BVA9404339
DOCKET NO.  90-48 655     )       DATE
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THE ISSUES

1.  Entitlement to an increased rating for residuals of a shell
fragment wound to the right thigh, currently evaluated as 30 percent
disabling.

2.  Entitlement to a compensable rating for residuals of a shell
fragment wound to the right forearm.

3.  Entitlement to restoration of a compensable rating for defective
hearing in the left ear.

REPRESENTATION

Appellant represented by: Department of Veterans Service,
Massachusetts

WITNESS AT HEARINGS ON APPEAL

The veteran

ATTORNEY FOR THE BOARD

R. L. Shaw, Counsel

INTRODUCTION

The veteran had active military service from September 1941 to July
1945.

This matter is before the Board of Veterans' Appeals (the Board) on
appeal from a February 28, 1989, rating decision by the Boston,
Massachusetts, Regional Office (RO) of the Department of Veterans
Affairs (VA), which denied claims for increased ratings for shell
fragment wounds of the right thigh and right forearm and reduced the
rating for defective hearing in the left ear from 20 percent to
noncompensable as of June 1, 1989.  A notice of disagreement was
received on April 10, 1989.  The veteran testified at a hearing at
the RO on June 27, 1989; by a decision dated August 10, 1989, the
hearing officer continued the denials.  The statement of the case was
issued on September 26, 1989.  A substantive appeal (VA Form 1-9) was
received on October 5, 1989.  The veteran testified at a second
hearing on May 31, 1990; on June 18, 1990, the hearing officer again
continued the denials.  The case was received at the Board on
November 6, 1990, and docketed on November 16, 1990.

On May 30, 1991, the Board remanded the case to the RO for initial
consideration of additional evidence submitted by the veteran and for
issuance of an original statement of the case pertaining to the issue
involving the rating for the right forearm.  An original statement of
the case on this matter was issued on January 14, 1990.  On April 3,
1992, the RO continued the denial of a compensable rating for
defective hearing.  A hearing was held at the RO on June 22, 1992; on
September 24, 1992, the hearing officer confirmed the denial as to
all issues.  On November 30, 1992, the rating board confirmed the
denials with respect to the shell fragment wound residuals.  A
supplemental statement of the case was issued on August 21, 1993.
The case was received at the Board on November 29, 1993, and
redocketed on December 3, 1993.  The veteran is represented on appeal
by the Massachusetts Department of Veterans Services.

CONTENTIONS OF APPELLANT ON APPEAL

The veteran contends that as a result of residuals of a shell
fragment wound received during military service, he has constant pain
in the right thigh which requires the use of a heating pad for
relief.  He states that the pain extends into the foot and that he
has used a cane for some time.  He maintains that he also has pain
and discomfort in the right forearm which extend down onto the hand
and fingers and that he uses a heating pad for this pain also.  The
veteran further contends that his hearing loss is worsening and that
the disability rating should not have been reduced to noncompensable;
he requests that a 20 percent rating be reinstated from June 1, 1989.
He argues that test results obtained by private audiologists have not
received proper consideration as evidence of hearing loss.

DECISION OF THE BOARD

The Board, in accordance with the provisions of 38 U.S.C.A. § 7104
(West 1991), has reviewed and considered all of the evidence and
material of record in the veteran's claims file.  The Board has
determined that only those items listed in the "Certified List"
attached to this decision and incorporated by reference herein are
relevant evidence in the consideration of the veteran's claim.  Based
on its review of the relevant evidence in this matter, and for the
following reasons and bases, it is the decision of the Board that a
preponderance of the evidence is against the claims for increased
ratings for residuals of shell fragment wounds of the right thigh and
right forearm.  It is the further decision of the Board that
assignment of a 10 percent rating for defective hearing in the left
ear is warranted from June 1, 1989.

FINDINGS OF FACT

1.  The evidence required for proper adjudication of the issues on
appeal has been obtained.

2.  Residuals of a shell fragment wound to the right thigh consist of
a small asymptomatic scar and complaints of pain in the extremity,
without objective evidence of loss of muscle substance, atrophy or
impaired muscle function.

3.  No more than moderately severe damage to Muscle Group XIV has
been demonstrated.

4.  Residuals of a shell fragment wound to the right forearm consist
of a small asymptomatic scar without objective evidence of impairment
of function of the extremity.

5.  No more than slight damage to the right forearm has been
demonstrated.

6.  Service connection is in effect for defective hearing in the left
ear; nonservice-connected hearing loss in the right ear is less than
total.

7.  The veteran has a mixed hearing loss of moderate degree in the
left ear.

8.  The literal designation for the level of hearing loss in the left
ear is E under the old rating criteria.

CONCLUSIONS OF LAW

1.  The criteria for a rating higher than 30 percent for residuals of
a shell fragment wound to the right thigh are not met.  38 U.S.C.A.
§§ 1155, 5107(a), 7104 (West 1991); 38 C.F.R. § 3.321 and Part 4,
Code 5314 (1993).

2.  The criteria for a compensable rating for residuals of a shell
fragment wound to the right forearm are not met.  38 U.S.C.A.
§§ 1155, 5107(a), 7104 (West 1991); 38 C.F.R. § 3.321 and Part 4,
Codes 5307, 5308, 7803, 7804, 7805 (1993).

3.  The rating decision of September 14, 1981, involved clear and
unmistakable error in the assignment of a 20 percent rating for
defective hearing in the left ear.  38 U.S.C.A. §§ 1155, 1160,
5107(a), 7104 (West 1991); 38 C.F.R. § 3.105(a), Part 4, Code 6291
(as in effect before December 18, 1987).

4.  Restoration of a 10 percent for defective hearing in the left ear
during the period beginning on June 1, 1989, are met.  38 U.S.C.A.
§§ 1155, 1160, 5107(a), 7104 (West 1991); 38 C.F.R. Part 4, Code 6291
(as in effect before December 18, 1987).

5.  The criteria for a rating higher than 10 percent for defective
hearing in the left ear during the period since June 1, 1989, are not
met.  38 U.S.C.A. §§ 1155, 1160, 5107(a), 7104 (West 1991); 38 C.F.R.
Part 4, Code 6100 (1993).

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I.  Shell Fragment Wound to the Right Thigh

Background.  The service medical records show that on September 20,
1944, during combat in Italy, the veteran sustained shrapnel wounds
to the right thigh as the result of a mine explosion.  There was a
slight penetrating injury located 6 centimeters above the knee.
X-rays showed a metallic fragment on the lateral aspect of the thigh
in the distal third with a chip or periosteal fracture of the right
femur.  The fragment was surgically removed and there was secondary
closure of the wound.  Hospital treatment included physical therapy.
The veteran returned to duty on October 21, 1944.

The veteran underwent a VA examination in January 1949, at which time
a well-healed and well-nourished shrapnel scar measuring 1 inch by
3/4 inch was found on the right anterior thigh.  There was no atrophy
or limitation of function.  The veteran complained that the legs
sometimes ached on standing.

Service connection for residuals of a right leg wound was granted in
August 1945; a 20 percent rating was assigned under Code 3176 of the
1933 VA Rating Schedule.  The claim was reviewed in February 1949
under the 1945 Rating Schedule (38 C.F.R. § Part 4) and a 30 percent
rating was assigned from April 1, 1946.

At a VA examination in August 1968 the veteran complained that there
was pain, stiffness and soreness in his leg and that it was hard for
him to stand for long periods.  Examination showed a scar on the
lateral distal right femur without loss of subcutaneous tissue.
There were no palpable underlying bony changes, limitation of motion
or atrophy.  X-rays were negative.  The leg was again examined in
April 1974, at which time he squatted with some difficulty and
extended his right leg a bit ahead of the left.  The scar was
asymptomatic and nontender.  There was equal power in both knees.
The diagnosis was penetrating wound of the outer aspect of the right
lower thigh with moderate weakness in the knee and leg.

A claim for an increased rating was received in October 1988.  At a
VA examination in January 1989, the scar on the right upper leg
measured 3 centimeters by 2 centimeters and was nontender.  There was
a slight limp on the right leg.  The range of motion was from 140
degrees of flexion to 0 degrees of extension.  There was no crepitus,
swelling, effusion, locking or instability of the knee.  There was
good muscle development without atrophy or gross weakness of the
quadriceps.

The veteran underwent a VA examination in October 1992, at which time
he complained of increasing discomfort in the right lower and upper
legs.  Physical findings were essentially minimal, with a well-healed
1-inch scar and excellent range of motion.  At a subsequent
examination, in June 1993, the veteran complained of pain in both
knees.  A slight depression was noted at the site of the thigh scar
with no localized tenderness or evidence of deep tissue loss.
Flexion was limited to 90 degrees.  The bilateral knee pain was
thought to be due to arthritis.

Analysis.  The current 30 percent rating for residuals of the right
thigh wound was assigned under Diagnostic Code 5314 on the basis of
moderately severe damage to Muscle Group XIV, the anterior thigh
group.  To warrant the next higher rating of 40 percent, severe
damage to Muscle Group XIV must be shown.  38 C.F.R. Part 4, Code
5314 (1993).

The relevant medical evidence shows that a small well-healed scar on
the thigh is the only objectively verifiable residual of the wound in
service.  While the veteran complains of cramping and discomfort in
the leg which has increased in recent years and for which he uses a
heating pad, there is no indication of muscle atrophy, weakness, loss
of muscle substance, or loss of muscle tone.  It appears that some of
the pain in the knees may be due to arthritis.  In any case, these
residuals are clearly encompassed within the regulatory definition of
"moderately severe" muscle injury which, under 38 C.F.R. § 4.56,
provides that moderately severe disability contemplates a
through-and-through or deep penetrating wound by a high velocity
missile of small size with debridement or prolonged infection,
sloughing of soft parts and intermuscular cicatrization.  Objective
findings of moderately severe muscle injury include relatively large
entrance scars, moderate loss of deep fascia, muscle substance, or
loss of normal firm resistance.  Neither do such residuals satisfy
the regulatory definition of "severe" muscle injury, which requires
objective findings such as extensive ragged, depressed and adherent
scars, moderate or extensive loss of deep fascia or muscle substance,
soft or flabby muscles in the wound area, severe impairment of muscle
function, atrophy of muscle groups and induration of an entire muscle
group.

The Board therefore finds that a preponderance of the evidence is
against the claim for an increased rating under the rating schedule.
38 U.S.C.A. 5107(b) (West 1991).  However, though a schedular
increase is not warranted, a determination must be made as to whether
the veteran is entitled to an extraschedular rating, which is
assignable by regulation when "the case presents such an exceptional
or unusual disability picture, with such related factors as marked
interference with employment or frequent periods of hospitalization
as to render impractical the application of the regular schedular
standards."  38 C.F.R. § 3.321(b) (1993).  The veteran has been
unemployed for many years.  Though he has received extensive medical
treatment at VA facilities over the years, with numerous
hospitalizations since 1980, the treatment has involved medical
disorders other than shell fragment wound residuals.  No
circumstances which might properly be deemed "exceptional" have been
demonstrated.  We find that the schedular criteria are fully adequate
for a proper evaluation of the thigh disability, as shown in the
record.  The United States Court of Veterans Appeals (Court) has held
that the decision by an RO to refer or not refer a claim for increase
to the Compensation and Pension Service for consideration of an
extraschedular rating constitutes an adjudication subject to review
by the Board and the Court.  Fisher v. Principi, 4 Vet.App. 57
(1993).  The record does not show whether such a referral was
contemplated by the RO; however, since no exceptional or unusual
circumstances exist, we find that the veteran was not prejudiced by
this omission.

II.  Shell Fragment Wound to the Right Forearm

Background.  The service medical records contain no reference to
treatment of a wound of the right arm other than a notation in the
report of examination at separation of a wound to the right arm in
September 1944.  No defect of the right arm was noted at that time.
At the January 1949 VA examination, a 1/2-inch scar was noted on the
midright forearm.  The scar was superficial and there was no
limitation of function.  The veteran stated that the arm ached
sometimes.  X-rays showed no metallic foreign bodies in the soft
tissues of the forearm.

At the VA examination of April 1974 the veteran claimed that the scar
of the right elbow had not been repaired because it was not extensive
enough.  He claimed that this had resulted in a "nervous hand," with
trembling of fingers.  All motions of the arm were normal.  There was
a 1/2-inch long scar near the lateral epicondyle of the right elbow
which was well healed.  There was a slight tremor of the fingers of
both hands.  The grip was firm and the fine motions of the hands were
well performed.  The pertinent diagnosis was scar of the right elbow,
asymptomatic.

Service connection for residuals of a shell fragment wound to the
right forearm was granted by a rating decision of September 13, 1974.
A noncompensable rating was assigned under Diagnostic Code 7805 from
September 4, 1974.

A claim for a compensable rating for a right forearm wound was
received in October 1988.  A VA examination was performed in June
1993.  It was reported that debridement of the wound had been
performed in service and that the injury had healed rather promptly.
The veteran complained of some pain and occasional weakness in the
right arm but indicated that at other times he was able to use the
arm perfectly well.  Examination showed a 1.2-centimeter scar on the
right midforearm which was well healed without evidence of loss of
deep tissue or atrophy of underlying muscle tissue.  There was no
keloid formation or tenderness.  The examiner characterized the
cosmetic effect as negligible.  It was noted that the veteran had a
poor grasp of the right hand, but the examiner did not believe this
was attributable to the shrapnel injury.  The diagnosis was status
post shrapnel injury to the right forearm.

Analysis.  The wound residuals are currently rated under Diagnostic
Code 7805 of the VA rating schedule, pertaining to scars, wherein it
is specified that scars will be rated on the basis of limitation of
function of the affected part.  38 C.F.R. § Part 4, Code 7805 (1993).
Other scar codes, specifically Codes 7803 and 7804, permit a
10 percent rating for superficial scars which are poorly nourished
with repeated ulceration or which are tender and painful on objective
demonstration.  38 C.F.R. § Part 4, Codes 7803, 7804 (1993).

The post service VA examinations are entirely consistent in showing
that the scar on the right forearm is entirely asymptomatic.  There
is no objective evidence of ulceration or tenderness; it is not
otherwise contended.  Clearly, a compensable rating is not warranted
under the scar codes.

While the record contains no documents showing the extent of the
original injury, the fact that debridement was reportedly performed
suggests that at least some muscle damage was involved; therefore,
the veteran is entitled to review of his claim for increase under the
codes relating to muscle damage.  Under the rating schedule, injury
to the forearm muscles is rated under Codes 5307 and 5308 pertaining
to Muscle Groups VII (the muscles arising from the internal condyle
of the humerus) and VIII (the muscles arising mainly from the
external condyle of the humerus).  Under either code, a
noncompensable rating is provided for slight muscle damage and a
10 percent rating is provided for moderate muscle damage (major or
minor extremity).  38 C.F.R. Codes 5307, 5308 (1993).  In this case,
the VA examination reports contain no indication of the objective
signs cited in the regulation as objective indications of moderate
muscle injury such as moderate loss of deep fascia or muscle
substance or muscle tone or a definite weakness or fatigue in
comparative tests, though a weakened grip was noted by the examiner
in June 1993.  The loss of grip strength noted by the VA examiner in
June 1993 was considered unrelated to the forearm wound.  To the
extent that there was muscle damage in service, such injury must be
regarded as having been of no more than slight degree.

The Board finds that the preponderance of the evidence is against the
claim for an increased rating for the right forearm.  38 U.S.C.A.
§ 5107(b) (West 1991).  As with the thigh wound no exceptional
circumstances exist such as to warrant the assignment of an
extraschedular evaluation.  38 C.F.R. § 3.321(b)(3) (1993).

III.  Defective Hearing in the Left Ear

Background.  The veteran's original claim for service connection for
defective hearing was denied by a rating decision of February 17,
1949; the veteran did not appeal.  The veteran subsequently attempted
to reopen his claim, but the prior denial was confirmed and continued
by a rating decision of December 11, 1951.  The denial was upheld by
the Board of Veterans' Appeals in a decision of March 17, 1952.  By a
reconsideration decision of January 29, 1976, the Board recommended
to the Chairman of the Board that the claim of service connection for
the left ear be allowed administratively; the administrative
allowance was approved, effective September 4, 1974.

A 10 percent rating was subsequently assigned by a rating board from
September 4, 1974, under Diagnostic Code 6287 of the VA Rating
Schedule (38 C.F.R. Part 4) on the basis of audiometric testing
performed in April 1974, at which time the audiologist certified that
pure tone audiometry offered the best test of organic hearing loss.
The speech reception thresholds were 70 decibels in the left ear and
50 decibels in the right ear.  Speech discrimination ability was 96
percent in the left ear and 100 percent in the right ear.

The veteran requested an increased rating in July 1980.  On
audiometric testing in May 1981 the average pure tone threshold in
the left ear at 500, 1,000, and 2,000 hertz, was 82 decibels.  Speech
discrimination ability was 88 percent.  By a rating decision of
September 14, 1981, a 20 percent rating was assigned under Diagnostic
Code 6286 from July 23, 1980, the date of the claim for increase.  By
the same rating action, service connection for defective hearing in
the right ear was denied.  The veteran did not appeal.

A claim for an increased rating was received from the veteran on
October 5, 1988.  Audiometric testing was performed at a VA facility
in January 1989.  The average pure tone threshold in the left ear at
1,000, 2,000, 3,000 and 4,000 hertz was "90 plus" and speech
discrimination score was 92 percent under Maryland CNC test.  The
claim was reviewed by a rating board on February 28, 1989, under the
revised rating criteria for defective hearing which went into effect
on December 18, 1987; a noncompensable rating was assigned under
Diagnostic Code 6100 from June 1, 1989.

Additional VA audiometric testing was performed in September 1991, at
which time the average pure tone thresholds at 1,000, 2,000, 3,000
and 4,000 hertz was "94 plus" in the left ear with a speech
discrimination score of 82 percent.  The average pure tone threshold
at these frequencies was 56 decibels in the right ear with a speech
recognition score of 88 percent.  These findings were interpreted to
show sensorineural hearing loss in the right ear and mixed-type
hearing loss in the left ear.  In support of his claim the veteran
has also submitted a copy of audiometric testing performed in October
1989 by A. Cuthbertson, a private audiologist, and the report of
private audiometric studies performed in May 1992.

Analysis.  The original 20 percent rating awarded from September 1984
was assigned under rating criteria which were later superseded by new
criteria which became effective on December 18, 1987.  (38 C.F.R.
Part 4, Codes 6287 through 6298, as in effect through December 17,
1987.)  The current noncompensable rating reflects application of the
revised criteria.  (38 C.F.R. Part 4, Codes 6100 through 6111).  For
reasons to be explained herein, the veteran's claim for reinstatement
of the 20 percent rating must be considered under both the new and
old versions of the rating schedule.

Under the criteria in effect before December 18, 1987, evaluations
for defective hearing were based on organic impairment of hearing
acuity within the conversational voice range, as measured by
controlled speech or other audiometric tests.  Ratings from
noncompensable to 80 percent were assignable under 6 levels of
auditory acuity for which literal designations of A (normal hearing)
through F (profound hearing loss) had been established.  Where
service connection was established for one ear only, hearing acuity
in the nonservice-connected ear was considered normal and received a
literal designation of A unless the hearing loss in that ear was
total, in which case a literal designation of F was assigned for that
ear.  In cases where the nonservice-connected ear was deemed to be at
the A level, a 10 percent rating was assignable when the service-
connected ear was evaluated at level D, E or F.  38 U.S.C.A. § 1160;
38 C.F.R. Part 4, Codes 6277 through 6297, as in effect through
December 17, 1987.

Under these criteria, the hearing deficit shown on VA audiometric
testing in 1974 and 1981 was level D, in the service-connected left
ear; since the right ear was not totally deaf, literal designations
of A for the right ear and D for the left ear translated to a
10 percent rating.  A 10 percent evaluation was correctly applied in
1974, but the rating was incorrectly raised to 20 percent in 1981.
Since a 20 percent rating would have been assignable if service
connection had been for a bilateral condition, it is likely that the
unilateral character of the service connection grant was merely
overlooked.  In any case, the rating decision of September 14, 1981,
was clearly erroneous in assigning a rating above 10 percent, and
this error precludes the reinstatement of a 20 percent rating.
38 U.S.C.A. § 7105 (West 1991); 38 C.F.R. § 3.105(a) (1993).

The current noncompensable rating reflects application of the revised
rating criteria which went into effect on December 18, 1987.  Under
the revised criteria, ratings for defective hearing are established
according to the degree of hearing impairment at 1,000, 2,000, 3,000
and 4,000 hertz, in combination with the degree of speech
discrimination ability.  38 C.F.R. § 4.85 and Part 4, Codes 6100-6111
(1993).  These provisions set forth eleven levels of auditory acuity
designated as level I for essentially normal hearing through level XI
for profound deafness.  When the service-connected hearing deficit is
unilateral, a maximum rating of 10 percent is assignable where
hearing in the service-connected ear is at level X or XI.
38 U.S.C.A. § 1160(a) (West 1991); 38 C.F.R. § 4.85 and Part 4,
Codes 6100 to 6111, effective December 18, 1987.  The VA testing in
January 1989 and September 1991 showed auditory acuity levels of III
and V, respectively, in the left ear; in combination with level I
hearing for the nonservice-connected right ear, these figures require
a noncompensable rating under Diagnostic Code 6100.

However, the application of the rating schedule in this case is
affected by a decision of the United States Court of Veterans
Appeals, Fugere v. Derwinski, 1 Vet.App. 103 (1990), which held that
in deciding an appeal by this particular claimant, the Board had
failed to comply with the provisions of the Administrative Procedures
Act, and with its own policies and regulations, in deleting paragraph
50.13(b) of the Adjudication Procedure Manual (M21-1) without giving
notice and an opportunity for comment.  The deleted paragraph had
protected veterans against a decrease in benefits resulting from
changed rating criteria or testing methods if there had been no
change in the degree of hearing loss.  This ruling was subsequently
upheld by the United States Court of Appeals for the Federal Circuit.
Fugere v. Derwinski, 972 F. 2d. 331 (Fed. Cir. 1992).  The ruling in
the Fugere case is binding upon the Board of Veterans' Appeals; the
10 percent rating for the left ear may not be reduced until such time
as paragraph 50.13(b) of M21-1 is changed pursuant to the correct
procedures or the veteran's hearing acuity improves to such an extent
that a reduction is warranted under the old criteria.  It is clear
from a sequential review of audiometric test results over the years
that no improvement of hearing in the left ear has occurred.

In support of his claim for restoration of the 20 percent rating the
veteran has submitted audiograms from two private audiologists.  Both
audiograms show a level of hearing deficit in the left ear which
approximates that reported by VA examiners; level VII in the left ear
was reported by Mr. Cuthbertson in October 1989 and level V hearing
was reported by the other examiner in May 1992.  The veteran notes
that he must use hearing aids for both ears on a constant basis, but
VA regulations provide that evaluations derived from the rating
schedule are intended to make proper allowance for improvement by
hearing aids.  38 C.F.R. § 4.86 (1993).

The Board therefore finds that continuation of a 10 percent rating
for defective hearing in the left ear is warranted from June 1, 1989,
but that a preponderance of the evidence is against the claim for an
increased rating for the period since that date.  38 U.S.C.A. 5107(b)
(West 1991).

ORDER

Restoration of a compensable rating for defective hearing in the left
ear is granted to the extent indicated from June 1, 1989, subject to
the criteria governing the payment of monetary awards.

Increased ratings for residuals of shrapnel wounds to the right thigh
and right forearm are denied.

BOARD OF VETERANS' APPEALS
WASHINGTON, D.C.  20420

          STEPHEN L. WILKINS      U. H. ANG, M.D.

          DANIEL J. STEIN

NOTICE OF APPELLATE RIGHTS:  Under 38 U.S.C.A. § 7266 (West 1991), a
decision of the Board of Veterans' Appeals granting less than the
complete benefit, or benefits, sought on appeal is appealable to the
United States Court of Veterans Appeals within 120 days from the date
of mailing of notice of the decision, provided that a Notice of
Disagreement concerning an issue which was before the Board was filed
with the agency of original jurisdiction on or after November 18,
1988.  Veterans' Judicial Review Act, Pub. L. No. 100-687, § 402
(1988).  The date which appears on the face of this decision
constitutes the date of mailing and the copy of this decision which
you have received is your notice of the action taken on your appeal
by the Board of Veterans' Appeals.