Citation Nr: 21065918 Decision Date: 10/27/21 Archive Date: 10/27/21 DOCKET NO. 14-17 431 DATE: October 27, 2021 ORDER Entitlement to service connection for peripheral neuropathy of the right lower extremity from May 11, 2011 is granted. Entitlement to an increased rating in excess of 10 percent for residuals, shell fragment wound, right ankle is denied. Entitlement to a rating of 10 percent for shell fragment wound, Muscle Group XIX, abdomen, postoperative laparotomy from May 11, 2011 is granted. Entitlement to a 10 percent rating for surgical scar, abdomen associated with shell fragment wound, Muscle Group XIX, abdomen, postoperative laparotomy from June 19, 2015 is granted. FINDINGS OF FACT 1. The Veteran was exposed to an herbicide agent while stationed in the Republic of Vietnam and his peripheral neuropathy of the right lower extremity is presumptively related to his in-service exposure. 2. The Veteran's residuals, shell fragment wound, right ankle is manifested by no more than moderate limited motion of the ankle. 3. From May 11, 2011, the Veteran's shell fragment wound, Muscle Group XIX, abdomen, postoperative laparotomy condition has been manifested by abdominal pain, nausea, and diarrhea of moderate severity. 4. From June 19, 2015, the Veteran's surgical scar, abdomen associated with shell fragment wound, Muscle Group XIX, abdomen, postoperative laparotomy has been manifested by pain. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for peripheral neuropathy of the right lower extremity from May 11, 2011 have been met. 38 U.S.C. §§ 1110, 1116, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 2. The criteria for entitlement to an increased rating in excess of 10 percent for residuals, shell fragment wound, right ankle have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5271. 3. The criteria for entitlement to a rating of 10 percent for shell fragment wound, Muscle Group XIX, abdomen, postoperative laparotomy from May 11, 2011 have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.113, 4.114, Diagnostic Codes 7301-7310. 4. The criteria for entitlement to a 10 percent rating for surgical scar, abdomen associated with shell fragment wound, Muscle Group XIX, abdomen, postoperative laparotomy from June 19, 2015 have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.118, Diagnostic Code 7804. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty with the Army from October 1967 and October 1969. He served in the Republic of Vietnam earning a Purple Heart. This matter comes before the Board of Veterans' Appeals (Board) on appeal from September 2011 and October 2013 rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified before the undersigned Veterans Law Judge at a Travel Board hearing in February 2018. A transcript of the proceeding has been associated with the claims file. The Veteran's claims were most recently remanded by the Board in November 2019. The Board directed the RO to schedule the Veteran for an examination for his shell fragment wound, abdomen disability, and ask the examiner to clarify whether the Veteran has an injury to Muscle Group XIX, determine the severity of his condition under Diagnostic Code 7301, and evaluate whether the Veteran's abdominal scar is painful or unstable. As for the shell fragment wound, right ankle disability, the Board directed the RO to schedule the Veteran for an examination to determine the current severity of the condition and address whether there are any neurological manifestations of the disability. As for the shell fragment wound, abdomen disability, the Board finds that the RO has substantially complied with the November 2019 Board remand directive after scheduling and obtaining multiple adequate VA examinations. See Stegall v. West, 11 Vet. App. 268 (1998). As for the shell fragment wound, right ankle disability, the Board finds that the RO has not substantially complied with the November 2019 Remand as the VA examiner failed to adequately address the Veteran's neurological manifestations. Id. Nevertheless, the Board finds that a remand is unnecessary and may proceed with the adjudication of the claims herein without any prejudice to the Veteran given the favorable findings below. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993). Additionally, the Board finds that in May 2011, the Veteran filed a claim for an increased evaluation of his shrapnel right foot, noting that he has no feeling in his right foot. Based on the Veteran's contentions, the Board concludes that it is appropriate to recharacterize the claim more broadly as one of entitlement to increased rating of his right ankle disability to include the reported symptoms of loss of feeling in his right foot. Borkowski v. Shinseki, 23 Vet. App. 79, 85 (2009) (holding that an informal claim for benefits is made where the claimant refers to a disabled body part or system or describes symptoms of the disability, and a claim includes all disabilities that may be reasonably encompassed by the claimant's description of the claim, reported symptoms, and the other information of record). Furthermore, the Board finds it is necessary to consider all theories of entitlement to benefits, not just secondary service connection, that are either raised by the claimant or reasonably raised by the record. Robinson v. Mansfield, 21 Vet. App. 545 (2008), aff'd sub nom. Robinson v. Shinseki, 557 F.3d 1355 (Fed. Cir. 2009). Therefore, the Board will consider presumptive service connection for right ankle neurological disabilities based on the Veteran's Agent Orange exposure while serving in Vietnam. Service Connection 1. Entitlement to service connection for peripheral neuropathy of the right lower extremity from May 11, 2011 Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. Direct incurrence service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). Additionally, service connection may be established on a presumptive basis for certain disabilities resulting from exposure to herbicides. A Veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975, shall be presumed to have been exposed during such service to herbicides, unless there is affirmative evidence to establish that the Veteran was not so exposed during that service. 38 C.F.R. §§ 3.307 (a)(6)(iii). Early-onset peripheral neuropathy is among the diseases listed in § 3.309 for which presumptive service connection is available based on in-service herbicide exposure provided it is manifest to a degree of 10 percent or more within 1 year of the last date of the Veteran's exposure to herbicides. See 38 C.F.R. § 3.307 (a)(6)(ii). The Veteran's service personnel records indicate service in the Republic of Vietnam from March 1968 to November 1968. Therefore, exposure to herbicide agents is presumed. 38 C.F.R. § 3.307 (1)(6)(iii). The question before the Board is whether the Veteran has a diagnosis of right lower extremity peripheral neuropathy that manifested to a degree of 10 percent or more within 1 year of the last date of exposure to herbicides. The Veteran's post-service medical records include an October 1984 VA examination where the Veteran complained of increased sensitivity and pain in his right ankle. The examiner opined that the right ankle could be neuroma, as the Veteran started noting sensitivity and pain 4 to 5 years prior. In another October 1984 VA examination, the Veteran reported that his right foot hurts and he gets a stinging sensation periodically in his right leg. In the Veteran's May 2011 claim for an increased rating as to his right ankle, he stated that he has no feeling in his right foot. The Veteran's VA treatment records include a December 2012 Agent Orange Registry Examination where the Veteran reported concerned with his right ankle neuropathy. He stated that he has experienced dysesthesias and numbness in his right ankle and foot since he was wounded in Vietnam, but his symptoms have worsened in the last couple of years. The examiner noted that the vibratory sense in the right ankle and foot were absent and he has hyperesthesia over the right medial ankle. The examiner opined that the Veteran's neuropathy is not idiopathic, and is probably residual tibial nerve damage from his shrapnel wound. In December 2013, the Veteran reported chronic pain in his right ankle describe as "a dead nerve in my ankle." He further stated that he has had the burning pain since active duty. The Veteran's VA treatment records include numerous complaints and diagnoses of right lower extremity neuropathy. The Veteran has been prescribed gabapentin to treat his neuropathy. In February 2015, the Veteran was afforded a VA examination specifically for his claimed neuropathy. The Veteran reported that "the bottom of [his] foot is dead," and it has been like that even since he separated from service. The examiner confirmed the Veteran's diagnosis of right lower extremity neuropathy affecting the external popliteal nerve, the musculocutaneous nerve, and the posterior tibial nerve. Symptoms attributable to the nerve condition include constant pain, intermittent pain, and numbness. The examiner opined that the peripheral nerve condition is less likely as not related to his right ankle fragment wound. A rationale was not provided. The Board finds that the examiner's opinion lacks any probative value as the examiner failed to apply the appropriate legal standard related to secondary service connection, did not provide a rationale, and did not consider all raised theories of entitlement. See Stefl v. Nicholson, 21 Vet. App. 120 (2007). However, the Board finds that the examiner's diagnosis of right lower extremity neuropathy is highly probative. In a June 2015 VA examination for scars related to the right ankle, the examiner noted that the Veteran has nerve damage and loss of function in the right ankle. She also noted that the Veteran's numbness in his foot causes balance issues as he cannot feel his foot when walking. In a February 2016 addendum opinion offered by the same VA examiner who completed the February 2015 VA examination curiously opined that the Veteran's neuropathy is less likely than not proximately due to his service-connected right ankle disability as there is no documented medical or diagnostic evidence to support finding that the Veteran has peripheral neuropathy. The Board assigns no probative value to this opinion as it is directly contradictory to the February 2015 findings without an explanation as to the discrepancies and is not based on the actual evidence of record. See Dalton v. Nicholson, 21 Vet. App. 23 (2007). During the Veteran's February 2018 Board hearing, he testified that he has a pinched nerve in the bottom of his right ankle, and it is "dead." In March 2019, the Veteran attended a VA examination for his ankle condition and again reported that his symptoms include numbness and tingling. Most recently, in July 2021, the Veteran was afforded a VA examination for his right ankle disability. The examiner opined that the Veteran's neuropathy is less likely than not incurred in or caused by service. The rationale is that there is no evidence of additional neurological deficits or abnormal neurosensory examination findings. The Board finds that this VA medical opinion is inadequate and does not assign any probative value to the opinion. Similar to the opinions offered in February 2015 and February 2016, the opinion lacks an adequate rationale and is not supported by the evidence of record. Id. After careful consideration of the evidence of record, the Board finds that the evidence is at least in equipoise as to whether the Veteran has early-onset peripheral neuropathy of the right lower extremity presumptively related to his service in Vietnam. Throughout the appeal, the Veteran has consistently and credibly contended that he has had numbness and tingling in this right lower extremity since he was in Vietnam. During the October 1984 VA examination, the Veteran contended that he had numbness in tingling in his right lower extremity since at least 4 to 5 years prior. The examiner opined that the Veteran's condition was probably neuroma. In December 2012 during the Agent Orange Registry examination, the Veteran again stated that he has had numbness and tingling in his right lower extremity since his active service. The examiner confirmed the Veteran's reported symptoms of neuropathy. Additionally, the February 2015 VA examiner diagnosed the Veteran with right lower extremity neuropathy affecting the external popliteal, musculocutaneous, and posterior tibial nerves. Furthermore, the Veteran has been actively treated for his neuropathy and prescribed gabapentin throughout the course of his appeal. After resolving any doubt in the Veteran's favor, the Board finds that the Veteran's right lower extremity peripheral neuropathy ia at least as likely as not manifested to a compensable level within one year of his leaving Vietnam. Accordingly, entitlement to service connection for right lower extremity peripheral neuropathy is granted from May 11, 2011. 38 U.S.C. §§ 1110, 1116, 5107; 38 C.F.R. §§ 3.102, 3.307 (a)(6), 3.309 (e). Increased Ratings Disability ratings are determined by the application of the facts presented to VA's Schedule for Rating Disabilities. 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during service and the residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321 (a), 4.1. In rating the severity of a particular disability, it is essential to consider its history. 38 C.F.R. § 4.1; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for the higher rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Separate ratings can be assigned for separate periods of time, based on the facts found. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). A claim for increased rating remains in controversy when less than the maximum available benefit is awarded AB v. Brown, 6 Vet. App. 35 (1993). Reasonable doubt as to the degree of disability will be resolved in the Veteran's favor. 38 C.F.R. § 4.3. 2. Entitlement to an increased rating in excess of 10 percent for residuals, shell fragment wound, right ankle The Veteran contends that his service-connected right ankle condition significantly worsened entitling him to an increased rating. When evaluating musculoskeletal disabilities based on limitation of motion, 38 C.F.R. § 4.40 requires consideration of functional loss caused by pain or other factors listed in that section that could occur during flare-ups or after repeated use and, therefore, not be reflected on range-of-motion testing. 38 C.F.R. § 4.45 requires consideration also be given to less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement. See DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011). Nonetheless, even when the factors listed in § 4.40 or 4.45 are relevant when evaluating a disability, the rating is assigned based on the extent to which motion is limited, pursuant to 38 C.F.R. § 4.71a; a separate or higher rating under § 4.40 or 4.45 itself is not appropriate. See Thompson v. McDonald, 815 F.3d 781, 785 (Fed. Cir. 2016) ("[I]t is clear that the guidance of § 4.40 is intended to be used in understanding the nature of the Veteran's disability, after which a rating is determined based on the § 4.71a criteria."). Under 38 C.F.R. § 4.59, painful motion is a factor to be considered with any form of arthritis; however, 38 C.F.R. § 4.59 is not limited to disabilities involving arthritis. See Burton v. Shinseki, 25 Vet. App. 1 (2011). The Veteran's right ankle disability is rated under 38 C.F.R. § 4.71a, Diagnostic Code 7271 for limitation of motion of the ankle. Under Diagnostic Code 5271, a 10 percent rating is warranted for moderate limited motion of the ankle and a 20 percent rating is warranted for marked limited motion of the ankle. 38 C.F.R. § 4.71a. According to MERRIAM WEBSTER, "moderate" means "tending toward the mean or average amount or dimension". See www.merriam-webster.com/dictionary/moderate. "Marked" means "having a distinctive or emphasized character". See www.merriam-webster.com/dictionary/marked. Effective February 7, 2021, VA amended the rating criteria for Diagnostic Code 5271. 85 Fed. Reg. 76,453 (Nov. 30, 2020). Under the new criteria, a 10 percent rating is warranted for moderate limited motion of the ankle (less than 15 degrees dorsiflexion or less than 30 degrees plantar flexion). A 20 percent rating is warranted for marked limited motion of the ankle (less than 5 degrees dorsiflexion or less than 10 degrees plantar flexion). As this regulatory change was enacted during the pendency of this appeal, the Board will consider both the old and new versions of the rating criteria from the effective date and apply the version most favorable to the Veteran. The Board notes that the Veteran filed his claim for increased evaluation on May 11, 2011; the Board has considered the evidence of record since May 11, 2010 in conjunction with this decision. See 38 C.F.R. § 3.400 (o). Evidence relevant to the severity of the Veteran's right ankle condition throughout the appeal includes VA examinations, VA treatment records, and lay testimony. The Veteran was afforded a VA examination in June 2013. The Veteran reported ankle pain, difficulty walking, and daily flare-ups. Upon range of motion testing, the Veteran's plantar flexion was limited to 30 degrees with objective evidence of pain. His dorsiflexion was limited to 5 degrees with objective evidence of pian. The Veteran was able to perform repetitive use testing with no additional functional loss. The examiner indicated that his plantar flexion was limited to 30 degrees and his dorsiflexion was limited to 15 degrees. The examiner opined that the Veteran has functional loss or impairment due to less movement than normal, pain on movement, deformity, and interference with sitting, standing, and weight-bearing. The examiner found that the Veteran had full muscle strength with no signs or symptoms of instability or ankylosis. The examiner concluded his examination report by stating that the Veteran has minor deformity to right ankle and decreased range of motion with subjective pain to the scar site under palpation. It was also noted that the Veteran has a subjective minor limp, but he is able to walk and stand without a brace or cane. The examiner stated that it would be mere speculation to comment on flare-ups due to restriction of the examination and reiterated that the Veteran's degree of range of motion after repetition was the same before and after. The Veteran was afforded another VA examination in March 2019. The Veteran reported symptoms including numbness, tingling, and aching pain. He stated that he has flare-ups precipitated by anything including walking, which causes his ankle to hurt constantly. His ankle condition results in functional loss and impairment when limits his ability to stand or walk for long periods of time. Upon range of motion testing, his dorsiflexion was limited to 15 degrees and his plantar flexion was limited to 30 degrees. Pain was noted on the examination, but does not cause functional loss. The Veteran was able to perform observed repetitive use testing without additional loss of function or range of motion. The examiner opined that pain and lack of endurance significantly limit functional ability after repeated use over time and during flare-ups; however, the Veteran reported no additional loss of range of motion after repetitive use or during a flare-up. Additional factors contributing to the Veteran's disability include disturbance of locomotion, pain, and decreased range of motion. The examiner noted reduced muscle strength, but did not find any signs or symptoms of atrophy, ankylosis, or instability. A December 2019 VA examination, the Veteran reported severe tenderness over the right ankle scar site. He stated that he is unable to stand over a minute without a cane and is only able to walk from the handicap parking spot to the door of a retial establishment. He denied debilitating flares and reported functional loss. Range of motion testing revealed dorsiflexion limited to 15 degrees and plantar flexion limited to 30 degrees. Pain was noted on the examination, but does not cause functional loss. The Veteran was able to perform observed repetitive use testing without additional loss of function or range of motion. The examiner checked that the Veteran was examined after repeated use over time and opined that pain, weakness, fatigability, or incoordination do not significantly limit functional ability with repeated use over time. Additional factors contributing to the disability include disturbance of locomotion and interference with standing. The examiner noted reduced muscle strength, but there were no signs or symptoms of muscle atrophy or ankylosis. Most recently, in July 2021, the Veteran attended a VA examination where he continued to report pain in the right ankle. The Veteran reported functional loss and impairment as he is unable to walk more than 25 yards and is unable to stand more than 1 or 2 minutes. Upon range of motion testing, the Veteran's plantar flexion was limited to 25 degrees and dorsiflexion was limited to 10 degrees. Pain upon motion was noted. The Veteran was able to perform repetitive use testing without additional loss of function. The examiner opined that pain, fatigability, weakness, lack of endurance, and incoordination do not significantly limit functional ability with repeated use over time. There were no signs or symptoms of atrophy, ankylosis, or instability. The Veteran's VA treatment records note continued complaints of and treatment with a podiatrist for right ankle pain and neuropathy. During the February 2018 Board Hearing Testimony, the Veteran testified that he has ankle pain and nerve damage to his right ankle. He further testified that he feels pain when he stands. The Board finds that the preponderance of the evidence is against a rating in excess of 10 percent for the right ankle disability under both the new schedular criteria and old schedular criteria for Diagnostic Code 5271. Throughout the appeal, the Veteran's right ankle plantar flexion was limited to no less than 25 degrees and his dorsiflexion was limited to no less than 10 degrees. As normal range of motion is 0 to 45 degrees for plantar flexion and 20 to 0 degrees for dorsiflexion, the Board finds that the Veteran's symptoms are more nearly approximate to "moderate." 38 C.F.R. § 4.71a, Plate II. The Veteran's range of motion tended "toward the mean or average amount or dimension," throughout the appeal. The Board notes the discrepancy in the June 2013 VA examination where the examiner notated that the Veteran's range of motion on dorsiflexion was limited to both 5 degrees and 15 degrees. The examiner stated that the Veteran's dorsiflexion was unchanged after repetitive use testing. As the evidence throughout the appeal, including in the March 2019, December 2019, and July 2021 VA examinations, shows that the Veteran's dorsiflexion has been limited to 15 degrees and 10 degrees, the Board finds that the evidence does not support a finding that the Veteran's right ankle condition is entitled to a higher evaluation. The Board acknowledges the Veteran's lay reports of symptoms and that there was functional loss as the Veteran experiences limitations with standing and walking after repeated use and during flare-ups. However, even considering the Veteran's lay reports of symptoms and functional loss, the degree of additional limitation reflected by the statements that would not result in symptoms more nearly approximating marked limited motion or limitation so distinctive or emphasized that it would approximate marked limited motion. The objective medical evidence of record, including the VA examinations, found that the Veteran does not experience loss of range of motion after repeated or during flare-ups. Additionally, during the more recent December 2019 and July 2021 VA examinations, the Veteran denied experiencing any flare-ups of his right ankle condition. Consequently, the Board find that the functional loss the Veteran experiences due to his right ankle condition would not more nearly approximate marked limitation of motion to warrant a higher evaluation. The Board has considered whether any other Diagnostic Codes related to disabilities of the ankle would provide for a higher disability rating. The evidence reflects that the Veteran has complained about numbness and tingling of his right ankle throughout the appeal. However, the Veteran is now service-connected for right lower extremity peripheral neuropathy, and he is already service-connected for the reported pain around his right ankle scar, as will be discussed below. Thus, the Board finds that the evidence does not reflect that the symptoms would warrant a higher rating or any other additional ratings under a different Diagnostic Code. See 38 C.F.R. § 4.71a. The Board acknowledges the VA examinations from March 2019, December 2019, and March 2021 finding that the Veteran has a muscle injury on his right ankle involving Muscle Group XI. The March 2019 examiner opined that the Veteran has cardinal signs and symptoms attributable to the injury including loss of power and weakness. The December 2019 examiner opined that the Veteran did not have any penetrating muscle injuries. The March 2021 VA examiner opined that the Veteran has cardinal signs and symptoms attributable to the injury including fatigue and/or pain. The examiner further opined that the muscle injury diagnosis is a correction in diagnosis, as the incident that led to the shrapnel wound injury also affected Muscle Group XI. Under Diagnostic Code 5311 for Muscle Group XI, a noncompensable evaluation is awarded for a slight disability, 10 percent for a moderate disability, 20 percent for a moderately severe disability, and 30 percent for a severe disability. 38 C.F.R. § 4.73. To determine whether a disability is slight, moderate, moderately severe, or severe, the Veteran's cardinal signs and symptoms of the muscle injury are evaluated along with other factors. 38 C.F.R. § 4.56 (d). The cardinal signs and symptoms of a muscle disability include loss of power, weakness, lowered threshold of fatigue, fatigue-pain, impairment of coordination, and uncertainty of movement. 38 C.F.R. § 4.56 (c). However, the Board finds that pursuant to 38 C.F.R. § 4.14, a compensable rating under Diagnostic Code 5311 would violate the rule against pyramiding as the manifestations of the right ankle injury including fatigue, pain, loss of power and weakness are duplicative of the manifestations under Diagnostic Code 5271. See Esteban v. Brown, 6 Vet. App. 259, 261 (1994) (providing that the critical element is that none of the symptomatology for any condition is duplicative of or overlapping with the symptomatology of the other condition). Furthermore, the Board finds that an evaluation under Diagnostic Code 5311 would not result in an increased rating as a rating of 20 percent requires evidence of an inability to keep up with work requirements. Here, the Veteran has not specifically contended nor does the evidence suggest that the Veteran in unable to keep up with work requirements due to his right ankle disability. Consequently, the Board finds that neither a separate compensable rating nor a higher rating is warranted under Diagnostic Code 5311 for a Muscle Group XI injury. In conclusion, the Board finds that the preponderance of the evidence is against the Veteran's appeal for a rating in excess of 10 percent for his right ankle disability. In denying such a rating, the Board finds the benefit of the doubt doctrine is not applicable. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. 3. Entitlement to a rating of 10 percent for shell fragment wound, Muscle Group XIX, abdomen, postoperative laparotomy from May 11, 2011 The Veteran contends that his service-connected abdomen condition significantly worsened entitling him to an increased rating. The Veteran's shell fragment wound, Muscle Group XIX, abdomen, postoperative laparotomy is rated under Diagnostic Codes 7310-7301. The Board notes that hyphenated diagnostic codes are used when a rating under one diagnostic code requires use of an additional diagnostic code to identify the basis for the rating assigned. 38 C.F.R. § 4.27. The hyphenated disability will be rated by analogy under a diagnostic code for a closely related disability that affects the same anatomical functions and has closely analogous symptomatology. 38 C.F.R. §§ 4.20, 4.27. Diagnostic Code 7310 provides that residuals of stomach injury are to be rated as peritoneal adhesions. The rating criteria for peritoneal adhesions are found at Diagnostic Code 7301, which provides a 10 percent rating for moderate adhesions with pulling pain on attempting work or aggravated by movements of the body, or occasional episodes of colic pain, nausea, constipation (perhaps alternating with diarrhea) or abdominal distension; a 30 percent rating for moderately severe adhesions with partial obstruction manifested by delayed motility of barium meal and less frequent and less prolonged episodes of pain; and a 50 percent rating for severe adhesions with definite partial obstruction shown by X-ray, with frequent and prolonged episodes of severe colic distension, nausea or vomiting, following severe peritonitis, ruptured appendix, perforated ulcer, or operation with drainage. Diseases of the digestive system produce a common disability picture characterized in the main by varying degrees of abdominal distress or pain, anemia and disturbances in nutrition. Thus, certain coexisting digestive disabilities do not lend themselves to distinct and separate disability evaluations without violating the fundamental principle relating to pyramiding as outlined in 38 C.F.R. § 4.14. 38 C.F.R. § 4.113. For this reason, 38 C.F.R. § 4.114 provides that ratings under various diagnostic codes relating to digestive disabilities will not be combined with each other; rather, a single evaluation will be assigned under the diagnostic code that reflects the predominant disability picture, with elevation to the next higher evaluation where the severity of the overall disability warrants such elevation. The Board notes that the Veteran filed his claim for increased evaluation on May 11, 2011; the Board has considered the evidence of record since May 11, 2010 in conjunction with this decision. See 38 C.F.R. § 3.400 (o). Evidence relevant to the current severity of the Veteran's abdomen condition includes VA treatment records, VA examinations, and lay statements from the Veteran. The Veteran's VA treatment records include a July 2010 Surgery Consult. The Veteran presented with a complaint of abdominal pain. The examining physician noted very slight abdominal distension. In October 2010, the Veteran complained of abdominal pain and nausea with a couple of episodes of emesis. In the Veteran's May 2011 statement in support of claim, he contended that the he has had nausea and vomiting since his service in Vietnam. The Veteran was afforded a VA examination in June 2011. The Veteran stated that since active service he has had abdominal pain on and off along with nausea and diarrhea. The examiner noted weekly colic or abdominal pain and nausea of moderate severity. The examiner checked "no" to signs and symptoms of distension. The Veteran was afforded a Muscle Injuries VA examination in October 2013. The examiner found that the Veteran has an injury of Muscle Group XIX, but opined that the Veteran does not have any cardinal signs or symptoms attributable to his muscle injury. In his May 2014 VA Form 9, the Veteran stated that he takes medication to help with nausea ad acid reflux. He further stated that he has chronic pain in his abdomen accompanied by diarrhea, and he has a restricted diet. In June 2017, the Veteran was afforded a VA examination for his abdomen condition. He denied any bowel or abdominal problems, and stated that his symptoms had gotten better. The examiner opined that the condition was quiescent. The examiner also completed a Muscle Injuries VA examination in June 2017, noting that the Veteran did not have any muscle injuries or cardinal signs and symptoms attributable to a muscle injury. The examiner again found that the condition was quiescent. Another VA examination was completed in March 2019. Current symptoms reported by the Veteran included reflux and nausea. The examiner attributed monthly abdominal pain and yearly nausea to the Veteran's abdomen condition. A December 2019 VA examiner opined that there is no evidence of an abdominal muscle injury and there is no evidence of shrapnel/ballistic/traumatic injury to the abdominal muscle. The Veteran was afforded another VA examination in December 2019 for his abdomen condition. The Veteran reported pain through his abdomen radiating into his chest upon standing. His bowel movements were reported as being normal with occasional diarrhea depending on the diet. He stated that intermittent diarrhea started after his cholecystectomy in 2010. Based on the present examination, the examiner opined that the Veteran meets the criteria for a "moderate" condition under Diagnostic 7301 primarily due to pulling pain on attempting work or aggravated by movements. The Veteran had a VA examination in November 2020 where he reported that current symptoms related to his abdomen condition include tenderness. The examiner determined that signs and symptoms attributable to the Veteran's condition include abdominal pain and/or colic pain described as mild tenderness, intermittent nausea, and indigestion. The examiner opined that his condition is "moderate" under Diagnostic Code 7301. Additionally, the examiner opined that the Veteran had an open abdomen surgery to remove fragments that penetrated the rectus abdominus muscle, which is group XIX. However, the examiner did not state whether the Veteran had any cardinal signs or symptoms attributable to the muscle injury. Most recently, in March 2021, the Veteran was afforded a Muscle Injuries VA examination. The examiner opined that the Veteran had an injury to Muscle Group XIX and determined that signs and symptoms attributable to the injury include fatigue and/or pain. After careful consideration of the evidence, the Board finds that the preponderance of the evidence supports a 10 percent rating from May 11, 2011 for a moderate abdominal disability under Diagnostic Code 7301. Throughout the appeal, the Veteran has consistently, competently, and credibly reported abdominal pain, nausea, and diarrhea related to his service-connected condition. Additionally, in July 2010, his VA treatment records reveal that the Veteran experienced abdominal distention and the June 2011 VA examiner opined that the Veteran's symptoms of abdominal pain and nausea were of moderate severity. Furthermore, all the Veteran's VA examinations, with the exception of the June 2017 have indicated that the Veteran's experiences abdominal pain and/or nausea attributable to his condition. Therefore, the Board finds that evidence indicates that a 10 percent evaluation under Diagnostic Code 7301 is warranted throughout the appeal period. Similar to the Veteran's right ankle condition, there is evidence of an injury to Muscle Group XIX. However, the Board finds that a separate compensable rating under Diagnostic Code 5319 for Muscle Group XIX would violate the rule against pyramiding as the primary symptom of pain is duplicative under both diagnostic codes. 38 C.F.R. §§ 4.14, 4.73. Moreover, the Board finds that the Veteran's symptoms would not lead to a higher rating under Diagnostic Code 5319 as there is no evidence that the Veteran's abdomen condition keeps him from performing work requirements. See 38 C.F.R. § 4.56 (d)(3)(ii). Accordingly, neither a separate compensable rating nor a higher rating is warranted under Diagnostic Code 5319 for a Muscle Group XIX injury. In conclusion, the Board finds that the preponderance of the evidence supports a 10 percent rating from May 11, 2011, the date the of the claim, for the Veteran's shell fragment wound, Muscle Group XIX, abdomen, postoperative laparotomy condition. 4. Entitlement to a 10 percent rating for surgical scar, abdomen associated with shell fragment wound, Muscle Group XIX, abdomen, postoperative laparotomy from June 19, 2015 The Veteran contends that his service-connected abdomen scar significantly worsened entitling him to an increased rating. The Veteran's abdomen scar is rated under Diagnostic Code 7804, scar(s), unstable or painful. 38 C.F.R. § 4.118. Pursuant to Diagnostic Code 7804, which applies to unstable or painful scars, a 10 percent rating is warranted for one or two scars that are unstable or painful; a 20 percent rating is warranted for three or four scars that are unstable or painful; and a 30 percent rating is warranted for five or more scars that are unstable or painful. Id. An unstable scar is one where, for any reason, there is frequent loss of covering of skin over the scar. Id. at Note 1. If one or more scars are both unstable and painful, VA is to add 10 percent to the evaluation that is based on the total number of unstable or painful scars. Id. at Note 2. Additionally, scars that are evaluated under Diagnostic Codes 7800, 7801, 7802, or 7805 may also receive an evaluation under Diagnostic Code 7804 when applicable. Id. at Note 3. Evidence relevant to the severity of the Veteran's abdomen scar includes VA examinations and the Veteran's statements. The Veteran was afforded a VA examination for his abdomen scar in June 2011. The examiner noted that the scar is superficial with no inflammation, edema, keloid formation, or any other disabling effects. The examiner also noted that there is no skin breakdown or reports of pain. In June 2015, during a VA examination for his abdominal scar, the Veteran reported that the scar feels like it is tightening up with movement and it is painful. The examiner assessed the scar as painful, but not unstable. The scar was measured as linear, from above the navel to the proximal part of the pubic area. During a June 2017 VA examination, the examiner stated that the Veteran denied his scar is painful. The examiner opined that the abdomen scar is quiescent. During the February 2018 Board hearing, the Veteran testified that he feels pain from his scar when he stands up. In December 2019, the Veteran was afforded another VA examination for his abdomen scar where he reported moderate pain. The examiner indicated that the scar is tender to palpation. Most recently, in November 2020, the Veteran was afforded another VA examination for his abdomen scar. Current symptoms of the scar include tenderness and sensitivity to touch. The scar was found to be painful, but not unstable. The Board notes that pursuant to Layno v. Brown, 6 Vet. App. 465, 469 (1994) the Veteran is competent to report observable symptoms that come through his senses, not requiring medical expertise. The Board finds that the Veteran is competent to contend that his scar is manifested by pain and tenderness. After careful consideration, the Board finds that the evidence supports granting 10 percent rating, but no higher, for the service-connected abdomen scar as early as June 19, 2015, the date of the VA examination. The Veteran first reported pain to his abdomen scar in during the June 2015 VA examination and has consistently reported pain and tenderness to the abdomen scar site throughout the course of the appeal. Under Diagnostic Code 7804, a 10 percent rating is warranted for one or two scars that are painful or unstable. Here, the evidence supports a finding that the abdomen scar is painful and has been painful throughout the duration of the appeal, warranting a 10 percent disability rating, but no higher from June 19, 2015. Accordingly, entitlement to a rating of 10 percent for pain associated with the surgical scar, abdomen associated with shell fragment wound, Muscle Group XIX, bdomen, postoperative laparotomy from June 19, 2015 is granted. L. M. BARNARD Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Hartford, Associate Counsel The Board's decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.