Citation Nr: 1331491 Decision Date: 09/30/13 Archive Date: 10/02/13 DOCKET NO. 07-31 414 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Juan, the Commonwealth of Puerto Rico THE ISSUE 1. Entitlement to an evaluation in excess of 10 percent prior to April 16, 2007, and in excess of 20 percent thereafter, for retained metallic foreign body in soft tissue, posterior to medial metaphyseal region, left tibia, due to shell fragment wound (left leg shell fragment wound). 2. Entitlement to an evaluation in excess of 10 percent for degenerative joint disease of the left knee. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD S. Layton, Counsel INTRODUCTION The Veteran had active service from January 1956 to January 1958. This case comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO) in San Juan, the Commonwealth of Puerto Rico. In March and May 2006, the RO denied entitlement to an evaluation in excess of 10 percent for the Veteran's service-connected left leg shell fragment wound. The Veteran submitted a statement dated in April 2007 that the Board construes as a notice of disagreement with the continuation of the 10 percent evaluation. In May 2007, the RO increased the evaluation of the Veteran's left leg shell fragment wound to 20 percent disabling, effective April 16, 2007. The RO issued a statement of the case dated in September 2007, and the Veteran filed a substantive appeal in October 2007. In November 2011, the Board remanded the claim to the RO for further development. In considering all symptomatology manifest by the Veteran's service connected gunshot wound, by rating decision in July 2012, the RO granted service connection and a separate 10 percent rating for degenerative joint disease of the left knee. Inasmuch as this separate rating for degenerative joint disease of the left knee was granted within the scope of the current appeal, and the Veteran is presumed to seek the maximum available benefit for a disability, the Board has characterized the appeal as now encompassing the two matters set forth on the title page. Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007); AB v. Brown, 6 Vet. App. 35, 38 (1993). A June 2013 letter from the Veteran reflects that he desired evaluation of "five (5) other conditions." However, he did not specify which conditions he wanted to be evaluated. In an August 2013 Informal Hearing Presentation, the Veteran's accredited representative requested that the Veteran's unspecified new issues be considered by the RO. As of this time, the Board does not have jurisdiction over these unspecified new issues, and they are referred to the AOJ for appropriate action. 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. Prior to April 16, 2007, the Veteran's shell wound injury to Muscle Group XI of the left leg was productive of complaints of pain and weakness, with a retained shell fragment that did not penetrate the joint space, no muscle atrophy, no loss of muscle function, mild loss of muscle strength, and was not more than moderate in severity. 2. From April 16, 2007, the Veteran's shell wound injury to Muscle Group XI of the left leg was productive of complaints of pain and weakness, with a retained shell fragment that did not penetrate the joint space, no muscle atrophy, no loss of muscle function, mild loss of muscle strength, and was not more than moderately severe in severity. 3. The weight of the competent, probative evidence of record indicates that the Veteran does not have neurological or left ankle symptoms attributable to his service-connected left leg disorder. 4. Throughout the period of appeal, the Veteran's scar of the left leg has been manifested on objective examination by a nonpainful, stable scar which does not limit the motion of the affected body part, and covers an area less than 144 square inches. 5. Throughout the period of appeal, the orthopedic symptoms of the Veteran's left knee disability were manifested by pain and stiffness, but not by consistent objective evidence of flexion limited to 45 degrees or less; extension limited to 10 degrees or more; recurrent subluxation or objective evidence of slight lateral instability; or dislocated semilunar cartilage with frequent locking, pain, or effusion into the joint. CONCLUSIONS OF LAW 1. The criteria for an disability rating in excess of 10 percent prior to April 16, 2007, and in excess of 20 percent thereafter, for retained metallic foreign body in soft tissue, posterior to medial metaphyseal region, left tibia, due to shell fragment wound (left leg shell fragment wound) have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.2, 4.3, 4.7, 4.10, 4.40, 4.45, 4.55, 4.56, 4.73, Diagnostic Code 5311 (2013). 2. The criteria for a separate, compensable rating for scar of the left leg are not met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.2, 4.3, 4.7, 4.10, 4.118, Diagnostic Code 7802 (2013). 3. The criteria for a disability rating in excess of 10 percent for degenerative joint disease of the left knee have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.2, 4.3, 4.7, 4.10, 4.40, 4.45, 4.55, 4.71a, Diagnostic Code 5260 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Board has thoroughly reviewed all the evidence in the Veteran's claims file. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence submitted by or on behalf of the Veteran. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim. The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the Veteran). I. Duties to Notify and Assist The VCAA describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2013). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his representative of any information, and any medical or lay evidence, that is necessary to substantiate the claim. See 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b) (2013); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper VCAA notice must inform the claimant of any information and 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. VCAA notice should be provided to a claimant before the initial unfavorable RO decision on a claim. See Pelegrini v. Principi, 18 Vet. App. 112 (2004); Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006). The VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim. See Dingess v. Nicholson, 19 Vet. App. 473 (2006). Those five elements include: 1) Veteran status; 2) existence of a disability; 3) a connection between the Veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability. The Court held that upon receipt of an application for a service-connection claim, 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) require VA to review the information and the evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating or is necessary to substantiate the elements of the claim as reasonably contemplated by the application. Id. at 486. In January 2006 and April 2007, VA advised the Veteran of the evidence necessary to support a claim for increased ratings. He was asked to submit or identify relevant evidence. The evidence of record was discussed and the Veteran was told how VA would assist him in obtaining additional pertinent evidence. The April 2007 letter also advised the Veteran of the manner in which VA determines disability ratings and effective dates. The Board finds that the content of the notice fully complied with the requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) regarding VA's duty to notify. The Veteran has been provided with every opportunity to submit evidence and argument in support of his claim and to respond to VA notices. Further, the Board finds that the purpose behind the notice requirement has been satisfied because the appellant has been afforded a meaningful opportunity to participate effectively in the processing of his claim. The duty to assist also includes providing a medical examination or obtaining a medical opinion when such is necessary to make a decision on the claim. 38 C.F.R. § 3.159(c)(4)(i) (2013). In this case, the Veteran was most recently provided a VA examination in December 2011. The examiner considered the Veteran's claims, as well as the material in the claims file, and conducted a physical examination. The examiner recorded the Veteran's reported symptoms as well as his own objective observations. As the December 2011 VA examination report and August 2012 addendum contain both the Veteran's subjective complaints as well as the examiner's objective findings, the Board finds them to be sufficient for adjudication purposes. Additionally, based on the VA examination report and addendum, the Board finds that there has been substantial compliance with its prior remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (a remand by the Board confers upon the claimant, as a matter of law, the right to compliance with the remand instructions, and imposes upon the VA a concomitant duty to ensure compliance with the terms of the remand); see also D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); Dyment v. West, 13 Vet. App. 141, 146-47 (1999). As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). II. Increased Rating Claim A. General Law and Regulations Disability evaluations are determined by the application of a schedule of ratings, which is based on average impairment of earning capacity. See 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. Part 4 (2013). Separate rating codes identify the various disabilities. See 38 C.F.R. Part 4 (2013). When 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. See 38 C.F.R. § 4.7 (2013). Any reasonable doubt regarding the degree of disability is resolved in favor of the veteran. See 38 C.F.R. § 4.3 (2013). In general, when an increase in the disability rating is at issue, the present level of disability is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). When the appeal arises from an initial assigned rating, consideration must be given to whether staged ratings should be assigned to reflect entitlement to a higher rating at any point during the pendency of the claim. See Fenderson v. West, 12 Vet. App. 119 (1999). However, staged ratings are also appropriate in any increased rating claim in which distinct time periods with different ratable symptoms can be identified. See Hart v. Mansfield, 21 Vet. App. 505 (2007). The assignment of a particular diagnostic code is "completely dependent on the facts of a particular case." Butts v. Brown, 5 Vet. App. 532, 538 (1993). One diagnostic code may be more appropriate than another based on such factors as an individual's relevant medical history, diagnosis, and demonstrated symptomatology. Any change in diagnostic code by a VA adjudicator must be specifically explained. See Pernorio v. Derwinski, 2 Vet. App. 625, 629 (1992). Separate disabilities arising from a single disease entity are to be rated separately. See 38 C.F.R. § 4.25 (2013); see also Esteban v. Brown, 6 Vet. App. 259, 261 (1994). Pyramiding-the evaluation of the same disability, or the same manifestation of a disability, under different diagnostic codes-is to be avoided when rating a veteran's service-connected disabilities. See 38 C.F.R. § 4.14 (2013). In general, after the evidence has been assembled, it is the Board's responsibility to evaluate the entire record. See 38 U.S.C.A. § 7104(a) (West 2002). When there is an approximate balance of evidence regarding the merits of an issue material to the determination of the matter, the Board resolves the benefit of the doubt for each such issue in favor of the claimant. See 38 U.S.C.A. § 5107 (West 2002); 38 C.F.R. §§ 3.102, 4.3 (2013). In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the United States Court of Appeals for Veterans Claims (Court) stated that "a veteran need only demonstrate that there is an 'approximate balance of positive and negative evidence' in order to prevail." To deny a claim on its merits, the preponderance of the evidence must be against the claim. See Alemany v. Brown, 9 Vet. App. 518, 519 (1996) (citing Gilbert, 1 Vet. App. at 54). B. Factual Background A service treatment record from June 1956 reflects that the Veteran had a piece of iron in his knee. A contemporaneous X-ray revealed a small metallic foreign body in the soft tissue of the upper portion of the leg located posteromesial to the tibial plateau. Another X-ray taken in August 1956 revealed a 1/4 inch metallic fragment in the posteromedial aspect of the soft tissues adjacent to the tibia, one or two inches below the joint. In May 1960, the Veteran was given a VA compensation and pension examination. The Veteran complained of pain in his left knee and numbness of his leg. A neurological examination yielded negative results. An orthopedic examination also resulted in no objective findings. The diagnosis was retained metallic foreign body in soft tissues posterior to the medial metaphyseal region of the left tibia. By rating decision in June 1960, service connection was established for retained metallic foreign body in soft tissue posterior to medial petaphyseal region of left tibia. A 10 percent disability rating was awarded under Diagnostic Code 5311, for Muscle Group XI. In connection with a separate, prior claim, in September 2005, the Board denied entitlement to a disability rating higher than 10 percent for a service-connected left tibia disability. Later in September 2005, the Veteran filed the current claim for an increased rating for a "lower leg muscle injury" on appeal. A VA treatment record from September 2005 contains the Veteran's complaints of left knee pain. He stated that his pain interfered with ambulation, and he said he felt like his knee would give way. An X-ray revealed early osteoarthritis. Subsequent treatment records reflect treatment for pain. An April 2006 outpatient note indicates that although pain was present, the Veteran's knee was stable to varus and valgus stress. Crepitus was observed. An MRI revealed a meniscal tear. A VA treatment record from May 2006 reflects that the Veteran could flex his left knee to 128 degrees. Extension was to 10 degrees. Strength of the left knee was rated as 5/5 on flexion and extension. The Veteran walked with an antalgic gait. A March 2007 VA treatment record reflects that the Veteran had motor strength of 5/5 in his lower extremities. Sensory examination yielded normal results. Muscle tone was deemed normal. In April 2007, a VA examiner indicated that the Veteran had no sensory deficit. In April 2007 and May 2007, VA examiners deemed the Veteran's ranges of motion intact. On VA compensation and pension examination in May 2007, the Veteran said that his left knee pain had an intensity of 7 on a 0 (low) to 10 (high) pain scale. His pain would flare to a 9 on the same scale three to four times a month. The examiner indicated that the Veteran's original injury affected the vastus lateralis muscle in his left side; the bony structures, nerves, and vascular structures were not affected. The Veteran reported pain and instability in his left knee. On objective examination, the examiner found a non-tender scar with no adhesion. No tendon, bone, joint, or nerve damage was found. Strength testing resulted in 4/5 in the Veteran's left quadriceps. No muscle herniation was present, although pain and weakness were observed on repetitive flexion against resistance. The examiner observed buckling of the left knee upon ambulation. Flexion of the left knee was to 140 degrees, and extension was to 0 degrees with no functional loss due to pain. The diagnosis given was left leg shell fragment wound with residual weakness in the quadriceps muscle. VA treatment records from June 2007 and September 2007 reflect that the Veteran had intact ranges of motion. A September 2007 VA treatment record indicates that the Veteran had an MRI of his left knee taken at a private facility; the MRI revealed no pathology. Another September 2007 VA treatment record shows that the Veteran's left knee had full range of motion, mild crepitus, and no instability. On his VA form 9 submitted in October 2007, the Veteran complained of continuous severe pain in his left knee and leg. An X-ray of the left knee taken in January 2008 revealed degenerative changes and a small suprapatellar effusion. In February 2008, August 2008, February 2009, August 2010, November 2010, March 2011, and August 2011, the Veteran's ranges of motion were deemed intact by VA examiners. A September 2011 X-ray revealed mild degenerative changes of the left knee and small suprapatellar effusion. On VA scar examination in December 2011, the examiner wrote that the Veteran's scar was not painful, unstable, or due to a burn. The examiner a superficial, non-linear scar of the left lower extremity that measured 1.5 by 1.5 centimeters. He indicated that the approximate total area affected by the superficial non-linear scar was 2.25 square centimeters. The examiner further opined that the scar did not result in a limitation of function or other complication. A photograph was taken. On VA compensation and pension examination in December 2011, the Veteran reported that he previously worked as a crane operator but had to quit working due to the pain of getting on and off of the crane. He said that his left leg pain rated an 8 or 9 on a 1 (low) to 10 (high) pain scale. The examiner observed left knee flexion to 125 degrees with pain at 125 degrees. Extension was to 0 degrees with no objective evidence of painful motion. Repetitive motion did not result in any decrease of range of motion. Muscle strength in the left knee was rated as 4/5 on flexion and extension. Testing for anterior, posterior, and medial-lateral instability yielded normal results. The examiner found no evidence of recurrent patellar subluxation or dislocation. There was no complaint of shin splints, stress fractures, or any other tibial or fibular impairment. There was no history of a meniscectomy. The examiner indicated that the Veteran used a cane constantly and a wheelchair regularly. The examiner further specified that no nerve groups of the left leg had been affected by the in-service left leg injury; there was no incomplete paralysis of the left leg. Further, there was no motoimpairment, trophic changes, or sensory disturbance in the left leg. The examiner also specified that the Veteran did not have an ankle disorder. In an August 2012 addendum to the December 2011 VA examination report, the examiner opined that the Veteran's left leg injury affected Muscle Group XI and was manifest by moderately severe symptoms. C. Muscle Symptoms Diagnostic Code 5311, found in the Schedule of Ratings for Muscle Injuries at 38 C.F.R. § 4.73, addresses injuries to Muscle Group XI, which consists of the posterior and lateral crural muscles and muscles of the calf (triceps surae (gastrocnemius and soleus), tibialis posterior, peroneus longus, peroneus brevis, flexor hallucis longus, flexor digitorum longus, popliteus, and plantaris), which affect propulsion and plantar flexion of the foot, stabilization of the arch, flexion of the toes, and flexion of the knee. Under Diagnostic Code 5311, a non-compensable evaluation is assigned when the injury to these muscles is slight, a 10 percent evaluation is assigned when the injury is moderate, a 20 percent evaluation is assigned when the injury is moderately severe, and a 30 percent evaluation is assigned when the injury is severe. Id. Evaluation of muscle injuries as slight, moderate, moderately severe, or severe is based on the type of injury, the history and complaints of the injury, and objective findings. 38 C.F.R. § 4.56(d). The Court, citing Robertson v. Brown, 5 Vet. App. 70 (1993), has held that 38 C.F.R. § 4.56(d) is essentially a totality-of-the-circumstances test and that no single factor is per se controlling. Tropf v. Nicholson, 20 Vet. App. 317 (2006). Under the regulations, 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. 38 C.F.R. § 4.56(a). Moreover, 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). For VA rating purposes, the cardinal signs and symptoms of muscle disability are loss of power, weakness, lowered threshold of fatigue, fatigue-weakness, impairment of coordination, and uncertainty of movement. 38 C.F.R. § 4.56(c). A slight disability of muscles is described as a simple wound of muscle without debridement or infection. The service department records would demonstrate a superficial wound with brief treatment and return to duty. Healing would be shown as having been with good functional results. No cardinal signs or symptoms of muscle disability would be shown and the scar would be minimal with no evidence of fascial defect, atrophy, or impaired tonus. There would be no impairment of function or metallic fragments retained in muscle tissue. 38 C.F.R. § 4.56(d). A moderate disability of the muscles may result from through-and-through or deep penetrating wounds of relatively short track by a single bullet or small shell or shrapnel fragment. The absence of the explosive effect of a high velocity missile and of residuals of debridement or of prolonged infection also reflects moderate injury. The history of the disability should be considered, including service department records or other sufficient evidence of hospitalization in service for treatment of the wound. Consistent complaints on record from the first examination forward of one or more of the cardinal symptoms of muscle wounds, particularly fatigue and fatigue-pain after moderate use, and an effect on the particular functions controlled by the injured muscles should be noted. Evidence of moderate disability includes entrance and (if present) exit scars which are linear or relatively small and so situated as to indicate relatively short track of missile through muscle tissue, signs of moderate loss of deep fascia or muscle substance or impairment of muscle tonus, and of definite weakness or failure in comparative tests. Id. A moderately severe disability of the muscles is characterized by evidence of a through-and-through or deep penetrating wound by a high velocity missile of small size or a large missile of low velocity, with debridement or with prolonged infection, or with sloughing of soft parts, or intermuscular cicatrization. Service department records or other sufficient evidence showing hospitalization for a prolonged period in service for treatment of a wound of severe grade should be considered. Records in the file of consistent complaints of cardinal symptoms of muscle wounds should also be noted. Evidence of unemployability due to an inability to keep up with work requirements may be considered. Objective findings should include relatively large entrance and (if present) exit scars so situated as to indicate the track of a missile through important muscle groups. Indications on palpation of moderate loss of deep fascia, or moderate loss of muscle substance or moderate loss of normal firm resistance of muscles compared with the sound side may be considered. Tests of strength and endurance of the muscle groups involved may also give evidence of marked or moderately severe loss. Id. A severe disability of the muscles is characterized by evidence of through-and-through or deep penetrating wound due to a high velocity missile, or large or multiple low velocity missiles, or explosive effect of a high velocity missile, or shattering bone fracture with extensive debridement or prolonged infection and sloughing of soft parts, intermuscular binding and cicatrization. Service department records or other sufficient evidence showing hospitalization for a prolonged period in service for treatment of a wound of severe grade should be considered. Records in the file of consistent complaints of cardinal symptoms of muscle wounds should also be noted. Evidence of unemployability due to an inability to keep up with work requirements may be considered. Id. Objective evidence of severe disability includes extensive ragged, depressed, and adherent scars of skin so situated as to indicate wide damage to muscle groups in the track of a missile. Palpation shows moderate or extensive loss of deep fascia or of muscle substance or soft or flabby muscles in wound area. Muscles do not swell and harden normally in contraction. Tests of strength or endurance compared with the sound side or of coordinated movements show positive evidence of severe impairment of function. Id. 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 the 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 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. Id. Further, the regulations provide that 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. For compensable muscle group injuries that are in the same anatomical region but do not act on the same joint, the evaluations for the most severely injured muscle group will be increased by one level and used as the combined evaluation for the affected muscle groups. 38 C.F.R. § 4.55. As noted above, the symptoms of the Veteran's muscle injury of the left leg have been evaluated as 10 percent disabling prior to April 16, 2007, and as 20 percent disabling thereafter under the auspices of Diagnostic Code 5311 (Muscle Group XI). Applying the criteria for evaluating muscle injuries found in 38 C.F.R. § 4.56(d), the Board finds that the weight of the evidence is against a finding that the Veteran's muscle disability is more than moderate in nature such that a disability rating in excess of 10 percent for the left leg is warranted prior to April 16, 2007. The next higher, 20 percent, evaluation is assigned when the disability is moderately severe. The service treatment records do not show that the Veteran's in-service shell injury resulted in a through-and-through injury. In addition, there was no prolonged infection or evidence of prolonged hospitalization. Moreover, there was no sloughing of soft parts or intermuscular scarring. Indeed, the service treatment records suggest that the wound to the left lower extremity was moderate in nature. Although x-ray studies have shown a residual shell fragment in soft tissue of the left lower extremity, there is no evidence indicating intermuscular trauma. Moreover, there is no muscle atrophy or adhesion of the leg scar. Significantly, VA treatment records from May 2006 and March 2007 reflect that the Veteran had motor strength of the left lower extremity of 5/5. Additionally, in March 2007, a VA examiner noted that the muscle tone of the Veteran's left lower extremity was normal. This evidence suggests that the Veteran's left leg muscle disability was not even moderate, much less moderately severe, in nature prior to April 16, 2007. However, despite the lack of evidence of loss of muscle or muscle strength, the Board has also considered that the Veteran complained of weakness and pain. Based on the totality of the evidence, the Board finds that the criteria for characterization of the left leg muscle Group XI disability as moderate, but no higher, has been demonstrated by the evidence, and a disability ratings in excess of 10 percent is not warranted for the muscle injury of the left leg prior to April 16, 2007. Turning to the period of appeal from April 16, 2007, applying the criteria for evaluating muscle injuries found in 38 C.F.R. § 4.56(d), the Board finds that the weight of the evidence is against a finding that the Veteran's muscle disability is more than moderately severe in nature such that a disability rating in excess of 20 percent is warranted. The next higher, 30 percent, evaluation is assigned when the disability is severe. The evidence reflects that the Veteran had a decrease in muscle strength; VA examiners in May 2007 and December 2011 observed that the Veteran's left lower extremity strength had decreased from 5/5 to 4/5. However, these findings suggest only a slight increase in disability level-not a severe increase. There is no evidence that the Veteran's left leg scar results in extensive ragged, depressed, and adherent scars of skin so situated as to indicate wide damage to muscle groups in the track of a missile. See e.g., December 2011 VA examination report. The Board has considered that the Veteran reported quitting his job due to pain getting on and off of a crane; however, moderate or extensive loss of deep fascia or of muscle substance has not been noted, nor have the muscles in the area of the injury been described as soft or flabby. There are no residuals indicative of intermuscular trauma and explosive effect of the missile. The scars do not adhere to one of the long bones, and atrophy is not measurable. Based on the totality of the evidence, the Board finds that the criteria for characterization of the left leg muscle Group XI disability as moderately severe, but no higher, has been demonstrated by the evidence, and a disability rating in excess of 20 percent is not warranted for the muscle injury of the left leg from April 16, 2007. D. Ankle and Neurological Symptoms None of the treatment records indicate that any ankle or neurological symptoms exist attributable to the Veteran's left leg shell injury. In April 2007, a VA examiner indicated that the Veteran had no sensory deficit. Likewise, a VA compensation and pension examiners opined in May 2007 that no nerve groups had been affected by the in-service left leg injury. Nevertheless, in the November 2011 remand, the Board asked for specific consideration of possible neurological symptoms and ankle symptoms relatable to the Veteran's left leg shell injury. A VA compensation and pension examiner opined in December 2011 that no nerve groups had been affected by the in-service left leg injury. Additionally, the December 2011 VA examiner specifically noted that the Veteran did not have a left ankle disability attributable to his in-service left leg injury. To whatever extent the Veteran may assert he has a neurological and/or left ankle disability attributable to his in-service left leg injury, the Board finds that his contentions are outweighed by the observations and opinions of the VA examiners. The VA examiners are trained medical professionals who made their observations in the context of completing a medical evaluation of the Veteran. As such, their observations are highly probative, and the weight of the evidence of record indicates that the Veteran does not have neurological or left ankle symptoms attributable to his service-connected left leg injury. E. Scar The Board has considered if a separate disability rating is warranted for the Veteran's left leg scar. Initially, the Board notes that 38 C.F.R. § 4.118 was amended during the pendency of this appeal. 73 Fed. Reg. 54,708 - 54,712 (October 23, 2008). However, the Board observes the amended criteria are only applicable to "applications for benefits received by VA on or after October 23, 2008." Id. at 54,708. Thus, there is no impact on the Veteran's current claim for benefits, which was received by VA in September 2005. Diagnostic Code 7801 provided ratings for scars, other than on the head, face, or neck, that are deep or that cause limited motion and cover an area of at least 6 square inches. Under Diagnostic Code 7802, a maximum 10 percent evaluation is warranted where a scar covers an area or area of 144 square inches (929 square centimeters). Id. Also potentially applicable to the Veteran's claim is Diagnostic Code 7803, pertaining to scars which are superficial and unstable. Id. A superficial scar is one not associated with underlying soft tissue damage. Id. An unstable scar is one where, for any reason, there is frequent loss of covering of skin over the scar. A maximum of 10 percent is warranted if the scar is superficial and unstable. Id. The Board has also considered Diagnostic Code 7804 which relates to scars which are superficial and painful on examination. Under Diagnostic Code 7804, 10 percent is the maximum percentage which can be granted. Id. Diagnostic Code 7805 provides an evaluation for scars based on limitation of motion of the affected part. The evidence of record reflects that the Veteran's scar is not associated with underlying soft tissue damage and so it is superficial. See 38 C.F.R. § 4.118, DC 7802, Note (1). Likewise, the December 2011 VA examiner indicated that the scar does not cause limitation of motion. As such, a separate compensable rating is not warranted under Diagnostic Code 7805. In order to warrant a separate compensable rating, the Veteran's superficial scar would have to be of an area of 144 square inches or greater. At the Veteran's December 2011 VA examination, the scar measured 1.5 cm by 1.5 cm. Thus, the examination of record does not show a scar measuring or approximating the 144 square inches required under Diagnostic Code 7802. Consequently, a separate, compensable rating is not warranted under Diagnostic Code 7802. In the alternative, the scar would have to be unstable or painful pursuant to Diagnostic Code 7803 or 7804. In this regard, the December 2011 VA examiner stated that the Veteran's scar was stable and not tender or painful. As such, a compensable rating is not warranted under Diagnostic Code 7803 or 7804. In the absence of persuasive evidence of a scar that is superficial and nonlinear and of an area of 144 square inches or greater, or a scar that is unstable or painful, the preponderance of the evidence weighs the awarding of a separate compensable rating for the Veteran's scar. F. Orthopedic Symptoms As noted above, in considering all symptomatology manifest by the Veteran's service connected gunshot wound, by rating decision in July 2012, the RO granted service connection and a separate 10 percent rating for degenerative joint disease of the left knee. The general rating schedules for limitation of motion of the knee are 38 C.F.R. § 4.71a, Diagnostic Codes 5260 and 5261. Normal range of motion of the knee is to 0 degrees extension and to 140 degrees flexion. See 38 C.F.R. § 4.71a, Plate II. Under Diagnostic Code 5260, limitation of flexion of the knee is rated as follows: A 10 percent disability rating is assigned for flexion limited to 45 degrees; A 20 percent disability rating is assigned for flexion limited to 30 degrees; and A 30 percent disability rating is assigned for flexion limited to 15 degrees. Under Diagnostic Code 5261, limitation of extension of the knee is rated as follows: A 10 percent disability rating is warranted for extension limited to 10 degrees; A 20 percent disability rating is assigned for extension limited to 15 degrees; A 30 percent disability rating is assigned for extension limited to 20 degrees; A 40 percent disability rating is assigned for extension limited to 30 degrees; and A 50 percent disability rating is assigned for extension limited to 45 degrees. See 38 C.F.R. § 4.71a. In addition, separate ratings may be assigned for compensable limitation of both flexion and extension. See VAOPGCPREC 09-04 (separate ratings may be granted based on limitation of flexion (Diagnostic Code 5260) and limitation of extension (Diagnostic Code 5261) of the same knee joint). Diagnostic Code 5257 provides for the assignment of a 10 percent rating when there is slight recurrent subluxation or lateral instability of a knee; a 20 percent rating when there is moderate recurrent subluxation or lateral instability; and a 30 percent evaluation for severe knee impairment with recurrent subluxation or lateral instability. Id. Subluxation of the patella is "incomplete or partial dislocation of the knee cap." Rykhus v. Brown, 6 Vet. App. 354, 358 (1993) (citing Dorland's Illustrated Medical Dictionary at 1241, 1599 (27th edition 1988)). The Board observes that the words "slight," "moderate," and "severe" as used in the various Diagnostic Codes are not defined in the VA Schedule for Rating Disabilities. Rather than applying a mechanical formula, the Board must evaluate all of the evidence, to the end that its decisions are "equitable and just." 38 C.F.R. § 4.6 (2013). The VA General Counsel has held that a veteran who has arthritis and instability of the knee may be rated separately under Diagnostic Codes 5003 and 5257. See VAOPGCPREC 23-97 (1997); VAOPGCPREC 9-98 (1998). In VAOPGCPREC 9-98, the VA General Counsel further explained that when a Veteran has a knee disability evaluated under Diagnostic Code 5257, to warrant a separate rating for arthritis based on X-ray findings, the limitation of motion need not be compensable under Diagnostic Code 5260 or 5261; rather, such limited motion must at least meet the criteria for a zero-percent rating. 64 Fed. Reg. 52,376 (1999). A separate rating for arthritis (in addition to Diagnostic Code 5257) could instead be based on X-ray findings and painful motion under 38 C.F.R. § 4.59. See Lichtenfels v. Derwinski, 1 Vet. App. 484, 488 (1991). Diagnostic Code 5003 provides that degenerative arthritis established by x-ray findings will be rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved. 38 C.F.R. § 4.71a (2013). When, however, limitation of motion of the specific joint or joints involved is noncompensable under the appropriate diagnostic codes, a rating of 10 percent is generally for application. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. 38 C.F.R. § 4.71a, Diagnostic Code 5003 (2013). Considering the pertinent facts in light of the above-noted criteria, the Board finds that there is no basis for assignment of a disability rating higher than 10 percent under DC 5260 or DC 5261. During the time period relevant to this appeal, the evidence reflects that left knee flexion was limited, at worst, to 125 degrees (with consideration of painful motion). The aforementioned flexion measurement is consistent with no more than a 0 percent (noncompensable) rating under DC 5260. The Board points out that during the time period relevant to this appeal, VA treatment notes from April 2007, May 2007, June 2007, September 2007, February 2008, August 2008, February 2009, August 2010, November 2010, March 2011, and August 2011 all reflect that the Veteran had an intact range of motion of the left knee. VA examiners specifically noted on examination in May 2007 and December 2011 that the Veteran had left knee extension to 0 degrees. There has only been a single record (a VA treatment record from May 2006) of the Veteran having left knee extension limited to 10 degrees. In light of all of the other findings showing full extension, the May 2006 extension finding appears to be an acute exacerbation and not representative of a sustained period of increased symptomatology sufficient to warrant a staged rating. Hence, considered as a whole, the extension measurements are also consistent with no more than a 0 percent (noncompensable) rating under DC 5261. The Board recognizes that VA examination has revealed subjective complaints of pain and weakness, but without incapacitating episodes. The Board observes that, given the Veteran's painful-albeit, noncompensable-left knee motion, and other symptoms, the separate 10 percent rating currently assigned for degenerative joint disease of the left knee appears to be consistent with DeLuca, 38 C.F.R. § 4.40, 4.45, and 4.59 (recognizing the intention of the rating schedule to recognize actually painful, unstable, or misaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint). That is, even with consideration of these factors, the Veteran's functional limitation of the left knee does not approach the criteria for a compensable evaluation for either limited flexion or extension. Thus, the medical evidence reflects that no higher rating is assignable, even when functional loss due to pain, weakness and other factors is considered. The Board has alternatively considered whether a higher rating is assignable on the basis of recurrent subluxation or lateral instability. Under DC 5257 other impairment of the knee, such as recurrent subluxation or lateral instability 10, 20, and 30 percent ratings, are assignable for slight, moderate, and severe impairment, respectively. 38 C.F.R. § 4.71a. However, based on the objective findings, the Board concludes that there is no basis for assignment of a separate rating under DC 5257. Despite the Veteran's complaints of instability, there is no objective evidence which indicates sustained instability in the left knee. Although a May 2007 VA examiner stated that the Veteran's left knee buckled upon ambulation, the record does not indicate that the examiner performed any stability testing. A VA examiner noted in April 2006 that the Veteran's left knee was stable to varus/valgus stress. Similarly, testing for anterior, posterior, and medial-lateral instability by a VA examiner in December 2011 yielded normal results. The December 2011 examiner found no evidence of recurrent patellar subluxation or dislocation. The Board finds that the VA medical reports from April 2006 and December 2011 outweigh the Veteran's contentions and the May 2007 VA examination report concerning instability, as the April 2006 and December 2011 VA medical reports were created by objective medical personnel impartially reporting the results of actual testing for instability. Concerning the Veteran's statements, the Board recognizes that that personal interest may affect the credibility of the evidence. See Cartwright v. Derwinski, 2 Vet. App. 24, 25 (1991). The Board finds that there is no basis for a separate rating for instability as the VA medical reports from April 2006 and December 2011 (which were based on instability testing) outweigh the Veteran's contentions and the May 2007 VA examination report (which does not appear to be based on instability testing). The Board has also considered whether there is any basis for assignment of a higher rating for the degenerative joint disease of the left knee under any other potentially applicable diagnostic code. However, in the absence of any ankylosis, dislocated or removed cartilage, or other deformity, evaluation of the orthopedic symptoms of the left knee under any other diagnostic code for evaluating pertaining to musculoskeletal disability of the lower extremities-DC 5256, 5258, 5259, 5262, or 5263-is not appropriate. See 38 C.F.R. 4.71a. III. Extra-schedular Consideration/TDIU As noted above, the potential application of various provisions of Title 38 Code of Federal Regulations have been considered, whether or not they were raised by the Veteran. Schafrath, 1 Vet. App. 589. In that regard, the Board has also considered the provisions under 38 C.F.R. § 3.321(b)(1), which govern the assignment of extra-schedular disability ratings. However, in this case, the Board finds that the record does not show that the Veteran's left leg disorder is so exceptional or unusual as to warrant the assignment of a higher rating on an extra-schedular basis. See 38 C.F.R. § 3.321(b)(1) (2013). The threshold factor for extra-schedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. See Thun v. Peake, 22 Vet. App. 111 (2008). In this regard, there must be a comparison between the level of severity and symptomatology of the claimant's service- connected disability with the established criteria found in the rating schedule for that disability. If the criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule and the assigned schedular evaluation is therefore adequate, and no extra-schedular referral is required. Id., see also VAOGCPREC 6-96 (Aug. 16, 1996). Otherwise, if the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, VA must determine whether the claimant's exceptional disability picture exhibits other related factors, such as those provided by the extra-schedular regulation (38 C.F.R. § 3.321(b)(1)) as "governing norms"(which include marked interference with employment and frequent periods of hospitalization). The evidence in this case does not show such an exceptional disability picture that renders inadequate the available schedular ratings for the Veteran's left leg disorder. A comparison between the level of severity and symptomatology of the Veteran's assigned ratings with the established criteria found in the rating schedule shows that the rating criteria reasonably describe the Veteran's disability level and symptomatology for his left leg. As discussed above, there are higher ratings available under potentially applicable diagnostic codes, but the Veteran's disorder is not productive of the manifestations necessary to warrant higher ratings. As such, it cannot be said that the available schedular ratings for the Veteran's left leg disorder are inadequate. Based on the foregoing, the Board finds that the requirements for an extra-schedular evaluation for the Veteran's service-connected left leg disorders, under the provisions of 38 C.F.R. § 3.321(b)(1), have not been met. Bagwell v. Brown, 9 Vet. App. 337 (1996); Shipwash v. Brown, 8 Vet. App. 218 (1995); Thun, 22 Vet. App. 111. The Board also acknowledges that in Rice v. Shinseki, 22 Vet. App. 447 (2009) the Court of Appeals for Veterans Claims (Court) held that a claim for TDIU, either expressly raised by the Veteran or reasonably raised by the record, involves an attempt to obtain an appropriate rating for a disability and is therefore part of the claim for an increased rating. Nonetheless, the evidence in this case does not raise a TDIU claim, either expressly or implicitly. In this regard, the evidence shows that while the Veteran has stated that he quit his job operating a crane due to left leg pain, he has not claimed that he is unemployable due to his left leg disorders. Indeed, none of the evidence of record suggests that the Veteran is not capable of gainful, sedentary employment. Under the circumstances, the Board will not endeavor to consider entitlement to TDIU in connection with this appeal. (CONTINUED ON NEXT PAGE) ORDER Entitlement to an evaluation in excess of 10 percent prior to April 16, 2007, and in excess of 20 percent thereafter, for retained metallic foreign body in soft tissue, posterior to medial metaphyseal region, left tibia, due to shell fragment wound (left leg shell fragment wound) is denied. Entitlement to an evaluation in excess of 10 percent for degenerative joint disease of the left knee is denied. ____________________________________________ DAVID L. WIGHT Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs