Citation Nr: 1338852 Decision Date: 11/26/13 Archive Date: 12/06/13 DOCKET NO. 09-46 934A ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office in Chicago, Illinois THE ISSUES 1. Entitlement to a rating in excess of 30 percent for residuals of a splenectomy. 2. Entitlement to a rating in excess of 30 percent for residuals of gunshot wound, right biceps, muscle group V with partial paralysis, right medial nerve (to include claimed functional loss of the right hand). 3. Entitlement to an initial rating in excess of 10 percent for scar, right medial biceps, residual of gunshot wound. 4. Entitlement to service connection for a genitourinary disorder, including urethral stricture and benign prostate hypertrophy. 5. Entitlement to service connection for multiple sclerosis. REPRESENTATION Appellant represented by: David Huffman, Attorney at Law ATTORNEY FOR THE BOARD M. Turner, Counsel INTRODUCTION The Veteran served on active duty from January 1967 to July 1969. This matter comes before the Board of Veterans' Appeals (Board) on an appeal from October 2006 and June 2008 rating decisions issued by the Regional Office (RO) in Chicago, Illinois. The Veteran had requested a hearing before a Veterans Law Judge. However, he failed to appear for his hearing and offered no explanation for his failure to appear. Therefore, his hearing request is deemed withdrawn. The Board notes that in a December 2009 attachment to a VA Form 9 the Veteran's attorney stated that the Veteran did not want to continue his appeal of the denial of service connection for multiple sclerosis. However, the Veteran also sent in a VA Form 9 himself in December 2009 on which he indicated that he did want to appeal the multiple sclerosis issue. Therefore, the Board considers that this issue is still on appeal. The Board notes that the Veteran has recently filed numerous additional claims. Some of these claims are confusing because the Veteran is seeking service connection for disorders for which he is already service connected or which are on appeal here. However, the RO should take appropriate action on any discernible new claims. The issues of entitlement to service connection for a genitourinary disorder, including benign prostate hypertrophy and urethral stricture, and service connection for multiple sclerosis, are addressed in the REMAND portion of the decision below and are REMANDED to the Department of Veterans Affairs Regional Office. FINDINGS OF FACT 1. The Veteran does not have any complications of splenectomy such systemic infections with encapsulated bacteria. Although slight anemia is present, it is not severe enough to warrant a separate compensable rating. 2. The symptoms of the Veteran's residual of a gunshot wound to the right biceps with partial paralysis of the right median nerve most closely approximate severe incomplete paralysis of the median nerve of the dominant extremity. 3. The Veteran's right medial biceps scar is deep and tender but is not unstable and does not exceed twelve square inches in size. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 30 percent for splenectomy were not met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 and Supp. 2012); 38 C.F.R. §§ 3.159, 3.321, 4.1, 4.3, 4.7, 4.40, 4.45, 4.118, Diagnostic Code 7706 (2013). 2. The criteria for a rating of 50 percent for residuals of a gunshot wound to the right biceps with partial paralysis of the right median nerve were met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 and Supp. 2012); 38 C.F.R. §§ 3.159, 3.321, 4.1, 4.3, 4.7, 4.40, 4.45, 4.73, 4.124a, Diagnostic Codes 5305, 8515 (2013). 3. The criteria for a rating in excess of 10 percent for right medial biceps scar were not met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 and Supp. 2012); 38 C.F.R. §§ 3.159, 3.321, 4.1, 4.3, 4.7, 4.40, 4.45, 4.118, Diagnostic Codes 7801, 7804 (2005). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duty to Notify and Assist The Veterans Claims and Assistance Act of 2000 (VCAA) describes VA's duties to notify and assist claimants with substantiating their claims for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. § 3.102, 3.156(a), 3.159. Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant of any information, and any medical or lay evidence, that is necessary to substantiate his or her claim. 38 U.S.C.A. § 5103(a), 38 C.F.R § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183, 186-187 (2002). In accordance with 38 C.F.R. § 3.159(b)(1), 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. The Board notes that 38 C.F.R. § 3.159 was revised in part, effective May 30, 2008. See 73 Fed. Reg. 23,353-23,356. The third sentence of 38 C.F.R. § 3.159(b)(1), which stated that "VA will also request that the claimant provide any evidence in the claimant's possession that pertains to the claim," was removed. This amendment applies to all applications pending on, or filed after, the regulation's effective date. VCAA notice should be provided to a claimant before the initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ). Pelegrini v. Principi, 18 Vet. App. 112, 115 (2004). However, the VCAA notice requirements may be satisfied notwithstanding errors in the timing or content of the notice if such errors are not prejudicial to the claimant. Id at 121. Further, a defect in the timing of the notice may be cured by sending proper notice prior to a re-adjudication of the claim. Mayfield v. Nicholson, 444 F.3d 1328, 1333-1334 (Fed. Cir. 2006). The VA General Counsel issued a precedential opinion interpreting Pelegrini as requiring the Board to ensure that proper notice is provided unless it makes findings regarding the completeness of the record or other facts that would permit the conclusion that the notice error was harmless. See VAOGCPREC 7-2004. The United States Court of Appeals for the Federal Circuit reaffirmed the importance of proper VCAA notice in Mayfield v. Nicholson, 499 F.3d 1317 (Fed. Cir. 2007). Mayfield and its progeny instruct that a comprehensive VCAA letter, as opposed to a patchwork of other post-decisional documents, is required to meet the VCAA's notification requirements. Id at 1320. However, VCAA notification does not require a pre-adjudicatory analysis of the evidence already contained in the record. See, e.g. Mayfield v. Nicholson, 20 Vet. App. 537, 541 (2006). In Dingess v. Nicholson, 19 Vet. App. 473 (2006), aff'd sum nom Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007), the United States Court of Appeals for Veterans Claims (Court) held that VCAA notice requirements are applicable to all five elements of a service connection claim. Thus, the Veteran must be notified that a disability rating and effective date for the award of benefits will be assigned if service connection for a claimed disability is awarded. Id at 486. In this case, the Veteran was sent a letter in August 2005 which explained how VA could help him obtain evidence in support of his claim. It also informed him that in order to receive an increased rating for a service connected disability, he needed to show that it got worse. In March 2006 the Veteran was sent a letter which explained how ratings and effective dates are assigned for service connected disabilities. VA also must make reasonable efforts to assist the claimant with obtaining evidence necessary to substantiate the claim for the benefit sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. In connection with the current appeal, VA has of record evidence including service treatment records, electronic and paper VA treatment records, private treatment records, and the contentions of the Veteran. The Veteran was provided with VA examinations of his right biceps muscle injury, neurologic injury, right medial biceps scar, and residuals of splenectomy. These examinations fully documented the symptoms and functional effects of the Veteran's various disabilities which are the subject of this claim. While the Veteran's attorney contends that the examinations were inadequate, he provided no basis for his opinion and the Board finds that the examinations are sufficient for rating purposes. There is no indication that additional evidence exists which is relevant to the Veteran's claims being decided herein. The Board concludes that VA met its obligations pursuant to the VCAA in this case. Increased and Initial Ratings The Veteran's splenectomy is currently rated 30 percent disabling. His residuals of gunshot wound to the right bicep with median nerve injury is rated 30 percent disabling. His right medial biceps scar is rated 10 percent disabling. The Veteran contends that the symptoms of all of these disabilities are more severe than what is contemplated by the currently assigned ratings. Disability ratings are determined by applying criteria that are set forth in the VA's Schedule for Rating Disabilities (38 C.F.R. Part 4). Ratings are based on average impairments of earning capacity resulting from particular diseases and injuries and the residuals thereof in civilian occupations. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Disabilities are described utilizing diagnostic codes set forth in 38 C.F.R. Part 4. Where there is a question as to which of two evaluations shall be applied, the higher rating 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. Where entitlement to compensation for a service-connected disease or injury already has been established and entitlement to an increase in the disability rating is at issue, the present level of disability is of primary importance. See, e.g., Franciso v. Brown, 7 Vet. App. 55, 58 (1994). Staged ratings are, however, appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. The relevant focus for adjudicating an increased rating claim is on the evidence concerning the state of the disability from the time period one year before the claim was filed until VA makes a final decision on the claim. See generally Hart v. Mansfield, 21 Vet. App. 505 (2007). Also, in cases in which a claim for a higher evaluation arises out of the initial grant of service connection for the disability at issue, multiple ("staged") ratings may be assigned for different periods of time during the pendency of the claim and appellate process. See generally Fenderson v. West, 12 Vet. App. 119 (1999). See also Hart v. Mansfield, 21 Vet. App. 505 (2007). A. Splenectomy Splenectomy is rated pursuant to 38 C.F.R. § 4.118, diagnostic code 7706. A 20 percent rating applies for this disability (the Veteran received his 30 percent rating under a prior version of the rating schedule). Complications such as systemic infections with encapsulated bacteria are rated separately. The Veteran was examined in June 2006. At that time, the Veteran reported that right after the injury he got frequent upper respiratory infections, but currently he was averaging a normal amount of one per year. An x-ray of the lumbar area from 2005 showed multiple tiny metallic foreign bodies at the left flank area. The Veteran had no abdominal tenderness or discomfort. However, he had a very tender scar in the left flank area. He had no other symptoms related to this problem. The Veteran is separately service connected for his left flank and abdominal scars. The Veteran was reexamined in April 2012. The examiner noted the history of gunshot wound to the abdomen leading to exploratory laparotomy and splenectomy. There was no increase in encapsulated organism infections. He did not require any medication. The Veteran complained of lightheadedness with positional change and he was noted to have mild anemia. Hemoglobin was 11.7. This does not meet the criteria for a separate compensable rating for anemia because hemoglobin was not 10 gm/ml or less with findings such as weakness, easy fatigability, or headaches. 38 C.F.R.. § 4.117, diagnostic code 7700. There was a scar but it was not painful, unstable, or greater than 39 square centimeters and in any event the Veteran has a separate rating for a left flank and abdominal scar. The splenectomy did not impact the Veteran's ability to work. Treatment records did not show treatment specifically related to the splenectomy. The Veteran's symptoms are consistent with the assigned 30 percent rating, which is actually higher than the rating that he would be entitled to under the current version of the rating schedule, which provides for a single 20 percent rating for a splenectomy. There are no complications which warrant separate ratings. There was no increase in encapsulated organism infections and the anemia found on examination was not severe enough to warrant a separate compensable rating. While the Veteran's attorney contends that the Veteran has scars and gastroesophogeal reflux disease/hiatal hernia due to his splenectomy, the Veteran is separately service connected for those disabilities and the ratings assigned for them are not part of this appeal. The Veteran filed a notice of disagreement with the initial noncompensable rating assigned for his hiatal hernia/GERD but did not perfect his appeal. Similarly, while the Veteran contends that his splenectomy scar is tender, he is separately rated for his left flank and abdominal scars related to the gunshot wound injury and as previously noted the rating assigned for those scars is not part of this appeal. He has not made any other contentions related to alleged symptoms due to splenectomy. The Board finds that the Veteran's symptoms do not present such an exceptional disability picture as to render the schedular rating inadequate. 38 C.F.R. § 3.321(b). See also Thun v. Peake, 22 Vet. App. 111, 115 (2008) (the threshold factor for extraschedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the schedular evaluation is inadequate). Other than some mild anemia and positional lightheadedness, the Veteran does not have any discernible symptoms due to his splenectomy and is not receiving any treatment for his splenectomy. His splenectomy does not affect employment and there is no indication that he was hospitalized due to the splenectomy after the initial surgery and recovery period in service. The Board has considered the benefit of the doubt doctrine. However, the weight of the evidence is against the Veteran's claim. B. Residuals of gunshot wound to the right biceps. The Veteran's residuals of a gunshot wound to the right bicep with median nerve damage may be rated pursuant to either the criteria applicable to muscle injuries or the criteria applicable to peripheral nerve injuries, whichever is higher. However, 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. 38 C.F.R. § 4.55. Muscle disabilities are evaluated pursuant to 38 C.F.R. § 4.56 according to the type of injury, history and complaint, and objective findings. A slight muscle disability is characterized by a simple wound of muscle without debridement or infection. The history is over a superficial wound in service with brief treatment and return to duty. Healing was with good functional results. There are no cardinal signs and symptoms of muscle disability. Cardinal signs of muscle disability consist of loss of power, weakness, lower threshold of fatigue, fatigue-pain, impairment of coordination, and uncertainty of movement. A moderate muscle disability is characterized by a through and through or deep penetrating would 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. The history shows a record of consistent complaint 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 consisted of entrance and exit scars, small or liner, indicating a short track of the missile through muscle tissue. There is some loss of deep fascia or muscle substance or impairment of muscle tonus and loss of power or lowered threshold of fatigue as compared to the sound side. A moderately severe disability of the muscles in characterized by 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 intramuscular scarring. The history shows hospitalization for a prolonged period for treatment of the wound. There is a record of consistent complaints of cardinal signs and symptoms of muscle disability and, if present, inability to keep up with work requirements. Objective findings include entrance and exit scars indicating the track of the missile through one or more muscle groups. There are indications on palpation of loss of deep fascia, muscle substance, or normal firm resistance of muscles as compared with the sound side. Tests of strength and endurance compared with the sound side demonstrate positive evidence of impairment. A severe disability of the muscles consists of a through and through or deep penetrating wound due to a 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, intramuscular binding and scarring. There is a history showing hospitalization for a prolonged period for treatment of the wound. There is a record of consistent complaint 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 include ragged, depressed and adherent scars indicating wide damage to muscle groups in the missile track. Palpation shows loss of deep fascia of muscle substance, or soft flabby muscles in the wound area. Muscles swell and harden abnormally in contraction. Tests of strength, endurance, or coordinated movements compared with the corresponding muscles of the uninjured side indicate severe impairment of function. If present the following are also signs of severe muscle disability: (a) x-ray evidence of minute multiple scattered foreign bodies indicating intramuscular 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. 38 C.F.R. § 4.56(d). In applying these ratings, a through and through injury with muscle damage shall be evaluated as no less than a moderate muscle injury to the group of muscles damaged. 38 C.F.R. § 4.56(b). 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 the wrist or over the tibia, evidence establishes that the muscle damage is minimal. 38 C.F.R. § 4.56(a). The Veteran's muscle injury affects muscle group V and is rated pursuant to the criteria at 38 C.F.R. § 4.73, diagnostic code 5305. A 30 percent rating applies for moderately severe muscle injury of the dominant extremity or severe muscle injury of the non-dominant extremity. A 40 percent rating applies for severe muscle damage on the dominant side. 40 percent is the highest scheduler rating available for this disability. The median nerve injury may be rated pursuant to 38 C.F.R.§ 4.124a, diagnostic code 8515. A 30 percent rating applies for moderate incomplete paralysis of the dominant extremity. A 40 percent rating applies for severe incomplete paralysis of the non-dominant extremity. A 50 percent rating applies for severe incomplete paralysis of the dominant extremity. A 60 percent rating applies for complete paralysis of the non-dominant extremity and a 70 percent rating applies for complete paralysis of the dominant extremity. Complete paralysis involves the hand inclined to the ulnar side, the index and middle fingers more extended than normally, considerable atrophy of the muscles of the thenar eminence, the thumb in the plane of the hand, pronation incomplete and defective, absence of flexion of the index finger and feeble flexion of the middle finger, cannot make a fist, index and middle fingers remain extended, cannot flex distal phalanx of thumb, defective opposition and abduction of the thumb at right angles to palm, flexion of the wrist weakened, pain with trophic disturbances. Incomplete paralysis indicates a degree of lost or impaired function substantially less than the type pictured for complete paralysis given with each nerve, whether due to varied level of the nerve lesion or to partial regeneration. When the involvement is wholly sensory, the rating should be for the mild, or at most, the moderate degree. 38 C.F.R. § 4.124a, "diseases of the peripheral nerves." The Veteran was examined in June 2006. He reported that he was right handed. At that time he reported numbness and tingling over the volar aspects of the thumb, forefinger, and middle finger extending upward to the wrist and then over the middle one third of the forearm to the elbow. The Veteran appeared to have normal grip strength and was able to make a fist. He had decrease in sensation of the first three fingers to the point where he had been unaware that he had burnt himself. He complained of loss of dexterity involving the thumb, forefinger, and middle finger. He had difficulty picking up small objects and difficulty reliably holding items such as cups and glasses for more than a few seconds because of the lack of sensation. He had difficulty turning door knobs and making twisting motions such as to open jars. Examination of the right hand showed full strength in terms of grip and at the elbow and wrist. On the volar aspect of the hand all of the fingers beyond the metatarsophalangeal joints had decrease in sensation to pain and light touch. This extended upward to the middle one half of the palm only for the forefinger, thumb, and middle finger. The distal one third of the forefinger, thumb, and middle finger on the dorsal aspect of the hand also had decreased sensation. Dexterity in terms of the rapidity of fine movements in the fingers and hand was mildly diminished so far as could be determined. Tendon reflexes were 1+ at the biceps and radial. Reexamination of multiple aspects of this injury occurred in April 2012. Muscle examination showed a gunshot wound to the right bicep with resultant median nerve dysfunction in the right hand. The muscle injury involved muscle group V. Scars were ragged, depressed, and adherent indicating wide damage to muscle groups in the missile track. There was some loss of deep fascia. There was some impairment of muscle tonus and some loss of muscle substance. There was consistent loss of power. Elbow flexion was 4 out of 5. There was no muscle atrophy. The Veteran did not use any assistive devices and functioning was not so diminished that amputation with prosthesis would equally serve the Veteran. There was mild weakness on flexion of the right arm with median nerve deficit affecting the right hand. Examination of the peripheral nerves showed peripheral neuropathy of the median nerve of the right hand. There was moderate pain and paresthesias/dyesthesias, and mild numbness of the right hand. Elbow flexion was 4 out of 5. Grip and pinch were also 4 out of 5. Elbow extension and wrist flexion were normal. There was no muscle atrophy. Deep tendon reflexes were 2+. There was decreased sensation to the hand and fingers. Right hand median nerve distribution index and long fingers showed abnormal 2 point discrimination. There were no trophic changes. Phalen's sign and Tinel's sign were negative. The examiner assessed that there was moderate incomplete paralysis of the median nerve. There was decreased fine motor skills and a sensory deficit that was discernible on examination. An examination of the right fingers and hand showed progressive weakness and some clumsiness with fine motor skills. There was limited and/or painful motion of the index and long fingers. There was a gap of less than one inch between the thumb pad and the fingers. Pain began at a gap of 1 to 2 inches. There was a gap of less than 1 inch between the long finger and the index finger and the proximal transverse crease of the palm. Painful motion began at a gap of one inch. There was no additional limitation of motion after three repetitions. Post test there was a less than one inch gab between the thumb pad and the fingers as well as between the long finger and the middle finger and the proximal transverse crease of the palm. The Veteran had decreased range of motion, pain on motion, incoordination, and weakened movement of the long finger and the index finger. Grip strength was 4 out of 5. There was decreased 2 point discrimination on the right hand index and long fingers and decreased competency with pushing, pulling, and grasping items tested. No assistive devices were used and functioning was not so diminished that amputation with prosthesis would equally serve the Veteran. The Veteran had a diminished ability to do fine motor skills with the dominant hand. Evaluation of the Veteran's residuals of gunshot wound to the right biceps under the criteria related to median nerve injury reflects the predominant disability picture in this case. These criteria are more favorable to the Veteran than the criteria applicable to rating the muscle injury because they allow for a higher rating. Viewing the evidence in the light most favorable to the Veteran, his disability most closely resembles severe incomplete paralysis of the median nerve of the dominant arm. He has pain and paresthesias in addition to diminished sensation to pain and light touch in the fingers of the right hand which is severe to the point that he has burned himself without noticing it. Grip strength was objectively diminished when tested at the most recent examination, and there was objective weakness and loss of fine motor skills. The Veteran was unable to fully close his fist and there were gaps between the middle and index fingers and the transverse crease of the palm. The Veteran had difficulty holding items for more than a few seconds or making twisting motions such as to open jars. He also had trouble picking up small objects. These functional limitations are more consistent with severe incomplete paralysis than moderate incomplete paralysis. However, there is no evidence of complete paralysis of the median nerve as it is clear some nerve function remains. The Board finds that the Veteran's symptoms do not present such an exceptional disability picture as to render the schedular rating inadequate. 38 C.F.R. § 3.321(b). See also Thun 22 Vet. App. 111 at 115. Symptoms such as sensory abnormalities, weakness, and loss of manual dexterity are contemplated by the 50 percent rating assigned for severe incomplete paralysis of the median nerve of the dominant extremity. Moreover, there are no unusual factors such as repeated hospitalizations or material interference with employment due to the right hand disability. The Veteran is retired and there is no evidence that this was related to the median nerve injury. The Veteran is not receiving treatment currently specifically for the residuals of gunshot wound to the right bicep. The Board also acknowledges the Veteran's contention that he should receive special monthly compensation (SMC) for loss of use of his right hand. The Veteran does not meet the criteria for this type of SMC. Loss of use of a hand for purposes of determining entitlement to SMC means no effective function remains other than that which would be equally served by an amputation stump at the site of election below the elbow with use of a suitable prosthetic appliance. 38 C.F.R. § 4.63. That has not been shown in this case. In reaching this determination, the Board has considered the lay evidence and pleadings. To the extent that there is lay evidence that a higher evaluation should be assigned, the Board agrees. However, to the extent that there is lay evidence of complete paralysis or loss of use (special monthly compensation), such lay evidence is wildly inconsistent with the objective evidence disclosing that he retains significant functional use. To this extent, the lay evidence is far less probative and less credible than the objective medical evidence. C. Right medial biceps scar The Board notes that as of October 23, 2008, revised provisions for evaluating scars were enacted. This new regulation, however, indicates that the revised provisions are applicable only to claims received on or after October 23, 2008. Accordingly, these revisions do not apply to the present case. 73 Fed. Reg. 54708 (Sept. 23, 2008). Rather, the Veteran's claim will be considered solely under the criteria effective as of the date of the claim. At that time, pursuant to 38 C.F.R. § 4.118, diagnostic code 7801, scars other than on the head, face, or neck that were deep or caused limited motion were rated 10 percent disabling for an area or areas exceeding 6 square inches, 20 percent disabling for an area or areas exceeding 12 square inches, 30 percent disabling for an area or areas exceeding 72 square inches, and 40 percent disabling for an area or areas exceeding 144 square inches. With regard to superficial scars, a 10 percent rating could be assigned if the scar was unstable (diagnostic code 7803), painful on examination (7804), or greater than 144 square inches in size (diagnostic code 7802). If applicable, scars may also be rated on limitation of function of the affected part VA examination in June 2006 noted that the Veteran had two linear scars in the right medial bicipital area that were very tender to light touch. The upper scar was 5 cm by .5 cm and the lower scar was 8 cm and the proximal 4 cm of that scar was depressed. The scars were freely moveable and similar in texture and character to the surrounding tissue. There was no deformity. There was also no appreciable effect on muscle mass. The Veteran's scars were reexamined in April 2012. These included the right medial bicep scars as well as a lateral bicep scar and a mid abdominal laparotomy scar, both of which are separately service connected. None of the scars were unstable. They were tender to palpation. The scars on the biceps were deep and non-linear, measuring 8 cm by 2cm and 11cm by 2cm. The approximate combined total area of all of the right bicep scars was approximately 38 square centimeters (this was inclusive of the lateral bicep scar for which the Veteran is separately rated). The examiner noted that moderately severe functional impact was from the injury to the median nerve and not the scars per se. The evidence does not show that the Veteran meets the criteria for a rating in excess of 10 percent for his right medial biceps scar, whether it is evaluated by size as a deep scar or alternatively as a painful superficial scar. Notably, the total size for the Veteran's right biceps scars on the most recent examination also included a right lateral biceps scar for which the Veteran has a separate 10 percent rating. The old code was used to assign the lateral biceps scar rating because this allows the Veteran to have 4 separate 10 percent ratings for 4 painful scars as opposed to a single 20 percent rating that includes all of the painful scars. Contrary to the assertion of the Veteran's attorney, there is no evidence that the right medial biceps scar is both unstable and painful. The scar was examined multiple times and it was never found to be unstable. There is no evidence that the scar is unstable. A 10 percent rating is appropriate whether the scar is rated as a painful scar or a deep scar that is between 6 and 12 square inches. Additionally, while the Veteran claims the scars are more painful than is reflected by the examination, the rating schedule does not differentiate between degrees of painfulness or tenderness of the scar. A 10 percent rating applies for a painful or tender scar regardless of whether the tenderness or pain is mild, moderate, or severe. The Board finds that the Veteran's symptoms do not present such an exceptional disability picture as to render the schedular rating inadequate. 38 C.F.R. § 3.321(b). See also Thun 22 Vet. App. 111at 115. There is no documented functional impairment due to the right medial biceps scar per se, rather impairment is from the gunshot wound injury itself with muscle and nerve damage for which the Veteran is separately rated. The Board considered the benefit of the doubt doctrine, but the weight of the evidence is against a rating in excess of 10 percent for the right medial biceps scar. ORDER A rating in excess of 30 percent for splenectomy is denied. A rating of 50 percent for residuals of gunshot wound to the right biceps, muscle group V, with partial paralysis of the median nerve is granted. An initial rating in excess of 10 percent for right medial biceps scar is denied. REMAND The Board finds that further development is needed with respect to the Veteran's claims for service connection for a urinary condition and multiple sclerosis. The Veteran filed a claim for service connection for a urethral condition, apparently as a result of a history of recurrent strictures. His symptoms were later attributed to benign prostatic hypertrophy and service connection for this condition was denied; this appeal followed. A medical opinion was obtained in July 2012 to the effect that the Veteran's in service splenectomy would not have affected the urethra or caused benign prostatic hypertrophy. The examiner noted that the Veteran reported that he had symptoms of decreased urinary flow prior to sustaining the gunshot wound that led to the splenectomy. This suggests that the Veteran may have had symptoms in service, albeit unrelated to the splenectomy or gunshot wound. Although the July 2012 examination indicated that the Veteran did not currently have any urethral strictures, a July 2012 VA treatment record reflected that the Veteran had developed kidney disease which may have been related to his history of prior bladder obstruction. Thus, if the urinary problems began in service, it is possible that the current kidney disease may be related to service. Thus, he should be afforded a new VA examination to determine whether any in service symptoms led to his current urinary and kidney problems. With regard to multiple sclerosis, the Veteran's former representative submitted a document indicating that the Veteran told him that his symptoms began in service. There are numerous post service treatment records that date the onset of symptoms to decades after service and the Veteran has never explained his contention that multiple sclerosis started in service or was otherwise related to service. The Veteran should be afforded a VA examination where he can explain his contentions and the examiner can offer an opinion as to whether multiple sclerosis onset in service or within the presumptive period thereafter, or is otherwise related to service. Accordingly, the case is REMANDED for the following action: 1. Afford the Veteran a VA examination to determine the etiology of the Veteran's current kidney disease and any other disorder that may be resulting in low urinary flow. The examiner should review the claims file in conjunction with the examination. The examiner should provide an opinion as to whether it is at least as likely as not (at least 50 percent likely) that the Veteran has a genitourinary disorder that started in service or is otherwise related to service. If the Veteran's history of bladder obstruction is determined to have onset during service, the examiner should indicate whether it is at least as likely as not (at least 50 percent likely) that this caused his present kidney disease. A complete rationale should be provided for all opinions which are expressed in the examination report. 2. Afford the Veteran a VA examination to determine the etiology of the Veteran's multiple sclerosis. The examiner should obtain a complete history from the Veteran and conduct a thorough examination. He or she should also review the claims file in conjunction with the examination. Then, he or she should explain whether it is at least as likely as not (at least 50 percent likely) that multiple sclerosis started in service or within seven years of service. A complete rationale should be provided for the opinion in the report of examination. 3. After completion of the above development, the Veteran's claim should be re-adjudicated. If the determinations remain unfavorable to the Veteran, he and his representative should be provided with a supplemental statement of the case (SSOC) and given an opportunity to respond thereto. Thereafter, if applicable, the case should be returned to the Board for appellate disposition. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ______________________________________________ H. N. SCHWARTZ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs