Citation Nr: 1308035	
Decision Date: 03/11/13    Archive Date: 03/20/13

DOCKET NO.  08-22 605	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Roanoke, Virginia


THE ISSUES

1.  Entitlement to an increased rating for residuals of a shell fragment wound of the left buttock with degenerative joint disease of the left hip, currently evaluated 20 percent disabling

2.  Entitlement to an increased rating for residuals of a shell fragment wound of the posterior left calf, currently evaluated 10 percent disabling.

3.  Entitlement to an initial rating greater than 10 percent for residuals of a shell fragment wound of the thoracic spine, beginning August 19, 2009.

4.  Entitlement to an initial compensable rating for residuals of a shell fragment wound of the thoracic spine, prior to August 19, 2009.

5.  Entitlement to a total disability rating based on individual unemployability due to service-connected disability, prior to August 19, 2009.



REPRESENTATION

Appellant represented by:	Disabled American Veterans


WITNESSES AT HEARING ON APPEAL

The Veteran and his spouse


ATTORNEY FOR THE BOARD

R. Kessel, Counsel


INTRODUCTION

The Veteran had active duty from May 1969 to March 1971.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from decisions of the Department of Veterans Affairs (VA) Regional Offices (ROs) in St. Petersburg, Florida, and Roanoke, Virginia.

In April 2010, the Board remanded the case for additional development and consideration.  By an August 2011 rating decision, the Appeals Management Center (AMC) granted entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU).  The award of a TDIU was made effective as of August 19, 2009.  Because the award of a TDIU was not granted for the entire rating period, the claim remains on appeal to the Board.  See Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007); AB v. Brown, 6 Vet. App. 35 (1993).  Consequently, the Board will address whether the Veteran is entitled to a TDIU prior to August 19, 2009.

After the most recent supplemental statement of the case was issued in August 2011, the Veteran submitted additional argument and evidence.  Moreover, the RO associated additional VA treatment records with the Veteran's Virtual VA electronic claims file.  In January 2013 and February 2013, the Veteran's representative waived review of the additional evidence by the RO.  See 38 C.F.R. § 20.1304(c) (2012).


FINDINGS OF FACT

1.  The Veteran's service-connected residuals of a shell fragment wound of the left buttock with degenerative joint disease of the left hip are manifested by no worse than moderately severe disability of Muscle Group XVII.

2.  The Veteran's service-connected residuals of a shell fragment wound of the posterior left calf are manifested by no worse than moderate disability of Muscle Group XI.

3.  Since the award of service connection, the Veteran's residuals of a shell fragment wound of the thoracic spine has been manifested by no worse than moderately severe disability of Muscle Group XX.

4.  Prior to August 19, 2009, the schedular criteria for a TDIU were met and the Veteran was precluded from securing or following substantially gainful employment as a result of his service-connected disabilities.


CONCLUSIONS OF LAW

1.  The criteria for a 40 percent rating, but not more, for residuals of a shell fragment wound of the left buttock with degenerative joint disease of the left hip have been met.  38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.73, Diagnostic Code 5317 (2012). 

2.  The criteria for a rating in excess of 10 percent for residuals of a shell fragment wound of the posterior left calf have not been met.  38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.73, Diagnostic Code 5311 (2012). 

3.  The criteria for an initial 20 percent rating, but not more, for residuals of a shell fragment wound of the thoracic spine have been met.  38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.73, Diagnostic Code 5320 (2012). 

4.  Prior to August 19, 2009, a total disability rating for compensation purposes based on individual unemployability is warranted.  38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.16 (2012). 


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I.  Duties to Notify and Assist

With respect to the Veteran's claims herein, VA has met all statutory and regulatory notice and duty to assist provisions.  See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2012).  

Proper notice from VA must inform the veteran of any information and medical or lay evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the veteran is expected to provide.  Quartuccio v. Principi, 16 Vet. App. 183 (2002).  This notice must be provided prior to an initial unfavorable decision on a claim by the RO.  Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). 

The RO's March 2007 letter to the Veteran satisfied the duty to notify provisions relating to the Veteran's claims pertaining to residuals of a shell fragment wound of the left buttock and left calf.  38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1); Quartuccio, 16 Vet. App. at 187; Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006).  He was told that the evidence must show that his service-connected disabilities had increased in severity or gotten worse.  The purpose behind the notice requirement has been satisfied because the Veteran has been afforded a meaningful opportunity to participate effectively in the processing of these claims, including the opportunity to present pertinent evidence. 

As to the Veteran's claims pertaining to residuals of a shell fragment wound of the thoracic spine and a TDIU, the claims arise from decisions granting the underlying benefit sought.  Once a claim is substantiated to this degree, additional notice is not required, and any defect in the notice is not prejudicial.  Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007).  Therefore, no further notice is needed for any of the claims on appeal.

The duty to assist the Veteran has been satisfied in this case.  The RO has obtained the Veteran's service treatment records and his identified VA treatment records, including more recent treatment records pursuant to the Board's April 2010 remand.  38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159.  Moreover, the Veteran has been afforded a VA examination that is adequate for rating purposes.  See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007).  Specifically, pursuant to the Board's April 2010 remand, a July 2010 examiner reviewed the claims file, and took into account the Veteran's statements and treatment records, which allowed for a fully-informed evaluation of the claimed disabilities.  Id. 

As such, there is no indication in the record that additional evidence relevant to the issues being decided herein is available and not part of the record.  See Pelegrini, 18 Vet. App. at 120.  As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this case, the Board finds that any such failure is harmless.  See Mayfield v. Nicholson, 20 Vet. App. 537 (2006); see also Dingess/Hartman v. Nicholson, 19 Vet. App. at 473 (2006); see also Shinseki v. Sanders, 129 S. Ct. 1696 (2009) (reversing prior case law imposing a presumption of prejudice on any notice deficiency, and clarifying that the burden of showing that an error is harmful, or prejudicial, normally falls upon the party attacking the agency's determination) (2009); Fenstermacher v. Phila. Nat'l Bank, 493 F.2d 333, 337 (3d Cir. 1974) ("[N]o error can be predicated on insufficiency of notice since its purpose had been served."). 

II.  Analysis

A.  Legal Criteria

Generally, disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule).  38 C.F.R. Part 4 (2012).  The Rating Schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service.  The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations.  38 U.S.C.A. § 1155; 38 C.F.R. § 4.1 (2012).  In resolving this factual issue, the Board may only consider the specific factors as are enumerated in the applicable rating criteria.  See Massey v. Brown, 7 Vet. App. 204, 208 (1994); Pernorio v. Derwinski, 2 Vet. App. 625, 628(1992).

In considering the severity of a disability, it is essential to trace the medical history of the Veteran.  38 C.F.R. §§ 4.1, 4.2, 4.41 (2012).  Consideration of the whole recorded history is necessary so that a rating may accurately reflect the elements of disability present.  38 C.F.R. § 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991).  Although the regulations do not give past medical reports precedence over current findings, the Board is to consider the Veteran's medical history in determining the applicability of a higher rating for the entire period in which the appeal has been pending.  Powell v. West, 13 Vet. App. 31, 34 (1999).

Where a veteran appeals the denial of a claim for an increased disability rating for a disability for which service connection was in effect before he filed the claim for increase, the present level of the veteran's disability is the primary concern, and past medical reports should not be given precedence over current medical findings.  Francisco v. Brown, 7 Vet. App. 55, 57-58 (1994).  However, where VA's adjudication of a claim for increase is lengthy and factual findings show distinct time periods where the service-connected disability exhibits symptoms, which would warrant different ratings, different or "staged" ratings may be assigned for such different periods of time.  Hart, 21 Vet. App. at 509-510.

The appeal pertaining to the thoracic spine is based on the assignment of disability ratings following the initial award of service connection.  Fenderson v. West, 12 Vet. App. 119, 126 (1999).  Accordingly, evidence contemporaneous with the claim and the rating decision that granted service connection are most probative of the degree of disability existing when the initial rating was assigned and should be the evidence "used to decide whether an original rating on appeal was erroneous."  Id. at 126.  If later evidence indicates that the degrees of disabilities increased or decreased following the assignment of the initial rating, "staged" ratings may be assigned for separate periods.  Id.  The RO has created a staged rating for this claim.

In determining the applicable disability rating, pertinent regulations do not require that all cases show all findings specified by the Rating Schedule; rather, it is expected in all cases that the findings be sufficiently characteristic as to identify the disease and the resulting disability, and above all, to coordinate the impairment of function with the rating.  38 C.F.R. § 4.21 (2012).  Therefore, with respect to each of the claims herein, the Board will consider the potential application of various other provisions of the regulations governing VA benefits, whether or not they were raised by the Veteran.  Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991).

The disability ratings on appeal each pertain to muscle injuries.  Disabilities resulting from muscle injuries shall be classified as slight, moderate, moderately severe, or severe.  38 C.F.R. § 4.56(d) (2012).  A "slight" muscle disability contemplates a simple wound of the muscle without debridement or infection; a service department record of a superficial wound with brief treatment and return to duty; healing with good functional results; and no cardinal signs or symptoms of muscle disability.  Objectively, there is a minimal scar; no evidence of fascial defect, atrophy, or impaired tonus; and no impairment of function or metallic fragments retained in muscle tissue.  38 C.F.R. § 4.56(d)(1).

A "moderate" muscle disability contemplates a through and through or deep penetrating wound of short track from a single bullet, small shell, or shrapnel fragment, without the explosive effect of a high velocity missile, residuals of debridement, or prolonged infection; a service department record or other evidence of in-service treatment for the wound; and a record of consistent complaint of one or more of the cardinal signs and symptoms of muscle disability, particularly lowered threshold of fatigue after average use, affecting the particular functions controlled by the injured muscles.  Objectively, there are entrance and if present, exit scars that are small or linear, indicating a short track of missile through muscle tissue; and some loss of deep fascia or muscle substance or impairment of muscle tonus and loss of power or lowered threshold of fatigue when compared to the sound side.  38 C.F.R. § 4.56(d)(2).

A "moderately severe" muscle disability contemplates a through and through or deep penetrating wound by a small high velocity missile, or large low-velocity missile, with debridement, prolonged infection, or sloughing of soft parts, and intermuscular scarring; a service department record or other evidence showing hospitalization for a prolonged period for the wound; a record of consistent complaint of cardinal signs and symptoms of muscle disability; and, if present, evidence of inability to keep up with work requirements.  Objectively, there are entrance and (if present) exit scars indicating track of missile through one or more muscle groups; indications on palpation of loss of deep fascia, muscle substance, or normal firm resistance of muscle compared with the sound side; and tests of strength and endurance compared with the sound side demonstrate positive evidence of impairment.  38 C.F.R. § 4.56(d)(3).

A "severe" muscle disability contemplates a through and through or deep penetrating wound due to a high velocity missile, or large or multiple low velocity missiles, or with shattering bone fracture or open comminuted fracture with extensive debridement, prolonged infection, or sloughing of soft parts, intermuscular binding, and scarring; a service department record or other evidence showing hospitalization for a prolonged period for treatment of the wound; a record of consistent complaint of cardinal signs and symptoms of muscle disability, worse than those shown for moderately severe muscle injuries; and, if present, evidence of inability to keep up with work requirements.  Objectively, there are ragged, depressed, and adherent scars indicating wide damage to muscle groups in the missile track; palpation shows loss of deep fascia or muscle substance, or soft flabby muscles in the wound area; muscles swell and harden abnormally in contraction; and tests of strength, endurance, or coordinated movements indicate severe impairment of function when compared with the uninjured side.  38 C.F.R. § 4.56(d)(4).

If present, the following are also signs of "severe" muscle disability: (a) x-ray evidence of minute, multiple scattered foreign bodies indicating intermuscular trauma and explosive effect of the missile; (b) adhesion of scar to one of the long bones, scapula, pelvic bones, sacrum, or vertebrae, with epithelial sealing over the bone rather than true skin covering in an area where bone is normally protected by muscle;(c) diminished muscle excitability to pulsed electrical current in electrodiagnostic tests; (d) visible or measurable atrophy; (e) adaptive contraction of an opposing group of muscles; (f) atrophy of muscle groups not in the track of the missile, particularly of the trapezius and serratus in wounds of the shoulder girdle; (g) induration or atrophy of an entire muscle following simple piercing by a projectile.  Id.

When evaluating damage to muscle groups, disability pictures are based on the cardinal signs and symptoms of muscle disability, such as loss of power, weakness, lowered threshold of fatigue, fatigue-pain, and impairment of coordination and uncertainty of movement.  38 C.F.R. § 4.56(c).  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.  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.  38 C.F.R. § 4.55(e) (2012).  In the Veteran's case, the three muscle group injuries for consideration are in different anatomical regions, so they are separately rated.  See 38 C.F.R. § 4.55(f).


B.  Shell Fragment Wound of the Left Buttock

The Veteran's service-connected residuals of a shell fragment wound of the left buttock have been evaluated as 20 percent disabling under Diagnostic Code 5317 for injury to Muscle Group XVII.  Disability under this diagnostic code is evaluated as:  slight (zero percent), moderate (20 percent), moderately severe (40 percent), or severe (50 percent).  38 C.F.R. § 4.73, Diagnostic Code 5317 (2012).  Muscle Group XVII consists of the pelvic girdle group two.  Those muscles are the gluteus maximus, the gluteus medius, and the gluteus minimus.  The function of these muscles is as follows:  extension of hip; abduction of thigh; elevation of opposite side of pelvis; tension of fascia lata and iliotibial (Maissiat's) band; and acting with the tensor vaginae femoris in postural support of body steadying pelvis upon head of femur and condyles of femur and tibia.  Id.

By way of background, the Veteran's service treatment records show that he received multiple shell fragment wounds in March 1971 while serving in the Republic of Vietnam for which he was awarded the Purple Heart.  This included a shell fragment wound of the left buttock.  The Veteran was hospitalized for at least eight days and the wound was debrided.  The history of the wound is significant as the type and history of the injury is for consideration when evaluating muscle injuries.  See 38 C.F.R. § 4.56.

This evidence tends to show that the wound may be equated to a moderately severe type of injury rather than a moderate injury.  Although the evidence does not show prolonged infection, sloughing of soft parts or intermuscular scarring, the Veteran did have a prolonged hospitalization of at least eight days and there was debridement.  An injury of the severe type is not evident as there was no shattering bone fracture or open comminuted fracture with extensive debridement, prolonged infection, sloughing of soft parts, or intermuscular binding.

Evidence pertinent to the rating period on appeal includes VA treatment records showing complaints of pain in the left buttock and left hip area.  The Veteran is treated with pain medication and he uses a cane for ambulation.  In a hearing before the Board in February 2010, the Veteran also testified that he experiences pain in the left buttock and left hip area.  Three VA examinations were conducted in connection with the claim-in April 2007, August 2009, and July 2010.  As described in the Board's April 2010 remand, the April 2007 and August 2009 VA examinations were conducted without a review of the claims file.  Although the two examinations were not wholly adequate, the reports still contain evidence probative to the severity of the Veteran's disability.

The examination reports reflect that the Veteran has a record of consistent complaint of cardinal signs and symptoms of muscle disability associated with the left buttock injury.  He experiences pain, decreased coordination, increased fatigability, weakness, and uncertainty of movement.  Additionally, the muscle injury has affected his left hip joint, which has been considered part of the service-connected disability as degenerative joint disease of the left hip.  Due to left buttock and left hip pain, as well as painful and limited motion of the left hip, the Veteran is not able to keep up with work requirements.  The evidence shows that the Veteran worked as a carpenter full-time through 2006, but it became harder to move around and stand up so he decreased his work hours and then stopped working altogether.  Furthermore, the left buttock and left hip problems have manifested in positive evidence of impairment of his left leg compared to his uninjured right leg.  Tests of strength and endurance compared with the sound side demonstrate muscle strength of 4 on the left side evidenced by weakness of the left hip.

This evidence tends to show that the Veteran's disability picture of his residuals of a shell wound of the left buttock with degenerative joint disease of the left hip more closely approximates a moderately severe muscle injury compared to a moderate muscle injury.  See 38 C.F.R. § 4.56.  Although all of the findings specified for a moderately severe muscle injury are not shown, as noted previously, it is not expected that this is to be the case for the more fully described grades of disabilities.  See 38 C.F.R. § 4.21.  For this disability, the Board finds that the evidence shows that the criteria for a moderately severe muscle injury are more closely approximated when considering the type and history of the injury in conjunction with the current manifestations.  In view of this finding, the Board concludes that a 40 percent rating is warranted.  See 38 C.F.R. § 4.73, Diagnostic Code 5317.  This is so for the entire rating period on appeal.  See Hart, 21 Vet. App. at 509-10.

Although a 40 percent rating is warranted, an even higher rating is not warranted as the evidence does not show that the Veteran's disability equates to a severe muscle injury.  As noted previously, the type and history of the injury is not severe.  Additionally, the current manifestations do not objectively show ragged, depressed, and adherent scars indicating wide damage to muscle groups in the missile track, palpation shows loss of deep fascia or muscle substance, or soft flabby muscles in the wound area.  Moreover the evidence does not reflect that the muscles swell and harden abnormally in contraction, and tests of strength, endurance, or coordinated movements do not indicate severe impairment of function when compared with the uninjured side.  Furthermore, the seven examples of signs of severe muscle disability set forth in 38 C.F.R. § 4.56(d) are not shown in the record.  Accordingly, a rating in excess of 40 percent is not warranted for residuals of a shell fragment wound of the left buttock with degenerative joint disease of the left hip.  The Board notes that the evidence also does not show loss of use of the left buttock that would warrant consideration of special monthly compensation.  See 38 C.F.R. §§ 3.350(a)(3), 4.73, Diagnostic Code 5317 (2012).

The Board has considered whether a higher or separate rating is warranted for the Veteran's disability under other rating criteria and diagnostic codes.  The evaluation of the same disability or the same manifestation under various diagnoses is to be avoided.  See 38 C.F.R. § 4.14 (2012).  For purposes of determining whether a veteran is entitled to separate ratings for different problems or residuals of an injury, such that separate evaluations do not violate the prohibition against pyramiding, the critical element is that none of the symptomatology for any one of the conditions is duplicative of, or overlapping with, the symptomatology of the other conditions.  Esteban v. Brown, 6 Vet. App. 259 (1994).

As described previously, the shell fragment wound of the left buttock has affected the left hip joint.  Although an April 2011 opinion from the July 2010 VA examiner appears to indicate that the Veteran's degenerative joint disease of the left hip is not related to the shell fragment wound because there is no retained shell fragment, the greater weight of the evidence shows that the left hip problems are related to the left buttock injury.  In any case, the RO has treated degenerative joint disease of the left hip as part and parcel of the muscle injury.

The hip and thigh are evaluated under Diagnostic Codes 5250 through 5255.  Although the examinations reports show limitation of motion of the left hip, the diagnostic codes for limitation of extension of the thigh, limitation of flexion of the thigh, and impairment of the thigh do not provide for a possible rating higher than the 40 percent rating for a moderately severe muscle injury.  See 38 C.F.R. § 4.71a, Diagnostic Codes 5251, 5252, 5253 (2012).  Additionally, the VA examiners expressly found that there is no ankylosis present in the left hip.  See 38 C.F.R. § 4.71a, Diagnostic Code 5250.  This is so even with consideration of the effects of painful motion and other factors.  See 38 C.F.R. §§ 4.40, 4.59 (2012); see also DeLuca v. Brown, 8 Vet. App. 202, 205-206 (1995).  Moreover, the evidence does not reflect that there is a flail joint of the left hip or impairment of the left femur, such as a fracture.  See 38 C.F.R. § 4.71a, Diagnostic Codes 5254, 5255.  Thus, a higher rating is not warranted when evaluating the shell fragment wound as hip impairment.

The VA examination reports show limitation of motion of the left hip, including an inability to cross the left leg over the right leg during the July 2010 VA examination.  The Board finds that a separate rating is not warranted for any limitation of motion of the left hip because the symptomatology is already contemplated by the 40 percent rating for muscle injury.  The rating criteria reflect that an injury to Muscle Group XVII affects function of the hip.  Therefore, a separate rating for limitation of motion of the left hip would constitute pyramiding.  See 38 C.F.R. § 4.14; Esteban, 6 Vet. App. at 259.

Lastly, the Board has considered whether a higher or separate rating is warranted for a scar associated with the shell fragment wound.  During the pendency of the claim, the rating schedule for evaluating scars was revised and amended.  See 73 Fed. Reg. 54708-12 (Sept. 23, 2008).  The effective date of the revisions is October 23, 2008, and the revised criteria apply to all applications for benefits received by VA on or after that date.  Because the Veteran's claims were received prior to October 23, 2008, the revised criteria are not for application in his case.  The relevant Rating Schedule allows for disability ratings for scars that are deep or that cause limitation of motion of a certain size, scars that are superficial of a certain size, scars that are superficial and unstable, scars that are superficial and painful on examination, and scars that cause limitation of function of an affected part.  See 38 C.F.R. § 4.118, Diagnostic Codes 7801 through 7805 (2008).

The VA examiners assessed the Veteran's scar of the left buttock.  It is shown to be 3.5 centimeters (cm) by less than .5 cm in area.  The scar is considered superficial and not painful.  There is no associated tenderness, adherence, skin breakdown, inflammation, edema, keloid formation, or any disabling effects.  Because the scar is superficial without any symptomatology and covers a small area, a higher or separate rating is not warranted for the scar.

For the foregoing reasons, the Board finds that the claim for a rating in excess of 20 percent for residuals of a shell fragment wound of the left buttock with degenerative joint disease of the left hip is granted-to 40 percent, but no more.  In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine.  However, as the preponderance of the evidence is against a higher or separate rating, that doctrine is not applicable.  See 38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 3.102, 4.3 (2012); Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990).

C.  Shell Fragment Wound of the Left Calf

The Veteran's service-connected residuals of a shell fragment wound of the left calf have been evaluated as 10 percent disabling under Diagnostic Code 5311 for injury to Muscle Group XI.  Disability under this diagnostic code is evaluated as:  slight (zero percent), moderate (10 percent), moderately severe (20 percent), or severe (30 percent).  38 C.F.R. § 4.73, Diagnostic Code 5311.  Muscle Group XI consists of the posterior and lateral cural muscles, and muscles of the calf.  Those muscles are the triceps surae (gastrocnemius and soleus), the tibialis posterior, the peroneus longus, the peroneus brevis, the flexor hallucis longus, the flexor digitorum longus, the popliteus, and the plantaris.  The function of these muscles is as follows:  propulsion, plantar flexion of foot; stabilization of arch; flexion of toes; and flexion of knee.  Id.

The Veteran received a shell fragment wound of the left calf during service at the same time as the injury to the left buttock described previously.  Although the type and history of the muscle injury is similar to the left buttock disability, the evidence does not similarly show that the effects of the disability approximate a moderately severe muscle injury compared to a moderate muscle injury.  Unlike the injury to the left buttock that affects the left hip joint, the evidence shows that the injury to the left calf does not affect a joint on which the muscles function.  VA treatment records reflect regular complaints of left knee pain; however, a February 2007 x-ray revealed a normal left knee.  The Veteran previously filed a claim of service connection for a left knee disability that was denied most recently in December 2001.  In March 1999, a VA examiner indicated that the Veteran's left knee problems were probably not related to the shell fragment wound.  The evidence of record since that time does not show that the Veteran's left calf muscle injury has in fact affected his left knee joint.  Moreover, the evidence does not show that the left calf muscle injury has affected a joint of the ankle or foot on which Muscle Group XI functions.

The VA treatment records and examination reports show that the primary manifestation of the shell fragment wound of the left calf is left leg pain in the calf area.  The evidence does not show actual functional impairment as a result of the disability.  Although the Veteran's left leg is weaker than the non-injured right leg, the evidence shows that the loss of strength is attributable to the left buttock injury and the associated impairment of the left hip.  The evidence does not demonstrate that this disability results in the cardinal signs and symptoms similar to the left buttock disability.  Essentially, the evidence shows that the Veteran's left calf injury results in pain that equates to no worse than a moderate muscle injury.  The rating criteria for a moderately severe or even a severe muscle injury have not been met based on the evidence of record.  See 38 C.F.R. §§ 4.56, 4.73, Diagnostic Code 5311.

In addition to whether a higher rating is warranted for a muscle injury or impairment of a joint, the Board has considered whether a higher or separate rating is warranted for a scar of the left calf due to the shell fragment wound.  See Esteban, 6 Vet. App. at 259.  The VA examiners assessed the Veteran's scar of the left calf.  It is shown to be 3 cm by 2.5 cm in area.  The scar is considered superficial and not painful.  There is no associated tenderness, adherence, skin breakdown, inflammation, edema, keloid formation, or any disabling effects.  Because the scar is superficial without any symptomatology and covers a small area, a higher or separate rating is not warranted for the scar.

For the foregoing reasons, the Board finds that the claim for a rating in excess of 10 percent for residuals of a shell fragment wound of the posterior left calf must be denied.  This is so for the entire rating period on appeal.  See Hart, 21 Vet. App. at 509-10.  In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine.  However, as the preponderance of the evidence is against a higher or separate rating, that doctrine is not applicable.  See 38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 3.102, 4.3; Gilbert, 1 Vet. App. at 53-56.

D.  Shell Fragment Wound of the Thoracic Spine

The Veteran's service-connected residuals of a shell fragment wound of thoracic spine are currently evaluated as 10 percent disabling under Diagnostic Code 5320 for injury to Muscle Group XX and Diagnostic Code 5237 for strain.  Disability under Diagnostic Code 5320 for the cervical and thoracic region is evaluated as:  slight (zero percent), moderate (10 percent), moderately severe (20 percent), or severe (40 percent).  38 C.F.R. § 4.73, Diagnostic Code 5320.  Muscle Group XX consists of the spinal muscles.  Those muscles are the sacrospinalis (erector spinae and its prolongations in the thoracic regions).  The function of these muscles is as follows:  postural support of body; and extension and lateral movements of the spine.  Id.

Prior to August 19, 2009, the Veteran's disability was initially evaluated as noncompensably (zero percent) disabling under Diagnostic Code 5321 for injury to Muscle Group XXI.  However, those muscles pertain to respiration, and the August 2009 and July 2010 VA examiners indicated that Muscle Group XX is the affected muscle group.  Therefore, evaluation of the shell fragment wound as an injury to Muscle Group XX rather than Muscle Group XXI is appropriate.

The Veteran received a shell fragment wound of the thoracic spine during service at the same time as the injuries to the left buttock and left calf described previously.  The type and history of the muscle injury is similar to the left buttock disability and, unlike the left calf injury, the evidence similarly shows that the effects of the thoracic spine disability approximate a moderately severe muscle injury compared to a moderate muscle injury.  As it is shown that the left buttock injury affects the left hip joint, the evidence shows that the injury to the thoracic spine does affect a joint on which the muscles function.  A diagnosis of thoracic strain has been provided for the Veteran and the July 2010 VA examiner gave an opinion that it is at least as likely as not that the thoracic spine symptoms resulted from the shell fragment wound injury.

VA treatment records and examination reports reflect that the Veteran has a record of consistent complaint of some cardinal signs and symptoms of muscle disability associated with the thoracic spine injury.  He experiences pain and an inability to walk for more than a few yards during activity for prolonged periods of time.  Additionally, the muscle injury has affected his thoracic spine, which is considered part of the service-connected disability.  Due to thoracic spine pain, as well as painful and limited motion of the thoracic spine, the Veteran is not able to keep up with work requirements.  As noted previously, the evidence shows that the Veteran worked as a carpenter full-time through 2006, but it became harder to move around and stand up so he decreased his work hours and then stopped working altogether.

This evidence tends to show that the Veteran's disability picture of his residuals of a shell wound of the thoracic spine more closely approximates a moderately severe muscle injury compared to a moderate muscle injury.  See 38 C.F.R. § 4.56.  Although all of the findings specified for a moderately severe muscle injury are not shown, as noted previously, it is not expected that this is to be the case for the more fully described grades of disabilities.  See 38 C.F.R. § 4.21.  For this disability, the Board finds that the evidence shows that the criteria for a moderately severe muscle injury are more closely approximated when considering the type and history of the injury in conjunction with the current manifestations.  In view of this finding, the Board concludes that a 20 percent rating is warranted.  See 38 C.F.R. § 4.73, Diagnostic Code 5320.  This is so since the award of service connection and for both rating stages on appeal.  See Fenderson, 12 Vet. App. at 126.

Although a 20 percent rating is warranted, an even higher rating is not warranted as the evidence does not show that the Veteran's disability equates to a severe muscle injury.  As detailed previously, the type and history of the injury is not severe.  Additionally, the current manifestations do not objectively show ragged, depressed, and adherent scars indicating wide damage to muscle groups in the missile track, palpation shows loss of deep fascia or muscle substance, or soft flabby muscles in the wound area.  Moreover the evidence does not reflect that the muscles swell and harden abnormally in contraction, and tests of strength, endurance, or coordinated movements do not indicate severe impairment of function when compared with the uninjured side.  Furthermore, the seven examples of signs of severe muscle disability set forth in 38 C.F.R. § 4.56(d) are not shown in the record.  Accordingly, a rating in excess of 20 percent is not warranted for residuals of a shell fragment wound of the thoracic spine.  

The Board has considered whether a higher or separate rating is warranted for the Veteran's disability under other rating criteria and diagnostic codes.  See 38 C.F.R. § 4.14; Esteban Brown, 6 Vet. App. at 259.  As described previously, the shell fragment wound of the thoracic spine has affected the thoracic spine in the form of a strain.  The thoracolumbar spine is evaluated under Diagnostic Codes 5235 through 5243 under the General Rating Formula for Diseases of the Spine (General Forumla) or under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes when intervertebral disc syndrome is shown.  See 38 C.F.R. § 4.71a.

Although the VA treatment records and examinations reports show limitation of motion of the thoracolumbar spine, a disability rating higher than the 20 percent rating for a moderately severe muscle injury is not warranted under the General Formula.  Forward flexion of the thoracolumbar spine must be limited to 30 degrees or less to warrant a 40 percent rating.  The evidence that best reflects the Veteran's range of motion of his thoracolumbar spine is contained in the August 2009 and July 2010 VA examination reports.  In August 2009, the Veteran had full flexion to 90 degrees.  In July 2010, there was limitation of flexion of the thoracolumbar spine to 70 degrees.  Thus, the evidence does not show that the Veteran's disability has resulted in limitation of flexion of his thoracolumbar spine approximating 30 degrees or less.  This is so even with consideration of the effects of painful motion and other factors.  See 38 C.F.R. §§ 4.40, 4.59; see also DeLuca, 8 Vet. App. at 205-206.  The August 2009 VA examiner noted that there was no objective evidence of pain on active range of motion and no additional limitation with repetitive motion.  The July 2010 VA examiner noted that there was objective evidence of pain at the extremes of motion, but no additional limitation with repetitive motion.  Based on this evidence, limitation of flexion of the Veteran's thoracolumbar spine has not approximated 30 degrees or less.  See Mitchell v. Shinseki, 25 Vet. App. 32, 38-43 (2011) (limitation of motion due to pain is not necessarily rated at the same level as functional loss where motion is impeded).  Moreover, the VA examiners expressly noted that ankylosis is not present in the thoracic spine.  Therefore, an even higher rating is not warranted for ankylosis under the General Formula.

The General Formula also provides that associated objective neurologic abnormalities are to be evaluated separately.  In the Veteran's case, the evidence does not show that there are any neurologic abnormalities associated with his thoracic spine disability.  Abnormalities such as bowel or bladder impairment, and sciatica or radiculopathy have not been evident.  The evidence does show that the Veteran has erectile dysfunction; however, the VA examiner's attributed this symptom to treatment for hypertension.  Furthermore, although a higher rating is possible under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, intervertebral disc syndrome has not been shown by the evidence.  In any case, the VA examiners expressly noted that the Veteran has not experienced incapacitating episodes.  Thus, a higher rating is not warranted when evaluating the shell fragment wound as impairment of the thoracic spine.

The VA examination reports show limitation of motion of the thoracic spine as described above; however, the Board finds that a separate rating is not warranted for any limitation of motion of the thoracic spine because the symptomatology is already contemplated by the 20 percent rating for muscle injury.  The rating criteria reflect that an injury to Muscle Group XX affects function of the thoracic spine region and movements of the spine.  Therefore, a separate rating for limitation of motion of the thoracic spine would constitute pyramiding.  See 38 C.F.R. § 4.14; Esteban, 6 Vet. App. at 259.

Lastly, the Board has considered whether a higher or separate rating is warranted for a scar associated with the shell fragment wound.  The VA examiners assessed the Veteran's scar of the thoracic spine.  It is shown to be 2 cm by 1 cm in area.  The scar is considered superficial and not painful.  There is no associated tenderness, adherence, skin breakdown, inflammation, edema, keloid formation, or any disabling effects.  Because the scar is superficial without any symptomatology and covers a small area, a higher or separate rating is not warranted for the scar.

For the foregoing reasons, the Board finds that the claim for a higher initial rating for residuals of a shell fragment wound of the thoracic spine is granted-to 20 percent, but not more, since the award of service connection.  See Fenderson, 12 Vet. App. at 126.  In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine.  However, as the preponderance of the evidence is against a higher or separate initial rating, that doctrine is not applicable.  See 38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 3.102, 4.3; Gilbert, 1 Vet. App. at 53-56.

E.  Extraschedular Consideration

Generally, evaluating a disability using either the corresponding or analogous diagnostic codes contained in the Rating Schedule is sufficient.  See 38 C.F.R. §§ 4.20, 4.27 (2012).  However, because the ratings are averages, it follows that an assigned rating may not completely account for each individual veteran's circumstance, but nevertheless would still be adequate to address the average impairment in earning capacity caused by disability.  However, in exceptional cases where the rating is inadequate, it may be appropriate to assign an extraschedular rating.  38 C.F.R. § 3.321(b) (2012). 

The threshold factor for extraschedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate, a task performed either by the RO or the Board.  Id.; see Thun v. Peake, 22 Vet. App. 111, 115 (2008), aff'd, 572 F.3d 1366 (2009); see also Fisher v. Principi, 4 Vet. App. 57, 60 (1993) ("[R]ating [S]chedule will apply unless there are 'exceptional or unusual' factors which render application of the schedule impractical.").  Therefore, initially, there must be a comparison between the level of severity and symptomatology of the Veteran's service-connected disabilities with the established criteria found in the Rating Schedule for each disability.  Thun, 22 Vet. App. at 115.  If the criteria reasonably describe the Veteran's disability level and symptomatology, then the Veteran's disability picture is contemplated by the Rating Schedule, the assigned schedular evaluations are, therefore, adequate, and no referral is required. 

The Board finds that the Veteran's disability picture for each of the disabilities is not so unusual or exceptional in nature as to render the already assigned rating inadequate.  The Veteran's service-connected shell fragment wounds were evaluated as muscle injuries pursuant to 38 C.F.R. § 4.73 for the corresponding muscle group.  The criteria are found by the Board to specifically contemplate the level of occupational and social impairment caused by these disabilities.  The Veteran's shell fragment wounds of the left buttock and thoracic spine are manifested by moderately severe muscle injury, which also affects the left hip and thoracic spine.  The shell fragment wound of the left calf is manifested by moderate muscle injury.  When comparing this disability picture with the symptoms contemplated by the Rating Schedule, the Board finds that the Veteran's experiences are congruent with the disability picture represented by a 40 percent disability rating for residuals of a shell fragment wound of the left buttock with degenerative joint disease of the left hip, a 20 percent rating for residuals of a shell fragment wound of the thoracic spine, and a 10 percent rating for residuals of a shell fragment wound of the left calf.  Consequently, the Board concludes that the schedular evaluations are adequate and that referral of the Veteran's case for extraschedular consideration is not required.  See 38 C.F.R. § 4.73, Diagnostic Codes 5311, 5317, 5320; see also VAOGCPREC 6-96; 61 Fed. Reg. 66749 (1996).

F.  TDIU

At the February 2010 Board hearing, the Veteran's wife testified that he was unable to work, apparently due to his service-connected disabilities.  As detailed in the April 2010 remand, the Board determined that this statement raised the issue of entitlement to a TDIU.  See Rice v. Shinseki, 22 Vet. App. 447, 453 (2009).  While the case was in remand status, the AMC granted a TDIU effective August 19, 2009.  The AMC indicated that August 19, 2009 was the proper effective date because this is when the Veteran met the schedular criteria for a TDIU.

Generally, a TDIU rating may be assigned where the schedular rating is less than total, when it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of a single service-connected disability ratable at 60 percent or more, or as a result of two or more disabilities, provided at least one disability is ratable at 40 percent or more and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more.  38 C.F.R. § 4.16(a) (2012).

Service connection is in effect for:  residuals of a shell wound of the left buttock with degenerative joint disease of the left hip, currently evaluated 40 percent disabling; posttraumatic stress disorder (PTSD), currently evaluated as 30 percent disabling; residuals of a shell fragment wound of the thoracic spine, currently evaluated as 20 percent disabling; residuals of a shell fragment wound of the posterior left calf, currently evaluated 10 percent disabling; scars of the anterior right upper arm, currently evaluated as noncompensably disabling; scars of the right posterior chest wall, currently evaluated as noncompensably disabling.  In view of the Board's award for higher ratings for residuals of a shell wound of the left buttock with degenerative joint disease of the left hip and residuals of a shell fragment wound of the thoracic spine, the Veteran meets the schedular criteria for a TDIU for the entire rating period on appeal.  See 38 C.F.R. §§ 4.16(a), 4.25 (2012).  Therefore, the salient question is whether his service-connected disabilities precluded him from securing or following a substantially gainful occupation prior to August 19, 2009.

In statements and in recorded histories by the VA examiners, the Veteran has indicated that he worked full-time as a self-employed carpenter until approximately November 2006.  He then cut back his hours to approximately 1 or 2 days per week in 2007 before stopping work completely.  The Veteran contends that he is unable to work primarily on account of his service-connected shell fragment wound residuals.  The April 2007 VA examiner indicated that the Veteran's left hip and left calf problems had a significant effect on is occupation due to increased absenteeism.  In August 2009, the same VA examiner gave the opinion that the Veteran would not be able to obtain or maintain gainful employment due to the effects of the residuals of his shell fragment wounds.  The July 2010 VA examiner provided a similar opinion.  Moreover, a VA psychiatrist conducted a VA compensation examination in March 2010 to assess the Veteran's PTSD.  In addition to the Veteran's physical problems, the examiner noted that the Veteran has been unable to do his job as a carpenter due to his depression, PTSD, and lack of motivation.  

In consideration of this evidence, the Board finds that the Veteran's service-connected are of such nature and severity as to prevent him from securing or following substantially gainful employment.  This type of impairment from the combined effects of his disabilities has been evident for the entire rating period on appeal.  The claims for increase were filed in March 2007.  By that time, the Veteran no longer worked or worked for so few hours that his employment cannot have been considered to be substantially gainful employment.  Accordingly, the Board concludes that a TDIU is warranted prior to August 19, 2009-for the entire rating period on appeal.  See Hart, 21 Vet. App. at 509-10.  Although the AMC did not issue a supplemental statement of the case for this issue, one is not necessary in light of the Board's full grant of the benefit sought.



ORDER

An evaluation of 40 percent, but no more, for residuals of a shell fragment wound of the left buttock with degenerative joint disease of the left hip is granted, subject to the laws and regulations governing the payment of monetary benefits.

An evaluation in excess of 10 percent for residuals of a shell fragment wound of the posterior left calf is denied.

An initial evaluation of 20 percent, but no more, for residuals of a shell fragment wound of the thoracic spine is granted, subject to the laws and regulations governing the payment of monetary benefits.

Prior to August 19, 2009, a TDIU is granted, subject to the laws and regulations governing the award of the payment of monetary benefits. 



____________________________________________
JOY A. MCDONALD
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs