Citation Nr: 1036136	
Decision Date: 09/24/10    Archive Date: 09/30/10

DOCKET NO.  08-09 009	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Los Angeles, 
California


THE ISSUES

1.  Entitlement to an evaluation in excess of 10 percent for 
residual status post right shoulder wound, with C5-C6 nerve 
damage causing paresthesias of the right hand and wrist.

2.  Entitlement to an evaluation in excess of 30 percent for 
scars of the right scapular area and superior lateral aspects of 
the right shoulder, with moderately severe injury of muscle group 
II.


REPRESENTATION

Appellant represented by:	Disabled American Veterans


WITNESSES AT HEARING ON APPEAL

The appellant and his daughter-in-law


ATTORNEY FOR THE BOARD

T. L. Anderson, Associate Counsel


INTRODUCTION

The Veteran had active service from January 1943 to January 1946, 
and received a Purple Heart.  

This matter comes before the Board of Veterans' Appeals (BVA or 
Board) from a May 2007 rating decision by the above Department of 
Veterans Affairs (VA) Regional Office (RO).

The Veteran provided testimony at a January 2010 Travel Board 
hearing before the undersigned at the RO.  A hearing transcript 
is associated with the claims folder.

This appeal has been advanced on the Board's docket pursuant to 
38 U.S.C.A. § 7107(a)(2) (West 2002); 38 C.F.R. § 20.900(c) 
(2010).


FINDINGS OF FACT

1.  The preponderance of the competent evidence of record 
demonstrates mild, and not moderate, neuritis of the median 
nerve.

2.  During the January 2010 hearing before the Board, prior to 
the promulgation of a decision in the appeal, the Veteran 
indicated that he wished to withdraw his claim of entitlement to 
an evaluation in excess of 30 percent for scars of the right 
scapular area and superior lateral aspects of the right shoulder, 
with moderately severe injury of muscle group II.


CONCLUSIONS OF LAW

1.  The criteria for entitlement to an evaluation in excess of 10 
percent for residual status post right shoulder wound, with C5-C6 
nerve damage causing paresthesias of the right hand and wrist, 
have not been met.  38 U.S.C.A. §§ 1155, 5103(a), 5103A, 5107(b) 
(West 2002); 38 C.F.R. §§ 3.102, 3.159, 4.124a, Diagnostic Code 
8615 (2010).

2.  The criteria for withdrawal of an appeal by the Veteran (or 
his or her authorized representative) have been met with regard 
to the issue of entitlement to an evaluation in excess of 30 
percent for scars of the right scapular area and superior lateral 
aspects of the right shoulder, with moderately severe injury of 
muscle group II.  38 U.S.C.A. § 7105(b)(2), (d)(5) (West 2002 & 
Supp. 2010); 38 C.F.R. § 20.204 (2010).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I.  Duty to Notify and Assist

The Veterans Claims Assistance Act of 2000 (VCAA) enhanced VA's 
duty to notify and assist claimants in substantiating a claim for 
VA benefits, as codified in pertinent part at 38 U.S.C.A. §§ 
5103, 5103A, 5107, 5126 (West 2002 & Supp. 2009); 38 C.F.R. §§ 
3.102, 3.159, 3.326(a) (2009).

Upon receipt of a complete or substantially complete application 
for benefits, VA is required to notify the claimant and his 
representative of any information, and any medical or lay 
evidence, that is necessary to substantiate the claim.  38 
U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 
16 Vet. App. 183 (2002).  Proper notice from 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; and (3) that the claimant is expected to provide, in 
accordance with 38 C.F.R. § 3.159(b)(1).  This notice must be 
provided prior to an initial unfavorable decision on a claim by 
the RO.  Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); 
Pelegrini v. Principi, 18 Vet. App. 112 (2004).  In addition, the 
decision of the U.S. Court of Appeals for Veterans Claims, in 
Dingess v. Nicholson, 19 Vet. App. 473 (2006) requires more 
extensive notice in claims for compensation, e.g., as to 
potential downstream issues such as disability rating and 
effective date.  

In a claim for increase, the VCAA requirement is generic notice, 
that is, the type of evidence needed to substantiate the claim, 
namely, evidence demonstrating a worsening or increase in 
severity of the disability and the effect that worsening has on 
employment and earning capacity, as well as general notice 
regarding how disability ratings and effective dates are 
assigned.  Vazquez-Flores v. Shinseki, 580 F.3d 1270 (2009).  See 
Dingess v. Nicholson, supra.

The U.S. Supreme Court has held that an error in VCAA notice 
should not be presumed prejudicial, and that the burden of 
showing harmful error rests with the party raising the issue, to 
be determined on a case-by-case basis.  Shinseki v. Sanders, 129 
S. Ct. 1696 (2009).  In this case, the appellant has not 
demonstrated any prejudicial or harmful error in VCAA notice, 
and, as discussed herein, the Board has identified none. 

A letter was sent to the Veteran in April 2007, prior to the 
initial RO decision which is the subject of this appeal.  The 
letter informed him of what evidence was required to substantiate 
the claims, and of his and VA's respective duties for obtaining 
evidence.  The letter informed the Veteran that VA would assist 
him in obtaining evidence necessary to support his claim, such as 
medical records, employment records, or records from other 
Federal agencies.  It described what the evidence should show, 
including how the claimed disability had worsened in severity.  
Although no longer required, the Veteran was also asked to submit 
evidence and/or information in his possession to the RO.  In 
addition, the letter described how VA determines disability 
ratings and effective dates.

It is acknowledged that the VCAA letter sent to the Veteran in 
April 2007 does not appear to fully satisfy the requirements of 
Vasquez-Flores, in that it did not specify that the evidence 
should show how the disability affected the Veteran's employment.  
Therefore, to this extent, the duty to notify was not satisfied 
prior to the initial unfavorable decision on the claim by the RO.  
Under such circumstances, VA's duty to notify may not be 
satisfied solely by various post-decisional communications.  See 
Mayfield v. Nicholson, supra, 444 F.3d at 1333.  

Rather, such notice errors may instead be cured by issuance of a 
fully compliant notice, followed by readjudication of the claim.  
Mayfield, supra; see also Prickett v. Nicholson, 20 Vet. App. 
370, 376 (2006) (issuance of a fully compliant VCAA notification 
followed by readjudication of the claim, such as a in a Statement 
of the Case (SOC) or Supplemental SOC (SSOC), is sufficient to 
cure a timing defect).  Moreover, where there is an uncured 
timing defect in the notice, subsequent action by the RO which 
provides the claimant a meaningful opportunity to participate in 
the processing of the claim can prevent any such defect from 
being prejudicial.  Mayfield v. Nicholson, 499 F.3d 1317, 1323-24 
(Fed. Cir. 2007); Prickett, supra, 20 Vet. App. at 376.

In this case, the February 2008 included the regulations related 
to how the Veteran's disability would be evaluated, including the 
Rating Schedule provisions specific to the Veteran's disability.  
In addition, a letter was sent to the Veteran in August 2008 that 
complied with the Vasquez-Flores notice requirements, advising 
him that the Board would consider evidence showing how his 
disabilities affect his employment.  The claim was subsequently 
re-adjudicated in the May 2009 SSOC.  In addition, the May 2007 
rating decision, February 2008 SOC, and May 2009 SSOC explained 
the basis for the RO's action, and the SOC and SSOC provided him 
with additional 
60-day periods to submit more evidence.  Thus, the Board finds 
that the requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. 
§ 3.159(b) regarding VA's duty to notify and assist, including 
the requirements set forth by the Court in Dingess and Vasquez-
Flores have been satisfied.

The Board notes that,at the January 2010 Board hearing, the 
Veteran testified that he had received acupuncture treatment from 
Dr. Y.S.L.  He provided the doctor's address and signed a waiver 
of initial review by the RO of those records.  A request was sent 
for the records and it appears that the RO received a response 
that included some records that do not relate to the Veteran's 
shoulder injury.  Also, the Board notes that the claims file 
includes an April 2007 letter from Dr. Y.S.L.  Thus, the Board 
finds that no further attempts to obtain Dr. Y.S.L.'s records are 
necessary, as there is sufficient information regarding his 
treatment in the claims file. 

Thus, the Board finds that no further notice or assistance to the 
Veteran is required to fulfill VA's duty to assist the appellant 
in the development of the claim.  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).  Rather, it appears further 
development would serve no useful purpose and would result in 
unnecessarily imposing additional burdens on VA with no benefit 
flowing to the Veteran.  See Soyini v. Derwinski, 1 Vet. App. 
540, 546 (1991); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994).

II.  Increased Rating

A.  Applicable Law

Disability ratings are determined by applying the criteria set 
forth in the VA's Schedule for Rating Disabilities (rating 
schedule), which is based upon the average impairment of earning 
capacity. Individual disabilities are assigned separate 
diagnostic codes.  See 38 C.F.R. § 4.1.  In addition, where there 
is a question as to which of two evaluations shall be applied, 
the higher evaluation will be assigned if the disability picture 
more nearly approximates the criteria required for that rating.  
Otherwise, the lower rating will be assigned.  See 38 C.F.R. § 
4.7 (2010).

In determining the disability evaluation, VA has a duty to 
acknowledge and consider all regulations which are potentially 
applicable based upon the assertions and issues raised in the 
record and to explain the reasons used to support the conclusion.  
Schafrath v. Derwinski, 1 Vet. App. 589 (1991).  These 
regulations include, but are not limited to, 38 C.F.R. § 4.1, 
which requires that each disability be viewed in relation to its 
history and that there be an emphasis placed upon the limitation 
of activity imposed by the disabling condition, and 38 C.F.R. § 
4.2, which requires that medical reports be interpreted in light 
of the whole recorded history, and that each disability must be 
considered from the point of view of the veteran working or 
seeking work.  Additionally, 38 C.F.R. § 4.10 provides that the 
basis of disability evaluations is the ability of the body as a 
whole to function under the ordinary conditions of daily life, 
including employment.  These requirements for the evaluation of 
the complete medical history of the claimant's condition operate 
to protect claimants against adverse decision based upon a 
single, incomplete, or inaccurate report, and to enable VA to 
make a more precise evaluation of the disability level and any 
changes in the condition.

As is the case here, where entitlement to compensation has 
already been established and an increase in the disability rating 
is at issue, it is the present level of disability that is of 
primary concern.  See Francisco v. Brown, 7 Vet. App. 55, 58 
(1994).  Nevertheless, where the evidence contains factual 
findings that show a change in the severity of symptoms during 
the course of the rating period on appeal, assignment of staged 
ratings would be permissible.  Hart v. Mansfield, 21 Vet. App. 
505 (2007).

As to nerve damage (the issue being decided herein), the 
Veteran's disability has been evaluated under Diagnostic Code 
(DC) 8516, found in the Schedule of Ratings for Diseases of the 
Peripheral Nerves.  38 C.F.R. § 4.124a.  DC 8516 addresses 
neuritis of the median nerve.  A 10 percent evaluation is 
assigned where there is mild incomplete paralysis, neuritis, or 
neuralgia of the median nerve of the major or minor extremity.  A 
30 percent evaluation is assigned for moderate incomplete 
paralysis of the median nerve of the major upper extremity.  A 50 
percent evaluation for the major extremity requires severe 
incomplete paralysis.  38 C.F.R. § 4.124a, DCs 8515, 8615, 8715.

It is the Board's responsibility to evaluate the entire record on 
appeal.  See 38 U.S.C.A. § 7104(a).  When there is an approximate 
balance in the evidence regarding the merits of an issue material 
to the determination of the matter, the benefit of the doubt in 
resolving each such issue shall be given to the claimant.  38 
U.S.C.A. § 5107(b); 38 C.F.R. § 3.102.

In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the Court of 
Appeals for Veterans Claims held that an appellant need only 
demonstrate that there is an "approximate balance of positive 
and negative evidence" in order to prevail.  The Court has also 
stated, "It is clear that to deny a claim on its merits, the 
evidence must preponderate against the claim."  Alemany v. 
Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert.

B.  Facts and Analysis
 
1.  Right Hand and Wrist

While involved in combat operations against the enemy in Germany 
in April 1945, the Veteran sustained a perforating shrapnel wound 
from artillery fire, with entrance at the border of the trapezius 
near the right shoulder and exit over the body of the right 
scapula.  The wound was initially dressed at an evacuation 
hospital.  He then underwent debridement and suturing at the 
177th General Hospital, and after recuperation was returned to 
duty in May 1945.  Separation examination in January 1946 noted 
scarring of the right scapular area, on the superior and lateral 
aspects, noted to have been incurred in military service; the 
scars were noted to be nonsymptomatic and nondisabling.

The Veteran currently has a 30 percent disability rating in 
effect for the wound residuals including the moderately severe 
damage to muscle group II on the right, evaluated under 
Diagnostic Code 5302.  As noted below herein, the appeal as to 
that aspect of his disability has been withdrawn.

The Veteran contends that his right hand and wrist disability has 
become more disabling than indicated by the currently assigned 
rating.  He was granted service connection for a wound to his 
right shoulder in a March 1946 rating decision.  He filed a 
request for an increased rating in September 2004.  He was 
granted service connection for residuals of the right shoulder 
wound, to include damage to the C5-C6 nerve causing paresthesias 
of the right hand and wrist, in a June 2005 rating decision.  A 
10 percent evaluation was assigned, effective from September 3, 
2004, the date the Veteran's claim for an increased evaluation 
was received.  He filed a request for an increased rating in 
February 2007, and an increase was denied in the May 2007 rating 
decision that is the subject of this appeal.     

The Board will begin by reviewing the medical evidence relevant 
to the rating period on appeal.

In February 2007, Dr. R.F. wrote a short note stating that the 
Veteran's right shoulder injury had increased in severity from a 
level of 3 out of 10 to a level of 7 or 8 out of 10.  

Also included in the claims file is an April 2007 letter from Dr. 
Y.S.L., of Young's Health Center.  Dr. Y.S.L. provided 
acupuncture treatments for the Veteran's shoulder twice a week 
from October 2006 to April 2007.  The doctor wrote that the 
Veteran's main complaint was right shoulder pain (trapezius 
superior fibers and deltoid).  Sensory nerves were noted to be 
intact.  Before starting treatment, the Veteran's pain was at a 
level of 5 out of 10 in severity.  After continued acupuncture 
treatment, the Veteran stated that the treatment was working, but 
he continued to experienced shoulder pain at night.  The doctor 
noted tenderness in the trapezius superior fibers and deltoid 
muscle.  He assessed shoulder joint pain and arthritis.  The goal 
of the acupuncture was to reduce pain and promote better 
circulation in the Veteran's body.  The doctor recommended 
exercise for the shoulder and ongoing acupuncture. 

Later that month, the Veteran was afforded a VA examination.  It 
was noted that he was working as an insurance agent for State 
Farm, where he had been working for the last 52 years.  He 
reported recurrent pain from the muscles inserting into his right 
shoulder, primarily located in the anterior and superior aspect 
of the shoulder.  This pain occurred once or twice weekly, 
lasting for 2 or 3 hours each time.  He also reported loss of 
strength in the right upper extremity, but he could control his 
movement.  His main problem was weakness in utilizing his right 
arm repetitively above the right shoulder level, and he had some 
decreased sensation in his right hand.  The only treatment he 
received was acupuncture treatments once or twice a month.  On 
physical examination, there was sensory deficit to pinprick in 
the right arm in the lateral aspect of the right lower biceps and 
right lateral forearm areas in the distribution of the C5-C6 
dermatomes.  The decreased sensation in the right arm 
corresponded to the distribution of the lateral cutaneous nerve 
of the arm and forearm.  Motor power was at a level of 4/5 in 
muscle groups I and II.  The Veteran was able to tie his 
shoelaces, fasten buttons, and pick up a piece of paper and tear 
it with both hands without difficulty.  The tips of all fingers 
could approximate the proximal transverse crease of the palms, 
bilaterally.  The tip of the thumb and thumb pad opposed all 
fingers.  The Veteran's hand strength was normal.  There was no 
ankylosis to either thumb joint, and range of motion of the 
thumbs was normal.  The examiner assessed a shrapnel injury to 
the right shoulder with peripheral nerve injury to the C5-C6 
peripheral nerves.  

A May 2008 Sepulveda VA Medical Center (VAMC) note indicates that 
the Veteran had right hand immobility with residual weakness 
following a stroke in 1985.  He continued to report chronic right 
shoulder pain.  He had a neurology clinic consultation that month 
in which a motor examination revealed mild pronation of the right 
hand.  Sensory examination showed reduced pinprick sensation in a 
glove patter to the mid-wrist on the right.  The right hand also 
had agraphesthesia, an inability to recognize writing on the skin 
purely by the sensation of touch.

A May 2009 VAMC note indicates the Veteran was using a walking 
cane in his right hand.

At his January 2010 hearing, the Veteran testified that  every 
morning he ran his hands under hot water and massaged them for 5 
to 10 minutes to make sure they were functioning well.  
Additionally, he massaged his hands throughout the day when they 
would get tired.  He painted and decorated birdhouses as a hobby, 
lifted some weights, walked around his pool 25 times daily, and 
exercised on a stationary bike.  He further testified that he 
never wears shoes with laces.  The Veteran's daughter-in-law also 
testified at the hearing, and stated that she could tell that the 
Veteran's shoulder caused him pain during the day.  She would see 
him stretching or moving his right shoulder.  Additionally, the 
Veteran was unable to put cups back up in the cupboard, and had 
to sit down and rest after doing an activity for awhile.  It was 
noted that the Veteran's son and daughter-in-law lived with him 
to help him out with daily chores due to the Veteran's various 
medical problems.      

Based on the foregoing, the Board finds that the criteria for an 
evaluation in excess of 10 percent for residuals of a right 
shoulder injury involving the C5-C6 nerves causing paresthesias 
in the right hand and wrist have not been met.  

As described above, the next higher 30 percent evaluation under 
DC 8615 is assigned where there is moderate incomplete paralysis 
of the median nerve.  The evidence is against a finding of 
moderate incomplete paralysis.  At the April 2007 VA examination, 
the Veteran was able to tear a piece of paper (which he testified 
he was able to do at the January 2010 Board hearing), the tips of 
all fingers could approximate the proximal transverse crease of 
the palm, the tip of the thumb and thumb pad opposed all fingers, 
and his hand strength was normal.  Also, the Veteran was seen 
using a cane in his right hand in May 2009.  Although the 
evidence demonstrates some decreased sensation in the right hand, 
as demonstrated by reduced pinprick sensation in a glove pattern 
to the mid-wrist and agraphesthesia at a May 2008 VAMC 
evaluation, the overall disability picture more nearly 
approximates the currently assigned 10 percent evaluation under 
DC 8615.  

The Board has considered whether any alternative diagnostic codes 
would allow for an increased rating.  The April 2007 VA examiner 
assessed damage to the cutaneous nerve of the right arm.  
However, DCs 8517, 8617, and 8717, which address damage to the 
musculocutaneous nerve, only allow for a 0 percent rating for 
mild incomplete paralysis, neuritis, and neuralgia, and a 10 
percent evaluation where the damage is moderate.  There is no 
evidence that the Veteran has severe incomplete paralysis of the 
cutaneous nerve, and thus, DCs 8517, 8617, and 8717 would not 
allow for an increased rating.  There are no other applicable 
diagnostic codes.

The Board has also considered the complaints of tiredness and 
functional limitation detailed above, and acknowledges that the 
Veteran is competent to give evidence about the symptoms he has 
experienced.  See Layno v. Brown, 6 Vet. App. 465 (1994).  
However, the evidence does not demonstrate a disability picture 
warranting higher than the currently assigned 10 percent rating.   

In addition to the foregoing, the Board has considered whether 
the Veteran's service-connected right hand and wrist disability 
warrants an increased rating on an extra-schedular basis.  The 
governing criteria for the award of an extra-schedular rating 
call for a finding that the case presents such an exceptional or 
unusual disability picture, with such related factors as marked 
inference with employment or frequent periods of hospitalization, 
as to render impractical the application of the regular schedular 
standards.  In these instances, the RO is authorized to refer the 
case to the Under Secretary for Benefits or the Director, 
Compensation and Pension Service, for assignment of an extra-
schedular evaluation commensurate with average earning capacity 
impairment.  38 C.F.R. § 3.321(b)(1). 

In this case, frequent hospitalization has not been shown.  
Further, the Veteran testified at the January 2010 Board hearing 
that he continued to work full-time as an insurance agent and did 
not report missing work due to his disability.  Moreover, the 
Court has held that, "if the criteria reasonably describe the 
claimant's disability level and symptomatology, then the 
claimant's disability picture is contemplated by the rating 
schedule, the assigned schedular evaluation is, therefore, 
adequate, and no referral is required."  Thun v. Peake, 22 Vet. 
App. 111, 115 (2008).  Thus, the evidence does not indicate that 
application of the regular schedular standards is rendered 
impracticable, and referral for consideration of an extra-
schedular evaluation under 38 C.F.R. § 3.321 is not warranted.

2.  Right Shoulder

The Board may dismiss any appeal which fails to allege specific 
error of fact or law in the determination being appealed.  
38 U.S.C.A. § 7105.  An appeal may be withdrawn as to any or all 
issues involved in the appeal at any time before the Board 
promulgates a decision.  Withdrawal may be made by the appellant 
or by his or her authorized representative.  38 C.F.R. § 20.204. 

In the present case, the Veteran withdrew his appeal on the issue 
of entitlement to an evaluation in excess of 30 percent for scars 
of the right scapular area and superior lateral aspects of the 
right shoulder, moderately severe injury of muscle group II, at 
the January 2010 Travel Board hearing, and, hence, there remain 
no allegations of errors of fact or law for appellate 
consideration.  Accordingly, the Board does not have jurisdiction 
to review the appeal of this issue, and it is dismissed.


ORDER

Entitlement to an evaluation in excess of 10 percent for residual 
status post right shoulder wound, C5-C6 nerve damage causing 
paresthesias of the right hand and wrist, is denied.

A claim of entitlement to an evaluation in excess of 30 percent 
for scars of the right scapular area and superior lateral aspects 
of the right shoulder, moderately severe injury of muscle group 
II, is dismissed.



___________________________
ANDREW J. MULLEN 
Veterans Law Judge, Board of Veterans' Appeals


 Department of Veterans Affairs