Citation Nr: 1134830 Decision Date: 09/16/11 Archive Date: 09/23/11 DOCKET NO. 06-15 455 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Whether there is clear and unmistakable error (CUE) in assignment of an initial 20 percent rating for traumatic chest wall defect of pneumothorax. 2. Whether there is CUE in ratings for the residuals of a through-and-through gunshot wound (GSW) of the left chest. 3. Whether there is CUE in ratings for the residuals of a GSW of the right shoulder. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL Appellant (the Veteran) and his father ATTORNEY FOR THE BOARD Joseph P. Gervasio, Counsel INTRODUCTION The Veteran, who is the Appellant, served on active duty from September 1989 to May 1993. This case comes to the Board of Veterans' Appeals (Board) on appeal of rating decisions of the St. Petersburg, Florida, Regional Office (RO) of the Department of Veterans Affairs (VA). The Veteran claims CUE in the initial, August 1993, rating decision, which granted service connection for a scar of a chest tube site of the left lateral chest, scars of the left anterior chest and left scapula, entrance wound sites; a left upper posterior exit wound site; bullet excision site scar of the right scapula; and residuals of a left pneumothorax. All disabilities were initially rated as zero percent disabling. In a September 2006 rating decision, CUE was found in the rating for residuals of a left pneumothorax, and that disability was retroactively assigned a 20 percent rating (from May 25, 1993). The Veteran contends that a rating in excess of 20 percent for residuals of a left pneumothorax was warranted from 1993. A rating decision in August 2006 assigned a 10 percent rating for the chest tube site scar of the left lateral chest and a 10 percent rating for scars of the left scapula and left upper posterior exit wound site and right scapula, both effective from September 2, 2005 (date of receipt of claims for increased rating). The issues on appeal were remanded by the Board in December 2008 and January 2011. A travel board hearing was held before the undersigned Veterans Law Judge in June 2011 in St. Petersburg, Florida. A transcript of the hearing is associated with the Veteran's claims file. FINDINGS OF FACT 1. At the time of the August 1993 rating decision, the evidence showed that the chest wall defect, status post pneumothorax, was manifested by a retained metallic foreign body in the left lung, without demonstration of thickened pleura, restricted expansion of the lower chest, compensating contralateral emphysema, deformity of the chest, scoliosis, or hemoptsysis at intervals. 2. In June 1999, the Veteran continued to manifest a retained metallic foreign body in the left lung, with pulmonary function studies showing FEV-1 and FEV-1/FVC in excess of 70 percent predicted. 3. At the time of the August 1993 rating decision, the evidence showed that the Veteran had tender scars and paresthesia at the site of the chest tube insertion of the left lateral chest. 4. At the time of the August 1993 rating decision, the evidence showed that the Veteran had tender scars and paresthesia at the site of the chest tube insertion to the right shoulder. 5. At the time of the August 1993 rating decision, the evidence showed that the GSW of the Veteran's left chest was a through-and-through wound that was productive of moderately severe injury of Muscle Groups II and IV in the same anatomical area of the left shoulder girdle. 6. At the time of the August 1993 rating decision, the evidence showed that the GSW of the Veteran's right shoulder was productive of moderately severe injury of Muscle Groups I or II and additional injury of Muscle Group IV in the same anatomical area of the right shoulder girdle. CONCLUSIONS OF LAW 1. The August 1993 RO rating decision was not clearly and unmistakably erroneous in not granting a rating in excess of 20 percent for a left pneumothorax. 38 U.S.C.A. § 1155 (West 1991); 38 U.S.C.A. § 5109A (West 2002); 38 C.F.R. §§ 3.104, 3.105, 4.97, Diagnostic Codes 6817 (1993) and 6843 (2010). 2. The August 1993 rating decision contained CUE by failing to grant a 10 percent rating for tender scars at the site of the chest tube insertion to the left chest. 38 U.S.C.A. § 1155 (West 1991); 38 U.S.C.A. § 5109A (West 2002); 38 C.F.R. §§ 3.104, 3.105, 4.118, Diagnostic Codes 7803, 7804, and 7805 (1993). 3. The August 1993 RO rating decision contained CUE by failing to grant a 30 percent rating for a through-and-through GSW of the left chest, with injury of Muscle Groups II and IV. 38 U.S.C.A. § 5109A (West 2002); 38 C.F.R. §§ 3.104, 3.105 (2010); 38 C.F.R. §§ 4.47-4.72, Diagnostic Codes 5302, 5304 (1993) (2010). 4. The August 1993 RO rating decision contained CUE by failing to grant a 40 percent rating for a GSW of the right shoulder, with injury of Muscle Groups II and IV. 38 U.S.C.A. § 5109A (West 2002); 38 C.F.R. §§ 3.104, 3.105 (2010); 38 C.F.R. §§ 4.47-4.72, Diagnostic Codes 5302, 5304 (1993) (2010). 5. The August 1993 rating decision contained CUE by failing to grant a 10 percent rating for tender scars at the site of the chest tube insertion to the right shoulder. 38 U.S.C.A. § 1155 (West 1991); 38 U.S.C.A. § 5109A (West 2002); 38 C.F.R. §§ 3.104, 3.105, 4.118, Diagnostic Codes 7803, 7804, and 7805 (1993). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist The United States Court of Appeals for Veterans Claims (Court) has held that the Veterans Claims Assistance Act of 2000 (VCAA) does not apply to CUE actions. See Livesay v. Principi, 15 Vet. App. 165 (2001) (en banc) (holding VCAA does not apply to Board CUE motions); Baldwin v. Principi, 15 Vet. App. 302 (2001) (holding VCAA does not apply to RO CUE claims). Specifically, determinations as to the existence of CUE are based on the facts of record at the time of the decision challenged; thus, no further factual development would be appropriate. See Fugo v. Brown, 6 Vet. App. 40, 43 (1993); Pierce v. Principi, 240 F.3d 1348 (Fed. Cir. 2001) (affirming the Court's interpretation of 38 U.S.C.A. § 5109A that RO CUE must be based upon the evidence of record at the time of the decision); Disabled Am. Veterans v. Gober, 234 F.3d 682 (Fed. Cir. 2000) (upholding Board CUE regulations to this effect). Law and Regulations Pertaining to CUE Rating actions are final and binding based on the evidence on file at the time the claimant is notified of the decision and may not be revised on the same factual basis except by a duly constituted appellate authority. 38 C.F.R. § 3.104(a). The claimant has one year from notification of an RO decision to initiate an appeal by filing a notice of disagreement with the decision, and the decision becomes final if an appeal is not perfected within the allowed time period. 38 U.S.C.A. § 7105(b), (c) (West 2002); 38 C.F.R. §§ 3.160(d), 20.200, 20.201, 20.202, and 20.302(a) (2010). Under 38 C.F.R. § 3.105(a), previous determinations which are final and binding will be accepted as correct in the absence of CUE. Where evidence establishes such error, the prior decision will be reversed or amended. A decision, which constitutes a reversal of a prior decision on the grounds of CUE, has the same effect as if the corrected decision had been made on the date of the reversed decision. 38 U.S.C.A. § 7105. The Court has propounded a three-pronged test to determine whether clear and unmistakable error is present in a prior determination. First, either the correct facts, as they were known at the time, were not before the adjudicator (i.e., more than a simple disagreement as to how the facts were weighed or evaluated) or the statutory or regulatory provisions extant at the time were incorrectly applied. Second, the error must be "undebatable" and of the sort "which, had it not been made, would have manifestly changed the outcome at the time it was made." Third, a determination that there was clear and unmistakable error must be based on the record and the law that existed at the time of the prior adjudication in question. Damrel v. Brown, 6 Vet. App. 242, 245 (1994) (quoting Russell v. Principi, 3 Vet. App. 310, 313-14 (1992) (en banc)). CUE is an administrative failure to apply the correct statutory and regulatory provisions to the correct and relevant facts. It is not mere misinterpretation of facts. Oppenheimer v. Derwinski, 1 Vet. App. 370, 372 (1991). It is a very specific and rare kind of error of fact or law that compels the conclusion, as to which reasonable minds could not differ, that the result would have been manifestly different but for the error. Fugo v. Brown, 6 Vet. App. 40, 43 (1993). If a claimant wishes to reasonably raise CUE, there must be some degree of specificity as to what the alleged error is and, unless it is the kind of error that, if true, would be CUE on its face, persuasive reasons must be given as to why the result would have been manifestly different but for the alleged error. It must be remembered that there is a presumption of validity to otherwise final decisions and that where such decisions are collaterally attacked, and a CUE claim is undoubtedly a collateral attack, the presumption is even stronger. See Fugo, supra; see also Grover v. West, 12 Vet. App. 109, 111-112 (1999); Daniels v. Gober, 10 Vet. App. 474, 478 (1997); Caffrey v. Brown, 6 Vet. App. 377, 383-384 (1994); Damrel v. Brown, 6 Vet. App. 242, 245 (1994). Rating Law and Regulations Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule) found in 38 C.F.R. Part 4. 38 U.S.C.A. § 1155. It is not expected that all cases will show all the findings specified; however, findings sufficiently characteristic to identify the disease and the disability therefrom and coordination of rating with impairment of function will be expected in all instances. 38 C.F.R. § 4.21 (2010). Where there is a question as to which of two evaluations shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2010). When there is an approximate balance of positive and negative 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. §§ 4.3, 4.7 (2010). The Court has held that "staged" ratings are appropriate for a rating claim where the factual findings show distinct time periods when the service-connected disability exhibits symptoms that would warrant different ratings. Fenderson v. West, 12 Vet. App. 119 (1999) (initial ratings); Hart v. Mansfield, 21 Vet. App. 505 (2007) (increased ratings). The Board has reviewed all the evidence in the Veteran's claims file, with an emphasis on the evidence relevant to these appeals. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (holding that VA must review the entire record, but does not have to discuss each piece of evidence). Hence, the Board will summarize the relevant evidence where appropriate and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, as to the claim. Whether CUE in August 1993 Rating of Pneumothorax Service connection for the residuals of pneumothorax, rated zero percent disabling, was initially granted by the RO in an August 1993 rating decision. In a September 2006 rating decision, CUE was found in the August 1993 rating decision, with a retroactive award of 20 percent for a traumatic chest wall defect, pneumothorax, effective from May 25, 1993. Evidence of record at the time of the August 1993 rating decision included the Veteran's service treatment records (STRs) and examinations performed by and for VA in July 1993. The STRs show the Veteran's multiple GSWs of the chest in April 1991 for which he was hospitalized. An August 1991 report shows that one bullet passed completely though, with the other remaining lodged subcutaneously in the right shoulder, lateral to the right scapula. This bullet was not initially removed due to the risk of pneumothorax on the right, as the left lung had already been collapsed. While the reports of hospitalization are not included in the STRs, the STRs note that in May 1991 the Veteran was doing well in general, but was deconditioned and fatigued easily. STRS show that at the time of the wounding the Veteran had sustained a pneumothorax of the left lung. STRs also show that during service in August 1991 the Veteran underwent removal of the bullet that was lodged subcutaneously in the right shoulder, lateral to the right scapula. On examination for separation from service, chest tube scars on the left axilla, with paresthesia in the area of these scars, was noted. A report of an August 1991 chest X-ray study showed an eight mm shrapnel piece in the left lung lobe, and the lung fields were otherwise clear. A July 1993 VA examination report that was of record at the time of the August 1993 RO rating decision showed that the Veteran had had a collapse of the left lung as a result of the GSW in service. On examination in July 1993, the Veteran complained of sharp pain that radiated from the front of the chest through to the back. The pains were aggravated by any lifting, pushing, or pulling with the arms. Examination in July 1993 revealed scars on the left side of the chest where tubes were put into his chest cavity after the gunshot wound, and that the shoulders were level. On neurologic examination, the Veteran stated that he had occasional sharp pains in the substernal region and under his left rib cage. Examination revealed muscle spasms in the interscapular region and some pain and numbness in the left chest at the site of the chest tube insertion. X-ray studies showed pleural scarring at the left base. There was no active parenchymal pathology and no evidence of pleural fluid. A small metallic density was seen projected over the left hilar area. Regulations in effect at the time of the August 1993 rating decision provided that, for injuries of the pleural cavity, including GSW, a 20 percent rating was warranted for bullet or missile retained in the lung, with pain or discomfort on exertion, or with scattered rales or some limitation of excursion of the diaphragm or of lower chest expansion. A 40 percent rating was warranted for moderately severe disability, with pain in the chest and dyspnea on moderate exertion (exercise tolerance test), adhesions of the diaphragm, with excursions restricted, moderate myocardial deficiency and one or more of the following: thickened pleura, restricted expansion of the lower chest, compensating contralateral emphysema, deformity of the chest, scoliosis, or hemoptysis at intervals. 38 C.F.R. § 4.97, Diagnostic Code 6818 (1993). The RO has already determined that there was CUE in the August 1993 rating decision that failed to assign a 20 percent rating for the pneumothorax that occurred at the time the Veteran sustained the through and through GSW of the left chest. It only remains to be determined if the August 1993 rating should have clearly been in excess of 20 percent. It is unfortunate that the evidence available at the time of the August 1993 rating decision did not include exercise tolerance testing that could have documented dyspnea on moderate exertion; however, even if such were demonstrated, symptoms of thickened pleura, restricted expansion of the lower chest, compensating contralateral emphysema, deformity of the chest, scoliosis, or hemoptysis at intervals were not documented in the examination reports. The 40 percent rating requires that at least one of these symptoms be documented. The evidence of record at the time of the August 1993 rating decision did not demonstrate at least one of these symptoms. As such, a rating in excess of 20 percent for the pneumothorax was not clearly warranted at the time of the August 1993 rating decision. For these reasons, the Board finds that the August 1993 RO rating decision was not clearly and unmistakably erroneous in not granting a rating in excess of 20 percent for a left pneumothorax. 38 U.S.C.A. § 1155 (West 1991); 38 U.S.C.A. § 5109A (West 2002); 38 C.F.R. §§ 3.104, 3.105, 4.97, Diagnostic Codes 6817 (1993) and 6843 (2010). The Veteran has also contended that there was CUE in subsequent rating decisions that failed to establish a rating in excess of the 20 percent award for the left pneumothorax. Prior to the September 2006 rating decision that found CUE and assigned the 20 percent rating (from May 25, 1993), the Veteran's pneumothorax residuals, now including a traumatic chest wall defect, were rated in a June 1999 rating decision. (A 2003 rating decision dealt with service connection issues and did not address the rating of the Veteran's pneumothorax residuals.) The rating of the Veteran's traumatic chest wall defect, pneumothorax, were increased to 10 percent on the basis of pulmonary function testing that was performed in 1998. The 10 percent rating was superseded by the findings of CUE in 2006 that retroactively assigned the 20 percent rating to May 25, 1993. To the extent the June 1999 rating decision did not grant a rating in excess of 20 percent, the assertion of CUE applies to the June 1999 rating decision. It is noted that the criteria for evaluation of a pneumothorax were changed prior to the 1999 rating decision. Diagnostic Code 6818, on which the Veteran was evaluated as 20 percent disabling is no longer in effect. Under current rating criteria, in effect since October 7, 1996, traumatic chest wall defects, including pneumothorax, hernia, etc., are evaluated pursuant to criteria at 38 C.F.R. § 4.97, Diagnostic Code 6843. Disabilities under this Code are in turn evaluated under the General Rating Formula for Restrictive Lung Disease. Under the General Formula for Restrictive Lung Disease, a 10 percent rating is warranted where Forced Expiratory Volume (FEV-1) is 71 to 80 percent; or the ratio of Forced Expiratory Volume in one second to Forced Vital Capacity (FEV-1/FVC) s 71 to 80 percent; or where or Diffusion Capacity of the Lung for Carbon Monoxide by the Single Breath Method (DLCO (SB)) is 66 to 80 percent predicted. A 30 percent rating is warranted where FEV-1 is 56 to 70 percent; FEV-1/FVC is 56 to 70 percent; or DLCO (SB) is 56 to 65 percent of predicted. A 60 percent rating is warranted for FEV-1 of 40 to 55 percent of predicted value; or the FEV-1/FVC is 40 to 55 percent of predicted value; or DLCO (SB) is 40 to 55 percent of predicted. Note 3 to Diagnostic Code 6843 specifically states that gunshot wounds of the pleural cavity with bullet or missile retained in lung, pain or discomfort on exertion, or with scattered rales or some limitation of excursion of diaphragm or of lower chest expansion shall be rated at least 20 percent disabling. The Board also notes that the Rating Schedule concerning respiratory conditions was further amended, effective from October 6, 2006. VA added provisions that clarify the use of pulmonary function tests in evaluating respiratory conditions. A new paragraph (d) to 38 C.F.R. § 4.96, is titled "Special provisions for the application of evaluation criteria for diagnostic codes 6600, 6603, 6604, 6825-6833, and 6840- 6845." In pertinent part, this regulation requires post- bronchodilator studies when pulmonary function tests are done for disability evaluation purposes, except when the results of pre-bronchodilator pulmonary function tests are normal or when the examiner determines that post-bronchodilator studies should not be done and states why. 38 C.F.R. § 4.96(d)(4). The Veteran underwent pulmonary function testing in February 1999. At that time, FVC-1 was noted to be 84 percent predicted and FEV-1/FVC was 74 percent predicted. DLCO measurements were not performed. On examination of the respiratory system, a GSW scar located at the upper sterna area to the left and a GSW scar located at the left back lateral to the scapula and an exit scar from the front exiting through the mid area of the thoracic spine. The lungs were clear with good and symmetrical ventilation. There were no wheezes, rhonchi, or rales. Pulmonary function testing showed a mild obstructive lung defect with insignificant response to bronchodilator. A chest X-ray study showed a semilunar shaped 10 mm by 4 mm metallic density seen in the left upper lobe. There was also some minimal tenting of the left hemidiaphragm with slight blunting of the left lateral costophrenic angel. Lung fields showed no other abnormalities. The diagnosis was GSW of the left hemithorax secondary hemopneumothorax status post closed thoracostomy with secondary scarring in the left lower lobe. In accordance with Note 3 of the General Rating Formula for Restrictive Lung disease, the chest wall defect, status post pneumothorax, is rated the minimal 20 percent rating. For a 30 percent rating, pulmonary function testing demonstrating FEV-1 or FEV-1/FVC of less than 70 percent predicted would have to have been demonstrated. It is unfortunate that DLCO testing was not conducted, but as previously noted, CUE claims must be adjudicated based upon the evidence that was of record at the time. The necessary level of impairment for a rating of 30 percent, FEV-1 or FEV-1/FVC of less than 70 percent predicted, was not shown on pulmonary function testing in February 1999 or by any other evidence of record at the time of he the 1999 rating decision. For these reasons, the Board finds that it is not CUE for the June 1999 rating decision to not assign a rating in excess of 20 percent. It is also noted that the records from the GSW show that the exit wound of the through-and through GSW of the left chest, that caused the pneumothorax and chest wall defect, exited near the 4th thoracic vertebra. Thus, Muscle Group XXI, the muscles of respiration were likely affected. Note 3 following the General Rating Formula for Restrictive Lung Disease, includes a prohibition of a separate rating for involvement of Muscle Group XXI. As such, a separate rating for any such involvement would be pyramiding. 38 C.F.R. § 4.14. CUE in August 1993 Rating of GSW of the Left Chest Evidence of record at the time of the August 1993 rating decision that first evaluated the Veteran's GSWs showed that the Veteran sustained the injuries when he went to the assistance of a friend who was being mugged. The assailant shot him twice in the chest, with the first bullet being a through-and through wound collapsing the left lung and the second coming to rest under the right scapula and requiring surgical removal. The Veteran was initially treated at Charity Hospital, New Orleans, Louisiana where he spent four days in the intensive care unit (ICU) and was discharged to a U.S. Air Force Hospital at Kessler Air Force Base after the fifth day. He spent three weeks hospitalized at Kessler, then returned to duty after thirty days convalescent leave. Unfortunately, the medical records from Charity Hospital and Kessler Air Force Base Hospital were never obtained and are not of record. The Veteran's STRs show that in May 1991, after returning from 30 days convalescent leave, the Veteran was doing well in general, but deconditioned. Regarding the through and through wound of the left chest, there was a wound to the anterior chest and an exit wound of the posterior chest. On examination for entry into active duty, the Veteran indicated that he was right handed; therefore, his right upper extremity is his major extremity and his left upper extremity is his minor extremity. On examination by VA in July 1993, a small scar over the wound of entrance in the left anterior chest, one inch lateral to the sternum between the second and third ribs was noted. An exit scar just to the left of the spinous processes of approximately the 4th thoracic vertebra was noted. This bullet was shown to have been the cause of the collapse of the Veteran's left lung, which has been separately evaluated (20 percent rating for chest wall defect and pneumothorax). Regulations in effect at the time of the 1993 rating decision provide that disabling injuries of the shoulder girdle muscles (Groups I to IV) will be separately rated for combination. 38 C.F.R. § 4.97, Code 6818, Note (1) (1993). Disability of a muscle group is based on impaired joint motion and its ability to perform its full work. Principal symptoms are weakness and fatigability, and coordination, swelling, deformity, and atrophy. The principal factors are impairment of delicate coordination, strength of scar bound muscles, and lowering of fatigue threshold. Skin scars are incidental and negligible but allow for envisaging the whole track of the missile, including any bony or nerve involvement. It is the deep intra-and inter-muscular scarring that is disabling. Through-and-through or other wounds of the deep structure almost invariably cause scarring so that muscles pull against other muscles causing incoordination and loss of strength. Prolonged exertion brings about fatigue and pain, thus interfering with function. 38 C.F.R. §§ 4.47, 4.48, 4.49, 4.50, 4.51, and 4.54 (1993). At the time of the August 1993 rating decision, the regulations provided, that in rating injuries of the musculoskeletal system, attention is first given to the deepest structures injured (bones, joints and nerves). "A through-and-through injury, with muscle damage, is at least a moderate injury for each group of muscles damaged." Entitlement to a rating of severe grade is established when there is a history of "compound comminuted fracture and definite muscle or tendon damage from the missile." Entitlement to a rating of severe grade, generally, is established when there is a history of compound, comminuted fracture and definite muscle or tendon damage. However, the regulations recognize that there are locations, as in the wrist or over the tibia, where muscle damage might be minimal or damage to tendons might be repaired by sutures; in such cases, the requirements for a severe rating are not necessarily met. 38 C.F.R. § 4.72 (1993). At the time of the August 1993 rating decision, muscle injuries were classified into four general categories: Slight, moderate, moderately severe, and severe. Separate evaluations are assigned for the various degrees of disability. Slight disability of the muscle anticipates a simple muscle wound without debridement or infection with the effects of laceration with a history of a wound of slight severity and relieved with brief treatment and returned to duty. A history of healing with good functional results without consistent complaints of the cardinal symptoms of muscle injury or painful residuals is also contemplated. Objective findings of a slight disability including minimal scar, slight, if any, evidence of fascial defect, atrophy, or impaired tonus, and no significant impairment of function or retained metallic fragments. 38 C.F.R. § 4.56 (a) (1993). Moderate disability of the muscle anticipates a through-and- through or deep penetrating wound of short track from a single bullet, small shell or shrapnel fragment, without explosive effect of a high velocity missile, residuals of debridement, or prolonged infection. A history consistent with a moderate disability would include evidence of hospitalization in service or treatment of the wound, and complaints of one or more of the cardinal signs and symptoms, particularly lowered threshold of fatigue after average use. Objective findings include entrance, and if present, exit scars indicating a short track of missile, some loss of deep fascia or muscle substance or impairment of muscle tonus and of definite weakness or fatigue in comparative tests. 38 C.F.R. § 4.56(b) (1993). A moderately severe disability of the muscles anticipates a through-and-through or deep open penetrating wound by a small high velocity missile or a large low-velocity missile, with debridement, prolonged infection, or sloughing of the soft parts, and intermuscular scarring. There should be a history of hospitalization for a prolonged period of treatment of the wound in service. A record of cardinal symptoms, such as loss of power, weakness, lowered threshold of fatigue, fatigue-pain, impairment of coordination and uncertainty of movement, and evidence of unemployability because of inability to keep up work requirements should be considered. Objective findings should include entrance and exit scars indicating a track of a missile through one or more muscle groups. Objective findings should also include indications on palpation of loss of deep fascia, moderate loss of muscle substance, or normal firm resistance of muscles compared to a sound side. Tests of strength and endurance compared with sound side should demonstrate positive evidence of moderately severe loss. 38 C.F.R. § 4.56(c) (1993). A severe muscle disability results from 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, with intermuscular binding and cicatrization and service medical records or other evidence showing hospitalization for a prolonged period for treatment of the wound. Objective findings may include a ragged, depressed and inherent scars indicating wide damage to muscle groups in missile track, palpation showing moderate or extensive loss of deep fasciae or muscle substance, or soft flabby muscles in wound area and abnormal swelling and hardening of muscles in contraction. Tests of strength, endurance, or coordinated movements compared with decreased muscles of the nonmajor side indicates severe impairment of function. If present, the following are also signs of severe muscle disability: X-ray evidence of minute multiple scattered foreign bodies indicating intermuscular trauma and explosive effect of the missile; adhesion of scar to one of the long bones, scapula, pelvic bones, sacrum or vertebrae, with epithelial filling over the bone rather than true skin covering in an area where bone is normally protected by muscle; diminished muscle excitability to pulsed electrical current and electrodiagnostic tests, visible or measurable atrophy; adaptive contraction of an opposing group of muscles; atrophy of muscle groups not in the track of the missile; induration or atrophy of an entire muscle following simple piercing by a projectile. 38 C.F.R. § 4.56(c) (1993). Muscle Group I encompasses some of the extrinsic muscles of the shoulder girdle, which control upward rotation of the scapula, or elevation of the arm above shoulder level. These muscle include the trapezius, levator scapulae, and the seratus magnus. For the minor extremity, a noncompensable evaluation is assigned under this diagnostic code for a slight disability; 10 percent is assigned for a moderate disability; 20 percent for moderately severe disability; and 30 percent for severe disability. 38 C.F.R. § 4.73, Diagnostic Code 5301 (1993). Muscle Group II also encompasses the extrinsic muscles of the shoulder girdle, which act to depress the arm from the vertical overhead to hanging by the side and act with group III in forward and backward swing of the arm. These muscles include the pectoralis major II (costosternal), latissimus dorsi and teres major, pectoris minor, rhomboid, and the teres majoris, which is technically an intrinsic muscle, but is included with the latissimus dorsal. Ratings provide that slight impairment warrants a zero percent rating; moderate impairment warrants a 20 percent disability evaluation. A moderately severe impairment of the minor side warrants a 20 percent disability evaluation and, a 30 percent disability evaluation is warranted for a severe impairment of the minor extremity. 38 C.F.R. § 4.73, Diagnostic Code 5302 (1993). Muscle Group III encompasses the intrinsic muscles of the shoulder girdle, which act to elevate and abduct the arm to the level of the shoulder and act with groups I and II in forward and backward swing of the arm. These muscles include the pectoralis major I (clavicular) and deltoid. Ratings provide that slight impairment warrants a zero percent rating; moderate impairment warrants a 20 percent disability evaluation. A moderately severe impairment of the minor side warrants a 20 percent disability evaluation and, a 30 percent disability evaluation is warranted for a severe impairment of the minor extremity. 38 C.F.R. § 4.73, Diagnostic Code 5302 (1993). Muscle Group IV encompasses additional intrinsic muscles of the shoulder girdle, which act to stabilize muscles of the shoulder against injury in strong movements, hold the head of the humerus in the socket, and with abduction, outward rotation and inward rotation. These muscles include the supraspinatus, infraspinatus, teres minor, subscapularis, and coracobrachialis. Ratings provide that slight impairment warrants a zero percent rating; moderate impairment warrants a 10 percent disability evaluation. A moderately severe impairment of the minor side warrants a 20 percent disability evaluation and, a 20 percent disability evaluation is warranted for a severe impairment of the minor extremity. 38 C.F.R. § 4.73, Diagnostic Code 5304 (1993). Where there are muscle injuries in the same anatomical region such as the shoulder girdle and arm, the ratings for those injuries will not be combined, but instead, the rating for the major group will be elevated from moderate to moderately severe, or from moderately severe to severe, according to the severity of the aggregate impairment of function of the extremity. 38 C.F.R. § 4.55 (1993). The Veteran sustained a through-and-through GSW of the left chest, which, under rating regulations in effect in 1993, should have been considered productive of moderately severe impairment. By evaluating the entrance and exit wound scars, from one inch lateral to the sternum to just to the left of the spinous processes of the fourth thoracic vertebra, the Board finds that two muscle groups, intrinsic, Muscle Group II, and extrinsic muscles, Muscle Group IV, of the shoulder girdle were involved. In this regard, the pectoralis major II, also known as the costoseternal muscle, was damaged at entry, and the supraspinatus muscle was injured on exit. (Muscle group XXI may also have been involved, but from the evidence of record, this cannot be determined.) The Veteran was hospitalized for four days in ICU then transferred to an Air Force Hospital for an additional three weeks. While these records are not available, the length of hospitalizations are indicative of the significant injury that was sustained. Thus, the Board finds that, at least, moderately severe injury of these muscle groups to the left chest resulted from the GSW. Under the criteria in effect in 1993, these would be combined to a single severe injury of the major group involved, Muscle Group II. Severe impairment of Muscle Group II for a minor extremity warrants a 30 percent rating. This clearly, and without debate, should have been assigned in the August 1993 rating decision. But for the CUE, a 30 percent rating would have been assigned for residuals of GSW to the left chest from the effective date of service connection in May 1993. Pursuant to the regulatory amendment effective July 3, 1997, changes were made to the schedular criteria for evaluating muscle injuries, as set forth in 38 C.F.R. §§ 4.55, 4.56, and 4.72. See 62 Fed. Reg. 30237-240 (1997). For instance, 38 C.F.R. § 4.72 was removed and the provisions contained in that regulation were incorporated into the provisions of 38 C.F.R. § 4.56. As noted, the former provisions of 38 C.F.R. § 4.55 provided that muscle injuries in the same anatomical region would not be combined, but instead the rating for the major group would be elevated from moderate to moderately severe or from moderately severe to severe according to the aggregate impairment of function of the extremity. That regulation also provided that two or more muscles affecting the motion of a single joint could be combined but not in combination receive more than the rating for ankylosis of that joint at the intermediate angle. Additionally, that regulation provided that muscle injury ratings would not be combined with peripheral nerve paralysis ratings. 38 C.F.R. § 4.55 (prior to July 3, 1997). The new provisions of 38 C.F.R. § 4.55, are as follows: (a) A muscle injury rating will not be combined with a peripheral nerve paralysis rating of the same body part, unless the injuries affect entirely different functions. (b) For rating purposes, the skeletal muscles of the body are divided into 23 muscle groups in 5 anatomical regions: 6 muscle groups for the shoulder girdle and arm (diagnostic codes 5301 through 5306); 3 muscle groups for the forearm and hand (diagnostic codes 5307 through 5309); 3 muscle groups for the foot and leg (diagnostic codes 5310 through 5312); 6 muscle groups for the pelvic girdle and thigh (diagnostic codes 5313 through 5318); and 5 muscle groups for the torso and neck (diagnostic codes 5319 through 5323). (c) There will be no rating assigned for muscle groups which act upon an ankylosed joint, with the following exceptions: (1) In the case of an ankylosed knee, if muscle group XIII is disabled, it will be rated, but at the next lower level than that which would otherwise be assigned. (2) In the case of an ankylosed shoulder, if muscle groups I and II are severely disabled, the evaluation of the shoulder joint under diagnostic code 5200 will be elevated to the level for unfavorable ankylosis, if not already assigned, but the muscle groups themselves will not be rated. (d) 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. (e) For compensable muscle group injuries which are in the same anatomical region but do not act on the same joint, the evaluation for the most severely injured muscle group will be increased by one level and used as the combined evaluation for the affected muscle groups. (f) For muscle group injuries in different anatomical regions which do not act upon ankylosed joints, each muscle group injury shall be separately rated and the ratings combined under the provisions of Sec. 4.25. 38 C.F.R. § 4.55 (2010) The new version of 38 C.F.R. § 4.56 states: (a) An open comminuted fracture with muscle or tendon damage will be rated as a severe injury of the muscle group involved unless, for locations such as in the wrist or over the tibia, evidence establishes that the muscle damage is minimal. (b) A through-and-through injury with muscle damage shall be evaluated as no less than a moderate injury for each group of muscles damaged. (c) For VA rating 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. (d) Under Diagnostic Codes 5301 through 5323, disabilities resulting from muscle injuries shall be classified as slight, moderate, moderately severe or severe as follows: (1) Slight disability of muscles--(i) Type of injury. Simple wound of muscle without debridement or infection. (ii) History and complaint. Service department record of superficial wound with brief treatment and return to duty. Healing with good functional results. No cardinal signs or symptoms of muscle disability as defined in paragraph (c) of this section. (iii) Objective findings. Minimal scar. No evidence of fascial defect, atrophy, or impaired tonus. No impairment of function or metallic fragments retained in muscle tissue. (2) Moderate disability of muscles--(i) Type of injury. 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. (3) Moderately severe disability of muscles--(i) Type of injury. 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. (ii) History and complaint. Service department record or other evidence showing hospitalization for a prolonged period for treatment of wound. Record of consistent complaint of cardinal signs and symptoms of muscle disability as defined in paragraph (c) of this section and, if present, evidence of inability to keep up with work requirements. (iii) Objective findings. 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 muscles compared with sound side. Tests of strength and endurance compared with sound side demonstrative positive evidence of impairment. (4) Severe disability of muscles--(i) Type of injury. 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. (ii) History and complaint. Service department record or other evidence showing hospitalization for a prolonged period for treatment of wound. Record of consistent complaint of cardinal signs and symptoms of muscle disability as defined in paragraph (c) of this section, worse than those shown for moderately severe muscle injuries, and, if present, evidence of inability to keep up with work requirements. (iii) Objective findings. 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 the corresponding muscles of the uninjured side indicate severe impairment of function. 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. (G) Induration or atrophy of an entire muscle following simple piercing by a projectile. (38 C.F.R. § 4.56 (2010). While many of the provisions were altered, the basis for the 30 percent rating for the through-and-through GSW of the left chest remained. The injury of two muscle groups in the anatomical region of the shoulder girdle warrants elevation of the dominant muscle group from moderately severe to severe. The 30 percent rating is the maximum schedular evaluation for severe injury of Muscle Group II for a minor extremity under either set of applicable regulations. Under the circumstances of this case, that it is based upon a claim of CUE, the Board finds no basis to refer the matter to designated VA officials for consideration of an extraschedular increased rating. Extraschedular ratings under 38 C.F.R. § 3.321(b)(1) are limited to cases in which there is 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 rating standards. The mere existence of a "possibility" of entitlement to an extraschedular rating is not a valid basis to find CUE. See Bustos v. West, 179 F.3d 1378 (Fed. Cir. 1999) (expressly adopting the "manifestly changed the outcome" language in Russell); see also Grover v. West, 12 Vet. App. 109, 111-112 (1999); Fugo v. Brown, 6 Vet. App. 40, 43-44 (1993). CUE in August 1993 Rating of GSW of the Right Shoulder Evidence of record at the time of the August 1993 rating decision that granted service connection for, and initially rated, residuals of a GSW scar of the right scapula (affecting muscle groups of the right shoulder) included the STRs and VA examinations in July 1993. While the records of the initial treatment of the Veteran's GSW during the two periods of hospitalization were not of record, the STRs contained treatment notes from the August 1991 surgical procedure for removal of the bullet from this wounding. It is noted that this second GSW actually originated beneath the tip of the left scapular and lodged subcutaneously in the right shoulder, lateral to the scapula. The bullet was not initially removed for fear of causing a pneumothorax on the right. The STR evidence shows that in August 1991 the Veteran complained of right shoulder spasms that were worse in the morning. The Veteran underwent a minor surgical procedure for the removal of the missile from the right posterior chest. The procedure was undertaken using local anesthesia. Following removal, the area was irrigated and the skin was closed. On follow-up examination, the Veteran had no discharge from the wound site, but some pain with motion that was improving over time. On examination by VA in July 1993, the Veteran complained of sharp pain that radiated from the front of his chest through to the back, but whether this was on the left in the area of the through-and-through GSW, or on the right was not described. The pain was aggravated by any lifting, pushing, or pulling with the arms. There was a healed scar on the back, below the right shoulder blade. These records show that the wound from the second GSW actually entered on the front of the Veteran's chest by the left scapula and passed through the body to lodge below the skin on the right. Thus, two muscle groups were clearly involved, but they were not necessarily in the same anatomical region, one being on the right and the other on the left; however, the bullet, was lodged in such an area that the initial treatment did not involve removal because of fear of causing the right lung to collapse. This was understandable in that the left lung was already collapsed. Given the path of the bullet, the Board finds that one of the extrinsic muscle groups of the shoulder, either I or II as well as Group IV of the intrinsic muscle groups were involved. This is supported by the Veteran's complaints of sharp pain and muscle spasm in the right shoulder in August 1991, the bullets proximity to the right lung, and the superficial removal from the posterior shoulder. When considered in light of the extensive hospitalizations necessary for treatment, including four days in the ICU, the Board finds that moderately severe impairment of the damaged muscle groups was documented in the record at the time of the August 1993 rating decision. Based on the evidence of record in August 1993, the initial rating decision clearly should have elevated muscle damage for the primary muscle group to severe. Severe disability of Group I or II warrants a 40 percent evaluation for a major extremity. 38 C.F.R. § 4.73, Diagnostic Codes 5301, 5302 (1993). Under these circumstances, the August 1993 rating decision clearly should have assigned a 40 percent rating for the residuals of the GSW of the Veteran's right chest. Regarding subsequent ratings, like the left shoulder, the 40 percent rating is the maximum schedular evaluation for severe injury of Muscle Group II for a major extremity under both the old and new sets of applicable regulations. The Board does find it proper to assign an extraschedular rating under 38 C.F.R. § 3.321(b)(1) in a claim for CUE. As such, a rating in excess of 40 percent is not found to have been warranted. CUE in August 1993 Rating of Scar Residuals The August 1993 RO rating decision did not assign a separate rating for scars at the sites of chest tube insertions of either left chest or right shoulder. It was only as part of a September 2005 increased rating claim that a separate 10 percent rating for scars of the left lateral chest from the site of the chest tube insertion was assigned in an August 2006 rating decision. Those 10 percent ratings for tender scars were made effective only from a September 2005 claim for increase, and were based upon a May 2006 VA examination showing complaints of burning and pain in the scars from the chest tube insertion. At the time of the August 1993 rating decision, a compensable evaluation for scars (other than burn scars or disfiguring scars of the head, face, or neck) required that they be poorly nourished, with repeated ulceration; that they be tender and painful on objective demonstration; or that they produce limitation of function of the body part which they affect. 38 C.F.R. § 4.118, Codes 7803, 7804, and 7805. The evidence of record at the time of the August 1993 rating decision shows that in July 1993 the Veteran had pain and numbness at the site of the tube insertion scars. Review of the record shows that, on neurologic examination in July 1993, the Veteran had specific complaints of pain and numbness in the left chest at the site of the chest tube insertions. The report of the examination for separation from service showed that the Veteran had complaints of paresthesia at the left axilla at the site of the chest tube insertions. Clearly, this pain at the scar sites should have been rated 10 percent at the time of the August 1993 rating decision, under 38 C.F.R. § 4.118, Diagnostic Code 7804 (tender and painful scars). For these reasons, the Board finds that the August 1993 rating decision contained CUE by failing to grant separate 10 percent ratings for tender scars at the site of the chest tube insertion to the left chest and right shoulder; therefore, 10 percent ratings for tender scars at the site of the two chest tube insertions should be retroactively awarded to the date of the initial award of service connection, May 25, 1993. ORDER CUE not having been found in the assignment of an initial rating in excess of a 20 percent rating for traumatic chest wall defect, with pneumothorax, the appeal is denied. CUE having been found in an August 1993 decision rating the residuals of a through-and-through GSW of the left chest, a 30 percent rating from May 25, 1993 is granted. CUE having been found in an August 1993 rating decision failure to grant a 10 percent rating for tender scars and paresthesia at the site of the chest tube insertion of the left lateral chest, a 10 percent rating from May 25, 1993 is granted. CUE having been found in an August 1993 decision rating the residuals of a GSW of the right shoulder, a 40 percent rating from May 25, 1993 is granted. CUE having been found in an August 1993 rating decision failure to grant a 10 percent rating for tender scars and paresthesia at the site of the chest tube insertion of the right shoulder, a 10 percent rating from May 25, 1993 is granted. ____________________________________________ J. Parker Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs