Citation Nr: 0810826 Decision Date: 04/02/08 Archive Date: 04/14/08 DOCKET NO. 05-25 022 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Detroit, Michigan THE ISSUES 1. Entitlement to an evaluation in excess of 10 percent disabling for a fragment wound of the right flank with laceration of the liver. 2. Entitlement to an evaluation in excess of 20 percent disabling for a gunshot wound (GSW) of the right chest with a retained foreign body (RFB). REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD L. L. Mollan, Associate Counsel INTRODUCTION The veteran served on active duty from October 1966 to June 1970. These matters come before the Board of Veterans' Appeals (Board) on merged appeal from a March 2004 RO decision, which denied a claim for an evaluation in excess of 20 percent disabling for a GSW of the right chest with RFB, and a November 2005 RO decision, which denied a claim for an evaluation in excess of 10 percent disabling for a fragment wound of the right flank. The Board notes that the veteran submitted a timely VA Form 9 Appeal in August 2005 in regards to the issue of entitlement to service connection for a burn scar of the left hand. This claim for service connection was granted in a January 2006 RO decision. This decision is a complete grants of benefits with respect to this issue. See Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997). Therefore, this issue is not currently before the Board. The issue of entitlement to an evaluation in excess of 20 percent disabling for a GSW of the right chest with a RFB is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDING OF FACT The veteran's fragment wound of the right flank with laceration of the liver is productive of subjective complaints of abdominal discomfort, and a painful and tender scar. Objective studies reveal: normal liver function; and a flat, superficial, and non-adherent scar. CONCLUSION OF LAW The criteria for an evaluation in excess of 10 percent disabling for a fragment wound o the right flank with laceration of the liver have not been met. See 38 U.S.C.A. §§ 1155, 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2006); 38 C.F.R. §§ 3.159, 3.321, 4.73, Diagnostic Code 5319 (2007). REASONS AND BASES FOR FINDING AND CONCLUSION I. Veterans Claims Assistance Act of 2000 (VCAA) With respect to the veteran's claim, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2006); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2007). Under the VCAA, when VA receives a complete or substantially complete application for benefits, it is required to notify the claimant and his representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b) (2007); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II), the United States Court of Appeals for Veterans Claims (Court) held that VA 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; (3) that the claimant is expected to provide; and (4) request that the claimant provide any evidence in his possession that pertains to the claim. VCAA letters dated in December 2003 and June 2005 fully satisfied the duty to notify provisions elements 2, 3, and 4. 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b)(1) (2007); Quartuccio, at 187; Pelegrini II. In order to satisfy the first Pelegrini II element for an increased-compensation claim, section 5103(a) compliant notice must meet the following four part test: (1) that the Secretary notify the claimant that, to substantiate a claim, the claimant must provide, or ask the Secretary to obtain, medical or lay evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on the claimant's employment and daily life; (2) if the Diagnostic Code under which the claimant is rated contains criteria necessary for entitlement to a higher disability rating that would not be satisfied by the claimant demonstrating a noticeable worsening or increase in severity of the disability and the effect of that worsening has on the claimant's employment and daily life (such as a specific measurement or test result), the Secretary must provide at least general notice of that requirement to the claimant; (3) the claimant must be notified that, should an increase in disability be found, a disability rating will be determined by applying relevant Diagnostic Codes, which typically provide for a range in severity of a particular disability from noncompensable to as much as 100 percent (depending on the disability involved), based on the nature of the symptoms of the condition for which disability compensation is being sought, their severity and duration, and their impact upon employment and daily life; (4) the notice must also provide examples of the types of medical and lay evidence that the claimant may submit (or ask the Secretary to obtain) that are relevant to establishing entitlement to increased compensation, e.g., competent lay statements describing symptoms, medical and hospitalization records, medical statements, employer statements, job application rejections, and any other evidence showing an increase in the disability or exceptional circumstances relating to the disability. Vazquez-Flores v. Peake, 22 Vet. App. 37, (2008). For the following reasons, the Board finds that any defects with regard to the Vazquez-Flores test are non-prejudicial. Preliminarily, the Board notes that the notice provided in this case was issued prior to the decision in Vazquez- Flores. As such it does not take the form prescribed in that case. Failure to provide pre-adjudicative notice of any of the necessary duty to notify elements is presumed to create prejudicial error. Sanders v. Nicholson, 487 F.3d 881 (2007). The Secretary has the burden to show that this error was not prejudicial to the veteran. Id., at 889. Lack of prejudicial harm may be shown in three ways: (1) that any defect was cured by actual knowledge on the part of the claimant, (2) that a reasonable person could be expected to understand from the notice what was needed, or (3) that a benefit could not have been awarded as a matter of law. Id., at 887; see also Mayfield v. Nicholson, 19 Vet. App. 103, (2005), rev'd on other grounds, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). The Federal Circuit indicated that this was not an exclusive list of ways that error may be shown to be non prejudicial. See Sanders, at 889. In order for the Court to be persuaded that no prejudice resulted from a notice error, the record must demonstrate that, despite the error, the adjudication was nevertheless essentially fair."). See also Dunlap v. Nicholson, 21 Vet. App. 112, 118 (2007). In December 2003 and June 2005, the RO sent the veteran VCAA letters, which requested that the veteran provide evidence describing how his disability had worsened. In addition, the veteran was questioned about his employment and daily life during the course of the September 2005 VA examination performed in association with this claim. The veteran provided statements at this examinations in which he details the impact of his disability on his daily life. The Board finds that the notice given, the questions directly asked, and the responses provided by the veteran show that he knew that the evidence needed to show that his disability had worsened and what impact that had on his employment and daily life. As the Board finds the veteran had actual knowledge of the requirement, any failure to provide him with adequate notice is not prejudicial. See Sanders, supra. The Board finds that the first criterion is satisfied. See Vazquez- Flores. As to the second element, the Board notes that the veteran is service-connected for a fragment wound of the right flank with laceration of the liver. As will be discussed below, the veteran's service-connected disability is rated under Diagnostic Code 5319, 38 C.F.R. 4.73. Entitlement to higher a disability rating would be satisfied by evidence demonstrating a noticeable worsening or increase in severity of the disability and the effects that worsening has on the claimant's employment and daily life. See id. The Board finds that no more specific notice is required of VA and that any error in not providing the rating criteria is harmless. See Vazquez-Flores. While notification of the specific rating criteria was not specifically provided in the preadjudicative notice letters, no useful purpose would be served in remanding this matter for yet more development. Such a remand would result in unnecessarily imposing additional burdens on VA, with no additional benefit flowing to the veteran. The Court has held that such remands are to be avoided. See Winters v. West, 12 Vet. App. 203 (1999) (en banc), vacated on other grounds sub nom. Winters v. Gober, 219 F.3d 1375 (Fed. Cir. 2000); Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). See also Livesay v. Principi, 15 Vet. App. 165, 178 (2001) (en banc). As to the third element, the Board notes that the veteran was not provided a notice letter that a disability rating would be determined by application of the ratings schedule and relevant Diagnostic Codes based on the extent and duration of the signs and symptoms of his disability and their impact on his employment and daily life. See Vazquez-Flores. The Board notes that the ratings schedule is the sole mechanism by which a veteran can be rated, here. See 38 C.F.R. Part 4 (2007). Neither the Board nor the RO may disregard the schedule or assign ratings apart from those authorized by the Secretary and both must apply the relevant provisions. Id. As such, notice to the veteran that the rating schedule will be applied to the symptomatology of his disability has no impact on the fundamental fairness of the adjudication because it refers to legal duties falling upon VA, not upon the veteran, and cannot be changed. The Board finds that the error in the third element of Vazquez-Flores notice is not prejudicial. See Sanders, supra. As to the fourth element, the December 2003 and June 2005 letters did provide notice of the types of evidence, both lay and medical, including employment records, that could be submitted in support of his claim. The Board finds that the fourth element of Vazquez-Flores is satisfied. See id. In light of the foregoing, the Board finds that any notice defect as to the requirements of Vazquez-Flores are nonprejudicial. The Board, therefore, finds that VA has discharged its duty to notify. See Pelegrini II, supra. Since the Board has concluded that the preponderance of the evidence is against the claim, any questions as to the appropriate disability ratings or effective dates to be assigned are rendered moot, and no further notice is needed. See Dingess v. Nicholson, 19 Vet. App. 473 (2006). The Board also concludes VA's duty to assist has been satisfied. The veteran's available service and VA medical records are in the file. The veteran has at no time referenced outstanding records that he wanted VA to obtain or that he felt were relevant to the claim. The Board notes that a July 1970 search for the veteran's service medical records failed to locate any medical records. However, this request was referred to the Records Reconstruction Section and all available records were located. In addition, as the veteran is claiming entitlement to an increased rating, and not entitlement to service connection, the Board finds that all relevant records have been associated with the claims file. The duty to assist includes, when appropriate, the duty to conduct a thorough and contemporaneous examination of the veteran. See Green v. Derwinski, 1 Vet. App. 121 (1991). In addition, where the evidence of record does not reflect the current state of the veteran's disability, a VA examination must be conducted. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991); 38 C.F.R. § 3.327(a) (2007). The RO provided the veteran with a VA examination for his liver in September 2005. There is no objective evidence indicating that there has been a material change in the severity of the veteran's service-connected disability since he was last examined. See 38 C.F.R. § 3.327(a) (2007). The duty to assist does not require that a claim be remanded solely because of the passage of time since an otherwise adequate VA examination was conducted. See VAOPGCPREC 11-95. This VA examination report is thorough and consistent with contemporaneous VA treatment records. The examination in this case is adequate upon which to base a decision. As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). II. Analysis The Board has thoroughly reviewed all the evidence in the veteran's claims file. The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim. The veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the veteran). The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case, the claim is denied. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Disability evaluations are determined by evaluating the extent to which a veteran's service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, including employment, by comparing his or her symptomatology with the criteria set forth in the Schedule for Rating Disabilities. The percentage ratings represent as far as can practicably be determined the average impairment in earning capacity resulting from such diseases and injuries and the residual conditions in civilian occupations. Generally, the degree of disabilities specified are considered adequate to compensate for considerable loss of working time from exacerbation or illness proportionate to the severity of the several grades of disability. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.1 (2007). Separate diagnostic codes identify the various disabilities and the criteria for specific ratings. If two disability evaluations are potentially applicable, the higher evaluation will be assigned to the disability picture that more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2007). Any reasonable doubt regarding the degree of disability will be resolved in favor of the veteran. 38 C.F.R. § 4.3 (2007). The veteran's entire history is reviewed when making a disability determination. See 38 C.F.R. § 4.1 (2007). But where service connection has already been established, and increase in the disability rating is at issue, it is the present level of the disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55 (1994). The evaluation of the same disability under various diagnoses, known as pyramiding, is generally to be avoided. 38 C.F.R. § 4.14 (2007). The critical element in permitting the assignment of several ratings under various diagnostic codes is that none of the symptomatology for any one of the disabilities is duplicative or overlapping with the symptomatology of the other disability. See Esteban v. Brown, 6 Vet. App. 259, 261- 62 (1994). The veteran has been assigned an evaluation of 10 percent for his service-connected fragment wound of the right flank with laceration of the liver, effective June 12, 1970, under Diagnostic Code 5319. The veteran seeks a higher rating. Diagnostic Code 5319 addresses Muscle Group XIX. Function: Support and compression of abdominal wall and lower thorax; flexion and lateral motions of spine; synergists in strong downward movements of arm (1). Muscles of the abdominal wall: (1) Rectus abdominis; (2) external oblique; (3) internal oblique; (4) transversalis; (5) quadratus lumborum. Under this code, a 50 percent evaluation is warranted for a severe muscle injury. A 30 percent rating is assigned for a moderately severe muscle injury. A 10 percent rating is assigned for a moderate muscle injury. Therefore, in order for the veteran to receive a higher rating, his disability must meet the requirements of at least a 30 percent rating. A moderately severe disability of the muscles is characterized by evidence of a through and through or deep penetrating wound by a high velocity missile of small size or a large missile of low velocity, with debridement or with prolonged infection, or with sloughing of soft parts, or intermuscular cicatrization. Service department records or other sufficient evidence showing hospitalization for a prolonged period in service for treatment of a wound should be considered. Records in the file of consistent complaints of cardinal symptoms of muscle wounds should also be noted. Evidence of unemployability due to an inability to keep up with work requirements may be considered. Objective findings should include entrance and (if present) exit scars so situated as to indicate the track of a missile through one or more muscle groups. Indications on palpation of loss of deep fascia, loss of muscle substance, or loss of normal firm resistance of muscles compared with the sound side may be considered. Tests of strength and endurance of the muscle groups involved may also give evidence of marked or moderately severe loss. 38 C.F.R. § 4.56(d)(3) (2007). The veteran's service medical records reflect that he sustained a gunshot wound to the right flank on November 8, 1967. Upon immediate examination at the Naval Air Support Hospital in Da Nang, he was found to have a right hemothorax. This was treated with tube thoracostomy. He underwent an exploratory laparotomy and was found to have a through and through laceration of the right lobe of the liver. The veteran was transferred to the 106th General Hospital in Japan on November 18, 1967, for further convalescence and follow-up. Upon discharge, the veteran was noted as being asymptomatic, with all wounds healed. During a period of hospitalization from December 15, 1967, to January 11, 1968, the veteran was reported as being in no acute distress and without complaints. There was no evidence of debridement, prolonged infection, sloughing of soft parts, or intermuscular cicatrisation of the fragment wound of the right flank. Repeat chest x-rays and laboratory studies were within normal limits and the veteran was discharged as fit for duty. In September 2005, the veteran underwent a VA examination. The veteran was noted as having normal liver functions. He reported no weight loss and stated that his appetite was okay. It was noted that the veteran has a 5 centimeter by 3 centimeter scar from the entrance wound on his right flank. The examiner described this scar as flat, superficial, and non-adherent to underlying structures. The veteran has complaints of intermittent back pain, with mild narrowing of disc spaces T12 and L1 and L4, L5 and S1, which does not limit him from doing any activities. The range of motion of his back was reported as normal. Despite the veteran's assertions that his disability is more severe than his current evaluation reflects, there is no indication in the veteran's service or VA records that his symptoms warrant an increased rating. The claims folder contains no evidence indicating that the veteran's fragment wound of the right flank with laceration of the liver is moderately severe. The Board acknowledges that the veteran has complained of discomfort in the abdominal area and back pain. See VA examination reports, March 2004 and September 2005. However, the evidence of record does not indicate that the veteran has sought treatment for his disability since service or has had consistent complaints of cardinal symptoms of muscle wounds, such as loss of power, weakness, lowered threshold of fatigue, fatigue-pain, impairment of incoordination, or uncertainty of movement, as specified under 38 C.F.R. § 4.56(c). In addition, the claims folder contains no evidence of the veteran's inability to keep up with work requirements. The medical evidence of record contains no evidence of loss of deep fascia, muscle substance, or normal firm resistance of muscles compared with the sound side, nor does the claims folder reflect debridement, prolonged infection, sloughing of soft parts, or intermuscular cicatrization. The medical evidence of record also does not indicate lack of strength or endurance of the muscle groups. While the veteran was hospitalized for a few weeks during service, he was discharged as asymptomatic and fit for duty, with healed wounds, and chest x-rays and laboratory studies within normal limits. He has not been hospitalized, or regularly treated for this disability, since this time. The Board also notes that the veteran has a residual scar from his fragment wound. See VA examination report, March 2004. However, as the entrance wound scar has been reported as being only 5 centimeters by 3 centimeters, and the veteran's current disability does not meet the majority of the symptoms for a moderately severe disability, the Board finds that the veteran is adequately compensated with his current rating. A higher rating is not warranted. The Board acknowledges the veteran's assertions that his disability warrants a higher rating. See Informal Hearing Presentation, February 2008. The veteran can attest to factual matters of which he has first-hand knowledge. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). However, the veteran as a lay person has not been shown to be capable of making medical conclusions, thus, his statements regarding severity are not competent. See Espiritu v. Derwinski, 2 Vet. App. 492, 495 (1992). While the veteran is competent to report what comes to him through his senses, he does not have medical expertise. See Layno v. Brown, 6 Vet. App. 465 (1994). In addition, the Board has considered the potential application of various provisions of Title 38 of the Code of Federal Regulations, but the record does not present such "an exceptional or unusual disability picture as to render impractical the application of the regular rating schedule standards." 38 C.F.R. § 3.321(b)(1) (2007). In this regard, the veteran has not identified any specific factors which may be considered to be exceptional or unusual in light of VA's schedule of ratings. There is no evidence that the veteran requires frequent or lengthy periods of hospitalization for his disability, and there is no evidence of any finding of exceptional limitation beyond that contemplated by the schedule of ratings. The Board finds that the 10 percent evaluation adequately reflects the clinically established impairment experienced by the veteran. As such, referral for extraschedular consideration is not warranted. The Board concludes that the preponderance of the evidence is against the claim for an increased rating, and the benefit of the doubt rule enunciated in 38 U.S.C.A. § 5107(b) is not for application. There is not an approximate balance of evidence. See generally Gilbert, supra; Ortiz v. Principi, 274 F. 3d 1361 (Fed. Cir. 2001). Assignment of staged ratings is not for application. Hart v. Mansfield, 21 Vet. App. 505 (2007). ORDER Entitlement to an evaluation in excess of 10 percent disabling for a fragment wound, right flank with laceration of the liver is denied. REMAND The veteran alleges that his GSW, right chest with a RFB has increased in severity. See veteran's statement, April 2005. After a thorough review of the veteran's claims folder, the Board has determined that additional development is necessary prior to the adjudication of this claim. Specifically, this issue must be remanded in order to schedule the veteran for a VA examination. The veteran was initially assigned an evaluation of 20 percent for his service-connected GSW, right chest with a RFB, effective June 12, 1970, under Diagnostic Code 6818, which contemplated injuries of the pleural cavity, including gunshot wounds. However, on October 7, 1996, the schedular criteria with respect to the respiratory system underwent revision. Under the new revisions, the veteran's service- connected disability is rated under Diagnostic Code 6843, which applies the General Rating Formula for Restrictive Lung Disease. In May 2005, the veteran was afforded a VA respiratory examination. At this examination, the physician noted that the veteran denied any chronic cough, shortness of breath, dyspnea on exertion, paroxysmal nocturnal dyspnea or orthopnea. The veteran reported that he is physically active and is able to walk a couple of miles per day without any difficulty. The physician noted that the veteran's pulmonary function test results are "normal." The actual test results are not on file, however. Specific pulmonary function findings to include veteran's forced expiratory volume in one second (FEV-1), the FEV- 1/forced vital capacity (FVC), the diffusion capacity of the lung for carbon monoxide by the single breath method [(DLCO) (SB)], and the maximum oxygen consumption are crucial criteria for rating the veteran's disability under Diagnostic Code 6843. As such findings are not on file, the Board finds that the medical evidence of record is inadequate for the purpose of adjudicating the veteran's claim and that a VA examination must be conducted in order to appropriately evaluate the veteran according to the criteria listed in the General Rating Formula for Restrictive Lung Disease. Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991) (if the medical evidence of record is insufficient, the Board is free to supplement the record by seeking an advisory opinion or ordering a medical examination). Accordingly, the case is REMANDED for the following action: 1. The veteran should be provided with a VA examination in order to determine the current severity of his GSW of the right chest with a RFB. The claims folder must be made available to the examiner and pertinent documents therein should be reviewed by the examiner. The examiner must note in the examination report that the claims folder was reviewed in conjunction with the examination. All necessary tests and studies should be accomplished, and all clinical findings should be reported in detail. Specifically, the examiner should measure the veteran's FEV-1, the FEV-1/FVC, the DLCO (SB), and the maximum oxygen consumption. The complete rationale for any opinions expressed should be provided. 2. Then, the RO/AMC should readjudicate the claim. In particular, the RO should review all the evidence that was submitted since the June 2005 statement of the case. In the event that the claim is not resolved to the satisfaction of the veteran, he should be provided a supplemental statement of the case, which includes a summary of additional evidence submitted, any additional applicable laws and regulations, and the reasons for the decision. After the veteran and his representative have been given the applicable time to submit additional argument, the claim should be returned to the Board for further review. The veteran 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). No further action is required of the veteran until further notice. However, the Board takes this opportunity to advise the veteran that the conduct of the efforts as directed in this remand, as well as any other development deemed necessary, is needed for a comprehensive and correct adjudication of his claim. His cooperation in VA's efforts to develop his claim, including reporting for any scheduled VA examination, is both critical and appreciated. The veteran is also advised that failure to report for any scheduled examination may result in the denial of a claim. See 38 C.F.R. § 3.655 (2007). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or by the Court for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2007). ______________________________________________ K. PARAKKAL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs