Citation Nr: 0815186 Decision Date: 05/08/08 Archive Date: 05/14/08 DOCKET NO. 05-02 088 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Huntington, West Virginia THE ISSUES 1. Entitlement to an evaluation in excess of 40 percent for residuals of shell fragment wound, right forearm and hand. 2. Entitlement to an evaluation in excess of 10 percent for muscle injury due to shell fragment wound of right upper arm. 3. Entitlement to an evaluation in excess of 10 percent for residuals of shell fragment wound of the right thigh. 4. Entitlement to an evaluation in excess of 10 percent for peripheral neuropathy of the right leg. 5. Entitlement to an initial evaluation in excess of 10 percent for post-traumatic stress disorder. 6. Entitlement to an effective date earlier than November 20, 2003, for the award of service connection for post- traumatic stress disorder. 7. Entitlement to an effective date earlier than June 30, 2003, for the award of a 40 percent evaluation for residuals of shell fragment wound, right forearm and hand. 8. Entitlement to an effective date earlier than June 30, 2003, for the award a total rating for compensation based upon individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD A. P. Simpson, Counsel INTRODUCTION The veteran served on active duty from March 1948 to March 1954. This case initially came before the Board of Veterans' Appeals (Board) on appeal from the Huntington, West Virginia, Department of Veterans Affairs (VA) Regional Office (RO). This matter has been advanced on the Board's docket pursuant to the provisions of 38 C.F.R. § 20.900. FINDINGS OF FACT 1. The veteran is in receipt of the highest schedular evaluation for residuals of shell fragment wound, right forearm and hand, and it is not shown that the service- connected disability is exceptional or unusual as to render impractical the application of the regular schedular standards. 2. Muscle injury due to shell fragment wound of right upper arm is not manifested by a moderately severe muscle injury. 3. Residuals of shell fragment wound of the right thigh are not manifested by a moderately severe muscle injury. 4. Peripheral neuropathy of the right leg is not manifested by moderate incomplete paralysis. 5. Post-traumatic stress disorder is not manifested by occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and conversation normal), due to such symptoms as: depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, mild memory loss (such as forgetting names, directions, recent events). 6. On November 20, 2003, the veteran was first diagnosed with post-traumatic stress disorder. There was no formal claim, informal claim, or written intent to file a claim for service connection for post-traumatic stress disorder prior to November 20, 2003. 7. A claim for increase for residuals of shell fragment wound, right forearm and hand, was received on June 30, 2003. An increase of the service-connected was not factually ascertainable within one year of the June 2003 claim. 8. Prior to June 30, 2003, the veteran did not meet the schedular criteria for a TDIU and it was not shown that he was precluded from securing or following substantially gainful employment due to service connected disabilities. CONCLUSIONS OF LAW 1. The criteria for an evaluation in excess of 40 percent for residuals of shell fragment wound, right forearm and hand have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.321, 4.56, 4.73, Diagnostic Code 5307 (2007). 2. The criteria for an evaluation in excess of 10 percent for muscle injury due to shell fragment wound of right upper arm have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.321, 4.56, 4.73, Diagnostic Code 5305 (2007). 3. The criteria for an evaluation in excess of 10 percent for residuals of shell fragment wound of the right thigh have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.321, 4.56, 4.73, Diagnostic Code 5314 (2007). 4. The criteria for an evaluation in excess of 10 percent for peripheral neuropathy of the right leg have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.321, 4.124a, Diagnostic Code 8526 (2007). 5. The criteria for an initial evaluation in excess of 10 percent for post-traumatic stress disorder have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.321, 4.130, Diagnostic Code 9411 (2007). 6. The criteria for an effective date earlier than November 20, 2003, for the award of service connection for post- traumatic stress disorder have not been met. 38 U.S.C.A. §§ 1155, 5107, 5110 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.155, 3.400 (2007). 7. The criteria for an effective date earlier than June 30, 2003, for the award of a 40 percent evaluation for residuals of shell fragment wound, right forearm and hand have not been met. 38 U.S.C.A. §§ 1155, 5107, 5110 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.157, 3.400 (2007). 8. The criteria for an effective date earlier than June 30, 2003, for the award a TDIU have not been met. 38 U.S.C.A. §§ 1155, 5107, 5110 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.321, 3.343, 3.344, 3.400, 4.16 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Veterans Claims Assistance Act of 2000 (VCAA) The VCAA, codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002 & Supp. 2007) defines VA's duty to assist the veteran in the development of a claim. VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a). The notice requirements of the VCAA require VA to notify the veteran of any evidence that is necessary to substantiate the claim, as well as the evidence VA will attempt to obtain and which evidence he is responsible for providing. Quartuccio v. Principi, 16 Vet. App. 183 (2002). The requirements apply to all five elements of a service connection claim: veteran status, existence of a disability, a connection between the veteran's service and the disability, degree of disability, and effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Such notice should be provided to a claimant before the initial unfavorable decision on a claim for VA benefits by the agency of original jurisdiction (in this case, the RO). Id; see also Pelegrini v. Principi, 18 Vet. App. 112 (2004). However, the VCAA notice requirements may be satisfied if any errors in the timing or content of such notice are not prejudicial to the claimant. Id. In a claim for increase (which involves the claims involving residuals of shell fragment wounds to the right upper extremity and right lower extremity), section 5103(a) requires that the Secretary (1) 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 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) notify the claimant 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; and (4) as with proper notice for an initial disability rating and consistent with the statutory and regulatory history, 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). In this case, the veteran was sent a notification letter in September 2003, which is before initial consideration of the claims, and which informed him he could submit evidence showing that his service-connected disabilities had increased in severity. He was told that such evidence may be from a doctor, but could also be from individuals who are able to describe from their knowledge and personal observations in what manner the veteran's disability had become worse. VA noted that the veteran could submit a statement describing his symptoms, their frequency and severity, and another additional disablement caused by his disability. The veteran was not told to submit evidence about the effect that worsening had on his employment and daily life or that disability ratings from 0 to 100 percent are assigned depending on the level of severity of the disability, which criteria are published in Part 4 of Chapter 38 of the Code of Federal Regulations. Thus, the notice sent to the veteran has some errors; however, the Board finds that the veteran has not been prejudiced by such. See Bernard v. Brown, 4 Vet. App. 384 (1993). In submitting his claims for increase, he stated he was filing a claim for individual unemployability and asked that an examination be conducted to ascertain the present status of his service-connected disabilities and how these conditions affect him in his everyday activities. He also asked for a social and industrial survey so that his abilities to function in a social and industrial setting could be evaluated. His claim for TDIU shows that he has actual knowledge that he needs to submit evidence of the impact his service-connected disabilities have on his employment, as such claim asserts that a veteran cannot work due to service-connected disabilities. Additionally, his requests to be examined to determine the effect that his disabilities had on his everyday activities and industrial setting are further evidence that he knows that he must show a worsening on his employment and daily life. Furthermore, the total rating was granted. The Diagnostic Codes addressing the veteran's shell fragment wounds involve findings of mild, moderate, moderately severe, and severe. Thus, VA was not required to provide the veteran with Diagnostic Codes under which these disabilities are rated because it would be sufficient for him to demonstrate he warranted a higher evaluation by showing a noticeable worsening or increase in severity of the disability. If it was determined to be error, the veteran was successful in obtaining a higher evaluation for one of the service- connected disabilities. Additionally, the January 2005 statement of the case provided the veteran with the specific Diagnostic Codes and their evaluations, and the claims were readjudicated in a January 2007 supplemental statement of the case. Therefore, if it was error, the veteran has not been prejudiced by such. It must be noted that at the time the veteran submitted his claims for increase and entitlement to a TDIU, he was represented by counsel, and he is now represented by a veterans service organization. The claims for earlier effective dates for the award of the 40 percent evaluation, service connection for post-traumatic stress disorder, and a TDIU are downstream issues from his claims for entitlement to a higher rating, entitlement to service connection, and entitlement to a TDIU. For example, VA awarded a higher rating, service connection for post- traumatic stress disorder, and a TDIU, and the veteran subsequently filed a notice of disagreement arguing he warranted a higher evaluation, an earlier effective date for the award of service connection for post-traumatic stress disorder, and an earlier effective date for the award of a TDIU. In these types of circumstances, VA is not required to issue a new VCAA letter. VAOPGCPREC 8-2003 (Dec. 2003). Rather, the provisions of 38 U.S.C.A. § 7105(d) require VA to issue a statement of the case if the disagreement is not resolved. Id. VA issued a statement of the case addressing these claims in January 2005. The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the veteran. Id. VA provided an examination in connection with the claims. VA obtained VA clinical records dated from 2000 to 2003. In the February 2008 Informal Hearing Presentation, the veteran's representative noted that the most recent VA examination was in October 2003, which was almost five years old. The representative made no allegation that the veteran's disabilities had worsened since that time, nor has the veteran made such allegation. The Board does not find that the evidence in the record establishes a basis to remand for a new examination. The VA treatment records, dated from 2000 to 2003, do not show treatment for the veteran's service- connected disabilities, nor do they show the veteran complaining of symptoms from these disabilities. Rather, he is being treated for non-service-connected disabilities, such as diabetes mellitus and dyslipidemia. This leads the Board to conclude that the veteran does not need a new examination since the medical records do not remotely show regular treatment for the disabilities or a worsening of such disabilities. Moreover, a total rating has been granted. The veteran has not identified, and the record does not otherwise indicate, any additional existing evidence that is necessary for a fair adjudication of the claims that has not been obtained. Hence, no further notice or assistance to the veteran is required to fulfill VA's duty to assist the veteran in the development of the claims. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). II. Increased Ratings Under the applicable criteria, disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4 (2007). Separate diagnostic codes identify the various disabilities. VA has a duty to acknowledge and consider all regulations which are potentially applicable through the assertions and issues raised in the record, and to explain the reasons and bases for its conclusion. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). The veteran is contesting the disability evaluation that was assigned following the grant of service connection for post- traumatic stress disorder. In this type of case, separate ratings can be assigned for separate periods of time based on the facts found, which is called "staged" ratings. Fenderson v. West, 12 Vet. App 119 (1999). In cases where entitlement to compensation has already been established and an increase in the disability rating is at issue (the claims for increase involving the shell fragment wounds), it is the present level of disability that is of primary concern, but staged ratings may be applied for different periods of time during the appeal period. See Hart v. Mansfield, 21 Vet. App. 505 (2007) (applying staged ratings when assigning an increased rating in a manner similar to what is done at the initial rating stage pursuant to Fenderson). The analysis in the following decision is therefore undertaken with consideration of the possibility that different ratings may be warranted for different time periods. A. Shell Fragment Wounds On November 7, 1952, the veteran was struck with mortar shrapnel in the right leg, right arm, right hand, and right side of the anterior chest wall. It was noted there was no major artery or nerve involvement. He underwent debridement and secondary closure. One piece of shrapnel came out two weeks after closure. There were two small pieces removed over the ring and small fingers in February 1954. Three days after the injury, it was noted the veteran's wounds were clean of infection. He was closed again later that month, and his postoperative course was "absolutely satisfactory." By November 28, 1952, his wounds were described as "almost entirely healed." In a September 1954 rating decision, the veteran was awarded service connection for residuals of shell fragment wound to the right forearm and hand, Muscle Groups VII and IX, and assigned a 30 percent evaluation; and residuals of shell fragment wound to the right thigh and assigned a 10 percent evaluation. In an October 1954 rating decision, the RO awarded service connection for shell fragment wound to the right upper arm and assigned a 10 percent evaluation. He remained at those evaluations until the current appeal. Evaluation of muscle disabilities is addressed in 38 C.F.R. § 4.56. A moderate muscle wound is a through and through or deep penetrating wound of short track from a single bullet, small shell or shrapnel fragment, without explosive effect of high velocity missile, residuals of debridement, or prolonged infection. 38 C.F.R. § 4.56(d)(2)(i) (2007). Objective findings of a moderate disability are entrance and (if present) exit scars, small or linear, indicating short track of missile through muscle tissue. Id. at (d)(2)(iii). Some loss of deep fascia or muscle substance or impairment of muscle tonus and loss of power or lowered threshold of fatigue when compared to the sound side. Id. A moderately severe muscle wound is a through and through or deep penetrating wound by small high velocity missile or large low-velocity missile, with debridement, prolonged infection, or sloughing of soft parts, and intermuscular scarring. 38 C.F.R. § 4.56(d)(3)(i) (2007). Objective findings of a moderately severe muscle wound are manifested by entrance and (if present) exit scars indicating track of missile through one or more muscle groups. Id. at (d)(3)(iii). Indications on palpation of loss of deep fascia, muscle substance, or normal firm resistance of muscles compared with sound side. Tests of strength and endurance compared with sound side demonstrate positive evidence of impairment. Id. A severe muscle wound is a through and through or deep penetrating wound due to high velocity missile or large or multiple low velocity missiles, or with shattering bone fracture or open comminuted fracture with extensive debridement, prolonged infection or sloughing of soft parts, intermuscular binding and scarring. 38 C.F.R. § 4.56(d)(4)(i) (2007). Objective findings of a severe muscle wound are manifested by ragged, depressed and adherent scars indicating wide damage to muscle groups in missile track. Id. at (d)(4)(iii). Palpation shows loss of deep fascia or muscle substance, or soft flabby muscles in wound area. Id. Muscles swell and harden abnormally in contraction. Id. Tests of strength, endurance, or coordinated movements compared with corresponding muscles of the uninjured side indicate severe impairment of function. Id. The criteria of 38 C.F.R. § 4.56 are only guidelines for evaluating muscle injuries from gunshot wounds or other trauma, and the criteria are to be considered with all factors in the individual case. Robertson v. Brown, 5 Vet. App. 70 (1993). 1. Residuals of shell fragment wound, right forearm and hand This service-connected disability is rated under Diagnostic Code 5307 for involvement of Muscle Group VII, which is the muscle group that involves flexion of the wrist and fingers. 38 C.F.R. § 4.73, Diagnostic Code 5307. Muscles that arise from the internal condyle of the humerus are flexors of the carpus and long flexors of fingers and thumb. Under this Diagnostic Code, a 40 percent evaluation is warranted in cases of a severe muscle disability of the dominant hand (the veteran is right handed) and is the highest schedular evaluation available. Id. The veteran was awarded a 40 percent evaluation for this disability in the January 2004 rating decision on appeal. In his notice of disagreement, the veteran's then attorney stated that the veteran believed a higher rating was warranted. As stated above, the 40 percent evaluation is the maximum schedular evaluation available. Review of the record reveals that the RO has not expressly considered referral of the case to the Under Secretary for Benefits or the Director, Compensation and Pension Service for the assignment of an extraschedular rating under 38 C.F.R. § 3.321(b)(1) (2007). This regulation provides that to accord justice in an exceptional case where the schedular standards are found to be inadequate, the field station is authorized to refer the case to the Under Secretary or the Director, Compensation and Pension Service for assignment of an extraschedular evaluation commensurate with the average earning capacity impairment. The governing criteria for such an award is a finding that 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. The Court has held that the Board is precluded by regulation from assigning an extraschedular rating under 38 C.F.R. § 3.321(b)(1) in the first instance, however, the Board is not precluded from raising this question, and in fact is obligated to liberally read all documents and oral testimony of record and identify all potential theories of entitlement to a benefit under the law and regulations. Floyd v. Brown, 9 Vet. App. 88 (1996). The Court has further held that the Board must address referral under 38 C.F.R. § 3.321(b)(1) only where circumstances are presented which the Under Secretary or Director of VA's Compensation and Pension Service might consider exceptional or unusual. Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). The Board emphasizes that the percentage ratings under the Schedule are representative of the average impairment in earning capacity resulting from diseases and injuries. Under 38 C.F.R. § 4.1 (2007), it states that "[g]enerally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability." (Emphasis added.) Thus, with this in mind, the Board finds that the veteran's symptoms that warrant the 40 percent evaluation for residuals of shell fragment wound, right forearm and hand are clearly contemplated in the schedule and that the veteran's service- connected disability, standing alone, is not exceptional nor unusual such as to preclude the use of the regular rating criteria. The 40 percent evaluation contemplates a severe muscle injury. A severe muscle wound is manifested by ragged, depressed and adherent scars indicating wide damage to muscle groups in missile track. See 38 C.F.R. § 4.56(d)(4)(iii). Palpation shows loss of deep fascia or muscle substance, or soft flabby muscles in wound area. Id. Muscles swell and harden abnormally in contraction. Id. Tests of strength, endurance, or coordinated movements compared with corresponding muscles of the uninjured side indicate severe impairment of function. Id. The October 2003 VA examination report shows the examiner reported that the veteran had one centimeter of muscle loss behind the 15 centimeter scar on the forearm. Grip strength was 40 pounds in the right arm and 90 pounds in the left arm. Reflexes were equal in both upper extremities, and sensation was decreased over the scars. The examiner's impression was that the veteran had "decreased strength in the right arm." The Board cannot conclude that the clinical findings in the October 2003 examination are exceptional or unusual that the 40 percent evaluation does not contemplate those symptoms. Further supporting this finding is the fact that the VA clinical records from 2000 to 2003 do not show the veteran complaining of this service-connected disability (or any service-connected disability). In Bagwell v. Brown, 9 Vet. App. 337 (1996), the Court clarified that it did not read the regulation as precluding the Board from affirming an RO conclusion that a claim does not meet the criteria for submission pursuant to 38 C.F.R. § 3.321(b)(1), or from reaching such conclusion on its own. See also Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). Accordingly, for the reasons stated above, the Board finds that remand to the RO for consideration of 38 C.F.R. § 3.321(b)(1) is not warranted in this case. 2. Muscle injury due to shell fragment wound of right upper arm This service-connected disability is rated under Diagnostic Code 5305 for involvement of Muscle Group V, which contemplates the flexor muscles of the elbow, including the biceps, brachialis, and brachioradialis. The function of these muscle groups is listed as elbow supination (long head of biceps as stabilizer of the shoulder joint), and flexion of the elbow. A 10 percent rating is warranted for a moderate injury, and a 30 percent evaluation is warranted for a moderately severe injury. Id. The veteran receives a separate rating for residuals of muscle injury to the upper arm. Thus, symptoms related to that disability cannot be considered when evaluating this disability. 38 C.F.R. § 4.14. The Board has carefully reviewed the evidence of record and finds that the preponderance of the evidence is against the grant of an increased evaluation for muscle injury due to shell fragment wound of right upper arm. The October 2003 VA examination report shows the examiner stated the two scars in the right axilla, each had one centimeter of tissue loss. The scars were healed and had decreased sensation. There has been no evidence that the veteran had any difficulty with motion of the elbow, including the veteran's own statements in medical records. At the October 2003 examination, the veteran reported weakness in the right hand (as opposed to the right upper arm). He also reported that any kind of lifting would "cause problems" for him, but there is nothing to indicate that he had any more than a moderate disability of Muscle Group V. Additionally, the VA treatment records, which cover a three-year period, do not show any complaints by the veteran of his right upper arm. Reviewing 38 C.F.R. § 4.56(d)(3)(iii), the examiner noted the veteran had one centimeter of tissue loss under each scar in the axilla. There were no finding of any loss of deep fascia, muscle substance, or normal firm resistance of muscles compared with sound side. The veteran has decreased grip strength, but he is in receipt of a 40 percent evaluation for the shell fragment wound to the forearm. Thus, his entire right upper extremity has a combined evaluation of 50 percent. The Board finds that the preponderance of the evidence is against a finding that the veteran's service-connected muscle injury due to shell fragment wound of right upper arm meets the criteria for a 30 percent evaluation under Diagnostic Code 5305. The evidence in this case is not so evenly balanced so as to allow application of the benefit of the doubt rule. See Gilbert, 1 Vet. App. at 55. Accordingly, in view of the denial of entitlement to an increased evaluation, the Board finds no basis upon which to predicate assignment of "staged" ratings pursuant to Hart, supra. The evidence also does not present such an exceptional or unusual disability picture as to render impractical the application of the regular schedular standards. See 38 C.F.R. § 3.321(b)(1). The overall disability picture with respect to the service-connected muscle injury due to shell fragment wound of right upper arm does not show any significant impairment beyond that contemplated in the 10 percent rating. Under the circumstances, the Board is not required to remand this matter to the RO for the procedural actions outlined in 38 C.F.R. § 3.321(b)(1). See Bagwell, 9 Vet. App. at 338-39; Floyd, 9 Vet. App. at 96; Shipwash, 8 Vet. App. at 227. 3. Residuals of shell fragment wound of the right thigh This service-connected disability is rated under Diagnostic Code 5314 or involvement of Muscle Group XIV, which is the anterior thigh group. The functions of this muscle group are extension of knee, simultaneous flexion of hip and flexion of knee, tension of fascia lata and iliotibial (Maissat's) band, acting with XVII in postural support of the body, and acting with hamstrings in synchronizing hip and knee movement. The muscles involved include the sartorius, the rectus femoris (quadriceps), the vastus externus, the vastus intermedius, the vastus internus, and the tensor vaginae femoris. A 10 percent rating is warranted for a moderate injury, and a 30 percent evaluation is warranted for a moderately severe injury. Id. The Board has carefully reviewed the evidence of record and finds that the preponderance of the evidence is against the grant of an increased evaluation for residuals of shell fragment wound of the right thigh. The October 2003 VA examination report shows the examiner noted the veteran had "a bit of a limp in his right leg." He stated the veteran had two scars on his thigh, which were freely movable. Reflexes were equal in the lower extremities. Sensation was decreased over the scars, but was otherwise intact. Reviewing 38 C.F.R. § 4.56(d)(3)(iii), the examiner did not note any tissue loss in the thigh (yet he noted it in the upper arm). There was no finding of any loss of deep fascia, muscle substance, or normal firm resistance of muscles compared with sound side. The Board finds that the preponderance of the evidence is against a finding that the veteran's service-connected residuals of shell fragment wound of the right thigh meets the criteria for a 30 percent evaluation under Diagnostic Code 5314. The evidence in this case is not so evenly balanced so as to allow application of the benefit of the doubt rule. See Gilbert, 1 Vet. App. at 55. Accordingly, in view of the denial of entitlement to an increased evaluation, the Board finds no basis upon which to predicate assignment of "staged" ratings pursuant to Hart, supra. The evidence also does not present such an exceptional or unusual disability picture as to render impractical the application of the regular schedular standards. See 38 C.F.R. § 3.321(b)(1). The overall disability picture with respect to the service-connected residuals of shell fragment wound of the right thigh does not show any significant impairment beyond that contemplated in the 10 percent rating. Under the circumstances, the Board is not required to remand this matter to the RO for the procedural actions outlined in 38 C.F.R. § 3.321(b)(1). See Bagwell, 9 Vet. App. at 338-39; Floyd, 9 Vet. App. at 96; Shipwash, 8 Vet. App. at 227. B. Peripheral Neuropathy Service connection for peripheral neuropathy of the right leg was granted in a November 2000 rating decision and assigned a 10 percent evaluation. This was awarded based upon a finding in a September 2000 VA examination that the veteran had "some peripheral neuropathy in the right leg which may be causing some trouble with his ambulation." The service-connected disability is rated under Diagnostic Code 8526. Under this Diagnostic Code, a 10 percent rating is assigned for mild incomplete paralysis of the anterior crural nerve (femoral). 38 C.F.R. § 4.124a, Code 8526. A 20 percent rating is assigned for moderate incomplete paralysis of the anterior crural nerve (femoral). Id. Higher evaluations are assigned for greater impairment. The veteran receives a separate rating for residuals of muscle injury of the right thigh. Thus, symptoms related to that disability cannot be considered when evaluating the neuropathy. 38 C.F.R. § 4.14. After having carefully reviewed the evidence of record, the Board finds that the preponderance of the evidence is against an evaluation in excess of 10 percent for peripheral neuropathy of the right leg. In the October 2003 VA examination report, the examiner noted the veteran had decreased sensation around the scars on the right lower extremity, which he stated was from paralysis of the anterior crural nerve. There is no evidence that the decreased sensation demonstrates moderate incomplete paralysis. The veteran is able to walk without an assistive device. The VA treatment records both before and after the October 2003 VA examination do not show complaints of numbness in the right thigh. There is no basis for a finding that the service- connected disability has moderate incomplete paralysis. The evidence in this case is not so evenly balanced so as to allow application of the benefit of the doubt rule. See Gilbert, 1 Vet. App. at 55. Accordingly, in view of the denial of entitlement to an increased evaluation, the Board finds no basis upon which to predicate assignment of "staged" ratings pursuant to Hart, supra. The evidence also does not present such an exceptional or unusual disability picture as to render impractical the application of the regular schedular standards. See 38 C.F.R. § 3.321(b)(1). The overall disability picture with respect to the service-connected peripheral neuropathy of the right leg does not show any significant impairment beyond that contemplated in the 10 percent rating. Under the circumstances, the Board is not required to remand this matter to the RO for the procedural actions outlined in 38 C.F.R. § 3.321(b)(1). See Bagwell, 9 Vet. App. at 338-39; Floyd, 9 Vet. App. at 96; Shipwash, 8 Vet. App. at 227. C. Post-Traumatic Stress Disorder The service-connected post-traumatic stress disorder is evaluated under Diagnostic Code 9411. The regulations establish a general rating formula for mental disorders. 38 C.F.R. § 4.130. Ratings are assigned according to the manifestation of particular symptoms. However, the use of the term "such as" in 38 C.F.R. § 4.130 demonstrates that the symptoms after that phrase are not intended to constitute an exhaustive list, but rather are to serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating. Mauerhan v. Principi, 16 Vet. App. 436 (2002). Accordingly, the evidence considered in determining the level of impairment under § 4.130 is not restricted to the symptoms provided in the Diagnostic Code. Instead, VA must consider all symptoms of a claimant's condition that affect the level of occupational and social impairment, including, if applicable, those identified in the DSM-IV (AMERICAN PSYCHIATRIC ASSOCIATION: DIAGNOSTIC AND STATISTICAL MANUAL OF MENTAL DISORDERS (4th ed. 1994)). Id. The criteria and the applicable ratings are as follows, in part: Occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and conversation normal), due to such symptoms as: depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, mild memory loss (such as forgetting names, directions, recent events) - 30 percent disabling. Occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress, or; symptoms controlled by continuous medication - 10 percent disabling. 38 C.F.R. § 4.130, Diagnostic Code 9411. After having carefully reviewed the evidence, the Board finds that the preponderance of the evidence is against an initial evaluation in excess of 10 percent for post-traumatic stress disorder. Essentially, the veteran's psychiatric disorder does not meet the criteria for the next higher evaluation. In applying for a TDIU, the veteran did not even indicate any psychiatric disability as part of why he could not work (in fact, the veteran did not file a claim for service connection for post-traumatic stress disorder, which will be discussed in addressing whether an earlier effective date is warranted). Therefore, there has been no allegation by the veteran, or a medical professional, that the veteran's post- traumatic stress disorder causes any occupational impairment, such as occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks. A November 2003 VA outpatient treatment report shows that the veteran showed signs of depression because he continued to grieve his daughter's death, which had occurred seven years prior. The examiner described the veteran's depression as a "generalized sadness." Based on a description of the veteran's symptoms in that clinical record, he has moments of depression, where he has increased symptoms. However, the clinical records in the claims file, that cover a period of three years, consistently show a man who is doing fine psychiatrically. At the October 2003 VA examination, the examiner stated as to psychiatric symptoms, "No complaints." The clinical records consistently describe the veteran as oriented, alert, and cooperative. There is a lack of evidence that the veteran's post-traumatic stress disorder is anymore than 10 percent disabling. The veteran has made no specific allegation as to why he believes the 10 percent evaluation does not adequately reflect his disability level. The evidence in this case is not so evenly balanced so as to allow application of the benefit of the doubt rule. See Gilbert, 1 Vet. App. at 55. Accordingly, in view of the denial of entitlement to an increased evaluation, the Board finds no basis upon which to predicate assignment of "staged" ratings pursuant to Fenderson, supra. The evidence also does not present such an exceptional or unusual disability picture as to render impractical the application of the regular schedular standards. See 38 C.F.R. § 3.321(b)(1). The overall disability picture with respect to the service-connected post-traumatic stress disorder does not show any significant impairment beyond that contemplated in the 10 percent rating. Under the circumstances, the Board is not required to remand this matter to the RO for the procedural actions outlined in 38 C.F.R. § 3.321(b)(1). See Bagwell, 9 Vet. App. at 338-39; Floyd, 9 Vet. App. at 96; Shipwash, 8 Vet. App. at 227. III. Earlier Effective Dates The veteran contends that he warrants earlier effective dates for the award of service connection for post-traumatic stress disorder, for the increased rating to 40 percent for residuals of shell fragment wound, right forearm and hand, and entitlement to a TDIU. The Board notes that the veteran has not presented any arguments as to why he believes he is entitled to earlier effective dates or what evidence would establish a basis for entitlement to an earlier effective date. It will break down the issues based upon the effective date assigned for (1) the newly-awarded service-connection claim, (2) the increased-rating claim, and (3) the TDIU. The RO assigned an effective date of November 20, 2003, for the award of service connection for post-traumatic stress disorder and assigned an effective date of June 30, 2003, for the award of the 40 percent evaluation for residuals of shell fragment wound, right forearm and hand, and TDIU. The assignment of effective dates of awards is generally governed by 38 U.S.C.A. § 5110 (West 2002 & Supp. 2007) and 38 C.F.R. § 3.400 (2007). Unless specifically provided otherwise, the effective date of an award based on a claim for compensation (service connection) and a claim for increase (which includes a TDIU) shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application therefor. 38 U.S.C.A. § 5110(a); see 38 C.F.R. § 3.400. An effective date for a claim for increase may be granted prior to the date of claim if it is factually ascertainable that an increase in disability had occurred within one year from the date of claim. 38 U.S.C.A. § 5110(b)(2); 38 C.F.R. §§ 3.400(o)(1) and (2) (2007); see Harper v. Brown, 10 Vet. App. 125, 126 (1997). Additionally, under 38 C.F.R. § 3.155(a) (2007), the veteran or a representative of the veteran can file an informal claim by communicating an intent to apply for one or more VA benefits. The benefit sought must be identified, see Stewart v. Brown, 10 Vet. App. 15, 18 (1997), but need not be specific, see Servello v. Derwinski, 3 Vet. App. 196, 199 (1992). See id. Under 38 C.F.R. § 3.157(b) (2007), once a claim for compensation has been allowed, receipt of a VA outpatient or hospital examination or admission to a VA hospital will be accepted as an informal claim for increased benefits. See Servello, 3 Vet. App. at 199. The date on the VA outpatient or hospital examination will be accepted as the date of claim. 38 C.F.R. § 3.157(b). 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 a claim, in which case, the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). A. Post-Traumatic Stress Disorder After having carefully reviewed the evidence of record, the Board finds that the preponderance of the evidence is against a finding that an effective date earlier than November 20, 2003, is warranted for service connection for post-traumatic stress disorder. As noted above, the veteran did not file a claim for service connection for post-traumatic stress disorder. Rather, a November 20, 2003, VA clinical record shows that the veteran was seen for complaints of depression associated with the death of his daughter seven years prior. The examiner noted the veteran was a "Purple Heart recipient" and was able to elicit from the veteran that the death of his daughter added to "his contained war adjustment." He diagnosed post-traumatic stress disorder and actually attributed it to adult experiences. Nowhere in that VA clinical record did the veteran express an intent to file a claim for service connection for post-traumatic stress disorder. See 38 C.F.R. §§ 3.1, 3.155 (both providing that an informal claim must show an intent to file a claim). Nevertheless, the RO awarded service connection for post- traumatic stress disorder as of that date. The Board has reviewed the record to see if there was any possible claim for post-traumatic stress disorder filed prior to November 20, 2003, and there is nothing in the record to indicate that such occurred. Thus, an earlier effective date for the award of service connection for post-traumatic stress disorder is denied. The benefit-of-the-doubt rule is not for application. See Gilbert, 1 Vet. App. at 55. B. Residuals of Shell Fragment Wound, Right Forearm and Hand After having carefully reviewed the evidence of record, the Board finds that the preponderance of the evidence is against the award of an effective date earlier than June 30, 2003, for the grant of the 40 percent evaluation for residuals of shell fragment wound, right forearm and hand. The veteran had filed a claim for increase in June 2000. In a November 2000 rating decision, the RO continued the 30 percent evaluation assigned at that time for the service-connected disability. The veteran did not appeal that rating decision, and that decision is final. See 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. § 20.1103 (2007). Therefore, an effective date earlier than November 2000 for the award of a 40 percent evaluation is legally precluded. Based on the Board's review of the claims file, the next time the veteran filed a claim for increase of his service- connected disability was at the time of his application for individual unemployability, which was received on June 30, 2003. There are multiple VA treatment records dated from as early as 2000; however, none of them show treatment for the service-connected residuals of shell fragment wound, right forearm and hand. See 38 C.F.R. § 3.157(b) (which would allow a VA treatment record to be an informal claim for increase). Additionally, because these VA treatment records do not address the service-connected disability, there is no factual basis to find that the disability increased during the one-year period prior to the veteran's claim for increase. See 38 U.S.C.A. § 5110(b)(2); 38 C.F.R. § 3.400(o)(2). The veteran has not alleged that his disability increased during the one-year time frame, and there are no other records in the claims file upon which to make such a finding. Therefore, there is no basis to award an earlier effective date for the grant of 40 percent evaluations for residuals of shell fragment wound, right forearm and hand. The benefit-of-the-doubt rule is not for application. See Gilbert, 1 Vet. App. at 55. C. TDIU In cases where the schedular rating is less than 100 percent, a total disability rating may be assigned when the individual is unable to secure or follow a substantially gainful occupation as the result of service-connected disability, without regard to advancing age. 38 C.F.R. §§ 3.340, 3.341, 4.16 (2007). Total disability ratings for compensation may be assigned when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that, if there is only one such disability, this disability shall be ratable at 60 percent or more, and that, if there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). Disabilities resulting from common etiology or a single accident will be considered as one disability. Id. Prior to June 30, 2003, the veteran's service-connected disabilities and their evaluations were as follows: residuals of shell fragment wound, right forearm and hand, evaluated as 30 percent disabling; muscle injury due to shell fragment wound of right upper arm, evaluated as 10 percent disabling; residuals of shell fragment wound of the right thigh, evaluated as 10 percent disabling; peripheral neuropathy of the right leg, evaluated as 10 percent disabling, and scar due to shell fragment wound of chest wall, which was noncompensably disabling. His combined evaluation was 50 percent. The Board has carefully reviewed the evidence of record and finds that the preponderance of the evidence is against an effective date earlier than June 30, 2003, for the award of a TDIU. At the time the veteran filed his claim for a TDIU, he also claimed increased ratings for all of his service- connected disabilities. In granting the veteran a 40 percent evaluation for residuals of shell fragment wound, right forearm and hand, this brought the veteran's combined evaluation to 60 percent. Because each of these disabilities was incurred "in action," the veteran now met the schedular criteria for a TDIU. See 38 C.F.R. § 4.16(a)(4) (2007). As noted above, prior to June 30, 2003, the veteran did not meet the schedular criteria for a TDIU. While an extraschedular evaluation could be granted prior to that date, the Board has determined that the evidence of record fails to show that the veteran's symptoms associated with any of his service-connected disabilities presented such an exceptional or unusual disability picture as to warrant extraschedular consideration these disabilities prior to June 30, 2003. As noted several times throughout the decision, there are VA treatment records, dated from as early as 2000 to 2003, and none of them show complaints by the veteran or treatment for the service-connected disabilities. Thus, there is no basis to consider an extraschedular evaluation for TDIU prior to June 30, 2003. For the above reasons, the Board finds that an effective date earlier than June 30, 2003, for the award of a TDIU cannot be granted. The benefit-of-the-doubt rule is not for application. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. (CONTINUED ON NEXT PAGE) ORDER An evaluation in excess of 40 percent for residuals of shell fragment wound, right forearm and hand is denied. An evaluation in excess of 10 percent for muscle injury due to shell fragment wound of right upper arm is denied. An evaluation in excess of 10 percent for residuals of shell fragment wound of the right thigh is denied. An evaluation in excess of 10 percent for peripheral neuropathy of the right leg is denied. An initial evaluation in excess of 10 percent for post- traumatic stress disorder is denied. An effective date earlier than November 20, 2003, for the award of service connection for post-traumatic stress disorder is denied. An effective date earlier than June 30, 2003, for the award of a 40 percent evaluation for residuals of shell fragment wound, right forearm and hand is denied. An effective date earlier than June 30, 2003, for the award a TDIU is denied. ________________________________________ MICHAEL D. LYON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs