Citation Nr: 1301688 Decision Date: 01/16/13 Archive Date: 01/23/13 DOCKET NO. 12-17 430 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUES 1. Entitlement to an initial rating higher than 10 percent for posttraumatic stress disorder for the purpose of accrued benefits. 2. Entitlement to a rating higher than 10 percent for shell fragment wounds of the right thigh with two scars for the purpose of accrued benefits. 3. Entitlement to a rating higher than 10 percent for dysesthesia of the right hip for the purpose of accrued benefits. 4. Entitlement to a rating higher than 10 percent for residuals of a shell fragment wound of the right upper arm (forearm) for the purpose of accrued benefits. REPRESENTATION Appellant represented by: Texas Veterans Commission ATTORNEY FOR THE BOARD S. Coyle, Counsel INTRODUCTION Pursuant to 38 C.F.R. § 20.900(c), the appeal has been advanced on the Board's docket. The Veteran served on active duty from June 1952 to March 1954. He died in November 2004. The Appellant is the Veteran's surviving spouse. This matter is before the Board of Veterans' Appeals (Board) on appeal of a May 2005 decision of a Department of Veterans Affairs (VA) Regional Office (RO). In December 2011, the Board remanded the case for additional development. As the requested development has been completed, no further action is necessary to comply with the Board's remand directive. Stegall v. West, 11 Vet. App. 268, 271 (1998). FINDINGS OF FACT 1. For the purpose of accrued benefits, from the effective date of the award of service connection, posttraumatic stress disorder was manifested by a disability picture that more nearly approximated occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks under the General Rating Formula for Mental Disorders, including symptoms associated with the diagnosis of PTSD under the Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition (DSM-IV), which is referred to in 38 C.F.R. § 4.130 (rating mental disorders), but not covered in the General Rating Formula. 2. For the purpose of accrued benefits, the shell fragment wounds of the right thigh with two scars did not result in moderately severe muscle impairment and the two scars were painful on examination. 3. For the purpose of accrued benefits, dysesthesia of the right hip was productive of moderate paralysis of the sciatic nerve. 4. For the purpose of accrued benefits, the residuals of a shell fragment wound of right upper arm (forearm) were productive of moderately severe muscle impairment. CONCLUSIONS OF LAW 1. For the purpose of accrued benefits, the criteria for an initial rating of 30 percent for posttraumatic stress disorder were met from the effective date of the award of service connection. 38 U.S.C.A. § 1155, 5107(b) (West 2002); 38 C.F.R. §§ 4.7, 4.126, 4.130, Diagnostic Code 9411 (2004). 2. For the purpose of accrued benefits, the criteria for a rating higher than 10 percent for shell fragment wounds of the right thigh under Diagnostic Code 5314 were not met; the criteria for a 10 percent for each shell fragment wound scar of the right thigh under Diagnostic Code 7804 were met. 38 U.S.C.A. § 1155, 5107(b) (West 2002); 38 C.F.R. §§ 4.7, Diagnostic Codes 5314, 7804 (2004). 3. For the purpose of accrued benefits, the criteria for a rating higher than 10 percent for dysesthesia of the right hip were not met. 38 U.S.C.A. § 1155, 5107(b) (West 2002); 38 C.F.R. §§ 4.7, 4.124a, Diagnostic Code 8520 (2012). 4. For the purpose of accrued benefits, the criteria for a rating higher than 10 percent for residuals of a shell fragment of the right upper arm (forearm) were not met. 38 U.S.C.A. § 1155, 5107(b) (West 2002); 38 C.F.R. §§ 4.7, 4.73, Diagnostic Code 7805-5306 (2007). The Veterans Claims Assistance Act of 2000 (VCAA) The VCAA, codified in part at 38 U.S.C.A. §§ 5103, 5103A, and implemented in part at 38 C.F.R § 3.159, amended VA's duties to notify and to assist a claimant in developing information and evidence necessary to substantiate a claim. Duty to Notify Under 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b), when VA receives a complete or substantially complete application for benefits, it will notify the claimant of the following: (1) any information and medical or lay evidence that is necessary to substantiate the claim, (2) what portion of the information and evidence VA will obtain, and (3) what portion of the information and evidence the claimant is to provide. Also, the VCAA notice requirements apply to all five elements of a service connection claim. The five elements are: (1) Veteran status; (2) existence of a disability; (3) a connection between the Veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. Dingess v. Nicholson, 19 Vet. App. 473 (2006). In the rating decision in May 2005, addressing accrued benefits, the RO cited to VCAA notice by letter in March 2005. A copy of the notice letter is not in the record. Nevertheless, there is a rebuttable presumption of administrative regularity under which it is presumed that VA officials properly discharged their official duties, including the mailing of proper notice. The presumption can be overcome only by clear evidence that VA's mailing practices were not regular or that the regular mailing practices were not followed. See Davis v. Principi, 17 Vet. App. 29, 36-37 (2003). As there is no clear evidence that VA's mailing practices were not regular or that VA's s regular mailing practices were not followed, it is presumed that the Appellant was notified of the Veterans Claims Assistance Act (VCAA), pertaining the claim for accrued benefits. Duty to Assist Under 38 C.F.R. § 3.1000(a), entitlement to benefits due and unpaid on death of a beneficiary requires that an underlying claim be based on evidence in the file at the date of death of the Veteran. Evidence in the file at date of death means evidence in VA's possession on or before the date of the Veteran's death, even if such evidence was not physically located in the Veteran's file on or before the date of death. 38 C.F.R. § 3.1000(d)(4). See Bell v. Derwinski, 2 Vet. App. 611 (1992) (VA has constructive notice of VA generated documents that could reasonably be expected to be part of the record). As there are no outstanding service records or VA records during the Veteran's lifetime of which VA has constructive notice, no further action is necessary to assist the Appellant in the development of the claims. Accrued Benefits Accrued benefits are periodic monetary benefits to which a Veteran was entitled at his death under existing ratings or decisions or those based on evidence in the file at date of death, and due and unpaid will, upon the death of the Veteran, be paid to his surviving spouse. 38 C.F.R. § 3.1000(a). An application for accrued benefits must be filed within one year after the date of the Veteran's death. 38 C.F.R. § 3.1000(c). The Appellant timely filed the claim of accrued benefits in December 2004 after the Veteran's death in November 2004. A pending claim is a claim which has not been finally adjudicated. 38 C.F.R. § 3.160(c). Facts In a rating decision in February 2004, the RO granted service connection for posttraumatic stress disorder and assigned an initial rating of 10 percent. The RO increased the rating for two shell fragment wound scars of the right thigh to 10 percent and denied ratings higher than 10 percent for dysesthesia of the right hip and for residuals of a shell fragment wound of the right upper arm (forearm). In March 2004, the Veteran filed a timely notice of disagreement with the above ratings. In November 2004, the Veteran died. As the Veteran filed a timely notice of disagreement, the claims for increase were pending at the time of the Veteran's death. Claims for Increase General Rating Principles A disability rating is determined by application of VA's Schedule for Rating Disabilities (Rating Schedule). The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. Separate Diagnostic Codes identify the various disabilities. 38 U.S.C.A. § 1155; 38 C.F.R. §4.1. VA has a duty to acknowledge and consider all regulations that are potentially applicable through the assertions and issues raised in the record, and to explain the reasons and bases for its conclusions. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. The Board will consider whether separate ratings may be assigned for separate periods of time based on facts found, a practice known as "staged ratings," whether it is an initial rating case or not. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Rating Criteria for Posttraumatic Stress Disorder In a rating decision in February 2004, the RO granted service connection for posttraumatic stress disorder and assigned an initial rating of 10 percent. Posttraumatic stress disorder s rated under Diagnostic Code 9411 under the General Rating Formula for Mental Disorders. The criteria for a 10 percent rating are occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress, or; symptoms controlled by continuous medication. The criteria for a 30 percent rating are occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and conversation normal), due to such symptoms as: depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, mild memory loss (such as forgetting names, directions, recent events). The criteria for the next higher rating, 50 percent, are occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks (more than once a week); difficulty in understanding complex commands; impairment of short- and long-term memory (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; and difficulty in establishing and maintaining effective work and social relationships. The use of the phrase "such symptoms as," followed by a list of examples, provides guidance as to the severity of symptomatology contemplated for each rating. In particular, use of such terminology permits consideration of items listed as well as other symptoms and contemplates the effect of those symptoms on the claimant's social and work situation. See Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). The evidence considered in determining the level of impairment from posttraumatic stress disorder under 38 C.F.R. § 4.130 is not restricted to the symptoms provided in Diagnostic Code 9411. Instead, VA must consider all symptoms that affect the level of occupational and social impairment, including, if applicable, those identified in the DSM-IV. The Global Assessment of Functioning (GAF) score is a scale reflecting the psychological, social, and occupational functioning on a hypothetical continuum of mental-health illness. Richard v. Brown, 9 Vet. App. 266, 267 (1996), citing the DSM-IV. GAF scores ranging from 61 to 70 represent mild symptoms (e.g., depressed mood and mild insomnia) or some difficulty in social, occupational, or school functioning (e.g., occasional truancy, or theft within the household), but generally functioning pretty well, has some meaningful interpersonal relationships. GAF scores ranging from 51 to 60 reflect moderate symptoms (e.g., flat affect and circumstantial speech, occasional panic attacks) or moderate difficulty in social, occupational, or school functioning (e.g., few friends, conflicts with peers or co-workers). While a GAF score is relevant evidence, it alone is neither statutorily nor regulatory controlling in rating a psychiatric disorder, rather the rating is determined by the application of the Rating Schedule. Neither the number of symptoms, nor the type of symptoms, nor the GAF score controls in determining whether the criteria for the next higher rating have been met. It is the effect of the symptoms, rather than the presence of symptoms, pertaining to the criteria for the next higher rating, that is determinative. Evidence Private medical records from October 2002 show normal psychiatric evaluations. In May 2003, the Veteran complained of depressed. VA records in May 2003 show that the Veteran described combat nightmares and he became tearful when discussing his military stressors. The Veteran also described symptoms of hypervigilance, such as double-checking doors. Private medical records in August 2003 show that the Veteran complained of anxiety. On VA examination in October 2003, the Veteran gave a history of nightmares, but that he had not experienced the nightmares recently. He did have recurrent, disturbing memories of Korea and he avoided discussing the memories with his wife. The Veteran also gave a long history of irritability and hypervigilance. There were no other symptoms of hyperarousal. It was noted that the Veteran had worked as a ceramic tile contractor and he owned his own ceramic tile business before retiring at age 66. The Veteran described himself as having been happily married for many years and that many of his friends had died or moved away. The Veteran stated that he made ceramic plates as a hobby before his physical health forced him to stop. The Veteran gave a long history of alcohol abuse, but that he had not had a drink for about 10 years. On mental status examination, the Veteran, who was undergoing treatment for metastatic lung cancer, appeared pale and weak, and arrived for the examination in a wheelchair. He described short-term forgetfulness. He denied persistent symptoms of depression, but he did have some symptoms of hypervigilance and intrusive thoughts. He also had a history of impaired impulse control, characterized by impatience and anger. The VA examiner noted that the Veteran had symptoms of demoralization. The GAF score was 60. VA records in March 2004 and in September 2004 show that the Veteran complained of depression, flashbacks, and nightmares. Analysis Reconciling the various reports into a consistent disability picture, two elements of the Veteran's disability at the time of his death emerge. First, the Veteran had symptomatology that is associated with the rating criteria and symptomatology not covered in the rating criteria, but is associated with the diagnosis of PTSD under the DSM-IV. Second, since the Veteran filed his claim for service connection for PTSD in June 2003, the disability picture remained constant. The evidence of record at the time of the Veteran's death shows that occupationally the Veteran was a successful business owner and he retired at age 66. As for social functioning, there was evidence that the Veteran's symptoms strained family relationships, because of his irritability and emotional detachment. There were other PTSD symptoms such as hypervigilance, intrusive thoughts, and flashbacks. Overall, the symptoms of PTSD primarily affected the Veteran socially with a disability picture approximating occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks although generally functioning satisfactorily. The GAF score of 60 on VA examination in October 2003 equates to moderate difficulty in occupational and social functioning, which was consistent with the Veteran's history, symptoms, and findings on the VA examination. Accordingly, the evidence supports an initial rating for 30 percent since the effect date of the grant of service connection for PTSD. Although the evidence shows that the Veteran was socially impaired, the totality of the evidence shows that his symptomatology was not consistent with the criteria for a 50 percent disability rating under Diagnostic Code 9411. For these reasons, the evidence supports the assignment of an initial rating of 30 percent, but not higher, from the effective date of the grant of service connection. Rating Criteria for Residuals of a Shell Fragment Wound of the Right Thigh with Two Scars The residuals of a shell fragment wound of the right thigh with two scars were rated 10 percent under Diagnostic Code 5314. Under Diagnostic Code 5314, a 10 percent rating was assigned for moderate muscle injury, and a 30 percent rating was assigned where the injury was moderately severe. Another potentially applicable Diagnostic Code was Diagnostic Code 7804. Under Diagnostic Code 7804, the criteria for a 10 percent were scars that are superficial and painful on examination. A superficial scar is one not associated with underlying soft tissue damage. The factors to be considered in evaluating a muscle injury were set forth in 38 C.F.R. §§ 4.55 and 4.56. A muscle injury evaluation will not be combined with a peripheral nerve paralysis evaluation of the same body part unless the injuries affect entirely different functions. 38 C.F.R. § 4.55(a). A through and through injury with muscle damage shall be evaluated as no less than a moderate injury for each group of muscles damaged. 38 C.F.R. § 4.56(b). 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). The type of injury associated with a moderate muscle disability 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. A history with regard to this type of injury should include service department evidence or other evidence of in-service treatment for the wound and consistent complaints 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. Objective findings should include entrance and (if present) exit scars, small or linear, indicating 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). The type of injury associated with a moderately severe muscle disability is 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 intramuscular scarring. A history with regard to this type of injury should include prolonged hospitalization in service for treatment of wound, consistent complaints of cardinal signs and symptoms of muscle disability, and, if present, evidence of inability to keep up with work requirements. Objective findings should include entrance and (if present) exit scars indicating the track of the missile through one or more muscle groups, and indications on palpation of loss of deep fascia, muscle substance, or normal firm resistance of muscles compared with the sound side. Tests of strength and endurance compared with sound side should demonstrate positive evidence of impairment. 38 C.F.R. § 4.56(d)(3). Words such as 'slight,' 'moderate,' 'moderately severe,' and 'severe' are not defined in the Rating Schedule. Rather than applying a mechanical formula, VA must evaluate all evidence, to the end that decisions will be equitable and just. 38 C.F.R. § 4.6. Evidence The service treatment records show that in May 1953 in Korea in combat, the Veteran was hit by shell fragments in the right thigh and right leg. There was no artery or nerve involvement. The wounds were debrided and closed, and he was sent to a hospital ship to recuperate. The wounds healed well and the Veteran was sent to physical therapy and discharged to duty in June 1953. On separation examination, there were two 1-inch scars on the right thigh. There was no indication of limitation of motion or functional loss. On VA examination in October 2003, the Veteran complained that in cold weather the scars caused discomfort. The VA examiner noted that there was no limitation of motion or function of any joint that was attributable to the service-connected shell fragment wound. There was some damage to the right vastus lateralis as evidenced by the discomfort in cold weather, but the VA examiner noted no bone injury, nerve injury, vascular injury, or limitation of motion. There was little tissue loss in the right thigh as compared with the left. The scars were not painful or adherent or associated with muscle loss. On VA examination in January 2004, the scars were tender to palpation. There was no muscle damage as a result of the service-connected shell fragment wound. In a rating decision in February 2004, the RO determined that the residuals of a shell fragment wound to the right thigh were productive of moderate disability of Muscle Group XIV, and granted a 10 percent rating under Diagnostic Code 5314. A higher rating under Diagnostic Code 5314 required evidence of prolonged infection, or sloughing of soft parts, and intramuscular scarring, with a history of prolonged hospitalization in service for treatment of the wounds, consistent complaints of cardinal signs and symptoms of muscle disability, and, if present, evidence of inability to keep up with work requirements. Here, following treatment of his wounds, the Veteran was released to duty with no apparent residuals of his wounds. There was no evidence of prolonged infection, sloughing of soft parts, intramuscular scarring, or an inability to keep up with work requirements following the conclusion of treatment. Although the Veteran had bilateral lower extremity weakness and paresthesia, the symptoms were attributed to treatment with chemotherapy. Overall, the evidence did not show more that moderate muscle impairment of Muscle Group XIV. And the criteria for higher rating based on the type of injury, history and complaint, and objective findings, considering functional loss, were not met. As for the two scars, during the appeal period, VA amended the criteria for rating a scar , but amended criteria apply to claim received by the VA on or after October 23, 2008. 73 Fed. Reg. 54708 (September 23, 2008). As the Appellant's claim was received in December 2004, the criteria in effect before October 23, 2008, apply. Under Diagnostic Code 7801, the criteria for a 10 percent rating for a scar, other than on the head, face, or neck, were deep or cause limited motion and covered an area exceeding 6 square inches (39 sq. cm.). Under Diagnostic Code 7802, the criteria for a 10 percent rating for a scar, other than on the head, face, or neck, were a superficial and nonlinear and that did not cause limitation of motion and covered an area of 144 square inches (929 sq. cm.). Under Diagnostic Code 7803, the criteria for a 10 percent for a scar were a superficial and unstable scar. A superficial scar was defined as one not associated with underlying soft tissue damage. An unstable scar was defined as one where there is frequent loss of skin over the scar. Under Diagnostic Code 7804, the criteria for a 10 percent were a scar that was superficial and painful on examination. Under Diagnostic Code 7805, a scar could be rated on limitation of function of the affected part. The evidence does not show that the Veteran had scars that covered an area exceeding 6 square inches, Diagnostic Code 7801, or 144 square inches, Diagnostic Code 7802, or were unstable, Diagnostic Code 7803. There is evidence that the two scars were tender with palpation on VA examination in January 2004, which more nearly approximates the criteria for a painful scar on examination under Diagnostic Code 7804, warranting a separate 10 percent rating for each scar. As for limitation of function under Diagnostic Code 7805, as the Veteran already was rated 10 percent for muscle impairment under Diagnostic Code 5314, a rating under Diagnostic Code 7805 for the same functional loss would be pyramiding, which is not permissible. 38 C.F.R. § 4.14; Esteban v. Brown, 6 Vet. App. 259, 262 (1994) (separate disability ratings may be assigned for distinct disabilities resulting from the same injury so long as the symptomatology for one condition is not "duplicative of or overlapping with the symptomatology" of the other condition). In summary the criteria for a rating higher than 10 percent for shell fragment wounds of the right thigh under Diagnostic Code 5314 were not met. The criteria for a 10 percent for each shell fragment wound scar of the right thigh under Diagnostic Code 7804 were met. Dysesthesia of the Right Hip as Residuals of a Shell Fragment Wound Dysesthesia of the right hip was rated 10 percent under Diagnostic Code 8520. Under Diagnostic Code 8520, the criterion for a 20 percent was moderate incomplete paralysis. The term "incomplete paralysis" indicates a degree of lost or impaired function substantially less than the type picture for complete paralysis given with each nerve, whether due to varied level of the nerve lesion or to partial regeneration. When the involvement is wholly sensory, the rating should be for the mild, or at most, the moderate degree. 38 C.F.R. § 4.124a. On VA examination in October 2003, the Veteran complained of tingling and paresthesia with no interference with activities of daily living or motor function. Motor examination showed normal strength. The tingling and paresthesia attributed to the shell fragment wound had no interference with range of motion or motor activity. In January 2004 on VA examination, the Veteran stated that he had a "pins and needles" feeling in the area of his wounds. The pertinent findings were weakness and numbness, resulting from chemotherapy. Under Diagnostic Code 8520, whereas here the involvement was wholly sensory, the rating should be for the mild, or at most, the moderate degree. In this case, the Board concludes that the findings equated to mild incomplete paralysis of the sciatic nerve. In the absence of evidence of organic changes such as atrophy and loss of reflexes and constant pain, the findings did not more nearly approximate or equate to moderate incomplete paralysis, the criterion for the next higher rating under Diagnostic Code 8520. Residuals of a Shell Fragment Wound of the Right Upper Arm (forearm) Residuals of a shell fragment wound of the upper arm (forearm) was rated 10 percent Diagnostic Codes 7805 (functional loss) and 5306 (muscle injury). Under Diagnostic Code 7805, a scar could be rated on limitation of function of the affected part. Under Diagnostic Code 5306, the criterion for the next higher rating, 30 percent, was moderately severe muscle impairment. In October 2003 on VA examination, the strength in the right upper extremity was normal, but reflexes and sensation were decreased. There was no identified interference with range of motion or motor activity. There was a 2.5 by 1/8 inch scar with no tenderness. There was minimal involvement of the extensor muscles with no limitation of motion or functional loss. There was also no limitation of activities of daily living. There was minor loss of muscle mass without adhesions or loss of muscle strength. In January 2004 on VA examination, the Veteran described a claw-like hand. The scar on the right forearm was described as 7.5 centimeters and superficial without muscle damage. The service records show that the Veteran had a simple wound that required debridement without prolonged infection or residuals of debridement. The scar associated with the injury was minimal. Although there was some loss of muscle mass, there was no impairment of function in the muscle tissue. The VA examinations showed no loss of strength, weakness, a lower threshold of fatigue, fatigue-pain, impairment of coordination, or uncertainty of movement of Muscle Group VI. Although the Veteran described a claw-like hand, the objective findings showed no more than moderate muscle impairment, and a rating higher than 10 percent under Diagnostic Code 5306 was not warranted. And a separate rating under Diagnostic Code 7805 would be pyramiding. 38 C.F.R. § 4.14; Esteban v. Brown, 6 Vet. App. at 262 (1994) (separate disability ratings may be assigned for distinct disabilities resulting from the same injury so long as the symptomatology for one condition is not "duplicative of or overlapping with the symptomatology" of the other condition). The evidence does not show that the Veteran had scar that covered an area exceeding 6 square inches, Diagnostic Code 7801, or a 144 square inches, Diagnostic Code 7802, or were unstable, Diagnostic Code 7803, or was painful on examination, Diagnostic Code 7804. For these reasons, a higher rating was not warranted. Extraschedular Consideration Although the Board is precluded by regulation from assigning extraschedular ratings under 38 C.F.R. § 3.321(b)(1) in the first instance, it is not precluded from considering whether the case should be referred to the Director of VA's Compensation and Pension Service for a rating. The threshold factor for extraschedular consideration is a finding that the evidence presents such an exceptional disability picture that the available schedular ratings for that service-connected disability are inadequate. This is accomplished by comparing the level of severity and symptomatology of the service-connected disability with the established criteria. If the criteria reasonably describe the disability level and symptomatology, then the disability picture is contemplated by the Rating Schedule, and the assigned schedular rating is, therefore, adequate and referral for an extraschedular rating is not required. Thun v. Peake, 22 Vet. App. 111, 115 (2008), aff'd sub nom. Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). Comparing the Veteran's disability levels and symptomatology during his lifetime to the Rating Schedule, the degree of disability was encompassed by the Rating Schedule and the assigned schedule ratings were adequate and referral for an extraschedular rating for any of the disabilities was not required. A Total Disability Rating for Compensation based on Individual Unemployability The Veteran was rated totally disabled from the date he filed the claim until he died. See Rice v. Shinseki, 22 Vet. App. 447 (2009) (in a claim for increase, where the Veteran expressly raises a claim for a total disability rating on the basis of individual unemployability, the claim is not a separate claim, but a part of a claim for increase). ORDER 1. For the purpose of accrued benefits, an initial rating of 30 percent for posttraumatic stress disorder is granted, subject to the regulations governing the award of monetary benefits. 2. For the purpose of accrued benefits, a rating higher than 10 percent for shell fragment wounds of the right thigh under Diagnostic Code 5314 is denied. (The Order continues on the next page.). 3. For the purpose of accrued benefits, a separate 10 percent for each shell fragment wound scar of the right thigh under Diagnostic Code 7804 is granted, subject to the regulations governing the award of monetary benefits. 4. For the purpose of accrued benefits, a rating higher than 10 percent for dysesthesia of the right hip under Diagnostic Code 8520 is denied. 5. For the purpose of accrued benefits, a rating higher than 10 percent for shell fragment wounds of the right upper arm (forearm) under Diagnostic Codes 78077 and 5306 is denied. ______________________________________________ George E. Guido Jr. Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs