Citation Nr: 1319042 Decision Date: 06/12/13 Archive Date: 06/21/13 DOCKET NO. 09-46 684A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUE Entitlement to an increased disability rating (or evaluation) in excess of 40 percent for service-connected residuals of a gunshot wound to the right shoulder, with arthrodesis (dominant). REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Thomas D. Jones, Counsel INTRODUCTION The Veteran, who is the appellant, served on active duty from January 1968 to December 1969. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2007 rating decision of a Regional Office (RO) of the Department of Veterans Affairs (VA) in Chicago, Illinois, which denied an increased rating in excess of 40 percent. In his December 2009 VA Form 9, the Veteran requested a Board personal hearing before a Veterans Law Judge seated at the RO. This request was later changed to a Board video hearing. Such a hearing was scheduled for March 2012; however, he failed to appear on the scheduled date, and failed to provide an explanation regarding his absence. Thus, the Board hearing request is deemed withdrawn. See 38 C.F.R. § 20.704 (2012). FINDINGS OF FACT 1. The Veteran's gunshot wound to the right shoulder resulted in fractures of both the right humerus and clavicle, extensive debridement, prolonged infection, and prolonged hospitalization. 2. For the entire rating period on appeal, the Veteran's gunshot wound to the right shoulder has been characterized by loss of strength and atrophy of Muscle Groups I, II, and III, resulting in severe impairment. CONCLUSION OF LAW Resolving reasonable doubt in the Veteran's favor, the criteria for an increased schedular rating of 50 percent but no higher for residuals of a gunshot wound to the right shoulder with arthrodesis have been met. 38 U.S.C.A. §§ 1155, 5103(a), 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.2, 4.3, 4.7, 4.40, 4.45, 4.55, 4.56, 4.59, 4.71a, 4.73, Diagnostic Codes 5200-03, 5301-03 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) enhanced VA's duty to notify and assist claimants in substantiating a claim for VA benefits, as codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.326(a) (2012). A VCAA notice consistent with 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) must (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; and (3) inform the claimant about the information and evidence the claimant is expected to provide. In a claim for an increased rating, the VCAA requires only generic notice as to the type of evidence needed to substantiate the claim, namely, evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on employment, as well as general notice regarding how disability ratings and effective dates are assigned. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009). The Board finds that in this case VA has satisfied its duties to notify the Veteran under the VCAA. In a June 2007 letter, the Veteran was notified of the information and evidence needed to substantiate and complete the increased rating claim on appeal, soliciting evidence and information pertaining to increased severity of the right shoulder disability, and explained how VA determined disability ratings. The Board further notes that, in the present case, initial notice was issued prior to the October 2007 rating decision on appeal; thus, no timing issue exists with regard to the notice provided the claimant. See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). The Board next finds that VA has complied with the duty to assist by aiding the Veteran in obtaining evidence. It appears that all known and available records relevant to the pending appeal have been obtained and are associated with the Veteran's claims files. The RO has obtained the Veteran's service treatment records, as well as VA and non-VA medical treatment records. The Veteran was also afforded VA medical examinations in 2007 and 2011. The Board notes that the VA medical evidence contains sufficiently specific clinical findings and informed discussion of the pertinent history and clinical features of the disability on appeal and is adequate for purposes of this appeal. The Board is not aware of, and the Veteran has not suggested the existence of, any additional pertinent evidence not yet received. Increased Rating for Right Shoulder Disability Service connection with a 40 percent disability rating has been in effect since 1970 for residuals of a gunshot wound to the right shoulder. In April 2007, the Veteran filed a claim for increased rating for the service-connected residuals of a gunshot wound to the right shoulder. He has asserted that this right shoulder disability results in limitation of motion, weakness, and loss of strength of the right shoulder, such that a higher disability rating is warranted. Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities. The percentage ratings are based on the average impairment of earning capacity and individual disabilities are assigned separate diagnostic codes. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Any reasonable doubt regarding a degree of disability will be resolved in favor of the veteran. 38 C.F.R. § 4.3. Pyramiding, that is the evaluation of the same disability, or the same manifestation of a disability, under different diagnostic codes, is to be avoided when evaluating a veteran's service-connected disability. 38 C.F.R. § 4.14 (2012). It is, however, possible for a veteran to have separate and distinct manifestations from the same injury which would permit rating under several diagnostic codes; the critical element in permitting the assignment of several evaluations under various diagnostic codes is that none of the symptomatology for any one of the conditions is duplicative or overlapping with the symptomatology of the other condition. See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994). As is the case here, where entitlement to compensation has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Nevertheless, where the evidence contains factual findings that show a change in the severity of symptoms during the course of the rating period on appeal, assignment of staged ratings is permissible. Hart v. Mansfield, 21 Vet. App. 505 (2007). In rendering a decision on appeal the Board must also analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). The Veteran's right shoulder disability has been rated as 40 percent disabled under Diagnostic Code 5200, for ankylosis of the scapulohumeral articulation. This code provides, for the dominant shoulder, a 30 percent disability rating for favorable ankylosis, with abduction to 60 degrees and the ability to reach the hand to the mouth. A 40 percent disability rating is warranted for intermediate ankylosis, between unfavorable and favorable. Unfavorable ankylosis, with abduction limited to 25 degrees from the side, warrants a 50 percent rating. 38 C.F.R. § 4.71a, Diagnostic Code 5200. The Veteran in this case is right-hand dominant; therefore, his right shoulder disability affects his major, dominant side. Normal ranges of motion of the shoulder are flexion (forward elevation) from 0 degrees to 180 degrees, abduction from 0 degrees to 180 degrees, external rotation from 0 degrees to 90 degrees, and internal rotation from 0 degrees to 90 degrees. 38 C.F.R. § 4.71, Plate I. When evaluating musculoskeletal disabilities, the Board must also consider whether a higher disability evaluation is warranted on the basis of functional loss due to pain or due to weakness, fatigability, incoordination, or pain on movement of a joint under 38 C.F.R. §§ 4.40 and 4.45 under any applicable diagnostic code pertaining to limitation of motion. See DeLuca v. Brown, 8 Vet. App. 202 (1995). Where, however, a musculoskeletal disability is evaluated at the highest rating available based upon limitation of motion, further DeLuca analysis is foreclosed. Johnston v. Brown, 10 Vet. App. 80 (1997). Diagnostic Code 5202, for impairment of the humerus, may also be considered in the evaluation of the Veteran's disability. Under Diagnostic Code 5202, a 30 percent evaluation for the major arm may be granted for malunion of the humerus with marked deformity, or; recurrent dislocations of the scapulohumeral joint with frequent episodes and guarding of all arm movements. A 50 percent rating is warranted for the major extremity when there is fibrous union of the humerus, a 60 percent rating is warranted when there is nonunion (false flail joint) of the humerus and a 80 percent rating is warranted when there is loss of head (flail shoulder) of the humerus. 38 C.F.R. § 4.71a. While other diagnostic criteria exist for evaluation of the shoulder joint, none of the remaining criteria offer a disability rating in excess of 40 percent. See 38 C.F.R. § 4.71a, Diagnostic Codes 5201-03. The Board notes, however, that both service treatment records and post-service clinical findings confirm involvement of various muscle groups of the shoulder in the Veteran's original gunshot wound injury. Generally, separate ratings for muscle injuries may not be assigned for muscle groups which act upon an ankylosed joint. 38 C.F.R. § 4.55(c) (2012). For certain joints, however, such as the shoulder, regulatory exceptions may apply. In the case of an ankylosed shoulder, if Muscle Groups I and II are severely disabled, the evaluation of the shoulder joint under Diagnostic Code 5200 will be increased to the level of unfavorable ankylosis, but the muscle groups themselves will not be rated. 38 C.F.R. § 4.55(c)(2). For VA rating purposes, the cardinal signs and symptoms of muscle disability are loss of power, weakness, lower threshold of fatigue, fatigue-pain, impairment of coordination; and uncertainty of movement. 38 C.F.R. § 4.56(c) (2012). Disabilities resulting from muscle injuries are classified as slight, moderate, moderately severe, and severe. 38 C.F.R. § 4.56(d) (2012). Slight muscle disability contemplates a simple wound of the muscle without debridement or infection; a service department record of a superficial wound with brief treatment and return to duty; healing with good functional results; and no cardinal signs or symptoms of muscle disability. Objectively, there is a minimal scar; no evidence of fascial defect, atrophy, or impaired tonus; and no impairment of function or metallic fragments retained in muscle tissue. 38 C.F.R. § 4.56(d)(1). Moderate muscle disability contemplates a through and through or deep penetrating wound of short track from a single bullet, small shell, or shrapnel fragment, without the explosive effect of a high velocity missile, residuals of debridement, or prolonged infection; a service department record or other evidence of in-service treatment for the wound; and a record of consistent complaint of one or more of the cardinal signs and symptoms of muscle disability, particularly lowered threshold of fatigue after average use, affecting the particular functions controlled by the injured muscles. Objectively, there are entrance and (if present) exit scars that are small or linear, indicating a short track of missile through muscle tissue; and some loss of deep fascia or muscle substance or impairment of muscle tonus and loss of power or lowered threshold of fatigue when compared to the sound side. 38 C.F.R. § 4.56(d)(2). Moderately severe muscle disability contemplates a through and through or deep penetrating wound by a small high velocity missile, or large low-velocity missile, with debridement, prolonged infection, or sloughing of soft parts, and intermuscular scarring; a service department record or other evidence showing hospitalization for a prolonged period for the wound; a record of consistent complaint of cardinal signs and symptoms of muscle disability; and, if present, evidence of inability to keep up with work requirements. Objectively, there are entrance and (if present) exit scars indicating track of missile through one or more muscle groups; indications on palpation of loss of deep fascia, muscle substance, or normal firm resistance of muscle compared with the sound side; and tests of strength and endurance compared with the sound side demonstrate positive evidence of impairment. 38 C.F.R. § 4.56(d)(3). Severe muscle disability contemplates a through and through or deep penetrating wound due to a high velocity missile, or large or multiple low velocity missiles, or with shattering bone fracture or open comminuted fracture with extensive debridement, prolonged infection, or sloughing of soft parts, intermuscular binding, and scarring; a service department record or other evidence showing hospitalization for a prolonged period for treatment of the wound; a record of consistent complaint of cardinal signs and symptoms of muscle disability, worse than those shown for moderately severe muscle injuries; and, if present, evidence of inability to keep up with work requirements. Objectively, there are ragged, depressed, and adherent scars indicating wide damage to muscle groups in the missile track; palpation shows loss of deep fascia or muscle substance, or soft flabby muscles in the wound area; muscles swell and harden abnormally in contraction; and tests of strength, endurance, or coordinated movements indicate severe impairment of function when compared with the uninjured side. If present, the following are also signs of severe muscle disability: (a) x-ray evidence of minute, multiple scattered foreign bodies indicating intermuscular trauma and explosive effect of the missile; (b) adhesion of scar to one of the long bones, scapula, pelvic bones, sacrum, or vertebrae, with epithelial sealing over the bone rather than true skin covering in an area where bone is normally protected by muscle; (c) diminished muscle excitability to pulsed electrical current in electrodiagnostic tests; (d) visible or measurable atrophy; (e) adaptive contraction of an opposing group of muscles; (f) atrophy of muscle groups not in the track of the missile, particularly of the trapezius and serratus in wounds of the shoulder girdle; and (g) induration or atrophy of an entire muscle following simple piercing by a projectile. 38 C.F.R. § 4.56(d)(4). Where there are muscle injuries in the same anatomical region such as the shoulder girdle and arm, the ratings for those injuries will not be combined, but instead, the rating for the major group 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. 38 C.F.R. § 4.55. This regulation also provides that two or more muscles affecting the motion of a single joint could be combined but not in combination receive more than the rating for ankylosis of that joint at the intermediate angle. Additionally, muscle injury ratings will not be combined with peripheral nerve paralysis ratings. Id. Muscle Group I encompasses some of the extrinsic muscles of the shoulder girdle, which control upward rotation of the scapula, or elevation of the arm above shoulder level. These muscle include the trapezius, levator scapulae, and the serratus magnus. For the major extremity, a noncompensable evaluation is assigned under Diagnostic Code 5301 for a slight disability; 10 percent is assigned for a moderate disability; 30 percent for moderately severe disability; and 40 percent for severe disability. 38 C.F.R. § 4.73. Muscle Group II also encompasses the extrinsic muscles of the shoulder girdle, which act to depress the arm from the vertical overhead to hanging by the side and act with group III in forward and backward swing of the arm. These muscles include the pectoralis major II (costosternal), latissimus dorsi and teres major, pectoris minor, rhomboid, and the teres majoris, which is technically an intrinsic muscle, but is included with the latissimus dorsal. Ratings provide that slight impairment of the major extremity warrants a zero percent rating; moderate impairment warrants a 20 percent disability evaluation; moderately severe impairment warrants a 30 percent disability evaluation and, a 40 percent disability evaluation is warranted for a severe impairment. 38 C.F.R. § 4.73, Diagnostic Code 5302. Muscle Group III encompasses the intrinsic muscles of the shoulder girdle, which act to elevate and abduct the arm to the level of the shoulder and act with Groups I and II in forward and backward swing of the arm. These muscles include the pectoralis major I (clavicular) and deltoid. Ratings provide that slight impairment of the major extremity warrants a zero percent rating; moderate impairment warrants a 20 percent disability evaluation; moderately severe impairment warrants a 30 percent disability evaluation and; a 40 percent disability evaluation is warranted for a severe impairment. 38 C.F.R. § 4.73, Diagnostic Code 5302 (2012). Review of the service treatment records indicates that the Veteran sustained a gunshot wound to the right shoulder due to hostile enemy action during service in Vietnam in September 1968. He was stabilized in Vietnam but after approximately one week was evacuated to Japan and later to the United States for extended treatment and rehabilitation. This injury resulted in a comminuted fracture of the head of the right distal humerus, as well as fracture of the right clavicle. Upon arrival in the United States, the Veteran was found to have infection of his right shoulder, and was placed on a course of antibiotics for 6 months until drainage subsided. As the Veteran had difficulty moving his right shoulder and upper extremity without pain, a shoulder fusion was elected, and a shoulder arthrodesis was performed in June 1969. Thereafter, he underwent physical therapy to regain some use of the right upper extremity, and was found suitable for hospital discharge and medical board review in September 1969. He was then found unsuitable for further service due to his right shoulder injury, and was separated from service in December 1969. This disability was essentially stable for many years thereafter. During the pendency of this appeal, the Veteran was afforded VA orthopedic examinations in June 2007 and November 2011. He also had a private examination of his right shoulder in December 2007. VA examination in June 2007 confirmed involvement of the trapezius (Muscle Group II), latissimus dorsi (Muscle Group II), pectoralis major (Muscle Groups II and III), and deltoid (Muscle Group III), and that each of these was atrophic. Private examination in December 2007 confirmed that this atrophy of the muscles of the right shoulder was "significant," according to the examiner. Subsequent VA examination in November 2011 confirmed a loss of muscle strength in the right shoulder, with strength of 4/5, and further unspecified functional impairment due to such factors as weakened movement, excess fatigability, pain on movement, and deformity and atrophy due to disuse. Each of these examinations also confirmed that the Veteran's right shoulder exhibited ankylosis of the scapulohumeral articulation. The Board observes that neither the June 2007 nor November 2011 examiner had the opportunity to review the Veteran's claims file, to include his medical history, in conjunction with the examinations; however, this fact does not render useless these examiners' clinical findings, as both examiners were able to solicit a thorough and accurate medical history from the Veteran himself, and his reporting of his medical history as reflected by the examination reports is found credible by the Board. See Kowalski v. Nicholson, 19 Vet. App. 171, 177 (2005) (holding that a medical opinion cannot be disregarded solely on the rationale that the medical opinion was based on history given by the veteran); see also VAOPGCPREC 20-95 (interpreting that in some cases an accurate history by a veteran may be a valid basis for an examination report rather than claims file review). Considering the criteria for severe muscle disability, the Board notes the Veteran's gunshot wound resulted in fractures of both the right humerus and clavicle, with extensive debridement, prolonged infection, and prolonged hospitalization of nearly one year. By regulation, an open comminuted fracture will be rated as a severe injury to the muscle group involved unless evidence establishes that muscle group damage is minimal. 38 C.F.R. § 4.56(a). Additionally, following a recovery period of over one year, involving multiple operations and prolonged physical therapy, a military medical board concluded in October 1969 that this injury resulted in "major" impairment and was disqualifying for retention on active duty. Current findings also include both loss of strength and atrophy of parts of multiple muscle groups, including Muscle Groups I, II, and III. Based on the entire record, and resolving reasonable doubt in the Veteran's favor, the Board finds that severe impairment of Muscle Groups I and II has been demonstrated. Pursuant to 38 C.F.R. § 4.55(c)(2), a 50 percent disability rating under Diagnostic Code 5200 based on unfavorable ankylosis of the right scapulohumeral joint. 38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 4.3, 4.7. Additionally, because this level of impairment and no higher has been demonstrated since the initiation of this claim, a staged rating in excess of 50 percent is not warranted for any period during the pendency of this appeal. See Hart, 21 Vet. App. at 505. The Board has also considered other applicable diagnostic codes, but finds that these codes do not provide a basis for an increased evaluation in excess of 50 percent for the rating period under review. Of the codes for the shoulder and upper extremity, only Diagnostic Code 5202, for impairment of the humerus, affords a schedular rating in excess of 50 percent. While the Veteran's humerus was fractured as part of the initial injury, it was subsequently fused, and neither the current VA nor private medical examinations reflect either nonunion (false flail joint) or loss of head (flail shoulder) of the humerus. Additionally, the 50 percent rating assigned herein is in excess of the maximum schedular ratings for the affected muscle groups involved; therefore, evaluation of the Veteran's disability under that set of criteria also would not result in a higher rating. See 38 C.F.R. § 4.73, Diagnostic Codes 5201-03. Finally, because the Veteran has already been assigned the maximum schedular rating for limitation of motion of the right shoulder, a higher rating is not warranted based on additional limitation of motion due to such factors as pain, pain on motion, weakened movement, incoordination, or excessive fatigability. See Johnston, 10 Vet. App. at 80. The Board has also considered whether referral for adjudication of an extraschedular rating is warranted. Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. To accord justice in an exceptional case where the schedular standards are found to be inadequate, the RO is authorized to refer the case to the Chief Benefits Director or the Director, Compensation and Pension Service for assignment of an extraschedular evaluation commensurate with the average earning capacity impairment. The criterion for such an award is a finding that the case presents an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical application of regular schedular standards. 38 C.F.R. § 3.321(b)(1) (2012). In Thun v. Peake, 22 Vet. App. 111, 115 (2008), the Court clarified the analytical steps necessary to determine whether referral for extraschedular consideration is warranted. Either the RO or the Board must first determine whether the schedular rating criteria reasonably describe the Veteran's disability level and symptomatology. If the schedular rating criteria reasonably describe a veteran's disability level and symptomatology, the assigned schedular evaluation is adequate, referral for extraschedular consideration is not required, and the analysis stops. If the RO or the Board finds that the schedular evaluation does not contemplate a veteran's level of disability and symptomatology, then either the RO or the Board must determine whether the veteran's exceptional disability picture includes other related factors such as marked interference with employment and frequent periods of hospitalization. Id. at 116. If this is the case, then the RO or the Board must refer the matter to the VA Under Secretary for Benefits or the Director of the Compensation and Pension Service for the third step of the analysis, determining whether justice requires assignment of an extraschedular rating. Id. Turning to the first step of the extraschedular analysis in the present case, the Board finds that the symptomatology and impairment caused by the Veteran's gunshot wound to the right shoulder is specifically contemplated by the schedular rating criteria, and no referral for extraschedular consideration is required. The schedular rating criteria, to include Diagnostic Code 5200, specifically provide for disability ratings based on a combination of occupational and social impairment, reported symptoms, and clinical findings. In this case, considering the lay and medical evidence, the Veteran's gunshot wound to the right shoulder is manifested by limitation of motion (ankylosis) and loss of strength of the shoulder. These symptoms are part of or like or similar to symptoms listed under the schedular rating criteria at 38 C.F.R. §§ 4.71a and 4.73. The schedular rating criteria specifically address the Veteran's ankylosis of the right shoulder at the scapulohumeral articulation, as well as his loss of strength and atrophy of Muscle Groups I-III. In conclusion, an increased rating, to 50 percent and no higher, is warranted for service-connected residuals of a gunshot wound of the right shoulder, with arthrodesis (dominant). As a preponderance of the evidence is against the award of a disability rating in excess of 50 percent, the benefit of the doubt doctrine is not applicable in the instant appeal. See 38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 4.3, 4.7; Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1991). ORDER An increased rating of 50 percent for residuals of a gunshot wound of the right shoulder with arthrodesis (dominant) is granted. ____________________________________________ J. Parker Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs