Citation Nr: 1330307 Decision Date: 09/20/13 Archive Date: 09/25/13 DOCKET NO. 04-05 585 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in North Little Rock, Arkansas THE ISSUES 1. Entitlement to an initial evaluation in excess of 30 percent for residuals of a shell fragment wound of the right thigh, involving Muscle Group XIV. 2. Entitlement to an initial evaluation in excess of 30 percent for residuals of a shell fragment wound of the right elbow, involving Muscle Group V. 3. Entitlement to an initial evaluation in excess of 10 percent for right thigh shrapnel wound scar. 4. Entitlement to an initial evaluation in excess of 10 percent for right elbow shrapnel wound scar. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Evan M. Deichert, Counsel INTRODUCTION The Veteran served on active duty in the Army from January 1966 to November 1967. He is the recipient of the Combat Infantryman Badge, among other decorations. This appeal comes before the Board of Veterans Appeals (Board) on appeal from a June 2002 rating decision of Department of Veterans Affairs (VA) Regional Office (RO) in North Little Rock, Arkansas. The RO's June 2002 rating decision granted service connection for residuals of shell fragment wounds to the right thigh and right elbow, assigning each a noncompensable rating. The Veteran timely filed an appeal contesting the assigned initial disability evaluations. In a March 2005 decision, the Board granted separate increased evaluations of 10 percent for the Veteran's right thigh and right elbow shell fragment wounds. The Veteran subsequently appealed this decision to the United States Court of Appeals for Veterans Claims (Court). In August 2005, the Court approved a Joint Motion for Partial Remand, returning the case to the Board. Specifically, the Joint Motion instructed the Board to provide adequate reasons and bases for its conclusions, to consider separate ratings for muscle injuries of the right thigh and right elbow, and to consider staged ratings. In compliance with the March 2005 Joint Motion, the Board remanded the Veteran's claim in May 2006. Specifically, the Board ordered that the Veteran be granted new examinations to determine the severity of his right elbow and right thigh disabilities. The Veteran underwent a VA examination in June 2006. In an August 2006 rating decision, the RO in Huntington, West Virginia, granted service connection for residuals of shell fragment wounds with muscle injuries to the right thigh and right elbow, assigning a noncompensable rate for the thigh and a 10 percent rate for the elbow. In a May 2007 decision, the Board considered each of the Veteran's four claims, but declined to increase the disability evaluations assigned to each disability. The Veteran appealed this decision to the Court. A November 2008 Joint Motion for Remand vacated the Board's decision and remanded the matter to the Board. Specifically, the Board was ordered to provide adequate reasons and bases for its conclusion that the duty to assist had been satisfied, and it was ordered to address the Veteran's increased ratings for scars under both the old and the new criteria.. In April 2010, the Board remanded the Veteran's case. The Board ordered that VA seek to obtain service treatment records from the Veteran's in-service hospitalization, to obtain VA treatment records, and to afford the Veteran a VA scars examination. The Board again remanded the case in September 2011, directing that further efforts be undertaken to find the Veteran's in-service hospitalization records, and directing that the Veteran undergo a new VA examination. Following the Board's remand and a November 2011 VA examination, the Appeals Management Center issued a rating decision that increased the evaluation assigned to the Veteran's right thigh disability to 30 percent, effective November 1, 2011, the date of his examination. In December 2012, the Board again remanded the Veteran's claim. In that remand, the Board directed that further efforts be made to find the Veteran's in-service hospitalization records, and that the Veteran's service personnel records be obtained. In June 2013, the AMC issued a rating decision that extended the Veteran's 30 percent evaluation for his thigh to the date of his original claim in 2002. That same rating decision increased the rating for his right elbow to 30 percent, also effective the date of his claim. The case has now returned to the Board. The Board recognizes that where a case has been remanded to the Board, the order of the Court constitutes the law of the case, and the Board is bound to follow the Court's mandate. See Winslow v. Brown, 8 Vet. App. 469, 472 (1996). The Board also acknowledges that it has a duty to ensure compliance with its remand instructions. Stegall v. West, 11 Vet. App. 268, 271 (1998). For reasons explained in greater detail below, however, the Board does find substantial compliance with its remand instructions as well as those from the two joint motions, and determines that the case may move forward without prejudice to the Veteran. See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008) (holding that only substantial compliance with the terms of the Board's remand would be required, not strict compliance). FINDINGS OF FACT 1. The Veteran's shell fragment wound of the right thigh does not result in a severe injury to Muscle Group XIV. 2. The Veteran's shell fragment wound of the right elbow does not result in a severe injury to Muscle Group V. 3. The Veteran's right thigh scar measures 1 centimeter (cm.) by 1 cm. It is painful, superficial, not adhered to the underlying tissue, and not productive of skin ulceration or breakdown. 4. The Veteran's right elbow scar measures 1 cm. by 1 cm. It is painful, superficial, not adhered to the underlying tissue, and not productive of skin ulceration or breakdown. CONCLUSIONS OF LAW 1. The criteria for an initial evaluation in excess of 30 percent for residuals of a shell fragment wound to the right thigh, involving Muscle Group XIV, have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.321, 3.655, 4.1-4.14, 4.40, 4.45, 4.59, 4.73, Diagnostic Code (DC) 5314 (2012). 2. The criteria for an initial evaluation in excess of 30 percent for residuals of a shell fragment wound to the right elbow, involving Muscle Group V, have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.321, 3.655, 4.1-4.14, 4.40, 4.45, 4.59, 4.73, Diagnostic Code (DC) 5305 (2012). 3. The criteria for an initial evaluation in excess of 10 percent for a shrapnel wound scar to the right thigh have not been met. 38 U.S.C.A. §§ 1155, 5107; 38 C.F.R. §§ 4.1-4.14, 4.20, 4.27, 4.40, 4.118, Diagnostic Codes 7800-05 (2012) and 4.118, Diagnostic Codes 7800-05 (2007). 4. The criteria for an initial evaluation in excess of 10 percent for a shrapnel wound scar of the right elbow have not been met. 38 U.S.C.A. §§ 1155, 5107; 38 C.F.R. §§ 4.1-4.14, 4.20, 4.27, 4.40, 4.118, Diagnostic Codes 7800-05 (2012) and 4.118, Diagnostic Codes 7800-05 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and to Assist Upon receipt of a complete or substantially complete application, VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. VA must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide. The appeal arises from the Veteran's disagreement with the initial evaluation following the grant of service connection. Once service connection is granted the claim is substantiated, additional notice is not required, and any defect in the notice is not prejudicial and will not be discussed. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). Though some of the Veteran's service treatment records have been obtained, records of his in-service hospitalization following his February 1967 shell fragment wound injuries have not been obtained. VA has made several attempts to locate these records, but their efforts have been unsuccessful. VA made a formal finding of unavailability of these records in May 2013. The Board recognizes that in appeals where a veteran's service treatment records are unavailable, there is a heightened obligation to assist the appellant in the development of the case, a heightened obligation to explain findings and conclusions, and a heightened duty to consider carefully the benefit of the doubt rule. See Washington v. Nicholson, 19 Vet. App. 362, 369-70 (2005); see also Cromer v. Nicholson, 19 Vet. App. 215, 217 (2005) (citing O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991)). The Veteran's VA treatment records have been obtained. The Veteran did not identify any private treatment records pertinent to the appeal. Further, in a February 2002 letter, the Veteran stated that he had not had any private medical treatment for his claimed conditions. The Veteran has not indicated, and the record does not contain evidence, that he is in receipt of disability benefits from the Social Security Administration. 38 C.F.R. § 3.159(c)(2). The Veteran has undergone numerous VA examinations regarding his service-connected disabilities. The Veteran has not argued, and the record does not reflect, that these examinations are inadequate for rating purposes. 38 C.F.R. § 3.159(c)(4); Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). Instead, these examinations contain sufficient information to rate the Veteran under the applicable Diagnostic Codes. Each of the directives from the Joint Motions and from the Board's various remands has been completed. In this decision, the Board has addressed the specific directives raised by the two Joint Motions. Further, though the Veteran's complete service treatment records have not been obtained, the efforts undertaken to find these records, as well as a formal finding of unavailability, are contained in the claims file. Further, the Veteran has undergone numerous VA examinations that are adequate for rating purposes. The Board thus finds there was substantial compliance with its and the Court's remand instructions. See D'Aries, 22 Vet. App. at 105. As the requested development has been completed, the case may proceed without prejudice to the Veteran. Stegall, 11 Vet. App. at 271. The Veteran was afforded a hearing before an Acting Veterans Law Judge (AVLJ) in which he presented oral argument in support of his increased ratings claims. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the Court held that 38 C.F.R. § 3.103(c)(2) (2010) requires that the VLJ who chairs a hearing fulfill two duties to comply with the above the regulation. These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. Here, during the hearing, the AVLJ adequately explained what issues were on appeal, and he took testimony from the Veteran that pertained directly to the criteria necessary for an increased rating for his service-connected disabilities. In addition, the AVLJ asked questions regarding the Veteran's treatment for his conditions in an effort to identify any pertinent evidence not currently associated with the claim file that might have been overlooked or was outstanding that might substantiate the claim. Moreover, neither the Veteran nor his/her representative has asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2) nor has identified any prejudice in the conduct of the Board hearing. By contrast, the hearing focused on the elements necessary to substantiate the claims and the Veteran, through his testimony, demonstrated that he/she had actual knowledge of the elements necessary to substantiate his claims. As such, the Board finds that, consistent with Bryant, the AVLJ complied with the duties set forth in 38 C.F.R. § 3.103(c)(2) and that the Board can adjudicate the claims based on the current record. There is no indication in the record that any additional evidence, relevant to the issues decided, is available and not part of the claim file. See Pelegrini v. Principi, 18 Vet. App. 112 (2004). As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of the case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 20 Vet. App. 537 (2006); see also Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 486 (2006); Shinseki v. Sanders/Simmons, 556 U.S. 129 (2009). II. Increased Initial Ratings Claims Disability ratings are determined by applying a schedule of ratings based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C.A. § 1155; 38 C.F.R., Part 4. Each disability must be viewed in relation to its history, and the limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. § 4.1. Further, examination reports are to be interpreted in light of the whole recorded history, and each disability must be considered from the point of view of the appellant working or seeking work. 38 C.F.R. § 4.2. Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is assigned. 38 C.F.R. § 4.7. While the Veteran's entire history is reviewed when making a disability determination, where service connection has already been established and an increase in the disability rating is at issue, it is a present level of disability that is of primary concern. Francisco v. Brown, 7 Vet. App. 55 (1994). However, the Board will consider whether separate ratings may be assigned for separate periods of time based on facts found, a practice known as "staged ratings," whether it is an initial rating case or not. Fenderson v. West, 12 Vet. App. 119, 126-27 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). When all the evidence is assembled, the determination must be made as to whether the evidence supports the claim or is in relative equipoise, with a veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). The Veteran's claims for increased ratings for his shell fragment wounds and for his scars are evaluated separately below. Increased Initial Ratings for Residuals of Shell Fragment Wounds Legal Criteria The Veteran's residuals of a shell fragment wound to the right thigh have been rated under 38 C.F.R. § 4.73, Diagnostic Code 5314, covering injuries to Muscle Group XIV. Muscle Group XIV 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. It also includes the anterior thigh group, covering the Sartorius, rectus femoris, vastus exernus, vastus intermedius, vastus internus, and tensor vaginae femoris. Disabilities resulting from injuries to Muscle Group XIV are classified as slight (rated as noncompensably disabling), moderate (rated as 10 percent disabling), moderately severe (rated as 30 percent disabling), and severe (rated as 40 percent disabling). The Veteran's residuals of a shell fragment wound to the right elbow have been rated under 38 C.F.R. § 4.73, Diagnostic Code 5305, covering injuries to Muscle Group V. Muscle Group V affects elbow supination, flexion of elbows, and the flexor muscles of the elbow, including the biceps, brachialis, and brachioradialis. Disabilities resulting from injuries to the dominant arm (as the Veteran is right handed, dominant ratings are applicable here) are classified as slight (rated as noncompensably disabling), moderate (rated as 10 percent disabling), moderately severe (rated as 30 percent disabling), and severe (rated as 40 percent disabling). A 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). A severe muscle disability results from a through and through or deep penetrating wound due to high velocity missile, a large or multiple low velocity missiles, shattering bone fracture, or open comminuted fracture with extensive debridement, prolonged infection, or sloughing of soft parts and intermuscular binding and scarring. It is characterized by consistent cardinal signs and symptoms worse than those shown for moderately severe muscle injuries and, if present, evidence of inability to keep up with work requirements. Findings include palpation showing loss of deep fascia, muscle substance, or soft flabby muscles, abnormal muscle swelling and hardening in contraction, and tests of strength, endurance, and coordinated movements showing severe impairment of function compared with the corresponding muscles of the sound side. Other findings include, if present, X-rays showing minute multiple scattered foreign bodies, adhesion of a scar to one of the long bones or scapula 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, visible or measurable atrophy, and 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, and induration or atrophy of an entire muscle following simple piercing by a projectile. 38 C.F.R. § 4.56(d)(4) (2012). 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). VA must also analyze the evidence of pain, weakened movement, excess fatigability, or incoordination and determine the level of associated functional loss in light of 38 C.F.R. § 4.40, which requires the VA to regard as "seriously disabled" any part of the musculoskeletal system that becomes painful on use. DeLuca v. Brown, 8 Vet. App. 202 (1995). Although § 4.40 does not require a separate rating for pain, it does provide guidance for determining ratings under other diagnostic codes assessing musculoskeletal function. The Board has a special obligation to provide a statement of reasons or bases pertaining to § 4.40 in rating cases involving pain. Spurgeon v. Brown, 10 Vet. App. 194 (1997). Facts In a December 2001 VA history and physical, the Veteran complained of pain in his right elbow resulting from his in-service shell fragment wound. The Veteran underwent a VA examination in April 2002. He stated that he was near an exploded grenade in February 1966 (though records indicate the injury was actually in 1967). He suffered shrapnel wounds to his right elbow and right leg, and the fragments were never removed. He complained of intermittent pain in his right thigh and right elbow, though he described the pain in his elbow as more pronounced. The Veteran reported increased pain in his elbow with repeated lifting, but stated it resulted in no functional loss. Upon examination, the Veteran had a well-healed, non-tender, 1cm. scar over the mid-anterior region of his right thigh. No fragment was palpable, but X-ray examination of his thigh did show a small metallic fragment in the soft tissues of the mid-thigh along the anteromedial aspect. With regard to his right elbow, the Veteran had a well-healed, non-tender 1cm scar over his olecranon. He had a full range of motion, and his strength and sensation were intact. X-rays of the Veteran's right elbow showed a small metallic fragment in the projection of the olecranon process of the ulna. His articular surfaces and the joint space at the right elbow were unremarkable. In his December 2004 video conference hearing, the Veteran testified that he was injured by a booby trap hand grenade. He stated that he was hit in the right thigh and right elbow. He stated that he spent over a month in a hospital in Vietnam, but that these records were not available. He indicated that he still has fragments in his thigh and arm, that the injury to his thigh was bothersome when walking or standing for a long time, and that his elbow as affects his lifting and was more painful with changing weather. The Veteran underwent a VA examination in June 2006. The Veteran again described the particularities of his initial injury, stating that he was struck in the elbow while holding a radio to his ear. The Veteran stated that he was not able to be evacuated until the next day. He stated that he spent 36 days in a field hospital, and that his wounds became infected. He was later released to active duty. The Veteran reported that he has been having increasing difficulties with his wounds, stating that he suffers from aching and discomfort with standing, and weakness on attempted flexing of the elbow. He stated that he quit working 8 months prior because he was no longer able to continue performing his job. Upon examination, the Veteran's right thigh revealed full range of motion; the examiner stated that his knee flexion and extension went easily from 0-140 degrees. The examiner found no limitation of motion, no instability of the knee, and no muscle wasting of the right thigh or lower leg. With regard to his right elbow, the Veteran had full range of motion of his right arm, with flexion from 0-145 degrees and extension from 145 degrees back to 0. The examiner reported that the Veteran had discomfort on flexion from 90 degrees to 145. Resistance resulted in increasing pan and an obvious desire not to move the forearm into flexion. Full extension also caused some discomfort, though not as severe. There was no obvious muscle wasting. The Veteran's forearm pronation and supination were described as good. The undersurface of the elbow had a 1-cm fragment wound situated over the olecranon. Repetitive motion resulted in increasing pain and a corresponding loss of power. The examiner wrote that though there is no limitation of movement of the right thigh or right elbow, there is, by history, increasing pain and discomfort. An April 2010 VA treatment record reflects that the Veteran was taking pain killers for aches and pains associated with his shell fragment wounds. The Veteran underwent another set of VA examinations in November 2011. The examiner stated that the Veteran had penetrating muscle injuries. The examiner noted that the Veteran has an injury to muscle group XIV of the right side. He did not identify any other injuries to that leg or to the pelvic girdle and thigh. The examiner noted that the Veteran had minimal scars without any known fascial defects or evidence of fascial defects. The injuries did not affect muscle substance or function. The Veteran did suffer from a lowered threshold of fatigue and fatigue pain with regard to his injury to muscle group XIV. He had strength of 4/5 for right knee extension, indicating less than normal strength. He had no muscle atrophy, and he used no assistive devices. X-ray evidence did show shrapnel in his right thigh. The wound to the thigh resulted in aching pain in the thigh and easy fatigue with repetitive movement. With regard to his right elbow, the examiner noted that this injury affects his dominant hand. The examiner noted that the Veteran had minimal scars, and he had strength of 4/5 for right elbow extension. The examiner found no evidence of any effects on muscle substance or function. He noted that the Veteran's right elbow shrapnel is not near his joint space, and it does not interfere with joint function. The examiner described the Veteran's shell fragment wounds to the right elbow and right thigh to be moderately severe. He stated that the injuries do impact his ability to work, resulting in aching discomfort in the elbow and right thigh. Analysis As both of the Veteran's residuals of shell fragment wound injuries are rated as moderately severe, to qualify for an increased rating for either disability, the evidence would have to show that the wounds are severe. Such evidence is not present here. Records of the Veteran's inservice hospitalization have not been obtained, so the Board cannot make any findings as to the initial injury that the Veteran suffered. Notably, however, neither the Veteran's November 1967 report of medical examination at separation nor his November 1967 report of medical history at separation note any problems with his thigh or elbow, and the Veteran did not contend that he had any lingering effects at that time from his in-service injury. Beyond the initial injury and treatment, the Veteran's injuries do not meet the description for severe muscle disabilities. There is no evidence of loss of deep fascia, muscle substance, or soft flabby muscles. He does not have abnormal muscle swelling, and though his right leg and right arm strength is impaired, such impairment is not severe (rating only 4/5). There is no adhesion of scars to bones, no muscle atrophy, and no evidence of induration of an entire muscle. Instead, the Veteran's injuries much more closely match the criteria to be considered moderately severe, a fact noted by the examiner from the November 2011 examination. To the extent that the Veteran has complained of pain and limitation of motion with his thigh and elbow, the Board finds that these symptoms do not warrant an evaluation in excess of 30 percent or the assignment of a separate rating. First, the applicable Diagnostic Code contemplates both pain and limitation of motion, as per the description of moderately severe muscle injuries. Further, the examiners have consistently found that this pain does not result in any functional loss, a fact confirmed by the Veteran. His examinations and VA treatment records show that he remains active and able to walk, and he has consistently had full range of motion in his affected areas. Extraschedular Consideration In exceptional cases an extraschedular rating may be provided. 38 C.F.R. § 3.321. The Court has set out a three-part test, based on the language of 38 C.F.R. § 3.321(b)(1), for determining whether a Veteran is entitled to an extraschedular rating: (1) the established schedular criteria must be inadequate to describe the severity and symptoms of the claimant's disability; (2) the case must present other indicia of an exceptional or unusual disability picture, such as marked interference with employment or frequent periods of hospitalization; and (3) the award of an extraschedular disability rating must be in the interest of justice. Thun v. Peake, 22 Vet. App. 111 (2008), aff'd, Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). The Board finds that the rating criteria contemplate the Veteran's disabilities. Notably, the evidence shows that the Veteran suffered in-service shell fragment wounds to his right thigh and right elbow, resulting in retained foreign bodies, an initial infection, and loss of strength and endurance; these manifestations are contemplated in the rating criteria. The rating criteria are therefore adequate to evaluate the Veteran's shell fragment wound disabilities and referral for consideration of extraschedular rating is not warranted. Increased Initial Ratings for Scars Legal Criteria The Veteran's scars have been evaluated under 38 C.F.R. § 4.118, Diagnostic Code 7804 (2007). Under that regulation, scars that are superficial and painful on examination are rated as 10 percent disabling; there are no other ratings under this code. A note to this code describes a superficial scar as one not associated with underlying soft tissue damage. Effective October 23, 2008, VA amended the rating criteria for the evaluation of scars. The new ratings are clear that, for scars rated under the previous Diagnostic Code prior to the effective date, a scar will only be evaluated under the new provisions at the request of the Veteran. The November 2008 Joint Motion, however, specifically instructed that the Board consider rating the Veteran under the new scar criteria. Under the revised code, the Veteran's scar is most appropriately rated under 38 C.F.R. § 4.118, Diagnostic Code 7804 (2012). This code applies to scars that are unstable or painful. One or two scars that are unstable or painful are rated as 10 percent disabling, three or four scars that are unstable or painful are rated as 20 percent disabling, and five or more scars that are unstable or painful are assigned a 30 percent rating. Notes accompanying this code state define an unstable scar as one where, for any reason, there is frequent loss of covering of skin over the scar. Facts The Veteran underwent a VA examination in April 2002. The examiner reported that the Veteran had a faint, well-healed, non-tender 1 cm scar over the mid anterior region of his right thigh. The Veteran also had a well-healed, non-tender 1 cm scar over the olecranon of his right elbow. No fragments were palpable with either scar, and the Veteran had full range of motion. His strength and sensation were described as intact. The Veteran underwent a VA examination in May 2010. The Veteran complained of stiffness in his right elbow and right though, but stated that he suffers from no limitation of motion as long as he takes things slowly. The Veteran mentioned his retained foreign bodies, but said he had no pain. Upon examination of the right thigh, the examiner reported that the Veteran had a 1 cm long by 1 mm wide transverse scar on the right anterior thigh overlying muscle group XIV. The examiner described the scar as superficial, unattached to underlying soft tissues, with no absence of underlying soft tissue. The Veteran had no limitation of motion in his right knee, and he had no diminished strength or range of motion with repetitive use. The examiner stated that this scar was not unstable, that there was no evidence of any loss of skin covering over the scar. The examiner stated that while the Veteran's right quadriceps itself was tender, the scar itself was not tender or painful to the touch. With regard to his right elbow, the examiner reported that the Veteran had an 8 mm long scar with a width of 1 mm. He stated that the scar was superficial, not attached to any underlying tissue, and that there was no absence of underlying soft tissue. The examiner reported that the scar was not unstable or tender. There was no heat, and no evidence of loss of skin covering. The Veteran had full and complete extension of the right elbow with no loss of range of motion. With regard to both scars, the examiner noted that, with the exception of the small scars themselves being hypopigmented, there was no other evidence of hyper or hypopigmentation. Further, there was no injury or disfigurement of the head, face, or neck. The Veteran underwent a VA examination in November 2011. The examiner reported that the Veteran had scars on his right anterior thigh and his right elbow. He described the thigh scar as superficial and non-linear, measuring 1 cm by 1 cm, and stated that it resulted in excessive fatigue with repetitive movement. The examiner described the right elbow scar as superficial and non linear, also measuring 1 cm by 1 cm. The examiner stated that both scars were painful, resulting in an aching discomfort. Neither scar was described as unstable, and neither was due to burns. The examiner reported that the Veteran's two small scars did not cause or contribute in any way to his pain or fatigue. Analysis The Veteran is already receiving the maximum rating for each of his scars under the currently applied Diagnostic Code, 38 C.F.R. § 4.118, 7804 (2007). Therefore, the Board shall determine whether rating the Veteran under any other Diagnostic Code under the previous or current rating criteria would result in increased ratings. Rating the Veteran under an alternative Diagnostic Codes from the previous schedule would not result in such a rating. Under that schedule, scars were rated pursuant to Diagnostic Codes 7800-7805. Diagnostic Code 7800 is not applicable here, as the Veteran's scar does not result in disfigurement of the head, face, or neck. Though the examiner from the November 2011 scars examination reported that the Veteran's scars did result in limitation of motion, rating the Veteran under Diagnostic Codes 7801 or 7805 would not result in an increased rating. The Veteran's scars are not large enough to warrant an increased rating under the previous 7801, and under 7805, he does not have enough loss of range of motion to be considered compensable. Further, the pain and limitation of motion are considered under the Diagnostic Code for muscle injuries. Diagnostic Code 7802 was applied to scars other than the head, face, or neck that are superficial and do not cause limited motion. The Veteran's scars, however, are smaller than the area required for rating under this Diagnostic Code. Diagnostic Code 7803 was applied to scars that were superficial and unstable. Though the Veteran's scars are superficial, they have never been described as unstable. Accordingly, there is no Diagnostic Code under the previous rating schedule that would result in the Veteran's receiving an increased rating. Similarly, the Veteran does not qualify for a compensable rating under the currently applicable schedule. 38 C.F.R. § 4.118, Diagnostic Codes 7800-7805 (2012). Diagnostic Codes 7800 and 7801 are only applied to burn scars, which the Veteran does not have. His scars do not have a surface area large enough to warrant a compensable rating under Diagnostic Code 7802. Diagnostic Code 7803 has been removed. Under Diagnostic Code 7804, a 10 percent rating is warranted with one or two scars that are unstable or painful. While the November 2011 examiner described the Veteran's scars as painful, rating the Veteran under this Diagnostic Code would result in his receiving only one 10 percent rating instead of the two he currently has. Diagnostic Code 7805 allows for a scar to be rated according to any disabling effects not considered under the rating criteria for scars. No such disabling effects have been found for the Veteran's right elbow scar. Though the examiner from the Veteran's November 2011 examination reported that the Veteran's right thigh scar resulted in excessive fatigue with repetitive movement, the examiner later stated that the Veteran's two small scars "did not cause or contribute in any way to his pain or fatigue." Considering that none of the other examiners found that the Veteran's right thigh scar resulted in disabling effects, the Board concludes that rating the Veteran under 7805 would not result in an increased rating for the Veteran. Extraschedular Consideration The Veteran's scar ratings also do not warrant extraschedular consideration. The evidence shows that the Veteran's scars are superficial and painful, and these symptoms are contemplated by the applicable Diagnostic Codes. The rating criteria are therefore adequate to evaluate the Veteran's scars and referral for consideration of extraschedular rating is not warranted. ORDER Entitlement to an initial evaluation in excess of 30 percent for residuals of a shell fragment wound of the right thigh, involving Muscle Group XIV, is denied. Entitlement to an initial evaluation in excess of 10 percent for residuals of a shell fragment wound of the right elbow, involving Muscle Group V, is denied. Entitlement to an initial evaluation in excess of 10 percent for right thigh shrapnel wound scar is denied. Entitlement to an initial evaluation in excess of 10 percent for right elbow shrapnel wound scar is denied. ______________________________________________ WILLIAM YATES Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs