additionally, he denied tinnitus in subsequent VA outpatient reports dated in June 2009, June 2010 and December 2010. Finally, the Veteran underwent a VA audiologic examination in March 2013. At that time, the examiner noted that the Veteran did not report recurrent tinnitus. Analysis In order to establish service connection for the claimed disorder, there must be (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) a causal connection between the claimed in-service disease or injury and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999); see also Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). In this case, the Veteran first reported tinnitus (ringing in the ears) at his September 2004 VA examination, in connection with his claim for service connection for hearing loss. The record is silent as to any additional complaints of tinnitus until November 2008, contemporaneous with his claim for VA compensation benefits. In any event, current disability is established here, since complaints were raised within the appeal period. McLain v. Nicholson, 21 Vet. App. 319 (2007). With regard to whether the Veteran sustained an injury in service, the Board notes that the service treatment records fail to contain any findings attributed to tinnitus (or ringing in the ears). However, exposure to acoustic trauma during service has been conceded. Consequently, the Board acknowledges that he could have sustained an injury that manifested itself after service. Based on the above, the question remaining for consideration is whether the tinnitus shown during the appeal period relates to the Veteran's in-service noise exposure. In this regard, the Board notes that tinnitus is not among the conditions listed as a "chronic disease" under 38 C.F.R. § 3.303(b). Accordingly, any current tinnitus cannot be deemed connected to service merely based on evidence of continuity- rather, medical evidence of nexus is required. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). The Board further notes that even if lay evidence of continuity of symptomatology could establish service connection, such evidence in this case is not deemed credible. At the outset, the Board notes the gap of more than 4 decades between the Veteran's separation from service and the first contention of tinnitus. See Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000) (a significant lapse in time between service and post-service medical treatment may be considered as part of the analysis of a service connection claim. It is true that the absence of documented treatment, in and of itself, is not a basis for discrediting his lay statements of continuity. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). However, in considering the totality of the record, and not just the absence of clinical treatment, the Veteran's assertions clearly indicate that symptoms have not been continuous since service. Indeed, he regularly he noted as not reporting tinnitus (including at his June 2009 and March 2013 VA examinations, and outpatient treatment reports dated June 2009, June 2010 and December 2010). Thus, based on the combination of the lack of documented treatment and the Veteran's own description of his tinnitus as being "rare" in frequency, any current assertion to the effect that tinnitus has been continuous since service is not credible. Additionally, it is noted that the Veteran did not file a claim of service connection for tinnitus until 2008, many decades after he separated from service. Had he been experiencing chronic tinnitus since service it would be reasonable to expect that he would have filed a claim sooner. Indeed, in 1997 he sought service connection for injuries to his left side, leg, and back. Thus, he was clearly aware of the process for applying for benefits. The fact that he did not seek service connection for tinnitus at that time very strongly suggests that he was not indeed experiencing any symptoms as late as 1997. For the above reasons, even if continuity of symptomatology could be considered in evaluating the present claim, such continuity has not been demonstrated here, either by the clinical record or by the Veteran's own statements. In this case, the Board remanded the claim so that the Veteran could undergo a VA examination, which took place in March 2013. The Veteran once again denied having tinnitus. Consequently, the examiner was unable to render an opinion. With respect to the question of entitlement to service connection on a presumptive basis, while there is medical evidence in this case of tinnitus, there is no competent medical evidence of tinnitus within one year of the Veteran's separation from active duty service, as required for service connection under 38 C.F.R. § 3.307(a), so service connection under the presumptive provisions of 38 C.F.R. §§ 3.307 and 3.309 is not warranted, and the benefit of-the-doubt standard of proof does not apply. 38U.S.C.A. § 5107(b). In conclusion, as the preponderance of the evidence is against the claim under the applicable the theories of service connection under 38 C.F.R. § 3.303(b) and (d), the benefit of-the-doubt standard of proof does not apply. 38 U.S.C.A. § 5107(b). Increased Ratings Disability evaluations are determined by the application of the Schedule For Rating Disabilities, which assigns ratings based on the average impairment of earning capacity resulting from a service-connected disability. 38 U.S.C.A. § 1155; 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. 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). However, where an increase in the level of a service-connected disability is at issue, the primary concern is the present level of disability. Francisco v. Brown, 7 Vet.App. 55 (1994). Nevertheless, the Board acknowledges that a claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. Hart v. Mansfield, 21 Vet. App. 505 (2007). The analysis in the following decision is therefore undertaken with consideration of the possibility that different ratings may be warranted for different time periods. Where, as in the case of the Veteran's hearing loss, the appeal arises from the original assignment of a disability evaluation following an award of service connection, the severity of the disability at issue is to be considered during the entire period from the initial assignment of the disability rating to the present time. See Fenderson v. West, 12 Vet.App. 119 (1999). Hearing loss The current version of the Rating Schedule provides a table for ratings purposes (Table VI) to determine a Roman numeral designation (I through XI) for hearing impairment, established by a state-licensed audiologist including a controlled speech discrimination test (Maryland CNC), and based upon a combination of the percent of speech discrimination and the puretone threshold average which is the sum of the puretone thresholds at 1000, 2000, 3000 and 4000 Hertz, divided by four. See 38 C.F.R. § 4.85. Table VII is used to determine the percentage evaluation by combining the Roman numeral designations for hearing impairment of each ear. The horizontal row represents the ear having the poorer hearing and the vertical column represents the ear having the better hearing. Id. A noncompensable evaluation is provided where hearing in the better ear is I and hearing in the poorer ear is I through IX; where hearing in the better ear is II, and hearing in the poorer ear is II to IV; or where there is level III hearing in both ears. A 10 percent disability rating is warranted where hearing in the better ear is I, and hearing in the poorer ear is X to XI; or where hearing in the better ear is II, and hearing in the poorer ear is V to XI; or where hearing in the better ear is III, and hearing in the poorer ear is IV to VI. A 20 percent disability rating is warranted where hearing in the better ear is III, and hearing in the poorer ear is VII to XI; or where hearing in the better ear is IV, and hearing in the poorer ear is VI to VIII; or where hearing in the better ear is V, and hearing in the poorer ear is V to VI. 38 C.F.R. § 4.85, Table VII, Diagnostic Code 6100. Table VIa will be used when the examiner certifies that the use of speech discrimination test is not appropriate because of language difficulties, inconsistent speech discrimination scores, etc., or when indicated under the provisions of 38 C.F.R. § 4.86. 38 C.F.R. § 4.85(c). When the puretone threshold at each of the four specified frequencies (1000, 2000, 3000, and 4000 Hertz) is 55 decibels or more, the rating specialist will determine the Roman numeral designation for hearing impairment from either Table VI or Table VIa, whichever results in the higher numeral. Each ear will be evaluated separately. 38 C.F.R. § 4.86(a). When the puretone threshold is 30 decibels or less at 1000 Hertz, and 70 decibels or more at 2000 Hertz, the rating specialist will determine the Roman numeral designation for hearing impairment from either Table VI or Table VIa, whichever results in the higher numeral. That numeral will then be elevated to the next higher. 38 C.F.R. § 4.86(b). Pertinent case law provides that the assignment of disability ratings for hearing impairment are to be derived by the mechanical application of the Ratings Schedule to the numeric designations assigned after audiometry evaluations are rendered. Lendenmann v. Principi, 3 Vet. App. 345 (1992). The Veteran underwent a VA examination in September 2004. Pure tone thresholds for the ears were as follows: HERTZ 1000 2000 3000 4000 RIGHT 30 45 55 50 LEFT 35 50 55 55 The pure tone average was 45 decibels in the right ear and 49 decibels in the left ear. Speech recognition scores were 96 percent in the right ear and 96 percent in the left ear. Such examination findings translate to level I hearing in the right ear and level I hearing in the left ear. 38 C.F.R. § 4.85, Table VI. Applying Table VII, Diagnostic Code 6100, this equates to a 0 percent rating. The Veteran underwent a VA examination in June 2009. Pure tone thresholds for the ears were as follows: HERTZ 1000 2000 3000 4000 RIGHT 30 45 55 55 LEFT 40 55 55 60 The pure tone average was 46 decibels in the right ear and 53 decibels in the left ear. Speech recognition scores were 96 percent in the right ear and 92 percent in the left ear. Such examination findings translate to level I hearing in the right ear and level I hearing in the left ear. 38 C.F.R. § 4.85, Table VI. Applying Table VII, Diagnostic Code 6100, this equates to a 0 percent rating. The Veteran was afforded an additional VA examination in January 2011; however, those test results were invalid and cannot be used for rating purposes. The examiner noted that the Veteran's volunteered puretone threshold and puretone average were elevated as compared to the speech recognition thresholds. Therefore, these results were indicative of poor test validity. The Veteran was given the instructions several times, but there was no change in the volunteered thresholds. Word recognition scores were excellent at volunteered puretone thresholds, indicating that the thresholds were better than reported. Accordingly, the January 2011 VA examination report is inadequate for rating purposes and will not be considered in the Board's analysis. In March 2013, the Veteran underwent another VA audiological examination. The examiner reviewed the claims file in conjunction with the examination. Upon examination, pure tone thresholds for the ears were as follows: HERTZ 1000 2000 3000 4000 RIGHT 40 55 60 60 LEFT 40 60 65 65 The pure tone average was 54 decibels in the right ear and 58 decibels in the left ear. Speech recognition scores were 84 percent in both ears. Such examination findings translate to level II hearing in the right ear and level II hearing in the left ear. 38 C.F.R. § 4.85, Table VI. Applying Table VII, Diagnostic Code 6100, this equates to a noncompensable rating. Analysis The Veteran has been assigned a noncompensable rating based on the results of June 2009 and the March 2013 VA examinations. As noted above, applying Table VII, Diagnostic Code 6100, these examination findings equate to a noncompensable rating for bilateral hearing loss. Based on these audiological test results, a compensable rating is not warranted. The Board acknowledges the Veteran's contentions regarding the impact of his hearing loss on his daily activities, and VA's obligation to resolve all reasonable doubt in the Veteran's favor. However, as noted previously, because assignment of disability ratings for hearing impairment are derived by a mechanical application of the rating schedule to the numeric designations assigned after audiometry evaluations are rendered there is no doubt as to the proper evaluation to assign. Lendenmann, supra; 38 C.F.R. § 4.85, Tables VI, VIA, and VII, Diagnostic Code 6100. Applying the audiological test results most favorable to the Veteran to the regulatory criteria, the Board is compelled to conclude that the preponderance of the evidence is against entitlement to a compensable rating. Thus, there is no reasonable doubt to be resolved. The Veteran may always advance an increased rating claim should the severity of his hearing loss disability increase in the future. The potential application of various provisions of Title 38 of the Code of Federal Regulations have also been considered but the record does not present such "an exceptional or unusual disability picture as to render impractical the application of the regular rating schedule standards." 38 C.F.R. § 3.321(b)(1); see also See Martinak v. Nicholson, 21 Vet. App. 447, 455 (2007) (noting that functional effects of hearing loss must be considered in an extraschedular determination). However, as discussed above, the evidentiary record in this case persuasively shows that the Veteran's hearing loss symptoms squarely match the type and degree of the examples set forth under the criteria for the current noncompensable schedular rating. Consideration of an extraschedular rating under 38 C.F.R. § 3.321(b)(1) is not appropriate in such a case where the rating criteria reasonably describe the Veteran's disability level and symptomatology. See generally Thun v. Peak, 22 Vet.App. 111 (2008). The Board therefore finds that referral for extraschedular consideration under 38 C.F.R. § 3.321(b)(1) is not warranted in this case. Rating Muscle Injuries 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). There will be no rating assigned for muscle groups which act upon an ankylosed joint, with exceptions to this rule relating only to the knee and the shoulder. See 38 C.F.R. § 4.55(c) (2012). Additionally, the combined evaluation of muscle groups acting on a single unankylosed joint must be lower than the rating for unfavorable ankylosis of that joint, except when muscles groups I and II are acting on the shoulder. 38 C.F.R. § 4.55(d) (2012). When compensable muscle group injuries are in the same anatomical region, but do not act on the same joint, the rating for the most severely injured muscle group will be increased by one level, and used as the combined evaluation for all affected muscle groups. 38 C.F.R. § 4.55(e) (2012). Otherwise, for muscle group injuries in different anatomical regions (not acting on ankylosed joints), each injury is separately rated, and ratings are then combined under VA's "combined ratings table" at 38 C.F.R. § 4.25, for the purposes of determining schedular compensation ratings. 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). 38 C.F.R. § 4.68 provides that the combined rating for disabilities of an extremity shall not exceed the rating for the amputation at the elective level, were amputation to be performed. Diagnostic Code 5165 provides a maximum 40 percent combined rating for amputation of the lower leg. 38 C.F.R. § 4.71a, Diagnostic Code 5165. 38 C.F.R. § 4.56 provides 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. The type of injury associated with 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). The type of injury associated with 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). The type of injury associated with 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). Diagnostic Code 5313 pertains to Muscle Group XII, which affects extension of the hip and flexion of the knee; outward and inward rotation of flexed knee; acting with rectus femoris and Sartorius (see XIV, 1, 2) synchronizing simultaneous flexion of hip and knee and extension of hip and knee by belt-over-pulley action at knee joint. A slight impairment in Muscle Group Function XIII receives a noncompensable rating. A moderate impairment receives a 10 percent rating; a moderately severe impairment receives a 30 percent rating; and a severe impairment receives a 40 percent rating. 38 C.F.R. § 4.73, Diagnostic Code 5313. Diagnostic Code 5314 pertains to Muscle Group XIV, which affects extension of the knee; simultaneous flexion of hip and flexion of knee; tension of fascia lata and iliotibial (Maissiat's) band, acting with XVII in postural support of body; acting with hamstrings in synchronizing hip and knee. A slight impairment in Muscle Group Function XIV receives a noncompensable rating. A moderate impairment receives a 10 percent rating; a moderately severe impairment receives a 30 percent rating; and a severe impairment receives a 40 percent rating. 38 C.F.R. § 4.73, Diagnostic Code 5314. Diagnostic Code 5317 pertains to Muscle Group XVII, which affects extension of the hip; abduction of the thigh; elevation of opposite side of the pelvis; tension of fascia lata and iliotibial band, acting with XIV in postural support of body steadying pelvis upon the head of the femur and condyles of femur on tibia. Diagnostic Code 5318 pertains to Muscle Group XVIII, the function of which consists of outward rotation of thigh and stabilization of hip joint. This diagnostic code provides a noncompensable (zero percent) rating for slight muscle injury, a 10 percent evaluation for a moderate muscle injury, a 20 percent evaluation for a moderately severe muscle injury, and a 30 percent evaluation for a severe muscle injury. 38 C.F.R. § 4.73, Diagnostic Code 5318 (2012). Diagnostic Code 5320 applies to injuries to Muscle Group XX, namely spinal muscles, to include the sacrospinalis (erector spinae and its prolongations in thoracic and cervical regions). The function of this muscle group is postural support of the body, extension, and lateral movements of the spine. There are two sets of rating criteria within Diagnostic Code 5320, applicable to: (1) the cervical and thoracic region and (2) the lumbar region. Under Diagnostic Code 5320, a noncompensable rating is assigned for slight impairment to the cervical or thoracic region. A 10 percent rating is warranted if the impairment of the cervical or thoracic region is moderate. Moderately severe impairment to the cervical or thoracic region warrants a 20 percent rating. Severe impairment to the cervical or thoracic region warrants a 40 percent rating. Additionally, a noncompensable rating is assigned for slight impairment to the lumbar region. A 20 percent rating is warranted if the impairment of the lumbar region is moderate. Moderately severe impairment to the lumbar region warrants a 40 percent rating. Severe impairment to the lumbar region warrants a 60 percent rating. 38 C.F.R. § 4.73, Diagnostic Code 5320. Diagnostic Code 5321 pertains to Muscle Group XXI, regarding the thoracic muscle group whose function consists of respiration. This diagnostic code provides a noncompensable (zero percent) rating for slight muscle injury, a 10 percent evaluation for a moderate muscle injury, and a 20 percent evaluation for a severe or moderately severe muscle injury. 38 C.F.R. § 4.73, Diagnostic Code 5321 (2012). Diagnostic Code 5322 pertains to Muscle Group XXII, the function of which consists of rotary and forward movements of the head; respiration; and deglutition. This diagnostic code provides a noncompensable (zero percent) rating for slight muscle injury, a 10 percent evaluation for a moderate muscle injury, a 20 percent evaluation for a moderately severe muscle injury, and a 30 percent evaluation for a severe muscle injury. 38 C.F.R. § 4.73, Diagnostic Code 5322 (2012). The evaluation of a service-connected disability involving a joint rated on limitation of motion requires adequate consideration of functional loss due to pain under 38 C.F.R. § 4.40 and functional loss due to weakness, fatigability, incoordination or pain on movement of a joint under 38 C.F.R. § 4.45. See DeLuca v. Brown, 8 Vet. App. 202 (1995). Disability of the musculoskeletal system is primarily the inability to perform the normal working movements of the body with normal excursion, strength, speed, coordination and endurance. 38 C.F.R. § 4.40. Consideration is to be given to whether there is less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, pain on movement, swelling, deformity or atrophy of disuse, instability of station, or interference with standing, sitting, or weight bearing. 38 C.F.R. § 4.45. Rating Scars The Board notes that on September 23, 2008, VA amended the criteria for evaluating scars. See 73 Fed. Reg. 54,708 (Sept. 23, 2008). The amendments, however, are only effective for claims filed on or after October 23, 2008, although a claimant may request consideration under the amended criteria. In this case, the Veteran has not requested such consideration. As his claim for service connection was received prior to October 23, 208, the amendments are not applicable and will not be applied in this case. Scars, other than head, face, or neck, that are deep or cause limited motion are rated as follows: area or areas exceeding 144 square inches (929 sq. cm.) are rated as 40 percent disabling; area or areas exceeding 72 square inches (465 sq. cm.) are rated as 30 percent disabling; area or areas exceeding 12 square inches (77 sq. cm.) are rated as 20 percent disabling; and area or areas exceeding 6 square inches (39 sq. cm.) are rated as 10 percent disabling. 38 C.F.R. § 4.118, Diagnostic Code 7801 (2008). A deep scar is one associated with underlying soft tissue damage. 38 C.F.R. § 4.118, Diagnostic Code 7801, Note 2. Scars, other than head, face, or neck, that are superficial and that do not cause limited motion and that cover an area or areas of 144 square inches (929 sq. cm.) or greater are rated as 10 percent disabling. 38 C.F.R. § 4.118, Diagnostic Code 7802 (2008). A superficial scar is one not associated with underlying soft tissue damage. 38 C.F.R. § 4.118, Diagnostic Code 7802, Note 2. Scars that are superficial and unstable are rated as 10 percent disabling. 38 C.F.R. § 4.118, Diagnostic Code 7803 (2008). An unstable scar is one where, for any reason, there is frequent loss of covering of skin over the scar. 38 C.F.R. § 4.118, Diagnostic Code 7803, Note 1. Scars that are superficial and painful on examination are rated as 10 percent disabling. 38 C.F.R. § 4.118, Diagnostic Code 7804 (2008). Other scars are rated based upon limitation of function of affected part. 38 C.F.R. § 4.118, Diagnostic Code 7805 (2008). Left thigh The service-connected shell fragment wound to the left thigh is rated as 30 percent disabling for moderately-severe muscle impairment under Diagnostic Code 5313. In order to warrant a rating in excess of 30 percent, the Veteran's disability would have to be manifested by a severe muscle injury. The Veteran was wounded by shrapnel fragment. The service treatment records show that he sustained multiple missile wounds to the left leg on October 15, 1957 at Camp Pendleton during the firing of 3.5 inch rocket launcher, when a round prematurely exploded. Service hospital records show that the Veteran was hospitalized for approximately seven weeks for treatment of the wound. X-ray examination on October 16, 1957 showed an irregularly shaped metallic foreign body 1 1/2 centimeters by 3/4 centimeters in the soft tissue, 1 centimeter medial to and 8 centimeters posterior to the shaft of the femur, approximately 16 centimeters above the knee joint. There was a small amount of air in the soft issues adjacent to the foreign body. The thigh was otherwise negative. The Veteran was placed on antibiotics until November 4, 1957. He was placed on King's solution dressing and the wounds steadily healed by secondary extension. On November 2, 1957, a piece of shrapnel was removed from the left side. The hospital report indicates that the wounds healed satisfactorily. There was no nerve or artery involvement. The Veteran was discharged from the hospital on December 5, 1957, fit for duty. Post-service, the Veteran underwent a VA examination in April 1998. He reported that the shrapnel wound bothered him, as his leg developed a stiff feeling after sitting, requiring him to "walk it out." He believed that the fragment was still in his leg. Upon examination, the left thigh had a scar that did not form a keloid in the posterior portion of the mid portion of the thigh. The thigh appeared to have good function and there was not much local tenderness. The hamstrings contracted well and there was no neuromuscular deficient distally. The Veteran underwent a VA scars examination in January 2003. There was an entrance scar on the left thigh, 1 inch by 3/4 inches in size. The scar was superficial and nontender and it did not adhere to the underlying tissue. There was no ulceration or inflammation. There was no evidence of limited function of the left thigh. The Veteran underwent another VA examination in March 2007. He complained that when he satisfied in a hard chair he experienced tenderness and spasm in the posterior muscles of the left thigh. The examiner stated that the muscle group affected by the shell fragment wound was Muscle Group XIV. There was no objective evidence of loss of muscle loss. There was also no evidence of excess fatigability, lack of endurance, incoordination, or incapacitating episodes. He could flex his hip to 50 degrees and could abduct to 60 degrees, with no pain to that point. Range of motion did not lessen with repetition. The Veteran was able to walk and carry out his usual activities. The Veteran underwent two other VA examinations in July 2012 (one examination of the muscle groups and other orthopedic considerations and one examination of the scars). He reported pain over the left thigh musculature at the site of the injury with sitting more than 5 minutes, with pressure on the area. He was able to ambulate with mild pain at the site of the injury. There was no weakness from the muscles. The examiner identified the affected muscle group as Muscle Group XIII affecting flexion of the left knee. The examiner noted some loss of deep fascia, some loss of muscle substance, and also soft, flabby muscles in the wound area. He also noted consistent fatigue-pain in the muscle group. The severity was not considered to be consistent at a more severe level. The Veteran achieved 100 degrees of left hip flexion, with pain beginning at 50 degrees. Muscle strength in knee flexion (Muscle Group XIII) and hip flexion (Muscle Group XIV) were both 5/5. The examiner noted no atrophy. The Veteran did not use any assistive devices. The examiner found that the Veteran's muscle injury did not impact the Veteran's ability to work. In a March 2013 addendum, the examiner found that the findings were consistent with a moderate injury to Muscle Group XIII. The July 2012 scars examination revealed a 2 cm scar that was not painful or otherwise symptomatic. The Board finds that the criteria for severe muscle injury have not been met. There is no evidence ragged, depressed, and adherent scars indicating wide damage to muscle groups in missile track. There is also no evidence of palpation of loss of deep fascia. There is no evidence that the muscles swell and harden abnormally in contraction. There is no X- ray evidence of minute multiple scattered foreign bodies indicating intermuscular trauma and explosive effect of missile. Further, there is no evidence of 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; diminished muscle excitability to pulsed electrical current in electrodiagnostic tests. There is no visible or measurable atrophy, adaptive contraction of an opposing group of muscles, atrophy of muscle groups not in the track of the missile, particularly of the trapezius and serratus in wounds of the shoulder girdle, or induration or atrophy of an entire muscle following simple piercing by a projectile. The only criterion of a severe muscle injury that is supported by any evidence is the July 2012 VA examiner's report of soft flabby muscles in wound area. No other criteria have been satisfied, and the VA examiner specifically described the injury as a moderate injury to Muscle Group XIII. Consequently, the Board finds that a preponderance of the evidence weighs against a finding that the Veteran's injury is any more than moderately-severe. Thus, a rating in excess of 30 percent is not warranted under Diagnostic Codes 5313-5314. The shrapnel wound of the left thigh may be rated, in the alternative, under the Diagnostic Codes pertinent to orthopedic or neurological disabilities. Diagnostic Code 5251 provides a maximum rating of 10 percent for limitation of extension of the thigh to 5 degrees. 38 C.F.R. § 4.71a, Diagnostic Code 5251. Thus, a higher rating is not warranted under this code. Diagnostic Code 5252 provides a 40 percent rating where flexion of the thigh is limited to 10 degrees. 38 C.F.R. § 4.71a, Diagnostic Code 5252. In the present case, the March 2007 VA examination report indicates that the Veteran was able to flex his left thigh to 50 degrees. At his July 2012 VA examination, he was able to achieve hip flexion to 100 degrees (with pain beginning at 50 degrees). Diagnostic Code 5253 provides a maximum rating of 20 percent rating for limitation of abduction with motion lost beyond 10 degrees. Thus, a higher rating is not warranted under this code. Thus, a rating in excess of 30 percent is not warranted for the shrapnel wound to the left thigh under Diagnostic Codes 5251, 5252, or 5253. Moreover, in reaching these conclusions, the Board has appropriately considered additional functional limitation due to factors such as pain and weakness. See 38 C.F.R. §§ 4.40 and 4.45 and DeLuca v. Brown, 8 Vet. App. 202, 206-07 (1995). Indeed, the March 2007 VA examination report indicates that the Veteran did not have any pain with movement of the left thigh. The examiner reported that there was no additional loss of motion with flare-ups. There was no excess fatigability, lack of endurance, incoordination, or incapacitating episodes. The examiner reported that there was no change in range of motion, coordination, fatigue or endurance with repetitive motion or pain at the hip or thigh with repetitive motion. The July 2012 examiner reported that the disability had no impact on the ability of the Veteran to work, and that muscle strength was 5/5. Based on the objective medical evidence of record, there is no basis for the assignment of additional disability due to pain, weakness, fatigability, weakness, or incoordination. Additionally, the record does not show that the Veteran has any neurological impairment in the left thigh associated with the shell fragment wound. Indeed, service treatment records indicate that there was no nerve involvement. The March 2007 VA examination report indicates that the Veteran never had any nerve pain. Physical examination revealed no loss of pinprick in the thighs, feet, or leg. The diagnosis was no peripheral nerve injury and no paralysis. Thus, a rating under the diagnostic codes pertinent to neurological disorder is not warranted. See 38 C.F.R. § 4.124a (2013). Left thigh scar By way of a September 2012 RO rating decision, the Veteran was granted a separate, noncompensable rating for a scar of the posterior left thigh. In order to warrant a compensable rating, the scar would have to be deep and cause limited motion and exceed 6 square inches (Diagnostic Code 7801); be superficial and cover an area or areas of 144 square inches or greater (Diagnostic Code 7802); be superficial and unstable (Diagnostic Code 7803); be superficial and painful on examination (Diagnostic Code 7804); or cause limitation of function (Diagnostic Code 7805). The March 2007 VA examination report indicates that the scar on the left thigh was 3 by 2 centimeters in size and 6 square centimeters. Moreover, as indicated in the January 2003 VA examination report, the scar was on the posterior thigh and was well-healed, nontender, and nondiscolored. The scar was superficial and nontender. There was no ulceration or inflammation. There was no evidence of limited function of the left thigh. Likewise, the July 2012 VA examiner found that the Veteran had a 2 cm. linear scar. The scar was not painful. There was no frequent loss of covering of the skin over the scar; and the scar was not deep. Therefore, the record does not demonstrate the requisite objective manifestations for a compensable rating for the service-connected scar due to the shell fragment wound on the left thigh. The scar on the left thigh is not deep and does not cause limited motion. The examination reports indicate that the scar was nonadherent and not deep. Thus, a separate rating is not warranted under Diagnostic Code 7801. The scar on the left thigh did not cover an area or areas of 144 square inches. Thus, a compensable rating is not warranted under Diagnostic Code 7802. There is no evidence that the scar is unstable. Thus, a compensable rating is not warranted under Diagnostic Code 7803. There is no evidence that the scar is painful on examination. Thus, a compensable rating is not warranted under Diagnostic Code 7804. There is no evidence that the scar limits the function of the left thigh. Thus, a separate compensable rating is not warranted for the scar of the left thigh under Diagnostic Code 7805. Finally, the Board has considered whether the Veteran was entitled to staged ratings for his service-connected shell fragment wound to the left thigh, as the Court indicated can be done in this type of case. As demonstrated above, no credible evidence for application of any staged rating is of record. Thus, consideration in this regard is not needed. Under 38 C.F.R. § 3.321(b)(1) ratings are to be based as far as practicable upon the average impairment of earning capacity. However, in those exceptional cases where the schedular evaluations are found to be inadequate, an extraschedular evaluation can be provided commensurate with the average earning capacity impairment due exclusively to the service-connected disability or disabilities. The governing norm in these exceptional cases is: a finding that the case represents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical the application of the regular schedular standards. The medical evidence shows that the symptoms due to the shrapnel wound to the left thigh are normal manifestations of this type of injury and are contemplated in the rating schedule. Therefore, the Board finds no exceptional circumstances in this case that would warrant referral for consideration of an extraschedular evaluation. In conclusion, the preponderance of the evidence is against a disability evaluation in excess of 30 percent for the shell fragment wound to the left thigh under Diagnostic Code 5313 and against a compensable rating for the scar due to the shell fragment wound of the left thigh. As the preponderance of the evidence is against the claims, the benefit-of-the-doubt doctrine does not apply since there is no approximate balance of the evidence for and against the claim. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The claims are denied. Mid-spine The service-connected shell fragment wound to the mid-spine is rated as 20 percent disabling for severe or moderately severe muscle impairment under Diagnostic Code 5321. The 20 percent rating is the maximum rating under this code section. However, the Board notes that the RO at one point rated the disability under Diagnostic Code 5320. Additionally, one VA examiner opined that the disability affected Muscle Group XXII, which would make Diagnostic Code 5322 applicable. The service treatment records show that the Veteran sustained multiple missile wounds to the back on October 15, 1957 at Camp Pendleton during the firing of 3.5 inch rocket launcher and a round prematurely exploded. Service hospital records show that the Veteran was hospitalized for approximately seven weeks for treatment of the wound. Hospital records indicate that examination revealed a puncture wound to the left posterior spine and along the posterior auxiliary level of the 8th rib. X-ray examination of the chest on October 18 revealed a small opaque foreign body measuring 4 by 6 millimeters in the soft tissue adjacent to the 8th rib laterally and outside the chest cavity. The chest was otherwise negative. The metallic foreign body was on the left side. The Veteran was placed on antibiotics until November 4, 1957. He was placed on King's solution dressing and the wounds steadily healed by secondary extension. On November 2, 1957, a piece of shrapnel was removed from the left side. The hospital report indicates that the wounds healed satisfactorily. There was no nerve or artery involvement. The Veteran was discharged from the hospital on December 5, 1957, and was fit for duty. X-rays dated in April 1998 (Volume 1) reflect degenerative joint disease between C6 and C7, with anterior bony spurs. The discs between C5 and C7 were narrowed. Alignment was unremarkable. In the examiner's April 1998 examination report, he noted that the entire spine was x-rayed and it showed degenerative changes in several areas. He stated that those findings were unrelated to the shrapnel wounds. The Veteran stated that the shrapnel wound to his back has not bothered him since he gained weight. Upon examination, the front of the Veteran's chest showed a fairly extensive keloid formation. It did not appear to impair function. The wound over the lumbar area posteriorly and the flank appeared to be well healed and non-tender. The Veteran underwent another VA examination in March 2007. The examiner reviewed the claims file in conjunction with the examination. The Veteran reported no particular pain in his back, except that he would get pain if he made a sudden twist. There was no radiation into the lower extremities. The examiner stated that the disability affected Muscle Group XXII. Upon examination, there was a 3 x 1 cm. transverse scar 15 cm. lateral to the mid-spinal spine. The scar was soft, not discolored. There was no tenderness to the area. There was no muscle loss of the posterior musculature of the back. He achieved 80 degrees of flexion, 20 of extension, 50 degrees of right and left lateral flexion, and 40 degrees of right and left rotation without pain. With repetitive motion, there was no change in range of motion, fatigue, incoordination, endurance, or pain level. The Veteran underwent another VA examination in July 2012 (Volume 3). The examiner found disability to Muscle Group XXI (thoracic muscle group affecting respiration). There was some loss of deep fascia, some loss of muscle substance, and some flabby muscles in wound area. There was x-ray evidence of retained shell fragments and/or shrapnel in Muscle Group XXII affecting the left side. The examiner found no disability with regard to the chest wall injury. In March 2013, he submitted an addendum in which he described the injury to Muscle Group XXI as slight. As noted above, the current 20 percent rating is the maximum rating available under Diagnostic Code 5321 (regarding Muscle Group XXI). In order to warrant a rating in excess of 20, the Veteran's disability must be manifested by a moderately severe disability to the lumbar region or a severe injury to the cervical and thoracic regions of Muscle Group XX (Diagnostic Code 5320) or a severe disability to Muscle Group XXII regarding rotary and forward movements of the head; respiration; and deglutition (Diagnostic Code 5322). In applying the law to the existing facts, the Board finds that the Veteran's shell fragment wound to the mid-spine constitutes no more than a moderately severe disability to either of those muscle groups. The Board finds that the criteria for a severe muscle injury have not been met. Indeed, there is no evidence that the wound was through and through. There is no evidence of shattering bone fracture, open comminuted fracture with extensive debridement, prolonged infection, sloughing of soft parts, or intermuscular scarring. There are no findings of ragged, depressed, and adherent scars indicating wide damage to muscle groups in missile track. Muscle strength was good and there was no indication of severe impairment of function. The Board acknowledges that the July 2012 noted some loss of deep fascia, some loss of muscle substance, and some flabby muscles. However, the examiner deemed the disability to constitute a slight injury to Muscle Group XXI. The shell fragment wound of the mid-spine may be rated, in the alternative, under the Diagnostic Codes pertinent to orthopedic or neurological disabilities. The Board will consider the claim under the pre-amended rating criteria for the entire period of the appeal, and the new criteria from the effective date of the revisions. See VAOPGCPREC 3- 2000 (April 10, 2000). Under the former Diagnostic Code 5291, a 10 percent rating is assigned for moderate or severe limitation of motion of the thoracic spine. This was the maximum rating under this diagnostic code. Under the rating criteria for diseases of the spine in effect from September 26, 2003, a 40 percent rating is warranted when there is unfavorable ankylosis of the entire cervical spine; or, forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. A 30 percent rating is warranted when there is forward flexion of the cervical spine 15 degrees or less; or, favorable ankylosis of the entire cervical spine. 38 C.F.R. § 4.71a, Diagnostic Codes 5235 to 5243 (2012). In the present case, a rating in excess of 20 percent is not warranted under the revised rating criteria for rating spine disabilities. Upon VA examination in March 2007, the Veteran had forward flexion to 80 degrees. The combined range of motion of the thoracolumbar spine was 280 degrees. There was no evidence of muscle spasm, severe guarding or abnormal gait. There was no evidence of abnormal spine contour. Thus, a rating in excess of 20 percent for the shell fragment wound to the mid-spine is not warranted under 38 C.F.R. § 4.71a, Diagnostic Codes 5235 to 5243 (2012). Moreover, in reaching these conclusions, the Board has appropriately considered additional functional limitation due to factors such as pain and weakness. See 38 C.F.R. §§ 4.40 and 4.45 and DeLuca v. Brown, 8 Vet. App. 202, 206-07 (1995). Indeed, the March 2007 VA examination report indicates that the Veteran did not have any pain with movement of the spine. The examiner reported that there was no additional loss of motion with flare-ups. There was no excess fatigability, lack of endurance, incoordination, or incapacitating episodes. The examiner reported that there was no change in range of motion, coordination, fatigue or endurance with repetitive motion or pain at the hip or thigh with repetitive motion. Based on the objective medical evidence of record, there is no basis for the assignment of additional disability due to pain, weakness, fatigability, weakness, or incoordination, and the Board finds that the assignment of additional disability pursuant to 38 C.F.R. §§ 4.40 and 4.45 is not warranted. Additionally, the record does not show that the Veteran has any neurological impairment in the mid-spine or disc disease associated with the shell fragment wound. Service treatment records indicate that there was no nerve involvement. The March 2007 VA examination report indicates that the Veteran never had any nerve pain. Physical examination revealed that straight leg testing was negative. There was no loss of pinprick in the thighs, feet, or leg. X-ray examination in 2003 did not detect any disc disease. Thus, a rating under the diagnostic codes pertinent to neurological disorder or disc disease is not warranted. See 38 C.F.R. §§ 4.71a, 4.124a (2012). Mid-spine scar The Board has also considered whether a compensable rating is warranted for the scar as a residual of the shell fragment wound to the mid-spine. The medical evidence shows that the scar on the mid-spine was 3 centimeters by 1 centimeter in size. The scar was superficial and nontender. There was no ulceration or inflammation. There was no evidence of limited function of the spine due to the scar. The March 2007 VA examination report indicates that the scar was soft, not discolored, and nontender. See the January 2003 and March 2007 VA examination reports. Likewise, the July 2012 examiner noted that the scar was 3 cm., linear, and not deep. In applying the law to the existing facts, for the reasons expressed below, the record does not demonstrate the requisite objective manifestations for a compensable rating for the service-connected scar due to the shell fragment wound on the mid-spine. The scar is not deep and does not cause limited motion. The VA examination reports indicate that the scar was nonadherent and superficial. There is no evidence of limited motion to the spine due to the scar. Thus, a separate rating is not warranted under Diagnostic Code 7801. The scar on the mid-spine is 3 square centimeters in size. Thus, a compensable rating is not warranted under Diagnostic Code 7802. There is no evidence that the scar is unstable or painful on examination. Thus, a compensable rating is not warranted under Diagnostic Codes 7803 or 7804. There is no evidence that the scar limits the function of the spine. Thus, a separate compensable rating is not warranted under Diagnostic Code 7805. Finally, in view of the Court's holding in Hart, supra, the Board has considered whether the Veteran was entitled to staged ratings for his service-connected shell fragment wound to the mid-spine, as the Court indicated can be done in this type of case. As demonstrated above, no credible evidence for application of any staged rating is of record. Thus, consideration in this regard is not needed. Under 38 C.F.R. § 3.321(b)(1) ratings are to be based as far as practicable upon the average impairment of earning capacity. However, in those exceptional cases where the schedular evaluations are found to be inadequate, an extraschedular evaluation can be provided commensurate with the average earning capacity impairment due exclusively to the service-connected disability or disabilities. The governing norm in these exceptional cases is: A finding that the case represents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical the application of the regular schedular standards. The medical evidence shows that the symptoms due to the shell fragment wound to the mid-spine are normal manifestations of this type of injury and are contemplated in the rating schedule. Therefore, the Board finds no exceptional circumstances in this case that would warrant referral for consideration of an extraschedular evaluation. In conclusion, the preponderance of the evidence is against a disability evaluation in excess of 20 percent for the shell fragment wound to the mid-spine under Diagnostic Codes 5320-5322 and a compensable rating is not warranted for the scar due to the shell fragment wound of the mid-spine. As the preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine does not apply since there is no approximate balance of the evidence for and against the claim. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The claim is denied. ORDER Entitlement to service connection for tinnitus is denied. Entitlement to a compensable rating for bilateral hearing loss is denied. Entitlement to a rating in excess of 30 percent for residuals of shell fragment wound to the left thigh, muscle group XIII, is denied. Entitlement to a compensable rating for a scar due to the shell fragment wound to the posterior left thigh is denied. Entitlement to a rating in excess of 20 percent for residuals of a shell fragment wound to the mid-spine. Entitlement to a compensable rating for a scar due to the shell fragment wound to the mid-spine have not been met is denied. ______________________________________________ ERIC S. LEBOFF Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs