Citation Nr: 1038167 Decision Date: 10/08/10 Archive Date: 10/15/10 DOCKET NO. 05-38 781A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUE Entitlement to an initial rating in excess of 10 percent for right thigh fragment wound residuals. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD C. Fleming, Associate Counsel INTRODUCTION The Veteran had active military service from September 1966 to April 1969. This matter initially came before the Board of Veterans' Appeals (Board) on appeal from a November 2004 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Chicago, Illinois, that granted the Veteran service connection for right thigh fragment wound residuals and assigned an initial noncompensable disability rating. By way of a November 2005 statement of the case, the RO granted the Veteran an increased initial disability rating of 10 percent for his service-connected right thigh fragment wound residuals, effective from the date of the award of service connection-May 20, 2004. The Board subsequently remanded the case to the agency of original jurisdiction (AOJ) in October 2008 for further evidentiary development and adjudication. The Board instructed the AOJ to provide the Veteran with a VA examination and then re- adjudicate the claim. The Appeals Management Center (AMC) scheduled the Veteran for a VA examination, which was conducted in May 2010. Following the examination, the AMC confirmed the 10 percent rating. Thus, there is compliance with the Board's remand instructions. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (noting that where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance). As the appeal of the Veteran's claim for an initial rating in excess of 10 percent for right thigh fragment wound residuals emanates from the Veteran's disagreement with the initial 10 percent rating assigned following the grant of service connection, the Board has characterized the claim as for a higher initial rating, in accordance with Fenderson v. West, 12 Vet. App. 119, 126 (1999). FINDING OF FACT The Veteran's service-connected right thigh fragment wound residuals are manifested by no worse than moderate disability of Muscle Group XIV with a faint, 6 x 1 centimeter (cm), asymptomatic scar. CONCLUSION OF LAW The criteria for an initial rating in excess of 10 percent for service-connected right thigh fragment wound residuals have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.3, 4.7, 4.27, 4.73 (Diagnostic Code 5314), 4.118 (Diagnostic Codes 7801-7805) (2010). REASONS AND BASES FOR FINDING AND CONCLUSION I. Duties to Notify and Assist At the outset, the Board notes the enactment of the Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (2000), in November 2000. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, and 5107 (West 2002 & Supp. 2010). To implement the provisions of the law, VA promulgated regulations codified at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2010). The VCAA and its implementing regulations include, upon the submission of a substantially complete application for benefits, an enhanced duty on the part of VA to notify a claimant of the information and evidence needed to substantiate a claim, as well as the duty to notify the claimant of what evidence will be obtained by whom. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). In addition, they define the obligation of VA with respect to its duty to assist a claimant in obtaining evidence. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c). (The Board notes that 38 C.F.R. § 3.159 was revised, effective May 30, 2008, during the pendency of the appeal. See 73 Fed. Reg. 23353-56 (Apr. 30, 2008). The amendments apply to applications for benefits pending before VA on, or filed after, May 30, 2008. The amendments, among other things, removed the notice provision requiring VA to request the Veteran to provide any evidence in the Veteran's possession that pertains to the claim. See 38 C.F.R. § 3.159(b)(1).) In this case, the Board finds that all notification and development action needed to arrive at a decision on the claim on appeal has been accomplished. Through a January 2005 notice letter, the RO notified the Veteran of the information and evidence needed to substantiate his claim. Thereafter, the Veteran was afforded the opportunity to respond. In addition, the Veteran was provided notice concerning the assignment of rating criteria and effective dates via a November 2008 notice letter. Hence, the Board finds that the Veteran has received notice of the information and evidence needed to substantiate his claim, and has been afforded ample opportunity to submit such information and evidence. The Board also finds that the January 2005 notice letter satisfies the statutory and regulatory requirement that VA notify a claimant what evidence, if any, will be obtained by the claimant and which evidence, if any, will be retrieved by VA. See Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002) (addressing the duties imposed by 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b)). In the letter, the RO notified the Veteran that VA was required to make reasonable efforts to obtain medical records, employment records, or records from other Federal agencies. The RO also requested that the Veteran identify any medical providers from whom he wanted the RO to obtain and consider evidence. Proper VCAA notice 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. See Pelegrini v. Principi, 18 Vet. App. 112, 121 (2004). See also Notice and Assistance Requirements and Technical Correction, 73 Fed. Reg. 23,353 (Apr. 30, 2008) (to be codified at 38 C.F.R. § 3.159) (removing the prior requirement that VA specifically ask the claimant to provide any pertinent evidence in his possession). These requirements were met by the aforementioned January 2005 notice letter. The Board thus finds that "the appellant [was] provided the content-complying notice to which he [was] entitled." Pelegrini, 18 Vet. App. at 122. In this regard, the more detailed notice requirements set forth in 38 U.S.C.A. §§ 7105(d) and 5103A have been met. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), aff'd, Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007). In addition, the Veteran was given the opportunity to respond following the January 2005 and November 2008 notice letters. The Board notes that VCAA notice is not required with respect to every issue raised by a claimant. If, for example, a Veteran files a claim for service connection for a disability, he is provided with VCAA notice as to that claim, the claim is granted, and he files an appeal with respect to the rating assigned and/or effective date of the award, VA is not required to provide a new VCAA notice with respect to the matter of his entitlement to a higher rating and/or an earlier effective date. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), aff'd, Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007) (holding that when a claim for service connection has been proven, the purpose of § 5103(a) has been satisfied, and notice under its provisions has been satisfied). The Board notes that after an appellant has filed a notice of disagreement as to the initial effective date or disability rating assigned-thereby initiating the appellate process-different, and in many respects, more detailed notice obligations arise, the requirements of which are set forth in 38 U.S.C.A. §§ 7105(d) and 5103A. Id. Here, the Veteran's claim for an initial rating in excess of 10 percent for right thigh fragment wound residuals falls within this pattern. Thus, no additional VCAA notice was required with respect to the issue on appeal. Furthermore, as to the initial rating claim, the Board finds the more detailed notice requirements set forth in 38 U.S.C.A. §§ 7105(d) and 5103A have been met. See Dingess/Hartman, supra. Here, the Veteran was provided a VCAA notice letter in January 2005 regarding his claim for service connection for right thigh fragment wound residuals. Thereafter, the Veteran was notified in a November 2005 statement of the case that he had been awarded a higher initial rating of 10 percent for his service-connected right thigh fragment wound residuals. In June 2010, the AMC issued the Veteran a supplemental statement of the case (SSOC) specifically addressing his claim for a higher initial rating. The SSOC set forth the specific rating criteria governing evaluation of the disability and notified him of the reasons behind the AMC's denial of his claim for a higher initial rating than that assigned in the November 2005 statement of the case. In light of the foregoing, the Board finds that the administrative appeal process provided the Veteran with notice of the specific rating criteria, and it is apparent from the record that he and his representative understood those things relative to a claim for a higher rating. The Board thus concludes that during the administrative appeal process the Veteran was provided the information necessary such that further action to provide additional notice would be merely duplicative of what has already transpired. Consequently, the Board finds the more detailed notice requirements set forth in 38 U.S.C.A. §§ 7105(d) and 5103A have been met. Nothing about the evidence or any response to the RO's notification suggests that the case must be re-adjudicated ab initio to satisfy the requirements of the VCAA. The Board also points out that there is no indication whatsoever that any additional action is needed to comply with the duty to assist in connection with the claim on appeal. The Veteran was provided VA medical examination in May 2010; report of that examination has been associated with the claims file. When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). As noted below, the Board finds that the VA examination obtained in this case is adequate, as it is predicated on consideration of all of the pertinent evidence of record, to include the statements of the Veteran and his representative, and reflect that the examiner conducted a full physical examination of the Veteran, including information necessary to apply the pertinent rating criteria. Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination with respect to the issue on appeal has been met. 38 C.F.R. § 3.159(c)(4). The Veteran has further been given the opportunity to submit evidence; he and his representative have provided written argument in support of his appeal. The Veteran indicated in an April 2006 statement that there is no further evidence relevant to his appeal that has not been obtained by VA. Otherwise, neither the Veteran nor his representative has identified, and the record does not indicate, existing records pertinent to the appeal that need to be obtained. Under these circumstances, the Board finds that VA has complied with all duties to notify and assist required by 38 U.S.C.A. § 5103A and 38 C.F.R. § 3.159. II. Analysis The Veteran contends that his service-connected right thigh fragment wound residuals are more disabling than reflected by the 10 percent rating initially assigned. Disability evaluations are determined by comparing a Veteran's present symptoms with criteria set forth in VA's Schedule for Rating Disabilities, which is based on average impairment in earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. When a question arises as to which of two ratings applies under a particular diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3. The Veteran's entire history is reviewed when making disability evaluations. See generally 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Where entitlement to compensation already has 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). However, where, as here, the question for consideration is the propriety of the initial evaluation assigned, evaluation of the medical evidence since the grant of service connection and consideration of the appropriateness of a "staged rating" (assignment of different ratings for distinct periods of time, based on the facts found) is required. See Fenderson, 12 Vet. App. at 126. Relevant medical evidence consists of a VA examination conducted in May 2010. Report of that examination reflects that the examiner reviewed the Veteran's claims file and elicited a history from the Veteran as well as conducting physical examination. The examiner noted the Veteran's report of "occasional discomfort" at the injury site as well as occasional cramping of the thigh which abates with walking. The Veteran denied any infection, swelling, drainage, loss of function, or loss of locomotion in either the hip or the knee. The examiner noted the Veteran's report that his thigh injury did not cause him any difficulty in his job as a janitor. Physical examination revealed equal thigh and calf measurements and no evidence of muscle atrophy secondary to the Veteran's fragment injury. The examiner noted that the Veteran had a faint 6 x 1 cm scar on the right thigh, which resulted from his being hit by a fragment while on duty in Vietnam. The examiner noted no keloid formation, inflammation, induration, or muscle herniation. The Veteran's skin was noted to have normal texture, and no breakdown of the skin, adherence to underlying tissue, atrophy, frequent loss of skin, elevation or depression of the surface of the scar, or discoloration was noted. The examiner further noted no pain, inflexibility of skin near the scar, or limitation of motion due to the scar. Range of motion testing of the Veteran's right hip and knee were normal without pain on repetitive motion testing, and no instability or other functional disability was noted. The examiner found the Veteran's deep tendon reflexes to be normal with no evidence of any peripheral nerve involvement. The examiner diagnosed the Veteran with a wound of Muscle Group XIV with retained fragment that was mildly symptomatic and without sequelae. The Veteran's service-connected right thigh fragment wound residuals have been rated by the RO as 10 percent disabling under Diagnostic Code 5314, which provides evaluations for disability of Muscle Group XIV. The functions of this group (anterior thigh group) include extension of the knee, simultaneous flexion of hip and flexion of knee, tension of the fascia lata and iliotibial (Maissiat's) band acting with Muscle Group XVII in postural support of the body, and acting with the hamstrings in synchronizing hip and knee motion. The Veteran's disability is currently rated pursuant to Diagnostic Code 5314 as "moderate," with a 10 percent rating. Under that diagnostic code, a moderately severe disability warrants a 30 percent rating, and a severe disability warrants a 40 percent rating, the highest rating available under the diagnostic code. 38 C.F.R. § 4.73, Diagnostic Code 5314 (2010). Disabilities resulting from muscle injuries are classified as slight, moderate, moderately severe, or severe. 38 C.F.R. § 4.56(d) (2010). Slight muscle disability contemplates a simple wound of the muscle without debridement or infection; a service department record of a superficial wound with brief treatment and return to duty; healing with good functional results; and no cardinal signs or symptoms of muscle disability. Objectively, there is a minimal scar; no evidence of fascial defect, atrophy, or impaired tonus; and no impairment of function or metallic fragments retained in muscle tissue. 38 C.F.R. § 4.56(d)(1). Moderate muscle disability contemplates a through and through or deep penetrating wound of short track from a single bullet, small shell, or shrapnel fragment, without the explosive effect of a high velocity missile, residuals of debridement, or prolonged infection; a service department record or other evidence of in- service treatment for the wound; and a record of consistent complaint of one or more of the cardinal signs and symptoms of muscle disability, particularly lowered threshold of fatigue after average use, affecting the particular functions controlled by the injured muscles. Objectively, there are entrance and (if present) exit scars that are small or linear, indicating a short track of missile through muscle tissue; and 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. 38 C.F.R. § 4.56(d)(2). Moderately severe muscle disability contemplates a through and through or deep penetrating wound by a small high-velocity missile, or large low-velocity missile, with debridement, prolonged infection, or sloughing of soft parts, and intermuscular scarring; a service department record or other evidence showing hospitalization for a prolonged period for the wound; a record of consistent complaint of cardinal signs and symptoms of muscle disability; and, if present, evidence of inability to keep up with work requirements. Objectively, there are entrance and (if present) exit scars indicating track of missile through one or more Muscle Groups; indications on palpation of loss of deep fascia, muscle substance, or normal firm resistance of muscle compared with the sound side; and tests of strength and endurance compared with the sound side demonstrate positive evidence of impairment. 38 C.F.R. § 4.56(d)(3). Severe muscle disability contemplates a through and through or deep penetrating wound due to a 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; a service department record or other evidence showing hospitalization for a prolonged period for treatment of the wound; a record of consistent complaint of cardinal signs and symptoms of muscle disability, worse than those shown for moderately severe muscle injuries; and, if present, evidence of inability to keep up with work requirements. Objectively, there are ragged, depressed, and adherent scars indicating wide damage to Muscle Groups in the missile track; palpation shows loss of deep fascia or muscle substance, or soft flabby muscles in the wound area; muscles swell and harden abnormally in contraction; and tests of strength, endurance, or coordinated movements indicate severe impairment of function when compared with the uninjured side. 38 C.F.R. § 4.56(d)(4). If present, the following are also signs of severe muscle disability: (a) x-ray evidence of minute, multiple scattered foreign bodies indicating intermuscular trauma and explosive effect of the missile; (b) adhesion of scar to one of the long bones, scapula, pelvic bones, sacrum, or vertebrae, with epithelial sealing over the bone rather than true skin covering in an area where bone is normally protected by muscle; (c) diminished muscle excitability to pulsed electrical current in electrodiagnostic tests; (d) visible or measurable atrophy; (e) adaptive contraction of an opposing group of muscles; (f) atrophy of Muscle Groups not in the track of the missile, particularly of the trapezius and serratus in wounds of the shoulder girdle; and (g) induration or atrophy of an entire muscle following simple piercing by a projectile. Id. For VA rating purposes, the cardinal signs and symptoms of muscle disability are loss of power, weakness, lower threshold of fatigue, fatigue-pain, impairment of coordination; and uncertainty of movement. 38 C.F.R. § 4.56(c). Upon consideration of the relevant medical evidence of record, the Board finds that no more than moderate disability to Muscle Group XIV is shown. The injury from the fragment did not result in hospitalization for a prolonged period for the wound. See 38 C.F.R. § 4.56(a). There is no evidence that the Veteran ever required debridement or experienced prolonged infection, sloughing of soft parts, or intermuscular scarring. In addition, there is no record of consistent complaint of cardinal signs and symptoms of muscle disability, or evidence of inability to keep up with work requirements; to the contrary, the Veteran has reported only occasional cramping without any interference with his ability to perform the tasks of his employment. The Board acknowledges that the Veteran has an entrance wound scar but notes that the May 2010 VA examiner did not find any indications on palpation of loss of deep fascia, muscle substance, or normal firm resistance of muscle compared with the sound side. Impairment of strength, endurance, or coordinated movements is not shown. In fact, the May 2010 examiner noted that the Veteran displayed no muscle weakness, muscle atrophy, or loss of muscle function. Thus, the Board finds that no more than moderate disability was shown. The currently assigned 10 percent rating compensates the Veteran for that level of disability. See 38 C.F.R. § 4.73, Diagnostic Code 5314. Thus, a higher rating under the muscle injury diagnostic code is not warranted for any portion of the rating period. In addition to the assigned rating for a muscle injury, the Board must consider the possible assignment of separate evaluations for separate and distinct symptomatology caused by the injury. This is so to the extent that none of the symptomatology justifying an evaluation under a different diagnostic code duplicates or overlaps with the symptomatology justifying the 10 percent rating under Diagnostic Code 5314. See 38 C.F.R. § 4.25 (2010); see also Esteban v. Brown, 6 Vet. App. 259, 262 (1994). An evaluation of the same disability impairment under another diagnostic code is pyramiding, which is to be avoided. See 38 C.F.R. § 4.14 (2010). Under Diagnostic Code 7801, scars, other than of the head, face or neck, that are deep or that cause limited motion warrant a 10 percent rating when the scars cover an area or areas exceeding 6 square inches (39 sq. cm.). A 20 percent rating is warranted when the area or areas exceeds 12 square inches (77 sq. cm.). A 30 percent rating requires an area or areas exceeding 72 square inches (465 sq. cm.), while a 40 percent rating requires an area or areas exceeding 144 square inches (929 sq. cm.). Under Diagnostic Code 7802, scars, other than of the head, face or neck, that are superficial and that do not cause limited motion, warrant a 10 percent rating when the scars cover an area or areas of 144 square inches (929 sq. cm.) or greater. Diagnostic Code 7803 provides that superficial, unstable scars warrant a 10 percent evaluation. A Note following this Diagnostic Code defines an unstable scar as one where, for any reason, there is frequent loss of skin over the scar; and defines a superficial scar as one not associated with underlying soft tissue damage. Diagnostic Code 7804 provides that a 10 percent disability rating is warranted for a superficial scar that is painful on examination; and Diagnostic Code 7805 provides that a scar is to be evaluated based upon limitation of function of the affected part. (The criteria for rating scars under Diagnostic Codes 7800, 7801, 7802, 7803, 7804, and 7805 were changed in September 2008. 73 Fed. Reg. 54708-12 (Sept. 23, 2008) (effective from October 23, 2008). However, the changes apply only to applications for benefits received by VA on or after October 23, 2008, or to claims where a Veteran requests review under the new criteria. No such request has been made in this case.) Here, the Veteran's scar is not deep, as it was not associated with any underlying soft tissue damage; and it is not unstable, as the May 2010 examiner did not find that there was any loss of skin over the scar. In fact, as noted above, the examiner noted that the Veteran's scar was well-healed and caused no tenderness to palpation. It was not painful, and it did not cause limited motion. As such, a 10 percent evaluation under Diagnostic Code 7801 or 7804 is not warranted. The Veteran's scar was further found to measure 6 square centimeters, which means that a compensable rating under Diagnostic Code 7802 is not warranted. As already noted, the examiner did not find any instability, and found that the Veteran's scar did not cause any limitation of function. As such, a 10 percent evaluation under Diagnostic Code 7803 or 7805 is not warranted. In the Veteran's case, the fragment wound scar is not of such a severe nature to warrant a separate compensable rating under the rating criteria governing scarring. Although the May 2010 examiner acknowledged the Veteran's complaint of occasional discomfort at the site of the scar, the Veteran's scar was not found to be painful on examination. There is further no evidence that any scarring is poorly nourished with repeated ulceration or that it causes any limitation of motion. Current Diagnostic Code 7804 allows for a 10 percent rating for a superficial scar that is painful on examination. See 38 C.F.R. § 4.118 (2010). Absent a showing of pain on examination, a separate 10 percent rating is not warranted. Additionally, other criteria for a compensable rating based on symptoms due to scarring are not met. There is no indication of instability of the scar; there is no indication that the scarring covers an area of 929 square centimeters or greater. 38 C.F.R. § 4.118. Moreover, the scar has not affected function. Diagnostic Code 7801. As such, a separate compensable rating is not warranted for the Veteran's scar under the rating criteria governing scarring. In sum, the evidence of record does not demonstrate that the Veteran is entitled to a higher initial rating under applicable rating criteria at any point since the filing of the claim. The Board notes that in accordance with Fenderson, supra, staged ratings have been considered, but because there is no indication the Veteran's disability was more disabling than warranted by the current 10 percent rating at any point during the claim period, a staged rating is not warranted. The above determination is based upon consideration of applicable rating provisions. It should also be pointed out that there is no showing that the Veteran's right thigh fragment wound residuals have reflected so exceptional or unusual a disability picture as to warrant the assignment of any higher evaluation on an extra-schedular basis. See 38 C.F.R. § 3.321(b)(1) (2010). The symptoms of his disability have been accurately reflected by the schedular criteria. Without sufficient evidence reflecting that the Veteran's disability picture is not contemplated by the rating schedule, referral is not warranted for a determination of whether the Veteran's disability picture requires the assignment of an extra-schedular rating. See Thun v. Peake, 22 Vet. App. 111, 115-16 (2008). For all the foregoing reasons, the Board finds that an initial rating in excess of 10 percent for right thigh fragment wound residuals is not warranted. This is so since the effective date of the award of service connection. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the- doubt doctrine. However, as the preponderance of the evidence is against the Veteran's claim for an initial rating, that doctrine is not applicable. See 38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 3.102, 4.3; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). ORDER Entitlement to an initial rating in excess of 10 percent for right thigh fragment wound residuals is denied. ________________________________ MARK F. HALSEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs