Citation Nr: 1309853 Decision Date: 03/22/13 Archive Date: 04/01/13 DOCKET NO. 04-44 338 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUES 1. Entitlement to separate compensable rating or ratings for injuries to muscle groups, to include groups I, II, and III, as residuals of a gunshot wound of the right (major) shoulder. 2. Entitlement to a compensable initial rating for entrance and exit wound scars of the right upper extremity (scars). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD J. N. Moats, Counsel INTRODUCTION The Veteran served on active duty from May 1966 to May 1968. The Veteran's claim comes before the Board of Veterans Appeals (Board) on appeal from December 2003 and July 2009 rating decisions of the Department of Veterans Affairs' (VA) Regional Office (RO) in St. Louis, Missouri. In September 2005, the Veteran testified at a Board hearing at the local RO. A copy of the transcript is associated with the claims file. In January 2007 and in October 2007 the Board remanded the matter for additional development. In June 2009, the Board issued a decision denying the Veteran's claim. The Veteran appealed that decision to the United States Court of Appeals for Veterans Claims (Court). In May 2010, a Joint Motion for Partial Remand (Joint Motion) to the Board of the decision on appeal was granted by the Court. The appeal was remanded to the Board for several reasons, including procuring an adequate examination, to consider separate ratings for muscle groups damaged by the through and through gunshot wound, and to consider a separate rating for residual scars. The Court vacated the portion of the Board's decision that denied an increased rating for a gunshot wound of the right (major) shoulder with residual traumatic arthritis and loss of motion, but did not vacate the portion of the Board's decision that granted the Veteran a separate 30 percent rating for his neurological manifestations of his right shoulder. The appeal was remanded by the Board for additional development in October 2010. In a February 2012 rating decision, the RO granted service connection for the entrance and exit wound scars of the right upper extremity and assigned a noncompensable rating, effective November 22, 2010. The Veteran was advised of the grant of the separate rating by letter, and a Supplemental Statement of the Case (SSOC) was issued. He did not withdraw his appeal. Thus, the appeal for an increased rating of the scars continues as it is considered to be a part of the original claim. A supplemental statement of the case was issued in February 2012. In April 2012, the Board granted a 40 percent disability rating for traumatic arthritis and loss of motion of the right shoulder as well as an earlier effective date for the grant of service connection for entrance and exit wound scars of the right upper extremity. The remaining issues were again remanded for further development. Where a claimant or the record raises the question of unemployability due to the disability for which an increased rating is sought, then part of the increased rating claim is an implied claim for a total disability rating based on individual unemployability (hereinafter referred to as TDIU). Rice v. Shinseki, 22 Vet. App. 447, 453-455 (2009). Here, the Veteran testified at the Board hearing that his service-connected shoulder problems did not interfere with his work, and in a November 2011 VA examination, he reported that he retired from working in 2009 as he was eligible by age or duration of work. Accordingly, the Board will not address the issue of TDIU in this decision. The issue of separate compensable rating or ratings for injuries to muscle groups, to include groups I, II, and III, as residuals of a gunshot wound of the right (major) shoulder is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center in Washington, DC. FINDING OF FACT The Veteran's service-connected entrance and exit wound scars of the right upper extremity (scars) are not manifested by tenderness, ulceration or pain on examination; nor is there any limitation of motion. CONCLUSION OF LAW The criteria for entitlement to a compensable disability evaluation for the Veteran's service-connected entrance and exit wound scars of the right upper extremity (scars), have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. Part 4, including §§ 4.7, 4.118, and Diagnostic Code 7801 - 7805 ( in effect prior to October 23, 2008). REASONS AND BASES FOR FINDING AND CONCLUSION VA's Duties to Notify and Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012). Proper notice from VA must inform the claimant 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 claimant is expected to provide. 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In addition, the notice requirements of the VCAA apply to all elements of a service-connection claim. Accordingly, notice must include information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). VCAA 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). Where complete notice is not timely accomplished, such error may be cured by issuance of a fully compliant notice, followed by readjudication of the claim. See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); see also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). In the instant case, the Veteran's claim arises from an appeal of the initial evaluations following the grant of service connection. Courts have held that once service connection is granted the claim is substantiated, 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 under VCAA. Next, VA has a duty to assist the Veteran in the development of the claims. This duty includes assisting him in the procurement of service treatment records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). The claims file contains the Veteran's post-service reports of VA treatment and VA examinations. A review of Virtual VA includes additional VA treatment records dated from February 2013. Moreover, the Veteran's statements in support of the claim, including his hearing testimony, are of record. The Board has carefully reviewed such statements and concludes no available outstanding evidence has been identified. The Board has also perused the medical records for references to additional treatment reports not of record, but has found nothing to suggest that there is any outstanding evidence with respect to the Veteran's claims. Additionally, most recently, the Veteran was afforded a VA examination in April 2012 to evaluate the severity of his service-connected scars. The Board finds that the VA examination is adequate because, as discussed below, it was based upon consideration of the Veteran's pertinent medical history, his lay assertions and current complaints, and because they provide detail sufficient to allow the Board to make a fully informed determination. Barr v. Nicholson, 21 Vet. App. 303 (2007) (citing Ardison v. Brown, 6 Vet. App. 405, 407 (1994)). Furthermore, the Veteran has not asserted, and the evidence does not show, that his symptoms have materially worsened since the most recent April 2012 evaluation. See 38 C.F.R. §§ 3.326, 3.327 (reexaminations will be requested whenever VA determines there is a need to verify the current severity of a disability, such as when the evidence indicates there has been a material change in a disability or that the current rating may be incorrect.); Snuffer v. Gober, 10 Vet. App. 400, 403 (1997). The Board accordingly finds no reason to remand for further examination. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the United States Court of Appeals for Veterans Claims (Court) held that 38 C.F.R. 3.103(c)(2) (2012) requires that any Veterans Law Judge who chairs a hearing fulfill two duties to comply with the VCAA. These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. Bryant, 23 Vet. App. at 488. Here, during the September 2005 Board hearing, the undersigned Veterans Law Judge adequately explained the claim on appeal and suggested evidence that may support this claim, including evidence that the Veteran might submit that may have been overlooked. The Veteran was also specifically asked questions concerning the severity of this scars. The Board accordingly concludes that the notice requirements under Bryant were effectively satisfied. To the extent any such notice may have been inadequate, this was effectively cured both by actual knowledge as evidence by statements and questions of the Veteran's authorized representative at the hearing, as well as by the Board providing such explanation of issues and suggesting submission of evidence in the subsequent remands the Board issued to develop this claim. For the above reasons, no further notice or assistance to the Veteran is required to fulfill VA's duty to assist in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd, 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001). Finally, the Board finds that there was substantial compliance with the Board remand directives. A remand by the Board confers upon the claimant, as a matter of law, the right to compliance with the remand order. Stegall v. West, 11 Vet. App. 268 (1998). Nonetheless, it is only substantial compliance, rather than strict compliance, with the terms of a remand that is required. See D'Aries v. Peake, 22 Vet. App. 97, 104 (2008) (finding substantial compliance where an opinion was provided by a neurologist as opposed to an internal medicine specialist requested by the Board); Dyment v. West, 13 Vet. App. 141 (1999). In particular, in its prior remands, the Board directed the AOJ obtain additional VA treatment records and afford the Veteran a VA examination. As discussed above, the AOJ obtained VA treatment records and the Veteran was afforded a VA examination in April 2012 that is adequate for appellate review. Accordingly, the Board finds that there has been substantial compliance with the Board remand directives and, therefore, no further remand is necessary. See Stegall, supra; D'Aries, 22 Vet. App. at 104 (2008). Analysis The Veteran is seeking an initial rating for entrance and exit wound scars of the right upper extremity (scars). Disability evaluations are determined by the application of the Schedule For Rating Disabilities, which assigns ratings based on the average impairment of earning capacity resulting from a service-connected disability. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. 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 required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the veteran's condition. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). Where, as in the instant case, the appeal arises from the original assignment of a disability evaluation following an award of service connection, the severity of the disability at issue is to be considered during the entire period from the initial assignment of the disability rating to the present time. See Fenderson v. West, 12 Vet. App. 119 (1999). During the course of the appeal, effective October 23, 2008, VA amended criteria for rating the skin so that it more clearly reflects VA's policies concerning the evaluation of scars. Specifically, these amendments concern 38 C.F.R. § 4.118, Diagnostic Codes 7800-7805. The amendments apply to all applications for benefits received by VA on or after October 23, 2008. See 73 Fed. Reg. 54,708 (September 23, 2008). In the instant case, the Veteran's application was received prior to October 23, 2008, and he has not requested consideration of his disability under these revisions. Under the criteria for scars prior to October 23, 2008, Diagnostic Code 7801 provides that a 10 percent rating is assigned for a scar on other than the head, face or neck, that is deep (associated with underlying soft tissue damage) or that causes limited motion with area or areas exceeding 6 square inches (39 sq. cm.). A 20 percent rating is awarded if the area or areas exceeding 12 square inches (77 sq. cm.); a 30 percent rating is warranted for area or areas exceeding 72 square inches (465 sq. cm.); and a 40 percent rating is warranted for area or areas exceeding 144 square inches (929 sq. cm,). Under Diagnostic Code 7802, if a scar on other than the head, face or neck is superficial (not associated with soft tissue damage) and does not cause limited motion, a maximum 10 percent rating is assigned if affecting an area or areas of 144 square inches (929 sq. cm.) or greater. A superficial and unstable (involving frequent loss of covering of skin over the scar) scar will be assigned a maximum 10 percent rating under Diagnostic Code 7803. Similarly, a scar that is superficial and painful on examination will be assigned a maximum 10 percent rating under Diagnostic Code 7804. Finally, Diagnostic Code 7805 provides that a scar may also be evaluated based on limitation of function of the affected part. Diagnostic Code 7800 would not be applicable to this analysis as it only applies to disfigurement of the head, face or neck, and the evidence discussed below clearly shows that the Veteran's disability does not affect his head, face or neck. See 38 C.F.R. § 4.118 (effective prior to October 23, 2008). The Veteran filed a claim for an increase rating for his disabilities of the right shoulder in September 2003. He was afforded a VA examination in November 2003. The examiner observed a 4 cm scar on the anterior aspect of the shoulder and a 6 cm scar on the posterior aspect of the shoulder. However, no further findings were made concerning the Veteran's scar. At the September 2005 Board hearing, the Veteran reported that his scars for itched several years after he got shot; however although he reported not being able to shoot a rifle, he indicated that the scars were not painful to the touch. He did report that the scars were tender and different feeling to the touch. He also testified that tight clothes irritated the scars. The Veteran was afforded VA examinations pertaining to his right shoulder in December 2005. The December 2005 VA examiner found that the scars were not sensitive or tender. The scars were well healed with no adherence to underlying tissues, were without ulceration, caused no loss of range of motion, and the largest was 6.5 centimeters long. However, in another part of the report, the examiner indicated that there was hypersensitivity to sharp touch over the biceps insertion over the anterior and posterior scars. In its June 2009 decision, the Board declined to assign the Veteran a separate compensable rating or ratings for his entrance and exit wound scars from his gunshot wound injury. However, the Joint Motion determined that the December 2005 VA examination was inadequate. The Joint Motion, in particular, was troubled by the fact that the examination report contained inconsistencies. Specifically, the VA examiner stated that there was hypersensitivity "to light touch over the biceps insertion and over the scars anteriorly and posteriorly." However, that same examiner then stated that "[a]long scar formation, there is no sensitivity or tenderness." Thus, in October 2010, the Board remanded this matter for another VA examination. The Veteran was afforded another VA examination in November 2010. The Veteran denied any skin breakdowns or pain. The first scar measured .5 cm by 4 cm. It was not painful and had no signs of skin breakdown. It was not deep and had no inflammation, edema or keloid formation. The second scar was .5 cm by 5 cm. and the examiner made the same physical findings. Under range of motion testing, the examiner observed two healed scars, but was silent as to whether the scars affected the Veteran's function. In the April 2012 remand, the Board found that while the last VA examination did provide some information on the Veteran's scars, it did not discuss the impact of the scars on the Veteran's right shoulder, including the joints and muscle groups. Thus, the issue was remanded again for a new VA examination. The Veteran was afforded another VA examination in April 2012. The Veteran reported that the scars were not painful or unstable. There was no frequent loss of skin. On physical examination, the examiner described a right anterior trunk distal to right clavicle, entry wound scar that measured 4 cm by .5 cm. There was also a right posterior trunk distal to right outer scapular, exit wound scar that measured 5 cm by .5 cm. The scars were linear. There was no adherence to underlying tissue or missing underlying tissue. The examiner determined that the scars did not result in limitation of function. The examiner found no other pertinent physical findings associated with the scars and determined that the scars did not impact the Veteran's ability to work. Given that the claims file was reviewed by the examiner and the examination report sets forth detailed examination findings in a manner which allows for informed appellate review under applicable VA laws and regulations, the Board finds the examination to be sufficient for rating purposes. VA treatment records have been thoroughly reviewed, but do not address the severity of the Veteran's scars for rating purposes. After reviewing the evidence discussed above, the Board must find that a compensable rating entrance and exit wound scars is not warranted. Diagnostic Code 7801 is not for application because the medical evidence or record does not show that the Veteran's scar is deep (associated with underlying tissue damage) or causes limited motion. The most recent VA examiner clearly found that there was no adherence to underlying tissue or missing underlying tissue. Further, the Veteran's scar does not exceed an area or areas of 144 square inches (929 sq. cm.) to warrant a maximum 10 percent rating under Diagnostic Code 7802. Again, the VA examination reports clearly showed that measurements of both scars were much less than 144 square inches. Moreover, the VA examinations all found that the scar was not unstable or painful on examination. Thus, Diagnostic Codes 7803 and 7804 are not for application. The Board recognizes that the Joint Motion pointed out that the December 2005 VA examination appeared to be inconsistent as to whether the scar was tender. However, subsequent VA examinations in 2010 and 2012 clearly found that the Veteran's scars were not painful. At the Board hearing, the Veteran indicated that the scar was tender or different feeling, but again, he expressly denied pain. Moreover, the Veteran himself at both subsequent VA examinations expressly denied any pain with respect to the scars. Further, with respect to Diagnostic Code 7805, which allows for rating the scar based on limitation of motion, there were no findings of limitation of motion on examination due to the Veteran's scar. Again, the most recent VA examination determined that there were no functional limitations due to the Veteran's scar. Therefore, based on the above analysis, the Board finds that a compensable rating is not warranted for the Veteran's service-connected entrance and exit wound scars of the right upper extremity (scars) as a preponderance of the evidence is against the Veteran's claim. As the preponderance of the evidence weighs against the claim, the benefit-of-the-doubt doctrine does not apply. See 38 U.S.C.A. § 5107(b). ORDER Entitlement to a compensable initial rating for entrance and exit wound scars of the right upper extremity (scars), is denied. REMAND With respect to the issue of entitlement to separate compensable rating or ratings for injuries to muscle groups, to include groups I, II, and III, as residuals of a gunshot wound of the right (major) shoulder, although the Board regrets further delaying appellate review, additional development is necessary. In accordance with the Joint Motion, the Board previously remanded this case in October 2010 and April 2012 to afford the Veteran sufficient VA examinations in accordance with the Joint Motion for Remand. By way of background, a December 2005 VA examination report pertaining to the muscles indicated that Muscle Groups I, II, III, IV and V were either injured or destroyed. However, a December 2005 VA nerves examination indicated that the right shoulder gunshot wound had not appeared to disable any additional joints of the right upper extremity and yet another examination report by the same examiner indicated that the muscle groups penetrated were II, III and IV. Thus, it was unclear as to which muscle groups were actually involved. Moreover, as pointed out in the Board's April 2012 remand, the November 2010 VA examination and December 2011 addendum barely discussed the specific muscle groups, only noting that muscle groups I, II, and III were involved and characterized the severity as slight. Thus, the Board again remanded the case to afford the Veteran another VA examination. The examiner was to report all muscle injuries (and the specific muscle groups) resulting from a gunshot wound to the right shoulder. The examiner was also directed to specify each muscle group that was injured and state whether the symptoms of muscle disability were slight, moderate, moderately severe or severe. The Veteran was afforded another VA examination in April 2012. The examiner determined that only muscle groups I and II were involved. However, she failed to specify whether the symptoms associated with each muscle group involved were slight, moderate, moderately severe or severe as directed by the Board. Moreover, given that previous VA examination reports clearly indicated that additional muscle groups were involved, the most recent examination is also deficient because the examiner only addressed muscle groups I and II and provided no further explanation as to why the other groups previously identified were not addressed or involved. Given these deficiencies, the Board finds that this case must be returned to another VA examination to clearly address the severity of the muscle group injuries involved. Given the complex nature of this issue, the examination should be performed by an orthopedist. See Barr v. Nicholson, 21 Vet. App. 303 (2007) (citing Ardison v. Brown, 6 Vet. App. 405, 407 (1994)). Where the remand orders of the Board were not complied with, the Board itself errs in failing to insure compliance. In such situations the Board must remand back to RO for further development. See Stegall, 11 Vet. App. at 271; D'Aries, 22 Vet. App. at 104-05. Lastly, in light of the need to remand, the RO should obtain current VA treatment records from February 2013 to the present. See 38 C.F.R. § 3.159. Accordingly, the case is REMANDED for the following actions: 1. Obtain updated VA records, and ask the Veteran if he has received treatment from private providers. Obtain any private records identified by the Veteran. 2. Schedule the Veteran for a VA examination, with an orthopedist, to evaluate the current severity of the service-connected residuals of a gunshot wound to the right (major) shoulder. All necessary tests and studies should be conducted. The claims folder, including this Remand, must be sent to the examiner for review; consideration of such should be reflected in the completed examination report or in an addendum. The examiner should report all muscle injuries (and the specific muscle groups) resulting from a gunshot wound to the right shoulder. The examiner must specify each muscle group that was injured. If the examiner determines that certain muscle groups identified on previous examinations were not injured or otherwise involved, the examiner should provide a clear rationale for such finding. For each injured muscle group, the examiner should state whether the symptoms of muscle disability are slight, moderate, moderately severe or severe. In reaching this conclusion, the examiner should note the presence and severity of any signs and symptoms of muscle disability, such as: loss of power, weakness, lowered threshold of fatigue, fatigue-pain, impairment of coordination, uncertainty of movement, entrance and exit scars, intermuscular scarring, loss of deep fascia, loss of muscle substance, impairment of muscle tonus, impaired endurance, abnormal muscle swelling and hardness in contraction, X-ray evidence of minute multiple scattered foreign bodies, scar adhesion, diminished muscle excitability, muscle atrophy, adaptive contraction of an opposing muscle group, or muscle induration. The examiner is advised that the Veteran is competent to report his symptoms and history, and such reports must be considered. If the examiner rejects the Veteran's reports, the examiner must provide a reason for doing so. 3. After the above development, the claim should be readjudicated. If the benefit sought on appeal is not granted to the Veteran's satisfaction, the Veteran and his representative should be furnished a supplemental statement of the case and provided an appropriate opportunity to respond before the case is returned to the Board for further appellate action. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ______________________________________________ MARJORIE A. AUER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs