Citation Nr: 1311767 Decision Date: 04/09/13 Archive Date: 04/19/13 DOCKET NO. 08-03 204 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Louisville, Kentucky THE ISSUES 1. Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD. 2. Entitlement to an evaluation in excess of 10 percent for muscle sheath herniation of the anterior right leg. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD M. Scott Walker, Counsel INTRODUCTION The Veteran served on active duty from January 1972 to August 1975. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Louisville, Kentucky. The issues on appeal were remanded by the Board for additional development in November 2011. The Board notes that, although the Veteran's claims of entitlement to service connection for an acquired psychiatric disorder and PTSD were previously adjudicated as separate claims, the United States Court of Appeals for Veterans Claims (Court) has held that the scope of a mental health disability claim includes any mental disability that may reasonably be encompassed by the claimant's description of the claim, reported symptoms and the other information of record. See Clemons v. Shinseki, 23 Vet. App. 1 (2009). Accordingly, the issue on appeal has been recharacterized and broadened to encompass all theories of entitlement. The issue of entitlement to service connection for an acquired psychiatric disorder is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if additional action is required on his part. FINDING OF FACT The Veteran's disability has been evaluated as 10 percent disabling, which is the highest possible rating pursuant to Diagnostic Code 5236. CONCLUSION OF LAW The criteria for a rating in excess of 10 percent for a muscle sheath herniation of the anterior right leg have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.321(b)(1), 4.1, 4.3, 4.7, 4.10, 4.40, 4.73, Diagnostic Code 5326 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Duty to Notify and Assist VA has a duty to notify and a duty to assist claimants in substantiating claims for VA benefits. 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. §§ 3.159, 3.326(a) (2012). Proper notice from VA must inform the claimant, prior to the initial unfavorable decision on a claim by the agency of original jurisdiction, of any information and any 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 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b) (2012); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Neither the Veteran nor his representative has alleged prejudice with respect to notice. Shinseki v. Sanders, 129 S. Ct. 1696 (2009); Goodwin v. Peake, 22 Vet. App. 128 (2008); Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). None is found by the Board. VA's duty to notify has been satisfied. The Veteran was notified in January 2006 of the criteria for establishing an increased rating, the evidence required, and his and VA's respective duties for obtaining evidence. That letter addressed all notice elements and predated the initial adjudication in August 2006. He also was notified of how VA determines disability ratings and effective dates if service connection is awarded. Nothing more is required in this case. As for the duty to assist, the Veteran's service treatment records and pertinent post-service reports have been obtained. 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2012). The Board finds that no additional evidence, which may aid the Veteran's claim or might be pertinent to the claim, has been submitted, identified, or remains outstanding, and the duty to assist requirement has been satisfied. The duty to assist also includes providing a medical examination or obtaining a medical opinion when such is necessary to make a decision on the claim, as defined by law. 38 C.F.R. § 3.159(c)(4) (2012); Green v. Derwinski, 1 Vet. App. 121 (1991). Here, the Veteran was most recently afforded a VA examination to address his increased rating claim in July 2012. When VA undertakes to provide a VA examination, it must ensure that the examination is adequate. Barr v. Nicholson, 21 Vet. App. 303 (2007). The VA examination report is adequate to decide the claim addressed herein, as the examination report included a thorough review of the file, and examination findings relevant to the issue. 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 failure is harmless. Mayfield v. Nicholson, 19 Vet. App. 103 (2005). Increased Rating The Veteran claims that his service-connected muscle sheath herniation of the anterior right leg, which currently receives the maximum evaluation of 10 percent, is more severe than indicated by the rating schedule. Disability ratings are based upon the average impairment of earning capacity as contemplated by the schedule for rating disabilities. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. Part 4 (2012). In order to rate 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 (2002). However, where an increase in the level of a service-connected disability is at issue, the primary concern is the present level of disability. Francisco v. Brown, 7 Vet. App. 55 (1994). In cases in which a reasonable doubt arises as to the appropriate degree of disability to be assigned, the reasonable doubt shall be resolved in favor of the Veteran. 38 C.F.R. § 4.3 (2012). VA must assess the level of disability from the date of initial application for service connection and determine whether the level of disability warrants the assignment of different disability ratings at different times over the life of the claim, a practice known as a staged rating. Fenderson v. West, 12 Vet. App 119 (1999). Staged ratings are appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). The relevant temporal focus for adjudicating an increased rating claim is on the evidence concerning the state of the disability from the time period one year before the claim was filed until VA makes a final decision on the claim. In this case, the evidence of record does not establish additional, distinct time periods in which the issue on appeal resulted in symptoms that warrant a staged rating. In general, all disabilities, including those arising from a single disease entity, are rated separately, and all disability ratings are then combined. 38 C.F.R. § 4.25 (2012). However, the rating of the same disability or the same manifestations under various diagnoses is not allowed. 38 C.F.R. § 4.14. A claimant may not be compensated twice for the same symptomatology as such a result would overcompensate the claimant for the actual impairment of his earning capacity. Brady v. Brown, 4 Vet. App. 203 (1993); 38 U.S.C.A. § 1155 (West 2002). That would result in pyramiding, contrary to the provisions of 38 C.F.R. § 4.14. However, if a veteran has separate and distinct manifestations attributable to the same injury, they should be compensated under different diagnostic codes. Esteban v. Brown, 6 Vet. App. 259 (1994); Fanning v. Brown, 4 Vet. App. 225 (1993). Assignment of a particular Diagnostic Code is completely dependent on the facts of a particular case. Butts v. Brown, 5 Vet. App. 532 (1993). One Diagnostic Code may be more appropriate than another based on such factors as an individual's relevant medical history, the current diagnosis, and demonstrated symptomatology. Any change in Diagnostic Code by a VA adjudicator must be specifically explained. Pernorio v. Derwinski, 2 Vet. App. 625 (1992). Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2012). The Board has thoroughly reviewed all the evidence in the Veteran's claims file. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, all of the evidence submitted by the Veteran or on his behalf. Gonzales v. West, 218 F.3d 1378 (Fed. Cir. 2000). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim. The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. Timberlake v. Gober, 14 Vet. App. 122 (2000). The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). In this case, the Board notes that the Veteran is currently in receipt of a 10 percent rating under Diagnostic Code 5326, the maximum rating allowed for an extensive muscle hernia without other injury to the muscle. 38 C.F.R. § 4.73, Diagnostic Code 5326. Because the Veteran is in receipt of the maximum rating under Diagnostic Code 5326, the Board shall consider other potentially-applicable Diagnostic Codes. However, the Veteran is already service connected for injury to Muscle Group XII per Diagnostic Code 5312. It is noted that Diagnostic Code 5326 is only applicable without other muscle injury, and yet the Veteran is service-connected for a muscle sheath injury per that code, and a moderate muscle group injury per Diagnostic Code 5312. Separate evaluations for the injury to Muscle Group XII under Diagnostic Code 5326 and 5312 are not appropriate in this instance, as the muscle group affected by the hernia under Diagnostic Code 5326 is the same as would be rated under Diagnostic Code 5312. Thus, the Veteran's separate evaluations would appear to violate the rule against pyramiding. As noted above, pyramiding, the evaluation of the same disability, or the same manifestation of a disability, under different diagnostic codes, is to be avoided when rating a Veteran's service-connected disabilities. 38 C.F.R. § 4.14. While the Board will not disturb the additional muscle group rating at this time, as the issue is not on appeal, an additional or higher rating for a muscle group injury will not be considered within the context of this decision. Entitlement to a separate rating for a scar, however, will be addressed herein. By way of his own history, when stationed at Paris Island during his period of active service, the Veteran was injured when another soldier dropped a grenade in his proximity. Shrapnel hit the anterior right leg, though surgery was not required. The area did become infected, and was subsequently treated in sick bay with antibiotics. Thereafter, the Veteran did not undergo any surgical procedure to treat the injury. The Veteran was afforded a VA examination to address his claim in April 2006. It was noted that the injury had its onset in 1972-73, and the Veteran reported that the injury was worsening. He noted that the entire leg was starting to feel numb, and that the numbness made walking difficult. It was noted that the wound was caused by shrapnel from a hand grenade, but that the injury was not through-and-through. Daily flare-ups were reported, manifested by pain, uncertainty of movement, increased fatigability, and decreased coordination. A fascial defect in the lateral anterior tibialis was indicated, approximately 0.2 to 0.3 mm deep. There was no intermuscular scarring, and muscle function was normal in terms of comfort, endurance, and strength sufficient to perform activities of daily living. Residuals of nerve damage were also noted. Specifically, the right lateral lower leg vibration sense was decreased. The Board notes that the Veteran is currently service connected for this disorder, in addition to his muscle sheath disability and his Muscle Group XII disability. Ultimately, the Veteran was diagnosed with a muscle sheath herniation of the anterior right leg, manifested by decreased mobility, problems with lifting and carrying, weakness, fatigue, decreased strength, and lower extremity pain. It was noted that there were significant occupational effects, in that these conditions resulted in increased absenteeism. Following a November 2011 Board remand, the Veteran was afforded an additional VA examination in July 2012. At that time, he reported that the area near the herniated muscle was painful, with pain radiating proximally and distally. He further indicated that there was some limitation of leg function because he could not fully bend his leg back. He stated that he had more trouble walking up and down steps due to the injury, and that he suffered from flare-ups (which he stated were severe). These occurred twice per month, lasting 2-3 days at a time. While the pain was burning during these episodes, there was no additional limitation of motion. He also reported some numbness around the area of his most distal scar, radiating distally toward his anterior right ankle. The examiner pointed out, however, that the scars were minimal, and no other manifestation was indicated. It was noted that the Veteran presented with a fascial defect, described as a minimal herniation, measuring 3.0 cm x 1.0 cm. It was further noted that this injury did not affect muscle substance or function, that there were no signs or symptoms attributable any muscle injury (to include weakness, loss of power, lowered fatigue threshold, impairment of coordination, or uncertainty of movement). Muscle strength testing was 5/5 for the entirety of the affected area (knee flexion/extension, ankle flexion/dorsiflexion, hip flexion). There was no muscle atrophy. While the Veteran used a cane to assist with ambulation, the examiner pointed out that this was used in connection with a right knee condition. In summary, the examiner indicated that the Veteran had a fascial deficit which could lead to a herniation. It was further noted that the defect was very small, with no herniation of muscle through the defect. Muscle function was unaffected, and there was no limitation of motion found on objective examination. Some mild numbness, right around the defect and also distally, was also reported, though, per the examiner, this signified a very mild injury to the superficial peroneal nerve (also service connected). There was no injury to the bones or vascular structures of the leg. The injury did not affect the Veteran's joints, nor did it have an impact on his activities of daily living. Further, the examiner found that the muscle injury did not have an impact on his ability to work. As noted above, the Veteran's 10 percent rating is the highest rating allowed per Diagnostic Code 5326. Further, the Veteran is already service connected for a muscle group injury per Diagnostic Code 5312, and a related neurological disability pursuant to Diagnostic Code 8523. The Board also notes that a separate evaluation for the Veteran's scar(s) was considered. However, the most recent examination revealed minimal scars with no indication of tenderness, instability, inflammation, edema, keloid formation, induration, inflexibility, or limitation of motion or function. As such, a separate evaluation is not warranted because the Veteran's scars are not noted to limit the range of motion of any affected joint, are not adhered to the underlying tissue, were not painful upon examination, were not unstable, and were not shown to cover an area of 144 square inches (929 sq. cm.) or greater. See 38 C.F.R. § 4.118, Diagnostic Codes 7801, 7802, 7803, and 7804. In sum, the Board finds that the evidence does not warrant an additional or increased evaluation under any applicable Diagnostic Code. In reaching the above conclusions, the Board has also not overlooked the Veteran's statements regarding the severity of his service-connected disability. The Veteran is competent to report on factual matters of which he has first-hand knowledge, such experiencing pain and limitation of motion. Washington v. Nicholson, 19 Vet. App. 362 (2005). However, while the Board may consider the Veteran's subjective statements regarding the severity of his disability, the Board notes that with respect to the Rating Schedule, the criteria set forth therein generally require medical expertise which the Veteran has not been shown to have and the types of findings are not readily observable by a layperson, and that objective medical findings and opinions provided by the VA examiners are afforded the greater probative weight. The probative value of medical opinion evidence is based on the medical expert's personal examination of the patient, the physician's knowledge and skill in analyzing the data, and the medical conclusion the physician reaches. As is true with any piece of evidence, the credibility and weight to be attached to these opinions are within the province of the Board as adjudicator. Guerrieri v. Brown, 4 Vet. App. 467 (1993). The above determinations are based upon consideration of applicable rating provisions. There is no showing that the Veteran's disability has demonstrated so exceptional or unusual a disability picture as to warrant the assignment of any higher evaluation on an extra-schedular basis. 38 C.F.R. § 3.321(b)(1) (2012). The symptoms of his disability have been accurately reflected by the schedular criteria, as noted in detail above. Further, the Board points out that his disability rating encompasses a degree of occupational impairment relative to that rating. The most recent VA examination found that his disability did not impede gainful employment in any way. As the Board itself cannot assign an extra-schedular rating in the first instance, it must specifically adjudicate whether to refer a case to the Director of C&P Service for an extra-schedular evaluation when the issue is either raised by the claimant or is reasonably raised by the evidence of record. Thun v. Peake, 22 Vet. App. 111, 115 (2008); Barringer v. Peake, 22 Vet. App. 242 (2008). If, and only if, the Director determines that an extra-schedular evaluation is not warranted, does the Board then have jurisdiction to decide the extra-schedular claim on the merits. In fact, the Court held that, although the Board is precluded from initially assigning an extraschedular rating, there is no restriction on the Board's ability to review the adjudication of an extraschedular rating once the Director of C&P determines that an extraschedular rating is not warranted. Anderson v. Shinseki, 22 Vet. App. 423, 427-28 (2009); see also Floyd, 9 Vet. App. at 96-97 (stating that once Board properly refers an extraschedular rating issue to Director of C&P for review, an appellant may "continue[ ] to appeal the extraschedular rating aspect of this claim"); see also 38 U.S.C.A. §§ 511(a), 7104(a) ("All questions in a matter ... subject to decision by the Secretary shall be subject to one review on appeal to the ... Board."). In this case, without sufficient evidence showing that the Veteran's disability picture is not contemplated by the rating schedule, referral for a determination of whether the Veteran's disability picture requires the assignment of an extraschedular rating is not warranted. In light of the foregoing, the Board finds that the preponderance of the evidence is against the assignment of any rating in excess of 10 percent rating for a muscle sheath herniation of the anterior right leg. Therefore, the claim for an increased rating is denied. 38 U.S.C.A. § 5107(b) (West 2002); Gilbert. ORDER Entitlement to an evaluation in excess of 10 percent for a muscle sheath herniation of the anterior right leg is denied. REMAND As noted in the November 2011 Board remand, the Veteran claims that he suffers from PTSD as a result of several stressors, including being involved in a grenade explosion during basic training, having witnessed the suicide of a fellow Marine during service, and having been involved in a boating accident during service when the boat in which he was riding capsized. See VA psychiatric evaluation, March 2006. He further claims that other psychiatric disorders are linked to service. Service connection for PTSD specifically requires (1) medical evidence establishing a diagnosis of the disability, (2) credible supporting evidence that the claimed in-service stressor occurred, and (3) a link, established by medical evidence, between the current symptomatology and the claimed in-service stressor. See 38 C.F.R. § 3.304(f) (2012). See also Cohen v. Brown, 10 Vet. App. 128 (1997). In this case, RO noted that the Veteran did not return his PTSD questionnaire and, thus, it could not verify his claimed stressors. However, the evidence of record demonstrates that he reported several in-service PTSD stressors during VA outpatient psychiatric treatment. In the prior remand, the Board considered the holding in Tetro v. Gober, 14 Vet. App. 110 (2000), in which the Court held that VA has the duty to request information and pertinent records from other Federal agencies when on notice that such information exists. See also Walch v. Shinseki, 563 F.3d 1374, 1377 (Fed. Cir. 2009) (noting that "a significant part of the VA's duty to assist is its obligation to make reasonable efforts to obtain relevant records."). As such, the Board found that an attempt to verify the Veteran's claimed stressors, by attempting to obtain additional service personnel records, was warranted. Specifically, the Board requested that the RO/AMC contact the Joint Services Records and Research Center (JSRRC) and National Personnel Records Center (NPRC), as well as any other appropriate custodian, so as to attempt to verify the Veteran's claimed stressors. Subsequent to the Board remand, a records search of the Marine Corps Unit Diaries (Muster Rolls) was conducted in April 2012. The AMC indicated that, when stationed at Paris Island, a fellow serviceman dropped a grenade outside of the safety box and the Veteran received a shrapnel injury. It was further indicated that, when stationed at Camp Lejuene, a person in his unit committed suicide by falling out of a window backwards, and that he was involved in a boating accident. In response, it was noted that a search of the Unit Diaries for 1st Recruiting Battalion, Recruit Training Regiment for the period from January 1972 to April 1972, and the 2nd infantry Training Battalion, 1st Infantry Training Regiment, for the period from April 1972 to June 1972, was conducted, revealing no entries of a recruit committing suicide. The Veteran's representative pointed out in a January 2013 Brief that the incident in question (suicide) did not occur during boot camp. Instead, the incident occurred after boot camp, during infantry training. While it appears that this period was in fact considered by the Marine Corps Unit Diaries, it does not appear that the NPRC nor the JSRRC was contacted. Because this development has not been completed, the issue of entitlement to service connection for an acquired psychiatric disorder must be remanded once again so as to conduct a complete records search. See Stegall v. West, 11 Vet. App. 268 (1998) (a remand by the Board confers on the appellant, as a matter of law, a right to compliance with the remand instructions); 38 C.F.R. § 19.9 (2012) (if any action is essential for a proper appellate decision, a Veterans Law Judge shall remand the case to the agency of original jurisdiction, specifying the action to be undertaken). Should the RO/AMC determine that such a search is not necessary, an explanation should be provided and associated with the claims file. Further, should the search yield a positive result with regard to any stressor, the Veteran should once again be scheduled for a VA psychiatric examination to specifically include a PTSD component. Accordingly, the case is REMANDED for the following action: 1. The RO/AMC should submit a request to the Joint Services Records and Research Center (JSRCC), the National Personnel Records Center (NPRC), and any other appropriate entity/location, to attempt to verify the Veteran's claimed stressors. All material produced by the requested search, as well as the document(s) generated to request the search, should be incorporated into the record. Should the RO/AMC determine that such a search is not necessary, an explanation should be provided and associated with the claims file 2. Should the search yield a positive result, the Veteran should be scheduled for an examination by a qualified examiner to determine whether he carries a current diagnosis of PTSD which is linked to the verified stressor(s). Irrespective of whether any stressor event is verified, the Veteran should be scheduled for a mental disorders examination to determine whether any other diagnosed acquired psychiatric disorder is the result of an event during, or is otherwise related to active duty service. The claims folder must be made available to the examiner in conjunction with the examination and the examiner must note that the folder has been reviewed. Any and all tests deemed necessary should be performed. The examiner should also solicit from the Veteran a history of symptomatology associated with any acquired psychiatric disorder, both during and after active service, and note that, in addition to the medical evidence, the Veteran's statements have been taken into consideration. The examiner should be asked whether it is at least as likely as not that any current acquired psychiatric disorder (to include any such disorder that has been diagnosed at any time during the appeals period) is related to or is otherwise the result of active duty service. The examiner must provide a complete rationale for all conclusions reached, and should discuss those findings in relation to the pertinent evidence of record. It would be helpful if the examiner would use the following language, as appropriate: "more likely than not," (meaning likelihood greater than 50%); "at least as likely as not," (meaning likelihood of at least 50%); or "less likely than not" or "unlikely" (meaning there is less than 50% likelihood). The clinician is also advised that the term "at least as likely as not" does not mean within the realm of possibility. Rather, it means that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of causation as to find against causation. "More likely" and "as likely" support the contended causal relationship; "less likely" weighs against the claim. If the examiner finds that it is impossible to provide the requested opinion without resort to speculation, it should be so stated. In that case, the examiner must specifically support this conclusion with a detailed medical explanation that takes into consideration all of the pertinent evidence of record (including the Veteran's self-reported history). 3. Thereafter, review the claims folder to ensure that the foregoing requested development has been completed and readjudicate the claim. If the claim is not granted to the Veteran's satisfaction, the Veteran and his representative should be provided with a Supplemental Statement of the Case and afforded the opportunity to respond thereto. The matter should then be returned to the Board, if in order, for further appellate process. 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). ______________________________________________ BARBARA B. COPELAND Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs