Citation Nr: 21068146 Decision Date: 11/09/21 Archive Date: 11/09/21 DOCKET NO. 20-28 305A DATE: November 9, 2021 ORDER Entitlement to an initial compensable rating for scar, left thigh gunshot wound, as secondary to residual shell fragment wound, left thigh, muscle group XIV is denied. Entitlement to an increased rating in excess of 20 percent for left thigh neuropathy, as secondary to residual shell fragment wounds, left thigh, muscle group XIV, to include extraschedular consideration is denied. FINDINGS OF FACT 1. The Veteran's scar, left thigh gunshot wound, as secondary to residual shell fragment wound, left thigh, muscle group XIV measures 12 centimeters (cm) in length. 2. The Veteran's left thigh neuropathy, as secondary to residual shell fragment wounds, left thigh, muscle group XIV is manifest by no more than moderate incomplete paralysis, and the disability is not so exceptional or unusual to warrant extraschedular consideration. CONCLUSIONS OF LAW 1. The criteria for entitlement to an initial compensable rating for scar, left thigh gunshot wound, as secondary to residual shell fragment wound, left thigh, muscle group XIV have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.118, Diagnostic Code 7801. 2. The criteria for entitlement to an increased rating in excess of 20 percent for left thigh neuropathy, as secondary to residual shell fragment wounds, left thigh, muscle group XIV, to include extraschedular consideration have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.321, 4.1, 4.3, 4.124a, Diagnostic Code 8526. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty with the Army from March 1967 to May 1971. He also served in Vietnam where he earned numerous medals including the Bronze Star and Purple Heart. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2018 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). The Board notes that the Veteran's July 2020 VA Form 9 was untimely, as it was received more than 60 days after the February 2020 statement of the case. 38 C.F.R. § 19.52 (b). However, as the agency of original jurisdiction (AOJ) certified the appeal in December 2020 and the Board accepted jurisdiction of the appeal, the Board finds that the issues noted above are deemed to be in appellate status. See Percy v. Shinseki, 23 Vet. App. 37 (2009). Additionally, the Board notes that evidence was added to the claims file after the issuance of the June 2020 supplemental statement of the case. However, the Veteran waived review of the evidence by the AOJ pursuant to 38 C.F.R. § 20.1305 (c) in the April 2021 Appellate Brief. Accordingly, the Board will proceed with adjudication of the claims presently before the Board. Finally, the Board notes that the Veteran's claims regarding seborrheic dermatitis and residual shell fragment wounds, left thigh, muscle group XIV will be decided by the Board in another decision under the Appeals Modernization Act. 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. 1. Entitlement to an initial compensable rating for scar, left thigh gunshot wound, as secondary to residual shell fragment wound, left thigh, muscle group XIV The Veteran contends that his residual left thigh scar warrants a compensable rating. The Veteran's scar, left thigh gunshot wound, as secondary to residual shell fragment wound, left thigh, muscle group XIV is rated under Diagnostic Code 7801 for burn scar(s) or scar(s) due to other causes, not of the head, face, or neck, that are associated with underlying soft tissue damage. 38 C.F.R. § 4.118. Under Diagnostic Code 7801, a scar with an area or areas of at least 6 square inches (39 sq. cm.) but less than 12 square inches (77 sq. cm.) warrants a 10 percent rating. A scar with an area or areas of at least 12 square inches (77 sq. cm.) but less than 72 square inches (465 sq. cm.) warrants a 20 percent rating. A scar with an area or areas of at least 72 square inches (465 sq. cm.) but less than 144 square inches (929 sq. cm.) warrants a 30 percent rating. A scar with an area or areas of 144 square inches (929 sq. cm.) or greater warrants a 40 percent rating. 38 C.F.R. § 4.118. The evidence relevant to the severity of the Veteran's left thigh scar includes a September 2018 VA examination. During the VA examination, the Veteran denied that the scar was painful. The examiner found that the scar was neither painful nor unstable and is located on the left anterior mid-thigh. The scar is linear measuring 12 cm in length. There was no evidence of elevation, depression, or adherence to underlying soft tissue. Neither the Veteran's VA treatment records nor his private medical records contain any complaints of, or treatment related to the left thigh scar. After careful consideration of the evidence, the Board finds that the preponderance of the evidence is against the assignment of a compensable rating under Diagnostic Code 7801 because the Veteran's left thigh scar covers an area less than 6 square inches (39 sq. cm.). The only relevant evidence of record includes the September 2018 VA examination where the scar was measured as only 12 centimeters in length. The Board has also considered the other Diagnostic Codes pertaining to scars. However, the Veteran's left thigh scar is not on the head, face, or neck. Although it is superficial and not associated with underlying soft tissue damage, it does not cover an area or areas of 144 square inches or greater. Moreover, the Veteran's left thigh scar is not unstable or painful. Therefore, Diagnostic Codes 7800, 7802, and 7804, are inapplicable. Finally, the evidence of record shows there are no other disabling effects not considered in a rating provided under Diagnostic Codes 7800-04, Diagnostic Code 7805. The Board notes that the Veteran is already in receipt of compensable evaluations under Diagnostic Codes 5314 and 8526 for residual symptoms related to the injury resulting in the left thigh scar. The Board acknowledges that the Veteran believes that the disability on appeal has been more severe than the assigned disability rating reflects. However, he does not assert, and medical records do not show, that the Veteran's left thigh scar is manifest by an area or areas of at least 6 square inches (39 sq. cm.) but less than 12 square inches (77 sq. cm.). In conclusion, the Board finds that the preponderance of the evidence is against the Veteran's claim for a compensable rating for scar, left thigh gunshot wound, as secondary to residual shell fragment wound, left thigh, muscle group XIV. 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. 2. Entitlement to an increased rating in excess of 20 percent for left thigh neuropathy, as secondary to residual shell fragment wounds, left thigh, muscle group XIV, to include extraschedular consideration The Veteran contends that he is entitled to a higher rating for his left thigh neuropathy to include an extraschedular rating based on exceptional and unusual symptoms. See Appellate Brief dated April 2021. The Veteran's left thigh neuropathy is rated under Diagnostic Code 8526, for paralysis of the anterior crural nerve (femoral). 38 C.F.R. § 4.124a. Under these criteria, mild incomplete paralysis is rated as 10 percent disabling. Moderate incomplete paralysis is rated as 20 percent disabling. Severe incomplete paralysis is rated as 30 percent disabling. Complete paralysis of the quadriceps extensor muscles is rated as 40 percent disabling. Id. The words "mild," "moderate," and "severe" as used in the various Diagnostic Codes are not defined in the Rating Schedule. Regulations provide that ratings for peripheral neurological disorders are to be assigned based the relative impairment of motor function, trophic changes, or sensory disturbance. 38 C.F.R. § 4.120. Consideration is also given for loss of reflexes, pain, and muscle atrophy. See 38 C.F.R. §§ 4.123, 4.124. The term "incomplete paralysis" indicates a degree of lost or impaired function substantially less than the type picture 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 is for the mild, or at most, the moderate degree. The disability ratings for the peripheral nerves are for unilateral involvement; when bilateral, the ratings combine with application of the bilateral factor. 38 C.F.R. § 4.124a, Note at "Diseases of the Peripheral Nerves." The Note to 38 C.F.R. § 4.124a establishes a maximum disability rating for conditions that are wholly sensory, as opposed to a minimum disability rating for conditions that are more than wholly sensory. See Miller v. Shulkin, 28 Vet. App. 376 (2017). The evidence relevant to the severity of the Veteran's left thigh neuropathy includes a September 2018 VA examination. During the examination, the Veteran complained of having left thigh numbness that began in 1970 after he suffered a shrapnel injury to his left thigh during combat. He stated that he had surgery and developed numbness in the left distal thigh. The examiner determined that the symptoms of the left thigh neuropathy include numbness of moderate severity. His muscle strength testing and reflex exam was normal. His sensory exam revealed decreased sensation to light touch on the left thigh/knee. There were no trophic changes, his gait was normal, and he does not use assistive devices. The affected nerve was the anterior crural nerve (femoral) on the left lower extremity. The examiner determined that the affected nerve was manifest by incomplete paralysis of moderate severity. The examiner also noted muscle atrophy in the left quadriceps, measuring 37 cm on the right side and 36 cm on the left side. Finally, the examiner opined that the Veteran's condition does not impact his ability to work. The Veteran's VA treatment records and private medical records do not contain any complaints of, or treatment related to his left thigh neuropathy. Based on the above, the Board finds that the disability is primarily manifest by sensory disturbance and muscle atrophy. However, the Veteran is already in receipt of a 40 percent rating under Diagnostic Code 5314 for a severe muscle group XIV injury, which explicitly considers the Veteran's muscle atrophy for warranting a 40 percent rating. Thus, the Board finds that considering the Veteran's muscle atrophy when evaluating the left thigh neuropathy would overcompensate the Veteran and violate the rule against pyramiding. 38 C.F.R. § 4.14; see also Esteban v. Brown, 6 Vet. App. 259 (1994) (finding that distinct and separate symptomatology should be rated separately). Consequently, the Board will only consider the Veteran's sensory disturbance when evaluating the severity of his left thigh neuropathy. After careful consideration of the evidence of record, the Board finds that the most probative evidence of record is against a finding that the disability is manifest by moderately severe sensory disturbance. The September 2018 VA examination reveals that the Veteran's only symptom is numbness. The Veteran did not indicate that his numbness impacts his ability to complete activities of daily living. He does not use assistive devices and has a normal gait despite his numbness. Further, the September 2018 VA examiner opined that the Veteran's numbness was only of moderate severity. The Board thus finds that the level of impairment is most analogous to moderate incomplete paralysis. The Board has considered all other potentially applicable Diagnostic Codes, but there is no evidence showing the Veteran has neurological impairment associated with any other peripheral nerves that have not already been service-connected. Therefore, a separate or higher rating under a different Diagnostic Code is not warranted. The Board acknowledges the Veteran's assertions, in April 2021, that he is entitled to consideration of an extraschedular rating for his left thigh peripheral neuropathy. Consideration of an extraschedular rating requires a three-step inquiry. The first question is whether the schedular rating criteria adequately contemplate the Veteran's disability picture. If the schedular evaluation does not contemplate the level of disability and symptomatology shown and is found inadequate, then the second inquiry is whether the exceptional disability picture exhibits other related factors, such as marked interference with employment or frequent periods of hospitalization. See Thun v. Peake, 22 Vet. App. 111 (2008). The first Thun element compares a claimant's symptoms to the rating criteria, while the second addresses the resulting effects of those symptoms. Thus, the first and second Thun elements, although interrelated, involve separate and distinct analyses. Yancy v. McDonald, 27 Vet. App. 484, 495 (2016). If the Veteran's disability picture meets the second inquiry, then the third step is to refer the case to the Director of Compensation Services to determine whether an extraschedular rating is warranted. See Thun, 22 Vet. App. 111. Regarding the first element, comparison of the Veteran's symptoms and associated functional impairment does not show that the rating criteria are inadequate to describe his disability picture. The Veteran's left thigh neuropathy is rated under Diagnostic Code 8526. The record shows that he has complaints and findings of numbness associated with his disability. Here, the Veteran's left thigh neuropathy manifestations are reasonably contemplated by Diagnostic Code 8526. The threshold issue under Thun is thus not met, and further consideration of an extraschedular rating is not warranted. In conclusion, the Board finds that the preponderance of the evidence is against the Veteran's claim for a rating in excess of 20 percent for left thigh peripheral neuropathy. 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. 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.