Citation Nr: 1040554 Decision Date: 10/28/10 Archive Date: 11/04/10 DOCKET NO. 09-11 621 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to an evaluation in excess of 10 percent disabling for service-connected residuals of a right shoulder gunshot wound (right shoulder disability). REPRESENTATION Appellant represented by: Texas Veterans Commission ATTORNEY FOR THE BOARD L.M. Yasui, Associate Counsel INTRODUCTION The Veteran served on active duty from December 1963 to November 1967. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a January 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, D.C. VA will notify the appellant if further action is required. REMAND The Veteran's right shoulder disability is currently rated under 38 C.F.R. § 4.73, Diagnostic Code 5304, which pertains to Muscle Group IV. Muscle Group IV relates to the damage of the additional intrinsic muscles of the shoulder girdle: supraspinatus, infraspinatus and teres minor, subscapularis, and coracobrachialis. (Function: Stabilization of shoulder against injury in strong movements, holding head of humerus in socket; abduction; outward rotation and inward rotation of arm.) The disability ratings for slight, moderate, moderately severe, and severe Muscle Group IV disabilities of the dominant shoulder are noncompensable, 10, 20, and 30, respectively. Under Diagnostic Code 5301, which pertains to Muscle Group I, such group affects the function of upward rotation of the scapula; and elevation of the arm above the shoulder level. Group I involves extrinsic muscles of the shoulder girdle (1) Trapezius; (2) levator scapulae; (3) serratus magnus. The disability ratings for slight, moderate, moderately severe, and severe Muscle Group I disabilities of the dominant shoulder are noncompensable, 10, 30, and 40, respectively. 38 C.F.R. § 4.73, Diagnostic Code 5301 (2010). Diagnostic Code 5302 pertains to Muscle Group II, which functions in depression of arm from vertical overhead to hanging at side (1, 2); downward rotation of scapula (3, 4); 1 and 2 acts with Group III in forward and backward swing of the arm. It includes the extrinsic muscles of the shoulder girdle: (1) Pectoralis major II (costosternal); (2) latissimus dorsi and teres major (teres major, although technically an intrinsic muscle, is included with latissimus dorsi); (3) pectoralis minor; and (4) rhomboid. The disability ratings for slight, moderate, moderately severe, and severe Muscle Group II disabilities of the dominant shoulder are noncompensable, 20, 30, and 40, respectively. 38 C.F.R. § 4.73, Diagnostic Code 5302 (2010). Diagnostic Code 5303 pertains to Muscle Group III. The function of muscle group III is to elevate and abduct the arm to shoulder level, and to allow forward and backward swinging of arm. This group acts with the intrinsic shoulder girdle muscles, that is, the Pectoralis major I (clavicular), and the deltoid. The disability ratings for slight, moderate, moderately severe, and severe Muscle Group III disabilities of the dominant shoulder are noncompensable, 20, 30, and 40, respectively. 38 C.F.R. § 4.73, Diagnostic Code 5303 (2010). The combined evaluation of muscle groups acting upon a single unankylosed joint must be lower than the evaluation for unfavorable ankylosis of that joint, except in the case of muscle groups I and II acting upon the shoulder. 38 C.F.R. § 4.55(d). Evaluation of muscle injuries as slight, moderate, moderately severe, or severe, is based on the type of injury, the history and complaints of the injury, and objective findings. 38 C.F.R. § 4.56(d) (2010). A "slight" muscle disability typically involves a simple muscle wound without debridement or infection. Service medical records should reflect incurrence of a superficial wound with brief treatment and return to duty, healing with good functional results, without complaints of the cardinal signs or symptoms of muscle disability. Objective findings should include minimal scarring, no evidence of fascial defect, atrophy, or impaired tonus, and no impairment of function or metallic fragments retained in muscle tissue. Id. A "moderate" disability of the muscles 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. (ii) History and complaint. Service department record or other evidence of in-service treatment for the wound. Record of consistent complaint of one or more of the cardinal signs and symptoms of muscle disability as defined in paragraph (c) of this section, particularly lowered threshold of fatigue after average use, affecting the particular functions controlled by the injured muscles. (iii) Objective findings. Entrance and (if present) exit scars, small or linear, indicating short track of missile through muscle tissue. 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" disability of the muscles 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. Another indication would be having service department records or other evidence showing hospitalization for a prolonged period of treatment for the wound. Consistent with this level of disability is 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. At this level of disability, objective findings indicate a track of missile through one or more muscle groups and, on palpation, loss of deep fascia, muscle substance, or normal firm resistance of muscles compared to the sound side. Id. A "severe" muscle disability results from through and through or deep penetrating wound due to high-velocity missile, or large 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. History and complaints are similar to those required for a moderately severe disability, but in aggravated form. Objective findings include ragged, depressed, and adherent scars indicating wide damage to muscle groups in missile track; palpation shows loss of deep fascia or muscle substance, or soft flabby muscles in wound area; muscles swell and harden abnormally in contraction; tests of strength, endurance or coordinated movements compared with corresponding muscles of the uninjured side indicate severe impairment of function; X-ray evidence of minute multiple scattered foreign bodies indicating intermuscular trauma and explosive effect of the missile; adhesion of scar to a long bone; diminished muscle excitability to pulsed electrical current in electrodiagnostic tests; visible or measurable atrophy; adaptive contraction of an opposing muscle group; atrophy of muscle groups not in the track of the missile; and induration or atrophy of an entire muscle group. Id. For VA purposes, the cardinal signs and symptoms of muscle disability are loss of power, weakness, lowered threshold of fatigue, fatigue-pain, impairment of coordination, and uncertainty of movement. 38 C.F.R. § 4.56(c) (2010). Based on the above criteria, the Board finds that the most recent VA examination from December 2008 is inadequate to rate the Veteran's current right shoulder disability. The examination report does not contain the information necessary to determine whether the Veteran's muscle damage from a gunshot wound is slight, moderate, moderately severe, or severe. Indeed, the examiner failed to classify the Veteran's muscle injuries according to the group designations contained in the rating criteria, as detailed above. In short, the muscle involvement and severity of muscle injury resulting from the Veteran's gunshot wound of the right shoulder are unclear from the December 2008 examination. In this regard, once VA undertakes the effort to provide an examination in a service connection claim, it must provide an adequate one. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007); see also Stefl v. Nicholson, 21 Vet. App. 120 (2007) (noting that a medical opinion must describe the disability in sufficient detail so the Board can make a fully informed evaluation of the disability). Therefore, on remand, the Veteran should be afforded another VA examination to identify the specific muscle groups affected by the gunshot wound of his right shoulder according to the designations provided in the rating code, e.g. Muscle Groups I, II, III, and/or IV. The examiner should indicate whether any such injuries are slight, moderate, moderately severe, or severe. Accordingly, the case is REMANDED for the following action: 1. Schedule the Veteran for a VA examination to determine the current severity of his service-connected residuals of a gunshot wound of the right shoulder. The claims folder must be provided to and reviewed by the examiner in conjunction with the examination. All indicated tests should be conducted, including X-rays, and all Muscle Groups involved as well as all symptoms should be described in detail, including, as applicable, information for rating such disability under Diagnostic Codes 5301, 5302, 5303, and 5304 respectively. The examiner should identify each muscle group that is currently affected by the service- connected disability and distinguish any symptoms and findings not caused by service-connected disability. If it is not possible to distinguish such symptoms without resort to speculation, then this should be stated. The examination report should include a complete rationale for all opinions and conclusions reached. In examining the right shoulder, the examiner should document any limitation of motion (in degrees), to include providing the point at which painful motion begins. The examiner should also indicate whether there is any guarding of the shoulder on motion and the degrees at which the guarding starts. The examiner should offer an opinion whether any limited range of motion resulting from service-connected disability is slight, moderate, moderately severe, or severe, as applicable. The examiner should be asked to indicate whether pain or weakness significantly limits functional ability during flare- ups or when the right shoulder is used repeatedly over a period of time. The examiner should also be asked to determine whether the joint exhibits weakened movement, excess fatigability or incoordination; if feasible, these determinations should be expressed in terms of additional range-of-motion loss due to any weakened movement, excess fatigability or incoordination. If it is not feasible to express any functional impairment caused by pain, weakened movement, excess fatigability or incoordination, found in terms of additional range-of-motion loss, the examiner should so state. The examiner should indicate, as to each muscle group affected by service- connected disability, whether there is evidence of pain, loss of deep fascia, loss of muscle substance, or loss of normal firm resistance of muscles compared with the sound side. The examiner should perform tests of strength and endurance of the muscle groups involved. The examiner should note any neurological impairment in the upper right extremity that is attributable to the Veteran's service-connected disability; and whether such neurological findings are slight, moderate, moderately severe, or severe. The examiner should distinguish any symptoms and findings not caused by service-connected disability. If it is not possible to distinguish such symptoms without resort to speculation, then this should be stated. The examiner should also comment on the size and shape of any scars that are associated with the disability at issue (if any), and note whether such scars are superficial or deep and if there is any limitation of motion due to such scars. In addition, the examiner should comment on the Veteran's current level of social and occupational impairment due to his right shoulder disability, including the impact it has on his ability to work. Any indications that the Veteran's complaints or other symptomatology are not in accord with the objective findings on examination should be directly addressed and discussed in the examination report. 2. The RO should review the claims folder and ensure that all of the foregoing development actions have been conducted and completed in full. In this regard, the RO should ensure that the detailed questions asked by the Board have been addressed by the examiner. If any development is incomplete, appropriate corrective action is to be implemented. Specific attention is directed to the report of examination. If the requested report does not include adequate responses to the specific opinions requested, the report must be returned for corrective action. 38 C.F.R. § 4.2 (2009); See also Stegall v. West, 11 Vet. App. 268 (1998). 3. Following completion of the above, the appeal should be readjudicated. If the benefit sought is not granted, the Veteran and his representative should be furnished an appropriate supplemental statement of the case and be provided an opportunity to respond. The claim should be returned to the Board as warranted. The appellant has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2009). _________________________________________________ JOHN J. CROWLEY Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2009).