Citation Nr: 1330276 Decision Date: 09/20/13 Archive Date: 09/25/13 DOCKET NO. 09-42 983 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Milwaukee, Wisconsin THE ISSUE Entitlement to an initial compensable rating for the residuals of a shell fragment wound to the right thigh, to include scars and small retained shrapnel. REPRESENTATION Veteran represented by: Wisconsin Department of Veterans Affairs ATTORNEY FOR THE BOARD J. W. Kim, Counsel INTRODUCTION The Veteran had active service from October 1966 to October 1968. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Milwaukee, Wisconsin. In March 2012, the Board remanded the appeal to the RO via the Appeals Management Center (AMC) to afford the Veteran a VA examination to determine the level of severity of his service-connected residuals of a shell fragment wound to the right thigh. The AMC afforded him an examination in May 2012. Review of the examination report reflects that there has been substantial compliance with the remand directives. See Dyment v. West, 13 Vet. App. 141 (1999). FINDINGS OF FACT 1. The residuals of a shell fragment wound to the Veteran's right thigh have not been manifested by moderate muscle disability of Muscle Group XIV, hip or knee disability, or peripheral nerve disability. 2. The Veteran's residuals of a shell fragment wound to the right thigh have been manifested by superficial scars that are not painful or unstable and involve less than 144 square inches (929 sq. cm.). CONCLUSION OF LAW The criteria for a compensable rating for residuals of a shell fragment wound to the right thigh have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.3, 4.10, 4.40, 4.45, 4.56, 4.59, 4.73, Diagnostic Code 5314, 4.118, Diagnostic Codes 7802, 7804 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist VA has a duty to notify and a duty to assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 3.326(a) (2013). Proper notice from VA must inform the claimant and his or her representative, if any, prior to the initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ) of any information and any 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 U.S.C.A. § 5103(a) (West 2002 & Supp. 2012); 38 C.F.R. § 3.159(b) (2013); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002). These notice requirements apply to all five elements of a service-connection claim (veteran status, existence of a disability, a connection between the veteran's service and the disability, degree of disability, and effective date of the disability). Dingess v. Nicholson, 19 Vet. App. 473 (2006). Information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded must be included. Dingess v. Nicholson, 19 Vet. App. 473 (2006). The current claim arises from an appeal of the initial evaluation after a grant of service connection. Courts have held that, once service connection is granted the claim is substantiated, additional notice is not required and that any defect in the notice is not prejudicial. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). Thus, no further notice is needed. 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 (West 2002 & Supp. 2012); 38 C.F.R. § 3.159 (2013). In this case, all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran. 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 treatment and examination. The Veteran's 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 claim. VA provided the Veteran with examinations in May 2009 and August 2010 to determine the nature and severity of his disability. 38 C.F.R. § 3.159(c)(4) (2013). When VA provides an examination or obtains an examination or obtain an opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303 (2007). In March 2012, the Board found the reports of the above-referenced examinations to be incomplete and requested another examination. The report of the subsequent May 2012 VA examination was thorough and adequate upon which to base a decision on the claim. The examiner personally interviewed and examined the Veteran, including eliciting a history from the Veteran, and provided the information needed to evaluate the disability under the applicable rating criteria. Given the above, no further notice or assistance is required to fulfill VA's duty to assist. 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). Initial Rating Disability ratings are determined by applying the criteria set forth in the VA's Schedule for Rating Disabilities, which is based on the average impairment of earning capacity resulting from disability. Separate diagnostic codes identify the various disabilities. See 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.1 (2013). However, the Board has been directed to consider only those factors contained wholly in the rating criteria. See Massey v. Brown, 7 Vet. App. 204 (1994). But see Mauerhan v. Principi, 16 Vet. App. 436 (2002) (finding it appropriate to consider factors outside the specific rating criteria in determining level of occupational and social impairment). If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for the higher evaluation; otherwise, the lower evaluation will be assigned. See 38 C.F.R. § 4.7 (2013). Any reasonable doubt regarding the degree of disability will be resolved in favor of the Veteran. 38 C.F.R. § 4.3 (2013). A veteran's entire history is to be considered when making disability evaluations. See generally 38 C.F.R. § 4.1 (2013); Schafrath v. Derwinski, 1 Vet. App. 589 (1995). When the veteran has disagreed with the initial rating assigned, evaluation of the medical evidence since the effective date of the grant of service connection and consideration of the appropriateness of "staged" ratings (i.e., assignment of different ratings for distinct periods of time, based on the facts found) is required. See Fenderson v. West, 12 Vet. App. 119 (1999). The analysis below is therefore undertaken with consideration of the possibility that different "staged" ratings may be warranted for different time periods. The Veteran's residuals of a shell fragment wound to the right thigh have been rated as 0 percent under Diagnostic Code 5314 for disability of Group XIV. 38 C.F.R. § 4.73 (2013). Under that code, slight muscle disability warrants a 0 percent rating, moderate muscle disability warrants a 10 percent rating, moderately severe muscle disability warrants a 30 percent rating, and severe muscle disability warrants a 40 percent rating. Id. Functions affected by the muscles involved in Muscle Group XIV include extension of the knee, simultaneous flexion of the hip and flexion of the knee, as well as tension of the fascia lata and iliotibial (Maissiat's) band, acting with Muscle Group XVII in postural support of the body, and acting with the hamstrings in synchronizing the hip and knee. Id. VA regulations provide that an open comminuted fracture with muscle or tendon damage will be rated as a severe injury of the muscle group involved unless, for locations such as in the wrist or over the tibia, evidence establishes that the muscle damage is minimal; and 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(a),(b) (2013). 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) (2013). Under Diagnostic Codes 5301 through 5323, disabilities resulting from muscle injuries shall be classified as slight, moderate, moderately severe, or severe. 38 C.F.R. § 4.56 (d) (2013). A slight muscle disability is the type of injury from a simple wound of muscle without debridement or infection. History of the injury should include service department record of a superficial wound with brief treatment and return to duty; healing with good functional results; and no cardinal signs or symptoms of muscle disability. Objective findings include minimal scarring; no evidence of fascial defect, atrophy, or impaired tonus; and no impairment of function or metallic fragments retained in muscle tissue. 38 C.F.R. § 4.56(d)(1) (2013). The type of injury associated with a moderate muscle disability is described as being from 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. History should include evidence of in-service treatment for the wound, as well as a record of consistent complaints of one or more cardinal signs and symptoms of muscle disability particularly lower 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; 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) (2013). A moderately severe muscle disability comprises a through-and-through or deep open penetrating wound by a small high velocity missile or a large low-velocity missile, with debridement, prolonged infection, or sloughing of soft parts, and intermuscular scarring. There should be a history of hospitalization for a prolonged period for treatment of the wound, with a record of 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 track of 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 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) (2013). Severe muscle disability contemplates through-and-through or deep penetrating wounds due to high velocity missile, or large or multiple low velocity missiles, or with shattering bone fracture or open comminuted fracture with extensive debridement, prolonged infection, or sloughing of soft parts, intermuscular binding and scarring. There should be a history of hospitalization for a prolonged period for treatment of the wound, with 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; palpable loss of deep fascia or muscle substance, or soft flabby muscles in wound area; and abnormal muscle swelling and hardening in contraction. Tests of strength, endurance, or coordinated movements compared with the corresponding muscles of the uninjured side indicate severe impairment of function. 38 C.F.R. 4.56(d)(4) (2013). If present, the following are also signs of severe muscle damage: (A) X-ray evidence of minute multiple scattered foreign bodies indicating intermuscular trauma and explosive effect of missile. (B) Adhesion of scar to one of the long bones, scapula, pelvic bones, sacrum or vertebrae, with epithelial sealing over the bone rather than true skin covering in an area where bone is normally protected by muscle. (C) Diminished muscle excitability to pulsed electrical current in electro-diagnostic tests. (D) Visible or measurable atrophy. (E) Adaptive contraction of an opposing group of muscles. (F) Atrophy of muscle groups not in the track of the missile, particularly of the trapezium and serratus in wounds of the shoulder girdle. (G) Induration or atrophy of an entire muscle following simple piercing by a projectile. 38 C.F.R. 4.56(d)(4) (2013). A muscle injury rating will not be combined with a peripheral nerve paralysis rating of the same body part, unless the injuries affect entirely different functions. There will be no rating assigned for muscle groups which act upon an ankylosed joint, except for an ankylosed knee, if muscle group XIII is disabled (rated at the next lower level than would otherwise be assigned), and an ankylosed shoulder, if muscle groups I and II are severely disabled (evaluation under diagnostic code 5200 will be elevated to the level for unfavorable ankylosis, if not already assigned, but the muscle groups will not be rated). The combined evaluation of muscle groups acting upon a single unankylosed joint must be lower than the evaluation for unfavorable ankylosis of that joint, except in the case of muscle groups I and II acting upon the shoulder. For compensable muscle group injuries that are in the same anatomical region but do not act on the same joint, the evaluation for the most severely injured muscle group will be increased by one level and used as the combined evaluation for the affected muscle groups. For muscle group injuries in different anatomical regions that do not act upon ankylosed joints, each muscle group injury shall be separately rated and the ratings combined under the provisions of 38 C.F.R. § 4.25 (2013). 38 C.F.R. 4.55 (2013). In Myler v. Derwinski, 1 Vet. App. 571, 574 (1991), the United States Court of Appeals for Veterans Claims (Court) interpreted the applicable regulations as providing that a through-and-through muscle wound was to be rated as at least of the moderate degree of injury for each muscle group injured. The Court has also held that the regulation appeared to require "muscle damage" but specified no minimum degree of damage in order for the injury to be of moderate degree. See Beyrle v. Brown, 9 Vet. App. 377, 385 (1996). VA regulations also provide that disability of the musculoskeletal system is primarily the inability, due to damage or infection in parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination and endurance. The functional loss may be due to absence of part, or all, of the necessary bones, joints and muscles, or associated structures, or to deformity, adhesions, defective innervation, or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by the visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. A little used part of the musculoskeletal system may be expected to show evidence of disuse, either through atrophy, the condition of the skin, absence of normal callosity or the like. 38 C.F.R. § 4.40 Court. Section 4.40 does not, however, require a separate rating for pain, but rather provides guidance for determining ratings under other diagnostic codes assessing musculoskeletal function. See Spurgeon v. Brown, 10 Vet. App. 194 (1997). In a March 2009 statement attached to his claim for benefits, the Veteran stated that he was wounded by a hand grenade and that he still has a piece of shrapnel in his right upper thigh that bothers him, especially during cold weather. In a subsequent March 2009 statement, he stated that he has not received any treatment for his shell fragment wound since service. The Veteran's service treatment records show that he sustained a shell fragment wound to the right thigh on September 29, 1968. The wound was debrided using local anesthetic and left open after the placement of silk sutures. On October 3rd, he underwent a delayed primary closure of a small wound of the right anterior thigh with alternative sutures. The wound was inflamed but with no exudates. On October 7th, the wound was still inflamed but with no pus, the alternative sutures were removed, it was noted that the remaining sutures could be removed at the dispensary, and the Veteran was discharged. A clinical record cover sheet reflects that the Veteran sustained a shell fragment wound to the right thigh with no artery or nerve involvement. The Veteran reported his fragment wound to the right thigh during his October 13th separation examination. The examiner noted that the wound was not significant and examination showed a scar on the right thigh but a normal clinical evaluation of the lower extremities. At a May 2009 VA examination, the Veteran reported an in-service shell fragment wound to the right thigh that was cleaned and sutured with no post-service treatment. About once a week now with changes in weather he feels a twinge at the site of the shell fragment wound scar as if the shrapnel is trying to come out. He noted that the scar itself does not bother him or cause any functional limitations. Examination showed a normal gait with no muscle loss or weakness of the quadriceps. There was a 5.0 cm by 0.2 cm horizontal scar, a 1.0 cm vertical scar crossing the above scar, and two 4.0 mm round areas of hypopigmentation that may be scars. The scars were not tender, retracted, ulcerated, adherent, or unstable, and there was no loss of skin and no loss of function due to the scars. X-rays showed a 7.0 mm metallic foreign body in the medial muscles of the thigh. X-rays also showed no fracture or dislocation, no bone lesion, and normal hip joint space. The diagnosis was of a shell fragment wound to the right thigh with residual scar and small piece of retained shrapnel. During an August 2010 VA examination, the Veteran reported that most days he is asymptomatic but about once a week, particularly when the weather changes, he has a tingling feeling as if the metal is moving in the leg. He noted that the sensation can last for hours but never radiates down the leg. He noted that the scar itself does not bother him or cause any functional limitations. He reported that he retired two years ago after 38 years and he never had any occupational limitations due to the scar or the metal fragment embedded in the leg. He also reported that the scar and shrapnel have no effect on his activities of daily living. He noted no change in his condition since the May 2009 examination. Examination showed a normal gait with no muscle loss or weakness of the quadriceps. There was a 5.0 cm by 0.2 cm horizontal scar, a 1.0 cm vertical scar crossing the above scar, and a 2.0-4.0 mm round area of hypopigmentation in the middle. The scars were superficial, not tender, retracted, ulcerated, adherent, or unstable, and there was no loss of skin and no loss of function, including motor function, due to the scars. The Veteran stated that there is never any skin breakdown or oozing or infection. The diagnoses were of a healed right thigh muscle wound with retained shrapnel and a scar on the right thigh from shrapnel. During a May 2012 VA examination, the Veteran denied any hip or knee symptoms but stated that with certain weather he feels a twinge in the area of the injury that feels as if the shrapnel is trying to work its way out. He noted that the sensation lasts for a day and resolves when the weather changes again. He denied any trouble or pain with walking or activities and denied any weakness. Examination showed full range of motion of the hip and knee, and the examiner stated that there was no current hip or knee disorder based on examination and X-rays. The examiner felt it is clear from the record that the Veteran sustained anterior thigh muscle shrapnel damage and that the knee and hip were not involved. The examiner noted that the Veteran had a Muscle Group XIV injury but observed that there was minimal scarring and no fascial defects, that the injury did not affect muscle substance or function, and that there were no cardinal signs or symptoms of muscle disability. Examination showed full strength in the hip, knee, and ankle and no muscle atrophy. The examiner stated that the shell fragment wound is healed with residual shrapnel and scar and intermittent subjective sensations of the shrapnel trying to work its way out with certain weather conditions. Examination showed normal evaluations of the nerves of the lower extremity. The examiner stated that the record shows that the Veteran did not sustain any nerve damage from the injury and that there was no objective evidence on examination of any nerve condition of the lower extremity. The Veteran denied any symptoms associated with the scars, noting that they were not painful. Examination showed three faint scars, a 5.5 cm by 0.5 cm hypopigmented horizontal scar and two 3.0 cm by 0.5 cm hypopigmented vertical scars. They were superficial and stable without any depression, elevation, tenderness, disfigurement, or any other abnormality. The examiner stated that there were no symptoms associated with the scars. Color photographs confirm the presence of faint scars as described by the examiner. Given the above, the Veteran's residuals of a shell fragment wound to the right thigh have not been manifested by moderate muscle disability of Muscle Group XIV to warrant a compensable 10 percent rating under Diagnostic Code 5314. Neither May 2009, nor August 2010, examinations showed muscle loss or weakness of the quadriceps. The examiners indicated that the shell fragment wound healed with retained shrapnel and scars. The May 2012 examination specifically addressed the manifestations of muscle injuries but found no fascial defects, loss of muscle substance or function, or cardinal signs or symptoms of muscle disability. The examiner stated that the shell fragment wound healed with residual shrapnel, scars, and intermittent subjective sensations of the shrapnel trying to work its way out with certain weather conditions. Thus, there is no objective evidence of current muscle disability or impairment of function due to the shell fragment wound. With respect to the type of injury, although the Veteran's injury is from a deep penetrating wound of short track from a shrapnel fragment, which is associated with a moderate muscle disability, there have been no residuals of debridement or prolonged infection. Historically, although there is evidence of in-service treatment for the wound, there is no record of consistent complaints of any of the cardinal signs and symptoms of muscle disability. Lastly, although objective findings include small and linear entrance scars indicating short track of missile through muscle tissue, there is no loss of deep fascia or muscle substance or impairment of muscle tonus; or loss of power or lowered threshold of fatigue when compared to the sound side. Thus, the totality of the evidence does not show that the Veteran's shell fragment wound to the right thigh more nearly approximates moderate muscle disability of Muscle Group XIV under 38 C.F.R. § 4.56(d)(2). Given the above, the Board finds that a compensable rating under Diagnostic Code 5314 is not warranted. The Board acknowledges that the Veteran suffered a traumatic injury to his leg and is sympathetic to his situation. However, the Board reiterates that there is no objective evidence of any current muscle disability. The Board has considered whether any other applicable rating criteria may enable a higher rating. However, as Diagnostic Code 5314 is specific to the muscle injury the Veteran has, there are no other relevant diagnostic codes for consideration. In addition, the Board has considered whether there is a hip or knee disability resulting from the shell fragment wound to the right thigh. However, the May 2012 examination found no impairment of the hip or knee joint, and the examiner stated that the service treatment records show that the shell fragment wound did not involve the hip or knee and that there was no current hip or knee disorder. Thus, a separate compensable rating for a hip or knee disability is not warranted. There is also no peripheral nerve disability resulting from the shell fragment wound to the right thigh. Although the Veteran has complained of a tingling sensation (as if the shrapnel is trying to work its way out), the May 2012 examination found no impairment of the nerves of his lower extremity. The examiner stated that the service treatment records show that the shell fragment wound did not involve any nerve damage and that there was no current nerve condition of the lower extremity. Thus, a separate compensable rating for peripheral nerve disability is not warranted. Lastly, although the shell fragment wound to the right thigh has resulted in several scars, they are not compensable under the rating criteria. A compensable rating is available under Diagnostic Code 7802 for scars that are superficial and nonlinear and involve an area or areas of at least 144 square inches (929 sq. cm.). 38 C.F.R. § 4.118 (2013). Compensable ratings are also available under Diagnostic Code 7804 for scars that are unstable or painful. Id. However, examinations of record fail to show that the scars involve the requisites area or are unstable or painful. The Board notes that the Veteran reported during the March 2009 examination that he occasionally feels a twinge at the site of the wound. However, during the latter two examinations, he clarified that the sensation was more of a tingling sensation. Further, even at the May 2009 examination, he noted that the scar itself does not bother him. As such, the Board observes that the sensation is associated with the shrapnel embedded below the skin in the muscle and the scars themselves are not painful. Thus, a separate compensable rating for scars is not warranted. The Board has also considered whether any other applicable rating criteria may enable a higher evaluation. However, after review, the Board finds that no other diagnostic code provides for a higher rating. In conclusion, an initial compensable rating for the residuals of a shell fragment wound to the right thigh, to include scars and small retained shrapnel, is not warranted at any time since the date of service connection. As the preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine is not applicable. See 38 U.S.C.A. § 5107 (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Additional Considerations The Board must also determine whether the schedular evaluation is inadequate, thus requiring a referral of the claim to the Under Secretary for Benefits or Director of Compensation and Pension Service for consideration of an extra-schedular evaluation commensurate with the average earning capacity impairment due exclusively to the service-connected disability. 38 C.F.R. § 3.321(b)(1) (2013). An extra-schedular evaluation is for consideration where a service-connected disability presents an exceptional or unusual disability picture. An exceptional or unusual disability picture occurs where the diagnostic criteria do not reasonably describe or contemplate the severity and symptomatology of the Veteran's service-connected disability. Thun v. Peake, 22 Vet. App. 111 (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 or frequent periods of hospitalization. Thun v. Peake, 22 Vet. App. 111 (2008). When either of those elements has been satisfied, the appeal must be referred for consideration of the assignment of an extra-schedular rating. Otherwise, the schedular evaluation is adequate, and referral is not required. 38 C.F.R. § 3.321(b)(1) (2013); Thun v. Peake, 22 Vet. App. 111 (2008). In this case, the schedular evaluation is adequate. An evaluation in excess of that assigned is provided for certain manifestations of the service-connected residuals of a shell fragment wound to the right thigh, but the medical evidence reflects that those manifestations are not present in this case. Additionally, the diagnostic criteria adequately describe the severity and symptomatology of the Veteran's disorder. As the rating schedule is adequate to evaluate the disability, referral for extra-schedular consideration is not in order. Finally, although the Veteran has submitted evidence of a medical disability, and made a claim for the highest rating possible, he has not submitted evidence of unemployability, or claimed to be unemployable, due to his service-connected disability. At the August 2010 examination, he reported that he had retired two years ago after 38 years of working and that he had never had any occupational limitations due to the scar or the metal fragment embedded in his leg. Thus, the matter of entitlement to a total disability rating based on individual unemployability due to service-connected disability has not been raised. Rice v. Shinseki, 22 Vet. App. 447 (2009); Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001). ORDER An initial compensable rating for the residuals of a shell fragment wound to the right thigh, to include scars and small retained shrapnel, is denied. ____________________________________________ THERESA M. CATINO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs