Citation Nr: 1311401 Decision Date: 04/05/13 Archive Date: 04/19/13 DOCKET NO. 08-13 272 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama THE ISSUES 1. Entitlement to a compensable rating for eczematoid dermatitis. 2. Entitlement to a rating in excess of 20 percent for residuals of a gunshot wound of the right shoulder and arm with injury to Muscle Group III and retained foreign body. 3. Entitlement to an initial rating in excess of 30 percent for posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Alabama Department of Veterans Affairs ATTORNEY FOR THE BOARD D. Bredehorst INTRODUCTION The Veteran had active military service from November 1965 to November 1968. This appeal to the Board of Veterans' Appeals (Board) is from March 2007 and December 2007 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama. The March 2007 decision denied a higher rating for the gunshot wound but granted service connection for PTSD, rated 30 percent disabling, and the December 2007 rating decision denied a higher rating for the skin disability. During the course of the appeal, the Veteran requested a local hearing before a Veterans Law Judge (VLJ) and a hearing before a Decision Review Officer (DRO); however, he withdrew these requests in June 2008 and July 2011, respectively. In February 2012, the Board remanded the case for additional development. As the development has been completed, these matters are returned to the Board for consideration. The Board has reviewed the contents of the Veteran's electronic ("Virtual VA") file and found that it contains medical pertinent to this appeal that is not in the claims file but that was considered in the October 2012 supplemental statement of the case (SSOC). The record shows that the Veteran recently submitted private treatment records dated in September and October 2012 that show he has severe bilateral joint disease of the knees. The issue of service connection for bilateral knee disorders has been raised by the record, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. FINDINGS OF FACT 1. Throughout the appeal, the service-connected skin disability manifested intermittently, but it was not shown to affect any exposed part of the body or affect 5 percent or more of his total body, nor has it required intermittent systemic therapy such as corticosteroids or other immunosuppressive drugs. 2. The Veteran incurred "moderate" injury to Muscle Group III of the right shoulder and arm involving history of high velocity missile (bullet) injury with retained foreign body and debridement, fatigue pain, and slight loss of strength; there is no indication on palpation of moderate loss of deep fascia, muscle substance, or evidence of impairment of strength or endurance when compared to the sound side. 3. Symptoms associated with the Veteran's PTSD are productive of occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks. CONCLUSIONS OF LAW 1. The criteria for a compensable rating for the service-connected eczematoid dermatitis have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.1 - 4.7, 4.10, 4.118, Diagnostic Code (Code) 7806 (2012). 2. The criteria for a rating in excess of 20 percent for residuals of a gunshot wound to the right shoulder and arm with injury to Muscle Group III and retained foreign body have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.25, 4.55, 4.56, 4.71a, 4.73, Code, 5303 (2012). 3. The criteria for a rating in excess of 30 percent for the PTSD have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.10, 4.130, Code 9411 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), in part, enhanced VA's duties to notify and assist claimants in substantiating claims for VA benefits. 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(a) (2012). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the Veteran and his representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim, and to indicate which portion of the information and evidence VA will obtain and which portion of the information and evidence the claimant is expected to provide. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). This notice ideally should be provided to the Veteran prior to initially adjudicating his claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004) (Pelegrini II). If, however, for whatever reason it was not, or the notice provided was inadequate or incomplete, this timing error can be effectively "cured" by providing all necessary VCAA notice and then readjudicating the claim - such as in an SOC or supplemental SOC (SSOC), such that the intended purpose of the notice is not frustrated, rather preserved, and the Veteran is given ample opportunity to participate effectively in the adjudication of the claim. See Mayfield v. Nicholson, 499 F.3d 1317, 1323 (Fed. Cir. 2007) (Mayfield IV); Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). In Shinseki v. Sanders, 129 S. Ct. 1696 (2009), the U. S. Supreme Court made clear that VCAA notice errors, even if shown to have occurred, are not presumptively prejudicial, instead, must be judged on a case-by-case basis, and that, as the pleading party attacking the agency's decision, the Veteran bears this burden of proof of not only establishing error, but also, above and beyond that, of showing how it is unduly prejudicial, meaning outcome determinative of the claim. These VCAA notice requirements apply to all five elements of a service connection claim: (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/Hartman v. Nicholson, 19 Vet. App. 473, 486 (2006), aff'd sub nom. Hartman v. Nicholson, 483 F.3d 1311 (2007). But when, as is partly the case here, the claim arose in the context of the Veteran trying to establish his underlying entitlement to service connection, and this since has been granted and he has appealed a "downstream" issue such as the initial rating assigned for his disability, the underlying claim has been more than substantiated, it has been proven, thereby rendering § 5103(a) notice no longer required because the initial intended purpose of the notice has been served. See Goodwin v. Peake, 22 Vet. App. 128 (2008). So, in this situation, VA is not required to provide him additional VCAA notice concerning the downstream disability rating and effective date elements of his claim. See also Dunlap v. Nicholson, 21 Vet. App. 112 (2007) and VAOPGCPREC 8-2003, 69 Fed. Reg. 25180 (May 5, 2004). According to the holding in Goodwin and its progeny, instead of issuing an additional VCAA notice letter in this situation concerning the downstream disability rating element of the claim, the provisions of 38 U.S.C.A. § 7105(d) require VA to issue an SOC if the disagreement is not resolved. January 2007 and June 2007 letters provided the Veteran with notice of VA's duties to notify and assist him in the development of his claims consistent with the laws and regulations cited above. In this regard, the letters informed him of the evidence and information necessary to substantiate his claims, the information required of him to enable VA to obtain evidence in support of his claims, the assistance that VA would provide to obtain information and evidence in support of his claims, and general notice regarding how disability ratings are assigned. See Vazquez-Flores v. Shinseki, 580 F.3d 1270, 1277 (2009), overruling the lower Court's holding in Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008) (concluding that "generic" notice in response to a claim for an increased rating is all that is required, not also notice of specific or alternative diagnostic codes or daily life evidence, etc.). And, indeed, although as concerning some of his claims not technically required, he nonetheless was given notice regarding disability ratings and effective dates of awards consistent with the holding in Dingess. Regarding the higher initial rating for PTSD, the Board notes that the March 2007 rating decision on appeal granted service connection for the disability and the Veteran appealed the initial rating assigned. In such cases, once a notice of disagreement (NOD) has been filed, for example contesting a "downstream" issue such as the initial rating assigned for the disability, the notice requirements of 38 U.S.C. §§ 5104 and 7105 regarding a rating decision and statement of the case (SOC) control as to the further communications with the appellant, including as to what evidence is necessary to establish a more favorable decision with respect to the downstream element of the claim. See also Dunlap v. Nicholson, 21 Vet. App. 112 (2007); Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), aff'd sub nom. Hartman v. Nicholson, 483 F.3d 1311 (2007); and VAOPGCPREC 8-2003, 69 Fed. Reg. 25180 (May 5, 2004). He was provided this required SOC in April 2008 citing the applicable statutes and regulations and discussing the reasons and bases for not assigning a higher initial rating for his disability. Indeed, he also since has been provided supplemental SOCs (SSOCs) concerning the claim in September 2011 and October 2012. The Board also finds that VA has made reasonable efforts to assist the Veteran in obtaining evidence necessary to substantiate his claims. 38 U.S.C.A. § 5103A (West 2002). To this end, his service treatment records (STRs) have been obtained and associated with his claims file, as well as all post-service pertinent or identified records that could be obtained. Pursuant to the Board's February 2012 remand, additional treatment records were sought and obtained. VA compensation examinations were conducted that are adequate for rating these disabilities because the reports of them contain the information needed to address the applicable rating criteria. See Barr v. Nicholson, 21. Vet. App. 303 (2007); Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007). VA's duty to assist is met. Accordingly, the Board will address the merits of the claims. Legal Criteria Disability evaluations are determined by the application of VA's Schedule for Rating Disabilities. Separate diagnostic codes identify the various disabilities. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. When rating a service-connected disability, the entire history must be borne in mind. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). However, in a claim for increased rating, the most recent evidence is generally the most relevant, as the present level of disability is of primary concern. Francisco v. Brown, 7 Vet. App. 55 (1994). That being said, given unintended delays during the appellate process, VA's determination of the "current level" of a disability may result in a conclusion that the disability has undergone varying and distinct levels of severity throughout the entire time period that the increased rating claim has been pending. In those instances, it is appropriate to "stage" the rating to compensate the Veteran for this variance. See Hart v. Mansfield, 21 Vet. App. 505 (2007) and Fenderson v. West, 12 Vet. App. 119 (1999) (employing this practice irrespective of whether the rating being contested in an initial or established rating). Regulations require that, where there is a question as to which of two evaluations is to 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. All reasonable doubt material to the determination is resolved in the Veteran's favor. 38 C.F.R. § 4.3. The standard of proof to be applied in decisions on claims for veterans' benefits is set forth in 38 U.S.C.A. § 5107 (West 2002). A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence. See 38 C.F.R. § 3.102. When a claimant seeks benefits and the evidence is in relative equipoise, the claimant prevails. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The preponderance of the evidence must be against the claim for benefits to be denied. See Alemany v. Brown, 9 Vet. App. 518 (1996). Analysis A. Skin Disorder The Veteran contends that his service-connected skin disability warrants a compensable rating because it was bothersome and caused a great deal of itching. The service-connected skin disability has been assigned a noncompensable (zero percent) rating pursuant to Code 7806, which pertains to dermatitis or eczema. Although changes to 38 C.F.R. § 4.118 were made effective October 23, 2008, these additional revisions only apply to the criteria for rating scars; therefore, these changes pertain to Codes 7800-7805 and are not applicable to the matter currently before the Board because the skin disability is not shown to involve scarring. Under Code 7806, a 60 percent rating is warranted for dermatitis or eczema involving more than 40 percent of the entire body or more than 40 percent of exposed areas affected, or; constant or near-constant systemic therapy such as corticosteroids or other immunosuppressive drugs required during the past 12-month period. 38 C.F.R. § 4.118, Code 7806. If the disability involves 20 to 40 percent of the entire body or 20 to 40 percent of exposed areas affected, or; systemic therapy such as corticosteroids or other immunosuppressive drugs required for a total duration of six weeks or more, but not constantly, during the past 12-month period, a 30 percent evaluation is to be assigned. Id. A 10 percent rating is for assignment where at least 5 percent, but less than 20 percent, of the entire body, or at least 5 percent, but less than 20 percent, of exposed areas is affected, or intermittent systemic therapy has been required, such as corticosteroids or other immunosuppressive drugs, for a total duration of less than six weeks during the past 12-month period. Id. Where less than 5 percent of the entire body or less than 5 percent of exposed areas is affected, and no more than topical therapy has been required during the past 12-month period, a zero percent rating is appropriate. Id. On June 2007 VA examination, the Veteran reported that when he initially developed the skin disorder the breakouts were severe and frequent. Over time, the skin disorder lessened and he applied creams, which helped. He reported that his outbreaks were intermittent and occurred yearly. It manifested as a scaly, pruritic rash that covered most of his arms and chest; there were no systemic symptoms. Over the past 12 months, he treated the skin condition with hydrocortisone cream 3 to 4 times a week over the past 12 month period. At the time of the examination, his skin disorder was not active and the examiner indicated that the disorder affected no exposed area and less than 5 percent of his total body. The Veteran's private treatment records show that there were manifestations of a skin disorder in December 2007. He reported having 5 to 6 red spots on his mid-chest and arms that itched. The record does not reflect his skin was evaluated, but his diagnoses included a rash for which he was prescribed a cream. In March 2008, he complained of itching and peeling skin on the back of his thighs, but the record does not reflect any evaluation of his skin. Nevertheless, he was prescribed medication for the itching. On May 2010 VA compensation examination, the Veteran reported that his skin condition had cleared up insofar as he had not used prescription medication to treat it for years. His reported symptoms were scaling, redness, and sloughing off of skin. There had been no treatment of the skin disorder for the past 12 months and it was not found to be active on examination. The examiner indicated that the disorder did not affect the Veteran's exposed areas and affected less than 5 percent of his total body. June and July 2010 private treatment records also reflect manifestations of a skin disorder. His complaints were of a rash all over his body and itching. After approximately one month he reported the rash had cleared up. A review of VA treatment records located in the Virtual VA file from October 2006 through August 2012 do not reflect any complaints or treatment for a skin disorder. As demonstrated by the record, the Veteran's skin disorder is shown to be present at some times and absent at other times. The Court has recognized that some conditions, by their inherent nature, wax and wane and accordingly are sometimes active and other times not. See Ardison v. Brown, 6 Vet. App. 405, 408 (1994). In that case, the Court concluded an examination during an inactive or remission phase did not accurately reflect elements of a skin condition that caused the Veteran to miss three to four months of work at a time. In the present case, the Veteran was afforded 2 VA compensation examination when the Veteran's skin disorder was inactive. Given that his outbreaks appear to occur infrequently, it is highly unlikely that an examination could be scheduled during an active period. Based on the description of the skin disorder during active periods, there have been no outbreaks that affected an exposed area of the body. To the extent that the rash has been on non-exposed areas, his private physician did not address to what degree his body was affected, but the VA examiners indicated that it was less than 5 percent of his entire body. Thus, a compensable rating may not be assigned based on the percentage of his body affected by the skin disorder. Regarding other criteria that could result in a compensable rating, the disability is not shown to require intermittent systemic therapy during a 12 month period. Although the June 2007 VA compensation examination indicated that the Veteran had used a topical steroid cream, namely hydrocortisone, he was not shown to use a systemic corticosteroid. In this regard, the examiner specifically noted that the Veteran did not have any systemic symptoms. By the May 2010 VA compensation examination, he was not using any prescribed medication. Therefore, a compensable rating may not be assigned based on the intermittent use of systemic therapy. As a preponderance of the evidence is against a compensable rating for the service-connected skin disability, the benefit-of-the-doubt doctrine is not applicable and the claim is denied. 38 C.F.R. § 3.102, Gilbert v. Derwinski, 1 Vet. App. 49, 56 (1990). B. Residuals of a Gunshot Wound to the Right Shoulder and Arm with Retained Foreign Body. Generally, injuries affecting gunshot and shell fragment wounds are evaluated as muscle injuries, under 38 C.F.R. § 4.73. Diagnostic Codes 5301-5323 explain the function and location of 23 muscle groups for which rating criteria are provided. Ratings are assigned under each code based on whether the muscle injury is slight, moderate, moderately severe, or severe. To determine the severity of the injury, it is necessary to look at the type of injury, history and complaint, and objective findings. 38 C.F.R. § 4.56(d). Additionally, the cardinal signs and symptoms of muscle disability for VA purposes 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). Muscle injuries are classified into four general categories; slight, moderate, moderately severe, and severe. The factors considered in evaluating the severity of a muscle injury are the velocity, trajectory and size of the missile which inflicted the wounds; the extent of the initial injury and duration of the hospitalization; the therapeutic measures required to treat the disability; and the current objective findings, such as evidence of damage to muscles, nerves and bones which results in pain, weakness, limited or excessive motion, shortening of extremities, scarring or loss of sensation. 38 C.F.R. § 4.56. "Slight" disability of muscles results from a simple wound of muscle without debridement or infection. There is service department record of superficial wound with brief treatment and return to duty, and of healing with good functional results. There are no cardinal signs or symptoms of muscle disability, minimal scar, and no evidence of fascial defect, atrophy, or impaired tonus. There is no impairment of function or metallic fragments retained in muscle tissue. 38 C.F.R. § 4.56(d)(1). "Moderate" disability of the muscles is shown by through-and-through or deep penetrating wounds of short track by a single bullet, small shell, or shrapnel fragment, without the explosive effect of a high velocity missile, residuals of debridement or prolonged infection. The history of a moderate muscle disability includes service department records 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 a lowered threshold of fatigue after use which affects the particular functions controlled by the injured muscles. Objective findings include small or linear entrance and (if present) exit scars which indicate a short track of the missile through muscle tissue, some loss of deep fascia or muscle substance, impairment of muscle tonus and loss of power, or a lowered threshold of fatigue when compared to the sound side. 38 C.F.R. § 4.56(d)(2). A "moderately severe" disability of the muscles is shown by a through-and-through or deep penetrating wound, by a small high velocity missile or a large low velocity missile, with debridement, prolonged infection, or sloughing of soft parts, and intermuscular scarring. History and complaints of this injury include a record of hospitalization for a prolonged period for treatment of a wound, a record of consistent complaint of cardinal signs and symptoms of muscle disability, and, if present, evidence of an inability to keep up with work requirements. Objective findings of a moderately severe muscle wound are entrance and (if present) exit scars indicating the track of the missile through important muscle groups; indications on palpation of moderate loss of deep fascia, muscle substance, or normal firm resistance of muscles compared with the sound side; and tests of strength and endurance compared with the sound side demonstrating positive evidence of impairment. 38 C.F.R. § 4.56(d)(3). "Severe" disability consists of through-and-through or deep penetrating wound due to high-velocity missile, or large or multiple low velocity missiles, or with shattering bone fracture or open comminuted fracture with extensive debridement, prolonged infection, or sloughing of soft parts, intermuscular binding and scarring. Furthermore, objective findings of a severe disability include the following: ragged, depressed, and adherent scars that indicate wide damage to the 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 in comparison to the corresponding muscles of the uninjured side indicate severe impairment of function. 38 C.F.R. § 4.56. If present, the following are also signs of severe muscle disability: (1) X-ray evidence of minute multiple scattered foreign bodies indicating intermuscular trauma and explosive effect of the missile; (2) adhesion of a 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 the bone is normally protected by muscle; (3) diminished muscle excitability to pulsed electrical current in electrodiagnostic tests; (4) visible or measurable atrophy; (5) adaptive contraction of an opposing group of muscles; (6) atrophy of muscle groups not in the tract of the missile, particularly of the trapezius and serratus in wounds of the shoulder girdle; and (7) induration or atrophy of an entire muscle following simple piercing by a projectile. 38 C.F.R. § 4.56. Under 38 C.F.R. § 4.56 muscle disabilities are evaluated as follows: (a) An open comminuted fracture with muscle or tendon damage will be rated as a severe injury of the muscle group involved unless, for locations such as in the wrist or over the tibia, evidence establishes that the muscle damage is minimal; (b) A through-and-through injury with muscle damage shall be evaluated as no less than a moderate injury for each group of muscles damaged; (c) For VA rating purposes, the cardinal signs and symptoms of muscle disability are loss of power, weakness, lowered threshold of fatigue, fatigue-pain, impairment of coordination and uncertainty of movement. Muscle injuries in the same anatomical region, i.e. (a) the shoulder girdle and arm, (b) the forearms and hand, (c) the pelvic girdle and thigh, (d) the leg and foot, will not be combined, but instead, the rating for the major group affected will be elevated from moderate to moderately severe, or from moderately severe to severe, according to the severity of the aggregate impairment of function of the extremity. Paragraph 16(1), Schedule for Rating Disabilities. Handedness for the purpose of a dominant rating will be determined by the evidence of record, or by testing on VA examination. Only one hand shall be considered dominant. The injured hand, or the most severely injured hand, of an ambidextrous individual will be considered the dominant hand for rating purposes. 38 C.F.R. § 4.69 (2012). The VA examination reports indicate the Veteran is right-hand dominant. Thus, for purposes of rating his right shoulder disability, he will be rated under the criteria for the major side. The service-connected right shoulder and arm disability at issue is rated under Code 5303, which pertains to injury to Muscle Group III. Under this code, the criteria provides a 20 percent for a moderate disability of this muscle group, which control elevation and abduction of the arm to level of the shoulder, and backward swing of arm, involving the intrinsic muscles of the shoulder girdle, including the pectoralis major I and the deltoid. A rating of 30 percent is provided for a moderately severe muscle disability, and a rating of 40 percent is provided for a severe muscle disability. 38 C.F.R. § 4.73, Code 5303. The available service treatment records show that the Veteran was shot by small arms enemy fire in the right shoulder in August 1967 while serving in Vietnam. There was no nerve or artery involvement. The wound was debrided and he underwent were 2 exploratory surgeries of the right shoulder to locate the bullet in the area of the cuff with no benefit. The bullet remained in the body and was dorsal the scapula. An October 1967 clinical record cover sheet shows that he remained hospitalized for 37 days and, in the attached narrative summary, it was recommended that he should be observed for one more month and then get reexamined before returning to the field. March 1968 treatment records note his complaints of shoulder pain with certain physical activities and crepitus was found with right shoulder flexion. Otherwise, there was good range of motion and strength of the shoulder, and no deficit in muscle function. That month, he was placed on a permanent physical profile. A May 1969 rating decision granted service connection for residuals of a gunshot wound to the right shoulder and arm with retained foreign body. A 20 percent rating was assigned and has been in effect ever since. An October 2006 VA treatment record notes the Veteran's complaints of right shoulder pain with activity. On February 2007 VA compensation examination, the examiner noted the history of the gunshot wound to the right shoulder. The gunshot wound occurred in August 1967. There was no nerve or artery damage, but there remained a foreign body in his right shoulder. The Veteran complained of moderate pain daily that became severe by the end of the day with over exertion. The pain was treated with medication with fair relief. The summary of histories of the muscle wound was as follows: the etiology of the right shoulder muscle wound was a missile (bullet). It was not a through and through wound and it was not initially infected before it healed. There were no associated bone, nerve, vascular, or tendon injuries. His current symptoms were pain, fatigability, weakness, and severe flare-ups. There was no incoordination or uncertainty of movement. Flare-ups occurred daily and lasted for hours. They were precipitated by overexertion and the Veteran estimated that the episodes resulted in an additional 25 percent of limitation of motion. The examiner noted that the motor strength of Muscle Group III (deltoid) was 5/5 and there was no tissue loss or intermuscullar scarring. The muscle function was normal in terms of comfort, endurance, and strength sufficient to perform activities of daily living. There were no residuals of tendon, nerve, or bone damage, and there was no muscle herniation or a loss of deep fascia or muscle substance. Clinical tests revealed the presence of a bullet approximately 1 to 2 cm. inferior to the glenoid. There was no acute fracture or dislocation seen. The Veteran had been a civil engineer but he was not currently working due to retirement in August 2002. The effects of the disability on usual daily activities were mild for chores and recreation. On May 2010 VA compensation examination, the symptoms involving the right shoulder included pain, fatigability, and weakness, but not decreased coordination, uncertainty of movement, flare-ups, or other symptoms. Muscle strength in the injured deltoid was 4 out of 5 and there was no intermuscular scarring, residual nerve damage, residual tendon damage, residual bone damage, or a loss of deep fascia or muscle substance. The muscle function was normal in terms of comfort, endurance, and strength sufficient to perform activities of daily living. The Veteran's normal occupation was van driver and while he was not currently employed, his unemployment was unrelated to his right shoulder disability. Problems associated with his right shoulder disability were lifting and carrying, and pain. His disability would affect physical employment. The effects of the disability on the usual daily activities were severe regarding chores; moderate regarding exercise, sports, recreation, bathing, and driving; and mild regarding shopping and dressing. A March 2011 private treatment record notes that motor strength in the Veteran's upper extremities was 5/5 in all groups. The tone was normal with no spasticity and the mass was normal with no signs of atrophy. Based upon the evidence of record, residuals of a gunshot wound to the right shoulder and arm, manifested by injury to Muscle Group III, warrants no greater than the current 20 percent rating since moderately severe or severe muscle impairment is not demonstrated. As shown by the history of the wound, the Veteran suffered a deep penetrating wound by a small high velocity missile (bullet) with debridement but without intermuscular scarring, prolonged infection, or sloughing of soft parts. While service treatment records show prolonged hospitalization for treatment of the wound there were not consistent complaints of cardinals and symptoms of muscle disability such as loss of power, weakness, lowered threshold of fatigue, impairment of coordination, or uncertainty of movement. The only symptom noted was fatigue-pain. The record shows that there is no objective evidence of a loss deep fascia or muscle substance. The evidence also shows that there is no residual nerve damage, tendon damage, or bone damage. Strength was found to be only slightly diminished at 4/5 at worst. Based on the history of the injury and the findings noted above, a higher rating under Code 5303 is not assignable. There are also no other codes relative to muscle injuries for which the disability may be rated. The Board acknowledges that there are other codes based on limitation of shoulder motion that are found under 38 C.F.R. § 4.71. However, since service connection was granted for limitation of right shoulder motion in a September 2011 rating decision and the Veteran did not appeal the rating assigned at that times, Codes 5200-5203 are not for consideration in the current appeal. See Grantham v. Brown, 114 F.3d 1156, 1158-59 (Fed. Cir. 1997). Similarly, service connection for scars associated with residuals of a gunshot wound to the right shoulder and arm was also granted in the September 2011 rating decision, but was not appealed. Thus, a higher rating for the scars is not for consideration in the current appeal. Id. As a preponderance of the evidence is against a rating in excess of 20 percent for the service-connected residuals of a gunshot wound to the right shoulder and arm with injury to Muscle Group III and retained foreign body, the benefit-of-the-doubt doctrine is not applicable and the claim is denied. 38 C.F.R. § 3.102, Gilbert v. Derwinski, 1 Vet. App. 49, 56 (1990). C. PTSD The Veteran contends that his PTSD is more 30 percent disabling. Under 38 C.F.R. § 4.130, Code 9411, a 30 percent evaluation is warranted when there is 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). A 50 percent evaluation is assignable for occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect; circumstantial, circumlocutory, or stereo-typed 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; difficulty in establishing and maintaining effective work and social relationships. Id. A 70 percent disability evaluation is assignable when there is occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately, and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or work like setting); inability to establish and maintain effective relationships. Id. A 100 percent disability evaluation is assignable when there is total occupational and social impairment, due to such symptoms as: persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time and place; memory loss for names of close relatives, own occupation, or own name. Id. The symptoms associated with each rating in 38 C.F.R. § 4.130 are not intended to constitute an exhaustive list, but rather are to serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating. See Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). Thus, the evidence considered in determining the level of impairment under 38 C.F.R. § 4.130 is not restricted to the symptoms provided in the diagnostic code. See id. Rather, VA must consider all symptoms of a claimant's condition that affect his occupational and social impairment, including, if applicable those identified in the American Psychiatric Association : Diagnostic and Statistical Manual of Mental Disorders (4th ed. 1994) (DSM-IV). Mauerhan, 16 Vet. App. at 443. If the evidence demonstrates that a claimant suffers symptoms or effects that cause occupational or social impairment equivalent to what would be caused by the symptoms listed in the diagnostic code, the appropriate, equivalent rating will be assigned. Id. In this regard, VA shall consider the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the veteran's capacity for adjustment during periods of remission. 38 C.F.R. § 4.126 (2012). While VA considers the level of social impairment, it shall not assign an evaluation based solely on social impairment. Id. A Global Assessment of Functioning (GAF) score is a scaled rating reflecting the psychological, social, and occupational functioning on a hypothetical continuum of mental-health illness. See Richard v. Brown, 9 Vet. App. 266, 267 (1996), citing DSM-IV. The DSM-IV contains a GAF scale, with scores ranging from 0 to 100 percent, representing the psychological, social, and occupational functioning of an individual on a hypothetical continuum of mental health-illness. Higher scores correspond to better functioning of the individual. An examiner's classification of the level of psychiatric impairment, by words or by a GAF score, is to be considered but is not determinative of the percentage rating to be assigned. See VAOPGCPREC 10-95. GAF scores ranging between 51 and 60 are assigned when there are 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). See DSM-IV. A January 2007 statement from the Veteran's wife indicates that she had observed his sleep difficulties and nightmares. She added that he had severe depression, was not conversational, moody and sometimes hostile and prone to negative responses. He was usually a likeable, pleasant, laughable, fun-loving, charismatic, helpful, and generous person, but when he had bouts of depression he was a different person. A January 2007 statement from P. P, who has known the Veteran since high school, indicated that the Veteran was a more angry and distant person. On February 2007 VA compensation examination, the Veteran was noted to have been married 3 times with his first wife dying of cancer and the second marriage ending in divorce. He described his relationship with his third (current) wife as being very good most of the time. He has one son from his first marriage with whom he enjoyed a very close relationship until recently. He maintained long-term relationships with friends from childhood and from his employment. The Veteran had a history of verbal arguments with his wife related to his lack of sleep, but he did not engage in physical violence. He enjoyed social activities such as eating out, going to the movies, playing cards, and cooking out for friends. On examination, the Veteran was neatly groomed and appropriately dressed. His speech was clear and coherent and his psychomotor activity was unremarkable. During the examination, he was cooperative and attentive, but he infrequently maintained eye contact. His mood was described as "frustrated and angry due to watching a television show about Vietnam protesters. He was attentive, oriented, without delusions, and with unremarkable thought content or process. His sleep impairment was manifested by 2 to 3 hours of sleep per night and nightmares 2 to 3 times a week. He walked through his house at night with a gun while checking windows and doors. He denied having panic attacks, homicidal or suicidal thoughts, and episodes of violence. There was no problem with his activities of daily living and his impulse control was good. Memory testing was normal. In addition to symptoms already reported, he avoided stimuli associated with the trauma. He was hypervigilant, irritable or had angry outbursts, and had emotional numbing. Regarding his work, the Veteran reported that he started having problems with people when he became a supervisor and had to deal with the public, inspectors, etc. He reported that he constantly carried his gun around the house for protection. The examiner indicated that the Veteran's PTSD signs and symptoms were transient or mild and decreased work efficiency and the ability to perform occupational tasks only during periods of significant stress. August 2007 VA mental health records located in the Virtual VA file note the Veteran's complaints of daily nightmares, vivid recollections of combat, constant anxiousness, isolation, being easily startled, poor sleep, depressive symptoms, anger, hostility (mild to moderate mood disorder), tearfulness, and constant thoughts about his death. There was no evidence of manic or psychotic symptoms. He appeared mildly disheveled, eye contact was good, speech was normal in rate and volume, his mood was "up and down" and anxious, there were no motor abnormalities, affect was mildly constricted, thought processes were logical, and insight and judgment were fair. There were no hallucinations, delusions, or suicidal or homicidal ideation. Impulse control was within normal limits and his PTSD symptoms were considered mild to moderate. His GAF score was 55. A December 2007 VA mental health record in the Virtual VA file shows the Veteran complained of nightmares 3 times a week, sleeping difficulties, combat flashbacks once a month, avoidance of large crowds and being "out in the open", mild depression, guilt, irritability, concentration problems, and hypervigilance. He appeared calm and cooperative, eye contact was good, psychomotor activity was normal, speech was spontaneous and normal, mood was subdued, affect was appropriate and dysthymic, insight was good, and judgment was intact. There was no suicidal or homicidal ideation, and his thought process was coherent, logical and goal directed. He did not have a history of violence and the mental status examination was otherwise normal. His GAF score was 55. VA treatment records from December 2007 to April 2009 and in August 2009 located in the Virtual VA file show that the Veteran participated in group therapy for PTSD. A November 2008 VA mental health record located in the Virtual VA file notes that the Veteran's main complaint was poor sleep. On mental status examination, he was clean and casually dressed, maintained good eye contact, speech was normal in rate and volume, and there were no motor abnormalities. His mood as described as "not great", affect was full range, thought processes were logical, and insight and judgment were poor. His GAF score was 55. A June 2009 VA mental health record located in the Virtual VA file again shows that the Veteran's main complaint was poor sleep and it was noted that he had obstructive sleep apnea and fairly frequent nightmares. He continued to have anxiety and irritability related to his poor sleep. On mental status examination, he was clean and casually dressed, maintained good eye contact, speech was normal in rate and volume, there were no motor abnormalities, moods were described as "good days and bad days", affect was full range, thought processes were logical, and insight and judgment were poor. His GAF score was 55. April and July 2010 VA treatment records indicate the Veteran quit group therapy a while ago. The April treatment record indicates he was irritable, but that he eventually became more cooperative. Other findings were that he was goal directed, had a depressed mood, maintained fair eye contact, and had adequate judgment and insight. The July record indicates that he had been given medication 3 months earlier for PTSD symptoms and poor sleep but he had not gotten any refills, which indicated that he was taking the medication sporadically, at best. On mental status examination, he appeared clean and casually dressed, good eye contact was maintained, and his speech was normal in rate and volume. His mood was described as "so-so" and he had full range of affect. The Veteran's thought processes were logical and there was no evidence of suicidal or homicidal ideation. His insight and judgment were poor. The GAF score was 55. A February 2011 VA treatment record indicates the Veteran was seen for a follow-up of his PTSD. He reported being irritable and having fewer nightmares due to poor sleep. He denied having suicidal ideation and he indicated that he had hope for the future. His GAF score was 55. On July 2011 VA compensation examination, the Veteran was found to have diagnoses of PTSD and depressive disorder NOS. His symptoms were anxiety, depressed mood, panic attacks that occurred more than once a week, chronic sleep impairment, and mild memory loss. He was not currently on any psychiatric medication and there was no history of psychiatric hospitalization. He enjoyed reading and watching television. On examination, the Veteran was appropriately dressed; immediate recall was 3/3 and was 2/3 after a short delay; his attention/abstract reasoning was fair; speech was spontaneous and within normal limits; and his affect was mildly dysthymic. He described his mood as "not good", but he was pleasant on presentation. Eye contact was limited and he endorsed moderate chronic depressed mood, occasional crying spells, increased anxiety, difficulties with sexual functioning that affected his mood, and nightmares. He reported being "grouchy" due to poor sleep and he engaged in verbal but not physical altercations. He washed his hands multiple times during the day, but his behavior did not appear to interfere with his functioning. He reported having moderate, brief panic attacks. There were no hallucinations or suicidal or homicidal ideation. The examiner indicated symptoms associated with each disorder were distinguishable and that the symptoms associated with PTSD were arousal, avoidance, and reexperiencing symptoms; the depressive disorder's associated symptoms were depressed mood, history of suicidal ideation, and crying spells. The Veteran reported being married to his current wife for 5 years. The marital relationship and the relationship with his grown son were described as "great". He did not maintain any significant contact with his siblings and he had 1 or 2 friends that he saw once or twice a week. He retired from the highway department in 2002 and he stopped working as a van driver in 2002 after going into a diabetic coma. The Veteran's overall impairment was found to be consistent with occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform satisfactorily with normal routine behavior, self-care, and conversation. It was not possible for the examiner to differentiate what portion of the occupational and social impairment was caused by each mental disorder; however, while the disorders were separate, they were likely mutually exacerbating and some symptoms such as sleep disturbance overlapped between the diagnoses. His GAF score was 55. August 2011 VA treatment records located in the Virtual VA file show that the Veteran's main complaints were poor sleep and frequent nightmares. Daytime sleepiness contributed to his irritability and some marital discord. On mental status examination, he was clean and casually dressed, maintained good eye contact, and speech as normal in rate and volume. There were no motor abnormalities, moods were "up and down", affect was full range, thought processes were logical, and insight and judgment were poor. His GAF score was 55. March and April 2012 VA treatment records located in the Virtual VA file shows that the Veteran reported having worsening nightmares nearly every night with overall poor sleep. He was hypervigilant and on alert all of the time. He appeared clean and casually dressed, eye contact was good, speech was normal in rate but slightly increased in volume, and his mood was "on alert". There were no motor abnormalities, his affect was full range, thought processes were logical, there was no suicidal or homicidal ideation, and insight and judgment were poor. The Veteran reported having a good relationship with his wife and son. He also had several friends and he had hope for the future. His GAF score was 55. VA mental health records from June to August 2012 that are contained in the Virtual VA file indicate that he was oriented and demonstrated no perceptual disturbance, gross cognitive confusion, or suicidal or violent ideation. His thinking and speech were within normal limits. His appearance was clean and he was casually dressed. Eye contact was good, affect was full range, and insight and judgment were fair. His GAF score was 55. Based on the evidence of record the Board finds that the service-connected PTSD resembles the criteria for a 30 percent rating more closely than the criteria for a higher rating. As the severity of the disability is shown to be consistent throughout the appeal, staged ratings are not warranted. See Fenderson, supra. At no time during the appeal is PTSD shown to be productive of reduced reliability and productivity. His speech was consistently found to be normal, panic attacks were less than once a week, there was no difficulty in understanding instructions, memory was essentially adequate, and he had no difficulty in establishing and maintaining effective work and social relationships. Although retired, the Veteran reported that his symptoms had affected his work performance when he dealt with members of the public, inspectors, etc. During the course of the appeal, he endorsed difficulties with being in crowds, but he was still able to function effectively as he was able to not only engage in but enjoy activities such as dining out. See the February 2007 VA compensation examination and December 2007 VA treatment record. The Veteran also maintained relationships with childhood friends and friends from his previous employment. Although various symptoms were reported in treatment records and on examinations, there were several occasions in which his main complaints were sleeping difficulties and nightmares. See November 2008, June 2009 and August 2011 VA treatment records. While poor sleep led to some symptoms such as irritability and anxiety, there is no indication that these symptoms created more than occasional problems. In August 2011, his daytime sleepiness contributed to some marital discord, but he still maintained a good relationship with his wife. There was no evidence of sustained difficulties with his mood as he described both having good days and bad days. See VA treatment records in August 2007, June 2009, and August 2011. His wife reported that he was moody and sometimes hostile (see her January 2007 statement), but again this suggests variations in his mood that would only result in occasional inefficiency or intermittent periods of an inability to perform tasks. Even when the Veteran was irritable or his mood was "not good", he was still found to function well as he was described as being cooperative or pleasant. See VA treatment records in April 2010 and July 2011. In July 2011, the Veteran was noted to frequently wash his hands, but since this behavior did not appear to interfere with his functioning, it is not severe enough to be considered behavior consistent with a higher rating. Similarly, the Veteran appears to have anger issues and is noted to have verbal altercations, but he is also shown to have had no physical altercations and has overall good impulse control. There were times throughout the appeal when his insight and judgment were poor (see VA treatment records in November 2008, June 2009, July 2010, and August 2011), which is sufficient to establish that he had deficiency in judgment. However, this is just one of several areas in which a deficiency must be shown in order to assign a 70 percent rating. As there is no evidence of deficiency in work, family relations, thinking, or mood attributable to PTSD, a 70 percent rating is not assignable. The Board also notes that VA examiners have found that the PTSD produced impairment consistent with the current rating. In this regard, the July 2011 VA compensation examiner found that the Veteran's PTSD was consistent with occupational and social impairment with occasional decreased in work efficiency and intermittent periods of inability to perform satisfactorily. Notably, the February 2007 VA compensation examiner found that even milder symptoms existed. Throughout the appeal his GAF scores were 55, which is indicative of moderate symptoms or moderate difficulty in social or occupational functioning. The symptoms associated with the Veteran's PTSD are consistent with moderate impairment. While many symptoms were reported in treatment records and examinations, not all were associated with the service-connected disability. The Veteran also had a diagnosis of depressive disorder NOS, which is not a service-connected disability. The examiner was able to distinguish PTSD symptoms from depressive disorder symptoms and identified symptoms unrelated to PTSD as depressed mood, history of suicidal ideation, and crying spells. Hence, these symptoms are not attributable to PTSD and are not considered in rating the disability. Absent evidence of more symptoms indicating a higher severity of psychiatric dysfunction, the Board finds that the preponderance of the evidence is against a disability rating greater than 30 percent for his PTSD. As a preponderance of the evidence is against a higher initial rating for PTSD, the benefit-of-the-doubt rule is inapplicable. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 4.3; Gilbert, 1 Vet. App. at 54-56. D. Extraschedular The rating schedule represents, as far as is practicable, the average impairment of earning capacity. Ratings will generally be based on average impairment. 38 C.F.R. § 3.321(a), (b) (2012). To afford justice in exceptional situations, an extraschedular rating can be provided. 38 C.F.R. § 3.321(b). The Court clarified the analytical steps necessary to determine whether referral for extraschedular consideration is warranted. See Thun v. Peake, 22 Vet. App. 111 (2008). First, the RO or the Board must determine whether the evidence presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Second, if the schedular evaluation does not contemplate the Veteran's level of disability and symptomatology and is found inadequate, the RO or Board must determine whether the claimant's exceptional disability picture exhibits other related factors such as those provided by the regulation as "governing norms." Third, if the rating schedule is inadequate to evaluate a Veteran's disability picture and that picture has attendant thereto related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director of the C&P Service to determine whether, to accord justice, the Veteran's disability picture requires the assignment of an extraschedular rating. The symptoms associated with the Veteran's service-connected skin disorder, residuals of a muscle injury, and PTSD are not shown to cause any impairment that is not already contemplated by the rating criteria, and the Board finds that the rating criteria reasonably describe each disability. The skin disorder has not been active on any examination and treatment records show that the occurrences are infrequent and of relatively short duration. The residuals of injury to Muscle Group III include symptoms such as pain, slight weakness, and fatigability that are contemplated by the criteria. Regarding PTSD, the disability is not rated based solely on symptoms noted in the rating criteria since it does not contain an exhaustive list of symptoms. However, given the symptoms manifested throughout the appeal, they are reasonably encompassed in the criteria in terms of occupational and social functioning impairment. Indeed, with regard to each disability, there is nothing in the manifested symptoms or their impact that is shown to be unusual or outside schedular consideration. For these reasons, referral for consideration of an extraschedular rating is not warranted for this claim. ORDER A compensable rating for eczematoid dermatitis is denied. A rating in excess of 20 percent for residuals of a gunshot wound of the right shoulder and arm with injury to Muscle Group III and retained foreign body is denied. Entitlement to an initial rating in excess of 30 percent for PTSD is denied. ____________________________________________ KELLI A. KORDICH Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs